INTERNATIONAL COURT OF JUSTICE
MARITIME DISPUTE
(PERU v. CHILE)
COUNTER-MEMORIAL OF THE
GOVERNMENT OF CHILE
VOLUME I
9 MARCH 2010 TABLE OF CONTENTS
page
GLOSSARY OF PRINCIPAL DEFINED TERMS, ABBREVIATIONS
AND ACRONYMS vii
LIST OF FIGURES IN VOLUME I xi
CHAPTER I: INTRODUCTION 1
Section 1.The Principal Issues 1
Section 2.The Agreed Maritime Boundary 14
Section 3.Inconsistencies in Peru’s Recent Positions 19
Section 4.The Broad Historical Context 25
Section 5.Issues of Jurisdiction and Admissibility: Peru’s
Pleaded Case Seeks to Reopen Matters Agreed in
Treaties 30
A. PERU HASCONTRIVED A DISPUTE 30
B. THEPACT OFB OGOTÁ EXPLICITLYEXCLUDES ISSUES
CONCERNING THEA GREED LAND BOUNDARY FROM
REFERENCE TO THECOURT 30
C. NADMISSIBILITY OPERU’SP LEADEDC LAIMS 36
Section 6.Structure of this Counter-Memorial 38
CHAPTER II: THE PARTIES’ MARITIME BOUNDARY
AGREEMENT AND ITS CONTEXT 40
Section 1.Introduction 40
i Section 2.Delimitation and Demarcation of the Land Boundary
(1929-1930) 44
Section 3.Concordant Unilateral Proclamations of 200M Zones
(1947) 50
A. BACKGROUND TO THE1947P ROCLAMATIONS 50
B. THET ERMS OF TH1947PROCLAMATIONS 54
C. PRIORINSTANCES OU SE OPARALLELS OFLATITUDE IN
THEPRACTICE OFAMERICAN STATES 62
Section 4.The Santiago Declaration (1952) 65
A. NTRODUCTION 65
B. MOTIVATION FOR THSANTIAGO DECLARATION 65
C. THE1952 SANTIAGOCONFERENCE 67
D. ENTRY INTOFORCE OF THSANTIAGO DECLARATION 69
E.T HESANTIAGO DECLARATION HASALWAYS BEEN A
TREATY 71
F. THEM ARITIMEZONESD ELIMITED BY TSANTIAGO
DECLARATION 76
G. LATERALD ELIMITATION 79
H. SEAWARD EXTENSION OF THZONES CLAIMED IN THE
SANTIAGOD ECLARATION 93
Section 5.The Alta Mar Area Now Claimed by Peru 97
A. PERU’SINCONSISTENS UBMISSIONS 98
B. THEA GREEDD ELIMITATIOA PPLIEREGARDLESS OF
DISTANCE FROM THC OAST 99
C. THEA GREEDD ELIMITATIOA PPLIEREGARDLESS OF
THEM ETHOD USED TOMEASURE THEOUTER LIMIT OF A
STATE’SM ARITIMZ ONE 100
ii D. THEALTAM AR AREA IS NOT UNIQUESITUATION 104
E.THE PRESENCIALSEA ISRRELEVANT TO THIC ASE 105
Section 6.Benefits of the Santiago Declaration to Peru 109
Section 7.Contemporaneous International Law: The Work of
the ILC and the North Sea Continental Shelf Case117
Section 8.The Parties’ Maritime Zones 125
A. ERU S MARITIMEZ ONE 126
B. CHIL’SM ARITIMEZONES 131
Section 9.Acknowledgment and Confirmation of the Maritime
Boundary in the Agreement Relating to a Special
Maritime Frontier Zone (1954) 132
A. NTRODUCTION 132
B. CHIL, CUADOR AND PERU DEFENDED THEIRM ARITIME
Z ONES I1954 133
C. AGREEMENT THATM ARITIMEBOUNDARIES HAD
A LREADY BEENSETTLED IN1952 139
D. TERMS ANDEFFECT OF THA GREEMENT RELATING TO A
S PECIALMARITIMEFRONTIER ZONE THE LIMA
A GREEMENT ) 142
E. RATIFICATION ANAPPLICATION OF THLIMA
A GREEMENT 151
Section 10. The Widespread Understanding that the Santiago
Declaration delimited the Parties’ Maritime Zone155
A. OSITION OFTHIRDSTATES 155
B. THEUNITED NATIONS 161
C. UBLICISTS 162
Section 11. Conclusion 173
iiiCHAPTER III: ACKNOWLEDGEMENT AND
IMPLEMENTATION OF THE AGREED BOUNDARY IN
SUBSEQUENT AGREEMENTS AND IN PRACTICE 175
Section 1.Introduction 175
Section 2.Implementation of the Boundary and Signalling
along the Parallel of Latitude of Hito No. 1 (1968-
1969) 177
A. ACKNOWLEDGEMENT OF THEEXISTENCE OF THE
BOUNDARY 178
B. THEPARTIES’ GREEMENT TOSIGNAL THEMARITIME-
BOUNDARY LINE 185
C. THESIGNALLING OF THBOUNDARY WAS AM EASURE
MPLEMENTING THESANTIAGO DECLARATION 195
D. CHOICE OH ITONO. 1AS THREFERENCE POINT FOR
DETERMINING THC OURSE OF THBOUNDARY LINE 197
Section 3.The Maritime Boundary in Subsequent Legislation of
Chile and Peru 201
A. CONFIRMATION OF THPERIMETER OPERU’SM ARITIME
ZONE(1955) 201
B. DOMESTICLEGISLATION ANO THERO FFICIATEXTS
RECOGNIZING THM ARITIMEBOUNDARY 205
Section 4.Exercise of Jurisdiction by Chile and Peru in their
Respective Maritime Zones 214
A. CONTROL OFENTRY INTOMARITIMEZONES AT THE
BOUNDARY PARALLEL 215
B. CAPTURE ANDPROSECUTION OU NAUTHORIZEDFOREIGN
VESSELS 219
C. RECOGNITION OF AAGREEDM ARITIMEBOUNDARY LINE
BY THEPARTIE’NAVAL AUTHORITIES 228
iv D. ERU’SU SE OF IMSARITIMEBOUNDARIES AS THE
LIMITS OF THAIRSPACE ABOVE IT“MARITIME
DOMINION” 229
E. CIENTIFIRESEARCH INW ATERSSOUTH OF THE
M ARITIMEBOUNDARY 233
Section 5.Acknowledgement of the Delimited Maritime Zones
within the context of the Permanent Commission of
the South Pacific (CPPS) 239
A. CCESSIONPROTOCOL TO THESANTIAGO DECLARATION
(1955) 240
B. GREEMENTS AND DECLARATIONS UNDER THECPPS
FRAMEWORK 242
C. CPPSACKNOWLEDGEMENT OF THREED ISTINCT
NATIONAL M ARITIMEZONES 245
Section 6.Acknowledgement of Delimited Maritime Zones
during Negotiations with the United States (1955248
Section 7.Cartographic Depiction of Peru’s “Maritime
Dominion” 251
Section 8.The Maritime Boundary between Ecuador and Peru
under the Santiago Declaration 255
Section 9.Conclusion 258
CHAPTER IV: THE PARTIES’ MARITIME BOUNDARY HAS
BEEN SETTLED BY TREATY 260
Section 1.Introduction 260
Section 2.The Santiago Declaration and the Lima Agreement
are Complementary Texts 262
Section 3.The Applicable Rules of Treaty Interpretation 263
v Section 4The Agreed Maritime Boundary between Chile and
Peru 266
A. THEORDINARY MEANING OF THTERMS OF THE
SANTIAGODECLARATION ANDLIMA AGREEMENT IN
THEIC ONTEXT 266
B. THEOBJECT ANDPURPOSE OF THSANTIAGO
DECLARATION AND THLIMAA GREEMENT 272
C. UBSEQUENT AGREEMENTS BETWEENC HILE ANPERU IN
1968AND1969 274
D. SUBSEQUENTPRACTICE IN TAPPLICATION OF THE
SANTIAGODECLARATION AND THLIMA AGREEMENT 276
E.THE PREPARATORYW ORKS OF THSANTIAGO
DECLARATION ANDLIMAA GREEMENT 285
F. HE CIRCUMSTANCES OF THSANTIAGODECLARATION’S
CONCLUSION 290
Section 5Location and Course of the Maritime Boundary 291
Section 6Maritime Zones Delimited by the Boundary between
Chile and Peru 294
Section 7Stability of Agreed Boundaries 296
CHAPTER V: SUMMARY 301
CHAPTER VI: SUBMISSIONS 305
LIST OF ANNEXES (VOLUMES II - V) 307
LIST OF FIGURES (VOLUME VI) 335
LIST OF DOCUMENTS DEPOSITED WITH THE REGISTRY 341
vi GLOSSARY OF PRINCIPAL DEFINED TERMS, ABBREVIATIONS
AND ACRONYMS
1929-1930 Mixed Mixed boundary commission comprising delegates of
Commission Chile and Peru, constituted in 1929 pursuant to
Article 3 of the Treaty of Lima
1930 Final Act Final Act (Acta Final) signed on 21 July 1930 by the
Chilean and Peruvian delegates to the 1929-1930
Mixed Boundary Commission
1947 Chilean Official Declaration by the President of Chile, of
Declaration 23 June 1947
1947 Peruvian Peruvian Supreme Decree No. 781 of 1 August 1947
Supreme Decree
or
Supreme Decree of
1947
1952 Conference Conference on Exploitation and Conservation of the
Maritime Resources of the South Pacific, held in
Santiago in August 1952
1952 Minutes Minutes of the meetings of the 1952 Conference
1954 CPPS Meeting Meeting of the Permanent Commission of the
Conference on Exploitation and Conservation of the
Maritime Resources of the South Pacific, held in
Santiago, Chile in October 1954, to prepare the 1954
Inter-State Conference
vii 1954 Inter-State Second Conference on Exploitation and Conservation
Conference of the Maritime Resources of the South Pacific, held in
Lima in December 1954
1955 Supreme Peruvian Supreme Resolution No. 23 of 11 January
Resolution 1955
1968 Minutes Minutes of the meeting of the Chilean and Peruvian
delegates at the Chile-Peru frontier, of 26 April 1968,
recording their joint proposal to build two alignment
m a r k e r s o n t h e p a r a l l e l o f H i t o N o . 1 , s u b s e q u e n t l y
approved by an exchange of notes between Peru and
Chile on 5-29 August 1968
1968-1969 Mixed Mixed commission comprising delegates of Chile and
Commission Peru, charged by the Parties with verifying the location
of Boundary Marker No. 1 and with signalling the
maritime boundary
1969 Act Act (Acta) of 22 August 1969 by the 1968-1969 Mixed
Commission
Accession Protocol Protocol of Accession to the Declaration of Santiago on
“Maritime Zone”, signed at Quito on 6 October 1955
Act of Acta signed on 5 August 1930 by the Chilean
Plenipotentiaries Ambassador to Peru and the Minister of Foreign
Affairs of Peru pursuant to Article 4 of the Treaty of
Lima
CPPS Permanent Commission of the South PacificC (omisión
Permanente del Pacífico Sur)
EEZ Exclusive Economic Zone
FIR Flight Information Region
viii Hito No. 1 Boundary marker made of concrete on the Chile-Peru
land boundary, the astronomical coordinates and
characteristics of which were determined by the 1929-
1930 Mixed Boundary Commission and recorded in the
Act of Plenipotentiaries; the astronomical latitude of
Hito No. 1 was recorded to be 18° 21' 03" S.
This latitude corresponds to 18° 20' 47" S (otherwise
notated as 18° 20'8 S, 18° 20.8' S or 1820.8S) when
referred to PSAD56, 18° 20' 58" S when referred to
SAD69, and 18° 21' 00" S when referred to WGS84
Datum.
ILC International Law Commission
Lima Agreement Agreement Relating to a Special Maritime Frontier
Z o n C eonv(enio sobre Zona Especial Fronteriza
Marítima), concluded by Chile, Ecuador and Peru at
Lima on 4 December 1954, 2274 UNTS 528
LPI Límite político internacional (international political
boundary)
M Nautical mile(s)
PSAD56 Provisional South American Datum 1956
Santiago Declaration Declaration on the Maritime Zone (Declaración sobre
Zona Marítima), concluded by Chile, Ecuador and Peru
at Santiago on 18 August 1952, 1006 UNTS 324
SHOA Hydrographic and Oceanographic Service of the Navy
of ChileS(ervicio Hidrográfico y Oceanográfico de la
Armada de Chile), formerly called the Hydrographic
and Oceanographic Institute (Instituto Hidrográfico y
Oceanográfico)
ix SISPER System of information on position and security in the
maritime dominion of Peru ( Sistema de información de
posición y seguridad en el dominio marítimo del Perú)
SAD69 South American Datum 1969
Treaty of Lima Treaty for the Settlement of the Dispute regarding
Tacna and Arica, concluded by Chile and Peru at Lima
on 3 June 1929, [1929] League of Nations, Treaty
Series 406
UNCLOS U n i t e d N a t i o n s C o n v e n t i o n o n t h e L a w o f t h e S e a ,
signed at Montego Bay on 10 December 1982, 1833
UNTS 3
UNTS United Nations, Treaty Series
Vienna Convention Vienna Convention on the Law of Treaties, signed at
Vienna on 23 May 1969, 1155 UNTS 331
WGS84 World Geodetic System 1984
x LIST OF FIGURES IN VOLUME I
Figure 1. Use of parallels as agreed maritime boundaries on After p. 4
the west coast of South America
Figure 2. Sketch-map showing Peru’s alta mar claim After p. 8
Figure 3. Schematic illustration of the perimeter of Peru’s After p. 60
maritime zone under the 1947 Supreme Decree
Figure 4. Sketch-map of Peru’s maritime zone by Minister After p. 60
García Sayán (1955)
Figure 5. Sketch-map of Peru’s maritime zone by After p. 60
Dr. Vergaray Lara (1962)
Neutrality zone under the Declaration of Panama, After p. 64
Figure 6.
3 October 1939
Figure 7. Ecuador-Peru maritime boundary and Peru’s After p. 88
i n t e r p r e t a t i o n o f A r t i c l e I V o f t h e S a n t i a g o
Declaration
Figure 8. Seaward extent of maritime zones of Chile and Peru After p. 102
at the time of the Santiago Declaration
Figure 9. Comparison of the outer limits of maritime zones of After p. 102
Chile and Peru using tracé parallèle and envelope
of arcs of circles
Figure 10. Alta mar area arising from the agreed maritime After p. 106
boundary between Chile and Argentina (1984)
Figure 11. Chile-Peru Special Maritime Frontier Zone under After p. 144
the Lima Agreement of 1954
xiFigure 12. Sketch-map of Peru’s maritime dominion by After p. 150
Professor Martínez de Pinillos (1956)
Figure 13. Sketch-map of the Chile-Peru maritime boundary After p. 158
by the United States Department of State (1979)
Figure 14. Sketch-map of the Chile-Peru maritime boundary After p. 158
by the People’s Republic of China State Oceanic
Administration Policy Research Office (1989)
Figure 15. Sketch-map of the Chile-Peru maritime boundary After p. 162
by the United Nations Office for Ocean Affairs and
the Law of the Sea (1991)
Figure 16. Sketch-map of the Chile-Peru maritime boundary After p. 170
by Professors Conforti and Francalanci (1987)
Figure 17. Sketch-map of the Chile-Peru maritime boundary After p. 170
by Professor Prescott (1985)
Figure 18. Sketch-map of the Chile-Peru maritime boundary After p. 172
by Mr. R. Bundy (1994)
Figure 19. Sketch-map of the Chile-Peru and Peru-Ecuador After p. 172
maritime boundaries by Professor Altuve – Febres
Lores (1998)
Figure 20. E x t r a c t f r o m t h e R u l e s o f E Anfterap. 76m e n t o f t h e
Chilean Navy (1990s)
Figure 21. Boundary implied by Peru’s report of the Diez After p. 184
Canseco incident (1966), plotted on an extract of
Peruvian chart 325
xiiFigure 22. Signalling of the maritime boundary through After p. 194
alignment of the Chilean and Peruvian lighthouses
on Hito No. 1
Figure 23. Operation of Chilean and Peruvian lighthouses After p. 194
signalling the maritime boundary
Figure 24. Point 266 of Peru’s baselines plotted on Peru’s After p. 200
current large-scale chart (chart 3255, 3rd edition
1985, revised 30 October 2002)
Figure 25. Chile’s benthonic management areas under After p. 212
Supreme Decree No. 210 (as amended)
Figure 26. Marine-resources management areas in Peru’s After p. 212
southernmost region of Tacna
Figure 27. Diagram showing nearshore marine-resources After p. 212
management areas of Chile and Peru in the vicinity
of the maritime boundary
Figure 28. Locations where Peruvian vessels have been After p. 224
arrested by Chile for violating the maritime
boundary, 1984 and 1994-2009
Figure 29. Peruvian chart: Flight Information Regions (FIRs), After p. 232
Air-Route Navigation Chart — Upper Airspace
Figure 30. Authorized points of entry into and exit from the After p. 232
Peruvian airspace
Figure 31. Scientific voyage authorized by the Chilean Navy: After p. 234
Hespérides (1996)
Figure 32. Scientific voyage authorized by the Chilean Navy: After p. 234
Melville (1997)
xiiiFigure 33. Scientific voyage authorized by the Chilean Navy: After p. 236
Merlion and Beach Surveyor (1999)
Figure 34. Scientific voyage authorized by the Chilean Navy: After p. 236
Melville (2000)
Figure 35. Scientific voyage authorized by the Chilean Navy: After p. 236
Roger Revelle (2003)
Figure 36. Sketch-map in the CPPS report on the second joint After p. 240
regional oceanographic research (1999) showing
the oceanographic stations of the national
institutions of its Member States and the routes
taken by their research ships
Figure 37. Sketch-maps of Peru’s maritime zone in J. A. After p. 254
Benavides Estrada, Geografía del Perú y del
Mundo, 1984, approved by Resolution No. 0185 of
17 April 1984 of the Ministry of Foreign Affairs of
Peru
Figure 38. Sketch-maps of Peru’s maritime zone in J. A. After p. 254
Benavides Estrada, A. Marín del Águila, O. Díaz
Alva and A. Soto Sánchez, Escuela Nueva,
Enciclopedia Escolar, 1982, approved by
Resolution No. 0405 of 26 August 1982 of the
Ministry of Foreign Affairs of Peru
Figure 39. Sketch-maps of Peru’s maritime zone in J. A. After p. 254
Benavides Estrada, Geografía: Atlas del Perú y del
Mundo, 1983, approved by Ministerial Resolution
No. 0016-82-ED of the Ministry of Education and
by Ministerial Resolution No. 404-82-RE of the
Ministry of Foreign Affairs of Peru
xivFigure 40. Sketch-maps of Peru’s maritime zone in J. A. After p. 254
Benavides Estrada, Geografía, 1992, approved by
Resolution No. 0611 of 20 December 1991 of the
Ministry of Foreign Affairs of Peru and Decree
No. 032 of 10 March 1992 of the National Institute
of Research and Development of Education of Peru
Figure 41. Sketch-maps of Peru’s maritime zone in L. After p. 256
Quintanilla, Atlas del Perú y del mundo, 1999,
approved by Letter (DFL-CAR) No. 0-3-D/29 of
the Ministry of Foreign Affairs of Peru
Figure 42. Sketch-map of the Ecuador-Peru maritime After p. 256
boundary and the Ecuadorean baselines by the
United States Department of State (1972)
xv CHAPTER I
INTRODUCTION
1.1. By Order of 31 March 2008 the Court fixed the dates for the filing of
the Memorial and the Counter-Memorial in this case. The Republic of Chile
(Chile) submits this Counter-Memorial pursuant to the Court’s Order. In
accordance with Article 49(2) of the Rules of the Court, Chile sets out in this
Counter-Memorial the propositions of fact and law on which the disposition of
this case rests. Chile also responds to the statements of fact and law made by the
Republic of Peru (Peru) in its Memorial, so far as a response is called for in the
circumstances of this case.
Section 1. The Principal Issues
1.2. Peru commenced these proceedings by unilateral Application,
invoking Article 36(1) of the Statute of the Court in conjunction with Article
XXXI of the American Treaty on Pacific Settlement of 1948 (the Pact of
1
Bogotá) . The case instituted by Peru comprises two claims. First, Peru contends
that “[t]he maritime zones between Chile and Peru have never been delimited by
agreement or otherwise” , and that a delimitation is to be effected by the Court in
accordance with customary international law. Secondly, as a separate claim, Peru
contends that Chile is required to recognize “Peru’s sovereign rights in a
maritime area situated within the limit of 200 nautical miles from its coast (and
3
outside Chile’s exclusive economic zone or continental shelf)”.
1 Pact of Bogotá, signed on 30 April 1948, 30 United Nations, Treaty Series (UNTS)
55, Annex 46 to the Memorial.
2
Peru’s Application, para. 2.
3 Ibid., para. 3.
11.3. In Chile’s respectful submission, Peru’s claims fail. The Parties have
already delimited their maritime boundary by agreement, in the Declaration on
the Maritime Zone (the Santiago Declaration) . This is a tripartite international
agreement between Chile, Peru and Ecuador, which was concluded in August
1952. The maritime-boundary line between Chile and Peru, and between
Ecuador and Peru, is “the parallel at the point at which the land frontier of the
States concerned reaches the sea” . This agreement followed, and was consistent
with, concordant unilateral proclamations made by Chile and Peru in 1947 in 6
which each State claimed a maritime zone of at least 200 nautical miles.
1.4. The agreed maritime boundary between Chile and Peru is a long-
standing reality in international relations. It has been fully implemented in law
— international treaties and domestic laws — and applied in practice, and
remains in full force today. The Agreement Relating to a Special Maritime
7
Frontier Zone of 1954 (the Lima Agreement) is one notable example, among
many, of the practice confirming and implementing the boundary. This
Agreement was also between Chile, Peru and Ecuador. It is expressed to be an
integral part of the Santiago Declaration . It establishes zones of tolerance in
which accidental transgressions of the maritime boundary by local vessels will
not be punished. Those zones exist “on either side of the parallel which
4
Declaration on the Maritime Zone, concluded by Chile, Ecuador and Peru at
Santiago on 18 August 1952, 1006 UNTS 323, Annex 47 to the Memorial (the
Santiago Declaration).
5 Ibid., Art. IV.
6
See Official Declaration by the President of Chile of 23 June 1947, Annex 27 to the
Memorial (the 1947 Chilean Declaration); Peruvian Supreme Decree No. 781 of
1 August 1947, Annex 6 to the Memorial (the 1947 Peruvian Supreme Decree or
the PeruvianSupreme Decree of 1947).
7
Agreement Relating to a Special Maritime Frontier Zone, concluded by Chile,
Ecuador and Peru at Lima on 4 December 1954, 2274 UNTS 528, Annex 50 to the
Memorial (theLima Agreement).
8
Ibid., Art. 4.
2 9
constitutes the maritime boundary between the two countries” . Another example
is the Parties’ agreement in 1968 physically to give effect (materializar) to the
boundary by signalling the precise course of the boundary parallel with two
alignment lighthouses . 10
1.5. The Santiago Declaration was instrumental in the formation of the
11
modern principles of the continental shelf and EEZ . Its terms have proved their
enduring longevity, and remain valid today.
1.6. In the Santiago Declaration, Chile, Ecuador and Peru set forth a
specific vision of maritime zones and maritime projection. Each of the States
parties claimed “exclusive sovereignty and jurisdiction over the sea along the
coasts of their respective countries to a minimum distance of 200 nautical miles
from these coasts” 12 (emphasis added). The States parties used as the lateral
limits of their respective maritime zones the parallels of latitude “at the point at
which the land frontier of the States concerned reaches the sea” . The States3
parties conceived each State’s continental coastline as generating a maritime
14
zone, which the Santiago Declaration termed a “general maritime zone” and,
also, each island (or group of islands) as generating its own maritime zone
projected radially for 200 nautical miles . In these circumstances, as well as
delimiting the “general” maritime zones, the States parties also had to deal with
9
Lima Agreement, Annex 50 to the Memorial , Art. 1.
10 The course of the agreed boundarywas recorded in the minutes of the meeting of the
delegates of Chile and Peru on 25 and 26 April 1968 (the 1968 Minutes), Annex 59
to the Memorial. Alignment lighthouses were put into operation in 1972.
11 See paras 2.72-2.73 below.
12
Santiago Declaration, Annex 47 to the Memorial, Art. II.
13 Ibid., Art. IV.
14
Ibid.
15 Ibid.
3the delimitation of one State’s insular zone against another State’s “general”
zone. They did so by agreeing that if an island was within 200 nautical miles (or,
for short, M) of the parallel of latitude constituting the boundary between the
general zones of the relevant adjacent States, then the insular maritime zone
16
would also be delimited by that boundary .
1.7. In 1952, claims to 200M maritime zones of “exclusive sovereignty and
jurisdiction” were novel. The Santiago Declaration was the first international-law
instrument to claim such zones. The main purpose of the Santiago Declaration
was to “legalize” on the international plane (as it was put in the relevant
17
diplomatic correspondence ) earlier unilateral claims to 200M zones made by
Chile and Peru in 1947. At the time, there was no established practice on
delimitation of large ocean expanses. The primary rule was, as it remains, that
maritime delimitation was to be effected by agreement. Several methods were in
use at the time for the delimitation of territorial seas. Those methods included the
use of parallels of latitude. Crucially, since 1947, Peru’s 200M maritime zone
was defined as a seaward projection “following the line of the geographical
parallels” . In the Santiago Declaration five years later, the States parties
adopted Peru’s own conception, using geographic parallels of latitude as their
lateral boundaries.
1.8. Since the Santiago Declaration, parallels of latitude have been agreed
as all-purpose maritime boundaries along the west coast of South America
between Panama, Colombia, Ecuador, Peru and Chile. This pattern is illustrated
in Figure 1. The agreed boundary between Chile and Peru is the only one of
these boundaries that has been challenged — by Peru or anyone else.
16 See Santiago Declaration, Annex 47 to the Memorial , Art. IV.
17
See para. 2.53 below.
18 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
41.9. The agreement on maritime boundaries in the Santiago Declaration has
four chief consequences for the present case. First, that agreement covers all
zones of “exclusive sovereignty” or “jurisdiction” that each of the States parties
may adopt. And thus, in fact, the Santiago Declaration does cover the maritime
zones actually claimed by the Parties today. There is continuity between Peru’s
zonal entitlement under the Santiago Declaration and the maritime zone which
Peru actually claims today. Peru has one unitary 200M maritime zone called the
“maritime dominion”. Peru relies on the 1947 Supreme Decree and the Santiago
Declaration in justification of its “maritime dominion”. Peru is not party to the
United Nations Convention on the Law of the Sea (UNCLOS). For its part, Chile
ratified UNCLOS in 1997. In the maritime area off its continental territory, since
1986 Chile has a 12M territorial sea, a 24M contiguous zone, and a continental
19
shelf and an exclusive economic zone ( EEZ) extending to 200M . Peru’s
“maritime dominion” and Chile’s UNCLOS zones are all zones of “sovereignty”
or “jurisdiction” within the meaning of the Santiago Declaration 2. The maritime
boundary agreed in the Santiago Declaration constitutes a comprehensive and
complete boundary between the Parties.
1.10. The second consequence follows from the fact that, as a former
President of the Court observed, the maritime zones and delimitation method
used by the Parties in the Santiago Declaration represented “the logical corollary
to the fundamental argument invoked in support of their maritime claims,
namely, the direct and linear projection of their land territories and land
19 In May 2009, Chile submitted to the United Nations Commission on the Limits of
the Continental Shelf preliminary information indicative of the outer limits of the
continental shelf beyond 200 nautical miles from its baselines.
20 As will be seen (see footnote 742 below) Ecuador claims a 200M territorial sea.
Ecuador is not party to UNCLOS.
5 21
boundaries into the adjacent seas” . As between these three States parties, the
continental maritime zone of each of them is bounded laterally by “the parallel at
the point at which the land frontier of the States concerned re.aches the sea” 22
That line operates as a limit throughout the seaward extent of a continental
maritime zone, regardless of whether another State party claims an abutting zone
on the other side of the line or, if there are abutting zones on either side of the
line, whether these zones are of different jurisdictional content. In consequence,
under the Santiago Declaration, a continental maritime zone may not wrap
around the continental maritime zone of another State, so as not to cut off that
State’s “direct and linear projection” into the sea. This permitted each State party
to exercise the right, under the Santiago Declaration, at any time unilaterally to
extend its own maritime zone farther seaward than the “minimum distance” of
200 nautical miles.
1.11. The third consequence flows from the two above. The maritime
boundary under the Santiago Declaration cannot be severed from the zonal
entitlements which the States parties mutually recognized in the same
instrument. The zonal entitlements and the delimitation component are
inseparable elements of the same treaty. Peru has derived considerable economic,
diplomatic, and political benefits from the recognition of its zonal entitlement
under the Santiago Declaration. It cannot now resile from the maritime-boundary
component while preserving the benefits that it has already accrued and will
continue to accrue from the Santiago Declaration.
1.12. The fourth consequence follows from the fact that, as noted, the
parallel of latitude agreed in the Santiago Declaration limits all seaward
21 E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and L. M. Alexander (eds),
International Maritime Boundaries, Vol. I, 1993, Annex 280, p. 794.
22 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
6extensions of the States parties’ maritime zones. Peru’s claim and submission to
t he Co urt are fo r mu lat ed in a wa y t hat is inco ns ist ent w it h t his e ffect o f t he
Santiago Declaration. As may be seen from Figure 7.5 in Peru’s Memorial (at
page 265), Peru lays claim to a maritime area within 200 nautical miles of its
coast, which area Peru says is to be delimited by a line of equidistance with
Chile. Part of that area (38,324 km ) is within 200 nautical miles of Chile’s
coast. Another part of the area claimed by Peru is beyond 200 nautical miles
2
from Chile’s coast (28,356 km , or approximately 42% of Peru’s aggregate
claim) and is treated by Peru separately. In its Memorial, Peru has labelled that
latter part of its claim “the outer triangle”. Chile calls it thea“ lta mar area” to
denote its high-seas status. It is depicted in Figure 2.
1.13. Peru asks the Court to declare that Peru is “entitled to exercise
exclusive sovereign rights” 24in the alta mar area. The area that Peru wishes to
subsume into its “maritime dominion”, and in which it wishes to exercise
sovereignty, is an area of high seas open to all States. Peru seeks to bring within
its “maritime dominion” an area of the high seas roughly equal in size to the
territory of Albania. The sovereignty exercised by Peru in its “maritime
25
dominion” includes control over airspace to a distance of 200 nautical miles .
1.14. Peru’s claim to the alta mar area seeks to expand its “maritime
dominion” in such a way that it would wrap around Chile’s continental shelf and
23 Memorial, paras 7.2 et seq. The maritime area now claimed by Peru was first
depicted in an official chart attached to its Supreme Decree No. 047-2007-RE of 11
August 2007, only five months before its Application to the Court of 16 January
2008: see Annex 24 to the Memorial and Figure 2.4 of the Memorial (p. 51).
Chile protested this depiction in Note No. 1415/07 of 12 August 2007 from the
Minister of Foreign Affairs of Chile to the Peruvian Ambassador to Chile,
Annex 109.
24 Memorial, p. 275, Submission (2).
25
On the nature of Peru’s “maritime dominion”, including control over airspace, see
paras 2.166-2.176 below.
7EEZ for a length of approximately 110M (in a North-South direction) and to a
maximum breadth of 165M (in an East-West dirFeig cution2))(seeue’s
proposed expansion would very considerably curtail practical access to the high
seas from the significant Chilean port of Arica, which lies directly to the east of
the alta mar area.
1.15. Peru’s formulation of its claim to thealta mar area “[b]eyond the point
26
where the common maritime border [of Chile and Peru] ends” is inconsistent
with its own primary position that there is no agreed boundary with Chile. If
Peru’s primary position were correct, the equidistance line which Peru submits
should be drawn would delimit the full extent of Peru’s total claim, including the
alta mar area: there could be no “outer triangle”. That can be seen very clearly in
Figure 7.5 of Peru’s Memorial (at page 265), which shows that Peru’s proposed
maritime boundary would give to Peru the alta mar area as well as the area
claimed by Peru which lies within Chile’s 200M limit. Yet Peru also asks the
Court to declare that Peru has “exclusive sovereign rights” in the alta mar area
“[b]eyond the point where the common maritime border ends” . 27
1.16. Thus Peru’s claim to ta hleta mar area proceeds on an assumption by
Peru that the Court will find that the parallel of latitude is the agreed maritime
boundary, but that the Parties’ agreement covers only the area within 200
nautical miles of the point where their land boundary reaches the sea. Hence, as
is explained at paragraphs 2.110-2.112, logically Peru’s claim to the alta mar
area could only be regarded as a claim in the alternative to its primary claim.
Peru’s alternative claim also fails. Under the Santiago Declaration, the parallel of
latitude operates as a limit for the entire seaward extent of the Parties’ maritime
zones, regardless of whether the other Party has an abutting zone.
26 Memorial, p. 275, Submission (2).
27
Ibid.
8 *
1.17. There is long-standing recognition, by Peru, Chile, Ecuador and in the
international community, that the Chile-Peru maritime boundary has been fully
delimited by agreement. Elementary considerations of good faith, consistency
and justified reliance would of themselves suffice to preclude Peru from now
disputing the boundary that it has previously recognized as a juridical fact .
1.18. Until Peru agitated its present claims very recently, there was a long-
standing uninterrupted pattern of quiet possession on both sides of the maritime
boundary. On the strength and stability of the boundary, fishing and fisheries-
related industry have flourished at the port of Arica, just 15 kilometres to the
south of Chile’s land boundary with Peru. That industry is one of the principal
sources of income and economic growth in the region, and it relies on both
artisanal fishing and long-range trawler fishing in Chile’s territorial sea and EEZ.
1.19. Permits in the waters off Chile’s coast, now claimed by Peru, are
issued by Chile’s authorities in Arica, not Peru’s authorities in Ilo. Ilo is the
major Peruvian port closest to the waters to which Peru now lays claim in this
case. It is some 140 kilometres away from Arica. The waters which Peru now
claims are in fact policed by Chile’s Navy, not Peru’s. Fisheries-management
schemes in those waters have been adopted and implemented by Chile, not Peru.
1.20. Arica is not only a significant commercial port and fishing centre in its
own right, it is also a port which serves the interests of Peru and Bolivia and
28
See Case concerning the Arbitral Award made by the King of Spain on 23 December
1906 (Honduras v. Nicaragua), Judgment, I.C.J. Reports 1960, pp. 213-214; Case
concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment ,
I.C.J. Reports 1962, pp. 32-33; Fisheries Case (United Kingdom v. Norway),
Judgment, I.C.J. Reports 1951, pp. 138-139; Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 34-35, para. 66.
9provides key facilities to those countries. Arica serves as the port of the Peruvian
city of Tacna, some 50 kilometres to the north. In fulfilment of its obligations
under the Treaty of Lima, Chile constructed in Arica a quay (managed by a
Peruvian State-owned enterprise), a building for the Peruvian Customs office and
a terminal station for the railway to Tacna . 29 P e r u e n j o y s p o r t f a c i l i t i e s
comprising “the most complete freedom of transit for persons, goods and arms to
30
Peruvian territory and from Peruvian territory through Chilean territory” . Arica
is also the main transit port for Bolivian cargo. Free-transit rights have been
granted by Chile to Bolivia in perpetuity under the Treaty of Peace, Friendship
31
and Commerce of 1904 . A pipeline from Bolivia lands at Arica, permitting
both imports and exports of petroleum. Bolivia has also been granted by Chile
the necessary concession for a segment of the pipeline in the sea, which permits
ships to on-load and off-load petroleum. This rich pattern of economic activity,
which is centred on Arica, is dependent on unimpeded access to the sea,
including the alta mar area now claimed by Peru.
1.21. The Parties have agreed on a maritime boundary. So, ultimately this
case turns on fundamental rules of pacta sunt servanda and stability of
boundaries. Article 38(1) of the Court’s Statute requires the Court to give effect
to the agreement between the Parties. Peru, as any State which has undertaken an
29 See the Treaty for the Settlement of the Dispute regarding Tacna and Arica, signed at
Lima on 3 June 1929, 94 League of Nations,Treaty Series 401 (entered into force on
28 July 1929) (the Treaty of Lima), Annex 45 to the Memorial, Art. 5. These
facilities and the zones, as well as the area between them which has a railway
connection, “are found under Chilean sovereignty and, as a consequence of this, are
subject to its legal ordinance and to the jurisdiction of its courts, considering the full
observance of the Treaty of 1929 and its Additional Protocol, as well as the present
Act of Execution”: Act of Execution, signed at Lima on 13 November 1999,
Annex 60 to the Memorial, Art. 13.
30 Supplementary Protocol to the Treaty of Lima,Annex 45 to the Memorial, Art. 2.
31
Treaty of Peace, Friendship and Commerce, signed at Santiago on 20 October 1904,
Art. VI.
10international obligation, “being bound, cannot escape from the international
obligation merely by denying its existence” . Hence, Peru’s emphasis in its
Memorial on its “sovereignty” and a supposed “cut-off” of sovereign
33
entitlements by the boundary parallel is misplaced . Peru itself acknowledges, as
it must, that the space within which its maritime entitlements exist is “[s]ubject
to the application of the rules relating to the delimitation of maritime areas
between States with adjacent coasts” . There is an agreement between the
Parties, which delimits their maritime zones using a parallel of latitude. As the
Permanent Court observed, “[n]o doubt any convention. . .places a restriction
upon the exercise of the sovereign rights of the State. . . But the right of entering
into international engagements is an attribute of State sovereignty” 35. And as the
Court recently held: “A treaty provision which has the purpose of limiting the
sovereign powers of a State must be interpreted like any other provision of a
treaty, i.e. in accordance with the intentions of its authors as reflected by the text
of the treaty and the other relevant factors in terms of interpretation” . 36
*
1.22. Following this outline of the principal issues in this case, this
introductory Chapter continues with a summary of the existence and
implementation of the Parties’ agreed maritime boundary (in Section 2). This
Counter-Memorial provides a comprehensive account, not only of the Parties’
agreement on the maritime boundary, but also of the circumstances that led to
32 Separate opinion of Sir Gerald Fitzmaurice, Case concerning the Temple of Preah
Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 63.
33 See Memorial, e.g., para. 6.66.
34
Ibid., para. 3.20.
35 Case of the S.S. Wimbledon, 1923, P.C.I.J., Series A, No. 1, p. 25.
36
Case concerning the Dispute Regarding Navigational and Related Rights (Costa
Rica v. Nicaragua), I.C.J. Judgment, 13 July 2009, pp. 24-25, para. 48.
11that agreement and the State practice acknowledging and implementing the
boundary since it was agreed.
1.23. Peru’s Memorial does not grapple with that evidence — on the theory,
it seems, that the existence of a delimitation agreement requires “the clearest
evidence and proof” , a n d t h a t s u c h e v i d e n c e i s f o r C h i l e t o a d d u c e . P e r u
chooses to concentrate its efforts on attempting to show that as a matter of
abstract grammatical construction it is possible to read the Santiago Declaration
and Lima Agreement as not providing for the delimitation of the Parties’
maritime zones. That is an attempt to demonstrate that there is linguistic support
f o r a t h e s i s a l r e a d y a r r i v e d a t . I t i s n o t a n e x e r c i s e i n t r e a t y i n t e r p r e t a t i o n ,
because it is severed from the context and the history of those two treaties and
ignores the evidence relating to their implementation in practice — in short, it is
not aimed at ascertaining and giving effect to the Parties’ intent. The relevant
context, history and evidence are presented in this Counter-Memorial. Taken
together, that material is explicable only on the basis that the Parties have fully
delimited all of their maritime entitlements by agreement.
1.24. Section 3 of this Chapter then turns to Peru’s cultivation of the present
claim, which is an artefact of recent vintage. Peru’s denial of the maritime-
boundary component of the Santiago Declaration is simply an ipse dixit. This
recent denial is contradicted by more than 50 years of State practice, including
Peruvian practice. Significantly, when Peru first proposed to Chile, in 1986, to
renegotiate the existing “maritime demarcation”, Peru did so on the (wrong)
assumption that the maritime zones newly recognized in UNCLOS called for the
37 Memorial, para. 4.141(a).
12existing delimitation to be revisited — not on the basis that there was no agreed
maritime boundary in place.
1.25. Following this démarche in 1986, Peru did not renew its request to
renegotiate the boundary. Rather, it continued to acknowledge the existence of a
maritime boundary and to observe the boundary and enforce it. Indeed, in
connection with the completion of port facilities at Arica for Peru’s benefit in the
late 1990s, Peru affirmed that there was no outstanding boundary issue with
39
Chile . If the maritime boundary were outstanding, as Peru now claims, one
would have expected at the very least a reservation to that effect.
1.26. It was in 2000 that Peru changed its position, and began to challenge
the existence of a boundary. Chile stood firm: given the existence of an agreed
maritime boundary and the long-standing practice giving effect to that boundary,
no good-faith dispute could fairly be said to exist. Chile maintains that position
today.
1.27. Section 4 of this introductory Chapter describes briefly the
international-relations context in which the Santiago Declaration is properly to
be understood. Peru’s Memorial devotes considerable space to the War of the
Pacific in the late 1800s and to events following that war early in the 1900s . 40
That is not the proper historical context of the present case. The Santiago
Declaration and the Parties’ maritime boundary arose from their co-operation
and solidarity on matters of the law of the sea. That is only one of the several
areas where the two States have co-operated on the international plane since they
38 See Memorandum annexed to Note No. 5-4-M/147 of 23 May 1986 from the
Embassy of Peru in Chile to the Ministry of Foreign Affairs oB fákuhliale (the
Memorandum), Annex 76 to the Memorial , sixth paragraph.
39
See para. 1.41 below.
40 See Memorial, paras 1.14-1.31.
13conclusively resolved all outstanding land-boundary issues in 1929 . Presenting
the 1929 Treaty of Lima to the Council of the League of Nations, the Chilean
delegate stated that “the way of co-operation and conciliation. . .was the most
certain road to peace and prosperity” . The Santiago Declaration was a pillar of
this co-operation in the years that followed.
1.28. After Section 5, which indicates issues of jurisdiction and
admissibility arising from Peru’s claim, this Chapter concludes with Section 6,
which outlines the legal and factual issues that are dealt with in each subsequent
Chapter.
Section 2. The Agreed Maritime Boundary
1.29. In 1947 the Parties issued concordant unilateral proclamations, each
43
claiming sovereignty to a distance of 200 nautical miles . T h e s e t w o
proclamations were among the first 200M claims to be based exclusively on
distance from the coast (rather than claiming zones to a depth of 200 metres).
Both proclamations referred to the perimeter of the zone claimed, and the 1947
Peruvian Supreme Decree in particular made clear that Peru’s zone was to be
measured using parallels of latitude. This meant that Peru’s zone was laterally
limited by parallels of latitude, both to the North (with Ecuador) and to the South
(with Chile). Neither Chile nor Ecuador objected to or protested the zone
44
proclaimed by Peru . Chile accepted that its own zone was laterally bounded by
41 Treaty of Lima, Annex 45 to the Memorial .
42 League of Nations, Official Journal, July 1929, Annex 225, p. 1004.
43 See the Chilean Declaration, Annex 27 to the Memorial; and the 1947 Peruvian
Supreme Decree, Annex 6 to the Memorial.
44
See para. 2.41 below on the mutual acknowledgement by Chile and Peru of each
other’s proclamation.
14the parallel of latitude that bounded Peru’s zone in accordance with Peru’s
Supreme Decree.
1.30. Against this background, lateral delimitation was dealt with succinctly
and without controversy in 1952, when Chile and Peru joined together to defend
their previous unilateral proclamations and set them forth in a multilateral treaty
instrument, the Santiago Declaration. Ecuador joined with Chile and Peru in the
Santiago Declaration which, as the 1947 unilateral proclamations of the Parties,
also set forth an exclusively distance-based 200M claim. In Article IV of the
Santiago Declaration the Parties agreed that their maritime boundary was the
parallel of latitude passing through the point at which their land boundary
reached the sea.
1.31. Until Peru sought to unsettle the maritime boundary in recent years,
there was never a dispute about the location of that point for Article IV purposes.
The two States had delimited their land boundary in the 1929 Treaty of Lima
and, in accordance with Article 3 of that Treaty, proceeded to “determine and
mark” the land boundary in 1930. The determination and demarcation covered
the entire length of the boundary and were done by agreement of the Parties. In
this agreement, in 1930, the first boundary marker (Hito No. 1) was recorded as
having been placed on the “seashore [orilla del mar]”. Its astronomical latitude
was agreed to be 18 degrees, 21 minutes and 3 seconds south of the Equator
(18° 21' 03" S). Later, Hito No. 1 was identified by the Parties as the reference
point for the purposes of Article IV of the Santiago Declaration, that is, to define
“the parallel at the point at which the land frontier of the States concerned
reaches the sea”.
1.32. In 1954 Chile, Ecuador and Peru concluded the Agreement Relating to
a Special Maritime Frontier Zone, i.e. the Lima Agreement. It is “deemed to be
15an integral and supplementary part of, and not in any way to abrogate, the
45
resolutions and agreements adopted. . .in August 1952” . First and foremost
among those “resolutions and agreements” is the Santiago Declaration. In its
title, in its recitals and in its first operative article, the Lima Agreement
acknowledged that at the time of its conclusion, a maritime boundary already
existed between the Parties. Notably, in its Article 1 the Lima Agreement refers
to “the parallel which constitutes the maritime boundary between the two
countries”.
1.33. The minutes of the inter-state conference at which the Lima
Agreement was agreed explicitly record the agreement between Chile, Ecuador
and Peru that the Santiago Declaration had already delimited their maritime
boundaries. The Ecuadorean delegate had moved for a provision expressly
clarifying the maritime-boundary agreement contained in Article IV of the
Santiago Declaration. The proposed provision was to be included in another
international agreement then being prepared (and ultimately signed at the end of
the same conference by Chile, Ecuador and Peru) . But the delegates of Peru
and Chile considered that “Article 4 of the Declaration of Santiago is clear
47
enough and, therefore, does not require further explanation” . Instead of a new
treaty provision, all three parties to the Santiago Declaration agreed formally to
record in the minutes that–
“the three countries deemed the matter on the dividing line
of the jurisdictional waters settled and that said line was
45 Lima Agreement, Annex 50 to the Memorial , Art. 4.
46
See the Complementary Convention to the Declaration of Sovereignty on the Two-
Hundred-Mile Maritime Zone (the Complementary Convention), signed at Lima on
4 December 1954, Annex 51 to the Memorial .
47 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38, p. 3.
16 the parallel starting at the point at which the land frontier
between both countries reaches the sea.” 48
Peru did not produce with its Memorial the part of the 1954 minutes in which
that agreement was recorded, nor did it mention in its Memorial the common
understanding of Article IV of the Santiago Declaration which this agreement
reflects.
1.34. In Supreme Resolution No. 23 of 12 January 1955 (the 1955 Supreme
Resolution) Peru recognized that its maritime zone as “referred to in the
Supreme Decree of 1 August 1947 and the joint Declaration signed in Santiago
on 18 August 1952 by Peru, Chile and Ecuador”–
“shall be limited at sea by a line parallel to the Peruvian
coast and at a constant distance of 200 nautical miles from
it;
. . . In accordance with clause IV of the Santiago
Declaration, the said line may not extend beyond that of
the corresponding parallel at the point where the frontier of
Peru reaches the sea.” 49
1.35. This 1955 Supreme Resolution was provided to the United Nations by
the Peruvian Minister of Foreign Affairs in a note verbale of 22 August 1972,
50
and was reproduced in a United Nations Legislative Series publication of 1974 .
Thus, Peru’s acknowledgement in 1955 that the Santiago Declaration delimited
Peru’s maritime boundaries was hardly an error. In 1972 Peru transmitted to the
48 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38, p. 3.
49
1955 Supreme Resolution, Annex 9 to the Memorial , operative paragraphs.
50 See United Nations Legislative Series, National Legislation and Treaties Relating to
the Law of the Sea, 1974, Annex 164, pp. 27-28.
17United Nations the 1955 Supreme Resolution without any reservation about its
scope or ongoing applicability.
1.36. In 1968 and 1969 Chile and Peru jointly took practical measures to
signal the precise course of their agreed maritime boundary. They identified Hito
No. 1 as the reference point for the parallel of latitude constituting the maritime
51
boundary , and instructed a mixed commission “physically to give effect
[materializar] to the parallel that passes through the aforementioned Hito No. 1”
in order to “signal the maritime boundary” . The Parties’ representatives
proposed the construction of two lighthouses which, when aligned by mariners,
53
indicated the parallel of latitude followed by the maritime boundary . That was
agreed by the Parties. Lighthouses commenced operation in the early 1970s and
continued to signal the boundary until 2001, when the Peruvian lighthouse was
destroyed by an earthquake. Peru has not heeded Chile’s request to rebuild the
lighthouse.
1.37. These are just a few prominent examples of acknowledgement of the
agreed maritime boundary. Numerous other examples are given in Chapter III of
this Counter-Memorial.
51
See 1968 Minutes, Annex 59 to the Memorial .
52 Act of the Chile-Peru Mixed Commission in Charge of Verifying the Location of
Boundary Marker No. 1 and Signalling the Maritime Boundary, 22 August 1969 (the
1969 Act), Annex 6. In this Counter-Memorial, the Spanish term materializar is in
most instances translated as “physically to give effect to”, instead of “to materialize”
as in Peru’s Memorial. This is done for clarity of meaning. Nothing of substance in
this case turns on this difference in translation.
53 See 1968 Minutes, Annex 59 to the Memorial , first recital and first paragraph.
18 Section 3. Inconsistencies in Peru’s Recent Positions
1.38. Peru now claims that it has “constantly reiterated its unwavering
54
position” that there is no maritime boundary with Chile. In fact, Peru has only
recently challenged the existence of the maritime boundary, and has raised
several mutually inconsistent arguments as purported justifications for its new
position. Chile is bound to point out these inconsistencies, not only for the sake
o f t h e r e c o r d b u t a l s o b e c a u s e t h e y i l l u s t r a t e h o w P e r u h a s m a n u f a c t u r e d a
dispute where none ought to have arisen.
1.39. In 1986 Peru dispatched Ambassador Bákula to Santiago with a
personal message from its then Foreign Minister, Dr. Allan Wagner, to his
counterpart in Chile. Peru sought Chile’s “immediate attention” to the “formal
55
and definitive delimitation of the marine spaces” . The message is recorded in
the Bákula Memorandum submitted by Peru to Chile subsequent to that meeting.
Peru stated that this document was its “first presentation” to Chile by diplomatic
56
channels of the “problem” discussed in the memorandum. Peru considered that
the “new circumstances”, namely the conclusion of UNCLOS in 1982, made the
57
presentation necessary . Peru argued the position that the “definition of new
maritime spaces” in UNCLOS meant that Chile and Peru should agree a specific
treaty to delimit those “new” zones . Peru asserted that “an extensive
i n t e r p r e t a t i o n ” o f e x i s t i n g a g r e e m e n t s b e t w e e n t h e P a r t i e s “ c o u l d g e n e r a t e a
notorious situation of inequity and risk, to the detriment of the legitimate
59
interests of Peru, that would come forth as seriously damaged” . Peru referred to
54
Memorial, para. 22.
55 Bákula Memorandum, Annex 76 to the Memorial, fourth paragraph.
56 Ibid., ninth paragraph.
57 Ibid., third and sixth paragraphs.
58 Ibid., sixth paragraph.
59
Ibid., fifth paragraph.
19the desirability of “preventing the difficulties which would arise in the absence
of an express and appropriate maritime demarcation” and of avoiding a maritime
60
boundary with “some deficiency therein” . Peru’s diplomatic language does not
obscure the essential point: Peru acknowledged that there was a boundary in
place, which Peru wished to renegotiate.
1.40. Peru claims that “Chile had acknowledged in 1986 that the maritime
delimitation with Peru was a matter which remained to be exam 61. Inefa”t,
Chile never agreed to Peru’s proposed revision of existing agreements following
the meeting with Ambassador Bákula. The Foreign Ministry of Chile simply
noted the interest of the Peruvian Government in “future conversations between
the two countries on their points of view regarding maritime delimitation” and
62
stated that “studies on this matter shall be carried out in due time” . That was
hardly an acknowledgment that no maritime boundary was in place; and indeed
Chile took no further action. Nor, significantly, did Peru raise any issue
regarding the agreed maritime boundary until another 14 years had passed. The
“immediate” need to revisit the maritime boundary, which Peru had said to have
arisen from the conclusion of UNCLOS and “the [potential] incorporation of its
63
principles into the domestic legislation of countries” , disappeared. Peru neither
signed nor ratified UNCLOS, nor did it change its domestic law and “maritime
dominion” in accordance with UNCLOS.
1.41. The next event of interest occurred in 1999. The Foreign Affairs
Committee of the Peruvian Congress noted that the final agreement with Ecuador
in 1998 on the land boundary and the 1999 Act of Execution with Chile, which
60
Bákula Memorandum, Annex 76 to the Memorial, eighth paragraph.
61 Memorial, para. 21.
62
Official Communiqué of 13 June 1986 by the Ministry of Foreign Affairs of Chile,
Annex 109 to the Memorial, para. 2.
63 Bákula Memorandum, Annex 76 to the Memorial, sixth paragraph.
20concluded the process of Chile’s putting into service port facilities for Peru at
Arica under the 1929 Treaty of Lima, “end[ed] any pending possible conflict
with [Peru’s] neighbouring countries” . Similarly, on the solemn occasion of the
conclusion of the 1999 Act of Execution with Chile, the Foreign Minister of Peru
stated that this agreement ended the “last consequences of the conflict between
Peru and Chile” . In 1999 Peru did not consider maritime delimitation with
Chile to be pending.
1.42. It therefore comes as little surprise that in its treaty relations with
Chile, Peru has not sought to formulate boundary-delimitation reservations or to
include a “without prejudice” clause in respect of delimitation issues. Without-
prejudice clauses are normal practice in treaties which may affect either a party’s
entitlement to a disputed or undelimited maritime zone or the nature of the rights
66
of a party in such a zone . Chile and Peru have concluded a number of
agreements under the auspices of the Permanent Commission of the South
Pacific (CPPS, in its Spanish-language acronym) which relate to the
management of the maritime zone of each State party and the resources therein.
64 Peruvian Congress, Foreign Affairs Committee, Congreso y Gestión Externa, Part I,
Chap. IX “Congress and External Issues of the 1990s”, Annex 183, sixth
introductory paragraph. The document does not bear a date but it is included in the
part of the official website of the Congress which summarizes the activities of its
Foreign Affairs Committee in 1999: <http://www.congreso.gob.pe/comisiones/1999/
exteriores.htm>.
65 S t a t e m e n t b y t h e M i n i s t e r o f F o r e i g n A f f a i r s o f P e r u o n 1 3 N o v e m b e r 1 9 9 9 ,
Annex 182.
66
See, e.g., Agreement between the Government of Japan and the Government of the
Union of Soviet Socialist Republics on Co-operation in the Field of Fisheries, signed
at Moscow on 12 May 1985, 1402 UNTS 302, Annex 16, Art. VIII; Agreement
b e t we e n t h e G o v e r n m e n t o f t h e Un i t e d K i n g d o m o f G r e a t Br i t a i n a n d N or t h er n
Ir elan d, th e Gover nmen t of th e Kin gdom of Nor wa y an d th e Govern men t of th e
Union of Soviet Socialist Republics on the Regulation of the Fishing of North-East
Arctic (Arcto-Norwegian) Cod, signed at London on 15 March 1974, 925 UNTS 3,
Annex 8, Art. VI; Reciprocal Fisheries Agreement between the Government of the
United States of America and the Government of Canada, signed at Washington
D.C. on 24 February 1977, 1077 UNTS 55, Annex 10, Art. XVII.
21In particular, since the 1986 Bákula Memorandum, there have been three such
67
CPPS agreements . Peru did not make any declaration or reservation, either
upon signing or ratification; nor did it seek to include a without-prejudice
provision in respect of any outstanding maritime-boundary issue. Only the
“Galápagos Agreement” of August 2000 contained a generic “savings clause” , 68
b u t i t w a s n o t s p e c i f i c a l l y d i r e c t e d t o i s s u e s o f d e l i m i t a t i o n b e t w e e n t h e
69
Contracting States . What is more, the Chile-Peru bilateral investment treaty,
also concluded in 2000, contains no without-prejudice clause, although its
territorial scope explicitly includes the maritime zones of the two States . 70
67 Protocol for the Conservation and Administration of the Protected Marine and
Coastal Areas of the South-East Pacific, signed at Paipa on 21 September 1989,
Annex 18; Protocol for the Protection of the South-East Pacific against Radioactive
Contamination, signed at Paipa on 21 September 1989, Annex 19; Protocol on the
Programme for Regional Study of the Phenomenon “El Niño” in the South-East
Pacific, signed at Callao on 6 November 1992, Annex 20.
68 Full name: Framework Agreement for the Conservation of the Living Marine
R e s o u r c e s o n t h e H i g h S e a s o f t h e S o u t h - E a s t P a c i f i c , s i g n e d a t S a n t i a g o o n
14 August 2000, Annex 25. Art. 15 of this Agreement reads:
“None of the provisions of this Agreement will prejudge, affect or
modify the positions of the States Parties with respect to the nature, the
limits or the extent of their respective zones under national jurisdiction,
or their positions in relation to international instruments on these
matters.”
Original Spanish text reads:
“Ninguna de las disposiciones de este Acuerdo prejuzgará, afectará o
modificará las posiciones de los Estados Partes con respecto a la
naturaleza, límites o alcances de sus respectivas zonas bajo jurisdicción
nacional, ni sus posiciones acerca de los instrumentos internacionales
que versan sobre estas materias.”
69
Ibid., Art. 15. In March 2005, almost two years after it had already ratified the
Galápagos Agreement, Peru communicated a refusal to “participate” in this
Agreement “because if the outer limit of Peru was not recognised, there would be a
possibility for third countries to consider part of this outer limit as belonging to the
high seas”: Memorandum of 9 March 2005 from the Ministry of Foreign Affairs of
Peru to the Ambassador of Chile to Peru, Annex 82 to the Memorial.
70 See Agreement between the Government of the Republic of Peru and the
Government of the Republic of Chile for the Reciprocal Promotion and Protection of
Investments, signed at Lima on 2 February 2000, Annex 24, Art. 1(3).
22Similarly, the Chile-Peru Free Trade Agreement of 2006 is again stated to apply
in the maritime and aerial spaces of the two States, but the Agreement is not
subject to any reservation or without-prejudice clause .71
1.43. The absence of boundary-delimitation reservations and without-
prejudice clauses in Peru’s treaty practice must indicate that Peru saw no need to
reserve or protect its position. The position was already settled. There was an
agreed boundary in place with Chile.
1.44. In 2000, 14 years after the Bákula Memorandum, Peru’s Foreign
Ministry objected to the depiction of the maritime boundary in an official
Chilean chart which had been published two years earlier, in 1998. In the
relevant diplomatic note, Peru did not suggest that the Santiago Declaration had
not effected a maritime delimitation. Peru’s position was that there was no
applicable “specific treaty” on delimitation. The maritime boundary had also
been depicted in earlier official Chilean charts, published in 1992 and 1994.
72
These charts did not elicit any protest at all .
1.45. In September 2000, when Chile deposited with the United Nations
charts showing its maritime boundaries, in accordance with the relevant
provisions of UNCLOS, Peru did protest Chile’s depiction of a maritime
boundary with Peru. The basis of Peru’s objection was, again, that there was no
“specific maritime delimitation treaty pursuant to the relevant rules of
71
See the Free Trade Agreement between the Government of the Republic of Peru and
the Government of the Republic of Chile, signed at Lima on 22 August 2006
(entered into force on 1 March 2009), Annex 31, Art. 2.2.
72 See the three Chilean charts of 1992, 1994 and 1998, annexed to Peru’s Memorial as
Figure 7.3 (Vol. IV, p. 113), Figure 5.24 (Vol. IV, p. 79) and Figure 5.25 (Vol. IV,
p. 81) respectively.
23international law” . Peru understood that the Santiago Declaration effected a
maritime delimitation between Chile and Peru. Peru’s position was that this
delimitation was not “specific” to maritime zones under UNCLOS.
1.46. As Peru never signed UNCLOS, it needed to find a different basis on
which to seek to unsettle the existing delimitation. Its attempts to do so have
resulted in a number of inconsistent positions since 2004.
1.47. In 2004, the Foreign Minister of Peru stated that the agreements
between Chile and Peru used the parallel of latitude solely for marking the
boundary of their fishing zones, and that these agreements did not delimit the
74
t e r r it o r ia l s e a s , c o n t ig u o u s z o n e s a n d c o n t i n e n t a l s h e l v e s o f t h e t w o S t a t e s
(which is puzzling, given that Peru claims a unitary 200M “maritime
do min io n”). He we nt o n to say t hat t his “de ma rcat io n” o f fis h ing zo ne s wa s
provisional only. By November 2005, Peru’s position had changed yet again.
Peru denied that the Santiago Declaration and the Lima Agreement concerned
any delimitation of any kind . B y t he n P e r u ’s p o s it io n w a s t ha t no t e ve n a
provisional delimitation of fishing zones was in place.
1.48. In its Memorial in 2009, Peru’s position became that the Santiago
Declaration effects a delimitation between Ecuador’s insular zone and Peru’s
73 Statement by the Government of Peru concerning parallel 18° 21' 00", referred to by
the Government of Chile as the maritime boundary between Chile and Peru,
reproduced in United Nations, Law of the Sea Information Circular, No. 13 (2001),
Annex 78 to the Memorial, para. 1.
74
See t h e tr an scr i pt of a n in t er vi ew on 5 Apr il 2 00 4 wi th th e Min i st er of For ei gn
Affairs of Peru by El Comercio, reproduced at the website of the Ministry of Foreign
Affairs of Peru, accessed on 5 September 2007 (since withdrawn), Annex 197.
75
See Note RE (GAB) No. 6-4-A/157 of 11 November 2005 from the Minister of
Foreign Affairs of Peru to the Chilean AmbassA annorxto0P;erfufi,cial
Communiqué RE 14-05 of 1 December 2005 issued by the Ministry of Foreign
Affairs of Peru, Annex 200.
24general zone, but effects no delimitation at all between Chile and Peru . As will
77
be seen in Chapter II , this most recent interpretation of the Santiago
Declaration does not account for the full delimitation that exists between the
general maritime zones of Ecuador and Peru. Peru has recently acknowledged
that there is no outstanding maritime-boundary delimitation issue between
78
Ecuador and Peru . The only reading of Article IV of the Santiago Declaration
which accounts for the full delimitation of the maritime boundary between
Ecuador and Peru is that the Santiago Declaration delimited the general (i.e.,
c o nt ine nt a l) , a s w e l l a s t he in su la r , z o ne s o f t he S t at e s p a rt ie s. T ha t r e a d ing ,
which in Chile’s submission is correct, explains the full delimitation between
Ecuador and Peru, and, equally, the full delimitation between Chile and Peru.
1.49. The series of inconsistent assertions, over a short period of time,
described above, simply manifests Peru’s dissatisfaction with its agreed maritime
boundary with Chile. Neither Peru’s present dissatisfaction, nor the recent
unilateral assertions motivated by it, has any legal effect on the validity of the
agreed maritime boundary or the scope of the Parties’ agreement.
Section 4. The Broad Historical Context
1.50. As already noted, the historical materials relevant to the present case
span more than half a century. As also noted, Peru’s Memorial pays scant
attention to those materials. Nonetheless Peru has provided an account of much
earlier events which on no view can be relevant to this case.
76 See, e.g., Memorial, para. 4.77.
77
See paras 2.88-2.91 and Figure 7 below.
78 See Official Communiqué RE/13-05 of 25 November 2005 by the Ministry of
Foreign Affairs of Peru, Annex 199.
251.51. In Chapter I of its Memorial 79 Peru presents a version of historical
events relating to the War of the Pacific (1879-1883) and the years preceding the
1929 Treaty of Lima . The Treaty of Lima definitively closed all land-boundary
issues between the Parties and, as will be seen in Chapter II, it is relevant in this
case only for one specific issue of fact. That issue is the location of Hito No. 1 of
the land boundary, which was later identified by the Parties as the reference point
for the parallel of latitude constituting their maritime boundary in accordance
with Article IV of the Santiago Declaration.
1.52. Events pre-dating the Treaty of Lima fall outside the compass of the
present case. It is of course for Peru to choose how to put its case. For its part,
Chile believes that no useful purpose can be served by responding to Peru’s
incomplete account of complex events which occurred in the late-19th and early-
20th Centuries. Those events were part of a protracted and often conflictual
process through which nation-states came into being in Latin America . In that
process, Chile, jointly with Argentina, contributed to Peru’s struggle for
independence from Spain: José de San Martín of Argentina took the lead, and
was strongly supported by Chile’s Supreme Director Bernardo O’Higgins. Later,
in 1837-1839, Chile campaigned alongside part of Peru’s army to defeat the
hegemonic aspirations of Andrés de Santa Cruz, the Bolivian leader of the Peru-
Bolivia Confederation. The campaign resulted in Peru’s separation from the
Confederation. In 1865-1866, Chile supported Peru in battles against Spain and,
as a consequence of its solidarity with Peru, Chile’s major port (Valparaíso) was
attacked by the Spanish Armada. Thus, Peru’s account of the War of the Pacific
does not properly describe the complex historical context of the relevant period.
79 See Memorial, paras 1.14-1.31.
80
Treaty of Lima, Annex 45 to the Memorial .
81 C. Aljovín de Losada and E. Cavieres F., “Reflexiones para un Análisis Histórico de
C h i l e- Per ú en el si g l o XI X y l a Gu er r a d el Pa cí fi co” , in E . C a vi er es F. an d C.
Aljovín de Losada (eds), Chile-Perú; Perú-Chile en el siglo XIX, 2005.
26Such matters are, however, among those which are outside the jurisdiction of the
Court . The conflicts and differences about land boundaries to which Peru refers
have long been settled.
1.53. Chile does wish, however, to say a few words about the proper
historical context of the present case, which may be of assistance to the Court.
The first point to note is the significance of the Treaty of Lima of 1929. That
Treaty was hailed by Peru’s President in presenting it to Congress in the
ratification process as one which “gathers the best of any other treaty, the deepest
and most positive benefits present and future to the Republic” . When the 83
Treaty of Lima was presented to the Council of the League of Nations, by Chile,
the representative of Chile noted that “the agreement rendered impossible any
84
future conflict between the two nations” . The Council “noted with the utmost
satisfaction an event which has put an end to an old dispute” and that “cordial
relations were again assured between two important States in Latin America” . 85
As late as 1987, Dr. Ulloa, a distinguished Peruvian diplomat and jurist,
acknowledged that “the Treaty [of Lima] of 1929 was a good settlement for our
86
country” .
1.54. The Treaty of Lima was fully executed. Chile has complied with all of
its provisions, including Article 5 which requires the construction of facilities for
Peru’s use and benefit at the Chilean port of Arica. That Article provides that:
82 See Pact of Bogotá, Annex 46 to the Memorial, Art. IV; also see paras 1.et seq.
below.
83 “El Tratado de Tacna y Arica ante el Congreso Pleno Peruano”, El Diario Ilustrado,
27 June 1929, Annex 245, p. 16.
84
League of Nations, Official Journal, July 1929, Annex 225, p. 1003.
85 Ibid., p. 1003.
86
A. Ulloa, Para la Historia Internacional y Diplomática del Perú: Chile, 1987,
Annex 312, p. 369.
27 “For the use of Peru, the Government of Chile shall, at its
own costs, construct within one thousand five hundred and
seventy-five metres of the Bay of Arica a landing stage for
fair-sized steamships, a building for the Peruvian Customs
office, and a terminal station for the Tacna railway. Within
these zones and establishments the transit traffic of Peru
shall enjoy the freedom that is accorded in free ports under
the most liberal régime.” 87
1.55. The technical studies and other preparatory work for the relevant
facilities were conducted with co-ordination between the Parties in the 1950s and
1960s. Work followed on the system of administration of those facilities,
completed in the 1980s, again in co-operation with Peru. The entire process was
concluded in the 1990s, and an Act of Execution was solemnly signed in 1999 . 88
1.56. As the Foreign Minister of Peru acknowledged on the occasion of the
signing of the Act of Execution , there has been increasingly close co-operation
between Chile and Peru since 1929. That has been the case especially in the law
of the sea, as will be seen in detail in Chapters II and III. The two States
formulated concordant unilateral proclamations of 200M maritime zones in June
and August of 1947. In 1952, together with Ecuador, they established the CPPS.
They are also party to the several international agreements which have been
concluded over time under the auspices of the CPPS. The Santiago Declaration is
the primary foundation of those CPPS agreements.
1.57. Also, Chile and Peru were part of the “CEP” group (Chile, Ecuador,
Peru) which defended and promoted 200M maritime zones in many regional and
87 Treaty of Lima, Annex 45 to the Memorial , Art. 5.
88
See Act of Execution, 13 November 1999, Annex 60 to the Memorial.
89 See Statement by the Minister of Foreign Affairs of Peru on 13 November 1999,
Annex 182.
28universal diplomatic conferences, including the Third United Nations
Conference on the Law of the Sea. Both Chile and Peru (as well as other States
and independent observers) noted that the concepts of the EEZ and a distance-
based continental shelf in UNCLOS owe much to the Santiago Declaration . 90
1.58. Chile has also actively supported Peru in its application to obtain the
status of Consultative Party under the Antarctic Treaty and in securing admission
to the Asia-Pacific Economic Cooperation (APEC) forum.
1.59. As a long-standing principle of its foreign policy, Chile has pursued
peaceful and cooperative international relations. As is well known, all land- and
maritime-boundary questions which have concerned Chile have been resolved
either by agreed recourse to arbitration or directly by international treaties.
Moreover, Chile joined with other countries of the Americas in bringing about a
mediated close of the “Chaco War” between Bolivia and Paraguay in 1938. Chile
has also contributed to the termination of the two armed conflicts in which Peru
has been involved with Ecuador, over land-boundary disputes, in 1941 and 1995.
Together with Argentina, Brazil and the United States of America, Chile is one
of the guarantor States under the 1942 Rio de Janeiro Protocol which terminated
the 1941 conflict . In that capacity, Chile also contributed to the peace process
which followed the 1995 Peru-Ecuador conflict. That process resulted in the
92
1998 Presidential Act of Brasilia . As the Foreign Minister of Peru stated in
90 See paras 2.72-2.73 below.
91
See Protocol of Peace, Friendship and Boundaries between Peru and Ecuador, signed
at Rio de Janeiro on 29 January 1942, Annex 3, Art. V.
92 A c t o f B r a s i l i a , s i g n e d b y t h e P r e s i d e n t s o f P e r u a n d E c u a d o r a t B r a s i l i a o n
26 October 1998, Annex 23.
291999, “Chile has played an important role as Guarantor of the Protocol of Rio de
93
Janeiro, a role that Peru recognizes and appreciates” .
Section 5. Issues of Jurisdiction and Admissibility: Peru’s Pleaded Case
Seeks to Reopen Matters Agreed in Treaties
A. P ERU HASC ONTRIVED AD ISPUTE
1.60. As noted, Peru’s application to the Court in the present case is the
culmination of Peru’s recent attempts to unsettle an agreed maritime boundary.
Chile has difficulty with the notion that the principal judicial organ of the United
Nations should be seised of a dispute that is manifestly contrived. There is no
bona fide dispute here. Peru simply willed a controversy into being by
unilaterally denying that an agreed delimitation has been effected by the
Santiago Declaration and confirmed by the Lima Agreement.
B. T HEPACT OF BOGOTÁ E XPLICITLYEXCLUDES ISSUESC ONCERNING THE
A GREED LAND BOUNDARY FROM R EFERENCE TO THECOURT
1.61. Peru’s pleaded case requires the Court to pronounce on one matter
which the States parties to the Pact of Bogotá did not intend to include within the
jurisdiction of the Court, and which the Pact expressly excludes from reference
to the Court. That matter is the Parties’ agreed land boundary. As Peru pleads its
case, and formulates it in its submissions to the Court, a determination by the
Court of what Peru alleges is the seaward terminus of the Parties’ land boundary
is a necessary component of Peru’s claimed equidistance line.
93 S t a t e m e n t b y t h e M i n i s t e r o f F o r e i g n A f f a i r s o f P e r u o n 1 3 N o v e m b e r 1 9 9 9 ,
Annex 182.
301.62. In its Application Peru asks the Court to begin the delimitation of the
maritime boundary at “a point on the coast called Concordia, the terminal point
of the land boundary e s t a b l i s h e d p u r s u a n t t o [ t h e T r e a t y o f L i m a ] ,
94
coordinates of which are 18° 21' 08" S and 70° 22' 39" W” (emphasis added).
Peru’s reliance on a unilaterally-held and recently-announced view of the land
boundary is continued in its Memorial. There Peru refers to “Point Concordia”,
with coordinates 18° 21' 08" S and 70° 22' 39" W, as the point “where the Peru-
95
Chile land boundary meets the sea” . Peru now asserts that “the point where the
land boundary meets the sea, according to what was agreed between the Parties
in 1929-1930. . .is known as Point Concordia, having the co-ordinates
96
18° 21' 08" S, 70° 22' 39" W WGS84.” Peru asserts that it “is from this point
97
that the delimitation of the maritime zones between the Parties starts” . Yet no
point corresponding to those co-ordinates has ever been agreed between the
Parties as part of their land boundary, and Chile does not recognize Peru’s new
Point Concordia. The agreement that was reached by the Parties in 1929 and
1930 about their land boundary is discussed in Section 2 of Chapter II of this
Counter-Memorial.
1.63. In 2005 Peru enacted a baselines law pronouncing that its
southernmost basepoint was Point 266, having the same coordinates as the point
which, in connection with the land boundary, Peru calls “Point Concordia” . 98
Peru’s 2005 baselines law specifically refers to Point 266 as a “[p]oint in the
99
Peru-Chile international land border” . As is explained at paragraphs 2.20 and
94 Peru’s Application, para. 11.
95
Memorial, para. 2.13. Also see paras 2.8 and 6.21 of the Memorial.
96 Ibid., para. 6.46.
97
Ibid., para. 6.46.
98 Ibid., para. 2.13.
99
Law No. 28621 of 3 November 2005: Maritime Dominion Baselines Law,Annex 23
to the Memorial, p. 115 of Vol. II of Peru’s Annexes.
313.46-3.47 below, Point 266 was unilaterally announced by Peru, and Chile has
protested it. The demarcation of the Parties’ land boundary in 1930 was agreed to
100
be complete and to have started at “the Pacific Ocean” . The most seaward
boundary marker was agreed to be on the “seashore” 10. That boundary marker is
Hito No. 1. In 1930 the Parties agreed that Hito No. 1 had an astronomical
102
latitude of 18° 21' 03" S . It has a latitude of 18° 21' 00" S when referred to the
WGS84 Datum.
1.64. Peru’s assertions about the land boundary are puzzling. As recently as
1996 and 1999, Peru formally stated that no land-boundary issues were
103
outstanding . Peru’s assertion, for the first time in its Application in 2008, that
the terminal point of the land boundary is not, after all, the one that was agreed
and demarcated in 1930, i.e. Hito No. 1, serves one purpose only. The purpose is
to cast doubt on Hito No. 1 as the proper reference-point for the maritime
bo undar y. I n t his wa y Peru ho pes t o frust rat e the Part ie s ’ agree me nt t hat t he
maritime boundary is “the parallel at the point at which the land frontier of the
104
States concerned reaches the sea” . That is transparently a stratagem. It is also
illogical, because seeking to unsettle the Parties’ agreement on a maritime
boundary following a geographic parallel by challenging its reference point, Hito
No. 1, is to put the cart before the horse.
1.65. The fact is that the Parties wished to use and in fact did use Hito No. 1
as the reference point for the relevant parallel of latitude. Whether Point 266 is or
is not closer to the present low-water mark than Hito No. 1 is a purely factual
100 See the Act of Plenipotentiaries, Annex 55 to the Memorial, first paragraph.
101
1930 Final Act, Annex 54 to the Memorial ; see the description of the firsthito.
102 Ibid.
103
See para. 2.18 below.
104 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
32question. It need not be answered in these proceedings, because it can have no
effect on the Parties’ agreement to use Hito No. 1 as the operative reference-
point for the parallel which is the maritime boundary.
1.66. There is, furthermore, a jurisdictional problem with Peru’s proposed
reliance on its Point 266. In order to make a case for Point 266, Peru asserts that
it corresponds to “the terminal point of the land boundary established pursuant to
[the Treaty of Lima]” 105. Hence Peru’s further assertion about a new “Point
Concordia”. However, Peru’s assertions cannot find any jurisdictional basis in
the Pact of Bogotá. Article VI of the Pact provides that the dispute-resolution
procedures under the Pact, including recourse to the Court under Article XXXI–
“may not be applied to matters already settled by
arrangement between the parties, . . .or which are governed
by agreements or treaties in force on the date of the
conclusion of the present Treaty” . 106
107
1.67. The “date of. . .conclusion” envisaged in Article VI is April 1948 .
1.68. Peru was the lead promoter of Article VI. The Peruvian delegate at the
Bogotá conference, the distinguished diplomat Ambassador Belaúnde, insisted
on the present capacious formulation of Article VI on the grounds that “it would
be very dangerous to attenuate the formula. In the first place, it would be very
difficult to attenuate it; secondly, it would open the door to provoke a dispute,
108
which is exactly what we want to avoid” . In later writings, Ambassador
105 Peru’s Application, para. 11.
106 Pact of Bogotá, Annex 46 to the Memorial, Art. VI.
107 See Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, I.C.J. Judgment, 13 December 2007, para. 81.
108
Minutes of the Third Session of the Third Commission of the Ninth Inter-American
Conference, 27 April 1948, Annex 33, p. 135. Dr. Belaúnde’s statement was made in
33Belaúnde said that Article VI “prevented revisionism, establishing the respect for
109
res judicata and the preference for the procedures agreed by the parties” .
1.69. Indeed, Peru was so attached to the principle enshrined in Article VI
of the Pact of Bogotá that upon signature it lodged the following reservation:
“Reservation with regard to Article XXXIII and the
pertinent part of Article XXXIV, inasmuch as it [Peru]
considers that the exceptions of res judicata, resolved by
settlement between the parties or governed by agreements
and treaties in force, determine, in virtue of their objective
and peremptory nature, the exclusion of these cases from
110
the application of every procedure.” (Emphasis added.)
1.70. This reservation sought to exclude the Court’s power to determine the
scope of its own jurisdiction, including the Court’s power to determine for itself
whether an Article VI jurisdictional impediment was extant. That indicates
Peru’s strong attachment to the rule in Article VI that the jurisdictional effect of
the Pact of Bogotá was only forward-reaching: matters “governed by agreements
and treaties in force” at the time of the Pact are not subject to the dispute-
resolution procedures provided for in the Pact. Peru notified the Organization of
111
American States of the withdrawal of its reservation in February 2006 , after
Peru’s Congress had authorized the commencement of these proceedings. The
response to a concern expressed by Ecuador that the formulation supported by Peru
would exclude from the scope of the Pact any dispute regarding subsequent
“performance” of an existing treaty.
109 V. A. Belaúnde, Trayectoria y Destino – Memorias Completas, Vol. II, 1967,
Annex 252, p. 864.
110
Reservations made by Peru to the Pact of Bogotá in 1948, 30UNTS 110, Annex 160,
second reservation.
111 Peru’s withdrawal of its reservation is recorded at the official website of the
Organization of American States, Annex 201.
34authorization came only five months after the Peruvian Foreign Minister had
proposed to his Chilean counterpart, in July 2004, that negotiations start within a
112
fixed period of 60 days , as a preliminary step to bringing maritime-boundary
issues before the Court.
1.71. To conclude, the Parties’ land boundary, including issues regarding
what Peru now calls “Point Concordia”, are “matters which are governed by
agree me nt s o r t reat ies in fo rce o n t he dat e o f t he co nc lus io n o f t he [Pact o f
Bogotá]” within the meaning of Article VI. The land boundary was agreed in
1929 113 and was fully determined and marked in 1930 114, well before 1948. The
Pact of Bogotá does not permit Peru to agitate these long-closed matters before
the Court.
1.72. In any event, to dispose of this case, the Court need not reach any
decision about Peru’s unilateral assertions concerning the point which, in
connection with the land boundary, Peru calls “Point Concordia” and, as a
basepoint for its maritime zone, Peru calls “Point 266”. Again, the Parties have
agreed to use Hito No. 1 as the reference point for the parallel of latitude
constituting the agreed maritime boundary between them in accordance with
Article IV of the Santiago Declaration. That is the end of the matter.
112 See Note (GAB) No. 6/43 of 19 July 2004 from the Minister of Foreign Affairs of
Peru to the Minister of Foreign Affairs of Chile, Annex 79 to the Memorial, eighth
paragraph.
113
See Treaty of Lima, Annex 45 to the Memorial, Art. 3.
114 1930 Final Act, Annex 54 to the Memorial; Act of Plenipotentiaries, Annex 55 to
the Memorial.
35 C. I NADMISSIBILITY OF P ERU’S PLEADED C LAIMS
1.73. Peru requests the Court to effect a delimitation between the
“respective maritime zones” of the Parties11. As the basis for this request Peru
invokes Articles 74 and 83 of UNCLOS, to which Peru is not party, as reflective
of customary international law. Articles 74 and 83 concern the delimitation of
EEZs and continental shelves, respectively. Yet the maritime zone which Peru
actually claims, first and foremost in its Constitution, is a unitary 200M
“maritime dominion”. It covers the sea-bed, water column and also the airspace
above those waters 11. Peru cannot rely on UNCLOS Articles 74 and 83 as the
legal basis for a delimitation of its “maritime dominion”, because this is not a
zone that can be delimited by application of those provisions. Those provisions
do not concern the delimitation of unitary 200M zones of exclusive sovereignty
over waters, subsoil and airspace.
1.74. The difficulty with the admissibility of Peru’s claim takes a more
particular form in respect of the alta mar area now claimed by Peru. There Peru
does not ask the Court to delimit its “maritime dominion” as against Chile’s
maritime zones. Rather, Peru seeks to expand its “maritime dominion”, which is
more than the aggregation of an EEZ and continental shelf, into an area of high
seas immediately seaward of Chile’s EEZ and continental shelf. Peru’s claim
would result in its “maritime dominion” wrapping around Chile’s EEZ and
continental shelf and curtailing access to the high seas from Chile’s maritime
zones and the international airspace above them. This aspect of Peru’s claim is
inadmissible because it asks the Court to enlarge Peru’s “maritime dominion”, in
which it purports also to control overflight, into an area of high seas, to which all
115 Memorial, p. 275, Submission (1).
116 The characteristics of Peru’s “maritime dominion” are described at paragraphs
2.166-2.176 below.
36members of the international community, including Chile and Peru, have equal
access. Peru asks the Court to do so on the basis of Articles 74 and 83 of
UNCLOS, as reflective of customary international law. Yet Articles 74 and 83
do not permit Peru to appropriate an area of the high seas in which it would
e x e r c i s e f o r m s o f j u r i s d i c t i o n t h a t a r e n o t c o m p l i a n t w i t h U N C L O S . T h a t
Convention provides only for the delimitation of zones that are compliant with
its substantive provisions.
1.75. In Chile’s respectful submission, any entitlement of Peru to a
“maritime dominion” vis-à-vis Chile may be founded only in the Santiago
Declaration, in which the States parties agreed that “they each possess exclusive
117
sovereignty and jurisdiction. . .to a minimum distance of 200 nautical miles” .
The Santiago Declaration has also effected a delimitation between the respective
maritime entitlements of Chile and Peru. The articles of UNCLOS invoked by
Peru as reflective of customary international law provide no basis for the
delimitation of Peru’s “maritime dominion”. Peru’s “maritime dominion” can
only be delimited by agreement with other States. Such an agreement was
reached with Chile in the Santiago Declaration and has been confirmed on
numerous occasions since.
1.76. To be clear, should Peru’s “maritime dominion” ever be converted
into a series of UNCLOS-compliant zones, the agreed maritime boundary with
Chile would remain applicable. This follows from fundamental rules of
customary law respecting the stability of agreed boundaries, which rules are also
118
given effect to in UNCLOS itself .
117 Santiago Declaration, Annex 47 to the Memorial, Art. II.
118
See Chapter IV, Section 7, below.
37 Section 6. Structure of this Counter-Memorial
1.77. The next chapter of this Counter-Memorial, Chapter II, is devoted to a
chronological account of the legal and factual matters relevant to the agreement
reached by the Parties in 1952 to delimit their maritime boundary. By way of
necessary context, the circumstances in which the Santiago Declaration was
concluded are explained, notably the definitive settlement of all outstanding
land-boundary issues between the Parties in 1929-1930, and the concordant
unilateral proclamations of maritime zones made by the Parties in 1947. Chapter
II then focuses on the Santiago Declaration and the delimitation agreement
contained within it. As explained in Chapter II, this agreement also bars Peru’s
new claim to the alta mar area. Chapter II also describes the Lima Agreement, in
which the Parties acted upon their existing maritime boundary by creating zones
of tolerance on eit her side of it. This Chapter also includes references to the
considerable body of evidence demonstrating the long-established understanding
in the international community and among “the most highly qualified publicists
of the various nations” of the existence and course of the maritime boundary
between the Parties.
1.78. Chapter III sets forth the considerable body of evidence demonstrating
the Parties’ acknowledgement and implementation of their agreed maritime
boundary in subsequent agreements and in practice over a long period. These
include, for example, the Parties’ 1968 agreement to signal their maritime
boundary by constructing two lighthouses to mark the parallel of latitude of Hito
No. 1, and Peru’s incorporation in its domestic law of the lateral delimitation
agreed with Chile in Article IV of the Santiago Declaration. The concrete
measures taken by the Parties in acknowledgement and implementation of the
agreed maritime boundary detailed in Chapter III show that Peru’s new
interpretation of the Santiago Declaration seeks to depart from a maritime
boundary that is a long-settled juridical fact.
381.79. Chapter IV of this Counter-Memorial follows the steps of the
interpretive process mandated by Articles 31 and 32 of the Vienna Convention
on the Law of Treaties of 1969 (the Vienna Convention) and applies these rules
of interpretation to the legal and factual matters described in the previous
chapters. Chapter IV demonstrates that the Parties have agreed an all-purpose
maritime boundary by treaty, and that there is no legal basis for Peru’s attempt to
unsettle it.
1.80. Chapter V is a concise summary of the principal aspects of Chile’s
reasoning. This Counter-Memorial concludes with Chapter VI, which contains
Chile’s submissions.
39 CHAPTER II
THE PARTIES’ MARITIME BOUNDARY AGREEMENT AND ITS
CONTEXT
Section 1. Introduction
2.1. This Chapter contains a factual account of the legal developments and
instruments which are central to the disposition of this case. It recounts how the
Parties:
(a) fully delimited and demarcated their land boundary in 1929 and 1930;
(b) proclaimed concordant zones of national maritime jurisdiction to a
seaward distance of 200 nautical miles in 1947, both referring to the
zone claimed as falling within a perimeter, and in the case of Peru
explicitly “measured following the line of the geographic parallels”;
(c) concluded a regional multilateral agreement, the Santiago Declaration,
in 1952, providing international-law endorsement of the maritime
zones already claimed unilaterally and effecting an agreed delimitation
of those zones;and
(d) as part of their efforts on a multilateral level, in 1954, confirmed the
delimitation of their maritime boundary in a separate but related
international agreement, which was stated to be an “integral and
supplementary” part of the Santiago Declaration of 1952.
2.2. The Chapter concludes by describing the long-established
understanding of other States, the United Nations and publicists from numerous
and diverse legal traditions that there is an agreed maritime boundary between
Chile and Peru, and that the boundary line follows the parallel of latitude of the
point at which the land boundary of the Parties reaches the sea.
402.3. The land boundary between Chile and Peru was delimited by the
Treaty of Lima of 1929. In 1930 the land boundary was “determined and
marked” by a mixed boundary commission created under the same Treaty. The
importance of the demarcation of the Chile-Peru land boundary for present
purposes lies in the fact that when, in the Santiago Declaration of 1952, Chile
and Peru delimited their maritime zones using the parallel of latitude passing
through “the point at which the land frontier of the States concerned reaches the
119
sea” , they had already agreed that their “demarcated boundary line starts from
the Pacific Ocean at a point on the seasholr íee[a de frontera demarcada parte
del océano Pacífico en un punto en la orilla del mar]” 120and that Hito No. 1 was
121
on the “seashore [orilla del mar]” .
2.4. In 1952 Chile and Peru were defending the concordant unilateral
claims that they had made in 1947, in the face of opposition from several
maritime powers. Ecuador joined with Chile and Peru to create a regional
instrument. Both of the 1947 national proclamations addressed the issue of the
perimeter of the area that was being claimed. Peru’s zone, under its 1947
Supreme Decree, was “measured following the line of the geographic parallels”.
Peru’s zone had been extant for five years, without opposition from Chile or
Ecuador, before the Santiago Declaration was concluded in 1952. In the Santiago
Declaration the three States parties adopted the same straightforward method of
delimitation. The Santiago Declaration provided for general maritime zones
extending to a minimum seaward distance of 200 nautical miles. It also
authorized unilateral seaward extensions of those zones in the future. The
119 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
120
1930 Final Act, Annex 54 to the Memorial , second paragraph.
121 Ibid., first entry in the table ofhitos; repeated in Act of Plenipotentiaries,Annex 55
to the Memorial, first entry in the table ofhitos.
41delimitation method of geographic parallels of latitude had the additional
advantage of accommodating that possibility of further extension.
2.5. The agreement of the Parties concerning the lateral delimitation of
their respective maritime zones is contained in Article IV of the Santiago
Declaration, which reads as follows:
“In the case of island territories, the zone of 200 nautical
miles shall apply to the entire coast of the island or group
of islands. If an island or group of islands belonging to one
of the countries making the declaration is situated less than
200 nautical miles from the general maritime zone
belonging to another of those countries, the maritime zone
of the island or group of islands shall be limited by the
parallel at the point at which the land frontier of the States
concerned reaches the sea.” 122
2.6. Both the ordinary meaning of the text, considered in its context, and
the travaux préparatoires o f t h e S a n t i a g o D e c l a r a t i o n r e f l e c t t h e c o m m o n
understanding of the three States that the parallel of latitude of the point at which
the land boundary reaches the sea constitutes the lateral maritime boundary for
all maritime zones between Chile and Peru and between Ecuador and Peru. The
focus on islands in the text of Article IV, as a specific application of the general
rule which had been agreed, is explained by Ecuador’s participation in the
Declaration and the potential for overlap between the maritime zones generated
122 Santiago Declaration, Annex 47 to the Memorial, Art. IV. The original Spanish text
reads as follows:
“En el caso de territorio insular, la zona de 200 millas marinas se aplicará
en todo el contorno de la isla o grupo de islas. Si una isla o grupo de islas
pertenecientes a uno de los países declarantes estuviere a menos de 200
millas marinas de la zona marítima general que corresponde a otro de
ellos, la zona marítima de esta isla o grupo de islas quedará limitada por
el paralelo del punto en que llega al mar la frontera terrestre de los
estados respectivos.”
42by Ecuador’s islands and Peru’s continental territory — particularly if either
Ecuador or Peru were to extend its maritime claim beyond 200 nautical miles, as
States parties were free to do under the Santiago Declaration.
2.7. When, in 1954, a further suite of multilateral maritime agreements was
concluded at the Second Conference on Exploitation and Conservation of the
Maritime Resources of South Pacific, Chile, Ecuador and Peru agreed that the
lateral maritime boundaries of their general maritime zones had been settled in
the Santiago Declaration. As the minutes of the 1954 diplomatic conference
record, although express confirmation of those boundaries had been suggested,
the Parties saw no reason to deal again with the subject. This agreed position was
reflected in the text of the Lima Agreement of 1954. The Lima Agreement
created a zone of tolerance on either side of each maritime boundary established
by the Santiago Declaration, for the benefit of local fishermen with limited
navigational aids. This Agreement expressly acknowledged that a parallel of
latitude “constitutes” — in the present tense — the maritime boundary between
123
the adjacent States . This acknowledgement is contained in an international
agreement that was deemed to be “an integral and supplementary part of” the
Santiago Declaration. The full title of the Lima Agreement, “Agreement Relating
to a Special Maritime Frontier Zone [Convenio sobre Zona Especial Fronteriza
Marítima]”, makes it plain that the “special zone” was attendant upon the
“maritime frontier”.
2.8. In confirming the existence of lateral maritime boundaries in this way,
it is clear that the three States were acting in a manner which they believed to be
concordant with the Santiago Declaration; indeed, they were acting upon, and
giving effect to, the maritime delimitation set forth in the Santiago Declaration.
123 Lima Agreement, Annex 50 to the Memorial , Art. 1.
43 Section 2. Delimitation and Demarcation of the Land Boundary
(1929-1930)
2.9. In 1929, Peru and Chile agreed on the land boundary between the
areas of Tacna and Arica, by entering into the Treaty of Lima. This was a
definitive settlement of all outstanding land-boundary issues. The Treaty of Lima
remains in full force and effect. Article 2 of the Treaty of Lima sets out the entire
land boundary between Chile and Peru. In so far as relevant to this case, that
article describes the boundary in the following terms:
“The territory of Tacna and Arica shall be divided into two
p o r t i o n s o f w h i c h T a c n a , s h a l l b e a l l o t t e d t o P e r u a n d
Arica to Chile. The dividing line between the two portions,
and consequently the frontier between the territories of
Chile and Peru, shall start from a point on the coast to be
n a m e d ‘ C o n c o r d i a ’ , t e n k i l o m e t r e s t o t h e n o r t h o f t h e
124
bridge over the river Lluta.”
2.10. Chile and Peru also agreed to establish a mixed commission (the 1929-
1930 Mixed Commission), comprising delegates of each of the two States. The
1929-1930 Mixed Commission was charged with “determin[ing] and mark[ing]”
125
the boundary line “by means of posts in the territory itself” . Those tasks were
necessary because Article 2 of the Treaty described the course of the land
bo undar y in ge nera l t erms w hic h requ ired spec ific imp le me nt at io n as we ll a s
physical marking on the ground. Any disagreement between the Chilean and
Peruvian members of the 1929-1930 Mixed Commission was to be finally settled
by the casting vote of a third member, to be appointed by the President of the
126
United States of America . In the event, no recourse to a third-member casting
124
Treaty of Lima, Annex 45 to the Memorial , Art. 2.
125 Ibid., Art. 3.
126 Ibid.
44vote was required: the land boundary was fully “determine[d] and mark[ed]” by
the 1929-1930 Mixed Commission in bilateral formation.
2.11. The 1929-1930 Mixed Commission had to determine, among other
issues relating to the determination and demarcation of the boundary, the precise
course of the first segment of the boundary, which under the Treaty of Lima
starts from a “point on the coast to be named ‘Concordia’, ten kilometres to the
north of the bridge over the river Lluta” 127. The matter was referred to the two
Governments and was decided by agreement between them in April 1930. The
Parties’ agreement was recorded in identically-worded formal instructions sent
by each Government to its delegate 128. The instructions set forth directions as to
the course of the first segment of the boundary, stated that a boundary marker
(hito) would be the “Starting Point, on the coast [en la costa], of the borderline”,
and gave guidance as to the placement of that hito on the coast 129.
2.12. The 1929-1930 Mixed Commission, in bilateral formation, duly
completed the functions that were given to it pursuant to Article 3 of the Treaty
of Lima. It determined and marked the entire course of the land boundary.
Specifically, in its Final Act of 21 July 1930 (the 1930 Final Act) the Mixed
Commission recorded the coordinates and specifications of the 80 boundary
markers (hitos) that were eventually placed on the ground. The 1930 Final Act
127
Treaty of Lima, Annex 45 to the Memorial , Art. 2.
128 Two identical sets of instructions, approved by the Foreign Ministries of Chile and
Peru, were separately sent to the Chilean Delegate and the Peruvian Delegate by
their respective Governments on 28 April and 24 April 1930 respectively, Annex 87
to the Memorial.
129
Ibid. The instructions required the relevant boundarymarker to be placed “as close to
the sea as allows preventing it from being destroyed by ocean waters”. It was to be
called “Concordia Boundary Marker [Hito Concordia] ” b u t , a s w e w i l l s e e a t
para 2.15, it was actually named simply Hito No. 1, and the nameHito Concordia
was given to a more prominently-locatedhito which was inscribed with dedications
to the concord (concordia) between the two nations.
45also records that the 1929-1930 Mixed Commission concluded its work “in
accordance with the instructions received by both delegates” 13. The 1930 Final
Act thus completed the process required under Article 3 of the Treaty of Lima.
(The 1930 Final Act also received the Parties’ approbation in a joint Act
concluded in accordance with Article 4 of the Treaty of Lima, as noted at
paragraph 2.15.)
2.13. The land boundary as definitively demarcated is described in the 1930
Final Act as follows:
“The demarcated boundary line starts from the Pacific
Ocean at a point on the seashoru en[punto en la orilla del
mar] ten kilometres northwest from the first bridge over
the River Lluta of the Arica-La Paz railway, and ends in
the Andean mountain range at Boundary Marker V of the
former dividing line between Chile and Bolivia.” 131
2.14. The 1929-1930 Mixed Commission also confirmed that boundary
markers were “positioned or established” “[i]n order to definitely fix the said
132
frontier line between Chile and Peru on the land” . T h e d e s c r ip t io n o f t h e
boundary markers is given in a list in the 1930 Final Act; Hito No. 1 is stated to
be placed on the “seashore [orilla del mar]”, with the astronomical coordinates
18° 21' 03" S and 70° 22' 56" W 133.
130 1930 Final Act, Annex 54 to the Memorial , first paragraph.
131 Ibid., second paragraph.
132
Ibid., third paragraph.
133 Ibid.; see the description of the first hito. The astronomical latitude of Hito No. 1,
18° 21' 03" S, as determined by the 1929-1930 Mixed Commission, is equal to
18° 21' 00" S when referred to WGS84 Datum, 18° 20' 47" S when referred to the
Provisional South American Datum 1956 (PSAD56), and 18° 20' 58" S when
r eferr ed to th e South Amer ican DaStA um691).9Lon(itude is not directly
relevant for present purposes.)
462.15. Article 4 of the Treaty of Lima provided that the position and
distinguishing characteristics of the boundary markers were to be set out in a
“deed of transfer [Acta de Entrega]” signed by Plenipotentiaries of the
Contracting Parties13. In fulfilment of this obligation, the Ambassador of Chile
to Peru and the Minister of Foreign Affairs of Peru signed and sealed A acta on
135
5 August 1930 (the Act of Plenipotentiaries) . In t h is a g r e e me nt C h i le a nd
Peru recorded the “definitive location and characteristics” [ubicación y
características definitivas] of each boundary marker (by reproducing the list of
80 hitos in the 1930 Final Act)36and acknowledged that those boundary markers
demarcate the land boundary between them, “beginning in order from the Pacific
137
Ocean” . The Parties also agreed to give the name “Concordia” to the ninth hito
from the coast, rather than to the first hito, as was earlier intende. This was
for reasons of symbolism. The ninth hito is a larger, more conspicuous boundary
marker than Hito No. 1, and is inscribed with the word “Concordia”. This “Hito
134 Treaty of Lima, Annex 45 to the Memorial , Art. 4, second sentence.
135
Annex 55 to the Memorial.
136 The location and characteristics of the first and last boundary markers, as well as the
ninth one from the coast, are described as follows:
Number Class Latitude and Place of location
Longitude
1 Concrete 18-21-03 Seashore [Orilla del mar]
70-22-56
… … … …
9 Concordia 18-18-50.5 Pampa de Escritos 84m to the west of
70-19-56.6 the Arica-Tacna railway
… … … …
80 Iron 17-29-57.0 Final common point of the frontiers
69-28-28.8 between Peru, Chile and Bolivia. Hito
No. 5 of the old dividing line between
[Chile and Bolivia]
137 Act of Plenipotentiaries,Annex 55 to the Memorial, introductory paragraph.
138
See footnote 129 above.
47Concordia”, symbolizing an era of concord between the two States, was placed at
a p r o min e nt p la c e ne xt t o t he r a i lw a y l in e c o n ne c t ing P e r u w it h t he p o rt o f
139
Arica .
2.16. W i t h t h e T r e a t y o f L i m a , t h e 1 9 3 0 F i n a l A c t a n d t h e
Plenipotentiaries, all outstanding land-boundary matters were definitively closed.
The land boundary has been fully determined and demarcated, and Hito No. 1 is
the seaward terminus of the land boundary as determined by agreement of the
Parties.
2.17. Consistent with the foregoing, Peru has in fact treated Hito No. 1 as
the point under Article 2 of the Treaty of Lima, i.e. the starting point of the land
boundary. For example, both the 1982 and 1988 editions of Peru’s official
Sailing Directions (Derrotero de la Costa) contain a section entitled “Hito
Concordia (18° 20.8' S, 70° 22.5' W)” 140 and describe this point as the southern
frontier of Peru . The Atlas of Peru issued in 1989 by Peru’s Ministry of
142
Defence also marks the boundary marker closest to the sea as “Hito
Concordia”. Moreover, Peru does not claim sovereignty over territory to the
south of 18° 21' 03" S 143. As recently as 2001, Peru enacted a statute setting out
139
Therefore, Peru’s notation “Point Concordia” to refer to a point on the coast in
Figures 6.4 and 6.5 to the Memorial (p. 217 and p. 219 respectively) is without
foundation.
140 See footnote 129 above: the two identical sets of instructions, approved by the
Foreign Ministries of Chile and Peru, Annex 87 to the Memorial, intended to use
the term “Hito Concordia” to refer to the “Starting Point, on the coast [ en la costa],
of the borderline”. This term has been subsequently used by Peru when referring to
Hito No. 1.
141
Directorate of Hydrography and Navigation of the Navy of Peru,Derrotero de la
Costa del Perú, Vol. II, 1982, Annex 172, p. B-103; 2nd edition of the same work,
Vol. II, 1988, Annex 175, p. 103.
142 Annexed to the Memorial as Figure 5.6 (Vol. IV, p. 43).
143
See, e.g., Geographic Advisor’s Office of the National Institute of Planning in the
Office of the President, Atlas Histórico Geográfico y de Paisajes Peruanos, 1963-
48the boundaries of its southernmost province of Tacna and its districts. Hito No. 1
was identified as the southernmost tip of the perimeter of this province, being
located by the “Pacific Ocean” 14. Publicists share the same view: in 2001, two
Peruvian professors of public international law published a treatise in which they
acknowledged that the land boundary between Chile and Peru “ends at the
seashore of the Pacific Ocean on boundary marker Concordia (18° 21' 03" S),
which is the southernmost point of Peru” 145.
2.18. This is the context in which Peru stated, in 1996, that “[t]he binding
legal regime is the one enshrined by the 1929 Treaty [of Lima] and its
Supplementary Protocol” and that “[t]he legal nature of what is pending of
146
execution [under the Treaty of Lima] does not involve boundary questions” .
When the pending matters were resolved and the Act of Execution was
concluded in 1999 (as already described at paragraphs 1.41 and 1.55 above), the
Foreign Minister of Peru stated that this agreement ended the “last consequences
of the conflict between Peru and Chile” 147.
1970, Annex 169, p. 22 (“In the south, the southernmost point of Peru is found in the
department of Tacna, on the frontier with Chile, to the south of the point called
‘Pascana del Hueso’, on th e sh or e of th e Pacific Ocean an d it has th e followin g
coordinates: 18° 21' 03" Latitude South, 70° 22' 56" Longitude West.”); Ministry of
Energy and Mines of Peru, Anuario Estadístico de Hidrocarburos – Hydrocarbons
Statistical Yearbook 2000, 2000, Annex 190, p. 13.
144
Law No. 27415 of 25 January 2001 on Territorial Demarcation of the Province of
Tacna, Annex 191, Art. 3.
145 F. Novak and L. García-Corrochano,Derecho Internacional Público, Tome II, Vol. I,
2001, Annex 296, p. 185.
146 Aide-mémoire enclosed with Note No. 6-4/02 of 3 January 1996 from the Ministry
of Foreign Affairs of Peru to the Chilean Embassyin Peru, Annex 87, para. 2.
147
S t a t e m e n t b y t h e M i n i s t e r o f F o r e i g n A f f a i r s o f P e r u o n 1 3 N o v e m b e r 1 9 9 9 ,
Annex 182.
492.19. It is therefore clear that no issue relating to the land boundary has
arisen since 1930; and that no issue can indeed reasonably arise given the
comprehensive land-boundary determination and demarcation that was then
effected.
2.20. In 2005, Peru passed a baselines law. The southernmost basepoint in
Peru’s new baseline system is Point 266, a point some 250 metres to the south-
west of Hito No. 1, having coordinates 18° 21' 08" S and 70° 22' 39" W when
referred to the WGS84 Datum 148. To the extent that Point 266 unilaterally seeks
to depart from the Parties’ long-standing agreement that Hito No. 1 is the first
demarcated point on the land boundary, Point 266 is simply incapable of
producing any effect vis-à-vis Chile (i.e., it is not opposable to Chile). Chile has
149
lodged protests with Peru to that effect . To the extent that Point 266 seeks to
put into question the existence and course of an agreed maritime boundary
following the parallel of latitude corresponding to Hito No. 1, it is not opposable
to Chile on that additional basis as well, for reasons set out in paragraphs 3.46-
3.47 below.
Section 3. Concordant Unilateral Proclamations of 200M Zones (1947)
A. B ACKGROUND TO THE 1947P ROCLAMATIONS
2.21. The Treaty of Lima was solely concerned with the land boundary
between the Parties. It did not delimit their territorial seas or any other maritime
zones. In 1947 Chile and Peru issued official proclamations, each State claiming
148 See Law No. 28621 of 3 November 2005: Maritime Dominion Baselines Law,
Annex 23 to the Memorial. In this Law th is point is called Poin t 266 or Poin t
Concordia.
149 See, e.g., Note No. 17359/05 of 3 November 2005 from the Minister of Foreign
Affairs of Chile to the Peruvian Ambassador to Chile,Annex 107, fourth and fifth
paragraphs.
50a maritime zone of 200 nautical miles from its coast. The Parties claimed
“national sovereignty”, in Chile’s case, and “national sovereignty and
jurisdiction”, in Peru’s case, over the continental shelf and the waters adjacent to
their respective coastlines, as well as control over all natural resources contained
therein. The proclamations were made less than six weeks apart, with Chile
taking the lead. They were formulated in substantially similar terms.
2.22. As will be explained in this Subsection, the two proclamations were
issued largely in response to industrial-scale fishing and whaling by foreign
fleets. The Parties considered such exploitation of the natural resources off their
coasts to be unfair: the coastal States received no benefit, and neither State’s own
industries were at the time sufficiently developed to permit fishing and whaling
on a similar scale.
2.23. Following the end of the Second World War, large-scale distant-seas
fishing resumed. Large-scale fishing by foreign fleets was regarded in both Chile
and Peru as a threat to the national interest, barring the development of national
fishing and fisheries industries. Foreign fleets were engaged in industrial-scale
fishing of tuna and Peruvian anchoveta (anchovy) and whale-hunting. In
summary:
— In August 1945, the United States Government decided to rebuild the
nation’s fishing fleet. Part of this programme was to bring the tuna-
clipper fleet up to pre-war levels. The newly built tuna clippers were to
be able to operate on the high seas and remain at sea for as long as 90
days. The capacity of their holds was said to be “from 125 to 225 tons,
51 or more, and they were to carry sophisticated refrigeration equipment
for freezing the catch”5.
— The demand for anchovy had two main causes. First, the decline of
sardine stocks off the California coast meant that an alternative source
was necessary for the production of fishmeal and fish-oil. Second, the
foreign fleets engaged in tuna fishing in the south-east Pacific used
anchovy as bait.
— Foreign whaling fleets returned to the south-east Pacific after 1945.
There was already concern at the time about potential over-hunting of
whales, as is apparent from the establishment of the International
Whaling Commission by the 1946 International Convention for the
Regulation of Whaling.
2.24. The increase of fishing and whaling by foreign fleets in the south-east
Pacific Ocean was a matter of grave concern to Chile and Peru, as it jeopardized
their emerging fishing industries. President González Videla, who issued the
1947 Chilean Declaration, noted in 1975 that Chile was concerned because
waters off its coast were “plagued with foreign fleets which threatened the
extinction of some species.”151Similarly, Dr. García Sayán, the Foreign Minister
of Peru who signed the 1947 Peruvian Supreme Decree together with the then
President Bustamante y Rivero, subsequently stated that his country had needed
150 Press Release (for advance release) of 7 August 1945 issued by the United States
Department of the Interior, Office of the Coordinator Annex 206, p. 1.
151 G. González Videla, Memorias, Vol. 2, 1975, Annex 268, p. 836.
52to find a way to exclude foreign fishing vessels from the waters off the Peruvian
coast 152.
2.25. As part of the justification for Chile’s Declaration on 23 June 1947, its
recitals referred to the 1945 proclamations made by the United States of America
153
with respect to coastal fisheries and the continental shelf , t o M e x i c o ’ s
proclamation on the continental shelf later in 1945 154 and to the proclamation by
Argentina in 1946 concerning the “epicontinental sea and the continental
155
shelf” . The United Nations Secretariat observed in 1950 that those earlier
proclamations, in particular the United States proclamations by President
Truman, claimed lesser rights than the assertions of sovereignty made by Chile
and Peru in their 1947 proclamations 156. The assertion of sovereignty by Chile
and Peru went well beyond the management of fisheries.
2.26. When Peru came to issue its Supreme Decree on 1 August 1947, less
than six weeks after Chile’s Declaration, Peru similarly referred to those earlier
152 See E. García Sayán, Notas sobre la Soberanía Marítima del Perú – Defensa de las
200 millas de mar peruano ante las recientes transgresiones, 1955, Annex 266, p. 3.
153
Proclamation No. 2667 of 28 September 1945, Policy of the United States with
respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf,
Annex 88 to the Memorial; Proclamation No. 2668 of 28 September 1945, Policy
of the United States with respect to Coastal Fisheries in Certain Areas of the High
Seas, Annex 88 to the Memorial .
154
Declaration of the President of Mexico on the Continental Shelf of 29 October 1945,
Annex 89 to the Memorial.
155 Decree No. 14,708 of 9 October 1946, Declaration of the President of Argentina
Proclaiming Sovereignty over the Epicontinental Sea and the Continental Shelf,
Annex 90 to the Memorial.
156 See United Nations, Memorandum on the Regime of the High Seas submitted by the
Secretariat to the ILC (2nd session of the ILC (1950)), document A/CN.4/32,
Annex 227, p. 87, paras 144-145. Also see R. Young, “Recent Developments with
Respect to the Continental Shelf”,American Journal of International Law, Vol. 42,
1948, Annex 316, pp. 850, 853-854.
53proclamations in the recitals. Peru also recorded in its Supreme Decree that it had
taken into account the 1947 Chilean Declaration 157.
B. T HE T ERMS OF THE 1947P ROCLAMATIONS
2.27. Chile’s 200M claim was set out in an Official Declaration by President
González Videla on 23 June 1947 158. T h e o p e r a t i v e p a r t o f C h i l e ’ s O f f i c i a l
Declaration reads in full as follows:
“1. The Government of Chile confirms and proclaims its
national sovereignty over all the continental shelf adjacent
to the continental and island coasts of its national territory,
whatever may be their depth below the sea, and claims by
consequence all the natural riches which exist on the said
shelf, both in and under it, known or to be discovered.
2. The Government of Chile confirms and proclaims its
national sovereignty over the seas adjacent to its coasts
whatever may be their depths, and within those limits
necessary in order to reserve, protect, preserve and exploit
the natural resources of whatever nature found on, within
and below the said seas, placing within the control of the
government especially all fisheries and whaling activities
with the object of preventing the exploitation of natural
riches o f this kind to the detriment of the inhabitants o f
Chile and to prevent the spoiling or destruction of the said
riches to the detriment of the country and the American
continent.
3. The demarcation of the protection zones for whaling and
deep sea fishery in the continental and island seas under
the control of the Government of Chile will be made in
v i r t u e o f t h i s d e c l a r a t io n o f s o v e r e i g n t y a t a n y mo m e n t
157 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, fifth recital.
158
1947 Chilean Declaration, Annex 27 to the Memorial .
54 which the Government may consider convenient, such
demarcation to be ratified, amplified, or modified in any
way to conform with the knowledge, discoveries, studies
and interests of Chile as required in the future. Protection
and control is hereby declared immediately over all the
seas contained within the perimeter formed by the coast
and the mathematical parallel projected into the sea at a
distance of 200 nautical miles from the coasts of Chilean
territory. This demarcation will be calculated to include
the Chilean islands, indicating a maritime zone contiguous
to the coasts of the said islands, projected parallel to these
islands at a distance of 200 nautical miles around their
coasts.
4. The present declaration of sovereignty does not
disregard the similar legitimate rights of other States on a
ba s is o f rec ipro c it y, no r do es it a ffect t he r ig ht s o f fre e
navigation on the high seas.”
(Emphasis added.)
2.28. Chile’s declaration of a maritime zone of 200 nautical miles was
quickly followed by Peru’s similar claim. This was formulated in a Supreme
Decree, No. 781 of 1947 159, which was jointly signed by President Bustamante y
Rivero and Foreign Minister García Sayán. Its operative clauses read as follows:
“1. To declare that national sovereignty and jurisdiction
are extended to the submerged continental or insular shelf
adjacent to the continental or insular shores of national
territory, whatever the depth and extension of this shelf
may be.
2. National sovereignty and jurisdiction are exercised as
well over the sea adjoining the shores of national territory
whatever its depth and in the extension necessary to
159 1947 Peruvian Supreme Decree, Annex 6 to the Memorial.
55 reserve, protect, maintain and utilize natural resources and
wealth of any kind which may be found in or below those
waters.
3. As a result of previous declarations the State reserves
the right to establish the limits of the zones of control and
protection of national resources in continental or insular
seas which are controlled by the Peruvian Government and
to modify such limits in accordance with supervening
circumstances which may originate as a result of further
d i s c o v e r i e s , s t u d i e s o r n a t i o n a l i n t e r e s t s
become apparent in the future and at the same time
declares that it will exercise the same control and
protection on the seas adjacent to the Peruvian coast over
the area covered between the coast and an imaginary
parallel line to it at a distance of two hundred (200)
nautical miles measured following the line of the
geographical parallels. As regards islands pertaining to
the Nation, this demarcation will be traced to include the
sea area adjacent to the shores of these islands to a distance
of two hundred (200) nautical miles, measured from all
points onthe contour of these islands.
4. The present declaration does not affect the right to free
navigation of ships of all nations according to international
law.”
(Emphasis added.)
2.29. The Chilean and Peruvian proclamations are substantially similar in
form, content and effect. Both Chile and Peru proclaimed national sovereignty
over, first, the continental shelf adjacent to their coasts, irrespective of depth,
and, second, over the sea adjacent to their respective coasts. They proclaimed
sovereignty over the water-column to the extent necessary to preserve and
exploit all natural resources in or beneath the waters adjacent to their coasts.
56Furthermore, both Chile and Peru claimed that they were entitled to extend the
outer limit of their respective maritime zones in the light of, inter alia, scientific
160
studies .
2.30. Each State’s 200M zone was immediately established by its respective
proclamation, without the need for any further formality or enacting legislation.
The Chilean Declaration states that “[p]rotection and control is hereby declared
immediately over all the seas contained within the perimeter formed by the coast
and the mathematical parallel projected into the sea at a distance of 200 nautical
161
miles from the coasts of Chilean territory” . The Peruvian Supreme Decree
provides that Peru “will exercise. . .control and protection on the seas adjacent to
the Peruvian coast over the area covered between the coast and an imaginary
162
parallel line to it at a distance of two hundred (200) nautical miles” .
2.31. Both texts addressed the issue of the perimeter of the maritime zone in
which sovereignty and jurisdiction were claimed. The 1947 Chilean Declaration
provided that Chile’s maritime zone was–
“within the perimeter formed by the coast and the
mathematical parallel projected into the sea at a distance of
200 nautical miles from the coasts of Chilean territory.” 163
A “mathematical parallel” is a technical concept which in effect leads to a form
of tracé parallèle of the coastline (cf. paragraph 2.33, below).
160
1947 Chilean Declaration, Annex 27 to the Memorial, Art. 3; 1947 Peruvian
Supreme Decree, Annex 6 to the Memorial, Art. 3.
161 1947 Chilean Declaration, Annex 27 to the Memorial , Art. 3.
162
1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
163 1947 Chilean Declaration, Annex 27 to the Memorial , Art. 3.
572.32. The Peruvian Supreme Decree of 1947 states in its recitals that “it is
the obligation of the State to determine in an irrefutable manner the maritime
dominion of the Nation, within which should be exerted the protection,
164
conservation and vigilance of the aforesaid resources” . Peru’s decree did so by
establishing the perimeter of Peru’s maritime claim. Peru declared that it
exercised control and protection–
“on the seas adjacent to the Peruvian coast over the area
covered between the coast and an imaginary parallel line to
i t a t a d i s t a n c e o f t w o h u n d r e d ( 2 0 0 ) n a u t i c a l m i l e s
measured following the line of the geographical
165
parallels.” (Emphasis added.)
2.33. The “imaginary parallel line” forming the seaward limit of Peru’s
maritime claim was to be formed by taking each point of the Peruvian coastline
and moving it due west, along the corresponding parallel of latitude, for 200
nautical miles to a point in the Pacific Ocean. The aggregate of those points in
the Pacific Ocean formed that “imaginary parallel line”. To use the terms
employed by the Court, Peru’s outward limit was tracéfpraraloèle, a
method “which consists of drawing the outer limit of the belt of territorial waters
by following the coast in all its sinuosities”16. Peru confirms that this is how it
measured the claim which it formulated in 1947:
“The intention [of the Peruvian Supreme Decree] was to
depict a situation in which at each point on the coast a line
200-mile[s] long would be drawn seaward along the
geographical line of latitude, so that there would be a
‘mirror’ coastline parallel to the real coastline – the real
164
1947 Peruvian Supreme Decree, Annex 6 to the Memorial, final recital.
165 Ibid., Art. 3.
166
Fisheries Case (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 128.
58 coastline would in effect be transposed 200 miles offshore
and form the outer edge of the 200-mile zone.” 167
2.34. The method employed by Peru to measure the outward limit of its
mar it ime zo ne a lso det er mined t he no rt hern a nd so ut hern lat era l limit s o f it s
zone. The northernmost point of Peru’s coastline was the point where its land
boundary with Ecuador reached the sea. That point had already been established
by agreement 168. The line of geographic parallel passing through that point
formed the northern limit of Peru’s maritime zone. The southernmost point of
Peru’s coastline was the point where its land boundary with Chile reached the
sea. That point had also been established by agreement between Chile and
Peru 169. The line of geographic parallel passing through that point formed the
southern limit of Peru’s maritime zone. Figure 3 illustrates this schematically.
2.35. Figure 3 is consistent with the way in which Peruvian Foreign
Minister García Sayán understood the perimeter of Peru’s claim. His
contemporaneous depiction of Peru’s maritime zone (Figure 4) shows the zone
bounded in the north and south by the two parallels of latitude passing through
the seaward termini of Peru’s land boundaries with Chile and Ecuador 170.
2.36. This understanding was shared by Dr. Vergaray Lara, President of the
National Association of Geographers of Peru between 1962 and 1964. In 1962 he
published a study entitled El Mar del Perú es una Región Geográfica, which was
stated to have been presented at institutions and seminars on geography and law
167 Memorial, para. 4.58.
168 S e e P r o t o c o l o f P e a c e , F r i e n d sh i p a n d B o u n d a r i e s , s i g n e d a t R i o d e J a n e i r o o n
29 January 1942, Annex 3, Art. VIII.
169 See Chapter II, Section 2, above.
170
See E. García Sayán, Notas sobre la Soberanía Marítima del Perú - Defensa de las
200 millas de mar peruano ante las recientes transgresiones, 1955, Annex 266.
59 171
between 1949 and 1962 . Chapter V of this study contained a diagram called
Superficie de Mar Peruano (Figure 5) 172, showing the Peruvian maritime zone
bounded by two parallels of latitude (3° 23' 33" S and 18° 21' 03" S).
2.37. Dr. Vergaray Lara’s book contains a section on the general
characteristics of the Peruvian sea, where it is said that the southern limit of
Peru’s sea (the parallel of latitude 18° 21' 03" S) is derived from the Peruvian
Supreme Decree of 1947 173. The 18° 21' 03" S parallel was stated to be that of
174
the land-boundary hito at orilla del Mar , i.e., Hito No. 1.
175
2.38. As noted above , both the Chilean and Peruvian proclamations
allowed for seaward extension beyond 200M. Any such further seaward
extension of Peru’s maritime zone was also to be measured using parallels of
latitude. President Bustamante y Rivero explained in a 1972 book that:
“The text in Article 3 [of Peru’s 1947 Supreme Decree]
mentions the prerogative reserved to the State to establish
the ‘necessary extension’ at different times or on the basis
171 See E. Vergaray Lara, “El Mar del Perú es una Región Geográfica”, in Asociación
Nacional de Geógrafos Peruanos, Anales, Vol. III, 1962, Annex 314. The
introduction to this study states that it was submitted to a geography workshop
organized by the Geographic Society of Lima in 1949, the Institute of Geography of
the Universidad Nacional Mayor de San Marcos, the Seminar on the Law of the Sea
organized by the Law Faculty of the same University, and to the First National
Congress of Geographyin 1962.
172 Ibid., p. 32.
173
Ibid., pp. 29-30.
174 Ibid., p. 29 (“[Peru’s marine region is] located between the following coordinates:
L. S. 3° 23' 33" at the level of the Point of Boca de Capones. L. S. 18° 21' 03" at the
level of the Pascana del Hueso boundary marker, seashore [ Orilla del Mar]. . .”).
“Pascana del Hueso” is a term used in Peruvian official documents to refer to Hito
No. 1; see, e.g., footnote 143 above and National Institute of Statistics and
Information of Peru, Environmental Statistics 2000 (Estadísticas del Medio
Ambiente 2000), Annex 186.
175
See para. 2.29.
60 of future supervening circumstances; and therefore it
demarcates and fixes [that necessary extension] within a
zone which, starting from the coast, ends at an imaginary
line parallel to it and traced over the sea at a distance of
200 nautical miles following the line of the geographic
176
parallels.”
2.39. In short, Peru’s maritime zone was conceived in 1947 as a corridor
bounded by two parallels of latitude, extending seaward due west for a minimum
distance of 200 nautical miles.
2.40. As recently as 2002, a Peruvian official document stated that the
177
maritime zone of Peru was based on the Supreme Decree of 1947 , without any
suggestion that the lateral limits under that Supreme Decree were uncertain or no
longer applicable.
2.41. Chile and Peru exchanged formal notifications of their 1947
proclamations. Chile’s Ambassador notified Peru’s Foreign Minister, Dr. García
Sayán, of Chile’s 1947 Declaration in July 1947 178. Peru acknowledged this note
179
without protest . In due course Peru’s Ambassador notified Chile’s Foreign
176
J. L. Bustamante y Rivero, Derecho del Mar – La Doctrina Peruana de las 200
Millas, 1972, Annex 255, p. 24.
177 See Ministry of Agriculture of Peru, Peru: Estadística Agraria [Agricultural
Statistics] 2000, 2002, Annex 194, p. 8. In this publication the Ministry of
Agriculture was specifying the “territory”, including maritime territory, to which its
statistics related. In particular the size of the maritime territory corresponding to each
internal Peruvian administrative district was specified, and the fact that the Supreme
Decree of 1947 established the total size of Peru’s maritimearea was noted.
178 See Note No. 621/64 of 24 July 1947 from the Chilean Ambassador to Peru to the
Minister of Foreign Affairs of Peru, Annex 52.
179
See Note No. (D)-6-4/46 of 17 November 1947 from the Minister of Foreign Affairs
of Peru to the Chilean Ambassador to Peru, Annex 54.
61Minister of Peru’s 1947 Supreme Decree 18. Chile acknowledged this
181
notification, again without protest . I n t h i s w a y t h e P a r t i e s a c c e p t e d t h e
validity, inter se, of each other’s claim of sovereignty to a seaward distance of
200 nautical miles, including with respect to the perimeter of each claim.
2.42. The lateral limits established by Peru’s 1947 Supreme Decree caused
no controversy with Chile. Accordingly, the unilateral claims formulated by each
of the Parties in 1947 were concordant. As described in Section 4, below, these
claims were confirmed in 1952 by way of a multilateral international agreement,
the Santiago Declaration. The northern and southern lateral limits of Peru’s
maritime zone had already been in place for five years when, in 1952, Chile,
Peru and Ecuador agreed that the same lines were international maritime
boundaries between them.
2.43. B e fo r e c o ming t o t he S a nt ia g o D e c la r a t io n, it is u s e fu l b y w a y o f
further background to outline instances of utilization of geographic parallels (as
well as meridians) to bound maritime zones in the region. That practice provides
relevant context for both the 1947 proclamations and the 1952 Santiago
Declaration which followed the proclamations.
C. P RIOR NSTANCES OF U SE OF PARALLELS OF LATITUDE IN THE P RACTICE OF
AMERICAN S TATES
2.44. Prior to the Santiago Declaration of 1952, Ecuador had not unilaterally
claimed a 200M zone of the kind claimed by Chile and Peru since 1947. Until
1952, Ecuador then claimed a territorial sea of 12M, as well as jurisdiction over
180
See Note No. 5-4-M/45 of 8 October 1947 from the Peruvian Ambassador to Chile
to the Minister of Foreign Affairs of Chile, Annex 53.
181 See Note No. 015799 of 3 December 1947 from the Vice-Minister of Foreign Affairs
of Chile (signing for the Foreign Minister) to the Peruvian Ambassador to Chile,
Annex 55.
62the continental shelf and its superjacent waters, including in respect of the
fisheries contained in those waters, to the limit where the continental shelf
182
reached a depth of 200 metres . From 1939 Ecuador also claimed a maritime
zone of security that extended seaward to approximately 250M 18. This zone of
security implemented the Declaration of Panama of 1939, which established a
neutral maritime zone around North and South America, with the exception of
Canada. Chile, Ecuador and Peru were all signatories to the Declaration of
Panama.
2.45. The Declaration of Panama used a parallel of latitude beginning at the
seaward terminus of the Canada-United States of America land boundary on the
east coast of North America as the starting line of the zone of neutrality. The
zone then proceeded south in the Atlantic, using two meridians of longitude and
two other lines joining specified coordinates, to a point south-east of Cape Horn.
At that point it followed a parallel of latitude westwards until a point south-west
of Cape Horn, whence it continued north to the Pacific, to surround the
American continents in a clockwise direction, using a series of specified points
connected by lines. The neutrality zone ended at the parallel of latitude of “the
Pacific terminus of the United States-Canada boundary” 18.
182
See Legislative Decree of the Congress of the Republic of Ecuador Relating to
Territorial Waters of 6 November 1950, executed by the President on 21 February
1951, Annex 207, Arts 1 and 2 (jurisdiction over the continental shelf and its
superjacent waters) and Art. 3 (territorial sea).
183 See Presidential Decree No. 53 Establishing the Limits of the Maritime Zone of
Security of 7 October 1939, Annex 205.
184
Declaration of Panama, contained in the Final Act of the Consultative Meeting of
Foreign Ministers of the American Republics, signed at Panama City on 3 October
1939, Part XIV, Annex 2, Art. 1.
632.46. The neutrality zone is depicted in Figure 6. The point to note is that
the zone begins and ends with parallels of latitude determined by the seaward
termini of the land boundary between the United States of America and Canada.
2.47. Ecuador used the same method of lateral delimitation in implementing
the Declaration of Panama. Article 1 of Ecuador’s Presidential Decree No. 53 of
1939 stated:
“The following is considered as a maritime zone of
security adjacent to Ecuadorean territory: the zone
included between two imaginary lines drawn from the
north and south extremities of the Ecuadorean coast to the
degrees of longitude west of Greenwich which correspond
r e s p e c t i v e l y t o A r t i c l e 1 o f t h e D e c l a r a t i o n
Panama. . .”185
2.48. These “imaginary lines” (a terminology later adopted in the Peruvian
186
Supreme Decree of 1947 ) were the parallels of latitude joining the seaward
termini of Ecuador’s land boundaries to the seaward limit of the zone of
neutrality established by the Declaration of Panama. An Ecuadorean diplomat,
Dr. Lara Brozzesi, has observed that this utilization of parallels of latitude
passing through the seaward termini of the land boundaries was an antecedent to
the lateral delimitation effected in the Santiago Declaration of 1952.
2.49. There was a much earlier occasion on which Ecuador had utilized the
parallel of latitude passing through the seaward terminus of a land boundary as a
maritime limit. In 1836 an Ecuadorean Presidential Decree adopted measures for
185
Presidential Decree No. 53 of 7 October 1939 establishing the Limits of the
Maritime Zone of Security,Annex 205, Art. 1.
186 See 1947 Peruvian Supreme Decree, Annex 6 to the Memorial , Art. 3.
187 See C. Lara Brozzesi, La Delimitación Marítima entre el Ecuador y el Perú: Nuevas
Aclaraciones, 2005, Annex 287, pp. 52-54. Cf. Memorial, para. 4.66.
64preventing smuggling by sea. It provided that vessels sailing from Peru, in the
south, to Colombia, in the north, “shall pass three miles to the west of Cabo San
Francisco and must maintain that trajectory until they have reached the
neighbouring State parallel”8, namely the parallel passing through the seaward
terminus of the Ecuador-Colombia land boundary.
Section 4. The Santiago Declaration (1952)
A. I NTRODUCTION
2.50. This Section begins by explaining the motivation for the Santiago
Declaration and describing a number of formal matters concerning that
Declaration and the conference at which it was agreed and adopted (the 1952
Conference). The Section then turns to the terms and effect of the Santiago
Declaration regarding three issues:
(a) the nature of the maritime zone to which each State was entitled under
the Santiago Declaration;
(b) the lateral delimitation effected between each of those zones; and
(c) the seaward extension of those zones.
B. M OTIVATION FOR THE SANTIAGO D ECLARATION
2.51. In practice, foreign industrial-scale fishing vessels, including whalers,
continued to operate within 200 nautical miles of the coasts of Chile and Peru
even after the 1947 proclamations. The proclamations were formally protested
by (notably) the United Kingdom and the United States of America, which
188
Decree of 15 April 1836, Annex 204, Art. 10.
65refused to recognize any claim to sovereignty by Chile or Peru beyond three
nautical miles from their coasts 189.
2.52. In 1952, Chile and Peru decided to act in concert in defence of their
200M claims, and invited Ecuador to join them. To use Peru’s description, in the
Santiago Declaration the three States “intended to assert regional solidarity in
respect of the new maritime zones in the face of threats from third States. This
solidarity was necessary because of the hostility of certain States to the 1947
190
claims.”
2.53. It was the Government of Chile that convened the 1952 Conference.
On the subject-matter of the proposed 1952 Conference, Chile’s formal
invitation to Ecuador to participate in this conference stated that the
“ d e t e r m i n a t i o n o f t h e T e r r i t o r i a l S e a i s s e t a s o n e o f t h e o b j e c t i v e s o f t h e
meeting.” 191In this invitation, the first item on the agenda was as follows:
“1. – Territorial Sea. The legalization of the declarations of
the Presidents of Chile and Peru with respect to
sovereignty over 200 miles of the continental waters”. 192
189 See Note No. 11 (152/8/48) of 6 February 1948 from the British Ambassador to Peru
to the Minister of Foreign Affairs of A Pnere, 61 to the Memorial, p. 2; Note
No. 1030 of 2 July 1948 from the chargé d’affaires of the United States in Peru to the
Minister of Foreign Affairs of Peru, Annex 62 to the Memorial , p. 2; Protest by the
United Kingdom Government of 6 February 1948 to the Ministry of Foreign Affairs
of Chile, Annex 56; Note of 2 July 1948 from the United States Ambassador to
Chile to the Minister of Foreign Affairs of Chile, Annex 57. Protests are also
recounted in Peru’s Memorial, para. 4.67.
190
See Memorial, para. 4.67.
191 Note No. 468/51 of 7 July 1952 from the Chilean Ambassador to Ecuador to the
Minister of Foreign Affairs of Ecuador, Annex 59, para. 3.
192
Ibid., para. 4. The original Spanish text states:
662.54. Peru now suggests that the 1952 Conference focused on whaling along
the coast of the three participating States, and was therefore directed towards the
193
collective policing of one shared zone . This suggestion is not borne out by the
contemporaneous materials. When Chile, Peru and Ecuador agreed to gather in
Santiago in 1952, their intention was to act on a regional level in furtherance of
the “legalization [legalización]” of the 200M claims of 1947 to “national
s o v e r e i g n t y ” , i n C h i l e ’ s c a s e , a n d “ n a t i o n a l s o v e r e i g n t y a n d j u r i s d i c t i o n ” , i n
Peru’s case 19. These claims concerned separate national zones of each Party,
which had been challenged by other States as being contrary to international law
and were not being respected by foreign whaling and fishing fleets. To defend
these claims by elevating them to the level of a multilateral agreement,
representatives of Chile and Peru, joined by representatives of Ecuador, met in
Santiago, commencing on 11 August 1952.
C. T HE 1952 SANTIAGO C ONFERENCE
2.55. At the 1952 Santiago Conference, Chile, Ecuador and Peru concluded
the Santiago Declaration (“Declaration on the Maritime Zone”) along with three
other agreements, namely:
“1°. – Mar Territorial. Legalización de las declaraciones de los
Presidentes de Chile y Perú, en cuanto a la soberanía sobre 200 millas de
aguas continentales”.
193
Memorial, paras 4.63-4.64.
194 See J. L. Bustamante y Rivero, Derecho del Mar, La Doctrina Peruana de las 200
millas, 1972, Annex 255, pp. 27-28.
67(a) the Agreement Relating to the Organization of the Permanent
Commission of the Conference on the Exploitation and Conservation
195
of the Marine Resources of the South Pacific ;
(b) the Joint Declaration concerning Fishing Problems in the South
196
Pacific ; and
(c) the Regulations for Maritime Hunting Operations in the Waters of the
197
South Pacific .
The four agreements were all signed at Santiago on 18 August 1952. As recorded
in the United Nations Treaty Series, all four of them entered into force upon
signature.
2.56. The existence of the other three specific agreements, listed above,
meant that the Santiago Declaration was not encumbered with the details of the
overall conservation scheme for marine resources, which was the object of these
three other agreements. The Santiago Declaration was the foundational
instrument dealing with the issues of principle, namely general claims of
sovereignty and jurisdiction and the geographic perimeters within which those
claims were made. Stated otherwise, the general claim of sovereignty and
jurisdiction by each State in terms of the Santiago Declaration was the predicate
195
Agreement Relating to the Organization of the Permanent Commission of the
Conference on the Exploitation and Conservation of the Marine Resources of the
South Pacific, Santiago, signed and entered into force on 18 August 1952,
1006 UNTS 331, Annex 48 to the Memorial.
196
Joint Declaration concerning Fishing Problems in the South Pacific, Santiago, signed
and entered into force on 18 August 1952, 1006 UNTS 317.
197 Regulations for Maritime Hunting Operations in the Waters of the South Pacific,
Santiago, signed and entered into force on 18 August 1952, 1006 UNTS 305,
Annex 49 to the Memorial.
68upon which the three States entered into further agreements concerning the
regulation of natural resources in each of their respective maritime zones.
2.57. To administer the four agreements reached in Santiago in August
1952, Chile, Ecuador and Peru created the Permanent Commission of the South
Pacific (the CPPS). This was to be a regional international organization with
executive functions, established “to achieve the goals set forth” in the Santiago
198
Declaration . It was mandated to perform co-ordination and research functions
and to establish Technical Offices in each of the three Member States. The
Technical Offices were tasked with gathering information. In the Cali
Declaration of 1981 the Member States declared that the CPPS remained “the
199
appropriate regional organization for the defence of their maritime interests” .
D. E NTRY INTO FORCE OF THE SANTIAGO DECLARATION
2.58. The United Nations Treaty Series records that, as a matter of
international law, the Santiago Declaration entered into force upon signature on
200
18 August 1952 . As a matter of Chilean law it was “approved” by the Chilean
Congress and then “accept[ed] and ratif[ied]” by the President of Chile through
Supreme Decree No. 432 of 23 September 1954 201. Ecuador’s Congress
198
Agreement Relating to the Organization of the Permanent Commission of the
Conference on the Exploitation and Conservation of the Marine Resources of the
South Pacific, Santiago, signed and entered into force on 18 August 1952,
1006 UNTS 331, Annex 48 to the Memorial, Art. 1.
199 Cali Declaration of 24 January 1981, attached to the note verbale of 9 March 1981
from the Heads of Delegation of Chile, Colombia, Ecuador and Peru to the President
of the Third United Nations Conference on the Law of the Sea, translated by the
United Nations, document A/CONF.62/108, Annex 49, p. 94, ninth paragraph.
200 Santiago Declaration, Annex 47 to the Memorial, footnote 1 added by the United
Nations (Volume II of the Memorial, p. 261).
201
Supreme Decree No. 432 of 23 September 1954, Annex 30 to the Memorial and
Note No. 2890 of 25 March 1955 from the Minister of Foreign Affairs of Chile to
the Director of the Official Gazette of Chile, Annex 115.
69“approved” it on 6 November 1954 202, and on 7 February 1955 the President of
203
Ecuador “decree[d]” that it was “ratified” in Decree No. 275 . The President of
Peru, with the approval of the Peruvian Council of Ministers, resolved “to
approve” the Santiago Declaration in a Supreme Resolution of 11 April 1953, as
an executive agreement 204. Two years later, the Peruvian Congress “resolved to
approve” the Santiago Declaration (together with the Lima Agreement of 1954)
by Legislative Resolution No. 12305 of 6 May 1955 and the Peruvian President
“enacted” that resolution of Congress on 10 May 1955 205.
2.59. The Peruvian Congress was under no misapprehension about the
boundary-delimitation aspect of the Santiago Declaration. In the Congressional
debate in May 1955, Congressman Dr. Peña Prado had this to say about the
conferences which resulted in the Santiago Declaration and the Lima Agreement:
“The purposes of these conferences. . .are the declaration
of the maritime zone, the Agreements signed for
establishing the control and surveillance of our seas, for
establishing the maritime boundaries between the
signatory countries, for determining the sanctions, the
p e r m i t s a n d t h e m e e t i n g o f t h e P e r m a n e n t C o m m i s s i o n
206
that must take place every year.” (Emphasis added.)
2.60. In its Memorial Peru states that when “reference was made to the
[Santiago] Declaration in the Congresses of Peru and Chile in the 1950s there
202 Recorded in Decree No. 275 of 7 February 1955, Annex 208.
203 Ibid.
204 Supreme Resolution of 11 April 1953, Annex 161.
205 Legislative Resolution No. 12305 of 6 May 1955, enacted by the Peruvian President
on 10 May 1955, Annex 10 to the Memorial .
206
J. M. Peña Prado, Address to the Congress of Peru, reproduced inLa Crónica, Lima,
7 May 1955, Annex 246.
70 207
was no mention of it being a boundary agreement” . That statement does not
take into account Dr. Peña Prado’s statement in the Peruvian Congress that the
purposes of the 1952 and 1954 Conferences included “establishing the maritime
boundaries between the signatory countries”.
2.61. The approval processes recounted above operated on the internal-law
plane only. No act of ratification was necessary as a matter of international law.
Chile, Ecuador and Peru jointly provided the Santiago Declaration to the United
Nations for registration in 1973 20. Registration occurred on 12 May 1976 20. As
noted, following that joint registration, the United Nations Treaty Series records
210
that the Santiago Declaration entered into force upon signature .
E. T HE SANTIAGO D ECLARATION HAS A LWAYS BEEN A T REATY
2.62. Peru asserts in its Memorial that the Santiago Declaration was
conceived “not as a treaty but as a proclamation of the international maritime
policy of the three States” 211. The Santiago Declaration had, Peru says, only a
“‘declarative’ character” 212 and was “initially conceived as a soft law
instrument” . Peru acknowledges that the Santiago Declaration is now to be
207
Memorial, para. 4.81.
208 See Letter of 3 December 1973 from the Permanent Representatives of Peru and
Chile and the Ecuadorean chargé d’affaires to the United Nations to the Secretary-
General of the United Nations, Annex 83.
209 See the cover page of teNTS publication of the Santiago Declaration,Annex 47
to the Memorial.
210
Ibid., p. 261, footnote 1.
211 Memorial, para. 4.70.
212
Ibid.
213 Ibid., para. 4.81.
71regarded as a treaty, but says that it only “acquired the status of a treaty”, “[o]n
ratification by Congress” 214.
2.63. It is a novel proposition that an international instrument not agreed as
a treaty was elevated to treaty status by subsequent unilateral acts under
municipal law. Peru accepts that the Santiago Declaration has been a treaty since
the mid-1950s, so in a sense Peru’s reliance on this novel proposition is
immaterial. Nonetheless, Peru makes this suggestion to help its main argument
that the Santiago Declaration was not an instrument in which maritime
delimitation could have been effected, so the following must be said. The
Santiago Declaration has been a treaty from its inception. The States parties
memorialized an international agreement setting forth rights and obligations
governed by international law. The three States did so when their delegates
signed the Santiago Declaration on 18 August 1952, not because of any
subsequent unilateral act of a constituent organ of any of these States. That is in
fact what the United Nations Treaty Series records, following registration by the
three States parties jointly.
2.64. Chile understands Peru’s assertion that the Santiago Declaration was a
215
proclamation of policy having only a “soft law” character to be an assertion
that the Santiago Declaration was not intended to be legally binding. This
assertion is contradicted by the way in which Peru’s delegate, former Foreign
Minister Dr. Enrique García Sayán, represented the legal nature of the Santiago
Declaration at the First United Nations Conference on the Law of the Sea in
1958. He said: “The instruments of positive law which stated Peru’s position
214 Memorial, para. 4.70.
215
Ibid., para. 4.81.
72were the decree of 1 August 1947 and the pact with Chile and Ecuador, referred
to as the Santiago Declaration, signed in 1952” (emphasis added) 216.
2.65. The fact that the Santiago Declaration is called a “declaration” does
not diminish its status as a treaty. The instrument declared on the international
stage, on a multilateral basis, claims that both Chile and Peru had already made
by internal-law instruments. Ecuador joined with them. That is the sense in
which the 1952 text was a declaration, and it is immaterial to the legally binding
character of the instrument. As the Permanent Court said: “From the standpoint
of the obligatory character of international engagements, it is well known that
such engagements may be taken in the form of treaties, conventions,
declarations, agreements, protocols, or exchanges of notes” (emphasis added) . 217
2.66. Examples of treaty instruments titled “declaration” abound. In the
Case Concerning the Land and Maritime Boundary between Cameroon and
218
Nigeria the Court found that the Maroua Declaration of 1975 constituted a
treaty establishing a maritime boundary 219. There are other examples 220. The
broader legal point here is that designation does not determine whether an
216 United Nations, Summary Record of the 9th Meeting of the Second Committee of
the United Nations Conference on the Law of the Sea, 13 March 1958, 3.15 p.m.,
document A/CONF.13/40, Annex 101 to the Memorial, p. 17, para. 33.
217 Customs Regime between Germany and Austria, Advisory Opinion, 1931, P.C.I.J.,
Series A/B, No. 41, p. 47.
218
Maroua Declaration, signed and entered into force on 1 June 1975, 1237 UNTS 319.
219 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria; Equatorial Guinea intervening), Merits, Judgment, I.C.J. Reports 2002,
para. 263.
220
See, e.g., Declaration by France and Monaco Concerning the Delimitation of the
Territorial Waters of the Principality of Monaco, Paris, signed and entered into force
on 20 April 1967, 1516 UNTS 131; the Tashkent Declaration between India and
Pakistan, Tashkent, signed and entered into force on 10 January 1966, 560 UNTS 39;
the Declaration on the Construction of Main International Traffic Arteries, Geneva,
signed and entered into force on 16 September 1950, 92 UNTS 91.
73inst ru me nt is a t reat y. That po int was madeSoc ulte Wrelt Aifnrihea
Cases:
“Terminology is not a determinant factor as to the
character of an international agreement or undertaking. In
the practice of States and of international organizations and
in the jurisprudence of international courts, there exists a
great variety of usage; there are many different types of
acts to wh221 the character of treaty stipulations has been
attached.”
2.67. Article 2(1)(a) of the Vienna Convention provides that for its purposes
a treaty is–
“an international agreement concluded between States in
written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments and whatever its particular designation.”
(Emphasis added.)
2.68. The question whether an instrument sets forth binding obligations is
ultimately one of substance, not form or (much less) intitulation. Customary
international law prescribes no necessary form for treaties 22. What is decisive is
whether the relevant States intended the instrument to be an agreement governed
by international law. Whether those States had the requisite intention is to be
221
South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa),
Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 331.
222 See Case concerning the Temple of Preah Vihear (Cambodia v. Thailand),
Preliminary Objections, Judgment, I.C.J. Reports 1961, p. 31. In that case the Court
held that:
“Where . . . as is generally the case in international law, which places the
principal emphasis on the intentions of the parties, the law prescribes no
particular form, parties are free to choose what form they please provided
their intention clearly results from it.”
74gathered from the instrument’s “actual terms and. . .the particular circumstances
in which it was drawn up.” 223 The terms of the Sant iago Declarat ion will be
discussed in further detail below. The only point to be stressed here is that, as
noted at paragraph 2.58 above, the Santiago Declaration entered into force upon
signature. This alone indicates that it had legal force, and had it upon signature.
2.69. On the authority cited above, Peru’s related assertion that the Santiago
224
Declaration “does not have the format of a boundary treaty” is also misplaced.
A treaty effecting a boundary delimitation can take whatever form the parties
choose to give it 22, so long as the parties manifest an intention for their
agreement to be governed by international law and, where Article 2(1) of the
Vienna Convention is applicable, that the agreement be reduced to writing. As
will be explained in further detail below, in the Santiago Declaration the parties
designated the boundary line as the “parallel at the point at which the land
frontier of the States concerned reaches the sea” 226. To borrow the Court’s words
in the Case concerning the Temple of Preah Vihear, this was “an obvious and
convenient way of describing a frontier line objectively, though in general
227
terms.”
223 Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978,
p. 39, para. 96; also see Maritime Delimitation and Territorial Questions between
Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994,
pp. 120-122, paras 23-30.
224 Memorial, para. 4.81.
225 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, p. 25, para. 51.
226 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
227
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 35.
75 F. T HE M ARITIME Z ONES D ELIMITED BY THE SANTIAGO D ECLARATION
2.70. I n A r t i c l e I I o f t h e S a n t i a g o D e c l a r a t i o n , C h i l e , E c u a d o r a n d P e r u
declared–
“exclusive sovereignty and jurisdiction over the sea along
the coasts of their respective countries to a mi228um
distance of 200 nautical miles from these coasts.”
2.71. Article III made it explicit that this exclusive sovereignty and
jurisdiction extended to “the seabed and the subsoil thereof” 22. The States
parties claimed sovereignty and jurisdiction because they wished to control
natural resources, in particular fisheries and whales. Nevertheless the States
p a r t ie s d i d n o t me r e l y c l a i m fu n c t io n a l ju r i s d i c t io n o v e r s o me o r a l l n a t u r a l
resources. They explicitly claimed “exclusive sovereignty and jurisdiction” over
the sea, seabed and subsoil. That claim encompassed exclusive control over all
natural resources, living and non-living, contained therein. At the time, the
Secretariat of the United Nations regarded the 1947 claims of Chile and Peru as
establishing zones “s’apparent[a]nt en réalité à des espaces de mer
230
territoriale.” S i m i l a r l y , a n u m b e r o f a u t h o r s h a v e t a k e n t h e v i e w t h a t t h e
Santiago Declaration set forth, or at least implied, claims to 200M territorial
seas231.
228 Santiago Declaration, Annex 47 to the Memorial, Art. II.
229 Ibid., Art. III.
230
United Nations, Memorandum on the Regime of the High Seas by the Secretariat to
the ILC (2nd session of the ILC (1950)), document A/CN.4/32, Annex 227, p. 87,
para. 144.
231
See, e.g., E. Jiménez de Aréchaga, “Report on the Colombia-Ecuador Maritime
Boundary” in J. I. Charney and L. M. Alexander (eds), International Maritime
Boundaries, Vol. ,I1993, Annex 281, p. 810; D. P. O’Connell, The International
Law of the Sea, Vol. ,11982, Annex 298, p. 553; R. Dupuy and D. Vignes (eds),
762.72. It is well known that the Santiago Declaration served as the foundation
for subsequent developments in international law. This point was stressed in a
joint letter by the CPPS Member States (by that time, Colombia had joined the
original three States) to the President of the Third United Nations Conference on
the Law of the Sea (the Third Conference on the Law of the S )ia1982. The
four States observed that–
“the universal recognition of the rights of sovereignty and
jurisdiction of the coastal State within the 200-mile limit
provided for in the draft Convention is a fundamental
achievement of the countries members of the Permanent
Commission of the South Pacific, in accordance with the
basic objectives stated in the Santiago Declaration of
1952.” 232
2.73. The CPPS Member States have made the same point on a number of
other occasions 23, as has the CPPS itself . The early South American maritime
A Handbook on the New Law of the Sea, V o l ., 1 1991, Annex 258, p. 276;
B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea,
1989, Annex 285, p. 210; W. C. Extavour, The Exclusive Economic Zone, 1979,
Annex 260, pp. 79-80.
232 Letter of 28 April 1982 from the representatives of Chile, Colombia, Ecuador and
Peru to the President of the Conference, translated by the United Nations, document
A/CONF.62/L.143, Annex 108 to the Memorial, first paragraph.
233
See, e.g., Letter No. 804/124 of 20 August 1979 from the Heads of Delegation of
Chile, Colombia, Ecuador and Peru to the President of the Conference, 22 August
1979, translated by the United Nations, document A/CONF.62/85, Annex 46;
Statement by the Delegation of Peru, 4 April 1980, translated by the United Nations,
document A/CONF.62/WS/6, Annex 48, paras 3-4; Note verbale of 9 March 1981
from the Heads of Delegation of Chile, Colombia, Ecuador and Peru to the President
of the Conference, transmitting the Cali Declaration of 24 January 1981, translated
by the United Nations, document A/CONF.62/108, Annex 49.
234
See Statement by the CPPS to the Third United Nations Conference on the Law of
the Sea, translated by the United Nations, document A/CONF.62/WS/36, Annex 51.
77claims, most notably the Santiago Declaration, constituted a prime foundation for
235
what ultimately became known as the EEZ .
2.74. Notwithstanding the recognition now afforded to the Santiago
Declaration as an early step in the development of the contemporary law of the
sea, conformity with general international law was an open question at the time.
Doubt was expressed on that score, both in respect of the Santiago Declaration
and the unilateral proclamations of 1947 that preceded it, by a number of
States , t h e I L Cand scholars 238. T h e S a n t i a g o D e c l a r a t i o n w a s t h e f i r s t
235
See R. Jennings and A. Watts (eds), Oppenheim’s International Law, 9th edn, 1992,
Annex 276, p. 613; R. Dupuy and D. Vignes (eds), A Handbook on the New Law of
the Sea, Vol. 1, 1991, Annex 258, p. 275; S. N. Nandan, “The Exclusive Economic
Zone: A Historical Perspective”, in Essays in memory of Jean Carroz: The Law and
the Sea, 1987, Annex 294, p. 175; A. Arias-Schreiber, “La Nature Juridique de la
Zone Économique Exclusive” in Propos sur le nouveau droit de la mer, 1985,
Annex 251, pp. 53-54; F. Orrego Vicuña, “The Economic Zone in a Latin American
Perspective: An Introduction”, in F. Orrego Vicuña (ed.), The Exclusive Economic
Zone – A Latin American Perspective, 1984, Annex 300, pp. 1-2; F. V. Garcia-
Amador, “The Origins of the Concept of an Exclusive Economic Zone: Latin
American Practice and Legislation”, in F. Orrego Vicuña (ed.), The Exclusive
Economic Zone – A Latin American Perspective, 1984, Annex 267, pp. 7 and 23;
R. Galindo Pohl, “The Exclusive Economic Zone in the Light of Negotiations of the
Third United Nations Conference on the Law of the Sea”, in F. Orrego Vicuña (ed.),
The Exclusive Economic Zone – A Latin American Perspective, 1984, Annex 265,
pp. 32-33; D. P. O’Connell, The International Law of the Sea, V o l ., 1 1982,
Annex 298, p. 553; W. C. Extavour, The Exclusive Economic Zone, 1979,
Annex 260, pp. 73 and 79.
236
See, e.g., Note of 7 April 1951 from the Government of France to the Government of
the United Kingdom, reproduced in Ch. Vallée, Le Plateau Continental dans le Droit
Positif Actuel, 1971, Annex 58, p. 62; Note No. 276 of 4 March 1955 from the
United States Ambassador to Peru to the Minister of Foreign Affairs of Peru,
enclosing and aide-mémoire, Annex 67; Internal note of the United Kingdom
Foreign Office of 17 January 1958 authored by the Legal Advisor, Sir Gerald
Fitzmaurice, Annex 209; Note No. 57/1954 of 4 October 1954 from the Legation of
Sweden in Peru to the Minister of Foreign Affairs of Peru, nex 64; Note No. 197
of 4 October 1954 from the Danish chargé d’affaires in Peru to the Minister of
Foreign Affairs of Peru, Annex 65; Memorandum No. 3883 of 28 October 1954
from the Legation of the Netherlands in Peru to the Ministry of Foreign Affairs of
Peru, Annex 66.
78multilateral instrument in which States claimed sovereignty and jurisdiction to a
distance of 200 nautical miles. Peru’s present claim to a “maritime dominion”
(see paragraphs 2.166-2.176 below) is historically continuous with the claim that
it made under the Santiago Declaration. As will also be seen below (paragraph
2.177), in 1986 Chile adopted legislation implementing maritime zones
consistent with UNCLOS, to which it later became party.
2.75. The crucial point here is that the sovereignty and jurisdiction claimed
by the Parties in 1947 and 1952 was fully delimited as between them in 1952.
That delimitation was binding and valid as between the Parties, both then and
now (whatever view third States might have taken in 1952 about the opposability
to them of the 200M claims to sovereignty and jurisdiction). That delimitation
fully covers the maritime zones now asserted by the Parties. Indeed, as noted
(paragraph 2.40 above), Peru’s 200M “maritime dominion” claim is directly
founded on the 1947 Supreme Decree and the Santiago Declaration.
G. L ATERAL D ELIMITATION
2.76. When the Parties met in Santiago in 1952, both Chile and Peru had
already, in 1947, unilaterally decreed sovereignty over the water column, the
seabed, its subsoil, and all of the associated natural resources to a seaward extent
of 200 nautical miles. The two boundaries potentially at issue at the 1952
Conference were the Ecuador-Peru boundary and the Peru-Chile boundary; that
237 See United Nations,Report of the Special Rapporteur to the ILC (2nd session of the
ILC (1950)), document A/CN.4/17, Annex 226, pp. 49-50, paras 109 et seq.
238 See, e.g., L. Oppenheim, International Law: A Treatise, Vol. 1: Peace (H.
Lauterpacht (ed.)), 1955, Annex 299, p. 632; J. P. A. Fçoainsd,boek van het
Volkenrecht, 1949, Annex 263, p. 929; M. W. Mouton, The Continental Shelf, 1952,
Annex 293, p. 83.
79is, Peru’s northern and southern maritime boundaries. In 1947 Peru had claimed
a maritime zone that was bounded in the north and south by the parallels of
latitude passing through the seaward termini of its land boundaries. Accordingly,
in the Santiago Declaration, the issue of the lateral, inter se delimitation of
maritime zones was not contentious. Article IV of the Santiago Declaration
provides simply that the line which bounds “the general maritime zone belonging
to another of those countries” is the “parallel at the point at which the land
frontier of the States concerned reaches the sea.”
2.77. In full, Article IV of the Santiago Declaration reads as follows:
“In the case of island territories, the zone of 200 nautical
miles shall apply to the entire coast of the island or group
of islands. If an island or group of islands belonging to one
of the countries making the declaration is situated less than
200 nautical miles from the general maritime zone
belonging to another of those countries, the maritime zone
of the island or group of islands shall be limited by the
parallel at the point at which the land frontier of the States
concerned reaches the sea.” 239
2.78. The minutes of the 1952 Conference (the 1952 Minutes) indicate the
background to this Article. In the Legal Affairs Commission which was charged
with drawing up the Santiago Declaration, Ecuador’s delegate–
239 Santiago Declaration, Annex 47 to the Memorial, Art. IV. The original Spanish text
reads as follows:
“En el caso de territorio insular, la zona de 200 millas marinas se aplicará
en todo el contorno de la isla o grupo de islas. Si una isla o grupo de islas
pertenecientes a uno de los países declarantes estuviere a menos de 200
millas marinas de la zona marítima general que corresponde a otro de
ellos, la zona marítima de esta isla o grupo de islas quedará limitada por
el paralelo del punto en que llega al mar la frontera terrestre de los
estados respectivos.”
80 “observed that it would be advisable to clarify [the
provision which became Article IV of the Santiago
Declaration] in order to prevent any misinterpretation of
the interference zone in the case of islands, and suggested
that the declaration be drawn on the basis that the
boundary line of the jurisdictional zone of each country be
the respective parallel from the point at which t240borders
of the countries touches or reaches the sea.”
(Emphasis added.)
Immediately following this extract the 1952 Minutes record that:
“All the delegates agreed to this proposal.” 241
2.79. Following this agreement, the Chilean and Peruvian delegates were
asked to revise the parts of the Santiago Declaration to which changes had been
agreed. The Peruvian and Chilean delegates presented this revised text at the
ne xt s e s s io n o f t h e Le g a l A ffa ir s C o mm is s io n ( t he fo llo w in g d a y) a nd , w it h
some further minor modifications, the final text of Article IV of the Santiago
Declaration was adopted. Article IV of the Santiago Declaration was thus agreed
upon a mutual understanding that the maritime entitlements of the States parties
were laterally delimited by the parallel of latitude passing through the point
where the relevant land boundary reaches the sea.
240 M i n u t e s o f t h e F i r s t S e s s i o n o f t h e L e g a l A f f a i r s C o m m i s s i o n
Conference, 11 August 1952 at 4.00 p.m., Annex 56 to the Memorial, p. 2. The
original Spanish text reads as follows:
“observó a continuación que convendría dar más claridad al artículo 3°, a
fin de evitar cualquier error de interpretación de la zona de interferencia
en el caso de islas y sugirió que la declaración se redactara sobre la base
de que la línea limítrofe de la zona jurisdiccional de cada país fuera el
paralelo respectivo desde el punto en que la frontera de los países toca o
llega al mar.”
241
Ibid., p. 2. The original Spanish text reads as follows: “Todos los delegados
estuvieron conformes con esta proposición.”
81 1. Article IV delimits both the general and insular zones of the States parties
2.80. As discussed at paragraph 1.6 above, in the Santiago Declaration,
Chile, Ecuador and Peru conceived of their continental coasts and their insular
coasts as having separate maritime projections. The continental coast of each
242
State party generates a “general maritime zone” . Each “island or group of
243
islands” generates its own radial projection of 200 nautical miles . Proceeding
on the basis of that distinction, the States parties were concerned to preserve the
primacy of the general maritime zone generated by each of their continental
coastlines over any maritime zone generated by an island or group of islands
belonging to an adjacent State party. Article IV of the Santiago Declaration
provides that if an island is within 200 nautical miles of the parallel of latitude
constituting the boundary between the general zones of the relevant adjacent
States, then the maritime zone generated by that island is also delimited by that
same parallel. In the result, where an insular zone overlaps with a general
maritime zone, the general zone generates its full effect and the insular zone is
limited by the applicable boundary parallel before reaching the full 200M radial
projection otherwise afforded to islands 244.
2.81. The conclusion which follows is that the treatment of insular zones in
Art ic le IV o f t he Sa nt iago Dec larat io n ma y o nly be u nderst oo d as a spec ific
application of a general rule that the maritime boundary must in every case be
the parallel of latitude of the point at which the land boundary of the States
concerned reaches the sea. That parallel of latitude constitutes the boundary of
all possible maritime zones, whether general or insular, between the States
parties.
242 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
243
Ibid.
244 Ibid.
822.82. Stated differently, the use of parallels of latitude to limit the zone of an
“island or group of islands” presupposes, and may be explained only on the
basis, that the general maritime zones are also delimited by the same parallels of
latitude. This is the situation illustrated in the middle box of the figure below. As
shown in that diagram, if the general maritime zones of adjacent States A and B
are delimited in any way other than by a parallel of latitude starting from the
seaward terminus of the land boundary (as illustrated in the boxes on the right
and left), there is no reason to delimit the insular maritime zone of State A (the
area in orange) by using that parallel of latitude.
2.83. Pursuant to Article IV of the Santiago Declaration, the maritime zone
generated by an island or group of islands is limited by a parallel of latitude if
those islands are “situated less than 200 nautical miles from the general maritime
zone belonging to another of those countries”. 245 In order to be able to ascertain
whether an island is situated less than 200 nautical miles from that “general” (i.e.
continental) maritime zone, the perimeter of the general maritime zone must be
defined. If that perimeter were not defined, it would not be possible to determine
if an island was situated more or less than 200 nautical miles from that general
maritime zone. Article IV proceeds on the basis that the general maritime zone of
each State was also delimited by a line following a parallel of latitude.
245
Santiago Declaration, Annex 47 to the Memorial, Art. IV.
832.84. A present-day reader might wonder why the application of the
parallels of latitude to the general maritime zones was not made more explicit in
Article IV of the Santiago Declaration. The answer is that Peru had unilaterally
declared in 1947 that its maritime zone was limited by those parallels of latitude.
Chile, which had also claimed a 200M zone, had acknowledged and accepted
Peru’s 1947 Supreme Decree. In 1952 there was no controversy between Chile
and Peru concerning their maritime boundary. Ecuador was not part of the
reciprocal process concerning maritime zones between Chile and Peru in 1947.
Nevertheless, so far as Chile is aware, Ecuador had not protested Peru’s 1947
proclamation and the use of parallels as maritime limits.
2.85. When Ecuador joined with Chile and Peru in 1952 to make a
multilateral agreement on extended maritime zones, Ecuador’s participation
brought with it a new issue: how the maritime zones granted to Ecuador’s islands
should be delimited, especially if the maritime zones were to be extended farther
than 200 nautical miles and thus affect the Galápagos Islands. The agreed
approach was that if an insular zone of one State overlapped with the general
zone of another State, the boundary between the general maritime zones of the
States concerned would also delimit the relevant insular zone. The general
maritime boundary cut short the insular zone. This was a specific application to
insular zones of the general maritime boundaries accepted by the three States.
2.86. The Galápagos Islands, belonging to Ecuador, were surrounded by
rich fishing grounds. Chile acknowledged that fact as a significant new factor in
the note it sent to Ecuador on the subjects to be covered at the Santiago
Conference of 1952, as follows:
“The participation of Ecuador in this conference is of great
importance given the significant quantity of sperm whales
84 existing in its maritime zone, particularly in the zone of the
Galápagos islands, and [because] the provisional agenda
states that the determination of the Territorial Sea is set as
246
one of the objectives of the meeting.”
2.87. The 200M insular maritime zone generated by the Galápagos Islands
would not overlap with the 200M general maritime zone of Peru. However, as
will be discussed in the next Subsection, 200 nautical miles was a minimum
claim under the Santiago Declaration. Possible further seaward extension was
envisaged, as is clear on the face of Article II (“a minimum distance of 200
nautical miles”) 24. A relatively minor extension of the Peruvian maritime zone
would have created a potential overlap with the zone generated by the Galápagos
Islands. This issue was resolved by Article IV of the Santiago Declaration, which
established the priority of general maritime zones over insular maritime zones.
2.88. Peru’s Memorial argues that Article IV is to be understood as dealing
only with the delimitation of zones generated by, respectively, islands and
continental territories 248. It is difficult to see why the States parties would have
chosen to deal only with the issue of a few islands in the Gulf of Guayaquil and
with the prospective issue of the Galápagos Islands, but left open the delimitation
of the maritime zones generated by their continental territories. The negotiating
record does not indicate that there was any maritime-boundary delimitation issue
246 Note No. 468/51 of 7 July 1952 from the Chilean Ambassador to Ecuador to the
Minister of Foreign Affairs of Ecuador, Annex 59, para. 3. The original Spanish text
reads as follows:
“La concurrencia de Ecuador a esta conferencia tiene gran importancia,
ya que en su zona marítima existe una gran cantidad de cachalotes,
especialmente en la región de las Islas Galápagos y entre los puntos del
temario provisional se señala como uno de los objetivos de la reunión la
fijación del Mar Territorial.”
247
Also see paras 2.102-2.106 below.
248 See, e.g., Memorial, paras 4.77 and 4.80; also see the discussion at paras 2.89et seq.
below.
85that the States parties intended to leave open for any reason. On the contrary, the
negotiating record quoted at paragraph 2.78 above plainly indicates the States
parties’ unanimity that the maritime boundary was in every case the parallel of
latitude of the point at which the land boundary between the States concerned
reaches the sea.
2.89. Peru has recently confirmed that there is no outstanding maritime
249
boundary delimitation issue between Peru and Ecuador . However, the
interpretation of Article IV of the Santiago Declaration now proposed by Peru in
its Memorial 250 explains only part of Peru’s complete maritime boundary with
Ecuador. On the approach Peru advances in its Memorial, Article IV of the
Santiago Declaration serves to delimit only the maritime zone generated by
Ecuador’s islands in the Gulf of Guayaquil and the part of Peru’s general
maritime zone abutted by the zone created by those islands. This is a legal
difficulty with Peru’s present interpretation of Article IV, but there is the
additional difficulty of its being unable to account for a segment of the Peru-
Ecuador maritime-boundary line.
2.90. Ecuador’s general maritime zone extends further seaward than the
insular maritime zone generated by Ecuador’s islands in the Gulf of Guayaquil.
Part of that seaward portion of Ecuador’s general maritime zone is within 200
249 See Official Communiqué RE/13-05 of 25 November 2005 by the Ministry of
Foreign Affairs of Peru, Annex 199. There is a curt statement in passing in an earlier
internal Peruvian document suggesting that in the event that Peru became party to
UNCLOS, a boundary negotiation with Ecuador would follow: “Apreciaciones a
Convención de las Naciones Unidas sobre el Derecho del Mar”, appearing as Annex
(1) to Letter No. 4626 SGMD-D of 21 November 2000 from the Minister of Defence
of Peru to the Minister of Foreign Affairs of Peru, Annex 189, para. (n).
250 The Memorial, para. 4.77, states that the delimitation effected by Article IV “applied
only to those islands and groups of islands that are situated less than 200 nautical
miles from the general (sc., the continental) maritime zone of another State Party and
only in the segment in which the maritime zone of such islands would overlap with
the general maritime zone of the neighbouring State.”
86nautical miles of Peru’s basepoints. This is so whether Ecuador’s general
maritime zone is measured from basepoints on its continental coast or from
Ecuador’s straight baseline. The interpretation of Article IV proposed by Peru in
its Memorial does not account for the delimitation of Ecuador’s general maritime
zone and the part of Peru’s general maritime zone that is not within 200 nautical
miles of an Ecuadorean island. This point is illustrated in Figure 7.
2.91. Interpreted consistently with the understanding jointly held by its three
States parties until Peru conceived a new interpretation for the purposes of its
present claim, Article IV of the Santiago Declaration delimits all maritime zones
— both insular and general — as between all of its States parties, by using in
every case “the parallel at the point at which the land frontier of the States
concerned reaches the sea” 251. This interpretation explains the complete maritime
boundary delimitation between Ecuador and Peru and the complete maritime
boundary delimitation between Chile and Peru.
2.92. As explained below, the parties to the Santiago Declaration confirmed
their common understanding that Article IV laterally delimits their respective
maritime entitlements using parallels of latitude on a number of subsequent
occasions. This occurred when Chile, Ecuador and Peru negotiated the
Complementary Convention to the Santiago Declaration and the Lima
Agreement in 1954 (see paragraphs 2.189-2.201 below). It also occurred in 1955
when the three States negotiated a protocol for the accession of other American
States to the Santiago Declaration. At that time Chile and Peru confirmed their
understanding that Article IV is a delimitation agreement and agreed that this
Article would not apply to States acceding in future, because the use of parallels
of latitude as maritime boundaries was not necessarily suitable for the coastal
configuration of other States (see paragraphs 3.121-3.126 below). The necessary
251 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
87conclusion is that in 1955 the Parties confirmed that geographic parallels were
appropriate boundary lines for them.
2.93. Notwithstanding these subsequent acknowledgements that Article IV
of the Santiago Declaration delimited the maritime boundary between Chile and
Peru, Peru’s Memorial makes a number of new arguments which seek to cast
doubt on the applicability of Article IV of the Santiago Declaration between
Chile and Peru. Those arguments fail on the face of the Santiago Declaration.
Article IV refers to “the general maritime zone belonging to another of those
countries”. Two significant points arise from this language.
2.94. T he f ir s t p o int a r is e s fr o m t he u s e o f t he w o r ds “a no t he r o f t ho s e
countries”. These words indicate that Article IV applied to all three States
parties. The full meaning of the abbreviation “those countries” is given earlier in
the same sentence of Article IV. “Those countries” are “the countries making the
declaration”, i.e. all three States parties. If the delimitation provision applied
252
only to Ecuador and Peru, as Peru now suggests , the appropriate language
when referring to the general maritime zone belonging to another State would
have been the singular: the other country.
2.95. The second point is that it was agreed that each State was to have its
own maritime zone, “belonging” to that State. The Santiago Declaration did not,
as Peru suggests in its Memorial 253, create one unified maritime zone extending
the length of the coasts of all three States parties — a zone shared among them
and without any internal delimitation. Even on Peru’s own reading that
252 See, e.g., Memorial, para. 4.77.
253
Ibid., paras 4.72-4.73.
88 Figure 7
Ecuador-Peru maritime boundary and Peru's interpretation of Article IV o
f the Santiago Declaration
84°W 82°W 80°W
2°S 2°S
Ecuador
Gulf of
Guayaquil
4°S 4°S
Pacific Ocean
Peru
0 50 100 150 200 M
84°W 82°W 80°W
Ecuador's island territories
Ecuador - Peru maritime boundary
Ecuador's waters Part of Ecuador - Peru boundary not explained by Peru's interpretation o
f Article IV of the Santiago Declaration
Ecuador's 200M limit generated by insular territories alone
Ecuador's 200M limit measured from its baselines set out in Supreme Decr
ee No. 959-A of 28 June 1971
200M arcs from Peru's baselines
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the
Sea Consultancy Article IV delimits only insular zones as against general maritime zones 25, there
could not have been such a unified zone.
2. Article IV of the Santiago Declaration delimits each State party’s own separate
maritime zone
2.96. It is plain that in the Santiago Declaration each State party claimed its
own 200M maritime zone and that, where the States co-operated on issues of
common interest, they did so in the exercise of the sovereignty that each one of
them claimed over its own maritime zone. A few observations are called for in
that regard.
2.97. In the first place, the Santiago Declaration itself refers in the plural to
the States parties’ protection of the resources of “the maritime zones adjacent to
255
their coasts” . These States claimed that “they each possess exclusive
sovereignty and jurisdiction” 25. As discussed above, the delimitation provision
in Article IV refers to the general maritime zone “belonging to another of those
countries”.
2.98. Further, in the Second Session of the Legal Affairs Commission, the
delegates also discussed Article VI of the Santiago Declaration. This Article
states:
“For the application of the principles contained in this
Declaration, the Governments of Chile, Ecuador and Peru
hereby announce their intention to sign agreements or
conventions which shall establish general norms to
254 See, e.g., Memorial, paras 4.77 and 4.80.
255
Santiago Declaration, Annex 47 to the Memorial , fourth (unnumbered) introductory
paragraph tothe operative provisions.
256 Ibid., Art. II.
89 regulate and protect hunting and fishing within the
maritime zone belonging to them, and to regulate and
coordinate the exploitation and development of all other
kinds of products or natural resources existing in these
257
waters and which are of common interest.”
2.99. The discussion concerned whether the draft wording that originally
ended this Article, which referred to natural resources “in, below, or above said
waters”, should be replaced with a reference to natural resources “existing in
258
these waters and which are of common interest” . This replacement was
agreed. The rationale for this change appears in the extract from the 1952
Minutes quoted below. It is clear from the extract that, notwithstanding the
desirability of co-operation on certain matters of common interest, each State had
i t s o w n m a r i t i m e z o n e , t h e r e s o u r c e s o f w h i c h i t w a s u l t i m a t e l y e n t i t l e d t o
exploit as it alone saw fit:
“Mr. Fernández, Delegate of Ecuador, stated that the
Declaration’s final words ‘to regulate and coordinate the
exploitation and development of all other kinds of products
or natural resources existing in, below, or above said
waters’ did not appear to express clearly the purpose of the
declaration and could lead one to believe, for instance, that
if Chile discovered a submarine coal mine or oilfield or
any other submarine resource, it should coordinate with the
other countries its course of action for exploitation
257 The original Spanish text reads as follows:
“Los Gobiernos de Chile, Ecuador y Perú expresan su propósito de
suscribir acuerdos o convenciones para la aplicación de los principios
indicados en esta Declaración en los cuales se establecerán normas
generales destinadas a reglamentar yproteger la caza y la pesca dentro de
la zona marítima que les corresponde, y a regular y coordinar la
explotación y aprovechamiento de cualquier otro género de productos o
riquezas naturales existentes en dichas aguas y que sean de interés
común.”
258 Minutes of the Second Session of the Legal Affairs Commission of the 1952
Conference, 12 August 1952 at 4.00 p.m.,Annex 34, p. 2.
90 purposes. Mr. Claro pointed out that the Article could only
r e f e r t o e x p l o i t a t i o n s t h a t w e r e o f c o m m o n i n t e r e s t , a n
argument reinforced by the words at the beginning of the
Article referring to the countries’ intention to sign
agreements or conventions, which in no case could be
deemed an obligation. Hence, any submarine resource any
of the countries wished to explore within the zone of its
jurisdiction that were of its sole and exclusive interest
could be freely exploited without the need for an
agreement with the other agreeing countries. [Mr. Claro]
added that he did not object to an amendment of the
wording that would dispel the possibility of
misinterpretations. After an exchange of ideas between all
the attendees, it was agreed to replace the words ‘in,
below, or above said waters’ for ‘existi259in these waters
and which are of common interest’.”
259 Minutes of the Second Session of the Legal Affairs Commission of the 1952
Conference, 12 August 1952 at 4.00 p.m., Annex 34, p. 2. The original Spanish text
reads as follows:
“El señor Fernández, Delegado del Ecuador, expresó que las palabras
finales de la declaración al decir ‘regular y coordinar la explotación y
aprovechamiento de cualquier otro género de productos o riquezas
naturales existentes dentro, bajo o sobre dichas aguas’, no le parecían
que expresaran con claridad el propósito de la declaración y eran
inductivas a hacer creer que, por ejemplo, si Chile descubriera una mina
de carbón submarina o un yacimiento petrolífero o cualquier otra riqueza
submarina, debiera coordinar con los demás países su acción para los
efectos de su explotación. El señor Claro observó que el artículo solo
podía referirse a aquellas explotaciones que fueran de interés común, lo
que se reforzaba todavía con las palabras iniciales del artículo que
contienen la idea del propósito de suscribir acuerdos o convenciones, a lo
cual no podía darse en ningún caso el alcance de una obligación y que,
consiguientemente, cualquier riqueza submarina que cualquiera de los
países quisiera explotar dentro de la zona de su jurisdicción y que fuera
de su único y exclusivo interés, podría ser explotada libremente sin que
para ello tuviera que concertar acuerdo alguno con los otros países
pactantes. Agregó que por su parte no objetaba un cambio de redacción
que alejara la posibilidad de una interpretación errada. Después de un
cambio de ideas en que participaron todos los presentes, se acordó
sustituir las palabras ‘dentro, bajo o sobre dichas aguas’ por las
siguientes: ‘en dichas aguas y que sean de interés común’.”
912.100. Consistent with this, at the First United Nations Conference on the
L a w o f t h e S e a , D r . G a r c í a S a y á n o f P e r u s a i d t h a t : “ E v e n
condominium was not established and each country has its own maritime zone in
front of its coastline, the Santiago agreement is in line with the historic evolution
260
towards the creation of integration among States” (emphasis added) .
Dr. García Sayán made the same point again in 1967, as Secretary-General of the
CPPS, when he said: “a condominium was not established and each country has
its own maritime zone in front of its coastline” 26.
2.101. Enforcement of agreed regulations was left to each individual State
within its own maritime zone. This is clear from Article 5 of the Agreement on
the CPPS, which was also concluded at the Santiago Conference. It reads as
follows:
“The signatory Governments shall ensure compliance with
the agreements of the Conference and the decisions of the
Permanent Commission by applying a legal system of
penalties for violations committed within their jurisdiction.
For this purpose, if their respective legislations do not
provide for such penalties, the Governments concerned
shall request the appropriate public authorities to establish
them.” 262
260 Intervention by Dr. García Sayán of Peru in the general debate in the Second
Committee of the First United Nations Conference on the Law of the Sea, 13 March
1958, in Revista Peruana de Derecho Internacional, Vol. XVIII, January-June
1958, No. 53, Annex 42, p. 51.
261 Statement made by Dr. García Sayán on 31 January 1967, in CPPS Secretary-
General, Convenios y Otros Documentos (1952-1966), Annex 239, para. 6.
262 Agreement on the Organization of the Permanent Commission of the Conference on
Exploitation and Conservation of the Maritime Resources of the South Pacific,
Santiago, signed and entered into force on 18 August 1952, 1006 UNTS 331,
Annex 48 to the Memorial, Art. 5.
92In implementing Article 5, each State in fact policed its own maritime zone. In
1972, the CPPS collected data on enforcement measures which had been taken
263
by each State over time . Peru’s enforcement of its own maritime zone,
evidenced by these data, is described at paragraph 2.143 below. The data, and the
way in which they were compiled, clearly demonstrate that Chile, Ecuador and
Peru were each arresting foreign vessels in their own maritime zone.
H. S EAWARD E XTENSION OF THE Z ONES C LAIMED IN THE SANTIAGO
D ECLARATION
2.102. Under Art ic le II o f t he Sa nt iago Dec larat io n, ea ch St at e’s c la im t o
exclusive jurisdiction and sovereignty was to extend seaward to “a minimum
distance of 200 nautical miles”. This mirrored the seaward extent of the claims in
the 1947 proclamations of both Chile 264and Peru . Chile had reserved the right
to extend its maritime claim further seaward than 200 nautical miles on the basis
of “knowledge, discoveries, studies and interests of Chile as required in the
future”266. Similarly, in its 1947 Supreme Decree Peru reserved the right to
extend its maritime zone further seaward than 200 nautical miles “in accordance
with supervening circumstances which may originate as a result of further
discoveries, studies or national interests which may become apparent in the
future”267.
2.103. That aspect of the 1947 proclamations was specifically noted by the
Special Rapporteur of the ILC on the Law of the Sea in 1950, Professor J.P.A.
263
See CPPS Secretary-General, Infracciones en la Zona Marítima del Pacífico Sur,
January 1972, Annex 240.
264 See 1947 Chilean Declaration, Annex 27 to the Memorial, Art. 3.
265
See 1947 Peruvian Supreme Decree, Annex 6 to the Memorial , Art. 3.
266 1947 Chilean Declaration, Annex 27 to the Memorial , Art. 3.
267
1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
93François. He observed that Chile and Peru “revendiquent une zone de 200 milles
marins à partir des côtes, et cette distance est susceptible d'être modifiée à tout
moment, suivant les besoins de la nation. Dans cette zone la souveraineté
268
nationale est proclamée” . The United Nations Secretariat made the same
observation, noting that Chile and Peru “établissent une zone de protection de
200 milles marins en dimension horizontale à partir du rivage, zone dont les
269
limites peuvent être d’ailleurs changées à tout moment” .
2.104. The precise seaward limit of the fisheries-rich Humboldt Current 270off
the west coast of South America was not known in 1947 or 1952, and the States
parties were preserving the possibility of extending their claims to its seaward
limit if that limit was found to be more than 200 nautical miles from shore. The
S t a t e s p a r t i e s w e r e c o n s c i o u s t h a t t h e w a t e r s a r o u n d t h e G a l á p a g o s I s l a n d s ,
which were more than 200 nautical miles from the coast of the continent, held
271
productive fisheries .
2.105. Against this background each State agreed in the Santiago Declaration
to a “minimum” claim of 200 nautical miles. No State party could unilaterally
reduce the seaward extension of its claim. The States parties agreed that each of
268 United Nations, Report of the Special Rapporteur to the ILC (2nd session of the ILC
(1950)), document A/CN.4/17, Annex 226, pp. 49-50, para. 109.
269 United Nations, Memorandum on the Regime of the High Seas submitted by the
Secretariat to the ILC (2nd session of the ILC (1950)), document A/CN.4/32,
Annex 227, p. 86, para. 143. The same point is made at p. 92, para. 192.
270
The Humboldt Current is comprised of cold Antarctic water which flows from south-
east to north-west from the southern tip of Chile to the waters off northern Peru.
From there, the current turns west, away from the Peruvian coast. This current causes
upwelling of deep ocean waters, bringing to the surface nutrients deposited in the
Pacific Ocean by the Andean rivers.
271
See Note No. 04938 of 27 June 1952 from the Minister of Foreign Affairs of Chile to
the Chilean Ambassador to Ecuador, Annex 111, p. 2; Note No. 468/51 of 7 July
1952 from the Chilean Ambassador to Ecuador to the Minister of Foreign Affairs of
Ecuador, Annex 59, para. 3.
94them could unilaterally extend its claim seaward beyond 200 nautical miles,
without any need to amend the Santiago Declaration or even to consult with the
other States parties. The 1952 Minutes confirm this:
“[T]he delegate of Chile, Mr. Benjamín Claro, said. . .any
of the three signatory countries may, as a sovereign State,
extend its maritime zone beyond the 200 miles at the time
and for the length it deems necessary or appropriate
without the need to obtain permission or consent from the
other signatory countries. Nonetheless, on account of the
common interest shared by the three signatory countries,
Chile considers that none of them may reduce the
extension of the 200-nautical-mile maritime zone without
the prior agreement of the other countries attending the
Conference. In other words, a restriction is imposed on
each country’s sovereignty in respect of reducing the zone
of jurisdiction contained in the declaration, but such
sovereignty may be freely exercised to extend the referred
jurisdictional zone as each country deems appropriate. The
Chair, His Excellency Ambassador Dr. Alberto Ulloa [of
Peru], expressed his agreement with the statements made
by Mr. Claro on behalf of the Chilean Delegation.
Mr. Fernández also expressed that, in his capacity as the
Ecuadorean delegate, he accepted the Declarat272 with the
scope explained by the delegate of Chile.”
272
Minutes of the Second Session of the Legal Affairs Commission of the 1952
Conference, 12 August 1952 at 4.00 p.m., Annex 34, p. 3. The original Spanish text
reads as follows:
“[E]l delegado de Chile, señor Benjamín Claro, expresó . . . cualquiera
de los tres países que firmarán la declaración, soberanamente, pueden en
cualquier tiempo que lo estime conveniente o necesario ampliar su zona
jurisdiccional más allá de las doscientas millas en la extensión que
juzgue adecuada sin necesidad de solicitar la venia o el acuerdo de los
otros países signatarios. Sin embargo, estando envuelto un interés común
de los tres países, Chile considera que ninguno de los países signatarios
podría disminuir la extensión jurisdiccional de las doscientas millas sin
el acuerdo de los otros países concurrentes a la Conferencia, o sea, la
952.106. The use of parallels of latitude as maritime boundaries allowed each of
the States parties to extend its maritime zone further seaward than 200 nautical
miles, without creating any overlap with the adjacent State, even if that latter
State was subsequently to extend its own maritime zone.
2.107. Peru now seeks to use the fact that the Santiago Declaration provides
for a minimum 200M seaward extension, rather than an invariable seaward limit,
273
to argue that the Declaration was “provisional” . A “provisional” instrument is
one intended to have limited duration, or which is subject to later confirmation or
change 274. The term “provisional” is inapposite here. The parties to the Santiago
Declaration agreed that each of them could unilaterally extend its maritime zone
beyond 200 nautical miles. Only in this limited sense was the breadth of the
maritime zone that each State party could potentially claim variable. That did not
mean that the entitlement of each State party to a maritime zone, or the Santiago
soberanía queda limitada para disminuir la zona de jurisdicción que
contiene la declaración, pero puede ser ampliamente ejercitada como
cada país lo estime del caso para ampliar la respectiva zona
jurisdiccional. El señor Presidente Exemo. Embajador Dr. Alberto Ulloa
[Peru], expresó que estaba conforme con lo expresado por el señor Claro
a nombre de la Delegación chilena. El Sr. Fernández expresó que como
delegado del Ecuador aceptaba la declaración con el alcance explicado
por el delegado de Chile.”
273 Memorial, para. 4.71.
274
See, e.g., Memorandum of Understanding between the Government of the Republic
of Indonesia and the Government of Australia Concerning the Implementation of a
Provisional Fisheries Surveillance and Enforcement Arrangement, signed at Jakarta
on 29 October 1981 (entered into force on 1 February 1982), in J. I. Charney and
L. M. Alexander (eds), International Maritime Boundaries, Vol. II, 1993, Annex 11,
pp. 1238-1243; Agreement on Provisional Arrangements for the Delimitation of the
Maritime Boundary between the Republic of Tunisia and the People’s Democratic
Republic of Algeria, signed at Algiers on 11 February 2002, 2238 UNTS 208,
Annex 27, Arts 1 and 4; Interim Accord between Greece and the Former Yugoslav
Republic of Macedonia, signed at New York on 13 September 1995, 1891 UNTS 3
(entered into force on 13 October 1995), Annex 22, Art. 23(2).
96Declaration in which such entitlement is to be found, were provisional in any
way. The entitlement to a potential maritime zone greater than 200M was treated
as a firm, perfected right on the international-law plane, which could be acted
upon unilaterally by any of the States parties. None of the other States parties
could oppose action upon that entitlement; nor was the entitlement contingent
upon further approval by the other States parties.
Section 5. The Alta Mar Area Now Claimed by Peru
2.108. In its Memorial, Peru requests the Court to declare that its “maritime
2
dominion” also includes a 28,356 km area of the high seas that lies: (a) south of
the parallel of latitude that passes through the point at which the land boundary
reaches the sea; (b) seaward of the outer limit of Chile’s continental shelf and
EEZ; and (c) within 200 nautical miles of the nearest point of Peru’s coast
measured using an envelope of arcs of circles. Peru calls this the “outer
275
triangle” . It is depicted in Figure 2 (and in Figure 7.1 (page 245) of Peru’s
Memorial).
2.109. Peru formulates its claim to this alta mar area separately from its
claim to an area of 38,324 km that lies within Chile’s maritime zones. Yet under
the operative delimitation instrument, which is the Santiago Declaration, no such
differentiation can be made. The Santiago Declaration established a single lateral
limit for all maritime zones, both actual and prospective, of the States parties,
whether or not the adjacent State claims an abutting maritime zone at all, or a
zone with different jurisdictional content.
275
Memorial, Chap. VII.
97 A. P ERU ’S INCONSISTENT S UBMISSIONS
2.110. Peru’s first submission requests the Court to declare that the
delimitation between the respective maritime zones of the Parties is a line
“equidistant from the baselines of both Parties, up to a point situated at a distance
276
of 200 nautical miles from those baselines” . In its second submission Peru
asks the Court to declare that: “Beyond the point where the common maritime
border ends, P e r u i s e n t i t l e d t o e x e r c i s e e x c l u s i v e s o v e r e i g n r i g h t s o v e r a
maritime area lying out to a distance of 200 nautical miles from its baselines.”
277
(emphasis added) This second submission is Peru’s claim toa tlte mar area
278
as a separate demand. Peru asks the Court to grant its first submission “and”
its second one.
2.111. As already noted 279, Peru’s two submissions are logically inconsistent
with each other. If the boundary were an equidistance line (which it is not), there
could not be any “outer triangle”. The respective maritime zones of the Parties
would be coterminous at the end of the equidistance line, and that line would
give to Peru the alta mar area 280. By definition, no separate maritime zone would
281
arise for Peru “[b]eyond the point where the common maritime border ends” .
Yet that is what Peru asks the Court to award in its second submission. Peru’s
presentation of its claim to thealta mar area can logically be predicated only on
the existence of an agreed delimitation using a parallel of latitude 28.
276
Memorial, p. 275.
277 Ibid.
278
Ibid.
279 See paras 1.12-1.16 above.
280
See para. 2.108 above; and cf. Figure 7.1 of the Memorial (p. 245).
281 Memorial, p. 275.
282
Ibid., p. 245, Figure 7.1; and p. 265, Figure 7.5.
982.112. Peru says that itsalta mar claim is made “independently of” 283the
remainder of its claim. Logically, however, Peru’s claim tothe alta mar area
must be regarded as an alternative to Peru’s primary claim to an equidistance-
line boundary. The alta mar c l a i m a s s u m e s t h a t t h e C o u r t w i l l d e c l a r e t h e
maritime boundary to be the parallel of latitude, though only up to 200M from
Chile’s basepoints. As will be seen presently, even this modified position on the
existence of an agreed boundary would be wrong.
B. T HE AGREED D ELIMITATION A PPLIESR EGARDLESS OF DISTANCE FROM THE
COAST
2.113. The parties to the Santiago Declaration asserted “a minimum distance
284
of 200 nautical miles” . As discussed at paragraphs 2.102-2.107 above, any of
the States parties could “as a sovereign State, extend its maritime zone beyond
the 200 miles at the time and for the length it deems necessary or appropriate
without the need to obtain permission or consent from the other signatory
countries.”85
2.114. Using parallels of latitude as maritime boundaries meant that if a State
party unilaterally extended its zone seaward, the parallel of latitude would
continue to operate as a lateral limit, regardless of whether the adjacent State
claimed any abutting maritime zone of “sovereignty” or any type of
“jurisdiction” on the other side of the parallel of latitude. In this way, if one State
extended its claim further than 200 nautical miles, no issue of overlap could arise
with the adjacent State. The adjacent State could at any time also extend its own
283 Memorial, para. 7.3.
284
Santiago Declaration, Annex 47 to the Memorial, Art. II.
285 Minutes of the Second Session of the Legal Affairs Commission of the
1952 Conference, 12 August 1952 at 4.00 p.m., Annex 34, p. 3.
99zone, in which case the extended zone would continue to be laterally limited by
the same parallel of latitude.
2.115. As a result, in the Santiago Declaration Peru precluded itself from
exercising any sovereign rights or jurisdiction south of the parallel of latitude
passing through the point where the land boundary of the Parties reaches the sea,
regardless of distance from the nearest point on the coast.
2.116. Consistently with the Santiago Declaration, Peru has never purported
to exercise any jurisdiction in the alta mar area. In Chapter VII of its Memorial,
which is devoted solely to thealta mar area, Peru cites two examples in which it
claims to have “firmly maintained its position”. T h e s e e x a m p l e s r e l a t e t o
arrests of vessels. Neither of the arrests cited actually occurred in the alta mar
area. They occurred off the coast of the northern part of Peru, and are therefore
irrelevant to Peru’s new claim to the alta mar a r e a s o u t h o f t h e p a r a l l e l o f
latitude passing through the point where Peru’s land boundary with Chile reaches
the sea.
C. T HEA GREED D ELIMITATION APPLIESR EGARDLESS OF THE M ETHOD USED TO
M EASURE THE OUTER LIMIT OF S TATE’SM ARITIME ZONE
2.117. As noted above at paragraphs 2.31-2.34, in 1947 both Chile and Peru
measured the seaward limits of their maritime zones using a line parallel to the
coastline at a distance of 200 nautical miles from the coast. Chile declared that
the area subject to its claim was that “within the perimeter formed by the coast
and the mathematical parallel projected into the sea at a distance of 200 nautical
287
miles from the coasts of Chilean territory. Peru claimed the “area covered
286
Memorial, para. 7.33.
287 1947 Chilean Declaration, Annex 27 to the Memorial , Art. 3.
100b e t w e e n t h e c o a s t a n d a n i m a g i n a r y p a r a l l e l l i n e t o i t a t a d i s t a n c e o f t w o
hundred (200) nautical miles” 288. Article 3 of the 1947 Peruvian Supreme Decree
was explicit that the seaward distance of 200 nautical miles was to be “measured
following the line of the geographical parallels”. Using that method of
m e a s u r e m e n t , t h e o u t e r l i m i t o f P e r u ’ s m a r i t i mtracéz o n e w a s a f o r m o f
parallèle following the sinuosities of the coastline. Every point of the outer limit
was exactly 200 nautical miles from the point on the coast due east of it,
following the line of the parallel of latitude corresponding to that point on the
coast.
2.118. As agreed in the Santiago Declaration, the lateral delimitation between
the Parties used the geographical parallel of latitude passing through the point
where their land boundary reaches the sea. The method adopted by Peru and
Chile to measure the seaward limit, combined with the use of a parallel of
latitude as the lateral boundary, meant that the extreme south-westerly point of
the Peruvian 200M maritime zone was exactly the same point as the extreme
north-westerly point of the Chilean 200M zone. This is point X in Figure 8,
which illustrates the seaward extent of the maritime zones claimed by the Parties
when they delimited their maritime boundary in 1952. There was no overlap,
there was no cut-off and there was no “outer triangle”.
2.119. Since Peru began using the envelope-of-arcs-of-circles method to
measure the seaward limit of its maritime zone, the south-western extremity of
Peru’s zone does not abut the Chilean continental shelf or EEZ on the other side
of the parallel of latitude. In its Memorial Peru states that its 1955 Supreme
Resolution adopted an “arcs of circles” methodology to measure the outer limit
of its maritime claim 289. The basis for this suggestion is that the 1955 Supreme
288 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
289
See Memorial, para. 4.112.
101Resolution referred to “a line parallel to the Peruvian coast and at a constant
distance of 200 nautical miles from it” 29. If Peru is right, then that only weakens
its case, because it confirms the self-evident conclusion that the lateral boundary
stands regardless of the methodology that each State party adopts in measuring
the outward reach of its maritime zone. The lateral boundary is an agreed limit
set forth in an international treaty, which cannot be defeated or qualified by one
State’s choice, at any given time, concerning its preferred methodology for
seaward projection. At the time of the 1955 Supreme Resolution, there was no
suggestion by Peru that the Santiago Declaration lateral boundary would not
bound Peru’s maritime zone; in fact, there was every indication that it did.
2.120. Nevertheless, the terms of the 1955 Supreme Resolution do not
indicate an envelope-of-arcs-of-circles methodology. An outward limit
comprised of an envelope of arcs of circles would not produce “a line parallel to
the coast”. This is apparent from the comparison of the two different methods
depicted in Figure (9 and Figure 4.1 of the Memorial). Peru’s 1955 Supreme
Resolution is discussed in detail in Section 3.A of Chapter III. The relevant point
here is that the Resolution is in fact silent on how the “constant distance of 200
nautical miles” from the coast was to be measured. The Resolution states in its
recitals that it implements the 1947 Supreme Decree and the Santiago
Declaration. The 1947 Supreme Decree is explicit that the 200 nautical miles
seaward projection is to be “measured following the line of the geographical
291
parallels”. That methodology certainly gave a seaward limit that was “parallel
to the coast”, as envisaged in the 1955 Supreme Resolution. The natural meaning
of the 1955 Supreme Resolution is that, like the 1947 Supreme Decree, it used
the tracé parallèle method.
290 1955 Supreme Resolution, Annex 9 to the Memorial , first operative paragraph.
291
1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
102 Figure 9
Coompparison of the outer imiitsof maariimee zoneesoffChhileannd Peru using tracé parallèle and an envelope of arcs of circles
75°
Maritime boundaries
Ecuador Tracé parallèle of mainland coast projected 200M along
parallels of latitude (ignores straight baselines)
200M limits drawn by envelope of arcs of circles from
the mainland baselines
Straight baselines
Datum: WGS84 Projection: Mercator.
Brazil
Peru
Bolivia
15° 15°
Pacific Ocean
B A
Chile
Argentina
75°
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the
Sea Consultancy2.121. Peru now also asserts that its Petroleum Law of 1952 used the
envelope-of-arcs-of-circles method to measure the outward limit of Peru’s
continental shelf. The Petroleum Law does not say so. It refers to “an imaginary
line drawn seaward at a constant distance of 200 miles from the low-water line
292
along the continental coast” . It does not say that it is to be a constant distance
in every direction. The 1947 Supreme Decree and the 1955 Supreme Resolution,
which respectively preceded and followed the 1952 Petroleum Law, both used a
tracé parallèle m e t h o d i n w h i c h a l i n e p a r a l l e l t o t h e c o a s t w a s c r e a t e d b y
measuring a constant distance of 200 nautical miles along the parallels of
latitude. In a publicly available letter from Peru’s Ministry of Defence to Peru’s
Ministry of Foreign Affairs in November 2000, the Ministry of Defence
acknowledged that both the Petroleum Law of 1952 and the Supreme Resolution
of 1955 “measur[ed] the 200 miles following the parallels of the points of the
coast” 29.
2.122. Whatever view may be taken as to the method that Peru was using in
the 1950s, or today, ultimately the method affects the seaward extent of Peru’s
“maritime dominion” but it does not and cannot affect the lateral boundary with
Chile. Peru’s 1955 Supreme Resolution states that “[i]n accordance with
clause IV of the Declaration of Santiago, the said line [the seaward limit of the
maritime zone] may not extend beyond that of the corresponding parallel at the
294
point where the frontier of Peru reaches the sea” (emphasis added). Peru
292
Law No. 11780 of 12 March 1952: Petroleum Law, Annex 8 to the Memorial,
Art. 14.
293 “Apreciaciones a Convención de las Naciones Unidas sobre el Derecho del Mar”,
appearing as Annex (1) to Letter No. 4626 SGMD-D of 21 November 2000 from the
Minister of Defence of Peru to the Minister of Foreign Affairs of Annex 189,
para. (m). The Minister of Defence considered that this method of measurement was
an “error”, which could be corrected by ratifying UNCLOS and by the enactment of
new domestic legislation.
294 1955 Supreme Resolution, Annex 9 to the Memorial , second operative paragraph.
103understood that the parallel of latitude agreed in Article IV of the Santiago
Declaration, and incorporated by Peru in the 1955 Supreme Resolution,
represented a limit to the south of which Peru could make no claim.
2.123. To conclude on this point, the Santiago Declaration was not
prescriptive about the method to be used to measure the seaward limit of each
State’s maritime zone. Indeed, the seaward limit could be extended farther than
200M, provided always that the boundary parallel was respected. Peru says that
its maritime claim is now made on an envelope-of-arcs-of-circles basis. Chile
does not object to that claim in so far as it concerns areas only to the north of the
parallel of latitude passing through Hito No. 1. The change in the way in which
Peru measures the outer limit of its maritime zone means that northward of the
Hito No. 1 parallel of latitude Peru enjoys a larger maritime space than it did in
1952 when it used the tracé parallèle method. This can be seen from Figure 9.
Point A on that diagram is the point at which the outer limits of the maritime
zones of the two States met when both ust eractéearallèle method. Those
outer limits are represented by the red line. Point B represents the point at which
Peru’s outer limit, measured using an envelope of arcs of circles, meets the
parallel of latitude passing through Hito No. 1. The envelopes of arcs of circles
now adopted by the two States are depicted by the blue line. But however far
Peru extends its “maritime dominion” seaward, by whatever method, its claim is
limited in the south by the agreed parallel of latitude.
D. T HE ALTA MAR A REA IS NOT AUNIQUE SITUATION
2.124. There are other cases where one State’s entitlement or claim is cut
short by a delimitation line even though another State does not have the same
type of maritime zone, or any zone at all, on the other side of that line. Such
situations can arise in delimitations which are not made fully in accordance with
a line of equidistance.
1042.125. Lines of this kind have been both determined by international
295
tribunals and agreed by States. Notably, such a line was agreed between
Argentina and Chile in 1984. Two segments of that delimitation line follow
meridians of longitude, and the segment between them follows a parallel of
latitude. In that delimitation, Chile conceded an area almost as lara gltaas the
mar area now claimed by Peru, to which Chile would otherwise have been
entitled by application of a 200M distance criterion 296. The sketch-map at
Figure 10 illustrates the position.
E. T HE PRESENCIAL S EA ISIRRELEVANT TO THIS C ASE
2.126. Peru asserts in Chapter VII of its Memorial that Chile’s presencial sea
somehow interferes with Peru’s alleged sovereign rights in the alta mar area.
Never before has Peru expressed any concern about the presencial sea. The
presencial sea is of no significance for the lateral boundary between the Parties.
Peru’s present claim to an area of high seas south of the parallel of latitude of
Hito No. 1 is excluded by the agreement of the Parties in the Santiago
Declaration. It is not excluded by the presencial sea. Nevertheless, for the sake of
completeness a brief account of the presencial sea is provided here.
2.127. The presencial sea was described in a 1991 amendment to Chile’s
General Law on Fisheries and Aquaculture as–
295
See, e.g., The Grisbådarna Case (Norway v. Sweden), Award, 23 October 1909,
United Nations Reports of International Arbitral Awards (RIAA), Vol. XI, p. 147;
and Grisbådarna: primary boundary lines proposed by Sweden and Norway to the
Tribunal and the boundary established by the Tribunal, Figure submitted by the
United States in Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), I.C.J. Pleadings, Vol. VIII, Map No. 30 (with
annotations added by Chile), Annex 217.
296 See Treaty of Peace and Friendship between Chile and Argentina, signed at Vatican
City on 29 November 1984, 1399 UNTS 89 (entered into force on 2 May 1985),
Annex 15, Art. 7.
105 “that portion of the high seas, existing for the international
community, between the limit of our continental exclusive
economic zone and the meridian which, crossing through
the western border of the continental shelf of Easter Island,
extends from the parallel of boundary marker No. 1 of the
international border line separating Chile and Peru, to the
South Pole” . (Emphasis added.)
Chile has never received any protest from Peru concerning this legislation.
2.128. As the 1991 Law makes clear, the presencial sea is an area of high
seas. The alta mar area is also part of the high seas. Chile and Peru, and all other
members of the international community, have equal access to this area.
2.129. The concept of the presencial sea is further explained in Chile’s
Defence White Book of 2002. The presencial sea–
“expresses the wish [of Chile] to have a presence in this
area of high seas for the purpose of projecting maritime
interests with respect to the rest of the international
community, monitoring the environment and preserving
marine resources, wi298 unrestricted observance of
International Law” . (Emphasis added.)
2.130. UNCLOS expressly provides for coastal States to take measures in
areas of the high seas adjacent to their EEZ concerning the conservation and
299 300
management of straddling fish stocks , highly migratory species and marine
297
Law No. 19,080 of 28 August 1991, Amendment to Law No. 18,892 General Law on
Fisheries and Aquaculture (the 1991 Law), Annex 38 to the Memorial, Art. 1.
298 Ministry of National Defence of Chile, Libro de la Defensa Nacional de Chile, 2002,
Annex 153, p. 32.
299
See UNCLOS, Art. 63(2).
300 Ibid., Art. 64.
106 Figure 10
Alta mar area arising from the agreed maritime boundary between Chile an
d Argentina
78°W 75°W 72°W 69°W 66°W 63°W
54°S 54°S
Chile Argentina
57°S 57°S
Alta mar
area 26,2000 km²
Maritime boundary
200M limits
Alta mar area not claimed by Chile
Datum: WGS84 Projection: Mercator
60°S 60°S
78°W 75°W 72°W 69°W 66°W 63°W
The boundary is depicted according to the Treaty of Peace and Friendship
between Chile and Argentina, signed at Vatican City on 29 November 1984
, 1399 UNTS 89 (entered into force 2 May 1985).
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the
Sea Consultancy 301
mammals in the circumstances set forth in the relevant articles. The right of all
States for their nationals to engage in fishing on the high seas is, as Article 116
of UNCLOS provides, “subject to. . .the rights and duties as well as the interests
of coastal States provided for, inter alia, in article 63, paragraph 2 and articles 64
to 67”.
2.131. Peru, too, takes such measures. Article 7 of Peru’s General Law on
Fisheries of 1992 states that the regulations there were adopted–
“to [ensure] the conservation and rational exploitation of
the hydrobiological resources in jurisdictional waters, can
be applied beyond 200 nautical miles, to those multizonal
resources that migrate to adjacent waters or that proceed
from these towards the coast due to their feeding
a s s o c i a t i o n w i t h o t h e r m a r i n 302 e s o u r c e s o r d u e t o t h e i r
correspondence to mating or breeding habitats.”
2.132. The Agreement on the Protection of the Marine Environment and the
Coastal Area of the South-East Pacific, which was concluded under the aegis of
the CPPS and which came into force in 1986 for Chile and 1988 for Peru,
provides in Article 1 that:
“The sphere of application of this Agreement shall be the
maritime area and the coastal area of the South-East
Pacific within the maritime zone of sovereignty and
jurisdiction of the High Contracting Parties up to the 200-
mile limit and, beyond that zone, the high seas up to a
301 See UNCLOS, Art. 65.
302 Law No. 25977 of 7 December 1992, Annex 18 to the Memorial, Art. 7. The term
“jurisdictional waters” is frequently used in Chilean and Peruvian legislation, as well
as in the correspondence between the naval and maritime authorities of the two
States. Although not defined, it obviously means the maritime area in which each
State exercises sovereignty and/or jurisdiction.
107 distance within which pollution of the high seas may affect
that area.” 303 (Emphasis added.)
Article 3 of that Agreement imposes an obligation on the High Contracting
Parties “either individually or through bilateral or multilateral cooperation” to
“endeavour” to “adopt appropriate measures. . .in order to prevent, reduce and
control pollution of the marine environment and coastal area of the South-East
Pacific and to ensure appropriate environmental management of natural
resources.” 304
2.133. Finally, UNCLOS imposes certain duties that require Chile to
maintain a presence on parts of the Pacific Ocean beyond its maritime zones.
These include the duty to “co-operate to the fullest possible extent in the
repression of piracy on the high seas or in any other place outside the jurisdiction
305
of any State” , and to “promote the establishment, operation and maintenance
of an adequate and effective search and rescue service regarding safety on and
over the sea and, where circumstances so require, by way of mutual regional
arrangements co-operate with neighbouring States for this purpose” 306.
2.134. To conclude on this point, the presencial sea is irrelevant to this case.
What prevents Peru’s claim to thealta mar area is the lateral delimitation agreed
303
Agreement on the Protection of the Marine Environment and the Coastal Area of the
South-East Pacific, signed at Lima on 12 November 1981, 1648 UNTS 3 (entered
into force on 19 May 1986), Annex 12, Art. 1. Activities beyond their 200M limits
are also envisaged by Chile and Peru in the Protocol on the Programme for Regional
Study of the Phenomenon “El Niño” in the South-East Pacific, signed at Callao on
6 November 1992, Annex 20, Art. II.
304
Agreement on the Protection of the Marine Environment and the Coastal Area of the
South-East Pacific, signed at Lima on 12 November 1981, 1648 UNTS 3 (entered
into force on 19 May 1986), Annex 12, Art. 3 (1).
305 UNCLOS, Art. 100.
306
Ibid., Art. 98(2).
108in the Santiago Declaration. The effect of that delimitation is that, regardless of
any distance criterion, Peru’s “maritime dominion” is precluded from wrapping
around Chile’s EEZ and subsuming the international waters and airspace beyond
the outer limit of Chile’s EEZ.
Section 6. Benefits of the Santiago Declaration to Peru
2.135. Peru canno t rely o n t he Sa nt iago Dec larat io n fo r it s mar it ime zo ne
whilst seeking to disavow the delimitation agreed in that treaty. For that reason it
is appropriate to outline the considerable benefits that the Santiago Declaration
has brought to Peru, along with Chile and Ecuador.
2.136. The parties to the Santiago Declaration gained considerable economic
and political benefits from their agreement. Peru’s claim to exclusive sovereignty
and jurisdiction over the ocean to a minimum distance of 200 nautical miles off
its coast facilitated its development of one of the world’s largest fisheries
industries.
2.137. The size of Peru’s catch peaked in 1970, and was then the world’s
largest, at 12,467,900 metric tonnes. That was more than five million tonnes (or
approximately 72%) greater than the nearest rival, Japan, and more than ten
million tonnes (or approximately 700%) greater than the total catch of the United
States of America 30.
2.138. From 1960 to 1970, the magnitude of Peru’s catch varied between
12.9% and 23.7% of the world’s total catch. By contrast, in 1952 Peru’s catch
had been just 106,600 tonnes, which was a fraction of one percent of the world’s
307
See Food and Agriculture Organization ( FAO), Statistical Database, World Catch in
1970 by Country, <http://www.fao.org/fishery/statistics/global-aquaculture-
production/query/en> accessed on 28 August 2009, Annex 320.
109 308
total catch . The variation in Peru’s production over time is depicted in the
309
following chart .
2.139. The size of Peru’s catch remains significant to this day. It is currently
310
the second largest in the world, as the following chart shows .
308 See FAO, Statistical Database, World Catch by Year and by Country,
<http://www.fao.org/fishery/statistics/global-aquaculture-production/que…;
accessed on 10 November 2009, Annex 320.
309 FAO, Statistical Database, Peru – Production by Year, <http://www.fao.org/fishery/
countrysector/FI-CP_PE/3/en> accessed on 4 February 2010.
310
FAO, The State of World Fisheries and Aquaculture 2008, <ftp://ftp.fao.org/docrep/
fao/011/i0250e/i0250e.pdf> accessed on 4 February 2010, p. 11.
1102.140. Chile’s catch also became significant over the same period, although it
has always been smaller than Peru’s. In 1952 Chile’s catch was just 95,300
tonnes 311. By 1970 it amounted to 1,101,200 tonnes, or approximately 8% of
Peru’s catch of the same year. Chile currently has the sixth-largest catch in the
world, as shown in the chart at paragraph 2.139 above.
2.141. The benefits for Peru from the Santiago Declaration were not limited
to fisheries. In the Santiago Declaration the States claimed “exclusive
sovereignty and jurisdiction over the seabed and the subsoil thereof” 312. Peru has
exercised this sovereignty and jurisdiction in respect of the continental shelf,
notably for exploration and extraction of hydrocarbons in the northern part of its
maritime dominion. For example, in 1973 Peru produced 25.7 million barrels of
311
FAO, Statistical Database, Chile Production by Year, <http://www.fao.org/fishery/
statistics/global-aquaculture-production/query/en> accessed on 28 October 2009,
Annex 320.
312 Santiago Declaration, Annex 47 to the Memorial, Art. III.
111oil, 48.4% of which came from its continental shelf 31. In 2008 Peru’s production
314
was 28 million barrels, 17.1% of it from the continental shelf .
2.142. Peru has acknowledged the importance of the Santiago Declaration
maritime-zone entitlement to Peru’s economy in general and its fishing industry
in particular. In 1970 the Peruvian Foreign Minister, Major-General Edgardo
Mercado Jarrín, gave a speech to the diplomatic corps accredited to Peru titled
“Maritime Sovereignty: Basis for the Peruvian Position” in which he explained
that:
“Since 1964, Peru has become the first fishing nation in
the world due to the volume of its catch. In 1968, of the 64
million tons of production worldwide, of which 14 were
produced by Latin-American countries, Peru caught 10.4
million (16.7%), of which 2.4 million were exported for a
value of 232 million dollars, or 30% of the total foreign
currency brought in from national exportation.
Although currently this production comes almost entirely
from the harvesting of anchovy, which is reserved for
Peruvian fishermen, this reservation has been possible
thanks to the exercise of national jurisdiction. If Peru had
not extended its sovereignty beyond 3 or 12 miles, foreign
boats would have been able to exploit that resource as they
wish, destroying the local fishing industry. The damage to
the economy and national income would be disastrous and
would impact on the well-being of the population, whose
313
See E. Ferrero Costa, “Fundamento de la Soberanía Marítima del Perú Hasta las 200
Millas”, Pontificia Universidad Católica del Perú, Derecho, No. 32, 1974,
Annex 261, p. 47.
314 See Perupetro, Estadística Petrolera 2008, <http://www.perupetro.com.pe/
downloads/Estadistica%202008.pdf>, Annex 318.
112 low standard of living is the country’s most pressing
problem.” 315
2.143. The exclusion of unauthorized foreign fleets was to facilitate the
development of the fishing industries of Chile, Ecuador and Peru. Peru policed
the exclusionary aspect of its claim. For example, between 1961 and 1969, Peru
was reported to have seized 74 vessels flying the flag of the United States of
316
America . The CPPS compiled non-exhaustive statistics on national
enforcement actions in the respective maritime zones of Chile, Ecuador and Peru
317
over the period 1952-1971 . For that period, the CPPS reported 53 infractions
of the Peruvian maritime zone by foreign vessels 318, of which 34 resulted in the
imposition of a fine by the Peruvian Government 31. The fines generated more
320
than US$3 million in revenue for Peru and, more importantly for present
purposes, were an exercise of Peruvian sovereignty enforcing Peru’s control over
its “maritime dominion” and facilitating the development of the Peruvian fishing
industry to its present strength.
2.144. A n e a r l y a n d w e l l - k n o w n e x a m p l e o f P e r u v i a n e n f o r c e m e n t o f i t s
“maritime dominion” vis-à-vis foreign vessels was the incident involving five
vessels in the Onassis whaling fleet. Most of the ships were flying the
Panamanian flag and were arrested more than 100M off the Peruvian coast in
315
E. Mercado Jarrín, “Maritime Sovereignty: Basis for the Peruvian Position”, speech
delivered on 11 May 1970 in Lima at a conference organized by the Peruvian
Ministry of Foreign Affairs for the Diplomatic Corps accredited to Peru, Annex 168.
316 See T. Wolff, Peruvian-United States Relations over Maritime Fishing, Law of the
Sea Institute University of Rhode Island,Occasional Paper No. 4, 1970, Annex 315,
p. 8 (endnote 18, citing The Los Angeles Times, 15 February 1969).
317 See CPPS Secretary-General, Infracciones en la Zona Marítima del Pacífico Sur,
January 1972, Annex 240.
318
Ibid., p. 49.
319 Ibid.
320
Ibid., p. 55.
1131954. The Peruvian Government knew in advance that the ships intended to
engage in whaling and fishing off the Peruvian coast 321. A note of 13 August
1954 to Panama’s Minister of Foreign Affairs gave notice that Peru’s
sovereignty and jurisdiction required vessels of all nations to abstain from
322
hunting or fishing within its maritime zone without authorization . Peru
explained that its maritime claim was to be found in its 1947 Supreme Decree,
the Santiago Declaration and the Petroleum Law of 1952 323.
2.145. When the Onassis ships nonetheless proceeded to engage in whaling
and fishing without authorization, they were arrested by the Peruvian Navy, with
assistance from the Peruvian Air Force. At the time of the arrests Peru issued an
official communiqué stating that the Onassis vessels had “invaded Peruvian
territorial waters” 324. The next day proceedings were commenced against the
masters of the vessels before the Harbour Master of Paita. In a well-publicized
decision of 26 November 1954 the Harbour Master fined the vessels and their
325
owners for “invading Peruvian jurisdictional waters without a permit” . The
Harbour Master expressly relied on the 1947 Peruvian Supreme Decree and the
Santiago Declaration of 1952 as bases for his decision 326. A few months later, the
Peruvian Government addressed notes to Chile and Ecuador, formally bringing
to the attention of the other States parties to the Santiago Declaration the
321 See Note No. 5-20-M/18 of 13 August 1954 from the Peruvian Embassy in Panama
to the Minister of Foreign Affairs of Panama, reproduced in theMemoria of th e
Minister of Foreign Affairs of Peru (28 July 1954 – 28 July 1955), Annex 61.
322 Note No. 5-20-M/18 of 13 August 1954 from the Peruvian Embassy in Panama to
the Minister of Foreign Affairs of Panama, reproduced in the Memoria o f t h e
Minister of Foreign Affairs of Peru (28 July 1954 – 28 July 1955), Annex 61.
323
Ibid.
324 Official Communiqué of 16 November 1954 by the Directorate-General of
Information of Peru, Annex 162.
325
Decision of the Harbour Master of Paita of 26 November 1954 in the matter of the
offences in the Maritime Zone of Peru, Annex 163.
326
Ibid.
114decision in the Onassis matter together with two other decisions enforcing Peru’s
327
maritime zone .
2.146. Dr. García Sayán of Peru referred to the enforcement of Peru’s
maritime claim in the Onassis case in his explanation of that claim at the First
United Nations Conference on the Law of the Sea in 1958. He said:
“Modern fishing enterprises had become so vast and
efficient and had so great a capacity for destruction that the
concepts of the past were no longer applicable. That was
why in 1954 the Peruvian authorities had detained the
larger part of a foreign-owned whaling fleet consisting of a
factory ship and fifteen other vessels capable of capturing
15,000 whales per season. Such fleets from other
continents had no right to prejudice the coastal st328s,
which were by nature entitled to those resources.”
2.147. On the political plane, the Santiago Declaration was the basis of
regional solidarity and mutual political support in advocating international
acceptance of the maritime claims first made by Chile and Peru in 1947, which
had met with protest from several States.
2.148. Throughout the lengthy international negotiations that ultimately led to
the acceptance of the EEZ and a distance-based criterion for the continental shelf
in UNCLOS, the Santiago Declaration was relied upon by the CPPS States as a
multilateral precedent supporting the legitimacy of extended maritime zones. To
take one of many examples, Chile, Colombia (which had by then become a
327 Note No. 5-4-M/29 of 20 April 1955 from the Peruvian Embassy in Chile to the
Ministryof Foreign Affairs of Chile, Annex 69.
328 United Nations, Summary Record of the 9th meeting of the Second Committee of the
U n i t e d N a t i o n s C o n f e r e n c e o n t h e L a w o f t h e S e a , 1 3 M a r c h 1 9 5 8 , 3 . 1 5 p . m . ,
document A/CONF.13/40, Annex 101 to the Memorial, p. 18, para. 38.
115member of the CPPS), Ecuador and Peru sent a note verbale to the President of
the Third Conference on the Law of the Sea transmitting the Cali Declaration of
1981. The Cali Declaration stated that–
“the purposes and principles stated in the Santiago
Declaration of 18 August 1952 were the forerunners of the
policy of decolonizing the seas and reformulating the law
of the sea, with a view to the establishment of an equitable
and just legal system that will take particu329 account of
the interests of the developing countries” .
2.149. Although Peru now seeks to unsettle its maritime boundary with Chile,
the existence of that agreed boundary has in itself been a benefit to Peru. The
Court’s remark in the Case concerning the Temple of Preah Vihear is also
apposite in the present case: Peru has enjoyed “the benefit of a stable frontier” . 330
Peru has enforced that frontier against foreign vessels and aircraft and has
controlled its cartographic depiction, as described in Chapter III below. Peru
cannot now resile from one aspect of the Santiago Declaration, namely its
maritime boundary with Chile, after having obtained those benefits from the
Declaration as a whole.
329 Note verbale of 9 March 1981 from the representatives of Chile, Colombia, Ecuador
and Peru to the President of the Conference, transmitting the Cali Declaration of
24 January 1981, translated by the United Nations, document A/CONF.62/108,
Annex 49, p. 93. Also see the Letter of 20 August 1979 from the heads of delegation
of Chile, Colombia, Ecuador and Peru to the President of the Third United Nations
Conference on the Law of the Sea, translated and reproduced by the United Nations,
document A/CONF.62/85, Annex 46.
330 Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 32.
116 Section 7. Contemporaneous International Law: The Work of the ILC
and the North Sea Continental Shelf Cases
2.150. As noted, delimitation of maritime zones of 200 nautical miles or more
was a novel issue in 1952. Delimitation was itself a nascent discipline, its
importance increasing as more extensive maritime zones were becoming
gradually current in international practice. Viewed in light of the stage of
development of the law at the time, it is unremarkable that in the Santiago
Declaration the States parties chose to use a parallel of latitude as their maritime
boundary. Equidistance had no special status as a methodology of delimitation.
In the North Sea Continental Shelf cases in 1969 the Court observed that a
“striking feature” of the “early and middle stages” of the consideration by the
ILC of delimitation of the continental shelf by adjacent States, which lasted from
1949 to 1956, was that–
“not only was the notion of equidistance never considered
from the standpoint of its having a priori a character of
inherent necessity: it was never given any special
prominence at all, and certainly no priority. . . It was not in
fact until after the matter had been referred to a committee
of hydrographical experts, which reported in 1953, that the
equidistance principle began to take precedence over other
possibilities”33.
2.151. Discussion of maritime delimitation in the ILC proceeded on the basis
that delimitation was to be effected by agreement and that existing agreements
332
were to be preserved . T h e s e p a r a m o u n t r u l e s r e m a i n g o o d l a w t o d a y , a s
331 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 34, para. 50.
332 See, e.g., United Nations,Report of the ILC to the United Nations General Assembly
(2nd session of the ILC (1950)), document A/CN.4/34, Annex 228, para. 199;
United Nations, Report of the ILC to the United Nations General Assembly (3rd
session of the ILC (1951)), document A/CN.4/48 and Corr. 1&2, “Draft Articles on
the Continental Shelf and Related Subjects”, Draft Art. 7,Annex 230, p. 143; United
117explained at paragraphs 4.70-4.80 below. The discussion in the ILC concerned
the applicable rules in the absence of any agreement, and that discussion may be
helpful to bear in mind in appreciating the general context in which the Parties
were operating in the late-1940s to the mid-1950s.
2.152. In its first report to the United Nations General Assembly on its work
o n t h e l a w o f t h e s e a , i n 1 9 5 0 , t h e I L C s t a t e d t h a t “ w h e r e t w o o r m o r e
neighbouring states were interested in the submarine area of the continental shelf
outside their territorial waters, boundaries should be delimited” 333. The ILC did
not propose any specific guidelines or rules for such delimitations. In his first
report to the ILC on the law of the sea, also in 1950, Special Rapporteur François
referred to the uncertainty concerning “la répartition entre deux Etats dans le cas
où le plateau continental leur est commun” and added: “toute directive pour la
délimitation faisant défaut, les proclamations se bornent à renvoyer cette
question à des accords entre les pays intéressés” 334. This was consistent with the
Truman Proclamation on the continental shelf of 1945, which was explicitly
mentioned as a precedent in both the Chilean and the Peruvian unilateral
335
proclamations of 1947 . The Truman Proclamation postulated that, in the case
of adjacent continental shelves, “the boundary shall be determined by the United
Nations, Report of the ILC to the United Nations General Assembly (5th session of
the ILC (1953)), document A/CN.4/76, “Chapter III on the Regime of the High
Seas”, Draft Art. 7, Annex 235, p. 213; United Nations, Report of the ILC to the
United Nations General Assembly (8th session of the ILC (1956)), document
A/CN.4/104, “Articles Concerning the Law of the Sea”, Draft Art. 72, Annex 236,
p. 300.
333
United Nations, Report of the ILC to the United Nations General Assembly (2nd
session of the ILC (1950)), document A/CN.4/34, Annex 228, p. 384, para. 199.
334 United Nations, Report of the Special Rapporteur to the ILC (2nd session of the ILC
(1950)), document A/CN.4/17, Annex 226, p. 50, para. 116.
335
See 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, fifth recital; 1947
Chilean Declaration,Annex 27 to the Memorial , first recital.
118 336
States and the State concerned in accordance with equitable principles” . In the
second session of the ILC, Judge Hudson expressed the view that “[c]ustom and
theory gave no enlightenment on the subject” of delimitation of the continental
shelf, and “the question should therefore be set aside. . . The States concerned
337
must come to an agreement.” In its sessions in 1950, 1951 and 1952, the ILC
discussed a number of possible methods for delimiting the territorial sea and
continental shelf in the absence of agreement. It could not, however, agree on
any rule, or even any generally applicable guideline. All that could be concluded
was that “boundaries should be fixed by agreements among the States concerned.
338
It is not feasible to lay down any general rule which States should follow” .
2.153. The Special Rapporteur reviewed the practice of States concerning the
territorial sea, including that of Bulgaria, which in October 1951 had issued a
decree indicating that “le parallèle géographique du point où la frontière terrestre
touche la côte délimite les eaux territoriales bulgares et celles des Etats
339
voisins” . The Special Rapporteur expressed the view that: “[C]ette règle ne
saurait toutefois être considérée que comme une solution pour un cas spécial” 340.
He suggested that the ILC could recommend a median-line methodology in
341
principle, subject to adjustment according to any special circumstances . His
336 Truman Proclamation on the Continental Shelf, United States Presidential
Proclamation No. 2667 of 28 September 1945, Annex 88 to the Memorial.
337
United Nations, Summary Record of the 69th meeting of the ILC (4th session of the
ILC (1952)), document A/CN.4/SR.69, Annex 229, paras 39 and 42.
338 United Nations, Report of the ILC to the United Nations General Assembly (3rd
session of the ILC (1951)), document A/CN.4/48 and Corr. 1&2, Annex 230, p. 143,
commentary to Draft Art. 7.
339 United Nations, Report of the Special Rapporteur (4th session of the ILC (1952)),
document A/CN.4/53(F), Commentary to Draft Article 13 on the Regime of the
Territorial Sea, Annex 231, p. 38, para. 3.
340 Ibid.
341
Ibid., p. 38, para. 4.
119proposal was rejected by the ILC. Dr. Zourek (later the First Vice-Chairman of
the ILC) stated in that discussion that–
“the method of delimiting the territorial sea of two
adjacent States adopted by the Bulgarian government in its
decree of 10 October 1951 had the great virtue of
simplicity, and would be effective in preventing disputes.
The special rapporteur seemed to be in favour of the
m e t h o d o f t h e m e d i a n l i n e , b u t i t w a s c l e a r f r o m t h e
discussion that it could not be applicable to all cases and
was therefore unacceptable” 342.
2.154. Following the lack of consensus about delimitation methods, the ILC
convened a committee of technical experts, which met in April 1953. That
committee reported that for both the territorial sea and the continental shelf, if a
delimitation had not already been agreed in accordance with another method,
343
then the equidistance method should be applied . “In this almost impromptu,
and certainly contingent manner was the principle of equidistance for the
344
delimitation of continental shelf boundaries propounded.”
2.155. In addition to convening the technical committee, the ILC had
requested States to submit observations on maritime delimitation. Observations
were received from twelve States in May 1953 (but not from Chile, Ecuador or
Peru). Even that limited number of observations revealed the diversity of
342 United Nations, Summary Record of the 171st meeting of the ILC (4th session of the
ILC (1952)), document A/CN.4/SR.171, Annex 232, p. 183, paras 26-27.
343
See United Nations, “Rapport du Comité d’experts sur certaines questions d’ordre
technique concernant la mer territoriale”,Annex to the Second Report of the Special
Rapporteur on the Regime of the Territorial Sea (5th session of the ILC (1953)),
document A/CN.4/61/Add.1, Annex 233, p. 79, para. VII.
344 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 35, para. 53.
120practice. France described its territorial-sea delimitation with Spain in the
Mediterranean Sea as follows:
“[É]tant donné que la côte franco-espagnole est orientée
nord-sud, la limite des eaux territoriales qui a été adoptée
en pratique par les agents embarqués des douanes comme
par ceux de l’inscription maritime est celle du parallèle
passant par la grotte susvisée [grotte de la Cova Foradada
qui fixe la démarcation à terre par l’acte de délimitation,
du 11 juillet 1868]. Un piquet blanc matérialise à terre le
point exact où passe ce parallèle.”345
2.156. The French submission shows that Chile and Peru were not the only
States that found the use of a parallel convenient, nor the only States that used a
land-boundary marker on the coast as a reference point for that parallel (as is the
case for Hito No. 1; see paragraph 3.44 below).
2.157. When the ILC reported to the General Assembly in 1956 it set forth
multiple methods of delimitation that could be used in the absence of agreement.
Those methods included:
(a) an extension of the direction of a segment of the land-boundary line;
(b) a line at right angles to the coast at the point of intersection of the land
boundary and the coastline;
345
United Nations, Information and Observations Submitted by Governments
Regarding the Question of the Delimitation of the Territorial Sea of Two Adjacent
States (5th session of the ILC (1953)), document A/CN.4/71 and Add. 1-2,
Annex 234, p. 89.
121(c) “the geographical parallel passing through the point at which the land
frontier meets the coast” — i.e. the same method as the one used in
Article IV of the Santiago Declaration;
(d) a line drawn at right angles to the general direction of the coastline;
and
(e) “the median line. . .drawn according to the principle of
346
equidistance” .
2.158. The ILC set forth all of these methods as possibilities, but influenced
by the work of the technical committee, by the time of the ILC report in 1956,
the commentary recommended the median line as “the best solution”, so long as
347
it was “very flexibly applied” . The 1956 report of the ILC came after the 1952
Santiago Declaration and the confirmation of the existence of an agreed
boundary in the Lima Agreement of 1954.
2.159. In the 1958 Geneva Convention on the Continental Shelf the primary
rule was expressed as being that boundaries between the continental shelves of
adjacent States “shall be determined by agreement between them”. Failing
agreement, equidistance was adopted as the preferred methodology, subject to
any special circumstances justifying a different boundary. In full, Article 6(2) of
the 1958 Geneva Convention onthe Continental Shelf provided that:
“Where the same continental shelf is adjacent to the
t e r r i t o r i e s o f t w o a d j a c e n t S t a t e s , t h e b o u n d a r y o f t h e
346 United Nations, Report of the ILC to the United Nations General Assembly (8th
session of the ILC (1956)), document A/CN.4/104, Commentary to Draft Article 14
on the Delimitation of Territorial Sea of Two Adjacent Seas,Annex 236, p. 272.
347
Ibid.
122 continental shelf shall be determined by agreement
between them. In the absence of agreement, and unless
another boundary line is justified by special circumstances,
the boundary shall be determined by application of the
p r i n c i p l e o f e q u i d i s t a n c e fr o m t h e n e a r e s t p o i n t s o f t h e
baselines from which the 348adth of the territorial sea of
each State is measured.”
2.160. In the North Sea Continental Shelf cases the Court held that the 1958
Geneva Convention on the Continental Shelf “did not embody or crystallize any
pre-existing or emergent rule of customary law, according to which the
delimitation of continental shelf areas between adjacent States must, unless the
Parties otherwise agree, be carried out on an equidistance-special circumstances
basis.”349 Equidistance, as modified by any special circumstances, was one
delimitation methodology, favoured in the 1958 Geneva Convention, but not
having any special status in customary international law. Although both Chile
and Peru signed the 1958 Convention, it never entered into force for either State,
as neither of them ratified it.
2.161. The rule of customary international law was stated in the North Sea
Continental Shelf cases as follows:
“[D]elimitation is to be effected by agreement in
accordance with equitable principles, and taking account of
all the relevant circumstances, in such a way as to leave as
m u c h a s p o s s i b l e t o e a c h P a r t y a l l t h o s e p a r t s o f t h e
continental shelf that constitute a natural prolongation of
its land territory into and under the sea, without
348 Convention on the Continental Shelf, signed at Geneva on 29 April 1958, 499UNTS
311 (entered into force on 10 June 1964), Art. 6(2).
349
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 41, para. 69.
123 encroachment on the natural prolongation of the land
territory of the other” .0
2.162. Two points arise for present purposes from theNorth Sea Continental
Shelf cases. First, the primary rule has always been that delimitation is to occur
by agreement. The work of the ILC, the 1958 Geneva Convention on the
Continental Shelf and the Court’s 1969 judgment in the North Sea Continental
Shelf cases are all clear on that point. Secondly, at the time that the Parties
concluded the Santiago Declaration, and still when the North Sea Continental
Shelf cases were decided in 1969, the equidistance methodology was not part of
any rule of customary international law.
2.163. The President of the Court that decided the North Sea Continental
Shelf cases was Judge Bustamante y Rivero, who as Peru’s President had issued
the 1947 Supreme Decree. He agreed on both of the points above. In his Separate
Opinion, he referred to the shape of the North Sea, observing that the “natural
convergence of the lateral delimitation lines of adjacent shelves belonging to
such seas in fact precludes the possibility of giving to those lines parallel
351
directions and, in consequence, of obtaining shelves of a rectangular shape.”
Although such a method could not be followed in the North Sea, President
Bustamante y Rivero clearly thought that continental shelves of rectangular
shape, delimited by parallel lines, were perfectly normal, and even to be
352
preferred. In both its written pleadings and the oral pleadings of Professors
350 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 53, para. 101(C)(1).
351 Separate opinion of President Bustamante y Rivero, North Sea Continental Shelf,
Judgment, I.C.J. Reports 1969, p. 61, para. 6(b).
352
See North Sea Continental Shelf (Federal Republic of Germany/Denmark), Reply
submitted by the Government of the Federal Republic of Germany on 31 May 1968,
Annex, “International and inter-state Agreements concerning the Delimitation of
Continental Shelves and Territorial Waters”, Chile-Peru-Ecuador, I.C.J. Pleadings,
Vol. I, pp. 437-438.
124Oda 353 and Jaenicke 354, Germany had relied on the delimitation between Chile
a n d P e r u e f f e c t e d b y t h e S a n t i a g o D e c l a r a t i o n a s a n e x a m p l e o f a n a g r e e d
delimitation that did not follow an equidistance methodology. In his oral
pleadings for Denmark and the Netherlands, Sir Humphrey Waldock accepted
t h a t s u c h a d e l i m i t a t i o n w a s i n p l a c e , s t a t i n g t h a t i t w a s a n a g r e e m e n t t h a t
applied in particular circumstances 355. Denmark and the Netherlands had earlier
356
made the same acknowledgement in their written pleadings . In his Separate
Opinion President Bustamante y Rivero did not dissent from, or adversely
comment on, these references to the Santiago Declaration as a delimitation
agreement between Chile and Peru using a parallel of latitude.
Section 8. The Parties’ Maritime Zones
2.164. In the Santiago Declaration the States parties agreed that each of them
had exclusive sovereignty and jurisdiction over its own maritime zone. Since
reaching that general, all-encompassing agreement, Chile and Peru have
exercised their sovereignty and jurisdiction to claim maritime zones of greater
specificity. The purpose of this Section is to describe those maritime zones.
2.165. The relevance of the Parties’ specific maritime claims to the issue of
delimitation is as follows. In the Santiago Declaration the States parties claimed
353
See North Sea Continental Shelf (Federal Republic of Germany/Denmark), Oral
Argument of the Government of the Federal Republic of Germany, 1969, I.C.J.
Pleadings, Vol. II, p. 58.
354 Ibid., p. 22.
355
See North Sea Continental Shelf (Federal Republic of Germany/Denmark), Joint
Oral Argument of the Kingdom of Denmark and the Kingdom of The Netherlands,
1969, I.C.J. Pleadings, Vol. II, pp. 101, 112-113 and 258.
356
See North Sea Continental Shelf (Federal Republic of Germany/Denmark), Common
Rejoinder Submitted by the Governments of the Kingdom of Denmark and the
Kingdom of The Netherlands, 30 August 1968, I.C.J. Pleadings, V o l ., Ip. 496,
para. 68.
125plenitude of “exclusive sovereignty and jurisdiction”. Both Chile and Peru have
exercised that sovereignty and jurisdiction, by claiming their own specific
maritime zones. Since the Santiago Declaration, Chile has implemented
UNCLOS. Peru is not party to UNCLOS and maintains a 200M “maritime
dominion”. Whatever differences may now exist between the respective
maritime zones claimed by the Parties, the plenitude of exclusive sovereignty
and jurisdiction which the Parties claimed in the Santiago Declaration was and
remains effective inter se; and all specific zones which can be claimed in
exercise of such sovereignty and jurisdiction have been definitively delimited as
between the Parties by an all-encompassing delimitation .7
A. P ERU’S M ARITIME ZONE
2.166. Peru has a single undifferentiated maritime zone, the “dominio
marítimo”. The official English translation of Peru’s Constitution provided by
the Congress of Peru translates this as “maritime .dN 358 omitieioPeru’s
Constitution nor relevant legislation refers, in terms, to a continental shelf. Peru
d o e s n o t c la i m a n E E Z . P e r u i s n o t p a r t y t o U N C L O S , w h i c h a l lo w s fo r a
territorial sea of no more than 12 nautical miles in width 359and provides for
freedom of navigation and overflight beyond that limit.
2.167. Peru started using the term “maritime dominion” prior to the Santiago
Declaration. The term appears in Peru’s Supreme Decree of 1947 360and in
Article 6 of Supreme Decree No. 21 of 1951 on Regulations of Captaincies and
357
See, e.g., E. Jiménez de Aréchaga, “South American Maritime Boundaries”, in
J. I. Charney and L. M. Alexander (eds), International Maritime Boundaries, Vol. I,
1993, Annex 279, p. 287, who considered the Santiago Declaration to be an “all-
purpose delimitation”.
358 Political Constitution of Peru of 1993, Annex 179, Art. 54.
359
UNCLOS, Art. 3.
360 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, final recital.
126 361
the National Merchant Navy . It appears again in the Peruvian Constitutions of
1979 and 1993. Replicating Articles 97, 98 and 99 of the 1979 Constitution,
Article 54 of Peru’s 1993 Constitution 36, at present in force, states that: “The
territory of the Republic is inalienable and inviolable.” Article 54 then states that
363
“it”, i.e., the territory of the Republic, includes the “maritime dominion” .
Article 54 goes on to confirm that the “maritime dominion” includes the sea, its
seabed and its subsoil, to a distance of 200 nautical miles from Peru’s baselines.
This Article further states that Peru “exercises sovereigntyand jurisdiction on the
airspace over its territory and its adjacent sea up to the limit of 200 miles”.
2.168. On the basis of these Constitutional provisions the United Nations
D ivis io n fo r Ocea n Affa ir s a nd t he Law o f t he Sea ha s, fro m 1986 unt il t he
present, listed Peru as claiming a territorial sea of 200 nautical miles 364. No
objection from Peru to that characterization is recorded. A number of publicists
have also described Peru’s “maritime dominion” as a territorial sea, or as
365
amounting to a territorial sea in substance .
2.169. Characterization of Peru’s “maritime dominion” as a species of
territorial sea is consistent with the position taken by Peru at the Third United
361 Peruvian Supreme Decree No. 21 of 1951, Regulations of Captaincies and the
National Merchant Navy,Annex 7 to the Memorial.
362 Political Constitution of Peru of 1993, Annex 179, Art. 54.
363
Article 2 of Law No. 28611 of 13 October 2005, General Law of the Environment,
also states that “the national territory” includes the “maritime dominion”,
Annex 198.
364 See United Nations Division for Ocean Affairs and the L Tawle of the Sea,
Claims to Maritime jurisdiction, 2008, Annex 244. The tables of claims to maritime
jurisdiction for 1986 to 2007 can be found in previous editions of the Law of the Sea
Bulletin at: <http://www.un.org/Depts/los/doalos_publications/los_bult.htm>.
365 See, e.g., D. P. O’Connell, The International Law of the Sea, Vol. I, 1982,
Annex 298, p. 571; J. Castañeda, “Les positions des États Latino-Américains”,
Actualités du droit de la mer, 1973, Annex 256, p. 159; R. Dupuy and D. Vignes
(eds), A Handbook on the New Law of the Sea, Vol. I, 1991, Annex 258, p. 302.
127Nations Conference on the Law of the Sea, where Peru emphasized that it
exercised “full sovereignty and jurisdiction over the seas adjacent to its coast up
366
to a distance of 200 miles” (emphasis added). Peru observed that it–
“had exercised its sovereignty over a 200-mile zone off its
coast for almost 30 years. It had punished law-breakers,
faced up to threats and coercive measures, and successfully
developed its fishing and related industries. It was not
therefore prepared now to renounce its rights or its
achievements or to accept the conversion of its national
waters into an essentially international zone, in which
foreign fishing fleets could exploit the resources for the
benefit of wealthier and more powerful nations.” 367
2.170. Peru’s “maritime dominion” is on any view more than the aggregation
of an EEZ and cont inental shelf. This is clear from the fact that Peru claims
sovereignty over the airspace over the entire 200 nautical mile breadth of its
“maritime dominion”. If the “maritime dominion” were equivalent to an EEZ, it
368
would create no right for Peru to control overflight . In its Civil Aeronautics
Law of 1965, Peru asserted “sole sovereignty over the airspace above its territory
and jurisdictional waters within a distance of 200 miles” 36. At the last stage of
366 United Nations, 48th Meeting of the Second Session of the Second Committee of the
Third United Nations Conference on the Law of the Sea, 2 May 1975, 3.30 p.m.,
document A/CONF.62/C.2/SR.48, Annex 45, par a . 23 . Also s ee Un i t ed Na ti on s,
45th Meeting of the Second Session of the Second Committee of the Third United
Nations Conference on the Law of the Sea, 28 August 1974, 11.00 a.m., document
A/CONF.62/C.2/SR.45, Annex 44, para. 20; United Nations, 118th Meeting of the
Resumed Eighth Session of the Plenary Meetings of the Third United Nations
Conference on the Law of the Sea, 23 August 1979, 4.35 p.m., document
A/CONF.62/SR.118, Annex 47, p. 5, para. 13.
367
United Nations, 30th Meeting of the Second Session of the Second Committee of the
Third United Nations Conference on the Law of the Sea, 7 August 1974, 11.10 a.m.,
document A/CONF.62/C.2/SR.30, Annex 43, para. 50.
368 See UNCLOS, Art. 58.
369
Law No. 15720 of 11 November 1965: Law on Civil Aeronautics, Annex 12 to the
Memorial (translation taken from United Nations Legislative Series, National
128the Third Conference on the Law of the Sea, Peru’s delegate informed the
Conference that because the EEZ provisions did not provide for control of
airspace to a seaward distance of 200 nautical miles, UNCLOS was in “conflict”
with the Peruvian Constitution, and he was therefore voting in favour of
UNCLOS only on anad referendum basis 370.
2.171. Peru’s Constitutional and legislative claim to the airspace above its
entire “maritime dominion” has been enforced in practice. Peru has on a number
of occasions interfered with freedom of overflight beyond twelve nautical miles
from its coast, and consequently received a series of diplomatic protests from the
371
United States of America . An extreme example occurred on 24 April 1992,
when Peruvian fighter planes attacked an unarmed United States aircraft
60 nautical miles off the Peruvian coast. This caused the death of one United
372
States airman, the wounding of two others and the loss of the aircraft .
2.172. As recently as 2000, Peru passed legislation re-asserting its “full and
exclusive sovereignty over the airspace that covers its territory and adjacent sea,
up to the limit of 200 (two hundred) miles, according to the Political Constitution
Legislation and Treaties Relating to the Law of the Sea, 1974, Annex 164). This
publication records that this law was provided by Peru to the United Nations.
370
United Nations, 182nd Plenary Meeting of the Third United Nations Conference on
the Law of the Sea, 30 April 1982, 3.20 p.m., document A/CONF.62/SR.182,
Annex 50, para. 90.
371 See J. A. Roach and R. W. Sm Uinte,d States Responses to Excessive Maritime
Claims, 2nd edn, 1996, Annex 309, pp. 371-375.
372
Ibid., pp. 374-375; see also the Intervention by United States Senator Pell on
freedom of overflight in the Peruvian airspace beyond twelve nautical miles, United
States Congressional Record, 1995, Vol. 141, Annex 221, p. S9196.
129 373
of Peru” . This is the zone that Peru would have the Court delimit, and expand
to absorb the alta mar area, which is part of the high seas.
2.173. Peru’s rights in respect of its continental shelf exist ipso facto and ab
initio. No express proclamation is necessary 374. By contrast, there is no rule that
a State enjoys an EEZ without claiming one. Peru has not claimed an EEZ. Peru
asserts in its Memorial that it “has consistently claimed an exclusive maritime
domain. . ., which is in line with the geographical extension and the purpose of
the institution of the EEZ” . Despite this carefully crafted attempt to make its
“maritime dominion” sound as much like an EEZ as possible for the purpose of
these proceedings, Peru is not prepared to state that its “maritime dominion” is
no more than an EEZ by another name. Nor could it make such a statement.
Peru’s Constitution and its legislative and executive actions, particularly with
respect to the airspace above its “maritime dominion”, indicate that Peru
considers its “maritime dominion” to be more than an EEZ.
2.174. The Santiago Declaration is an international-law instrument cited by
P e r u a s a b a s i s f o r i t s “ m a r i t i m e d o m i n i o n ” . A r t i c l e 5 4 o f P e r u ’ s
Constitution recites that Peru exercises sovereignty and jurisdiction in its
“maritime dominion”, “in accordance with the law and treaties ratified by the
State”. Chief among those treaties is the Santiago Declaration. Indeed, it is
specifically cited in Article 7 of a Supreme Decree made pursuant to the
Peruvian General Law on Waters of 1969, as follows:
“ T h e r i g h t s o f t h e S t a t e i n d i c a t e d b y t h e L a w s h a l l b e
exercised, with respect to the 200-mile maritime zone
373
Law No. 27261 of 9 May 2000: Law on Civil Aeronautics, Annex 185, Art. 3.
374 See North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 22, para. 19;
UNCLOS, Art. 77(3).
375 Memorial, para. 3.10.
130 adjacent to the coast of the national territory, in conformity
with Supreme Decree No. 781 of 12 August 1947 and the
Declaration on the Maritime Zone of 18 August 1952, an
instrument which has the nature of an international
agreement.” 376
2.175. Peru has also cited the Santiago Declaration in actions taken to enforce
its claim to sovereignty over its “maritime dominion”. A notable example was
the incident involving the Onassis fleet, discussed at paragraphs 2.144-2.145
above.
2.176. To conclude on this matter, the stated basis for Peru’s “maritime
dominion” is the 1947 Peruvian Supreme Decree and the Santiago Declaration of
1952. Over time, more specific Constitutional, legislative and administrative acts
have given effect to those foundational instruments. A number of these are listed
in Peru’s Memorial at paragraph 3.15, including the legislation in 1965 and 2000
pursuant to which Peru exercises jurisdiction over the airspace above its entire
“maritime dominion”. Peru’s maritime claim is thus historically continuous.
Neither customary law nor UNCLOS affords a foundation for Peru’s “maritime
dominion”. Peru wishes to continue to rely on the Santiago Declaration as the
international-law foundation for the sovereignty that it exercises to a minimum
distance of 200 nautical miles. Peru cannot resile from the boundary delimitation
agreed in that treaty.
B. C HILE’SM ARITIME ZONES
2.177. All of Chile’s maritime zones are in accordance with UNCLOS, which
Chile signed in 1982 and ratified in 1997. In 1986 Chile passed domestic
legislation setting forth a territorial sea of 12 nautical miles; a contiguous zone to
376
Supreme Decree No. 261-69-AP of 12 December 1969 on the Regulation of Titles I,
II and III of Decree-Law No. 17752 General Law on Waters, Annex 167, Art. 7.
13124 nautical miles; an EEZ to a distance of 200 nautical miles; and Chile’s rights
over its continental shelf 377. The continental shelf appertaining to Chile’s
continental territory currently extends to 200 nautical miles. In May 2009 Chile
submitted to the United Nations preliminary information indicative of the outer
limits of the extended continental shelf beyond 200 nautical miles from Chile’s
continental and insular territories.
Section 9. Acknowledgment and Confirmation of the Maritime
Boundary in the Agreement Relating to a Special Maritime Frontier Zone
(1954)
A. I NTRODUCTION
2.178. The entitlement to 200M maritime zones under the Santiago
Declaration was challenged by several third States. To defend their claimed
entitlements, a CPPS meeting was convened in October 1954, at which Chile,
Ecuador and Peru affirmed their claims to 200M maritime zones and their
exclusive right to take measures to preserve and exploit maritime resources
within their respective zones. The recommendations approved by the CPPS at
this meeting were revised and adopted by the three States at a diplomatic
conference two months later, in Lima in December 1954.
2.179. For present purposes, the most relevant instrument adopted at the
December 1954 conference was the Agreement Relating to a Special Maritime
Frontier Zone, i.e. the Lima Agreement. It created a zone of tolerance on either
side of the “maritime frontier” of adjacent States. This was for the benefit of
377
See Law No. 18,565 of 13 October 1986 Amending the Civil Code Regarding
Maritime Spaces, Annex 36 to the Memorial. The translation by Peru erroneously
states that Chile claims a territorial sea of “twelve hundred” nautical miles in Article
1 of that Law. The original Spanish text of this law provides for a territorial sea of
“doce millas marinas”: 12 nautical miles.
132local fishermen with limited navigational aids who accidentally transgressed the
maritime boundaries.
2.180. The basic predicate of the Lima Agreement was that Chile, Ecuador
and Peru already had lateral maritime boundaries, or “frontiers”, in place
between them. Unlike many other instruments agreed between the parties to the
Santiago Declaration, the Lima Agreement was not primarily concerned with the
seaward extent of each State’s maritime zone. It dealt solely with issues
connected to the lateral delimitation of those zones. The provisions of the Lima
Agreement are deemed to be “an integral and supplementary part of” the
Santiago Declaration378.
B. C HILE , CUADOR AND PERU D EFENDED THEIR M ARITIME Z ONES IN 1954
2.181. Shortly after it was made, the Santiago Declaration was criticized by
several States as being contrary to general international law. In the face of this
mounting opposition, the second meeting of the CPPS was convened in Santiago,
Chile on 4-8 October 1954 (the 1954 CPPS Meeting). The CPPS Member States
were then Chile, Ecuador and Peru.
378
Lima Agreement, Annex 50 to the Memorial , Art. 4.
379 Protests addressed to the Ministry of Foreign Affairs of Peru: Note No. 101 of
20 September 1954 from the United States Ambassador to Peru, Annex 62; Note No.
34 (1271/11/54) of 31 August 1954 from the British Ambassador to Peru, Annex 68;
Note No. 57/1954 of 4 October 1954 from the Legation of Sweden in Peru,
Annex 64; Note No. 197 of 4 October 1954 from the Danish chargé d’affaires in
Peru, Annex 65; Note of 29 September 1954 from the Legation of Norway in Chile,
Annex 63.
Protests adressed to the Ministry of Foreign Affairs of Chile: Note No. 141
(1270/12/54) of 12 August 1954 from the British Embassy in Chile, Annex 60; Note
of 29 September 1954 from the Legation of Norway in Chile, Annex 63.
1332.182. The three States explicitly recognized that the main purpose of this
meeting was to buttress and develop upon the agreements reached at the 1952
Conference. At the inaugural session of the 1954 CPPS Meeting, the Minister of
Foreign Affairs of Chile stated that:
“The right to proclaim our sovereignty over the sea zone
that extends to two hundred miles from the coast is thus
undeniable and inalienable. We gather now to reaffirm our
decision to defend, whatever the cost, this sovereignty and
to exercise it in accordance with the high national interests
of the signatorycountries to the Declaration.
. . .
We strongly believe that, little by little, the legal statement
that has been formulated by our countries into the 1952
Agreement [the Santiago Declaration] will find its place in
International Law until it is accepted by all Governments
that wish to preserve, for mankind, resources that today are
ruthlessly destroyed by the unregulated exercise of
exploitative activities that pursue di380ished individual
interests and not collective needs.”
380
Minutes of the Inaugural Session of the 1954 CPPS Meeting, 4 October 1954,
Annex 35, p. 3. The original Spanish text reads as follows:
“El derecho a proclamar nuestra soberanía sobre la zona de mar que se
extiende hasta doscientas millas de la costa es, pues, indiscutible e
inalienable. Nos reunimos ahora para reafirmar nuestro propósito de
defender hasta sus últimas consecuencias esa soberanía y a ejercitarla en
conformidad con los altos intereses nacionales de los países signatarios
del Pacto.
[. . .]
Tenemos plena fé en que poco a poco, la expresión jurídica que nuestros
tres países han formulado en el Acuerdo del 52, irá ampliando su cauce
en el Derecho Internacional hasta ser aceptada por todos los Gobiernos
deseosos de preservar, para la humanidad riquezas que hoy son
despiadadamente destruídas por el ejercicio irreglamentado de
1342.183. In addition to the focus on defence of the Santiago Declaration, the
agenda of the meeting included a wider range of issues concerning the maritime
zones of the three States. The CPPS had identified the matters to be addressed
during the 1954 CPPS Meeting as follows:
(a) “[l]egal defence of the rules of international maritime policy [of Chile,
Peru and Ecuador] against objections by other governments and before
international organizations and meetings”;
(b) “[u]niform legal system of sanctions for violations within the maritime
jurisdiction of the respective countries, in breach of the agreements of
the [1952] Conference”;
(c) “[o]rganization of the technical offices that should serve as
Secretariats of the Permanent Commission [of the South Pacific]”;
(d) “[a]ssimilation of the exploitation of maritime resources to the
exploitation of mineral or agricultural resources on the continental or
insular land areas for taxation purposes and for the regulation of
External Trade”;
(e) “[s]urveillance and control measures over the respective maritime
zones”; and
actividades explotadoras que solo corresponden a menguados intereses
individuales y no a los de la colectividad.”
135(f) “[u]niform system regarding granting permits to foreigners for
381
carrying out fishing and hunting, methods of control, etc” .
2.184. The establishment of a ten-mile zone of tolerance on either side of
each maritime boundary was a new agenda item, proposed by the delegations of
Ecuador and Peru and then approved by the CPPS with Chile’s agreement.
According to the proposal, a neutral zone would start from a point–
“12 nautical miles from the coast, extending to a breadth of
ten nautical miles on either side of the parallel which
passes through the point of the coast that signals the
boundary between the two countries.” 382
2.185. This proposal concerned all three States, and was to be dealt with by
all three of them (as in fact it was, in the Lima Agreement).
2.186. The recommendations on the above matters approved by the CPPS at
the 1954 CPPS Meeting in Santiago were then submitted to the Second
C o n f e r e n c e o n E x p l o i t a t i o n a n d C o n s e r v a t i o n o f t h e M a r i t i m e R e s o u r c e s o f
South Pacific held two months later in Lima (the 1954 Inter-State Conference).
W h e r e a s t h e 1 9 5 4 C P P S M e e t i n g h a d b e e n a m e e t i n g o f t h e C P P S , t h e
conference in December 1954 was a conference of the three States. The Minister
o f F o r e i g n A f f a i r s o f P e r u , D r . D a v i d F . A g u i l a r C o r n e j o , s u m m a r i z e d t h e
purpose and aim of this conference in the following manner:
381 Minutes of the Inaugural Session of the 1954 CPPS Meeting, 4 October 1954,
Annex 35, p. 5.
382 Minutes of the Plenary Session of the 1954 CPPS Meeting, 8 October 1954 at 10.30
a.m., Annex 36, p. 11. The original Spanish text reads as follows: “12 millas marinas
de la costa, de diez millas marinas de ancho a cada lado del paralelo que pasa por el
punto de la costa que señala el límite entre los dos países.”
136 “Nothing can be more pertinent than the joint action of our
countries in proclaiming as a norm of their international
maritime policy their sovereignty over the adjacent sea up
to two hundred miles. The Declaration of Santiago of 1952
represents the integration and solidarity of three nations
which overcame individual action to strengthen an alliance
as a superior phase of their international performance,
returning to the old and well-known path of the union and
the mutual cooperation, in defence of their national
sovereignty and in protection of noble and high interests.
. . .
This Conference will solemnize the Regulations and
Resolutions agreed by the Permanent Commission in
Santiago giving them the form of international treaties in
order to have the necessary legal instruments that impose,
in the future, the appropriate sanctions on those who
attempt to ignore our sovereignty and our eminent rights of
control and jurisdiction over the Maritime Zone referred to
in the national legislations and in the Santiago
Declaration.” 383
2.187. Having discussed the recommendations of the CPPS, many of which
were in the form of draft agreements, Chile, Ecuador and Peru concluded a suite
of trilateral agreements covering a range of matters related to their respective
maritime zones, as follows:
(a) Complementary Convention to the Declaration of Sovereignty on the
384
Two-Hundred-Mile Maritime Zone ;
383 Minutes of the Inaugural Session of the 1954 Inter-State Conference, 1 December
1954, Annex 37, p. 2.
384
Complementary Convention,Annex 51 to the Memorial .
137(b) Agreement Relating to Measures of Supervision and Control in the
Maritime Zones of the Signatory Countries ; 385
(c) Agreement Relating to the Granting of Permits for the Exploitation of
the Maritime Resources of the South Pacific 386;
387
(d) Agreement on the System of Sanctions ;
(e) Convention on the Annual Ordinary Meeting of the Permanent
Commission of the South Pacific ; and88
(f) the Lima Agreement or, in full, the Agreement Relating to a Special
Maritime Frontier Zone 389.
2.188. In the process of negotiating the Complementary Convention the three
States recorded their formal agreement on the correct interpretation of Article IV
of the Santiago Declaration. That agreement was reached by the three States
immediately prior to their discussion of the Lima Agreement, in the course of
negotiating the Complementary Convention, and it is important both as a free-
s t a n d i n g a g r e e m e n t a n d a s b a c k g r o u n d t o t h e t e r m s a n d e f f e c t o f t h e L i m a
Agreement.
385
Agreement Relating to Measures of Supervision and Control in the Maritime Zones
of the Signatory Countries, signed at Lima on 4 December 1954,Annex 4.
386 Agreement Relating to the Granting of Permits for the Exploitation of the Maritime
Resources of the South Pacific, signed at Lima on 4 December 1954.
387
Agreement on the System of Sanctions, signed at Lima on 4 December 1954.
388 Convention on the Annual Ordinary Meeting of the Permanent Commission of the
South Pacific, signed at Lima on 4 December 1954.
389
Lima Agreement, Annex 50 to the Memorial .
138 C. A GREEMENT THAT M ARITIME B OUNDARIES HAD A LREADY BEEN SETTLED IN
1952
2.189. O n 2 D e c e m b e r 1 9 5 4 t h e F i r s t S e s s i o n o f C o m m i s s i o n I o f t h e
1954 Inter-State Conference was convened in Lima. Commission I considered
and finalized the draft agreements adopted at the 1954 CPPS Meeting. A Chilean
delegate chaired the session. Other delegates from Chile, as well as delegates
from Peru and Ecuador, were in attendance. So was the Secretary-General of the
CPPS.
2.190. The main instrument being prepared at the 1954 Inter-State
Conference was the Complementary Convention. The primary purpose of that
Convention was to reassert the claim of sovereignty and jurisdiction that had
been made two years earlier in Santiago and to defend jointly the claim against
protests by third States.
2.191. In the discussion leading to that Convention the Ecuadorean delegate–
“moved for the inclusion in this Convention of a
complementary article clarifying the concept of the
dividing line of the jurisdictional sea, which has already
been explained at the Conference of Santiago, but which
would not be redundant to include herein.”1
2.192. T h e P e r u v i a n a n d C h i l e a n d e l e g a t e s e x p l a i n e d t h a t a p r o v i s i o n o n
delimitation in the Complementary Convention would in fact be redundant. They
said “that Article 4 of the Declaration of Santiago is clear enough and, therefore,
390 See Complementary Convention, Annex 51 to the Memorial , second paragraph.
391 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38, p. 3.
139 392
does not require further explanation.” The Ecuadorean delegate insisted on
c l a r i f y i n g t h e t e x t o f t h e S a n t i a g o D e c l a r a t i o n , c o n s i d e r i n g t h a t t h e e x i s t i n g
language “was aimed at establishing the principle of delimitation of waters
393
regarding the islands” . As noted above, the three States had agreed in the 1952
Minutes that “the boundary line of the jurisdictional zone of each country be the
respective parallel from the point at which the borders of the countries touches or
reaches the sea” 394. Given the Ecuadorean delegate’s insistence that the maritime
boundaries be acknowledged to apply between general maritime zones and not
only where insular zones were involved, the Chairman asked if Ecuador would
be content with recording in the minutes of the session the existence of an
express agreement to that effect, instead of adding a new provision in the
Complementary Convention. Ecaudor’s delegate responded as follows:
“[I]f the other countries consider that no explicit record is
necessary in the [Complementary] Convention, he agreed
to record in the Minutes that the three countries deemed
the matter on the dividing line of the jurisdictional waters
settled and that said line was the parallel starting at the
point at which the land frontier between both countries
reaches the sea.” 395
392 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38, p. 3.
393
Ibid.
394 M i n u t e s o f t h e F i r s t S e s s i o n o f t h e L e g a l A f f a i r s C o m m i s s i o n
Conference, 11 August 1952 at 4.00 p.m., Annex 56 to the Memorial, p. 2,
discussed at paras 2.78-2.79 above. The original Spanish text reads as follows:
“la línea limítrofe de la zona jurisdiccional de cada país fuera el paralelo
respectivo desde el punto en que la frontera de los países toca o llega al
mar.”
395
Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38, p. 3.
1402.193. The Peruvian delegate agreed, further clarifying that “this agreement
[on the dividing line of the jurisdictional waters] was already established in the
Conference of Santiago as recorded in the relevant Minutes by the request of the
Delegate of Ecuador” 39. As mentioned at paragraph 1.33 above, Peru did not
produce with its Memorial the minutes of the First Session recording this agreed
interpretation of the Santiago Declaration.
2.194. On the following morning of the 1954 Inter-State Conference the
minutes from the previous day were read. The Ecuadorean delegate sought an
amendment to the minutes “concerning the concept of the dividing line”, since
“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” (emphasis added) . As the minutes
record, “[w]ith this clarification, the Chairman declared the Minutes of the First
Session approved”. Peru does produce the minutes of this second day with its
Memorial, but redacts the extracts just quoted 398.
2.195. These agreed minutes unequivocally confirm the common
understanding of Chile, Ecuador and Peru that they had delimited their respective
maritime boundaries in Article IV of the Santiago Declaration.
2.196. Later that same day the three States turned to the Lima Agreement.
396 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38, p. 4.
397
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39, p. 1.
398 See Annex 57 to the Memorial. A comparison of the first page of that Annex with
the first page of Annex 39 to this Counter-Memorial reveals the redaction.
141 D. T ERMS AND EFFECT OF THE A GREEMENT RELATING TO A S PECIAL M ARITIME
FRONTIER Z ONE (THE LIMA A GREEMENT )
2.197. The full name of the Lima Agreement is the Agreement Relating to a
Special Maritime Frontier Zone — a point expanded upon at paragraph 2.202
below. The operative provision of the Lima Agreement which is relevant here is
Article 1, which reads as follows:
“A special zone is hereby established, at a distance of 12
nautical miles from the coast, extending to a breadth of 10
n a u t i c a l m i l e s o n e i taralll wshiicd e o f t h e
constitutes the maritime boundary between the two
countries.”99(Emphasis added.)
2.198. T h e r e a s o n f o r t h i s “ s p e c i a l z o n e ” o f t o l e r a n c e i s g i v e n i n t h e
preambular recitals:
“Experience has shown that innocent and inadvertent
violations of the maritime frontier between adjacent States
occur frequently because small vessels manned by crews
with insufficient knowledge of navigation or not equipped
with the necessary instruments have difficulty in
determining accurately their position on the high seas”.
(Emphasis added.)
399
Lima Agreement, Annex 50 to the Memorial, Art. 1. The original Spanish text
reads as follows:
“Establécese una Zona Especial, a partir de las 12 millas marinas de la
costa, de 10 millas marinas de ancho a cada lado del paralelo que
constituye el límite marítimo entre los dos países.” (Emphasis added.)
The English translation in theUNTS refers to “a maritime boundary”. The authentic
Spanish is “el límite marítimo”, which is more accurately translated as “the maritime
boundary”, as has been used above. Nothing of substance in this case turns on this.
400 Lima Agreement, Annex 50 to the Memorial .
1422.199. Article 2 of the Lima Agreement, referring back to the recitals,
provides that the “accidental presence” of any “small vessels manned by crews
with insufficient knowledge of navigation or not equipped with the necessary
instruments” in the zone of tolerance shall not be considered as a “violation” of
the adjacent State’s maritime zone. Article 2 also provides that to benefit from
this zone of tolerance a vessel must be “a vessel of either of the adjacent
countries”. Thus, a Peruvian vessel that accidentally crosses to the south of the
“parallel which constitutes the maritime boundary” between Chile and Peru, and
is within the agreed zone of tolerance, shall not be considered to have violated
the boundary. The same is true for Chilean vessels accidentally crossing to the
north of the boundary line. The same rule applies to Ecuadorean and Peruvian
vessels in respect of the maritime boundary between those two States. The zones
of tolerance on either side of the maritime boundary between Chile and Peru are
illustrated in Figure 11.
2.200. The minutes of the 1954 Inter-State Conference record the discussion
which preceded the adoption of Article 1 of the Lima Agreement. This
discussion took place one day after all three States had agreed that the existence
of those boundaries had already been made clear in Article IV of the Santiago
Declaration, and the same day as they finalized the negotiating record to reflect
this40. The delegate of Ecuador, Dr. Salvador Lara, proposed an amendment to
Article 1 of the Lima Agreement, which the minutes record as follows:
“Upon the proposal by Mr. SALVADOR LARA, the
concept already declared in Santiago that the parallel
starting at the boundary point on the coast constitutes the
maritime boundary between the neighbouring signatory
countries, was incorporated into this article.
401 See paras 2.191-2.195 above.
143 Article I was thus amended as follows: ‘A special zone is
hereby established, at a distance of 12 nautical miles from
the coast, extending to a breadth of 10 nautical miles on
either side of the parallel which constitutes the maritime
boundary between the two countries.’” 402
2.201. Dr. Salvador Lara’s proposal was accepted. The words “the parallel
which constitutes a maritime boundary between the two countries” in Article 1 of
the Lima Agreement memorialize the common understanding of the three States
that the maritime boundary between adjacent States parties follows a parallel of
latitude.
2.202. Peru argues in its Memorial that the words “the two countries” in
403
Article 1 of the Lima Agreement refer only to Ecuador and Peru . Peru has not
made the same argument in connection with the references to the “maritime
frontier” in the title or recitals of the Lima Agreement. The context in which a
treaty provision must be interpreted includes not only the specific article falling
404
to be interpreted, but also the treaty as .aTw hehfoulename of the Lima
Agreement is the Agreement Relating to a Special Maritime Frontier Zone. That
was the title used by Peru’s Congress when it approved the treaty in 1955 405. The
402
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39, pp. 7-8.
403 See Memorial, paras 4.103-4.104.
404
See Competence of the ILO to regulate agricultural labour, Advisory Opinion, 1922,
P.C.I.J., Series B, No. 2, p. 23; Case of the Free Zones of Upper Savoy and the
District of Gex, 1932, P.C.I.J., Series A/B, No. 46, p. 140; Border and Transborder
Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 1988, p. 106, para. 97; Maritime Delimitation in the Area between
Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993,
p. 50, para. 26; Oil Platforms (Islamic Republic of Iran v. United States of America),
Preliminary Objection, Judgment, I.C.J. Reports 1996, para. 47.
405
See Legislative Resolution No. 12305 of 6 May 1955, enacted by the Peruvian
President on 10 May 1955, Annex 10 to the Memorial.
144 Figure 11
Chile-Peru Special Maritime Frontier Zone under the Lima Agreement of 19
54
78°W 76°W 74°W 72°W 70°W
16°S 16°S
Peru
Bolivia
18°S 18°S
Chile
20°S 20°S
Maritime boundary
Chilean special maritime frontier zone drawn south of the agreed boundar
y
Peruvian special maritime frontier zone drawn north of the agreed bounda
ry
12M territorial sea of Chile
0 50 100 150 200 M 200M limits
Datum: WGS84 Projection: Mercator
78°W 76°W 74°W 72°W 70°W
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the
Sea Consultancyshort title used by Peru for this treaty in its Memorial is “the 1954 Agreement on
406
a Special Zone” . Peru’s contracted title omits the words “maritime frontier”.
2.203. The recitals to the Lima Agreement indicate that the three States
considered it desirable to create zones of tolerance on either side of their
maritime boundaries because “[e]xperience has shown that innocent and
inadvertent violations of the maritime frontier between adjacent States occur
407
frequently” (emphasis added). There is no qualification of the “maritime
frontier”, nor is there any suggestion that the term “adjacent States” refers only
to Ecuador and Peru.
2.204. In the explanation given by Dr. Salvador Lara for his proposal on the
wording of Article 1 of the Lima Agreement, which was accepted without
408
debate, he referred to “the neighbouring signatory countries” . Chile and Peru
are neighbouring signatory countries, and Ecuador and Peru are also
neighbouring signatory countries. Article 1 refers to each of these pairs of
adjacent countries as “the two countries [los dos países]”.
2.205. The ordinary meaning of “the two countries” in Article 1 of the Lima
Agreement is the two States on either side of the parallel of latitude constituting
a maritime boundary between those two States. There are two such parallels
governed by the Lima Agreement, and the identity of “the two countries” varies
according to which parallel is under consideration in any particular instance.
Those two States can be Ecuador and Peru, or they can be Chile and Peru.
406 Memorial, paras 2.6 and 4.95-4.106.
407
Lima Agreement, Annex 50 to the Memorial , first recital.
408 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39, p. 7.
1452.206. The Lima Agreement provides that all of its provisions “shall be
409
deemed to be an integral and supplementary part of” the agreements reached
in Santiago in 1952, of which the Santiago Declaration was the most prominent
one. Thus, the Santiago Declaration is to be read together with the Lima
Agreement, including the acknowledgment of the existing maritime boundaries
in Article 1 of the latter Agreement. In the Lima Agreement the three States
parties were acting on a common understanding that they had already delimited
their maritime boundaries in the Santiago Declaration.
1. The approach to the Lima Agreement in Peru’s Memorial
2.207. Peru presents a different version of how the Lima Agreement relates to
the Santiago Declaration. Peru considers that the only delimitation effected by
Article IV of the Santiago Declaration is between the maritime zones of islands
lying within 200 nautical miles of the parallel passing through the point at which
the land boundary of the States concerned reaches the sea, on the one hand, and
the area of the general maritime zone of the adjacent State which abuts any such
insular zones, on the other hand. Peru argues that since the only insular zones
requiring delimitation are Ecuadorean, Article IV applies only between Ecuador
410
and Peru . Peru seeks to deal with Article 1 of the Lima Agreement, which
refers to “the parallel which constitutes the maritime boundary between the two
countries”, by taking the phrase out of context and saying that it refers only to
“one parallel between two countries” 411— i.e. that it applies only to the “parallel
412
which constitutes the maritime boundary” between Ecuador and Peru. Peru
409
Lima Agreement, Annex 50 to the Memorial , Art. 4.
410 See Memorial, para. 4.77.
411
Ibid., para. 4.103 (emphasis in the original).
412 Lima Agreement, Annex 50 to the Memorial , Art. 1.
146says that this is “readily understandable in the context of the 1952 Declaration of
Santiago, which [the Lima Agreement] complemented” . 413
2.208. The reference to “the maritime boundary” in the Lima Agreement is
unqualified. Islands are not mentioned anywhere in the Lima Agreement, in
connection with the maritime boundary or otherwise. There is no support
anywhere in the text of the Lima Agreement or any preparatory works or
relevant subsequent State practice for the proposition that the maritime boundary
to which the Lima Agreement refers is only one between Ecuador’s insular
maritime zones and the part of Peru’s general maritime zone which those insular
zones abut. As shown in Figure 7 above, any such interpretation would not
explain the full delimitation that Peru acknowledges to exist between itself and
Ecuador. On Peru’s present reading of the Santiago Declaration and the Lima
Agreement, the special maritime frontier zone created under the Lima
Agreement is explicable only in so far as it applies to the part of the Ecuador-
Peru boundary within 200 nautical miles of an island. The application of the
special maritime frontier zone to the part of the Ecuador-Peru maritime boundary
that is not within 200 nautical miles of an Ecuadorean island cannot be explained
on the interpretation of Article IV of the Santiago Declaration and Article 1 of
the Lima Agreement advanced by Peru in its Memorial. Yet there is no
indication in the Lima Agreement or anywhere else that the “maritime frontier”
there acknowledged related only to insular zones. The only interpretation which
accords with the unqualified language of the Lima Agreement is that Article IV
of the Santiago Declaration effected a full delimitation, i.e., it also delimited the
maritime boundary between general maritime zones. It did so between Ecuador
and Peru and, equally, between Chile and Peru.
413 Memorial, para. 4.103.
1472.209. Peru also seeks to downgrade the importance of the Lima Agreement
by arguing that the zones of tolerance were “a practical device for avoiding
414
friction and the imposition of fines, not an international boundary” . The zones
of tolerance were indeed a practical device to avoid fining small-scale local
fishermen with limited navigational aids who accidentally transgressed the
boundary. But the basis on which such fines would otherwise have been imposed
was transgression by those fishermen of the existing maritime boundaries
expressly acknowledged in Article 1 of the Lima Agreement. The zones of
tolerance were a practical device premised on the existing maritime boundaries.
The parallels of latitude of those boundaries were used as the reference lines
around which the zones of tolerance were created.
2. Other 1954 agreements confirm that a maritime boundary was in place
2.210. On the same day as the Lima Agreement was signed, the three States
parties adopted a separate instrument (aclaración) clarifying, inter alia, certain
of the provisions of that Agreement . The aclaración, which must be taken into
account in the interpretation of the Lima Agreement 416, states that “accidental
presence” within the meaning of Article 2 of the Lima Agreement was to be
“determined exclusively by the authorities of the country whose maritime
jurisdictional boundary would have been transgressed” (emphasis added) 417.
This was a further acknowledgement, in a text adopted with the Lima
Agreement, of the existence of maritime boundaries between all the States
parties, not only between Peru and Ecuador.
414
Memorial, para. 4.100.
415 Final Minutes of the 1954 Inter-State Conference, 4 December 1954, Annex 40.
416 See Vienna Convention, Art. 31(2)(a).
417
The original Spanish text reads as follows: “calificada exclusivamente por las
autoridades del país cuyo límite marítimo jurisdiccional hubiere sido sobrepasado”.
1482.211. Other agreements signed at the 1954 Inter-State Conference also
reflect the common understanding of the three States that they were exercising
sovereignty and jurisdiction within their own maritime zones which had already
been delimited in Santiago in 1952. For example, the Agreement Relating to
Measures of Supervisio n and Control in the Maritime Zones o f the Signatory
Countries contains the following two provisions:
“First
I t s h a l l b e t h e f u n c t i o n o f e a c h s i g n a t o r y c o u n t r y t o
supervise and control the exploitation of the inresources
its Maritime Zone by the use of such organs and means as
it considers necessary.
Second
The supervision and control referred to in article one shall
be exercised by 418h country exclusively in the waters of
its jurisdiction.”
(Emphasis added.)
2.212. To summarize, Chile, Ecuador and Peru had already delimited their
maritime zones in 1952. In the Lima Agreement of 1954 the three States agreed
to refrain from enforcing their “exclusive sovereignty and jurisdiction” in the
case of inadvertent transgressions of the maritime boundary by small fishing
vessels of the adjacent State. They did so because enforcement action against
such accidental violations “always produces ill-feeling in the fishermen and
friction between the countries concerned, which may affect adversely the spirit
418 Agreement Relating to Measures of Supervision and Control in the Maritime Zones
of the Signatory Countries, signed at Lima on 4 December 1954,Annex 4.
149of cooperation and unity which should at all times prevail among the countries
419
signatories to the instruments signed at Santiago” .
3. Contemporaneous understanding of the Lima Agreement in Peru
2.213. In Peru it was well understood at the time that the Lima Agreement
was premised on the fact that Peru’s maritime boundary with Chile was the
“parallel at the point at which the land frontier of the States concerned reaches
the sea” 420. In a conference organized by the Association of Graduates of the
421
Geographic Institute in Peru in 1956 , Professor Martínez de Pinillos, an
eminent geographer, presented a depiction of the Peruvian maritime zone with
two parallels of latitude forming the lateral boundaries. The seaward limit was
depicted as a line parallel to the coast at a constant distance of 200 nautical miles
measured according to the geographic parallels, consistent with Peru’s 1947
Supreme Decree. This depiction also contrasted Peru’s actual maritime zone
with a larger, hypothetical maritime zone that would result from that author’s
proposed method for constructing Peru’s maritime zone, which was similar to the
envelope-of-arcs-of-circles method (Figure 12).
2.214. Professor Martínez de Pinillos criticized Peru’s maritime boundary
with Chile. He expressly acknowledged that Peru’s maritime boundary with
Chile had been recognized in the Lima Agreement as being the parallel of
latitude passing through the point where the Chile-Peru land boundary reaches
419
Lima Agreement, Annex 50 to the Memorial , second recital.
420 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
421
This conference is reported in Peruvian press to have been attended by senior
representatives of the diplomatic corps, alumni of the Peruvian Diplomatic Academy
and many politicians. See “Señalan errores en medición del mar territorial peruano
[Errors in the measurement of the Peruvian territorial sea are pointed outEl,
Comercio, 23 May 1956, Annex 247. Also see P. Martínez de Pinillos, “Geografía y
superficie de nuestro mar”, in Revista Geográfica del Perú, December 1956,
Annex 291, pp. 153-155.
150 422
the sea . He “objected” to this Agreement, as it “was at odds with our rights, as
the coast of the South American continent forms an angle precisely at the point
of our frontier with Chile and that the fair solution would be to draw the bisector
423
of this angle from that point and not a parallel line from it” . But, he said, Peru
had failed to agree a bisector-line with Chile and that failure “had resulted in a
significant cost for us in the past” .
2.215. It was publicly understood in Peru in the 1950s that Peru had agreed a
maritime boundary with Chile following a parallel of latitude and that this
boundary had certain disadvantages for Peru. Peru’s Government was criticized
for having agreed to that boundary. Notwithstanding the criticism, the Peruvian
Government continued to acknowledge and enforce the agreed maritime
boundary with Chile, as will be described in Chapter III. Doubtless the reason for
Peru’s continued adherence to the agreed delimitation was that the benefits of
regional solidarity (discussed above) far outweighed the prospect of a unilateral,
and hence weaker, claim to even greater ocean expanses.
E. R ATIFICATION AND APPLICATION OF THE L IMA A GREEMENT
425
2.216. Peru ratified the Lima Agreement on 10 May 1955 . Ecuador ratified
it some nine years later, on 9 November 1964 426. Chile ratified it some three
years thereafter, on 16 August 1967 42. The Lima Agreement entered into force
422
See “Señalan errores en medición del mar territorial peruano [Errors in the
measurement of the Peruvian territorial sea are pointed out]”,El Comercio, 23 May
1956, Annex 247.
423
Ibid.
424 Ibid.
425
See Legislative Resolution No. 12305 of 6 May 1955, enacted by the Peruvian
President on 10 May 1955, Annex 10 to the Memorial.
426 See Decree No. 2556 of 9 November 1964, Annex 210.
427
See Decree No. 519 of 16 August 1967, Annex 33 to the Memorial.
151on 21 September 1967 42, the date on which the last of the three States parties,
Chile, deposited its instrument of ratification with the Secretary-General of the
429
CPPS . Peru argues in its Memorial that the thirteen-year period that it took
Chile to ratify the Lima Agreement indicates that the Lima Agreement had little
significance for Chile, and that use of the parallel of latitude by Chile and Peru
was “es se nt ia llay d aonc arrangement for dealing with problems that might
arise concerning small fishing boats” 430.
2.217. There was a delay in the process leading to parliamentary approval and
ultimately ratification in Chile 431, as there had been in Ecuador. Delays in
ratification are common. Of itself, delayed ratification is of no consequence to
the legal effect of a treaty once it has entered into force. The Lima Agreement,
including its acknowledgement of the pre-existing maritime boundary, was
ultimately ratified by all three of its signatory States and did enter into force for
all three of those States.
2.218. The Lima Agreement created a zone of tolerance on each side of each
maritime boundary, but it did not create those boundaries. Its significance in
these proceedings is that it acknowledged that boundaries between all three
States parties already existed, acknowledged that all these boundaries followed a
parallel of latitude, and implemented the zones of tolerance north and south of
each boundary parallel. Whether those zones of tolerance entered into effect
quickly or slowly is irrelevant. The boundary whose existence was clearly
428
Recorded in the United Nations Treaty Seriesat 2274 UNTS 527.
429 Instrument of ratification of the Agreement Relating to a Special Maritime Frontier
Zone signed by the President of Chile on 21 September 1967, Annex 124.
430
Memorial, para. 4.115.
431 As explained at paragraphs 3.9-3.11 there were discussions between Chile and Peru
in 1954-1955 and in 1961 about a potential bilateral regime different from the Lima
Agreement.
152acknowledged and acted upon was already in place throughout the period in
which ratification of the Lima Agreement was pending in Chile and Ecuador. In
fact, Peru’s early ratification of the Agreement demonstrates that Peru had no
hesitation in confirming its maritime boundary with Chile. Indeed, as Peru’s
Permanent Representative to the United Nations wrote to the Secretary-General
of the United Nations in 1976, Peru considered that the Lima Agreement
“entered into force for Peru, Chile and Ecuador on 10 May 1955, the date of
ratification” . That was the date of Peru’s ratification.
2.219. The Lima Agreement did not actually enter into force for Chile until
Chile had deposited its instrument of ratification with the Secretary-General of
the CPPS in 1967. But Peru’s belief that the Lima Agreement had entered into
force for Chile upon Peru’s ratification in 1955 may explain why prior to Chile’s
ratification, Peru invoked the Lima Agreement in requesting that Chile adopt
measures to stop incursions by Chilean vessels north of the Chile-Peru maritime
boundary. That request dates from 1962 and is worded as follows:
“[T]he Government of Peru, taking strongly into account
the sense and provisions of the ‘Agreement Relating to a
Special Maritime Frontier Zone’. . .wishes the
Government of Chile, particularly through the competent
authorities of the port of Arica, to adopt measures to put an
end to these illegitimate incursions, and that the owners of
fishing vessels be notified that they must refrain from
”433
c o n t i n u i n g t o f i s h thenPoerut-hhileffrontier.
(Emphasis added.)
432 Note No. 7-1-SG/22 of 6 May 1976 from the Permanent Representative of Peru to
the United Nations to the Secretary-General of the United Nations,Annex 84. The
original Spanish text reads as follows: “entraron en vigor para Perú, Chile y Ecuador,
el 10 de mayo de 1955, fecha de la ratificación.”
433
Memorandum No. 5-4-M/64 of 20 December 1962 from the Peruvian Embassy in
Chile to the Ministryof Foreign Affairs of Chile, Annex 73.
1532.220. The terms “Peruvian-Chilean frontier” are as unambiguous as they are
unqualified. There was no suggestion that the “frontier” referred to was of a
434
“provisional” or “functional” character, as Peru now suggests . It is also plain
from Peru’s communication that it understood the Lima Agreement to be
applicable, not only to the maritime boundary between Peru and Ecuador, but
also to the maritime boundary between Peru and Chile. There is no suggestion in
Peru’s communication of any “ad hoc arrangement”, as Peru now says . 435
2.221. Despite Peru’s early reliance upon the Lima Agreement in its bilateral
relations with Chile, Peru now asserts in its Memorial that whilst “the 1954 zone
of tolerance was understood to apply to the waters between Peru and Ecuador, an
informal practice, which was not set out in any international instrument, had
436
arisen in the south” . Peru’s argument is that the Lima Agreement created
zones of tolerance between Peru and Ecuador but not between Chile and Peru.
That new argument leaves Peru with the difficulty of explaining its long-standing
recognition of the applicability of the Lima Agreement between Chile and Peru.
Peru attempts to do so by saying that it respects “the provisional 1954 line. . .on
the basis that it is implementing a practical arrangement of a provisional nature
in order to avoid conflicts between fishing vessels, not that it is observing an
agreed international boundary” 437. This is merely a sequence of unsupported
assertions, contradicted both by the ordinary meaning of the Lima Agreement
and by Peru’s own invocation of the Lima Agreement in its bilateral relations
with Chile.
434
See, e.g., Memorial, paras 4.71 and 4.106.
435 Ibid., para. 4.115.
436
Ibid., para. 4.105.
437 Ibid., para. 4.106.
1542.222. To mention one more example of such an invocation, the Bákula
Memorandum of 1986, in which Peru suggested renegotiation of the agreed
maritime boundary, specifically refers to the Lima Agreement, recalling “the
e x i s t e n c e o f a s p e c i a l z o n e — e s t a b l i s h e d b y t h e ‘ A g r e e m e n t R e l a t i n g t o a
Marit ime Frontier Zone’ — [which] referred to the line of the parallel o f the
438
point reached by the land border” . That Peruvian memorandum was addressed
solely to Chile and clearly acknowledged the application of the Lima Agreement
between Chile and Peru, including with respect to the parallel of latitude.
Section 10. The Widespread Understanding that the Santiago Declaration
delimited the Parties’ Maritime Zones
2.223. The ordinary meaning of the Santiago Declaration, confirmed by the
Lima Agreement, is that Chile and Peru have delimited their boundary by
agreement, using the parallel of latitude passing through the point at which the
land boundary reaches the sea. This is the meaning which has been given to the
Santiago Declaration by third States (including Colombia, before it became a
CPPS Member State in 1979), the United Nations and numerous publicists.
A. P OSITION OF T HIRD STATES
2.224. The existence and course of the maritime boundary between Chile and
Peru is of interest primarily to those two States. There is no overlapping claim by
any other State. For States not party to the Santiago Declaration — and in
particular those with long-distance fishing fleets and those that had a strategic
interest in the preservation of narrow territorial seas — the salient issue was the
extension of “exclusive sovereignty and jurisdiction” to a minimum of 200
nautical miles. The lateral boundaries between the parties to the Santiago
438
Bákula Memorandum, Annex 76 to the Memorial, fifth paragraph.
155Declaration were of little or no importance to third States. Nevertheless, where
third States have expressed a view on the maritime delimitation between Chile
and Peru, they have acknowledged that the Santiago Declaration constitutes a
maritime boundary agreement both between Chile and Peru and between
Ecuador and Peru.
1. Colombia
2.225. The most notable example is Colombia. In 1975, prior to its adhesion
to the CPPS four years later, Colombia expressed the understanding that the
Santiago Declaration constituted a delimitation agreement between Chile, Peru
and Ecuador.
2.226. Colombia concluded a delimitation agreement with Ecuador in 1975,
under which “the line of geographical parallel traversing the point at which the
international land frontier between Ecuador and Colombia reaches the sea” 439
constitutes the maritime boundary between the two States. The wording is
equivalent to that which is found in Article IV of the Santiago Declaration.
2.227. The explanations given before the Colombian Congress in the
ratification process of this agreement indicate Colombia’s understanding that a
practice exists in the region to use parallels of latitude to delimit adjacent
maritime areas, including as between the three States parties to the Santiago
Declaration. The Colombian Foreign Minister had this to say in Congress:
“This system of delimitation [using parallels of geographic
latitude], used frequently by several States, was in
439
Agreement Concerning Delimitation of Marine and Submarine Areas and Maritime
Co-operation between the Republics of Colombia and Ecuador, signed at Quito on
23 August 1975, 996 UNTS 237 (entered into force on 22 December 1975),
Annex 9, Art. 1.
156 particular chosen by the signatory countries of the
Santiago Declaration for delimiting their respective
maritime jurisdictions. . . It is evident that, in the Pacific
Ocean, this line [of parallel] constitutes a clear, fair and
simple frontier, which me440 the interests of the two
countries adequately.”
During the debate in Colombia’s Congressional Commission on International
Relations and National Defence, Senator Heraclio Fernández Sandoval had
expressed a very similar view 441.
2. Limits in the Seas: United States of America’s Department of State
2.228. The relevant issues ofLimits in the Seas, published by the Bureau of
Intelligence and Research of the United States Department of State, state that,
pursuant to the Santiago Declaration, the maritime boundary between Chile and
442 443
Peru , as well as that between Peru and Ecuador , follow a parallel of
latitude444. The depiction of the Chile-Peru maritime boundary records that the
440
S t a t e m en t o f R e a s o n s o f S e p t e m b e r 1 9 7 5 b y t h e M i n i s t e r o f F o r e i g n A f f a i r s o f
Colombia before the Colombian Congress in respect of the bill to approve the
Agreement between Colombia and Ecuador concerning Delimitation of Marine and
Submarine Areas and Maritime Co-operation,Annex 214.
441
See Presentation of 15 October 1975 by Senator Fernández before Colombia’s
Congressional Commission on International Relations and National Defence of the
bill approving the Agreement concerning Delimitation of Marine and Submarine
Areas and Maritime Co-operation between the Republics of Colombia and Ecuador,
Annex 215.
442
See United States Department of State, Office of the Geographer, Limits in the Sea,s
No. 86: Maritime Boundary: Chile-Peru, July 1979, Annex 216.
443 See United States Department of State, Office of the Geographer, Limits in the Seas,
No. 42: Straight Baselines: Ecuador, May 1972, Annex 213, p. 5: “Article IV of the
1952 Santiago Declaration on the Maritime Zone defines the maritime boundary
between adjacent member states.”
444 It is stated Liimits in the Seas that “this research does not represent an official
acceptance of the United States Government of the line or lines represented on the
charts or, necessarily, of the specific principles involved, if any, in the original
drafting of the lines”: Annex 216, p. 1.
157United States of America understands a lateral maritime boundary constituted by
a parallel of latitude to have been agreed by Chile and Peru. The relevant issues
of Limits in the Seas were first published in 1979. Since then Limits in the Seas
has confirmed the point on at least three subsequent occasions, in 1990 445,
446 447
1995 , and 2000 . Limits in the Seas depicts the Chile-Peru maritime
boundary as shown inFigure 13.
3. People’s Republic of China
2.229. The People’s Republic of China State Oceanic Administration Policy
Research Office published a Collection of International Maritime Delimitation
448 449
Treaties in 1989 . The sketch-map in this Collection , reproduced in
Figure 14, indicates China’s understanding that Chile and Peru have an agreed
maritime boundary following a parallel of latitude.
4. Several States in pleadings before the Court
2.230. In several cases States have submitted pleadings to the Court, which
were ultimately made publicly available, and which relied on the maritime
445 See United States Department of State, Office of Ocean Affairs,Limits in the Seas,
No. 108: Maritime Boundaries of the World, 1st Revision, 30 November 1990,
Annex 219.
446 See United States Department of State, Office of Ocean Affairs,Limits in the Seas,
No. 36: National Claims to Maritime Jurisdiction, 7th Revision, 11 January 1995,
Annex 220.
447
See United States Department of State, Office of Ocean Affairs,Limits in the Seas,
No. 36: National Claims to Maritime Jurisdiction, 8th Revision, 25 May 2000,
Annex 222.
448
People’s Republic of China State Oceanic Administration Policy Research Office,
Collection of International Maritime Delimitation Treaties, 1989, Annex 218.
449 A caveat to this Chinese publication states that “[t]he content of this book does not
represent an official acceptance of the PRC of the boundaries represented”: Ibid.,
Preface.
158boundary between Chile and Peru as a boundary constituted by a parallel of
latitude. Those cases span a period of more than 20 years, starting from the first
case on maritime delimitation before the Court. They are outlined below.
2.231. As discussed at paragraph 2.163 above, in North Sea Continental
Shelf, the Federal Republic of Germany referred to the unilateral proclamations
of maritime zones by Chile and Peru in 1947, and to the Santiago Declaration
and the Lima Agreement. Germany stated that Chile, Ecuador and Peru: “did not
conclude separate treaties on the delimitation of their continental shelves. They
agree, however, that the lateral boundaries between Chile and Peru and Peru and
Ecuador follow the parallel of geographic latitude from the final point of the land
450
frontier” . This was part of the Federal Republic’s case that equidistance had
no status as an obligatory rule in customary law. Denmark and The Netherlands
responded that the instruments cited by the Federal Republic formed “part of
highly special understandings and agreements between the three States
451
concerned” . All States concerned in the proceedings accepted that Chile,
Ecuador and Peru had delimited their respective maritime boundaries by
agreement using parallels of latitude 452.
2.232. In the Gulf of Maine case, the United States of America cited the
Limits in the Seas series, including the issues on the Chile-Peru boundary
(No. 86, of 1979) and the Peru-Ecuador boundary (No. 88, of 1979) and
450
North Sea Continental Shelf (Federal Republic of Germany/Denmark), Reply
submitted by the Government of the Federal Republic of Germany on 31 May 1968,
Annex, “International and Inter-state Agreements concerning the Delimitation of
Continental Shelves and Territorial Waters”, Chile-Peru-Ecuador, I.C.J. Pleadings,
Vol. I, p. 437.
451
North Sea Continental Shelf (Federal Republic of Germany/Denmark), Common
R e j o i n d e r s u b m i t t e d b y t h e K i n g d o m o f D e n m a r k a n d t h e K i n g d o m
Netherlands on 30 August 1968, I.C.J. Pleadings, Vol. I, p. 496, para. 68.
452 Ibid.
159described the delimitation practice prevailing in the Pacific coast of the South
American continent as adopting–
“an approach similar in effect to the perpendicular to the
general direction of the coast. These States [Chile, Peru,
E c u a d o r a n d C o l o m b i a ] , w h i c h w e r e t h e f i r s t S t a t e s t o
assert a 200-nautical-mile maritime jurisdiction, extended
their maritime boundaries along parallels of latitude from
the terminal point of their land boundaries with the coast.
This method produced east-west boundaries extending
seaward for long distances, thereby giving effect to the
g e n e r a l n o r t h - s o u t h t r e n d o f t h e c o a s t a l d i r e c t i o n a n d
453
disregarding local coastal irregularities.”
Canada contested that the Chile-Peru maritime boundary could be characterized
as an example of drawing a line perpendicular to the general direction of the
coast. But, equally, Canada acknowledged that the Santiago Declaration was a
delimitation agreement which set forth a parallel of latitude as the boundary 454.
2.233. In the Continental Shelf case between Libya and Malta, Libya stated
that Chile, Ecuador and Peru had agreed upon their maritime boundaries under
the Lima Agreement, which “adopted the parallel of latitude from the terminal
455
point of their land frontier” . Malta produced an expert opinion by
Professor Prescott, who acknowledged that the Santiago Declaration constituted
453
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United
States of America), Memorial of the United States submitted on 27 September 1982,
I.C.J. Pleadings, Vol. II, p. 101, para. 265.
454 See Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), Counter-Memorial of Canada submitted on
28 June 1983, I.C.J. Pleadings, Vol. III, p. 239, para. 639; Annex to the Reply of
Canada submitted on 12 December 1983, I.C.J. Pleadings, Vol. V, p. 182, where
Canada included the Santiago Declaration in the list of delimitation agreements.
455
Continental Shelf (Libyan Arab Jamahiriya/Malta), Counter-Memorial submitted by
Libya on 26 October 1983, I.C.J. Pleadings, Vol. II, p. 110, footnote 5.
160a delimitation agreement between Chile and Peru, as well as between Peru and
Ecuador 45.
2.234. In the Jan Mayen case, Denmark used the Santiago Declaration as an
example of a single-line, all-purpose delimitation of all maritime zones between
the parties. Denmark also acknowledged that the Santiago Declaration
constituted the delimitation agreement between Chile and Peru, as well as
457
between Peru and Ecuador .
B. T HE U NITED N ATIONS
2.235. In 1991 the United Nations Office for Ocean Affairs and the Law of
the Sea produced a compilation of boundary agreements concluded between
1942, when the United Kingdom (on behalf of Trinidad) and Venezuela signed
the Gulf of Paria Treaty, and 1969, when the Court decided the North Sea
Continental Shelf cases. To use the words of the introduction in the publication:
“The present publication reproduces the texts of 27 maritime boundary
458
agreements with illustrative maps covering the period 1942-1969” . The
publication reproduces the Santiago Declaration in full 459 a n d p r o v i d e s t h e
456
See Continental Shelf (Libyan Arab Jamahiriya/Malta), Expert Opinion by Dr. J. R.
V. Prescott, Annex 4 to the Reply submitted by Malta on 12 July 1984, I.C.J.
Pleadings, Vol. I, p. 245: see Table 4, p. 267 (the relevant agreements are referred to
by their dates).
457
See Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v. Norway), Memorial submitted by the Kingdom of Denmark on 31 July
1989, I.C.J. Pleadings, Vol. I, para. 364.
458 United Nations Office for Ocean Affairs and the Law of the Sea,The Law of the Sea
– Maritime Boundary Agreements (1942-1969), 1991, Annex 241, p. v.
459
Ibid., pp. 87-88.
161 460
sketch-map (reproduced in Figure 15 ), taken originally from Canada’s 1983
pleadings in theGulf of Maine case.
2.236. In 2000 the United Nations Division for Ocean Affairs and the Law of
the Sea published a Handbook on the Delimitation of Maritime Boundaries. The
Handbook specifically cites the agreement between Peru and Chile in 1952 as an
example of the delimitation method that “uses parallels of latitude. . .to draw the
delimitation line”, noting that the operative parallel is determined by “the point
461
where the land frontier reaches the sea” .
C. P UBLICISTS
2.237. As noted, the Ecuadorean plenipotentiary who signed the Lima
Agreement in 1954 was Dr. Salvador Lara. In the foreword to a book authored
by an Ecuadorean Navy officer and published in 2007, the year before Peru filed
its Application in the present case, Dr. Salvador Lara wrote of the Lima
Agreement:
“According to this Agreement, the maritime frontier
[frontera marítima] between Ecuador and Peru and Chile
a n d P e r u w a s e x p l i c i t l y d e f i n e d a s t h e p a r a l l e l
commences on the point where the land frontier [frontera
terrestre] touches the Pacific Ocean, a rule that has
lasted for several decades and that has had more than half a
century of unquestioned validity for Peru, although
460 United Nations Office for Ocean Affairs and the Law of the Sea,The Law of the Sea
– Maritime Boundary Agreements (1942-1969), 1991, Annex 241, p. 89.
461
United Nations, Office of Legal Affairs, Division for Ocean Affairs and the Law of
the Sea, Handbook on the Delimitation of Maritime Boundaries, 2000, Annex 242,
p. 57, para. 223.
162 currently a dangerous interpretation regard462 the maritime
boundary with Chile is being advanced.”
2.238. In an academic work published in 1980 the former Minister of Foreign
Affairs of Ecuador, Luis Valencia Rodríguez, commented specifically on
Article IV of the Santiago Declaration and Article 1 of the Lima Agreement. He
stated that “the boundary of the territorial waters between the neighbouring
States is constituted by the parallel at the point at which the land frontier of those
States reaches the sea” 463.
2.239. President Jiménez de Aréchaga wrote the report on Chile and Peru in
the first volume of the collection edited by Professors Charney and Alexander,
International Maritime Boundaries, which volume was published in 1993. He
began his report with the following summary:
“In a tripartite joint declaration issued on 18 August 1952
by Chile, Peru, and Ecuador it was declared that the
general maritime zone of their countries shall be bounded
by the parallel of latitude drawn from the point where the
land frontier between the respective countries reaches the
sea (Article IV).
This delimitation line divides both the area of sea adjacent
to the coasts of these countries and the sea floor and
subsoil thereof (Articles II and III). It is an all-purpose
delimitation line, extending not less than 200 nautical
miles (n.m.) from the coast (Article II).
462 Foreword by J. Salvador Lara in P. Goyes Arroyo, Límite Marítimo: Ecuador-Perú,
2007, Annex 269, p. xiii.
463 L. Valencia Rodríguez, Análisis de la Posición Jurídica Ecuatoriana en las
Doscientas Millas, 1980, Annex 313, p. 17.
163 There is some ambiguity in the wording of Article IV of
the declaration which provides for the maritime zone of an
island or group of islands. That the maritime boundary is,
in fact, constituted by a parallel of latitude from the
mainland was confirmed by the parties in an agreement
signed on 4 December 1954. The first article of that
agreement refers to the parallel which constitutes the
maritime boundary between the two countries.” 464
2.240. In the body of his report President Jiménez de Aréchaga explained
that:
“The adoption of the method of parallels for purposes of
delimitation may be explained by the fact that in 1952 the
states that were parties to the tripartite declaration opened
entirely new ground in the Law of the Sea by claiming a
200-mile territorial sea. In the absence of known principles
or agreed rules of delimitation, they chose the method of
the parallel of latitude drawn from the point where the land
frontier reaches the sea. Such a method would seem to be
the logical corollary to the fundamental argument invoked
in support of their maritime claims, namely, the direct and
linear projection of their land territories and land
465
boundaries into the adjacent seas.”
2.241. The author acknowledged that the “boundary established in this case
differs substantially from a hypothetical equidistant line” and that “the maritime
area of Peru established by this agreement is much smaller than the one which
464 E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and L. M. Alexander (eds),
International Maritime Boundaries, Vol. I, 1993, Annex 280, p. 793 (an addendum
in Vol. IV, 2002, Annex 282, p. 2639, notes that in 2001 Peru sent a communication
to the United Nations Secretary-General stating that Peru and Chile had not
concluded a “specific” maritime delimitation treaty).
465 E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and L. M. Alexander (eds),
International Maritime Boundaries, Vol. I, 1993, Annex 280, p. 794.
164would have resulted from an equidistant line” 466. The report included a sketch-
map showing the actual agreed boundary following the parallel of latitude, as
467
compared to a hypothetical line of equidistance .
2.242. The final point to note from the Jiménez de Aréchaga report is that the
author addressed the issue that Peru now seeks to agitate in the form of a claim to
the alta mar area. He wrote that “[o]wing to coastal configurations, the Peruvian
segment of the boundaryextends further seaward than the Chilean segment”, and
calculated that the most seaward point on the parallel of latitude constituting
Peru’s segment of the maritime boundary “is more than 360 n.m. from the land
468
boundary terminus” . On this approach, which Chile submits is the correct
approach, the parallel of latitude is an agreed limit south of which the Peruvian
maritime zone cannot extend, regardless of Peru’s coastal configuration.
2.243. Professor Reuter wrote in 1984 that:
“La Déclaration du 18 août 1952 sur la zone maritime
signée par le Chili, l’Equateur et le Pérou va conduire à
tracer une ligne unique qui sert de frontière latérale à tous
les espaces maritimes.” 469
2.244. Dr. Robert Hodgson treated the maritime boundaries between Chile,
Peru, Ecuador and Colombia compendiously. In 1982 he wrote that:
466 E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and L. M. Alexander (eds),
International Maritime Boundaries, Vol. I, 1993, Annex 280, p. 795.
467 Ibid., p. 798.
468 Ibid., p. 796.
469
P. J.-M. Reuter, “Une ligne unique de délimitation des espaces maritimes?”, in
Mélanges Georges Perrin, 1984, Annex 307, p. 260.
165 “These three maritime boundaries have been delimited by
a series of declarations and a bilateral international
a g r e e m e n t . T h e w e s t c o a s t o f t h e c o n t i n e n t o f S o u t h
America is constituted by a pair of relatively direct north-
south lines. Several variations do occur in the general
continuous trend; they, however, do not detract from the
longitudinal expression of the coast and hence the lateral
expression of the coastal fronts which the parallels of
latitude create.”470
Dr. Hodgson’s approach is consistent with that taken by President Bustamante y
Rivero in the North Sea Continental Shelf cases, discussed at paragraph 2.163
above. Writing judicially, President Bustamante y Rivero referred to effecting
lateral delimitations which have “parallel directions and, in consequence,
. . .obtaining shelves of a rectangular shape.” 471
2.245. Dr. Hodgson noted that Article IV of the Santiago Declaration
delimited the maritime boundaries between Chile and Peru, and between
Ecuador and Peru, using the parallel of latitude drawn from the point at which
“the land frontier between the two countries reaches the sea” 472. He went on to
470 R. Hodgson, “The Delimitation of Maritime Boundaries between Opposite and
Adjacent States through the Economic Zone and the Continental Shelf: Selected
State Practice”, in T. Clingan Jr. (ed.), Law of the Sea: State Practice in Zones of
Special Jurisdiction, 1982, Annex 272, p. 296.
471 Separate opinion of President Bustamante y Rivero, North Sea Continental Shelf,
Judgment, I.C.J. Reports 1969, p. 62.
472
R. Hodgson, “The Delimitation of Maritime Boundaries between Opposite and
Adjacent States through the Economic Zone and the Continental Shelf: Selected
State Practice”, in T. Clingan Jr. (ed.), Law of the Sea: State Practice in Zones of
Special Jurisdiction, 1982, Annex 272, p. 297. Also see R. Hodgson and R. Smith,
“Boundaries of the Economic Zone”, in E. Miles and J. K. Gamble, Jr. (eds), Law of
the Sea: Conference Outcomes and Problems of Implementation, 1977, Annex 271,
p. 190.
166observe that the “use of the parallels of latitude was continued in the Ecuador-
473
Colombia agreement of August 23, 1975” .
2.246. Professor Johnston and Dr. Valencia, in a series of which Judge Oda
was the general editor, also treated the maritime boundaries between Colombia,
Ecuador, Peru and Chile in consolidated fashion. In 1990 these authors stated
that all of those boundaries–
“draw artificial,. . .‘geometric’ boundaries of the
astronomical kind, simply following the parallel of latitude
which passes through the terminus of the parties’ land
boundary. This common method of delimitation was
agreed upon in the 1952 Declaration on the Maritime Zone
proclaimed jointly by Chile, Ecuador and Peru, which
provided that each country should possess control over its
adjacent waters to a distance of 200 nm and that these
maritime zones should be divided by the appropriate
p a r a l l e l s o f l a t i t u d e . I n t h e c a s e o f t h e C h i l e - P e r u
boundary, the joint boundary commission has erected
towers to mark the parallel.”474
2.247. In its Memorial Peru relies on a different book by Professor Johnston
for the proposition that most maritime boundary agreements were concluded
475
after the First United Nations Conference on the Law of the Sea in 1958 . The
extract which Peru quotes includes Professor Johnston’s statement that in the
22 years following the Gulf of Paria delimitation in 1942, “only six more ocean
473
R. Hodgson, “The Delimitation of Maritime Boundaries between Opposite and
Adjacent States through the Economic Zone and the Continental Shelf: Selected
State Practice”, in T. Clingan Jr. (ed.), Law of the Sea: State Practice in Zones of
Special Jurisdiction, 1982, Annex 272, p. 297.
474 D. M. Johnston and M. J. Valenci,acific Ocean Boundary Problems – Status and
Solutions, 1991, Annex 284, pp. 75 and 77.
475 See Memorial, para. 4.7.
167boundary agreements were negotiated” 476. On the page following the one from
which Peru chooses to quote, Professor Johnston says that of “seventy-six
477
delimitation treaties examined, all except four are bilateral” . Professor
Johnston’s reference for that statement begins as follows: “The exceptions are
the tripartite boundary provisions adopted by Chile, Ecuador and Peru in 1952
and 1954. . .” 478. Professor Johnston considered the Santiago Declaration to be
one of the six delimitation treaties concluded in the period between 1942 and
1964.
2.248. Professor Lucchini and Michel V °lckel, a former Comptroller
General of the French Armed Forces, wrote in 1996 that–
“le Chili, l’Equateur et le Pérou ont, par la Déclaration de
Santiago, porté leurs choix sur la méthode du parallèle de
latitude tracé du point où la frontière terrestre ent479les
Etats atteint la mer (point IV de la Déclaration).”
2.249. Dr. Ahnish in 1993 identified the maritime boundaries established by
the Santiago Declaration, as well as the boundary subsequently agreed between
480
Ecuador and Colombia, as boundaries “drawn on parallels of latitude” .
2.250. In his Hague Academy lectures given in 1981, Professor Jagota
referred to the Santiago Declaration commenting that: “The maritime boundary
476
Memorial, para. 4.7, footnote 122, quoting D. M. JohnstThe Theory and History
of Ocean Boundary-Making, 1988, Annex 283, p. 213.
477 D. M. Johnston, The Theory and History of Ocean Boundary-Making, 1988,
Annex 283, p. 214.
478
Ibid., endnote 264, p. 390.
479 L. Lucchini and M. V°lckel, Droit de la Mer, Tome II: – Délimitation – Navigation
Pêche, 1996, Annex 289, p. 125; also see p. 148.
480
F. A. Ahnish, The International Law of Maritime Boundaries and the Practice of
States in the Mediterranean Sea, 1993, Annex 249, p. 155.
168between the parties to this Declaration was to follow the parallel of latitude
drawn from the point where the land frontier between them reaches the sea” 48.
2.251. In their 1987 Atlas of Seabed Boundaries, Professor Conforti and
others published the entirety of the text of the Santiago Declaration and the Lima
482
Agreement , and then provided the sketch-map reproduced here as Figure 16,
which indicates both the boundary line and the tolerance zone under the Lima
Agreement . 483
2.252. Professor Prescott wrote in 1975 that “Chile, Peru and Ecuador have
agreed that the boundaries between their respective territorial waters will be
drawn along the parallels which intersect the coast at the termini of the land
boundaries” 484. He acknowledged that a “parallel of latitude is of course an
arbitrary line” and that “because of the general direction of the coast, Peru
485
forfeits territorial waters” . H e c o n c l u d e d t h a t “ [ s ] u c h a l o s s i s o b v i o u s l y
considered minor compared with the benefit of having a clear boundary, easily
determined by mariners” 486.
2.253. In a 1985 book, Professor Prescott wrote that:
“Maritime boundaries have been drawn between Colombia
and Ecuador, Ecuador and Peru and Peru and Chile. They
481
S. P. Jagota, “Maritime Boundary”, Recueil des cours, Vol. 171, 1981-II,
Annex 274, pp. 117-118.
482 See B. Conforti and G. Francalanci (eds), Atlas of the Seabed Boundaries, Part Two,
1987, Annex 257, pp. 199-200.
483
B. Conforti and G. Francalanci (eds), Atlas of the Seabed Boundaries, Part Two,
1987, p. 203.
484 J. R. V. Prescott,The Political Geography of the Oceans, 1975, Annex 304, p. 103.
485 Ibid.
486
Ibid.
169 share the common characteristics that they coincide with
the parallel of latitude which passes through the terminus
of the land boundary, and that a buffer zone has been
487
created on each side of the boundary” .
He included the sketch-map shown in Figure 17.
2.254. Professor Prescott depicted the alta mar situation in that sketch-map,
explaining that “[b]ecause of the westwards bulge in the Peruvian coast the
claims to a zone 200 nautical miles from that coast terminate seawards of similar
488
claims by Chile and Ecuador” .
2.255. Dr. G. J. Tanja reproduced Professor Prescott’s sketch-map 489. In the
accompanying text, Dr. Tanja wrote that “Peru and Chile, and Ecuador and Peru
have established maritime boundaries making use of the parallel of latitude and
creating special zones on either side of the parallel or boundary for small private
fishing vessels of both states” 490.
2.256. Professor Georges Labrecque considered that:
“C’est à double titre que la frontière Chili/Pérou, de même
que celle entre le Pérou et l’Équateur, sont tout à fait
remarquables : elles peuvent être considérées, dix ans
après l’accord de délimitation du plateau continental entre
le Royaume-Uni (Trinité et Tobago) et le Venezuela,
487 J. R. V. Prescott,The Maritime Political Boundaries of the World, 1985, Annex 305,
p . 2 0 3 . A l s o s e e PJ re.sctt .aV C. . Schofield, The Maritime Political
Boundaries of the World, 2nd edn, 2005, Annex 306, pp. 231 and 588.
488 J. R. V. Prescott,The Maritime Political Boundaries of the World, 1985, Annex 305,
pp. 203-204.
489 See G. J. Tanja, The Legal Determination of International Maritime Boundaries,
1990, Annex 311, p. 330.
490 Ibid., p. 148.
170 comme les deux premières frontières maritimes —
multifonctionnelles — au monde, au-delà de la mer
territoriale ; en outre, ces frontières-lignes sont assorties de
491
zones de tolérance” . (Emphasis in the original.)
2.257. Professor Labrecque provided a sketch-map which shows the parallel
of latitude operating both as a boundary between abutting maritime zones and
also as a limit restraining any Peruvian claim to the alta mar area 492.
2.258. Professor Labrecque specifically addressed the alta mar issue, with
reference to Article IV of the Santiago Declaration, stating:
“Étant donné la configuration particulière du littoral, qui
change de direction au point terminal de la frontière
terrestre, les 200 milles de frontière maritime se trouvent
« prolongés », en quelque sorte, de 160 milles, pour
délimiter latéralement la zone dévolue au Pérou. L’accord
prévoit que la frontière maritime — qui s’éloigne
considérablement d’une ligne d’équidistance stricte à
l’avantage du Chili — coïncide avec le parallèle de
latitude tiré du point terminal 493la frontière terrestre où
elle atteint la mer (article 4).” (Emphasis in the original.)
2.259. In an account of State practice published in 1994, Rodman Bundy
recounted examples of maritime boundaries that are constituted by lines of
latitude, observing of this method that “one of its advantages lies in its
491 G. Labrecque, Les frontières maritimes internationales – Géopolitique de la
délimitation en mer, 2004, Annex 286, p. 178.
492
A n o t a t i o n o n t h e s k e t c h - m arnenpr o86u, c.179i,nwhich reads
“Falkland (R.-U.)”, does not reflect the official position of the Republic of Chile.
493 G. Labrecque, Les frontières maritimes internationales – Géopolitique de la
délimitation en mer, 2004, Annex 286, p. 183.
171simplicity” 49. He listed, inter alia, the Chile-Peru, Peru-Ecuador and Colombia-
495
Ecuador maritime boundaries , and included the sketch-map of the Chile-Peru
maritime boundary shown in Figure 18.
2.260. A Peruvian scholar, Professor Fernán Altuve – Febres Lores wrote a
book titled El Perú y la Oceanopolítica, published by the Sociedad Peruana de
Derecho in Lima in 1998. He acknowledges that “our maritime boundaries are
measured, according to our own definition, on the basis of the parallels and not
496
through the equidistance line” . He provides the sketch-map shown in
Figure 19, which shows the southern limit of Peru’s “maritime dominion” as the
parallel of latitude agreed in the Santiago Declaration, which is compared to a
hypothetical line of equidistance. The sketch-map shows the parallel of latitude
as precluding any claim by Peru to the alta mar area.
2.261. P r o f e s s o r A l t u v e – F e b r e s L o r e s o b s e r v e s t h a t t h e
provisions in UNCLOS have no effect on Peru “because we concluded on
4 December 1954 an ‘Agreement Relating to a Special Maritime Frontier Zone’,
which has been ratified by Peru, Ecuador and Chile, and which at Article 1 refers
to ‘. . .the parallel which constitutes the maritime boundary between two
countries. . .’” . He goes on to observe that if Peru were to ratify UNCLOS,
Article 74(4) would preserve the existing agreed maritime delimitation between
498
Peru and Chile .
494 R. R. Bundy, “State Practice in Maritime Delimitation”, in G. Blake (ed.),World
Boundaries volume 5: Maritime Boundaries, 1994, Annex 254, p. 31.
495
Ibid., p. 31.
496 F. Altuve – Febres Lores, El Perú y la Oceanopolítica, 1998, Annex 250, p. 63.
497
Ibid., p. 65.
498 Ibid., p. 66.
1722.262. Space prevents the provision of extracts from the many other
publicists from many different legal traditions who have also interpreted the
Santiago Declaration and Lima Agreement as establishing the maritime
499
boundary between Chile and Peru . Some Peruvian authors have dissented
from this view in recent years, but the broad consensus among publicists, both
lawyers and geographers, from numerous regions and legal systems, is that the
maritime boundary between Chile and Peru has long been settled.
Section 11. Conclusion
2.263. This Chapter began by explaining that the land boundary between the
Parties was delimited and fully demarcated in 1929-1930. It then described the
499
See, e.g., E. D. Brown, Sea-Bed Energy and Mineral Resources and the Law of the
Sea, Vol. III, 1986, Annex 253, p. III.4.21; M. Evans, Relevant Circumstances and
Maritime Delimitation, 1989, Annex 259, p. 131; G. Francalanci and T. Scovazzi
(eds), Lines in the Sea, 1994, Annex 262, pp. 214-215; Kuen-Chen Fu, Equitable
Ocean Boundary Delimitation, 1989, Annex 264, pp. 123, 142 and 299; Yuan Gujie,
Theory and Practice of International Maritime Delimitation, 2000, Annex 270,
p. 40; H. Jayewardene, The Regime of Islands in International Law, 1990, Annex
275, pp. 312 and 493; Zhou Jian, International Law Case Studies on Island
Sovereignty and Maritime Delimitation, 1999, Annex 277, pp. 363-365; Gao
Jianjun,International Maritime Delimitation Study, 2005, Annex 278, pp. 44 and 49;
N. Marques Antunes, Towards the Conceptualisation of Maritime Delimitation,
2003, Annex 290, pp. 174-175; T. L. McDorman, K. P. Beauchamp, D. M. Johnston,
Maritime Boundary Delimitation: an Annotated Bibliography, 1983, Annex 292,
p. 191; K. G. Nweihed, Frontera y Límite en su Marco Mundial, 1992, Annex 297,
p. 468; F. Orrego Vicuña, “International Ocean Developments in the Southeast
Pacific: The Case of Chile”, in J. P. Craven, J. Schneider and C. StimsoT nh(eds),
International Implications of Extended Maritime Jurisdiction in the Pacific, 1989,
Annex 302, p. 221; F. Orrego Vicuña, The Exclusive Economic Zone: Regime and
Legal Nature under International Law, 1989, Annex 301, p. 206; F. M. Pfirter de
Armas, “¿Perú: la marcha hacia el oeste?”, in R. Zacklin (ed.), El Derecho del Mar
en Evolución: La Contribución de los Países Americanos, 1975, Annex 303, p. 303;
S. Rhee, “Equitable Solutions to the Maritime Boundary Dispute between the United
States and Canada in the Gulf of MA amieri”c,an Journal of International Law,
Vol. 75, 1981, Annex 308, p. 606, footnote 87; J. Zavala,Consenso y Confrontación
en la Delimitación de la ZEE y de la Plataforma Continental, 1998, Annex 317,
pp. 133, 135 and 295.
173concordant unilateral proclamations of 200M maritime zones made by both
Parties in 1947. The southern limit of Peru’s 1947 claim was later agreed to form
the Parties’ maritime boundary in the 1952 Santiago Declaration. That was the
parallel of latitude passing through the point at which the Parties’ land boundary
reaches the sea. That parallel of latitude remains the maritime boundary between
the Parties for all purposes, and whatever the seaward extent of their maritime
zones. In 1954 the Parties concluded the Lima Agreement as “an integral and
supplementary part of” 500the Santiago Declaration. In the Lima Agreement they
unambiguously acknowledged that they had already delimited their maritime
boundary. This Chapter closed by recounting examples of the extensive
recognition of the settled maritime boundary between Chile and Peru by third
States, by the United Nations, and by numerous publicists from diverse legal
traditions. The next Chapter turns to the acknowledgement and implementation
of the agreed maritime boundary by both Parties in their subsequent agreements
and in their practice.
500
Lima Agreement, Annex 50 to the Memorial , Art. 4.
174 CHAPTER III
ACKNOWLEDGEMENT AND IMPLEMENTATION OF THE AGREED
BOUNDARY IN SUBSEQUENT AGREEMENTS AND IN PRACTICE
Section 1. Introduction
3.1. As established in Chapter II, Chile, Ecuador and Peru agreed in the
Santiago Declaration of 1952 that their maritime zones were delimited laterally
by parallels of latitude that pass through the points at which the land frontiers of
the States concerned reach the sea. By that time, the Chile-Peru land boundary
had been fully delimited and demarcated.
3.2. Peru argues in its Memorial that: (a) there is no agreed maritime
boundary 501; and (b) the parallel of latitude of Hito No. 1 was a provisional line
solely and specifically for traffic control of fishing vessels, derived from an
informal practice of Chile and Peru which was developed in the absence of any
delimitation agreement 502. This argument is in stark contrast with the position
that both Peru and Chile have long adopted, as evidenced in their treaty and other
practice. That is the subject of this Chapter. The Agreement Relating to a Special
Maritime Frontier Zone (the Lima Agreement) is a prominent part of that
practice. That Agreement was examined in Section 9 of Chapter II because it is
expressed to be an “integral and supplementary” part of the Santiago
Declaration.
3.3. Subsequent agreements between Chile and Peru, as well as the two
States’ unilateral and bilateral practice, all confirm the Parties’ contemporaneous
understanding that their maritime zones had been delimited fully and
definitively, and that the boundary line followed the parallel of latitude passing
501 See Memorial, para. 8.3.
502
Ibid., paras 4.105-4.106.
175through Hito No. 1. These agreements and practice were based on the Santiago
Declaration and the Lima Agreement. The practice of Ecuador, also a party to
these two international agreements, is to the same effect. Furthermore, the Parties
confirmed their understanding on the existence of a maritime boundary between
them, not only through bilateral agreements and practice but also in the course of
negotiations with third States on maritime issues.
3.4. As significant as the affirmative practice of the Parties, consisting of
m e a s u r e s a c t i n g u p o n t h e a g r e e d d e l i m i t a t i o n a n d g i v i n g e f f e c t t o i t , i s t h e
absence of incidents putting the agreed delimitation into question 503. Neither
Peru’s Navy nor any other Peruvian State entity has transgressed the boundary or
otherwise acted in defiance of it. There has been quiet possession on either side
of the parallel of latitude; and, indeed, there has been co-operation and co-
ordination between the two States in enforcing observance of that boundary. This
strongly indicates the two States’ concordant understanding about the existence
and the course of the boundary line. For Chile’s part, this understanding can be
s e e n f r o m a s k e t c h - m a p w h i c h w a s p a r t o f t h e C h i l e a n N a v y ’ s R u l e s o f
Engagement in its version of the early 1990s, reproduced as Figure 20. The
sketch-map clearly depicts the maritime boundary as being the parallel of
latitude of Hito No. 1, fully delimiting the Parties’ respective maritime zones. It
a l s o d e p i c t s a 1 0 M “ S p e c i a l M a r i t i m e F r o n t i e r Z o n e ” o n e i t h e r s i d e o f t h e
boundary.
503
Minor incidents have been triggered by disagreements on the location of vessels,
rather than the existence or course of the maritime boundary; see, e.g., Note
No. (DSL) 6-4/112 of 6 November 2002 from the Ministry of Foreign Affairs of
Peru to the Chilean Embassy in Peru, Annex 101, on an encounter between the
Chilean Navy patrol ship Fresia and the Peruvian Coastguard ship Río Zaña in the
maritime frontier on 15 October 2002.
176 Section 2. Implementation of the Boundary and Signalling along the
Parallel of Latitude of Hito No. 1 (1968-1969)
3.5. Both Chile and Peru sought to enforce the maritime boundary vis-à-vis
fishermen who crossed the boundary in pursuit of schools of fish. Incursions of
this kind resulted in a series of complaints through diplomatic channels,
negotiations on possible solutions and, ultimately, in the work of a new Chile-
Peru mixed commission in 1968-1969 (the 1968-1969 Mixed Commission) for
the construction of two lighthouses which, when aligned, were to signal the
504
maritime boundary .
3.6. As is explained in this Section, the two alignment lighthouses ( faros
de enfilación) w e r e c o n s t r u c t e d p r i m a r i l y f o r t h e b e n e f i t o f m a r i n e r s a n d
fishermen, who in this way would be able to identify the maritime boundary
without sophisticated navigational aids. The lighthouses were constructed as a
practical solution for a specific purpose. However, their construction is
predicated on a broader understanding by Chile and Peru that an all-purpose
definitive boundary had been agreed, and that it followed the course of the Hito
No. 1 parallel. The decision to build the lighthouses was prompted by concern in
Chile and Peru about incursions into their “jurisdictional waters” — a term
connoting maritime zones of sovereignty or exclusive jurisdiction. The Parties
understood in 1968-1969 that the lighthouses were signalling the all-purpose
maritime boundary between them. The lighthouses did not simply signal a line of
a provisional nature, as Peru now argues 505. The Parties further acknowledged
504 The Chile-Peru lighthouse system is not the only pair of alignment towers to signal a
maritime boundary between two States. In 1980, Turkey and the Soviet Union
decided to use “two leading marks and one sea buoy” to define the boundary line of
their 12-mile territorial seas; see T. Scovazzi, “Turkey-Soviet Union (Territorial
S e a ) ” i n J . I . C h a r n e y a n d L . InMter.naonlalx aartidee r ( e d s ) ,
Boundaries, Vol. II, 1993, Annex 310, pp. 1687-1691.
505 See, e.g., Memorial, paras 4.106 and 4.127.
177that the all-purpose maritime boundary had been established prior to 1968, and
that the boundary was the parallel of latitude passing through Hito No. 1.
A. A CKNOWLEDGEMENT OF THE EXISTENCE OF THE BOUNDARY
3.7. As already noted 506, through the 1950s the fishing industry was
becoming a strong contributor to both Chile’s and Peru’s economy. Both States
are located in geographically strategic zones, dominated by the fisheries-rich
Humboldt Current. Chilean and Peruvian fishing boats were exploring the waters
in the vicinity of the boundary in pursuit of schools of anchovy, tuna and bonito.
This resulted in continuous incursions of Chilean and Peruvian fishing boats into
the waters of the other State. This kind of trespassing became a serious issue for
both Peru and Chile.
3.8. In response to the recurring problems, in 1961 the Chilean maritime
authorities formally demanded of Chilean fishermen not to cross into Peruvian
507
territorial waters . An internal document of Chile from 1971 records
confirmation by the Maritime Governor of Arica that the managers of fishing
companies and the directors of the Unions of masters, mechanics ( motoristas)
and crews of fishing vessels had been repeatedly warned, verbally and in writing,
508
not to cross the “boundary parallel [paralelo limítrofe]” . Fo r it s part, Peru
instructed, and has continued until very recently to instruct, its fishermen not to
cross the parallel of Hito No. 1. The stamp affixed by the Peruvian authorities on
506 See paras 2.136-2.140 above.
507 See Letter No. 12115/1 of 10 February 1961 from the Maritime Governor of Arica to
(inter alios) fishing companies INDO and EPERVA, Annex 118; Letter No. 12115/2
of 11 February 1961 from the Maritime Governor of Arica to the President of the
Union of Fishermen in Arica,Annex 119.
508 Note No. 12115/6 of 12 May 1971 from the Maritime Governor of Arica to the
Director of International Relations of the Ministry of Foreign Affairs of Chile,
Annex 128, para. d.
178declarations submitted by fishermen reads: “Captain and crew members are
reminded of the prohibition on sailing to the south of the parallel
18° 21' 03" S” 50.
3.9. Chile attempted to secure an arrangement with Peru under which
Chilean and Peruvian fishing vessels would be allowed to fish in certain areas of
the maritime zone of the other State without being treated as transgressors. The
first attempt by Chile was made in 1954-1955. Following a démarche by
510
Chile , in early 1955 the Parties agreed to instruct their respective maritime
authorities to allow Chilean and Peruvian fishermen to fish in the waters of the
other State . This agreement was not memorialized, so as not to affect the Lima
512
Agreement, which had just been concluded . Peru’s Government was
understood by Chile to be prepared to clarify the position in the form of an
513
instruction to Peru’s maritime authorities . This agreement was ultimately not
put into effect, but the record indicates that the discussion between the Parties
was predicated upon their understanding that their maritime zones had been
delimited and that the Lima Agreement was to apply to establish a zone of
tolerance along the boundary line.
509
See examples of “Declaration of Weighing Anchor by Artisanal Fishing Vessels”
(Declaración de Zarpe Embarcaciones Pesqueras Artesanales) in 2002 and 2003,
stamped bythe Harbour Master of Ilo, Annex 203.
510
See Confidential Note No. 68 of 27 November 1954 from the Ministry of Foreign
Affairs of Chile to the Chilean Ambassador to Peru,Annex 112.
511 See Confidential Note No. 6 of 31 January 1955 signed for the Minister of Foreign
Affairs of Chile to the Chilean Ambassador to Peru, Annex 113. Confidential Note
No. 94/15 of 3 February 1955 from the Chilean Ambassador to Peru to the Minister
of Foreign Affairs of Chile, Annex 114.
512 See Confidential Note No. 94/15 of 3 February 1955 from the Chilean Ambassador
to Peru to the Minister of Foreign Affairs of Chile, Annex 114.
513
See Cable No. 33 of 31 March 1955 from the Chilean Ambassador to Peru to the
Minister of Foreign Affairs of Chile, Annex 116.
1793.10. Subsequently, in 1961, the Chilean Government proposed to the
Peruvian Government that each State grant the other special fishing concessions
within an area extending 50 miles to the north and south of “the frontier zone of
514
both countries [ la zona fronteriza de ambos países]” . The Peruvian national
section of the CPPS 515 analysed Chile’s proposal in 1961 and agreed to it in
principle 516. The report of Peru’s national section acknowledged the existence of
a “frontier line” between the two countries:
“ T h e r e a s o n s t h a t m o t i v a t e d i t [ i . e . C h i l e ’ s p r o p o s a l t o
grant special fishing concessions], namely, the movement
of the fish schools along the frontier line [ línea fronteriza]
and its effects on the industries established in the ports
near the frontier, is a proven fact which affects the fishing
517
industries of Ilo [in Peru] and Arica [in Chile].”
3.11. Ultimately, no agreement as proposed by Chile was concluded. That is
o f n o mo me n t h e r e . W h a t ma t t e r s is t h a t b o t h C h i l e a n d P e r u c o n f ir m e d i n
official correspondence and represented to each other the existence of a “frontier
line” dividing their respective maritime zones. That is squarely at odds with
Peru’s present position.
514
Note No. 142 of 20 June 1961 from the Chilean Ambassador to Peru to the Minister
of Foreign Affairs of Peru, Annex 72.
515 Each CPPS Member State has set up a national section, which is a permanent
working body comprising senior members of various Ministries and authorities, for
the purpose of coordinating its policies towards the CPPS.
516
See Report of the Peruvian section of the CPPS, quoted in Confidential Letter
No. 1043/72 of 27 September 1961 from the Chilean chargé d’affaires in Peru to the
Ministry of Foreign Affairs of Chile, Annex 120. In the last paragraph of the report,
the Peruvian national section stated that, agreeing in principle with Chile’s proposal,
it decided to forward that proposal, with its favourable opinion, to various ministries
within the Peruvian government for further consideration.
517
Ibid.
1803.12. In the meantime, incursions by fishermen into maritime zones of both
Parties continued. There was a series of diplomatic notes complaining of such
incursions. In its complaints Peru referred to “continuous transgressions of
[Peru’s] maritime frontier committed by Chilean fishing vessels” 51; and used a
number of terms indiscriminately to refer to the maritime zone which, Peru
519 520
claimed, had been transgressed into: “Peruvian waters” , “territorial waters”
and “jurisdictional waters” 521. A l l o f t h e s e t e r m s d e n o t e a p l e n i t u d e
“sovereignty and jurisdiction” in the sense of the Santiago Declaration: no
document bears out Peru’s present allegation that the maritime zones delimited
by the parallel of Hito No. 1 were merely fisheries zones. Nor does any
document suggest that the boundary line was less than permanent.
3.13. Peru considered that the parallel marked the southern limit of its
maritime zone. It was only one aspect of Peru’s rights of sovereignty and
jurisdiction that Peru did not allow Chilean vessels to engage in fishing in its
m a r i t i m e z o n e w i t h o u t a u t h o r i z a t i o n . T h u s , i n 1 9 6 4 , t h e H a r b o u r M a s t e r o f
Mollendo-Matarani in southern Peru (approximately 85 miles north of the
parallel of the boundary) informed the Harbour Master of Arica in Chile that, “in
view of the continuous violation of the maritime frontier [frontera marítima] of
Peru”, the Peruvian authorities would apply Article 133 of the Regulation of
518
Memorandum of 3 December 1965 from the Embassy of Peru in Chile to the
Ministryof Foreign Affairs of Chile, Annex 69 to the Memorial, para. 1.
519 Memorandum No. 5-4-M/64 of 20 December 1962 from the Peruvian Embassy in
Chile to the Ministryof Foreign Affairs of Chile, Annex 73.
520
M e m o r a n d u m o f 3 D e c e m b e r 1 9 6 5 f r o m t h e E m b a s s y o f P e r u i n C h i l e t o t h e
Ministryof Foreign Affairs of Chile, Annex 69 to the Memorial.
521 Memorandum of 27 September 1967 from the Ministry of Foreign Affairs of Peru to
the Chilean Embassy in Peru,Annex 77.
181Captaincies and Merchant Navy, under which foreign vessels fishing in Peru’s
territorial waters (aguas territoriales peruanas) were to be prosecuted 522.
3.14. Furthermore, Peru’s reliance on the Lima Agreement in the
correspondence at the time 523 confirms Peru’s understanding that the boundary
followed a parallel of latitude. And this parallel could only have been the one
which passes through the point at which the land frontier reaches the sea; as Peru
524
acknowledges in its Memorial , the parallel referred to in Article 1 of the Lima
Agreement is the same parallel as that referred to in Article IV of the Santiago
Declaration.
3.15. The Parties’ authorities on the ground understood this. An internal
C h i l e a n d o c u m e n t o f J a n u a r y 1 9 6 3 r e c o r d s a j o i n t v i s i t b y t h e M a r i t i m e
Governor of Arica and the Peruvian Consul in Arica to the “frontier boundary
marker on the coast”. The officials used navigational instruments to observe the
525
direction of the “Parallel of Latitude corresponding to the C . oncordia Line”
Another internal Chilean document from 1967 records a unilateral measure taken
522
Note No. V.1000-491 of 20 November 1964 from the Harbour Master of Mollendo-
Matarani to the Maritime Governor of Arica, Annex 74, para. 3. The text of
Article 133 is quoted in this note and reads as follows: “It is prohibited for foreign
vessels to fish in the Peruvian territorial waters. Violation of this article shall result
in the seizure of the vessel, its fishing equipment and any shipment as contraband,
and shall be punished pursuant to the provisions governing this matter.”
523
See Memorandum No. 5-4-M/64 of 20 December 1962 from the Peruvian Embassy
in Chile to th e Ministr y of For eign AffaA irnseof73; seip,aras 2.219-
2.221 above.
524 See Memorial, paras 4.103 and 4.104.
525
Note No. 12115/5 of 30 January 1963 from the Maritime Governor of Arica to the
Director of the Coast and Merchant Navy, Annex 121, para. 5.
182by Peru, apparently to indicate the maritime-boundary line through the alignment
of cement monoliths and a set of poles . 526
527
3.16. One memorandum from Peru in 1966 also confirms Peru’s
understanding that the maritime boundary was a parallel of latitude. The
memorandum relates to an incident involving an alleged incursion of a Peruvian
patrol boat into Chilean waters. On 23 March 1966, the Chilean Ministry of
Foreign Affairs informed the Embassy in Lima that on 22 March the Peruvian
patrol ship Diez Canseco had intercepted the Chilean fishing vessels Mariette
and Angamos and fired warning shots at them. According to the Chilean Navy,
these vessels had actually been fishing “south of the boundary with Peru at
latitude 18º 25' and longitude 70º 26', roughly 5 miles from the Chacalluta
airport.”528 The Chilean Government lodged no formal complaint, but it did
request an explanation of the reasons for which the Peruvian patrol boat had
crossed the boundary and opened fire.
3.17. In its response 52, Peru denied that Diez Canseco had crossed into
Chilean waters in the course of its pursuit of one of the Chilean vessels which it
had sighted. To substantiate its position, Peru provided the exact locations of
Diez Canseco at 8.00 a.m., 8.25 a.m. and 8.35 a.m. on the day of the incident, by
526 See Note No. 21 of 2 November 1967 from the Governor of Arica to the Minister of
the Interior of Chile,Annex 126, para. 1.
527
Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 75.
528 Cable No. 48 of 23 March 1966 from the Ministry of Foreign Affairs of Chile to the
Chilean Embassy in Peru,Annex 122.
529
Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 75.
183reference to coordinates of those locations and the distance from the “frontier
line”530:
(a) At 8.00 a.m. “the position of [Diez Canseco] was 18º 14' [S],
70º 36' W; i.e., 7 miles north of the frontier line [línea fronteriza] and
at a distance of 1 mile from the coast”. At this point Diez Canseco
caught sight of one Chilean vessel sailing one mile from the coast,
three and a half miles north of the “frontier line”, as well as two other
Chilean vessels sailing three miles from the coast and two miles north
of the “frontier line”.
(b) At 8.25 a.m., Diez Canseco was “at 18° 18' [S], 70° 30' W (3 miles
n o r t h o f t h e f r o n t i e r l i n e a n d o n e a n d a h a l f m i l e a w a y f r o m t h e
coast)”. Here, Diez Canseco fired 16 warning shots at one of those
Chilean vessels.
(c) At 8.35 a.m., Diez Canseco “was located at 18º 19' [S], 70º 28' W; i.e.,
2 miles north of the frontier line.” Here, it stopped its pursuit because
the Chilean vessel which it pursued had gone back into Chilean
531
waters .
These three positions of Diez Canseco a r e s h o w nFiign ure 21 a s P o i n t A ,
Point B and Point C respectively.
3.18. On the basis of standard navigational principles, it is assumed that one
mile in Peru’s memorandum is equal to one minute of latitude. Point A is thus
530 Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 75, para. 2.
531
Ibid., para. 2.
184 Figure 21
Boundary implied by Peru's report of the Diez CanseDiez Canseco plotted
on an extract of Peruvian chart 325
70°35'W 70°30'W 70°25'W 70°20'W
Maritime boundary
Diez Canseco reporting points
Reporting points moved south by the reported
distance north of the boundary
Datum: WGS84 Projection: Mercator
Point A
18° 14' S
70° 36' W
18°15'S 18°15'S
Point A moved 7' south
Point B
18° 18' S
70° 30' W
Point C
Point B moved 3' sout18° 19' S
70° 28' W
C moved 2' south
18°20'S 18°20'S
Boounndaary at 18° 21' S '
' '
Point A Point C
Point B
Extract of Peruvian chart 325 (NE 2004)
70°35'W 70°30'W 70°25'W 70°20'W
0 2 4 6 8 10 M
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the
Sea Consultancyseven minutes to the north of the maritime-boundary line envisaged by Peru in
it s m e mo r a n d u m a n d , s i m i l a r l y , P o i n t s B a n d C a r e t h r e e a n d t w o m i n u t e s ,
respectively, to the north of that boundary line. The “frontier line” referred to in
Peru’s memorandum can be ascertained by moving, on a chart, Point A, Point B
and Point C to the south by seven, three and two minutes respectively (Point A',
Point B' and Point C') and identifying a line which passes through Point A', Point
B' and Point C'. As shown in Figure 21, the “frontier line” which can be derived
from these data is the parallel of latitude of 18° 21' S. This is the Chile-Peru
maritime boundary envisaged in Peru’s memorandum.
B. T HE P ARTIES’ AGREEMENT TO SIGNAL THE M ARITIME -B OUNDARY LINE
3.19. Despite the understanding between the Parties regarding the existence
and course of the maritime boundary, contemporaneous documents suggest that
fishermen and the authorities alike had practical difficulty in identifying at sea
the precise position of the boundary parallel by reference to a point on the coast.
There was some confusion as to which landmark should be used for that purpose,
because Hito No. 1 (120 cm in height) was not at all conspicuous and would be
impossible to see except from positions very close to the coast. An internal
Chilean document from 1967 indicates that ship masters and officials used
various landmarks as reference points for the maritime boundary (for example,
the more visible control tower of the Chacalluta Airport, which is very close to
532
the parallel of 18° 21' 03" S.
3.20. None of the lines that may have been actually used at the time, as a
result of relying on a variety of more conspicuous landmarks than Hito No. 1,
materially deviated from the parallel of latitude of Hito No. 1. More importantly
532 Note No. 397 of 26 September 1967 from the Minister of National Defence of Chile
to the Minister of Foreign Affairs of Chile, Annex 125, p. 1.
185for present purposes, no doubt was raised by either Chile or Peru that their
maritime boundary was the Santiago Declaration Article IV line, i.e. a parallel of
latitude “at the point at which the land frontier of the [two States] reaches the
sea”. Nevertheless, it became crucial to resolve the practical difficulty for
mariners and fishermen by signalling the precise parallel of latitude that
constitutes the boundary.
3.21. As will be seen in this Section, the Parties specified by agreement that
the maritime boundary between them followed the parallel of latitude of Hito
No. 1. They did so without any reservation as to the finality, permanence, and
all-purpose nature of the boundary line. They jointly decided to use a prominent
feature, namely a pair of alignment lighthouses, to be constructed in a way that
would permanently mark the parallel of latitude. Nowhere in the relevant
diplomatic correspondence or agreed minutes from that time did Peru state that
the line thus signalled was either a provisional line or for a limited, specific
purpose, i.e., fishing.
3.22. The initiative to signal the maritime boundary came from Peru. In
February 1968, Peru’s Minister of Foreign Affairs indicated to the Chilean
chargé d’affaires in Lima that Peru considered it appropriate–
“for both countries, to proceed to build posts or signs of
considerable dimensions and visible at a great distance, at
the point at which the common border reaches the sea, near
boundary marker number one [Hito No. 1].” 533
533
Note No. (J) 6-4/9 of 6 February 1968 from the Minister of Foreign Affairs of Peru
to the Chilean chargé d’affaires in Peru, Annex 71 to the Memorial.
186 534
3.23. Chile accepted Peru’s proposal in March 1968 . Pursuant to the
agreement constituted by this exchange of notes, Peruvian and Chilean delegates
met at the frontier area in April 1968.
3.24. In the 1968 Minutes, which the delegates of Chile and Peru jointly
prepared on 25 and 26 April 1968, the delegates recorded that they were
instructed to undertake–
“an on-site study for the installation of leading marks
visible from the sea to materialize the parallel of the
maritime frontier originating at Boundary Marker number
one (No. 1).” 535(Emphasis added.)
T h e P a r t ie s t h u s e x p l i c it l y r e c o r d e d t h e ir u n d e r s t a n d i n g t h a t ( a ) t h e r e w a s a
“maritime frontier” between the two States, which (b) followed the parallel of
latitude passing through Hito No. 1.
3.25. The Parties’ delegates recorded their joint understanding that their task
w a s t o s i g n aex listthgemaritime boundary. Their joint understanding is
important to a proper interpretation of the agreement that was ultimately reached
between Peru and Chile in connection with the signalling of the maritime
boundary. The heads of both delegations at the meeting in April 1968 were
534 See Note No. 81 of 8 March 1968 issued by the Chilean chargé d’affaires in Peru to
the acting Minister of Foreign Affairs of Peru,Annex 72 to the Memorial .
535 1968 Minutes, Annex 59 to the Memorial, first paragraph. The italicized part reads
in the original Spanish as follows: “el paralelo de la frontera marítima que se origina
en el Hito número uno (No. 1)”.
187senior Foreign Ministry officials who were responsible for international-
536
boundary matters ; they were not technical staff.
3.26. On the basis of their common understanding about the existence and
course of the maritime boundary, the Parties’ delegates agreed jointly to propose
to the two Governments that two marks be built–
“with daylight and night signalling; the front mark would
be placed in the surroundings of Boundary Marker [Hito]
No. 1, in Peruvian territory; the rear mark would be placed
at approximately 1,800 metres away from the front mark,
in the direction of the parallel of the maritime frontier” 537.
(Emphasis added.)
3.27. This proposal was accepted by both Governments, through a further
exchange of diplomatic notes 538. The note from Peru records its approval of the
terms of the 1968 Minutes “in their entirety”. In the same exchange of notes, the
Parties also recognized the need to verify the location of Hito No. 1 against the
astronomical coordinates which had been determined by the 1929-1930 Mixed
Commission and recorded in the Act of Plenipotentiaries 539, given the
importance of this boundary marker for the purpose of signalling the maritime
boundary. Thus, the Parties agreed to establish the 1968-1969 Mixed
536 Minister Jorge Velando Ugarteche, Chief of Boundaries Division of the Ministry of
Foreign Affairs of Peru; and Mr. Alejandro Forch Petit, Chief of the International
BoundaryDivision of the Ministryof Foreign Affairs of Chile.
537
1968 Minutes, Annex 59 to the Memorial , para. 1.
538 See Note No. (J) 6-4/43 of 5 August 1968 from the Secretary-General of the
Ministry of Foreign Affairs of Peru (signing for the Foreign Minister) to the Chilean
chargé d’affaires in Peru, Annex 74 to the Memorial; Note No. 242 of 29 August
1968 from the Embassy of Chile in Peru to the Ministry of Foreign Affairs of Peru,
Annex 75 to the Memorial.
539 See para. 2.15 above.
188Commission, which they charged with verifying the position of Hito No. 1 and
determining the location and specifications of the two signalling marks.
3.28. The Parties’ commitment, as a matter of international law, to build two
permanent signalling marks (which, as noted, took the form of alignment
lighthouses) in accordance with specified technical specifications was recorded
by the 1968-1969 Mixed Commission in the 1969 Act, concluded in August
1969 540. There the Mixed Commission also confirmed that the pillar of Hito
No. 1 had been moved from its original location, and recommended that it be
541
rebuilt . A joint report which was prepared by the heads of the Chilean and
Peruvian delegations, and which accompanied the 1969 Act, again records a
clear understanding that a “maritime boundary [límite marítimo]” was in place.
The 1968-1969 Mixed Commission was instructed by the Governments of Chile
542
and Peru to signal that límite marítimo .
3.29. For its part, Peru explicitly stated in this process that it was agreeing
with Chile the technical means of permanently signalling a maritime boundary
which was already in existence and which was not qualified in any of the ways
that Peru now proposes (temporary, for limited purposes, etc.). In the note to
Chile conveying Peru’s approval of the 1968 Minutes, Mr. Javier Pérez de
Cuéllar, then the Secretary-General of the Ministry of Foreign Affairs of Peru,
stated that the signalling marks were “physically to give effect to the parallel of
the maritime frontier [materializar el paralelo de la frontera marítima]” 54. This
540 1969 Act, Annex 6.
541
Ibid., sections D and F.1.
542 Joint report by the heads of the Chilean and Peruvian delegations accompanying the
1969 Act, Annex 6, first paragraph.
543
Note No. (J) 6-4/43 of 5 August 1968 from the Secretary-General of the Ministry of
For eign Affair s of Per u (sign in g for th e For eign Minister) to th e Chilean ch ar gé
d’affaires in Peru, Annex 74 to the Memorial .
189squarely contradicts the statement in Peru’s Memorial that the purpose of the
544
lighthouses was “to identify the location of the land boundary near the shore” .
The contemporaneous official correspondence clearly indicates that the intention
was to signal the maritime boundary, not the land boundary. The land boundary
was relevant only in so far as Hito No. 1 serves as the reference point for the
parallel of latitude which constitutes the maritime boundary.
3.30. A subsequent note from Peru informing Chile of the composition of its
delegation to a meeting of the 1968-1969 Mixed Commission unambiguously
recorded Peru’s official position that this Commission was tasked with–
“verify[ing] the position of boundary marker number one
[Hito No. 1] and fix[ing] the definitive location of the two
alignment towers that were to 545nal the maritime
boundary [límite marítimo]” .
The head of the Peruvian delegation to the 1968-1969 Mixed Commission,
Mr. Velando Ugarteche, later wrote that he contributed to the peace and
friendship between Chile and Peru by “construct[ing] towers and lighthouses for
signalling the maritime frontier and avoiding incidents provoked by fishing
546
motor boats and vessels” (emphasis added) .
3.31. Again, there is no indication at all in any of the diplomatic documents
or the bilateral instruments in 1968-1969 that the boundary line being signalled
was simply a provision aalho“c” line for specific practical problems, as Peru
544 Memorial, para. 4.121.
545
Note No. 5-4-M/76 of 13 August 1969 from the Peruvian Embassy in Chile to the
Ministryof Foreign Affairs of Chile, Annex 78.
546 J. Velando Ugarteche, “La Salida al Mar de Bolivia”, Expreso, 19 May 1987,
reproduced in a collection of his written work, 1988, Annex 248, p. 34.
190now argues 54. In the process of signalling the boundary in 1968-1969, the 1968
Minutes and the exchange of notes in August 1968 referred to the “parallel of the
548
maritime frontier [paralelo de la frontera marítima]” ; and the 1969 Act
referred to the “maritime boundary [límite marítimo]” 549. These terms in agreed
official texts are plain and unqualified.
3.32. True, the boundary needed signalling because accurate navigation off
this low-lying and featureless coast was particularly difficult before the advent of
affordable satellite navigation (in the latter part of the 1990s). But it is a
complete non sequitur to say that the line being signalled therefore applied only
to fishing or was somehow provisional. If Peru had held its present position in
1968-1969, one would have expected it to have expressly reserved its position.
Yet, at no point in the course of the many joint instruments, diplomatic
exchanges and joint work in 1968 and 1969 did Peru suggest that the two
lighthouses to be constructed were to mark a mere provisional line. Nor did Peru
suggest that the line signalled by the lighthouses was to be applied only for the
purpose of controlling fishing vessels.
3.33. The process of building alignment lighthouses was initiated by Peru,
which had wished to exercise full control over resources in its maritime zone and
to protect them from exploitation by fishermen from other States, including
Chile. Peru was fully aware of the definitive character of the line which it agreed
547
See, e.g., Memorial, para. 4.127.
548 1968 Minutes, Annex 59 to the Memorial, first paragraph; Note No. (J) 6-4/43 of
5 August 1968 from the Secretary-General of the Ministry of Foreign Affairs of Peru
(signing for the Foreign Minister) to the Chilean chargé d’affaires in Peru,Annex 74
to the Memorial, first paragraph; Note No. 242 of 29 August 1968 from the
Embassy of Chile in Peru to the Ministry of Foreign AffairsAonfnP eexr7,5 to
the Memorial, first paragraph.
549
1969 Act, Annex 6, first paragraph; also see the joint report by the heads of the
Chilean and Peruvian delegations accompanying the 1969 Act, Annex 6, first
paragraph.
191 550
to signal. Peru’s diplomatic note to Chile of 13 August 1969 , as well as a
Peruvian Supreme Resolution of the same date appointing the Peruvian
delegation to the 1968-1969 Mixed Commission 551, both confirm Peru’s
intention to have the lighthouses erected in order “to signal the maritime
552
boundary [señalar el límite marítimo]” . “Maritime boundary” is, again, a plain
and unqualified term.
3.34. Chile had the same understanding of the definitive nature of the line
signalled by the two lighthouses, as well as of the reason for their erection. A
statement made by a deputy during the relevant extraordinary session of the
Chilean Chamber of Deputies, in December 1969, acknowledged that the
lighthouses to be built by Chile and Peru would demarcate the maritime zones of
the two States, so helping to reduce continuing problems with fishermen 553. The
Chilean Navy also conveyed to the Peruvian naval authorities its understanding
that the lighthouses were to be installed to signal the “maritime boundary” [límite
554
marítimo]” .
550 Note No. 5-4-M/76 of 13 August 1969 from the Peruvian Embassy in Chile to the
Ministryof Foreign Affairs of Chile, Annex 78.
551
Supreme Resolution No. 0478-69-RE of 13 August 1969, Annex 165.
552 Ibid., first paragraph; Note No. 5-4-M/76 of 13 August 1969 from the Peruvian
Embassy in Chile to the Ministry of Foreign Affairs of Chile, Annex 78, first
paragraph. In its Memorial, Peru fails to present these documents and to explain the
mandate and work of the 1968-1969 Mixed Commission.
553 See Statement by Mr. Palza of 3 December 1969 on the “Installation in Arica
(Tarapaca) of the alignment lighthouse for demarcating the maritime boundary zone
with Peru”, Record of the 16th Extraordinary Session of the Chilean Chamber of
Deputies, Annex 127, pp. 2245-2246. Mr. Palza’s constituency included Chile’s
frontier area with Peru.
554 Letter No. 12610/28 of 28 July 1970 from the Director of the Hydrographic Institute
of the Chilean Navy to the Director of Hydrography and Lighthouses of Peru,
Annex 80.
1923.35. The lighthouses were indeed put into operation by Chile and Peru, in
1972 555. Both Chile and Peru called their respective lighthouse “ faro de
enfilación”, or alignment lighthouse. These lighthouses were not to indicate any
natural or man-made obstacles to navigation, but to signal a line at sea. The only
line which existed in these waters was the maritime boundary between the two
States. The lighthouses were aligned along the parallel of latitude of Hito No. 1,
thereby signalling the maritime boundary (see the aerial photo of the two
lighthouses in Figure 22).
3.36. Peru now suggests, astonishingly, that the lighthouses should have
been visible from a distance of 200 nautical miles from the coast if they had been
556
intended to mark the maritime boundary . This would have required
installations of some 10,000 metres in height (and conditions of perfect
visibility). Leaving aside the impracticality of such an endeavour, such
mammoth installations would have been pointless. The Parties were concerned
with visibility within the first twelve nautical miles from the coast, up to the
point where the zone of tolerance under the Lima Agreement commenced 557and
where many of the incursions were reported. The Parties from the outset
558
intended that the lights “would have approximately a 15-mile visibility” . As
illustrated in Figure 23, when coming into operation in 1972, the Peruvian and
555
The commencement of operation of the Chilean lighthouse was announced in the
Notice to MarinerN so(ticia a los Navegantes) issued by the Hydrographic Institute
of the Chilean Navy (Notice No. 57 of 1972) contained in Volume 5 of the collection
of notices of 1972, p. 4, Annex 129. Notice No. 152 of 1972 issued by the same
institute (contained in Volume 11 of the collection of notices of 1972, p. 7,
Annex 130) records that the commencement of operation of the Peruvian lighthouse
was announced by Peru through Notice to Marin Avrso(a los Navegantes) No. 6
of 1972.
556
See Memorial, para. 4.124.
557 See Lima Agreement, Annex 50 to the Memorial , Art. 1.
558
1968 Minutes, Annex 59 to the Memorial , para. 2(c).
193Chilean lighthouses had a range of 13.2M and 22M respectively 559, thus ensuring
clear visibility within the first twelve nautical miles.
3.37. To conclude, in 1968-1969 the Parties clearly intended to signal their
definitive, all-purpose maritime boundary (límite marítimo). No other reading
accords with the repeated, unqualified and unreserved reference to a límite
marítimo o r afrontera marítima in the record from 1968-1969. The joint
proposal of the Parties’ delegates in April 1968 that signalling lighthouses be
built along the parallel of latitude of Hito No. 1 was fully agreed by the two
Governments. Neither Chile nor Peru disputed or qualified the delegates’ express
understanding that the parallel of latitude of Hito No. 1 constituted the maritime
boundary. Both Chile and Peru recognized the binding force of the 1968 Minutes
and the 1969 Act, by actually building the two lighthouses on the latitude of Hito
No. 1 and putting them into operation (see Figure 22 above). Lighthouses
continued to perform their signalling role until the Peruvian lighthouse collapsed
in an earthquake in 2001. Peru has yet to build a new lighthouse despite Chile’s
560
request that it do so .
3.38. This series of agreements constitutes subsequent practice showing the
Parties’ concordant interpretation of Article IV of the Santiago Declaration in
their bilateral relations. It is fundamentally inconsistent with Peru’s recent
attempt to deny the existence of an all-purpose límite marítimo with Chile.
559
See Notice to Mariners No. 57 of 1972 by the Hydrographic Institute of the Chilean
Navy, Annex 129; Notice No. 152 of 1972 issued by the same institute, Annex 130.
In subsequent documents of Peru and Chile, the ranges of their lighthouses were
stated to be nine and 14 nautical miles: Hydrographic and Oceanographic Services of
the Chilean Navy, List of Lights, 17th edn, 2008, Annex 159; Directorate of
Hydrographyand Navigation of Peru, List of Lights, 9th edn, 1998, Annex 181.
560 See Aide-mémoire by the Ministry of Foreign Affairs of Chile, transcribed in the
Message of 25 January 2002 from the same Ministry to the Chilean Embassy in
Peru, Annex 100: the message records that the aide-mémoire was provided to the
Peruvian chargé d’affaires in Chile on the date of the message.
194 Figure 23
Operation of Chilean and Peruvian lighthouses signalling the maritime bo
undary
70°50' 70°40' 70°30' 70°20'
18°10' 18°10'
18°20' 18°20'
0 2.5 5 7.5 10 M
Extract of Peruvian chart 325 (NE 2004)
70°50' 70°40' 70°30' 70°20'
La Concordia Lighthouse (Peru) (1972) Peru's Lighthouse visible sector (1972) International land boundary
Flashing green every twelve seconds (Fl.G.12s). Raangee133.2 nauttcallmiies..Viisibiily sector 86..5° - 93.5° (7°)
Elevation above sea level 21 metres, height of tower 20 metres. Chile's Lighthouse visible sector (1972) International maritime boundary
Metal framework tower. Raangee222 nauttcallmiies..Viisibiily sector 350° - 240° (250°) Datum: WGS84 Projection: Mercator
Concordia Boundary Alignment Lighthouse (Chile) (1972) Chile 12M territorial sea limit
Flashing green once every five seconds (Fl.G.5s).
12M from Peruvian coast
Elevation above sea level 41 metres, height of tower 21 metres.
Truncated pyramid iron tower, horizontal red and white bands.
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the
Sea Consultancy C. T HE S IGNALLING OF THE B OUNDARY WAS A M EASURE IMPLEMENTING THE
S ANTIAGO D ECLARATION
3.39. The Parties shared a common understanding that the legal basis of the
maritime boundary was to be found in the Santiago Declaration and the Lima
Agreement. In completing the signalling work, they were simply implementing
their delimitation agreement. Neither of them raised any question on that point in
1968-1969. Earlier, in 1965, Chile had complained to Peru about a fishing fleet
of approximately 70 vessels that had been sighted “15 miles to the south of the
Chilean-Peruvian boundary and 45 miles to the west of the .Port of Arica” 561
Chile indicated that this was “not consistent with the provisions contained in the
Declaration on the Maritime Zone signed at Santiago on 18 August 1952 by the
Governments of Chile, Peru and Ecuador” 562. Peru did not suggest, let alone
formally protest, that Chile was wrong to rely on the Santiago Declaration in
563
connection with the “Chilean-Peruvian boundary [ límite chileno-peruano]”.
3.40. There is a clear linkage between the parallel referred to in the texts of
the Santiago Declaration and the Lima Agreement and the parallel of latitude
which the Parties decided to signal by the two lighthouses in 1968-1969. In their
exchange of notes in February and March 1968 (recounted at paragraphs 3.22-
3.23 above), the Parties agreed to build marks “at the point at which the common
border reaches the sea” 56. This wording is almost identical to the wording in
Article IV of the Santiago Declaration, “at the point at which the land frontier of
561 Memorandum of 6 October 1965 by the Ministry of Foreign Affairs of Chile,
Annex 68 to the Memorial, para. 1. The Spanish term límite is translated as
“boundary”, instead of “border” as in Peru’s Memorial.
562
Ibid., para. 2.
563 Ibid., para. 1.
564
Note No. (J) 6-4/9 of 6 February 1968 from the Minister of Foreign Affairs of Peru
to the Chilean chargé d’affaires in Peru, Annex 71 to the Memorial; Note No. 81 of
8 March 1968 issued by Chilean chargé d’affaires in Peru to the acting Foreign
Minister of Peru, Annex 72 to the Memorial .
195the States concerned reaches the sea”. This was no mere coincidence. The point
at which the land boundary reaches the sea determines the parallel of latitude
forming the maritime boundary under the Santiago Declaration. This parallel is
also the one referred to in Article 1 of the Lima Agreement, as Peru confirms in
its Memorial .565
3.41. The Parties’ reliance on the Santiago Declaration and the Lima
Agreement is also apparent from the origin of the 1968-1969 process. In 1962,
Peru had invoked the Lima Agreement in protesting against continuous border-
crossings by Chilean vessels and requesting Chile to take action to stop illegal
566
transgressions into Peruvian waters . I t w a s P e r u t h a t f i r s t p r o p o s e d t h e
construction of two signalling marks to address the continuing problems of
border-crossings by vessels of both States 567, and this triggered the joint work in
1968-1969. The Parties intended to take measures to implement the Lima
Agreement. This Agreement, in turn, gives effect to the position under the
Santiago Declaration, that the parallel of latitude passing through “the point at
which the land frontier. . .reaches the sea” is the maritime-boundary line. Peru’s
newly minted argument that the parallel arose out of an informal practice of
Chile and Peru, rather than deriving from the Santiago Declaration or the Lima
568
Agreement , is groundless. There is no trace of it in the record of the 1968-
1969 process or the many diplomatic exchanges that preceded that process.
565 See Memorial, para. 4.103.
566
See paras 2.219-2.220 above; and Memorandum No. 5-4-M/64 of 20 December 1962
from the Peruvian Embassy in Chile to the Ministry of Foreign Affairs of Chile,
Annex 73.
567 See para. 3.22 above.
568
See Memorial, para. 4.105.
196 D. C HOICE OF H ITON O. 1AS THE REFERENCE P OINT FOR DETERMINING THE
COURSE OF THE BOUNDARY LINE
3.42. As recounted in paragraphs 2.9-2.16 above, the Parties agreed in 1930
that the determination and marking of their land boundary was complete. The
most seaward land boundary marker, Hito No. 1, had already been agreed in the
1930 Final Act and then also memorialized in the Act of Plenipotentiaries. The
1930 Final Act specifies the astronomical coordinates of Hito No. 1
(18° 21' 03" S and 70° 22' 56" W) and describes the location of Hito No. 1 as
569
being on the “seashore [orilla del mar]” . Similarly, the Act of
Plenipotentiaries of August 1930 listed the boundary markers “starting in order
from the Pacific Ocean”, again recording that Hito No. 1, the first boundary
marker in that list, was placed on the seasho.e
3.43. When the authorized delegates of the Parties met in 1968 to undertake
the work of signalling the maritime boundary they referred to “the parallel of the
maritime frontier” and added that the parallel which was to be marked by the
lighthouses was “that which corresponds to the geographical location. . .for
Boundary Marker No. 1.” 571Subsequently, the 1968-1969 Mixed Commission
recorded that its functions were, as the full official title of the Commission
indicated, to verify the “original geographical position” of Hito No. 1 and
“physically to give effect to the parallel that passes through the aforementioned
569
1930 Final Act, Annex 54 to the Memorial ; see the description of the firsthito.
570 Act of Plenipotentiaries,Annex 55 to the Memorial; see the description of the first
hito. Cf. Case concerning the boundary markers in Taba between Egypt and Israel,
Award, 29 September 1988, RIAA, Vol. XX, p. 67, para. 244, for the Tribunal’s
finding that the word “on the shore” in the relevant land-boundary agreement meant
that the boundary pillar was to be at a distance not far from the shore and visible
from the shore. The Tribunal also found that a boundary pillar situated at a distance
of approximately 170 metres from the shore could reasonably be understood as lying
on the seashore.
571 1968 Minutes, Annex 59 to the Memorial , penultimate paragraph.
197 572
Boundary Marker number one” in order “to signal the maritime boundary” .
The Commission fulfilled its functions . 573
3.44. The Parties thus consensually identified Hito No. 1 as the reference
point for the parallel “at the point at which the land frontier. . .reaches the sea”
for purposes of Article IV of the Santiago Declaration. The Parties wished to fix
the course of their maritime boundary with certainty, precision and permanence.
The parallel of Hito No. 1 serves this purpose. The Chilean and Peruvian
delegates who met in April 1968 observed the location of Hito No. 1 on the
ground, and the 1968-1969 Mixed Commission conducted a survey to reconfirm
the correct location of that boundary marker on the coast. (To be clear, the record
indicates no disagreement between the Parties prior to 1968 on whether a point
574 575
other than Hito No. 1 should be used for Article IV purposes . As noted , the
record indicates only that there were practical difficulties with identifying the
operative parallel of latitude at sea, because Hito No. 1 was not conspicuous
enough.)
3.45. There are examples elsewhere of the use of a fixed point on the coast,
set back from the physical low-water line, as a reference point for a maritime
boundary. Chile and Argentina use such a point 576. S o d id t h e C o u r t in t h e
572
1969 Act, Annex 6, title of the document and first paragraph.
573 The 1969 Act, ibid., recorded that the Mixed Commission “topographically
determine[d] the parallel that runs through Boundary Marker number one. . . The
parallel having been determined, the two points at which the front and rear signalling
towers shall be erected were physically marked on this line”: Section B.2.
574 Prior to 1968, Dr. Vergaray Lara of Peru used Hito No. 1 in 1962 as the reference
point for determining the parallel forming the southern limit of Peru’s maritime zone
under its Supreme Decree of 1947: see para. 2.37 above.
575 See paras 3.19-3.20 above.
576 See Treaty of Peace and Friendship between Chile and Argentina, signed at Vatican
City on 29 November 1984, 1399 UNTS 89 (entered into force on 2 May 1985),
Annex 15, Art. 10 and accompanying Map No. II.
198 577
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case , and the UNCLOS
Tribunal in Guyana v. Suriname 578. There are several other examples 579, but this
factual proposition hardly requires extensive citation.
3.46. In its Memorial Peru purports to rely on a unilaterally defined “Point
Concordia” as the beginning of the maritime boundary which Peru proposes.
Peru asserts that this point is the exact present intersection of the low-water line
and the continuation of the arc that forms the last part of the land boundary 580.
Peru says that this point is the same point as its southernmost baseline point,
581
Point 266 .
3.47. Chile wishes to make only three brief observations on Peru’s
assertions about Point Concordia and Point 266. First, these are unilateral
pronouncements of Peru, which can produce no effect vis-à-vis Chile to the
extent that they purport to change the agreed course of the maritime boundary.
Chile has never agreed to Peru’s assertions, and it has duly objected to Point
577 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1982, pp. 93-94 and the map at p. 81, implemented in the Agreement between the
Libyan Arab Socialist People’s Jamahariya and the Republic of Tunisia to
Implement the Judgment of the International Court of Justice in the Tunisia/Libya
Continental Shelf Case, signed at Benghazi on 8 August 1988 (entered into force on
11 April 1989), in J. I. Charney and L. M. Alexander (eds), International Maritime
Boundaries, Vol. II, 1993, Annex 17, pp. 1679-1680.
578 See Guyana v. Suriname, Award, Permanent Court of Arbitration, 17 September
2007, pp. 97-98, paras 307-308.
579
See, e.g., Agreement between France and Spain, signed at Bayonne on 30 March
1879, Annex 1; Exchange of Notes Constituting an Agreement between the
Government of Brazil and the Government of Uruguay on the Definitive
Demarcation of the Sea Outlet of the River Chui and the Lateral Maritime Border
signed at Montevideo on 21 July 1972, 1120 UNTS 133 (entered into force on
12 June 1975), Annex 7.
580 See Memorial, paras 2.2, 2.8 and 6.32-6.46.
581
Ibid., para. 2.13.
199 582
266 . Second, once the Parties acknowledged that the parallel of Hito No. 1
constitutes the maritime boundary, “the demarcated boundary line would prevail
over the Agreement if a contradiction could be detected” 583. In light of the
Parties’ agreement to use Hito No. 1 as the reference point for the maritime
boundary, it is immaterial whether another point could have been chosen by the
Parties. It is not for Peru now unilaterally to choose a point different from Hito
No. 1. This is because “once demarcated jointly by the parties concerned, the
demarcation is considered as an authentic interpretation of the boundary
584
agreement even if deviations may have occurred” (and here of course
deviations have not occurred). Third, based on the coordinates that Peru gives in
its 2005 baselines law, Point 266 is not on the low-water line as shown on its
relevant official chart , as one may see in Figure 24.
3.48. In summary, the signalling work that was commenced in 1968 and
completed in 1972 unequivocally indicates the existence of the Parties’
understanding that a maritime boundary was by that time already in place, and
that the boundary line was the parallel of latitude passing through Hito No. 1.
582
See, e.g., Note No. 17,192/05 of 28 October 2005 from the Minister of Foreign
Affairs of Chile to the Peruvian Ambassador to Chile,Annex 106.
583 Case concerning the boundary markers in Taba between Egypt and Israel, Award,
29 September 1988, RIAA, Vol. XX, pp. 56-57, para. 210. In this case, one of the
disputed issues was whether three geographic locations referred to in the 1906 land-
boundary agreement between the Egyptian Khediviate and the Turkish Sultanate had
been incorrectly identified during the demarcation process, resulting in
contradictions between the boundary as actually demarcated by pillars and the terms
of the agreement. The tribunal concluded that there was no contradiction, and went
on to decide th at, in th e even t of an y such con tradiction, th e lin e for med by th e
demarcation pillars would prevail over the line described in the agreement, given
that the line had been demarcated by the Egypt-Turkey Boundary Commission.
584
Case concerning the boundary markers in Taba between Egypt and Israel, Award,
29 September 1988, RIAA, Vol. XX, p. 56, para. 210.
585 Under Article 5 of UNCLOS, the low-water line for the purpose of measuring the
territorial sea is the line as marked on “large-scale charts officially recognized by the
coastal State.”
200 Figure 24
Point 266 of Peru's baselines plotted on Peru's current large-scale char
t (chart 3255, 3rd edition 1985, revised 30 October 2002)
70°23'W 70°22'30"W 70°22'W 70°21'30"W
NOTE:- This diagram superimposes the precise position of Point 266 of P
eru's baselines on the current Peruvian
large-scale chart of the area. The blue shaded band in which Point 266
appears is part of the Pacific Ocean to the
seaward of the low-water line having a depth of less than ten metres. P
oint 266 is 183 metres to seaward of the charted
coastline. The horizontal datum used for the Peruvian chart is referred
to WGS84 Datum, allowing a direct comparison
between the baseline points and the low waterline.
18°20'30"S 18°20'30"S
18°21'S 18°21'S
Point 266
Pointt2666: 18° 21' 08"S 70° 22' 39"W
Law No. 28621 of 3 November 2005
0 100 200 300 400 500 Metres Datum: WGS84 Projection: Mercator
18°21'30"S 18°21'30"S
70°23'W 70°22'30"W 70°22'W 70°21'30"W
Prepared for the Ministry of Foreign Afairs, Chile, by UKHO Law of the S
ea ConsultancyThat line was recognized as the maritime boundary between the maritime zones
of Chile and Peru, that is, as an all-purpose maritime boundary.
Section 3. The Maritime Boundary in Subsequent Legislation
of Chile and Peru
3.49. As discussed in Chapter II, the maritime boundary between Chile and
Peru was established under the Santiago Declaration, which reflected the existing
claims under the Parties’ concordant unilateral proclamations in 1947. The Lima
Agreement confirmed the existence of that agreed boundary. Both Chile and
Peru have incorporated these two international agreements into their respective
586
domestic legal systems . This section outlines subsequent legislation of Chile
and Peru which indicates the two States’ acknowledgment of the existence of a
maritime boundary. In many cases the legislation does not describe the course of
the boundary, but it can be ascertained by reference to the Santiago Declaration
and the Lima Agreement, both of which were already (as they remain today) part
of the two States’ internal law.
A. C ONFIRMATION OF THE P ERIMETER OF P ERU’S M ARITIME ZONE (1955)
3.50. Shortly after the conclusion of the Lima Agreement in December
1954, Peru took a further step to confirm the perimeter of its maritime zone.
Peru’s 1955 Supreme Resolution (already touched upon at paragraphs 2.119-
2.122 above) was intended to ensure that Peru’s maritime zone was correctly
depicted in cartographic and geodesic work. The Supreme Resolution states in its
preamble that–
“it is necessary to specify in cartographic and geodesic
work the manner of determining the Peruvian maritime
586
See paras 2.58 and 2.216 above.
201 zone of 200 miles referred to in the Supreme Decree of 1
August 1947 and the Joint Declaration signed in Santiago
on 18 August 1952 by Peru, Chile and Ecuador” . 587
The preamble confirms Peru’s understanding at the time that its maritime zone
was established by the Supreme Decree of 1947 and the Santiago Declaration,
and that these two instruments created one single maritime zone for Peru 58.
3.51. The operative part of the 1955 Supreme Resolution defines the
perimeter of Peru’s maritime zone by setting out its outward limit and lateral
boundaries in the following manner:
“1 – The said zone [Peru’s maritime zone] shall be limited
a t s e a b y a lin e p a r a l le l t o t he P e r u v ia n c o a s t a nd a t a
constant distance of 200 nautical miles from it;
2 – In accordance with clause IV of the Declaration of
Santiago, the said line may not extend beyond that of the
corresponding parallel at the point where the frontier of
589
Peru reaches the sea.”
(Emphasis added.)
Thus, the line constituting the 200M outward limit of Peru’s maritime zone, as
defined in operative clause 1, terminates:
587
1955 Supreme Resolution, Annex 9 to the Memorial , preambular recital.
588 This position was also confirmed by Peru during a meeting between the CEP States
and the United States of America in Buenos Aires to discuss practical issues relating
to tuna fishing in the South-East Pacific Ocean: Official Communiqué of 22 August
1969 issued by the Ministry of Foreign Affairs of Peru, Annex 166.
589 1955 Supreme Resolution, Annex 9 to the Memorial , operative paragraphs.
202(a) in the north, at the point where the line meets the parallel of latitude at
the point at which the Peru-Ecuador land boundary reaches the sea;
and
(b) in the south, at the point where the line meets the parallel of latitude at
the point at which the Peru-Chile land boundary reaches the sea.
3.52. These two parallels of latitude form the lateral boundaries of Peru’s
maritime zone, with Ecuador to the north, and with Chile to the south.
3.53. The lateral boundaries of the Peruvian maritime zone were confirmed
590
in the 1955 Supreme Resolution as a matter of domestic implementing law .
Peru expressly acknowledged in operative clause 2 of the 1955 Supreme
Resolution (quoted at paragraph 3.31 above), that the specification of its lateral
maritime boundaries in domestic law was by way of compliance with and
implementation of Article IV of the Santiago Declaration.
3.54. Peru now contends that operative clause 2 of the 1955 Supreme
Resolution refers only to the lateral boundary between the maritime zones
generated by Ecuadorean islands (not Ecuador’s mainland) and Peru’s
591
continental territory . The contention is difficult to credit. The purpose of the
Supreme Resolution was to ensure that Peru’s “maritime zone” would be
correctly depicted in cartographic and geodesic work. Peru suggests that the
Supreme Resolution left all of the southern limit of Peru’s maritime zone
590 In a collection of national and international instruments on the law of the sea,
published by the Peruvian Foreign Ministry, the 1955 Supreme Resolution is
described as Peruvian legislation on the “delimitation of the 200-mile maritime
zone”: Ministry of Foreign Affairs of Peru, Instrumentos Nacionales e
Internacionales sobre Derecho del Mar, 1971, Annex 170, p. 23.
591 See Memorial, para. 4.113, read with paras 4.76-4.78.
203undefined; and also left undefined the northern limit of Peru’s maritime zone,
except as against zones created by Ecuadorean islands in the Gulf of Guayaquil
— without so much as mentioning either of these significant limitations in its
text. Yet the text of the Supreme Resolution neither states nor implies any such
limitation. Such a suggestion by Peru is also irreconcilable with its own stated
premise, reflected from the outset in its 1947 Supreme Decree, that it was the
dut y o f t he St at e “t o detfe ijrm] nenan[irrefutable manner” its maritime
dominion .592
3.55. One needs to look no further than the words of Dr. García Sayán to
confirm that the 1955 Supreme Resolution refers to both the northern and
southern lateral boundaries. Dr. García Sayán stated that, under this Supreme
Resolution, the line constituting the outward limit of Peru’s maritime dominion
does not extend beyond the “corresponding parallels ‘at t he po int w here t he
593
frontier of Peru reaches the sea’” (emphasis added) . T he u s e o f p lu r a l —
“parallels” — is hardly accidental.
3.56. The 1955 Supreme Resolution says that “[i]n accordance with
clause IV of the Declaration of Santiago” the line constituting the seaward limit
of Peru’s maritime zone “may not extend beyond that of the corresponding
594
parallel at the point where the frontier of Peru reaches the sea” . The “parallel
at the point where the frontier of Peru reaches the sea” is expressed as being the
lateral limit of Peru’s maritime zone in generally applicable terms, without any
mention of islands. That unqualified application of “the parallel” is expressed as
being “[i]n accordance with clause IV of the Santiago Declaration”. This shows
592
1947 Peruvian Supreme Decree, Annex 6 to the Memorial, final recital.
593 E. García Sayán, Notas sobre la Soberanía Marítima del Perú – Defensa de las 200
millas de mar peruano ante las recientes transgresiones, 1955, Annex 266, p. 28.
594 1955 Supreme Resolution, Annex 9 to the Memorial , operative paragraphs.
204that Peru’s present reading, restricting the application of Article IV of the
Santiago Declaration to delimitation of the maritime zones of islands vis-à-vis a
continental maritime zone, is inconsistent with how Peru understood Article IV
in 1955. In 1955 Peru clearly recognized that Article IV of the Santiago
Declaration set forth the northern and southern lateral limits of its maritime zone,
and that was the manner in which Peru gave effect to Article IV in its internal
law.
3.57. Peru’s resolve to ensure that its land territory and maritime zone were
correctly depicted is also evident in Supreme Decree No. 570 of 1957. As will be
seen in Section 7 (paragraphs 3.144 et seq.) below, Peru’s Foreign Ministry has
in fact exercised the power granted by this Supreme Decree to authorize
depictions of the Peruvian maritime zone where the southern lateral boundary is
the parallel of latitude passing through Hito No. 1.
B. D OMESTIC LEGISLATION AND OTHER O FFICIALTEXTS RECOGNIZING THE
M ARITIMEB OUNDARY
1. Chile
3.58. A number of legislative or regulatory instruments recognize or give
effect to the maritime boundary with Peru, in various contexts. Several of those
texts simply refer to the maritime boundary, without specific coordinates,
because it was unnecessary to provide coordinates in the relevant instrument
itself.
3.59. In Decree No 1,190 of 1976 on the Organization of the Maritime
Search and Rescue Service of the Chilean Navy, the area of responsibility was
defined as follows:
“1. The Maritime Area under national responsibility, for
the purpose of this Regulation, consists ofall the waters
under national maritime jurisdiction and the waters of the
205 Pacific Ocean, between those [waters] and the 18º 20'8 S
parallel to the North, the 120º W meridian to the West, the
Antarctic Territory to the South and the waters of Paso
Drake.
a) First District of Maritime Search and Rescue:
C o r r e s p o n d s t o t h e N o r t h e r n Nthaev a l D i s t r i c t , f r o m
595
Northern Boundary parallel to the latitude 24º 00' S.”
(Emphasis added.)
3.60. The northern limit of this area “under national maritime jurisdiction”
is the parallel of latitude “18° 20'8 S”, which is the latitude of Hito No. 1 .96
3.61. Decree No. 408 of 1986 on the prohibition of the use of certain fishing
equipment defined the area to which the prohibition applies as–
“a strip of sea between the coast and an imaginary parallel
line situated one mile out at sea, drawn between the
following latitudes: to the north, the parallel which
constitutes the northern maritime boundary a n d , t o t h e
south, 32º 00' 00" Latitude South.” 597(Emphasis added.)
This Decree confirms the position that the northern lateral boundary of Chile’s
waters follows a parallel of latitude.
3.62. Supreme Decree No. 453 of 1989 created a new Fourth Naval Zone of
the Chilean Navy in the northernmost part of the Chilean maritime zones. Article
595 Decree No. 1,190 of 29 December 1976 on the Organization of the Maritime Search
and Rescue Service of the Chilean Navy, Annex 132, Title II, para. 1.
596
See the defintion of Hito No. 1 in the Glossary, p. ix above.
597 Decree No. 408 of 17 December 1986 on the Prohibition of Use of Fishing
Equipment for Dragging and Fencing in the Indicated Area and Repealing the
Specified Decree, Annex 134, Art. 1.
2061 of this Supreme Decree defines the Fourth Naval Zone as the area “between the
598
northern international boundary and the parallel of 26° South” .
3.63. Under Supreme Decree No. 991 of 1987, the jurisdiction of the
Maritime Gobernación of Arica was defined as the area “from the Chile-Peru
international political boundary [ límite politico international] in the north to the
599
parallel 19° 13' 00" S (Punta Camarones) in the south” . Peru claims in its
Memorial that “[t]here was no indication of what, in juridical terms, this
‘internat ional po lit ical limit’ was, or the legal basis for it, or of where it was
600
thought to be located.” Yet this term is commonly used to refer to international
601
boundaries of one State with neighbouring States . It would have been obvious
to Peru that “international political boundary” meant something different from a
physical or geographical boundary — i.e., a line dividing the jurisdictional areas
of the two States. Peru lodged no protest to Supreme Decree No. 991 of 1987,
nor did it address any query to Chile as to the import of the term “international
political boundary”.
3.64. T h e c o n c e p t h a s a l s o b e e n e x p l a i n e d t o P e r u i n p l a i n t e r m s . F o r
example, in 1995 the Chilean and Peruvian Navies agreed on a set of procedures
for the treatment of fishing vessels of one State captured in the maritime zone of
the other. The agreed procedures included steps to be followed in respect of
598 Supreme Decree No. 453 of 3 May 1989 Creating the Fourth Naval Zone,
Annex 136, Art. 1.
599
Supreme Decree No. 991 of 26 October 1987 Fixing the Jurisdiction of the Maritime
Gobernaciones of the Republic and Establishing the Harbour Authorities and their
Respective Jurisdictions,Annex 37 to the Memorial , Art. 1. Chile’s translation.
600 Memorial, para. 4.134.
601
For example, the treatise of 1985 by Professor Prescott on the maritime boundaries
of the world is entitled The Maritime Political Boundaries of the World (Annex
305). The term “limit” (límite) is often used in practice to denote a frontier; see, e.g.,
J. Basdevant (ed.), Dictionnaire de la Terminologie du Droit International, 1960,
p. 376, sub voc. “Traité de limites”.
207small fishing vessels found more than twelve nautical miles from the coast and
less than ten nautical miles on either side of the International Political Boundary
602
(límite político internacional – “LPI”) . More recently, in February 1999, the
Deputy Harbour Master of Arica reported to the Peruvian Consul in Arica that a
Peruvian vessel had been found at a location three miles into the Chilean
territorial sea where the two alignment lighthouses were visible. The Deputy
Harbour Master then stated that those lighthouses “indicate the parallel of Hito
603
No. 1, which constitutes the international political boundary” . As explained
above, the Parties agreed in 1968 to signal the maritime boundary by a pair of
alignment lighthouses in order to implement their delimitation agreement. The
legal basis for the “international political boundary” was thus apparent to Peru.
Lastly, when notifying that Peruvian fishing vessels were captured in Chilean
waters, the Harbour Master of Arica provided his counterpart in Ilo and the
Consul General of Peru in Arica with the coordinates of the locations where the
vessels were captured and the distance from the “international political
604
boundary” . Peru was able to ascertain the precise location of the international
political boundary.
602
“Procedure for the exchange of Chilean or Peruvian fishing boats, apprehended
undertaking fishing activities to the north or to the south of the Special Maritime
Frontier Zone, between the Harbour Master of Ilo and the Maritime Governor of
Arica”, attached as Annex A to the Final Minutes of Understanding of the Fourth
Bilateral Meeting between the Commanders of the Frontier Naval Zones of Chile
and Peru, 13 July 1995, Annex 21.
603
Fax No. 024 of 25 February 1999 from the Deputy Harbour Master of Arica to the
Consul of Peru in Arica,Annex 88. See below at para. 3.102 on the correspondence
between Arica and Ilo and the use of the term “international political boundary”.
604 Fax No. 408/99 of 24 September 1999 from the Harbour Master of Arica to the
Har bour Master of Ilo an d th e Con sul Gen er al ofAP neerxu8, frsrtica,
paragraph. Such communications from the Harbour Master of Arica to the Harbour
Master of Ilo were used to compile the information in the Appendix (also see
paras 3.95-3.96 below).
2083.65. In summary, although Peru now claims that the term “international
political boundary” is unclear, it did not raise any issue when the term was
employed in Supreme Decree No. 991 in 1987, nor did it protest or reserve its
position when it received the February and September 1999 communications
specifying the parallel of Hito No. 1 as the international political boundary. Both
the central authorities in Lima and the consular official in Arica were in receipt
o f t h o s e d o c u m e n t s , a n d b o t h w e r e w e l l p l a c e d t o r e a c t i f t h e y t h o u g h t i t
appropriate. They did not.
3.66. Chile’s General Law on Fisheries and Aquaculture of 1991 contains
the following provision which acknowledges the northern limit of Chile’s
maritime zone:
“Extractive fishing activities with fishing equipment,
fishing tackle or other fishing tools which affect the seabed
are prohibited in a strip of the territorial sea within one
n a u t i c a l m i l e m e a s u r e d f r o mthe t h e b a s e l i n e s , f r o m
northern boundary of the Republic t o t h e p a r a l l e l o f
605
latitude 41° 28.6' S.” (Emphasis added.)
3.67. As noted in Chapter II, Chile specified the width of its territorial sea at
twelve nautical miles and declared an EEZ of 200 nautical miles by amendment
to the Civil Code in 1986 606. The amending statute, Law No. 18,565, provides in
Article 2 that “[t]he maritime delimitations referred to in Articles 593 and 596 of
the Civil Code [respectively specifying the width of the territorial sea and the
contiguous zone and declaring an EEZ] shall not affect the current maritime
605 Law No. 18,892 (as amended), General Law on Fisheries and Aquaculture,
consolidated text published in Decree No. 430 of 21 January 1992, Annex 137,
Art. 5.
606
See Law No. 18,565 of 13 October 1986 Amending the Civil Code Regarding
Maritime Spaces, Annex 36 to the Memorial .
209 607
boundaries” ( e m p h a s i s a d d e d ) . A l t h o u g h t h e t e r m i n o l o g y f o r d e f i n i n g t h e
maritime zones of Chile follows that under UNCLOS since 1986, the
international boundaries have naturally remained the same, including the
northern boundaryestablished under the Santiago Declaration.
3.68. Chile’s understanding of the location and course of the maritime
boundary with Peru was made known to mariners through official Sailing
Directions (Derroteros de la Costa). The first revision after the signalling work
of 1968-1969 was published in 1980. This edition of the Sailing Directions
clearly states that the maritime boundary was the parallel of Hito No. 1 608. Peru
did not protest that statement, which has been repeated in the later editions, in
609
1988, 1995 and 2001 . N o r d id P e r u p r o t e s t C h i l e ’ s l a t e r d e p i c t io n o f t h e
610
maritime boundary in its official nautical charts in 1992 and 1994 .
3.69. I n i t s M e m o r i a l , P e r u p l a c e s w e i g h t o n C h i l e ’ s S u p r e m e D e c r e e
No. 210 , which established benthonic management areas along the northern
coast of Chile. In those areas Chile regulates the harvesting of living resources
found on or under the seabed. The northernmost benthonic management area is
depicted in Figure 4.4 (page 165) of Peru’s Memorial. A number of areas of this
kind were created under Supreme Decree No. 210 (as amended by subsequent
607 Law No. 18,565 of 13 October 1986 Amending the Civil Code Regarding Maritime
Spaces, Annex 36 to the Memorial, Art. 2. Chile’s translation.
608
Hydrographic Institute of the Chilean Navy, Derrotero de la Costa de Chile, Vol. 1:
From Arica to Chacao Canal, 6th edn, 1980, Chap. I, Annex 133, p. 1.
609 See Derrotero de la Costa de Chile, Vol. 1: From Arica to Chacao Canal, 7th edn,
1988, Annex 135, p. 1; 8th edn, 1995, Annex 140, p. 1; 9th edn, 2001, Annex 149,
p. 1.
610 See para. 1.44 above.
611
Supreme Decree No. 210 of 4 May 1998, Annex 40 to the Memorial. See
Memorial, para. 4.135.
210legislation), as shown in Figure 25. These benthonic management areas are very
small and created locally to control harvesting of shellfish.
3.70. The shape and location of Chile’s northernmost benthonic
management area are thus unrelated to the maritime boundary and the parallel of
latitude passing through Hito No. 1. It is wrong to suggest, as Peru does, that the
shape and location of this benthonic management area show that the maritime
boundary should be a line of equidistance 61. As shown in Figure 25, this
management area is located entirely, and properly so, within Chile’s territorial
sea. On the side of the coast, its limit is a straight line keeping just one mile off
the coast. Its outer limit is a straight line that bears no relation to the seaward
limit of Chile’s territorial sea. Its northern limit is a straight line drawn at right
angles to the beach and extending just one mile out to sea. That line represents
neither the maritime boundary nor any hypothetical line of equidistance. It
represents only the required spatial extent for management of specific marine
resources in one particular area.
3.71. Peru has similarly protected areas, and these areas too are located
entirely, and properly so, within its maritime dominion, keeping to the north of
the parallel of Hito No. 1. A sketch-map produced by the Ministry of Production
of Peru in 2008 (see Figure 26) shows several marine-resources management
areas along the coast of Tacna, including an “area authorized for aquaculture
[area habilitada para acuicultura]”. This area is shown in Figure 26 as a long
stretch along the coast with blue lines indicating its contours. It is bounded to the
south by a line effectively corresponding to a parallel of latitude 18° 20' 57" S
(WGS84) 613, approximately three seconds (or 110 metres) to the north of the
612 See Memorial, paras 4.135 and 4.130.
613
The southern limit of this area is a line connecting two points at sea with latitude
18° 20' 56.796" S and 18° 20' 56.908" S (WGS84) respectively: information from
the Directorial Resolution No. 462-2007/DCG of 12 October 2007, available at the
211parallel of Hito No. 1 (18° 21' 00" S when referred to WGS84 Datum). Similarly,
when the Sea Institute of Peru (IMARPE) identified and delimited the
southernmost natural bank of benthonic resources along the coast of Tacna, the
southern limit of this bank (named Los Palos in Figure 26) was defined by a line
614
keeping a few hundred metres to the north of the parallel of Hito No. 1 . These
two areas along the coast of Tacna are depicted in Figure 27, together with
Chile’s northernmost benthonic management area established under Supreme
Decree No. 210. As Figure 27 clearly shows, the marine-resources management
areas of both Peru and Chile have been designed to respect the maritime
boundary which Peru disputes in these proceedings.
2. Peru
3.72. Apart from the 1955 Supreme Resolution (see paragraphs 3.50-3.56
above), Peru’s acknowledgement of the northern and southern boundaries of the
Peruvian “maritime dominion” is evidenced in the Regulation of Captaincies and
615
Maritime, Fluvial and Lacustrine Activities, issued in 1987 . This regulates
activities in the Peruvian “maritime dominion” and internal waters, and
determines the geographic scope of the Peruvian authorities’ maritime
jurisdiction.
3.73. A provision in this Regulation divides Peru’s “maritime dominion”
into Marit ime DistD riistto( Marítimos) for administrative purposes. The
website of the Ministry of Production of Peru, 2008, Annex 202 (see the coordinates
of vertices H and I).
614 See IMARPE, Coastal Laboratory of Ilo, Identificación y Delimitación de Bancos
Naturales de Recursos Bentónicos en el Litoral de la Región Tacna, 2003,
Annex 196, p. 63.
615 Approved by Supreme Decree No. 002-87-MA of 11 June 1987, Annex 174.
212 Figure 27
Diagram showing nearshore marine-resources management areas of Chile and
Peru in the vicinity of the maritime boundary
70°40' 70°30' 70°20'
18°10' 18°10'
Peru
18°20' 18°20'
Chile
Area authorised for aquaculture, defined by the Ministry of Production o
f Peru in 2007
Natural bank of Los Palos defined by the Institute of Sea of Peru (IMAR
PE) in 2003
Limit of Arica benthonic management area as defined in Supreme Decree No
. 210 (4 May 1998)
International maritime boundary
Datum: WGS84 Projection: Mercator
Extract of Peruvian chart 325 (NE 2004) 0 1 2 3 4 5 M
70°40' 70°30' 70°20'
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the
Sea Consultancynorthernmost Maritime District (No. 11) covers an area commencing in the north
at the “maritime frontier with Ecuador [frontera marítima con el Ecuador]” 616.
The southernmost Maritime District (No. 31) covers an area limited in the south
by “the frontier boundary between Peru and Chile [límite fronterizo entre Perú y
Chile]” 617. The two boundaries are treated on a footing of equality. Nothing
suggests that one is permanent and all-purpose while the other is provisional and
for fisheries purposes only.
3.74. The same Regulation sets forth the jurisdiction of the Captaincies of
Peru’s major ports. The Captaincy of the major port nearest the boundary with
Ecuador, Talara, is responsible for an area commencing in the north at the
maritime frontier with Ecuador. The Captaincy of Ilo, which is Peru’s
southernmost major port, has jurisdiction over an area extending “to the frontier
with Chile to the South” 618.
3.75. T h e R e g u l a t i o n o f t h e L a w o n t h e C o n t r o l a n d S u r v e i l l a n c e o f
Maritime, Fluvial and Lacustrine Activities of 2001 continues to recognize the
existence of maritime frontiers with both Ecuador and with Chile 619. There is no
indication in either the 1987 or the 2001 edition of this Regulation that the
“frontiers” there referred to were relevant only in respect of controlling fishing
616 Regulation of Captaincies and Maritime, Fluvial and Lacustrine Activities, approved
by Supreme Decree No. 002-87-MA of 11 June 1987, Annex 174, Chapter II,
Section III, Clause A-020301.
617
Ibid.
618 Ibid., Chapter II, Section IV, Clause A-020401.
619
Regulation of the Law on the Control and Surveillance of Maritime, Fluvial and
Lacustrine Activities, approved by Supreme Decree No. 028 DE/MGP of 25 May
2001, Annex 192, Part A, Chapter I, Section III (Jurisdiction of Captaincy Districts)
and Section IV (Jurisdiction of the Captaincies).
213vessels but not in respect of the several other responsibilities of the Captaincies
in the “maritime dominion” 620.
3.76. The Regulation itself does not specify the precise location of the
maritime boundaries, either with Chile or with Ecuador. However, the perimeter
of Peru’s “maritime dominion” is set forth in the 1947 Peruvian Supreme
Decree, the Santiago Declaration and the 1955 Supreme Resolution, and so far as
relevant here all these texts indicate the parallels of latitude at the points at which
the land boundaries with Chile (to the south) and Ecuador (to the north) reach the
sea.
Section 4. Exercise of Jurisdiction by Chile and Peru
in their Respective Maritime Zones
3.77. As will be illustrated in this Section, Chile and Peru have continuously
exercised jurisdiction on their respective sides of the parallel of latitude of Hito
No. 1 and acknowledged each other’s entitlement to do so. Such exercise of
jurisdiction is manifest in the control of entry into the Parties’ maritime zones by
foreign ships and the prosecution of foreign vessels illegally fishing in their
maritime zones. However, quiet possession on either side of the parallel is
evident in other areas, unrelated to fisheries or maritime traffic, such as
authorization of scientific research. Peru’s understanding of the all-purpose
nature of the boundary is also evidenced in Peru’s control of the airspace above
its “maritime dominion”, which is bounded in the south by the same parallel of
latitude.
620
Such as policing, suppressing illegal activities (illegal fishing, smuggling, drug
trafficking, etc.) and preventing and mitigating maritime pollution; see the
Regulation of Captaincies and Maritime, Fluvial and Lacustrine Activities, approved
by Supreme Decree No. 002-87-MA of 11 June 1987, Annex 174, Chapter I,
Section IV, Clause A-010401.
214 A. C ONTROL OF ENTRY INTO M ARITIME Z ONES AT THE BOUNDARY PARALLEL
3.78. Peru requires ships entering into its “maritime dominion” to report to
maritime authorities upon entry in those waters. Chile has the same reporting
requirement in respect of its territorial sea and EEZ, but only on the basis of
reciprocity (i.e., for ships whose flag state imposes such a requirement on
Chilean-flag ships). The lines in the sea which are used to determine points of
entry are the limits of the sovereignty and jurisdiction of Peru and Chile,
including their lateral boundary. Those lines are therefore more than
“provisional” lines for controlling fishing vessels.
3.79. Peru was first to set forth procedures for controlling entry into its
maritime dominion. In 1972, it issued a note to all diplomatic missions notifying
them of the authorization procedure to be followed by foreign ships. Peru stated
that it would apply this procedure to foreign ships wishing to “carry out
investigations” within its maritime zone of 200 nautical mil. This procedure
was thus applied to ships engaged in activities other than fishing.
3.80. Ships were required to give to the Peruvian authorities advance notice
of the areas in which they wished to undertake research activities. This
requirement was possible to impose and require compliance with because the
maritime zone of Peru had a definite perimeter. The fact that the note was
circulated to all diplomatic missions (including that of Chile) strongly indicates
Peru’s desire to control, not only entries from the high seas to the west but also
crossings of the lateral boundary from the south.
621 Circular Note No. (Du)-2-6-GG/17 of 7 June 1972 from the Ministry of Foreign
Affairs of Peru to all diplomatic missions accredited to Peru, attached to the
letter 4/1 of 11 August 1972 from J. M. Skinner of the British Embassy in Peru to M.
Elliot of the British Foreign and Commonwealth Office,Annex 82.
2153.81. The obligation to give advance notice to the Peruvian authorities of
entry into the Peruvian maritime dominion was confirmed in the second edition
of Sailing Directions issued in 1988 by the Directorate of Hydrography and
622
Navigation of the Peruvian Navy . It states that all ships, domestic and foreign,
navigating in the “Peruvian waters (200 miles) from the northern parallel
03° 24' N [or] the southern parallel 18° 21' Sµ must comply with the notification
obligation. This obligation is stated to apply in an area bounded by two parallels
of latitude, the “northern parallel” and the “southern parallel”. In the second
edition of Peru’s Sailing Directions of 1988, the latitude of Hito No. 1 was
notated as 18º 20.8' S 62; thus Peru was using the parallel of Hito No. 1 as the
southern lateral boundary of its “maritime dominion”.
3.82. The notification obligation was based on the “system of information
on posit ion and securit y in the ‘marit ime dominio n’ of Peru” (SISPER, in its
Spanish-language acronym), approved by a resolution of the Directorate General
624
of Captaincies and Coastguard . SISPER was revised through Resolutions of
the same Directorate-General in 1991 and 1994 625. All these versions of SISPER
require both Peruvian and foreign vessels to follow the notification procedure,
whether they are in transit, visiting Peruvian ports or engaged in various
activities (not limited to fishing) in Peruvian waters. The notification obligation
622
Directorate of Hydrography and Navigation of the Navy, Derrotero de la Costa del
Perú, 2nd edn, 1988, Annex 175, p. 12, section 1.34.
623 Ibid., p. 103, section 4.55.
624
This resolution is reproduced (without reference) in the Derrotero de la Costa del
Perú of the Directorate of Hydrography and Navigation of the Navy, edn, 1988:
Ibid., p. 12, section 1.35.
625
See Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 178; Directorial
Resolution No. 0313-94/DCG of 23 September 1994 of the Directorate-General of
Captaincies and Coastguard of Peru, Annex 180.
216and the process required are not limited to fishing boats or vessels flying the flag
of Chile 626.
3.83. Annex 3 to the 1991 version of SISPER contains the necessary
elements of a “Sailing Plan Report” which must be submitted to the relevant
Harbour Master by shipping agents. One of these elements is the estimated time
at which the ship will cross the “jurisdictional parallels” of 03º 24' S or
627
18º 20' 08" S . This reflects the Peruvian authorities’ understanding that Peru’s
“maritime dominion” is bounded by lines following parallels of latitude —
“jurisdictional parallels” — both to the north and the south. Both the 1991 and
the 1994 versions of SISPER also contain the format of the report which a ship is
required to transmit to the authorities “at the time of entry into the Peruvian
628
Maritime Dominion” , as well as model reports. In both 1991 and 1994
v e r s i o n s , t h e p o i n t o f e n t r y i n o n e o f t h e m o d e l r e p o r t s h a d t h e f o l l o w i n g
latitude: “1820.8S” 62.
626 See Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 178, Art. 1;
Directorial Resolution No. 0313-94/DCG of 23 September 1994 of the Directorate-
General of Captaincies and Coastguard of Peru, Annex 180, Annex (1), Art. 1.
627
Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 178, Annex (3).
628 Directorial Resolution No. 0313-94/DCG of 23 September 1994 of the Directorate-
General of Captaincies and Coastguard of Peru, Annex 180, Annex 4, 1st case; in its
1991 version, reporting was required upon entry into the “Peruvian jurisdictional
waters”: Annex 178, Appendix 1 to Annex 1, 1st case.
629 Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 178, Appendix 2
to Annex (1); Directorial Resolution No. 0313-94/DCG of 23 September 1994 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 180, Appendix 1
to Annex (4).
2173.84. The third edition of Peru’s Sailing Directions in 2001 reproduced the
SISPER provisions as approved in 1994 630. The 2001 edition does not explicitly
state that Peru’s waters lie to the north of the parallel of latitude 18º 21' S, but it
still contains the same model report to the authorities upon entry into the
Peruvian “maritime dominion”, with a point of entry from the south with
coordinates “1820S / 07620W” 63.
3.85. Peru has imposed a similar reporting requirement upon foreign
warships. A Peruvian Regulation 632 requires foreign warships planning to enter
Peru’s “maritime dominion” to provide advance notice and, among other things,
to identify their proposed route and the estimated dates of entry into and exit
633
from Peru’s waters . Warships are also required to report upon actual entry into
and exit from “waters under the sovereignty and jurisdiction of Peru” 63,
whatever the purpose of their voyage. This Regulation does not define the
perimeters of the Peruvian “maritime dominion”, but there is no indication that
any line other than the parallel of latitude of Hito No. 1 applies.
3.86. Chile, for its part, does not require all ships to report upon entry into
its waters. As noted, Chile does, however, impose such a reporting requirement
on ships “registered in the countries which require Chilean vessels to comply
630
Directorate of Hydrography and Navigation of the Navy of Peru, Derrotero de la
Costa del Perú, 3rd edn, 2001, Annex 193, p. 17, section 4.4.
631 Ibid., p. 20, Appendix to Annex (3).
632
Regulation on the Visit and Stay of Foreign Warships at National Ports and Transit
through the Waters under the Sovereignty and Jurisdiction of Peru, originally
approved by Supreme Decree No. 004-77-MA of 22 March 1977 and modified by
Supreme Decree No. 080-93-MGP of 26 October 1993, Annex 171.
633 Ibid., para. B-301(d).
634
Ibid., para. C-407.
218with similar or equivalent provisions”3. The specific requirement in such cases
is that ships report their position and sailing plan upon entry into waters under
Chile’s jurisdiction.
B. C APTURE AND PROSECUTION OF UNAUTHORIZED F OREIGN V ESSELS
636
3.87. As Peru stated as early as 1964 , fishing in the waters north of the
parallel of the boundary is punishable as illegal entry into Peruvian waters and a
violation of Peru’s sovereignty. Such transgressions are not regarded as simple
matters of breaking a traffic rule for fishing vessels, as Peru now seems to argue.
3.88. Chile similarly took enforcement actions against Peruvian vessels
illegally entering into its maritime zone and illegally fishing. Owing to the
routine nature of incidents involving transgressions by Peruvian vessels into
Chilean waters and enforcement actions taken in respect of such incidents,
records of capture (and in many cases prosecution) are not maintained beyond a
limited number of years. The records available, nevertheless, demonstrate
Chile’s consistent practice of capture and prosecution of unauthorized vessels in
the south of the parallel of Hito No. 1 over a long period of time.
3.89. This Subsection summarizes the practice of Peru and Chile in
enforcing the maritime boundary through capture and prosecution of foreign
vessels illegally entering into their respective maritime zones. Chile’s
enforcement actions, as will be seen, were acknowledged by Peru without any
protest or reservation, until very recently — contrary to what would have been
635
Title III, para. 1 of Decree No. 1,190 of 1976 on the Organization of the Maritime
Search and Rescue Service of the Navy of Chile, inserted by Decree No. 704 of
29 October 1990, Annex 138, Sole article, para. 6.
636 See para. 3.13 above.
219the case had Peru believed that there was no maritime boundary in place, or that
the relevant incidents occurred in disputed waters.
1. Peru
3.90. The record available to Chile on Peru’s prosecution of incursions by
Chilean vessels shows Peru’s enforcement of a boundary line which divides the
maritime zones of the two States, confirming the permanent character of the line.
For example, the Harbour Master of Ilo issued two substantially identical
637
resolutions on 5 June 1989 , imposing fines on two Chilean vessels which had
been found in Peruvian waters. The Resolutions stated that the vessels were
found at the same location, to the north of the “frontier line of the Republic of
638
Chile, in the jurisdictional waters of Peru” . This line was also described as the
639
“dividing line of the maritime frontier” .
3.91. The terminology used in decisions of the Harbour Master of Ilo
appears to have changed since 2000, perhaps with a prospective claim before the
Court in mind. The authorities started describing the line that Chilean vessels
were said to have crossed as the “Line of Special Treatment” 640. The contrast is
stark with the language in earlier decisions, which referred to the “frontier line”
637
See Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo
(Resolution No. 006-89-M), Annex 176; Resolution No. 007-89-M of 5 June 1989
by the Harbour Master of Ilo (Resolution No. 007-89-M), Annex 177.
638 Resolution No. 006-89-M, Annex 176, first paragraph; Resolution No. 007-89-M,
Annex 177, first paragraph. The quoted passage reads in Spanish: “línea fronteriza
de la República de Chile, en aguas jurisdiccionales del Perú”.
639 Resolution No. 006-89-M, Annex 176, third recital; Resolution No. 007-89-M,
Annex 177, third recital.
640
Resolution No. 098-2000-M by the Harbour Master of Ilo on 13 June 2000,
Annex 187; Resolution No. 149-2000-M by the Harbour Master of Ilo on
2 November 2000, Annex 188. The fourth paragraph of the recitals of both
Resolutions uses the term “Línea de Tratamiento Especial” in the original text.
220and the “maritime frontier”. No explanation was given for that change. The
nomenclature suggests Peru was anxious to devise a term that would allow it to
continue to arrest vessels transgressing the all-purpose maritime boundary while
attempting to avoid explicitly acknowledging that boundary.
3.92. In fact, the legal basis which Peru invoked for the prosecutions of the
cases described immediately above confirms that the offence was not, as Peru
now argues, crossing a functional line based on an ad hoc agreement. Rather, it
was illegally fishing in the Peruvian “maritime dominion”. Importantly, this was
the case both in 1989 and 2000, although in 2000 Peru started using the “Line of
Special Treatment” nomenclature for the boundary line. All the Resolutions in
1989 and 2000 summarized above refer to Articles C-070004 and C-070005 of
the Regulation on the Harbour Authorities and Maritime, Fluvial and Lacustrine
Activities. According to the description given by the Harbour Master of Ilo in
these Resolutions of 1989 and 2000, Article C-070004 prohibits fishing by
foreign vessels in the Peruvian “maritime dominion” and Article C-070005
provides that such a breach is to be prosecuted.
2. Chile
3.93. For their part, over the years Chilean naval and maritime authorities
have captured many Peruvian vessels and in some cases prosecuted such vessels
fishing illegally in Chilean waters. Following the agreement on the Regulation of
Per mit s fo r t he E xp lo it at io n o f t he Re so urces o f t he So ut h Pac ific u nder t he
641
auspices of the CPPS in 1955 , C h i l e r e g u la t e d t h e i s s u a n c e o f p e r m it s t o
foreign vessels for fishing in Chilean territorial waters ( aguas territoriales) and
641
Signed at Quito on 16 September 1955, Anne x. Under this CPPS Regulation,
fishing permits are issued by “the competent authority of the country in whose
maritime zone the fishing activities will take place”; see para. 3.130 below.
221provided that foreign vessels fishing in those waters without a permit would be
642
prosecuted .
3.94. This regime was revised upon enactment of a new General Law on
Fisheries and Aquaculture in 1989 (as subsequently modified). Under this
regime, extractive fishing activities (defined as fishing activities for the purpose
of capturing, hunting, cutting or collecting hydro-biological resources) in the
643
Chilean territorial sea and EEZ require a permit . Illegal fishing, without
permit, is an offence under Article 115 of this Law, which reads in material part:
“ I t i s p r o h i b i t e d t o c a r r y o u t e x t r a c t i v e f i s h i n g i n t h e
interior waters, territorial sea or exclusive economic zone
by ships or vessels which hoist foreign flags, unless they
are specially authorized to carry out investigative fishing.
The offenders shall be sanctioned with a fine” 644.
3.95. Here too, the punishable act is not breaching a traffic rule at sea, but
rather unauthorized activities in Chile’s territorial sea and EEZ. As an example,
the available data on recent captures, in 1984 and from 1994 to 2009, and the
proceedings that followed in many of these incidents, are set out in the Appendix
t o t h i s C o u n t e r - M e m o r i a l . T h e d a t a i n t h e A p p e n d i x a r e e x t r a c t e d f r o m t h e
correspondence between the Chilean and Peruvian maritime authorities and the
record of proceedings in the Arica courts in respect of Peruvian vessels found
fishing in Chilean waters. Where contemporaneous records are no longer
available, the available records of the Chilean Navy containing key information
642 See Decree No. 130 of 11 February 1959: Regulation on Permits for Fishing by
Foreign Vessels in Chilean Territorial Waters, Annex 117, Arts 5, 24 and 25.
643
Law No. 18,892 (as amended), General Law on Fisheries and Aquaculture,
consolidated text published in Decree No. 430 of 21 January 1992, Annex 137,
Art. 15.
644 Ibid., Art. 115.
222on some captures have been used to compile the Appendix. The location of each
capture of a Peruvian vessel is depicted in Figure 28. I t is s t r e s s e d t h a t t he
records available cover only recent years, as there is no general record-retention
or reporting policy for routine matters such as these.
3.96. As illustrated in the Appendix and Figure 28, the available documents
show that in 1984 and 1994-2009 Chile captured more than 300 Peruvian fishing
vessels in the waters south of the boundary parallel, including in Chile’s waters
to which Peru now lays claim. The red marks within the 10M zone of tolerance
in Chile’s waters indicate Peruvian vessels which in the circumstances were not
considered to have been “accidental[ly] presen[t]” within the meaning of
Article 2 of the Lima Agreement. As can be seen in the Appendix, the large
majority of these captures were duly notified to the Peruvian authorities (Peru’s
Consul General in Arica, the Harbour Master in Ilo, or both), identifying the
coordinates of the location of each capture. The notification to Peru also included
the distance between the location of capture and the “international political
boundary” (límite político internacional – “LPI”) 645.
3.97. When informed of arrests of Peruvian vessels, until 2004 Peru’s
authorities did not object to the term “international political boundary”; nor did
they enquire as to the boundary’s precise location; nor did they challenge Chile’s
position that transgressions had been assessed by reference to the international
political boundary.
3.98. From 2000, Peru’s standard response was simply to acknowledge that
Peruvian vessels were found at locations south of the “Special Maritime Frontier
645
See, e.g., Fax No. 408/99 of 24 September 1999 from the Harbour Master of Arica to
the Harbour Master of Ilo and the Consul General of Peru in AAnrinceax, 89, first
paragraph. Also see para. 3.64 above on the term límite político internacional.
223Zone” and to state that this zone was “agreed upon between our countries in
646
order to resolve incidents such as the one we are dealing with in this instance” .
Peru was referring to the Special Maritime Frontier Zone along the “parallel
which constitutes the maritime boundary between the two states” under Article 1
of the Lima Agreement of 1954. Peru was not referring to an “informal” or “ad
647
hoc” arrange me nt , as it no w .cT lahitmtsis was Peru’s understanding is
confirmed by an incident in 2000, when the Consul General of Peru in Arica
complained that a Peruvian vessel was captured six nautical miles south of the
“Special Maritime Frontier Zone” while not fishing. In his view, “its presence
was accidental and could not be considered a violation of the Chilean
648
jurisdictional waters” . Peru thus acknowledged the applicability of the Lima
Agreement and the existence of a maritime boundary.
3.99. Until 2004 Peru continued to receive without reservation Chile’s
notices which expressly relied on a maritime boundary following the parallel of
Hito No. 1. Only in September 2004 did Peru notify Chile that official
correspondence in 2003 and 2004 should not be taken as prejudicing or
modifying Peru’s position regarding the “nature, limits or extent of its zone
under national jurisdiction” or the “international instruments on these
matters” 649. The tactical intent of this letter is as transparent as it is incapable of
changing what had in fact occurred in previous years. It was purportedly a
646 See the following letters from the Consul General of Peru in Arica to the Harbour
Master of Arica: No. 8-10-B-C/0150-2000 of 3 April 2000, Annex 90; No. 8-10-B-
C/0353-2000 of 5 September 2000, Annex 94; No. 8-10-B-C/0354-2000 of
6 October 2000, Annex 96; No. 8-10-B-C/0378-2000 of 19 October 2000,
Annex 97; No. 8-10-B-C/323-2001 of 10 August 2001, Annex 99.
647 Memorial, paras 4.105 and 4.128.
648 Letter No. 8-10-B-C/0169-2000 of 14 April 2000 from the Consul General of Peru in
Arica to the Harbour Master of Arica, Annex 91.
649
Letter No. 8-10-B-C/389-2004 of 30 September 2004 from the Consul General of
Peru in Arica to the Maritime Governor of Arica, Annex 104.
224 Figure 28
Depiction of the locations where Peruvian vessels have been arrested by
Chile for violating the maritime boundary, 1984 and 1994 - 2009
75° 70°
International maritime boundary
200M limits
Chilean special maritime frontier zone south of the boundary
Peru
Position of arrest
Bolivia
Datum: WGS84. Projection: Mercator
20° 20°
Pacific Ocean
Chile
25° 25°
Argentina
0 50 100 150 200 M
75° 70°
The source for the location of arrests is the Appendix to the Counter-Me
morial, which is an abstract of the relevant primary records on these ar
rests.
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the
Sea Consultancyblanket retrospective reservation covering the volume of official correspondence
in 2003 and 2004 between the Parties on captures of Peruvian vessels in Chilean
waters 650. Peru’s sudden change of position was not explained. It serves only to
underscore that until that time both States’ maritime and consular authorities in
Arica and Ilo, which are involved in matters relating to the maritime boundary in
their daily duties, treated the parallel of latitude 18° 21' 03" S as nothing less
than the all-purpose and definitive maritime boundary between the Parties.
3. Co-ordinated procedures for the treatment of captured vessels
3.100. Over the past decades, captured vessels were often escorted by Chile’s
Navy or Peru’s Coastguard (part of Peru’s Navy) back to the maritime zone of
their home State . This procedure was memorialized in 1995 65. According to
this agreed procedure, small Chilean or Peruvian vessels found further than ten
nautical miles on either side of the “international political boundary” (i.e.,
outside the zone of tolerance under the Lima Agreement) should be escorted by
patrol boats until they exit the jurisdictional waters of the other State.
650 In response, Chile reiterated that there is an agreed maritime boundary pursuant to
international agreements in force between the Parties: see Note No. 48 of 24 May
2 0 0 5 fr om th e Min i str y o f F or ei g n Affa i r s of C h il e t o th e Per u vi an E m ba ssy i n
Chile, Annex 105; Note No. 76 of 13 September 2005 from the Ministry of Foreign
Affairs of Chile to the Embassy of Peru in Chile,Annex 84 to the Memorial .
651 See, e.g., Aerogram No. 14 of 22 May 1967 from the Consul General of Chile in
Tacna, Peru to the Ministry of Foreign Affairs of C Ahnle,x 123, forwarding the
message from the Harbour Master of Ilo that the PeruvLióam naspaarol ship
escorted a Chilean vessel to the frontier line.
652 See “Procedure for the exchange of Chilean or Peruvian fishing boats, apprehended
undertaking fishing activities to the north or to the south of the Special Maritime
Frontier Zone, between the Harbour Master of Ilo and the Maritime Governor of
Arica”, attached as Annex A to the Final Minutes of Understanding of the Fourth
Bilateral Meeting between the Commanders of the Frontier Naval Zones of Chile
and Peru on 13 July 1995, Annex 21.
2253.101. Peru attempted in 2003 to set aside some of the “agreements in force”
(to use Peru’s own terminology) 653 which had been reached in 1995 (as well as
agreements reached in 1997) between the Commanders-in-Chief of the Fourth
Naval Zone of Chile and the Third Naval Zone of Peru. The attempt included the
above-mentioned escorting procedure which was agreed in 1995 654. This rather
highlights Peru’s own understanding that the escorting procedure gave effect to
the maritime-boundary line of Hito No. 1 and that the procedure was detrimental
to a prospective claim by Peru before the Court.
3.102. The escorting procedure was as follows. The Harbour Master of Arica
(Chile) would inform his counterpart in Ilo (Peru), and normally also the Consul
General of Peru in Arica, that Peruvian vessels, having been captured while
fishing in Chilean waters, were to be escorted back to the “international political
boundary” by a Chilean Navy patrol ship. The Harbour Master of Arica would
655
provide the estimated time of entry into Peru’s territorial waters.
3.103. Logbooks of Chilean Navy patrol boats confirm this practice. In
March 1995, the patrol boat Salinas escorted a Peruvian vessel to a point with
656
latitude 18º 20' 58" S (the latitude of Hito No. 1 under SAD69) . Similarly, on
653
Final Minutes of Understanding of the Twelfth Bilateral Meeting between
Commanders of the Frontier Naval Zones of Chile and Peru between 21 and 25 July
2003, Annex 29, Section C, para. 1.
654 Ibid., Section C, para. 1(b). The Peruvian Navy argued that the agreement on the
escorting procedure fell outside its competence. The Chilean Navy opposed this
proposal.
655 S e e , e . g . , t h e f o l l o wi n g f a x m e s s a g e s f r o m t h e Ha r b o u r M a s t e r o f A r i c a t o t h e
Harbour Master of Ilo: Fax No. 417 of 4 October 2000, Annex 95; Fax No. 211/08
of 9 August 2001, Annex 98.
656
See extracts of the Logbook of the Chilean Navy patr Sallbao, tfor 30 March
1995, Annex 139.
22625 March 1996, the patrol boat Machado handed over a Peruvian vessel to a
Peruvian patrol boat at the international political boundary 65.
3.104. As a more recent example, the logbooks of the Chilean Navy ship
Arica show that, on 12 November 2002, it escorted a Peruvian vessel to the
international political boundary; and that, on 9 December 2002, in two separate
incidents, it escorted two Peruvian vessels to the same boundary line 65. In an
analogous case, on 27-29 June 2006, the Chilean Navy patrol ship Iquique
rescued a Peruvian vessel in the high seas to the west of Chile’s EEZ. Iquique
contacted the authorities in Ilo to arrange a rendezvous with Peruvian Coastguard
patrol ship Río Zaña. Iquique established communication with Río Zaña and
659
handed over the Peruvian vessel at the maritime frontier .
3.105. Peru’s Navy has also followed the same process of escorting Chilean
vessels to the boundary parallel. Recent examples include two occasions in 2000
when the Harbour Master of Ilo in Peru informed his counterpart in Arica that
two Chilean fishing vessels were to be escorted by the Peruvian Coastguard to
660
the parallel of latitude 18º 21' 03" S ; and one occasion in 2002 when the
Harbour Master of Ilo notified his counterpart in Arica that a patrol boat of the
Peruvian Coastguard was to escort a Chilean vessel to the “frontier area” 66.
Earlier logbooks of the Chilean Navy patrol boatMachado also record one
657 S e e e x t r a c t s o f t h e L o g b o o k o f t h e C hMialch eadon, Nr a v y p a t r o l b o a t
26 February and 25 March 1996, Annex 141.
658
Extracts of the Logbook of the Chilean Navy patrol boat Arica, for 12 November and
9 December 2002, Annex 152.
659 See extracts of the Logbook of the Chilean Navy patrol boat Iquique, for 27, 28 and
29 June 2006, Annex 157.
660 See Fax No. 226-00 of 28 June 2000 from the Harbour Master of Ilo to the Harbour
Master of Arica, Annex 93.
661
Fax No. 211-2002 of 9 November 2002 from the Harbour Master of Ilo to the
Harbour Master of Arica, Annex 102.
227occasion on 26 February 1996 when it received the Chilean vessel Austral
662
escorted by a Peruvian patrol boat at the international political boundar. The
legal significance of the parallel of 18° 21' 03" S in the first two examples of
2000 is obvious in light of the escorting procedure agreed in 1995. The Peruvian
Coastguard ensured that the Chilean vessels had crossed that parallel sailing due
south, thus exiting Peru’s jurisdictional waters.
C. R ECOGNITION OF AN A GREED M ARITIME B OUNDARY LINE BY THE PARTIES ’
NAVAL A UTHORITIES
3.106. T h e p r a c t i c e o f t h e N a v i e s o f C h i l e a n d P e r u i n d e a l i n g
transgressions of fishing vessels, summarized above, clearly demonstrates the
mutual recognition of a maritime boundary between the Parties. This Subsection
shows that this understanding is manifest not only in the control of illegal fishing
activities, but also in other functions, in particular the control of maritime traffic
of any type of vessel.
3.107. The importance attached to the control of maritime traffic in general
was recognized by the Parties at a meeting between their respective Armed
Forces in September 2000. It was agreed that the naval authorities of the two
States would establish procedures for exchanging necessary information on the
control exercised “within the waters under the jurisdiction of each country”6.
This is a clear recognition of the existence of a permanent and all-purpose
maritime boundary.
662
S e e e x t r a c t s o f t h e L o g b o o k o f t h e C hMeadn, Nr a v y p a t r o b o a t
26 February and 25 March 1996, Annex 141.
663 Minutes of the Fifteenth Roundtable Discussions between the High Commands of
the Armed Forces of Chile and Peru, signed by the Chief of Staff of the National
Defence Force of Chile and the Chief of Staff of the Air Force of Peru (as the heads
of the Chilean and Peruvian delegations respectively) on 29 September 2000,
Annex 26; see the paragraph entitled “Sixth Understanding” at the fifth page.
2283.108. In considering the ways of dealing with illegal drug-trafficking, the
two Navies discussed, in August 2002, a common strategy for coordinated
operations. The agreed record of the matters discussed and considered sets out
the procedures proposed to be followed by the patrol units. According to the
proposed procedures, if an offending vessel trespasses into waters of the other
State, the patrol unit which was pursuing that vessel must cease its pursuit and
make a signal or radar contact to convey the information to the patrol unit of the
latter State. It would then be left to the patrol unit of that other State to continue
the pursuit in its own waters and, if it captures the vessel, take appropriate
action66. Again, this indicates both Parties’ understanding that a maritime
boundary was in place.
D. P ERU ’SU SE OF ITM ARITIME B OUNDARIES AS THE LIMITS OF THE AIRSPACE
ABOVE ITS “M ARITIME D OMINION ”
3.109. As discussed at paragraphs 2.170-2.172 above, Peru claims to exercise
“fu ll a nd e xc lus ive so vere ig nt y o ver t he a ir spac e t hat co vers it s t errit o ry a nd
adjacent sea, up to the limit of 200 (two hundred) miles, according to the
665
Political Constitution of Peru”. Peru uses the parallels of latitude 3° 24' S and
18° 21' S, which effectively coincide with its maritime boundaries with Chile and
Ecuador, as the lateral limits of its airspace. Peru does so both in its internal law
664 See Final Minutes of Understanding of the Eleventh Bilateral Meeting between the
Commanders of the Frontier Naval Zones of Chile and Peru, Appendix 1
“Considerations for the formulation of a common bilateral strategy to enable future
operations against illegal activities carried out at sea”, 16 August 2002 Annex 28,
para. 3.c).
665 Law No. 27261 of 9 May 2000: Law on Civil Aeronautics, Annex 185, Art. 3; see
also Law No. 15720 of 11 November 1965: Law on Civil Aeronautics, Annex 12 to
the Memorial, Art. 2 (translation taken from United Nations Legislative Series,
National Legislation and Treaties relating to the Law of the Sea, 1974, Annex 164).
229and under the Convention on International Civil Aviation of 1944 (the Chicago
666
Convention) .
3.110. Peru claimed “sole sovereignty over the air space above its territory
and jurisdictional waters within a distance of 200 miles” in its Law on Civil
667
Aeronautics, first enacted in 1965 . S h o r t l y a f t e r w a r d s , i n J u n e 1 9 6 6 , a
memorandum by the Embassy of Peru in Santiago recorded Peru’s objection, not
only to incursions by Chilean vessels into its maritime zone, but also to aerial
transgressions of the “maritime frontier” by Chilean aircraft 66.
3.111. According to Article 21 of the 2000 version of the Peruvian Law on
Civil Aeronautics, authorization is required for “entry into, transit within and exit
from” Peru’s airspace. That authorization is to specify the point(s) at which an
669
aircraft is to cross the boundary line of Peru’s . ahiispnacaiercraft are
subject to this requirement of Peruvian law. Chile’s authorities are not
responsible for obtaining authorization for commercial flights, but Chile’s
Government has applied for authorization for official flights in Peruvian
airspace. The issuance of such authorizations confirms Peru’s understanding that
its airspace is bounded to the south by the parallel of latitude of Hito No. 1 . 670
666
Convention on International Civil Aviation, concluded at Chicago on 7 December
1944, 15 UNTS 295.
667 Law No. 15720 of 11 November 1965: Law on Civil Aeronautics, Annex 12 to the
Memorial, Art. 2 (translation taken from United Nations Legislative Series,
National Legislation and Treaties relating to the Law of the Sea, 1974, Annex 164);
Law No. 27261 of 9 May 2000: Law on Civil Aeronautics, Annex 185, Art. 3.
668
Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 76.
669 See Law No. 27261 of 9 May 2000: Law on Civil Aeronautics, Annex 185, Art. 21.
670
See, e.g., Fax No. 555 of 5 September 2007 from the Chilean Air Force Attaché in
Peru to the Directorate of International Relations of the Air Force of Chile, reporting
Permission PVC No. 257/2007 for overflight granted by the Peruvian Air Force; Fax
2303.112. T h e C h i l e a n G o v e r n m e n t ’ s r e q u e s t s t o P e r u f o r a u t h o r i z a t i o n o f
official flights in the airspace over Peruvian territory, including Peru’s “maritime
dominion”, are submitted through Chile’s Air Force attaché in Lima. The
request-form to be submitted to Peru includes the itinerary and course of each
flight. The points of entry into, and exit from, Peruvian airspace are indicated by
the code-names given to the points at which air routes cross the lines dividing
Peru’s Flight Information Region F ( IR) with those of Chile and Ecuador under
671
the Chicago Convention . These points on the FIR limits can be seen in the air-
route chart of Peru, reproduced as Figure 29. So far as relevant here, in the
a i r s p a c e a b o v e t h e S o u t h - E a s t P a c i f i c O c e a n , t h e a d j a c e n t
(“Antofagasta”), Peru (“Lima”) and Ecuador (“Guayaquil”) are divided by two
parallels of latitude, to the north (3° 24' S) and to the south (18° 21' S), and the
crossing points from one FIR to the next are located on the two parallels . 672
3.113. To cite one recent example, in December 2007 Chile requested Peru’s
authorization for overflight by an aircraft transporting Chile’s peace-keeping
contingent to Haiti. The Chilean aircraft was to follow air route L-302. At the
crossing point with code-name IREMI (18° 21' 00" S, 75° 23' 00" W), the
No. 654 of 12 Oct ober 2007 fr om th e Ch ilean Air For ce Attach é in Per u to th e
Directorate of International Relations of the Air Force of Chile, reporting Permission
PVC No. 294/2007 for overflight granted by the Peruvian Air Force; Fax No. 697-A
of 13 November 2007 from the Chilean Air Force Attaché in Peru to the Directorate
of International Relations of the Air Force of Chile, reporting Permission PVC
No. 315/2007 for overflight granted bythe Peruvian Air FAnnex 158.
671
Under Article 28 and Annex 11 of the Chicago Convention, each State party
undertakes to provide flight information and alerting services in an airspace of
defined dimensions called a Flight Information Region. Lines dividing FIRs are
drawn by ICAO on the basis of air-navigation plans formulated by its Member
States.
672 Over Peru’s land territory, the lines forming the perimeters of Peru’s FIRs coincide
with Peru’s land boundaries with its neighbouring States.
231aircraft would enter the airspace above Peru’s “maritime dominion”, and later
f o l l o w a i r r o u t e G - 6 7 5 u n t i l t h e c r o s s i n g p o i n t w i t h c o d e - n a m e
(4° 28' 46" S, 80° 21' 34" W). At that last point the aircraft would leave Peruvian
airspace, overflying Peru’s land boundary with Ecuador. Points IREMI and
PAGUR are on the borders of FIR Lima and are depicted on Peru’s air-route
navigation chart as authorized points of entry and exit. The authorization issued
by Peru, reproduced in Figure 30, clearly shows that the flight-path between
points IREMI and PAGUR, including the flight along air route L-302 over the
Peruvian “maritime dominion”, is considered by Peru as a flight over “Peruvian
territory” .3
3.114. Peru’s choice of the parallel of 18° 21' S as the southern limit of the
Peruvian FIR in the airspace above the maritime dominion is significant as part
of the totality of the evidence in this case. As Peru mentions in its Memorial,
674
though in a cursory manner , t h e l i n e w h i c h o r i g i n a l l y d i v i d e d t h o s e t w o
adjacent FIRs since 1951 was not a parallel of latitude. In 1962, it was changed
t o t h e c u r r e n t l i n e , n a m e l y t h e p a r a l l e l o f 1 8 ° 2 1 ' S , b y t h e C o u n c i l o f t h e
International Civil Aviation Organization (ICAO) 675, following the submission
of a working paper by Peru depicting the structure of the air-route network in
Peru’s airspace 676. Peru indicated the parallel of 18° 21' S as the southern limit of
Peru’s airspace. Peru’s paper did not indicate that its airspace extended to any
673 Fax message of 15 January 2008 from the Chief of the Liaison and Protocol
Department of the Air Force of Peru to the Directorate of the Air and Space Affairs
o f t h e Mi n i str y o f F or ei gn Af fa ir s o f P er u an d t o t h e Ai r For ce At t a ch é of t h e
Chilean Embassy in Peru,Annex 110.
674 See Memorial, footnote 197.
675 ICAO Inter-Office Memorandum of 3 February 2005, Annex 243, para. 6 and
Enclosure E to the Memorandum (“Summary of Amendments to the Plan”).
676 Peru’s paper was submitted at a South American/South Atlantic regional air
navigation meeting in 1961: Establishment of an integrated air route network
suitable for the efficient provision of air traffic services, Working paper presented by
Peru, LIM SAM/SAT, 1961, WP/31, 13 November 1961, Annex 238.
232area south of FIR Lima, or that Chile was exercising air-traffic control to the
so ut h o f t he para lle l o n t he bas is o f an agree ment w it h Peru delegat ing suc h
677
functions to Chile . The position in the north mirrors that in the south. One year
earlier, the dividing line between FIR Lima and FIR Guayaquil of Ecuador had
been fixed as the parallel of latitude 3° 24' S, effectively corresponding to the
Ecuador-Peru maritime boundary 678.
E. S CIENTIFIC RESEARCH IN W ATERS SOUTH OF THE M ARITIME B OUNDARY
3.115. Under Decree No. 711 of 1975, the Hydrographic and Oceanographic
Institute of the Chilean Navy (since renamed the Hydrographic and
Oceanographic Service of the Navy; SHOA, in its Spanish-language acronym)
authorizes scientific and technological research conducted by foreign nationals in
679
the maritime zones under the national jurisdiction of Chile . SHOA has in fact
authorized several research missions in Chile’s maritime spaces now claimed by
Peru. Recent examples (1996-2004) follow.
(a) An authorization was granted to the Spanish Instituto de Ciencias del
Mar in March 1996 to conduct scientific research in “waters of
677 Under the terms of Annex 11 to the Chicago Convention, a State may exercise air-
traffic control over airspace which does not form part of its territory in two
situations: first, in accordance with an agreement delegating air-traffic services from
one State to another; and, second, when a regional agreement provides for the
provision of air-traffic services for airspace over the high seas or airspace of
undetermined sovereignty. There is no agreement between Peru and Chile delegating
to Chile air-traffic services south of parallel 18° 21' S.
678 See Recommendation 3/1 – Flight Information Regions – Amendment to the
SAM/SAT Regional Plan (Doc. 7800/3), reproduced as Enclosure D to the ICAO
Inter-Office Memorandum of 3 February 2005, Annex 243, para. b).
679
Decree No. 711 of 22 August 1975 approving the Regulation on the Control of
Marine Scientific and Technological Investigations in the maritime zone of national
jurisdiction, Annex 131, second recital and Art. 5.
233 680
national jurisdiction” of Chile . Both the application for
authorization, submitted by the Spanish Foreign Ministry on behalf of
the institute, and the authorizing Resolution record that the
investigation was to be carried out along five transectas (a straight line
along which a scientific research ship sails and relevant samples are
collected). The route of the Spanish research ship, Hespérides, and the
five transectas are shown in the sketch-map attached to the note
verbale from Spain’s Foreign Ministry (see Figure 31). The
northernmost transecta started from a point with coordinates 19° S
and 71° W, as noted in Annex A to the relevant SHOA Resolution (see
Figure 31) and is within the maritime area now claimed by Peru.
(b) In December 1997, SHOA authorized the Scripps Institute of the
United States of America to carry out marine scientific research in
“waters of national jurisdiction”681. The area of investigation by the
ship Melville is shown in Annex A to the authorizing Resolution,
reproduced as Figure 32. The northernmost part, with a rectangular
shape, is limited to the north (line connecting points 1 and 2) by a
parallel of latitude 18° 38' South. As illustrated in Figure 32, this
northernmost part is within the maritime area now claimed by Peru.
(c) In November 1999, C&C Technologies (a company based in the
United States of America) was authorized to conduct scientific
research in relation to the proposed installation of a submarine cable
system off the coasts of, among other countries, Colombia, Ecuador,
Peru and Chile. Authorization was granted by SHOA in respect of
research in the Chilean territorial sea and EEZ between Arica and
680 See SHOA Resolution No. 13270/A-21 VRS of 1 March 1996, Annex 142.
681
SHOA Resolution No. 13270/64/VRS of 22 December 1997, Annex 143.
234 Valparaíso, along the route of two segments of the proposed system . 682
A sketch-map in the Resolution showing the authorized route is
683
reproduced as Figure 33 . A n o t h e r R e s o l u t i o n o f t h e s a m e d a t e
shows that two representatives of SHOA, called the “National
Observers”, were to board the survey ships (Merlion and Beach
Surveyor) after the ships had crossed the International Political
684
Boundary . The report later prepared by the National Observers
confirmed that they did in fact board the survey ships at the designated
place.
(d) In June 2000, the Scripps Institution of Oceanography and the Woods
Hole Oceanographic Institution of the United States of America were
authorized to conduct marine scientific research along a route
c o n n e c t i n g t h e p o r t o f A r i c a t o a p o i n t i n t h e P a c i f i c O c e a n w it h
coordinates 20° S and 85° W. In the application submitted by the
United States Embassy on behalf of Scripps (and later authorized by
SHOA), the research was stated to be conducted “in areas subject to
the jurisdiction of Chile” and during “transits of the Chilean Exclusive
Economic Zone en route to a major research project in international
waters” 685. The authorized route of the research vessel Melville, as
depicted in Figure 34, traversed the maritime area now claimed by
Peru to the south of the parallel of Hito No. 1.
682 See SHOA Resolution No. 13270/71/VRS of 26 November 1999, Annex 144,
para. 2.
683
Ibid., Annex A.
684 See SHOA Resolution No. 13270/72/VRS of 26 November 1999, Annex 145,
paras 2-3.
685
Not e No. 0 8 1 of 2 6 Apr i l 2 0 00 fr om th e Un i t ed Sta t es Em ba ss y i n Ch il e t o th e
Ministry of Foreign Affairs of Chile,Annex 92; also see SHOA Resolution
No. 13270/37/VRS of 9 June 2000, Annex 146.
235(e) Also in 2000, three companies obtained separate authorizations to
conduct surveys in Chile’s territorial waters and EEZ. The northern
limit of each survey area was defined by specific reference to the
“International Political Boundary” 686.
(f) In January 2002, a German institution was authorized to conduct
scientific research in the Chilean EEZ up to the International Political
Boundary. The research ship, Sonne, was to sail northwards from the
Chilean port of Valparaíso, cross the International Political Boundary
and conclude its voyage at the Peruvian port of Callao. Peru
authorized the part of this research mission that was conducted by the
687
Sonne in the Peruvian “jurisdictional waters” .
(g) Scripps and Woods Hole were authorized once more, in July 2003, to
conduct scientific research in the Chilean territorial sea and EEZ.
Their project was to cover the waters off the coast of Chile and
Ecuador. Part of the research area which was subject to Chile’s
authorization was along the same route as in 2000 (between the port of
Arica and a point in the Pacific Ocean with coordinates 20° S and
85° W). Once again, the authorized route of the research vessel, Roger
Revelle, traversed the area now claimed by Peru 688, as shown in
Figure 35.
686 SHOA Resolution No. 13270/4/VRS of 12 January 2000, Annex 151; SHOA
Resolution No. 13270/63/VRS of 3 October 2000, Annex 147; SHOA Resolution
No. 13270/69/VRS of 18 October 2000, Annex 148.
687
SHOA Resolution No. 13270/6/VRS of 11 January 2002, Annex 150; Ministerial
Resolution No. 068-2002-PE of 15 February 2002 by the Ministry of Production of
Peru, Annex 195.
688 See Note No. 090 of 3 April 2003 from the United States Embassy in Chile to the
Ministry of Foreign Affairs of Chile, Annex 103; SHOA Resolution
236(h) The Cancer Research Institute in Arizona, United States of America,
received authorization in 2004 for scientific surveys in the area up to
latitude “18° 21' 03" S (boundary of the frontier [límite de la frontera]
with Peru)” 689. Similarly, a SHOA authorization in 2005 referred to
the “International Political Boundary (18° 21' 00" S when referred to
690
WGS84 DATUM)” as the northern limit of the survey area .
3.116. Earlier records of scientific missions by Chile and Peru also indicate
the Parties’ acknowledgment of an agreed maritime boundary. For a mission
carried out in 1972 by SHOA in the waters to the north of the port of Arica, it
was envisaged that the Chilean Navy survey ship would cross the maritime
b o u n d a r y a n d e n t e r i n t o t h e P e r u v i a n “ m a r i t i m e d o m i n i o n ” t o c o m p l e t e t h e
survey. Chile duly requested authorization by diplomatic note, considering that,
“during the sound-ranging the said ship of the National Navy will have to
navigate in a certain area north of the maritime boundary between the two
countries” (emphasis added) 691. The Chilean Navy eventually proceeded to
complete its survey as planned without protest from Peru. If Peru believed there
was no “maritime boundary” in place (but only an ad hoc provisional line of
limited import), then clarification of Peru’s position was called for. To place this
No. 13270/04/113/VRS of 23 July 2003, Annex 154. The entire project, covering
Chilean and Ecuadorean waters, was described by the United States Embassy in
Chile, again applying on behalf of the institutions, as being conducted “in areas
under the jurisdiction of Chile and Ecuador”.
689
SHOA Resolution No. 13270/04/266/VRS of 22 December 2004, Annex 155.
690 SHOA Resolution No. 13270/04/263/VRS of 28 September 2005, Annex 156.
691
Note DRI-DAE No. 22973 of 26 July 1972 from the Ministry of Foreign Affairs of
Chile to the Peruvian Embassy in Chile,Annex 81, third paragraph. As can be seen
from the second paragraph of the same note, the proposed area of sound-ranging
extended up to the parallel of 18º 18' S.
237event in chronological context, in July 1972 the two States had just completed
the process of constructing two alignment lighthouses to signal the boundary.
3.117. For its part, Peru notified Chile in November 1987 of proposed
scientific research in Antarctica by the Peruvian Navy and Peru’s Institute of the
692
Sea . In the relevant diplomatic note Peru stated that the ship Humboldt “will
enter into the Chilean jurisdictional waters approximately on 5 January 1988” en
route to Antarctica 693. Chile agreed to facilitate the Humboldt’s transit and
calling at two Chilean ports . According to the book on this expedition, written
b y a P e r u v i a n h i s t o r i a n o n b o a r d a s tH humbr oedt c r toesrs,et hteh e
695
“boundary parallel with Chile” early in the evening of 6 January 1988 .
3.118. Turning, lastly, to plurilateral practice, Chile, Colombia, Ecuador and
Peru have long participated in joint marine research projects organized by the
CPPS. One such project — only one example of many — has been organized
under the Protocol on the Programme for Regional Study of the Phenomenon “El
696
Niño” in the South-East Pacific of 1992 . The institutions designated by these
Member States conduct research separately (but under the coordination of the
CPPS), and the results are collated and published by the Scientific Committee of
the CPPS. The CPPS reports contain a chart showing the location of each of the
oceanographic stations situated off the coasts of its Member States, where
692
See Note No. 5-4-M/291 of 20 November 1987 from the Peruvian Embassy in Chile
to the Ministry of Foreign Affairs (Special Policy Directorate) of Chile,Annex 85.
693 Ibid., fourth paragraph.
694
See Note No. 24516 of 10 December 1987 from the Ministry of Foreign Affairs of
Chile to the Peruvian Embassy in Chile,Annex 86.
695 See J. A. del Busto Duthurburu, Los Peruanos en la Antártida, 1989, Annex 319,
p. 25.
696
Protocol on the Programme for Regional Study of the Phenomenon “El Niño” in the
South-East Pacific, signed at Callao on 6 November 1992, Annex 20.
238meteorological, oceanographic and biological data were collected by the research
ships of national institutions.
3.119. One example of such charts, from the project in 1999, is reproduced as
Figure 36. It shows the oceanographic stations of the national institutions,
including those of the Peruvian research ship Olaya (shown in star-shaped
marks) and the Chilean research ship Carlos Porter (shown in red diamond-
shaped marks). The northernmost and southernmost sets of oceanographic
stations of Olaya are located along the parallels of latitude which are close to
those constituting the northern and southern limits of Peru’s maritime dominion.
The northernmost set of the oceanographic stations of Chile’s Carlos Porter is
spread along a parallel extending westwards from Arica for a distance of 200
kilometres, and that parallel traverses the area now claimed by Peru.
Section 5. Acknowledgement of the Delimited Maritime Zones within
the context of the Permanent Commission of the South Pacific (CPPS)
3.120. The Santiago Declaration is a foundational text for the entire CPPS
system. The views of the CPPS Member States as to how the rules adopted under
the auspices of the CPPS are to apply, both between themselves and vis-à-vis
third States, are crucial to the interpretation of the Santiago Declaration. This
Section demonstrates that all three States have consistently taken the position
that they have separate maritime zones, and that those zones are delimited by
parallels of latitude. This may be seen from (i) the negotiating history of an
additional protocol in 1955 to invite other States in the region to adhere to the
regime under the Santiago Declaration, (ii) the text of key agreements between
the CPPS Member States and (iii) the views expressed by the CPPS on the
maritime zones of its Member States without objection from those States.
239 A. A CCESSION PROTOCOL TO THE S ANTIAGO D ECLARATION (1955)
3.121. The regime created under the Santiago Declaration drew attention and
interest from other States in the region. In particular, Costa Rica and Colombia
began to express interest in acceding to the Declaration. In 1955, Chile, Ecuador
and Peru developed an instrument of accession for other American States. The
final text of this instrument, the “Protocol of Accessio n to the Declarat ion of
Santiago on ‘Maritime Zone’” (the Accession Protocol) 697, does not explicitly
address any maritime-delimitation issues. The reasons for this omission are of
special interest in this case.
3.122. The positions taken by Chile and Peru on Article IV of the Santiago
Declaration during the preparation and then the negotiation of the text of the
Accession Protocol confirm their understanding that Article IV of the Santiago
Declaration had fully delimited the maritime zones of the original three States
parties.
3.123. Some provisions of the Santiago Declaration were excluded from the
Accession Protocol. Most importantly, Article IV of the Declaration was deemed
to be inoperative so far as possible new parties were concerned 69. Instead of
Article IV, the Accession Protocol included a paragraph noting that each
acceding State had the right to determine both the seaward extension and the
697
Protocol of Accession to the Declaration of Santiago on “Maritime Zone”, signed at
Quito on 6 October 1955, Annex 52 to the Memorial. Costa Rica signed but, in the
end, did not join in the Accession Protocol; and the Accession Protocol was not used
when Colombia eventually decided to join the CPPS in 1979.
698 Ibid., fifth paragraph.
240manner of delimitation of its own maritime zone in accordance with its particular
circumstances 699.
3.124. Chile and Peru were at one on the appropriateness of the exclusion of
Article IV and on the reasons for it, as can be seen from separate notes sent by
Peru and Chile during the preparation for the diplomatic conference that was to
b e c o n v e n e d i n Q u i t o . I n a n o t e t o E c u a d o r ( w h i c h w a s t a k i n g p r i m a r y
responsibility for drafting the accession instrument for discussion at the same
conference), Peru explained that Article IV of the Santiago Declaration, “which
establish[es] the frontier between the countries” should be excluded from the
scope of the Accession Protocol because it would be “inapplicable in other
700
locations” .
699
Protocol of Accession to the Declaration of Santiago on “Maritime Zone”, signed at
Quito on 6 October 1955, Annex 52 to the Memorial, fourth paragraph. The full
text of the provision is as follows:
“The three Governments declare that the adhesion to the principle stating
that the coastal States have the right and duty to protect, conserve and
use the resources of the sea along their coasts, shall not be constrained by
the assertion of the right of every State to determine the extension and
boundaries of its Maritime Zone. Therefore, at the moment of accession,
every State shall be able to determine the extension and form of
delimitation of its respective zone whether opposite to one part or to the
entirety of its coastline, according to the peculiar geographic conditions,
the extension of each sea and the geological and biological factors that
condition the existence, conservation and development of the maritime
fauna and flora in its waters.”
700
M e m o r a n d u m o f 2 3 J u n e 1 9 5 5 f r o m t h e P e r u v i a n E m b a s s y i n E c u a d o r t o t h e
Government of Ecuador, Annex 70, first page. This reads, in material part, as
follows:
“. . .se inclina a suprimir los párrafos IV y VI, que establecen la frontera
entre los países -inaplicable en otros lugares- y el propósito de suscribir
convenios de aplicación que también están fundamentalmente
relacionados con la situación de vecindad de nuestros países.”
2413.125. In a separate note to Ecuador, Chile also expressed the view that the
use of parallels of latitude as maritime boundaries in Article IV of the Santiago
Declaration might well be “practically inapplicable” to other countries:
“The Government of Chile considers it indispensable that
the possibility of making reservations to the principles on
delimitation of the maritime frontier should be set out in
the Protocol, due to the fact that, for example, the principle
of the Parallel stipulated in the Declaration of Santiago is
practically inapplicable to frontiers of other countries, such
as Colombia-Venezuela and the majority of the Central
American [States].”701
3.126. Thus, both Peru and Chile severally acknowledged that the maritime
zones claimed under the Santiago Declaration had already been delimited
between all of the original States parties (not just Peru and Ecuador), and that
those boundaries followed parallels of latitude. Chile and Peru both considered it
appropriate to exclude the delimitation component, Article IV, of the Santiago
Declaration from the Accession Protocol, precisely because they understood
Article IV to provide for parallels of latitude as the maritime boundaries between
each of the original three States parties. What was appropriate in the macro-
geography of the South-East Pacific was not necessarily appropriate elsewhere.
B. A GREEMENTS AND D ECLARATIONS UNDER THE CPPSF RAMEWORK
3.127. The CPPS Member States (Chile, Ecuador, Peru, and since 1979
Colombia) have on many occasions acknowledged the importance of the
Santiago Declaration, and reiterated their commitment to co-operate in the
protection and conservation of marine resources and the marine environment, as
701
Memorandum of 14 August 1955 by the Chilean Embassy in Ecuador, entitled
“Observations on the Ecuadorean draft of the Protocol of Accession to the
Agreements of Santiago on Maritime Zone”, Annex 71, second paragraph.
242well as in the fields of science and technology 702. At the same time, the Member
States have indicated their understanding that each of them has its own maritime
zone within which it is to take measures to implement and enforce the agreed
rules on those subject matters 70.
3.128. Furthermore, under the auspices of the CPPS, its Member States have
entered into various agreements for the protection and control of marine
r e s o u r c e s a n d t h e e n v i r o n m e n t . T h e t e x t o f t h e C P P S a g r e e m e n t s r e f l e c t s a
shared understanding by the States parties and the CPPS that those States’
maritime zones had already been delimited.
3.129. Under Article 2 of the Agreement Relating to Measures of Supervision
and Control in the Maritime Zones of the Signatory Countries of 1954, each
State is entitled to exercise supervision and control exclusively within the waters
under its jurisdiction. Vessels and airplanes of one State may enter into the
maritime zone of another State without special authorization when that other
704
State has made express request for co-operation .
3.130. Under the Regulation of Permits for the Exploitation of the Resources
of the South Pacific, concluded in 1955, no person may exploit resources in the
702
See, e.g., Cali Declaration of 24 January 1981, attached to the note verbale of
9 March 1981 from the Heads of Delegation of Chile, Colombia, Ecuador and Peru
to the President of the Third United Nations Conference on the Law of the Sea,
translated by the United Nations, document A/CONF.62/108, Annex 49; Declaration
of Viña del Mar of 10 February 1984, Annex 14.
703 See, e.g., Declaration of Viña del Mar of 10 February 1984, Annex 14, paras 15 and
18.
704
Agreement Relating to Measures of Supervision and Control in the Maritime Zones
of the Signatory Countries, signed at Lima on 4 December 1954, Annex ,4Art. 2.
This is one of the agreements signed at the end of the 1954 Inter-State Conference.
243maritime zones of Chile, Ecuador or Peru without a permit (Article I) 70. In
Article IV the Regulation provides that the exploitation of mineral resources in a
maritime zone requires a permit from “the competent authority of the country in
which the exploitation will take place” (emphasis added) 706. Similarly, under
Article VI of the Regulation, fishing permits are issued by “the competent
authority of the country in whose maritime zone the fishing activities will take
707
place” (emphasis added) . These provisions reflect a clear recognition of the
CPPS Member States that each of them had a fully delimited maritime zone. The
additional importance of Article IV for present purposes lies in the fact that it
governs the exploitation of mineral resources, not living resources. The
d e l i m i t a t i o n u n d e r t h e S a n t i a g o D e c l a r a t i o n w a s n o t s i m p l y c o n c e r n e d w i t h
fisheries; it was an all-purpose delimitation.
3.131. The CPPS Member States have further agreed that each of them is to
take appropriate measures to protect the environment of the maritime area under
its sovereignty and jurisdiction and address the consequences of pollution within
that area. Under Article 3 of the 1981 Agreement on the Protection of the Marine
Environment and the Coastal Area of the South-East Pacific, the States parties
are required notably to enact laws and regulations for preventing, reducing and
controlling contamination in “their respective marine environments and coastal
708
areas” . The States parties have also agreed to designate the authorities
705 Regulation of Permits for the Exploitation of the Resources of the South Pacific,
signed at Quito on 16 September 1955, Annex 5, Art. I.
706 Ibid., Art. IV.
707 Ibid., Art. VI.
708
Agreement on the Protection of the Marine Environment and the Coastal Area of the
South-East Pacific, signed at Lima on 12 November 1981, 1648 UNTS 3 (entered
into force on 19 May 1986), Annex 12, Art. 3(3).
244responsible for monitoring pollution “within their respective maritime areas of
709
sovereignty and jurisdiction” .
3.132. The Protocol for the Protection of the South-East Pacific against
Pollution from Land-based Sources of 1983 requires the States parties to
endeavour to prevent, reduce, control and eliminate pollution caused by
substances listed in Annex I to the Protocol, and gradually to reduce pollution
caused by substances listed in its Annex II, in both cases “in their respective
710
zones within the sphere of application of this Protocol”. In their effort to avoid
radioactive contamination, the States parties to the Protocol for the Protection of
the South-East Pacific against Radioactive Contamination of 1989 have agreed to
establish, individually or jointly, a surveillance programme and, for that purpose,
to designate the authorities responsible for surveillance “within their respective
maritime zones of sovereignty and jurisdiction”1.
C. CPPSA CKNOWLEDGEMENT OF T HREE D ISTINCT NATIONAL M ARITIME ZONES
3.133. Over the years, the Member States of the CPPS have met regularly to
discuss issues related to the protection and conservation of maritime resources,
and issued various recommendations. Some of these texts, adopted in the name
of the CPPS rather than those of its Member States, again indicate the
organization’s understanding that each Member State is to exercise exclusive
jurisdiction within a defined maritime area. None of the Member States has
709 Agreement on the Protection of the Marine Environment and the Coastal Area of the
South-East Pacific, signed at Lima on 12 November 1981, 1648 UNTS 3 (entered
into force on 19 May 1986), Annex 12, Art. 7.
710
Protocol for the Protection of the South-East Pacific against Pollution from Land-
based Sources, signed at Quito on 22 July 1983, 1648 UNTS 73 (entered into force
on 23 September 1986), Annex 13, Arts IV and V.
711 Protocol for the Protection of the South-East Pacific against Radioactive
Contamination, signed at Paipa on 21 September 1989, Annex 19, Art. VII.
245disputed this understanding. Nor has the CPPS ever operated as if there was a
maritime area in dispute between two of its founding members.
3.134. In 1957, the CPPS recommended that its Secretary-General suggest to
Member States’ Governments that they each adopt legislative and economic
measures to protect and promote the industries engaged in the exploitation of
marine products 71. In the preamble to the Resolution adopted by the CPPS, it is
noted that:
(a) a chief objective of Chile, Ecuador and Peru in setting up the CPPS
regime was to ensure that the living resources in their respective
maritime waters are utilized to feed the people of each of the three
States; and
(b) in order to achieve that objective, in 1952 these three States
“determined” the maritime zones over which they had “dominion and
713
exclusive sovereignty” .
3.135. Rather than proceeding on the basis that Chile, Ecuador and Peru had
claimed in the Santiago Declaration one single or aggregated maritime area of
200 nautical miles vis-à-vis third States (as Peru now claims 714), this Resolution
clearly reflected the position that each Member State possessed a discrete
maritime zone of its own and exercised exclusive sovereignty in that zone. The
712 See Resolution XII adopted during the Fifth Ordinary Meeting of the CPPS in
Santiago on 30 September and 1 October 1957, Annex 237.
713
Ibid., preambular recital. The original Spanish text of this passage reads as follows:
“[E]stas naciones determinaron en 1952 las zonas marítimas sobre las cuales tienen
dominio ysoberanía exclusivos”.
714 See Memorial, para. 4.73.
246CPPS acknowledged that this position was established in 1952 by the adoption
715
of the Santiago Declaration .
3.136. That position of the CPPS is further confirmed by the collection of
statistical data on violations of each State’s maritime zone, published by the
716
Secretary-General of the CPPS . As already mentioned at paragraphs 2.101 and
2.143 above, this document, published in 1972, separately lists incursions into
the maritime zones of Chile, Ecuador and Peru 717. The CPPS did not consider the
Santiago Declaration to have created one shared maritime zone running the
length of the coasts of Ecuador, Peru and Chile.
3.137. Finally, in 1967, in his capacity as the Secretary-General of the CPPS,
Dr. García Sayán of Peru recognized that, under the Santiago Declaration, each
of the States parties possessed a separate maritime zone, rather than sharing a
condominium in the maritime area along their coasts:
“[T]he patrolling exercised by the three countries in their
respective maritime zones is increasingly preventing
foreign intrusions into [those zones] and to subject foreign
fishing vessels to the regulation of the respective coastal
States. The world resonance of the Onassis affair occurred
in 1954 inside the Peruvian maritime zone, as well as other
minor incidents, have represented serious and repeated
warnings that the three member States of the regional
system are resolved to ensure the respect for the regime of
715
The views expressed by the CPPS on the Santiago Declaration can be validly taken
in t o a cc ou n t wh en in t er pr et in g th e Sa n t ia g o De cl a r a ti on , a s t h e C PPS i s cl osel y
involved in its application (and of other agreements under the CPPS regime, which
regime finds its foundation in the Santiago Declaration); seeLegal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,
I.C.J. Reports 2004, paras 97-99.
716
CPPS Secretary-General, Infracciones en la Zona Marítima del Pacífico Sur,
January 1972, Annex 240.
717 Ibid., explanations at p. 5 (“Presentación”), para. 2 (“Plan y Comentario”).
247 sovereignty a718maritime jurisdiction that they have
proclaimed.” (Emphasis added.)
Section 6. Acknowledgement of Delimited Maritime Zones during
Negotiations with the United States (1955)
3.138. Starting in the 1950s, faced with challenges from third States against
their newly declared maritime zones, Chile, Ecuador and Peru made it clear that
each of them was entitled to a 200M maritime zone and that they would jointly
defend their individual zones. Regional solidarity was a key aspect of the
Santiago Declaration 719. As will be seen below, it was obvious in their
statements that the three States did not believe that they had claimed a single
maritime space along their coasts, but rather that each of them had a separate and
fully delimited maritime zone.
3.139. In the mid-1950s the United States of America sought to negotiate
bilateral arrangements with Ecuador or Peru to obtain preferential rights for its
fishing fleet. These two States refused to engage in any bilateral negotiations,
however, because of their commitment under the Complementary Convention of
1954 “not to enter into any covenants, arrangements or agreements that may be
detrimental to the Sovereignty over the [Maritime Zone under the Santiago
Declaration]” 720. The United States of America then proposed a four-party
negotiation with Chile, Ecuador and Peru, for an agreement on conservation of
marine resources in the South-East Pacific Ocean. The negotiation took place in
Santiago, Chile in 1955. The negotiation failed to reach a result. The views
718 Statement made by Dr. García Sayán on 31 January 1967, in CPPS Secretary-
General, Convenios y Otros Documentos (1952-1966), Annex 239, para. 5. Also see
p ar a. 6 for h i s con fir ma ti on th a t th er e wa s n o con d om in iu m sh ar ed b y t h e th r ee
States.
719
See Complementary Convention, Annex 51 to the Memorial , second paragraph.
720 Ibid., fourth paragraph.
248expressed by the participating States are, however, indicative of their
understanding that Chile, Ecuador and Peru possessed defined and delimited
maritime zones.
3.140. In their document setting out the bases for a possible agreement with
the United States of America, Chile, Ecuador and Peru proposed that there would
be three types of maritime areas off their coasts and that different regimes would
be applicable in each of them. For the first type of maritime area, “consisting of a
twelve-mile strip, measured from the line of the lowest tide on the coasts of each
of the C.E.P. countries”, the three States proposed that “fishery operations may
be carried out by means of special permits issued by each coastal State” 721. For
the other two types of maritime areas, conditions for conservation of the living
resources were to be formulated by a technical Joint Commission on which all
four States would be represented. Compliance with those conservation conditions
was to be “entrusted to the State in whose zone the fishery is carried out, in
722
accordance with its domestic legislation” (emphasis added).
3.141. This position was also reflected in the draft agreement proposed by
Chile, Ecuador and Peru, which contained the following provision concerning
the enforcement of new conservation measures:
“In the areas specified in Annex __ of this Agreement
conservation measures which have been proposed by the
Joint Commission and which have entered into force and
those of any other origin, shall be put into execution and
their enforcement assured by the respective coastal State.
721 Bases for an Agreement between the C.E.P. Countries and the United States for
Conservation and Fishery in the Waters of the Southeast Pacific, 23 September
1955, translated and labelled as C.E.P Doc. No. 3 by the United States Department
of State in its publication Santiago Negotiations on Fishery Conservation Problems,
14 September – 5 October 1955, Annex 41, p. 34, para. 4.
722 Ibid., p. 35, para. 7.
249 Likewise fishing in those areas shall be subject to
procurement in advance of the special permits which such
country may determine. Policing and control by the coastal
state shall be effected through such agencies and means as
the said State considers necessary.” 723
A Memoria subsequently issued in the name of Peru’s Foreign Minister confirms
that, under this draft agreement, “[t]he enforcement of these [conservation]
measures would be granted to the State in whose zone fishery was being
724
effected” .
3.142. Each coastal State would be responsible for enforcement in its own
maritime zone. That this was the common position of Chile, Ecuador and Peru
becomes even clearer when their approach is compared with that which was
proposed by the United States of America. The United States proposed a system
of international co-operation in policing the area where the agreement would be
applied. More specifically, to ensure compliance, a duly authorized official of
any State party would be able to board any fishing vessel under the flag of any
725
State party in the agreement area . The United States proposal was not accepted
by the three States.
723 Draft submitted by Chile, Ecuador and Peru on the Agreement between the C.E.P.
Countries (Chile, Ecuador, and Peru) and the United States of America, on
Conservation and Fishing in the Waters of the Southeast Pacific, 3 October 1955,
translated and labelled as CEP Doc. No. 5 by the United States Department of State
in its publication Santiago Negotiations on Fishery Conservation Problems,
14 September – 5 October 1955, Annex 41, p. 47, Art. XI.
724
Memoria of the Minister of Foreign Affairs of Peru (28 July 1955 – 28 July 1956),
Annex 99 to the Memorial, ninth paragraph. The original Spanish text reads: “El
cumplimiento de las medidas estaría encomendado al Estado en cuya zona se
verificase la pesca” (emphasis added). (The italicized part is translated byPeru as “to
the States in whose shores”, rather than “zone”.)
725
See Review and Amplification of Certain United States Proposals, USA Doc. No. 9
of 3 October 1955, reproduced by the United States Department of State in its
2503.143. Plainly, Peru’s new argument that the Santiago Declaration set forth
one single maritime zone is not borne out by the common position of Chile,
Ecuador and Peru in the 1955 negotiations with the United States of America.
T h e s e n e g o t i a t i o n s a r e o n e e x a m p l e o f n e g o t i a t i o n s w i t h t h i r d S t a t e s w h i c h
confirm the existence of a maritime boundary between the Parties.
Section 7. Cartographic Depiction of Peru’s “Maritime Dominion”
3.144. Peru states in its Memorial that no official cartography of Peru has
ever depicted a maritime boundary with Chile 726. To illustrate this point, Peru
refers to maps produced by various Government agencies and public institutions,
such as the Geographic Service of the Army, the Military Geographic Institute
and the Ministry of Defence 727. However, there are numerous depictions of the
southern boundary of Peru’s maritime zone published by private entities which
have been officially authorized by Peru’s Ministry of Foreign Affairs, often with
728
explicit reference to Supreme Decree No. 570 of 1957 , as accurate
representations of Peru’s frontiers. Together with other depictions which do not
on their face carry official authorization 729, these maps illustrate that the
maritime boundary following the parallel of Hito No. 1 was a matter of common
knowledge in Peru. As discussed below at paragraph 4.43, the maps authorized
by the Ministry of Foreign Affairs constitute official recognition by Peru of the
Santiago Negotiations on Fishery Conservation Problems, 14 September –
5 October 1955, Annex 41, p. 52.
726 See Memorial, para. 5.10.
727
Ibid., paras 5.14-5.16. It is noted that, as far as Chile is aware, there is no official
Peruvian document depicting the maritime boundary between Ecuador and Peru
either.
728 Supreme Decree No. 570 of 5 July 1957, Annex 11 to the Memorial ; also see
paras 3.146-3.151 of this Counter-Memorial.
729 A sample of such depictions is reproduced in Figures 43-63.
251maritime boundary depicted in those maps, and are evidence of considerable
probative value in these proceedings.
3.145. Supreme Decree No. 570 provides that–
“no geographic or cartographic publication referring to or
representing the frontier zones of the Nation shall be
entered, printed or circulate in the Republic without
previous authorization by the Ministry of Foreign Affairs.
In consequence, all official and private institutions
wishing to issue this sort of publication will be compelled 730
to procure this authorization before proceeding.”
(Emphasis added.)
Under the terms of this Supreme Decree, prior authorization is required for all
publications, whether issued by the State (“official institutions”) or by private
entities. Article 2 of Supreme Decree No. 570 of 1957 provides that such prior
authorization is to be issued in the form of a Ministerial Resolution “following
the corresponding technical inquiry” 731.
3.146. The Ministry of Foreign Affairs of Peru has authorized numerous
books on the geography of Peru pursuant to the 1957 Supreme Decree. For
example, in 1984 the Foreign Ministry formally authorized the publication of the
third edition of a book used in secondary schools in Peru called Geography of
Peru and the World 732. The relevant Resolution states that “Peru’s international
730 Supreme Decree No. 570 of 5 July 1957, Annex 11 to the Memorial , Art. 1.
731
Ibid., Art. 2.
732 See J. A. Benavides Estrada, Geografía del Perú y del Mundo, 1984, approved by
Resolution No. 0185 of 17 April 1984 of the Ministry of Foreign Affairs of Peru,
Annex 173.
252boundaries have been drawn in an acceptable way” 733. This book includes a
“political map of Peru” with the country’s maritime zone bounded by parallels of
latitude both in the north and the south. In the same map, the parallel of latitude
constituting the southernmost limit of Peru’s maritime zone is called the
“Parallel of Hito No. 1 La Concordia”, indicating that this parallel passes through
Hito No. 1. In a separate section, the book again confirms that the Peruvian Sea
734
(Mar Peruano) is bounded by two parallels, to the north and to the south .
3.147. A facsimile of the authorization by the Ministry of Foreign Affairs is
included in the book, and both it and the depictions of the maritime boundaries
735
that it authorized are reproduced as Figure 37 .
3.148. An equivalent authorization was granted by the Ministry of Foreign
Affairs in 1982 to the publishers of the book Escuela Nueva 736, which included
maps depicting the southern maritime boundary as the parallel of latitude at the
point at which the land boundary of Chile and Peru reaches the sea (Figure 38).
The map is specifically described as depicting “the boundary of the Peruvian
Sea”.
733 Resolution No. 0185 of 17 April 1984 of the Ministry of Foreign Affairs of Peru,
reproduced in J. A. Benavides Estrada, Geografía del Perú y del Mundo, 1984,
Annex 173.
734
See, J. A. Benavides Estrada, Geografía del Perú y del Mundo, 1984, Annex 173,
p. 127.
735 Ibid., p. 49.
736
J. A. Benavides Estrada, A. Marín del Águila, O. Díaz Alva and A. Soto Sánchez,
Escuela Nueva, Enciclopedia Escolar, 1982, approved by Resolution No. 0405 of
26 August 1982 of the Ministry of Foreign Affairs of Peru.
2533.149. The Foreign Ministry has also authorized another book on geography
published in 1983, which again showed the Peruvian sea (Mar Peruano)
bounded by two parallels; the relevant sketch-map is reproduced as Figure 39 73.
3.150. Peru continued to grant official authorization for publications
depicting its “maritime dominion” delimited in the north and south by parallels
of latitude after the 1986 Bákula Memorandum. For example, a 1992 publication
for secondary-school students was authorized by the Foreign Ministry, under
Supreme Decree No. 570 of 1957, which explicitly depicts the “Maritime
Dominion or the Sea of Peru” as being delimited in the south by the “parallel of
Hito No. 1”, as shown inFigure 40 738.
3.151. A more recent example is the Atlas of Peru and the World, published
in 1999. It includes a map titled “Map of Peru in accordance with the frontier
treaties [Mapa del Perú, luego de los tratados fronterizos]”, which clearly marks
t h e p a r a l l e l s o f l a t i t u d e o f t h e p o i n t s w h e r e t h e n o r t h e r n a n d s o u t h e r n l a n d
boundaries reach the sea as the lateral limits of Peru’s maritime zone. On the
page adjoining this map the book contains the following passage:
“Maritime frontier
Established with sovereignty and exclusive jurisdiction
over the seabed and subsoil of the continental shelf up to
200 nautical miles, according to Supreme Decree No. 781,
737 J. A. Benavides Estrada, Geografía: Atlas del Perú y del Mundo, 1983, approved by
Ministerial Resolution No. 0016-82-ED of the Ministry of Education and by
Ministerial Resolution No. 404-82-RE of the Ministryof Foreign Affairs of Peru.
738 J. A. Benavides Estrada, Geografía, 1992, approved by Resolution No. 0611 of
20 December 1991 of the Ministry of Foreign Affairs of Peru and Decree No. 032 of
10 March 1992 of the Peruvian National Institute of Research and Development of
Education.
254 signed by President José Luis Bustamante y Rivero,
reaffirmed in the Declaration of Santiago, in 1952.” 739
This explicit linkage between the Peruvian Supreme Decree of 1947, the
Santiago Declaration and the lateral maritime boundary with Chile was, as is
recorded in the book itself, authorized by Peru’s Foreign Ministry. The sketch-
map and reference to the authorization are reproduced as Figure 41 740.
Section 8. The Maritime Boundary between Ecuador and Peru under
the Santiago Declaration
3.152. As one of the States parties to the Santiago Declaration, Ecuador has
also consistently maintained the position that a parallel of latitude constitutes its
maritime boundary with Peru, and not just with respect to islands (as Peru now
claims) but also as between the mainland territories. Ecuador maintains that
741
position to the present day. As already noted , so does in fact Peru: it says that
no maritime-boundary issues are extant.
3.153. Ecuador’s position is well illustrated in its Supreme Decree No. 959-A
of 1971, which prescribed straight baselines for the measurement of Ecuador’s
territorial sea. Article 1 of that Supreme Decree reads in material part as follows:
“The straight baselines from which the breadth of the
territorial sea of the Republic shall be measured shall be
constituted by the following traverses:
I. On the continent
739 L. Quintanilla, Atlas del Perú y del mundo, 1999, approved by Letter (DFL-CAR)
No. 0-3-D/29 of the Ministry of Foreign Affairs of Peru, Annex 184, p. 8.
740
Ibid., p. 9.
741 See paras 1.48 and 2.89-2.91 above.
255 . . .
(d) A straight line from Puntilla de Santa Elena in the
direction of Cabo Blanco (Peru) to the intersection with the
geographic parallel constituting the maritime frontier with
742
Peru.”
(Emphasis added.)
3.154. So far as Chile is aware, Peru has not protested the description of the
maritime boundary between Ecuador and Peru in Article 1, paragraph I(d) of
Supreme Decree No. 959-A of 1971. This maritime boundary was depicted in the
Limits in the Seas series published by the United States Department of State (first
in No. 42, 1972; reproduced as Figure 42) 74.
3.155. Peru in fact recognizes the parallel of latitude passing through the
point in Boca de Capones as the maritime boundary with Ecuador. Again, there
has been no suggestion by Peru that the general maritime zones of the two States
are yet to be delimited (which is inconsistent with Peru’s present reading of
Article IV of the Santiago Declaration, as discussed at paragraphs 2.89 and 2.208
above). In a diplomatic note to Ecuador in 1969, in response to Ecuador’s
request that Peru should seek rectification of a privately published map, Peru
agreed to do so and also attached a map stated to be correctly showing, as the
744
maritime boundary, the parallel of latitude passing through Boca de Capones .
742 Supreme Decree No. 959-A of 28 June 1971, Annex 212. Ecuador had already
claimed a territorial sea of 200M in 1966, when Ecuador modified Article 633 of its
Civil Code through Decree No. 1542 of 10 November 1966, Annex 211.
743
Also see the analysis by the United States Department of State of the Santiago
Declaration and the Lima Agreement, which form the legal basis of the Ecuador-
Peru maritime boundary, at para. 2.228 above.
744 See Note of 26 September 1969 from the Peruvian Embassy in Ecuador to the
Ministryof Foreign Affairs of Ecuador, Annex 79 (without the enclosure).
2563.156. Ecuador treats the parallel of latitude 3° 23' 33.96" S as constituting
the maritime boundary with Peru. This may be seen, for example, in a statement
745
by the Ministry of Foreign Affairs of Ecuador in 2005 . In the same statement,
Ecuador confirmed that this maritime boundary is based on the Santiago
746
Declaration and the Lima Agreement .
3.157. Furthermore, Ecuador shares in unqualified and unambiguous terms
C h i l e ’ s p o s i t i o n t h a t t h e S a n t i a g o D e c l a r a t i o n , c o n f i r m e d
Agreement, established the delimitation rule that a parallel of latitude constitutes
the maritime boundary between all three States parties, not just between Peru and
Ecuador, and not only in respect of islands. In a joint declaration of 1 December
747
2005 , the Presidents of Ecuador and Chile–
“reaffirmed the full validity of, and their firm adherence to,
the Treaties and other Instruments of the South-East
Pacific, in particular, the Declaration on the Maritime Zone
of 1952 and the Agreement Relating to a Special Maritime
Frontier Zone of 1954, which establish the maritime
delimitation between the Parties through a geographic
parallel.”48
3.158. The Congress of Ecuador expressed the same view in November 2005,
in stating that the Santiago Declaration and the Lima Agreement are
745 Press Release No. 660 of 2 December 2005 issued by the Ministry of Foreign Affairs
of Ecuador, Annex 224, para. 5.
746 Ibid., para. 3.
747 Joint Declaration by the Presidents of Ecuador and Chile on the Occasion of the
Official Visit to Ecuador of the President of Chile, 1 December 2005,Annex 30.
748
Ibid., para. 6. The original Spanish text reads: “reafirmaron la plena vigencia y su
firme adhesión a los Tratados y otros Instrumentos del Pacífico Sudeste, en
particular, a la Declaración sobre Zona Marítima de 1952 y al Convenio sobre Zona
Especial Fronteriza Marítima de 1954 que establecen la delimitación marítima entre
las Partes a través del paralelo geográfico.”
257“International Treaties that established as maritime frontier boundaries [límites
marítimos fronterizos] b e t w e e n E c u a d o r , P e r u a n d C h i l e , t h o s e w h i c h a r e
determined by the parallel at the point at which the land frontier of the signatory
749
States reaches the sea” .
3.159. Four years later, in September 2009, the Foreign Ministers of Chile
and Ecuador reiterated their common position that their respective maritime
boundaries with Peru have been established by the 1952 Santiago Declaration
and the 1954 Lima Agreement 750.
Section 9. Conclusion
3.160. This Chapter has described numerous examples of the bilateral and
unilateral practice of the Parties which demonstrate that both States have acted
on the basis that there was in place an agreed, definitive, all-purpose maritime
delimitation constituted by the parallel of latitude passing through the point at
which the land frontier reaches the sea. In agreements in 1968 and 1969 the
Parties explicitly acknowledged their maritime boundary and took measures in
physical implementation of it. They agreed to signal that boundary using
alignment lighthouses, i.e., permanent and prominent structures, and agreed that
Hito No. 1 was the reference point that they should use to do so.
3.161. In 1955, prior to this signalling exercise, Peru clearly acknowledged
its maritime boundary with Chile on two occasions. First, in connection with the
Protocol of Accession to the Santiago Declaration, Peru acknowledged that
Article IV of the Santiago Declaration gave effect to the general delimitation rule
749 Resolution of the National Congress of Ecuador of 15 November 200Annex 223,
first operative paragraph.
750 See Minutes of the Second Meeting of the Chile-Ecuador Bilateral Inter-Ministerial
Council of 6-7 September 2009, Annex 32, para. 3.
258agreed between the Parties: that their maritime zones were delimited by parallels
of latitude. Second, in its Supreme Resolution of 1955 Peru relied on Article IV
of the Santiago Declaration to specify the lateral limits of Peru’s maritime zone
for the purpose of cartographic and geodesic works. Peru then monitored the
proper depiction of its international boundaries over time, requiring publications
depicting these boundaries to be authorized by the Ministry of Foreign Affairs.
Over the years, such authorization has in fact been conferred on many maps
depicting the maritime boundary with Chile as the parallel of latitude passing
through Hito No. 1. Throughout, Peru has enforced the maritime boundary
against Chilean vessels, and has also required observance of that boundary by
Peruvian vessels.
3.162. The next Chapter applies the rules of international law concerning the
interpretation of treaties to the factual and legal circumstances discussed in
Chapters II and III.
259 CHAPTER IV
THE PARTIES’ MARITIME BOUNDARY HAS BEEN SETTLED BY
TREATY
Section 1. Introduction
4.1. Agreements between States are paramount. That is the fundamental
r u l e a p p l i c a b l e t o b o u n d a r y d e l i m i t a t i o n , b o t h o n l a n d a n d a t s e a . T h e r u l e
applies to past agreements as well as to future ones. Thus, UNCLOS specifically
provides that it does not affect agreed maritime delimitations that pre-date
UNCLOS 751. Chile’s case is that Chile and Peru fully and conclusively delimited
their maritime entitlements in the Santiago Declaration of 1952. That treaty is to
be read together with the Lima Agreement of 1954, and in the context of the
concordant proclamations made by the Parties in 1947. Both States
acknowledged that boundary in their subsequent agreements and practice. This
historical continuum is crucial to a proper understanding of the Parties’ agreed
boundary. The Parties’ delimitation agreement should be given effect to by the
752
Court, pursuant to Article 38(1) of its Statute .
4.2. The purpose of this Chapter is to apply the rules of customary
international law on treaty interpretation to the factual and legal circumstances
751
UNCLOS, Arts 74(4) and 83(4); and see paras 4.74-4.78 below.
752 Article 38(1) reads as follows:
“The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as
law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.”
260set forth in the preceding Chapters. The Chapter concludes with a discussion of
the principle of the stability of boundaries. That principle applies to both
terrestrial53 and maritime 754 boundaries. The significance of that principle for
the present case is that in accordance with it, once a maritime boundary has been
agreed, one State cannot unilaterally resile from the agreed boundary. It is
Chile’s case that Peru seeks impermissibly to resile from the Parties’ agreement
on the maritime boundary.
4.3. The Court’s approach in the Libya/Chad Territorial Dispute case
indicates that where a boundary is said to have been fixed by treaty it is
appropriate to determine whether the States concerned have agreed on a
boundary between them, before proceeding to the subsequent question of where
that boundary lies 755. Thus, the primary question here is whether there is an
agreed maritime boundary between Chile and Peru. Once that question has been
answered in the affirmative, the second question is the course of that boundary.
Once this has been identified, the third question is what maritime zones that
boundary delimits. Thereafter, the only possibly remaining question is whether
there is any ground for one party to the boundary agreement to avoid or reopen
it. The third and fourth questions are not raised in Peru’s pleadings in this case.
4.4. In Chapters II and III, the approach has been essentially chronological.
This Chapter, by contrast, follows the steps of the interpretive process set forth in
Articles 31 and 32 of the Vienna Convention. In outline, this Chapter considers
the following matters:
753 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, p. 37, para. 72.
754
See Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports
1978, pp. 35-36, para. 85.
755 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, e.g., paras 38, 57 and 66.
261(a) the ordinary meaning of the text of the Santiago Declaration and Lima
Agreement in their context;
(b) the object and purpose of the Santiago Declaration and the Lima
Agreement;
(c) subsequent agreements between the Parties relevant to the
interpretation of the Santiago Declaration;
(d) subsequent practice in the application of the Santiago Declaration and
Lima Agreement;
(e) the preparatory works of the Santiago Declaration and Lima
Agreement; and
(f) the circumstances of the Santiago Declaration’s conclusion.
Section 2. The Santiago Declaration and the Lima Agreement are
Complementary Texts
4.5. Article 4 of the Lima Agreement provides that:
“All the provisions of this Agreement shall be deemed to
be an integral and supplementary part of, and not in any
way to abrogate, the resolutions and decisions adopted at
the Conference on the Exploitation and Conservation of
the Maritime Resources of the South756cific, held in
Santiago de Chile in August 1952.”
756 Lima Agreement, Annex 50 to the Memorial , Art. 4
2624.6. The Santiago Declaration was the primary instrument adopted at the
1952 Conference. Thus the Lima Agreement is deemed, by the same three States
parties, to be “an integral and supplementary part of” the Santiago
Declaration 757. The two agreements were concluded as separate legal
instruments, but they form one consolidated arrangement. The Lima Agreement
is not merely a subsequent agreement relevant to the interpretation of the
Santiago Declaration. As the Parties agreed, the Lima Agreement is so closely
related to the Santiago Declaration as to be “deemed to be an integral and
supplementary part” of it.
4.7. The Lima Agreement does not address any issue related to islands or
insular maritime zones. It refers in unqualified terms to “the maritime frontier
between adjacent States” 758 and the “maritime boundary” 759 between those
States. These references are deemed to be an integral part of the Santiago
Declaration. This confirms that when the three States parties concluded the Lima
Agreement in 1954, Chile and Peru had already delimited their maritime
boundary in the Santiago Declaration (as had Peru and Ecuador).
Section 3. The Applicable Rules of Treaty Interpretation
4.8. The rules governing treaty interpretation are contained in Articles 31
and 32 of the Vienna Convention. Those rules are as follows:
757 Lima Agreement, Annex 50 to the Memorial , Art. 4.
758
Ibid., first recital.
759 Ibid., Art. 1.
263 “Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its
object and purpose.
2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its
preamble and annexes:
(a) any agreement relating to the treaty which was made
between all the parties in connection with the conclusion
of the treaty;
(b) any instrument which was made by one or more parties
in connection with the conclusion of the treaty and
accepted by the other parties as an instrument related to the
treaty.
3. There shall be taken into account, together with the
context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application
of its provisions;
(b) any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its
interpretation;
(c) any relevant rules of international law applicable in the
relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.
264 Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of
article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable.”
4.9. Both Parties signed the Vienna Convention on 23 May 1969. It entered
into force for Chile on 9 April 1981 and for Peru on 14 September 2000.
A r t ic l e 4 o f t h e V i e n n a C o n v e n t io n p r o v id e s t h a t it “ a p p l i e s o n l y t o t r e a t ie s
w h i c h a r e c o n c l u d e d b y S t a t e s a f t e r t h e e n t r y i n t o f o r c e o f
Convention with regard to such States”. On a purely conventional basis the
Vienna Convention would not apply to any of the agreements relevant to this
case. However, the Convention does apply to the Santiago Declaration and Lima
760
Agreement in so far as it reflects customary international law . It is well
established that Articles 31 761 and 32 762 of the Vienna Convention reflect
760
See Case concerning the Gabþikovo-Nagymaros Project (Hungary/Slovakia),
Judgment, I.C.J. Reports 1997, p. 62, para. 99.
761 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, pp. 21-22, para. 41; Case concerning Maritime Delimitation and Territorial
Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995, p. 18, para. 33; Oil Platforms (Islamic
Republic of Iran v. United States of America), Preliminary Objection, Judgment,
I.C.J. Reports 1996, p. 812, para. 23; Kasikili/Sedudu Island (Botswana/Namibia),
Judgment, I.C.J. Reports 1999, p. 1059, para. 18;Case concerning Legality of Use of
Force (Serbia and Montenegro v. United Kingdom), Preliminary Objections,
Judgment, I.C.J. Reports 2004, p. 1345, para. 98;Case concerning Legality of Use of
265customary international law. It is also settled that the rules codified in those
articles are properly to be applied to the interpretation of treaties considerably
763
pre-dating the Vienna Convention itself . Accordingly, Articles 31 and 32 of
the Vienna Convention provide the framework for interpreting the international
agreements that are central to the disposition of this case.
Section 4. The Agreed Maritime Boundary between Chile and Peru
A. T HE ORDINARY M EANING OF THE T ERMS OF THE SANTIAGO D ECLARATION
AND L IMA AGREEMENT IN THEIR CONTEXT
4.10. To answer the question of whether there exists an agreed maritime
boundary between the Parties, the starting point is the ordinary meaning of the
text of the Santiago Declaration, which is to be read together with the Lima
Agreement. The words used must be interpreted in their context. The relevant
context in which the ordinary meaning of any individual article, or any specific
Force (Serbia and Montenegro v. The Netherlands), Preliminary Objections,
Judgment, I.C.J. Reports 2004, p. 1049, para. 99; Legality of Use of Force (Serbia
and Montenegro v. Portugal) Preliminary Objections, Judgment, I.C.J. Reports
2004, p. 1199, para. 102; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 174,
para. 94.
762
See Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment, I.C.J.
Reports 1991, pp. 69-70, para. 48; Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007, p. 60, para. 160; Case concerning the
Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua),
I.C.J. Judgment,13 July 2009, p. 24, para. 47.
763
See Case concerning Kasikili/Sedudu Island (Botswana/Namibia), Judgment, I.C.J.
Reports 1999, p. 1059, para. 18; Case concerning the Dispute Regarding
Navigational and Related Rights (Costa Rica v. Nicaragua), I.C.J. Judgment, 13 July
2009, p. 24, para. 47.
266w o r d s w i t h i n a n a r t i c l e , m u s t b e d e t e r m i n e d i s t h e e n t i r e t y o f t h e S a n t i a g o
Declaration and the Lima Agreement.
1. The ordinary meaning of the Santiago Declaration in its context
4.11. Peru claims in its Memorial that the Santiago Declaration “did not
address lateral boundaries at all” 764, that it showed “no interest in or concern for
765
the delimitation of lateral maritime boundaries between the three States” and
766
that it did “not have the format of a boundary treaty” . These assertions are
inconsistent with Peru’s own case. On Peru’s interpretation, Article IV of the
Santiago Declaration was concerned exclusively with lateral maritime boundary
delimitation between insular maritime zones and general maritime zones in
circumstances where an island was less than 200 nautical miles from the general
maritime zone of an adjacent State. Peru explicitly says so in its Memorial . 767
4.12. T h e q u e s t i o n i n t h i s c a s e i s n o t w h e t h e r t h e S a n t i a g o D e c l a r a t i o n
concerned the delimitation of lateral maritime boundaries. Peru concedes that the
Santiago Declaration effected such a delimitation to some extent. As discussed at
paragraphs 2.90 and 2.208 above, and illustrated in Figure 7, the consequence of
Peru’s interpretation of Article IV of the Santiago Declaration would be a
delimitation — albeit partial — between Peru and Ecuador. The question for the
Court is whether, in addition to the partial lateral delimitation conceded by Peru,
Article IV of the Santiago Declaration delimited the lateral maritime boundary
between the “general” maritime zones of Chile and Peru.
764
Memorial, para. 4.74.
765 Ibid., para. 4.88.
766
Ibid., para. 4.81: and cf. para. 2.69 of this Counter-Memorial.
767 See, e.g., Memorial, paras 4.77 and 4.80.
2674.13. Article IV of the Santiago Declaration provides in full that:
“In the case of island territories, the zone of 200 nautical
miles shall apply to the entire coast of the island or group
of islands. If an island or group of islands belonging to one
of the countries making the declaration is situated less than
200 nautical miles from the general maritime zone
belonging to another of those countries, the maritime zone
of the island or group of islands shall be limited by the
parallel at the point at which768e land frontier of the States
concerned reaches the sea.”
4.14. In this Article the maritime zones of islands, otherwise extending to
the full 200 nautical miles in every direction 769, are agreed to “be limited by the
parallel at the point at which the land frontier of the States concerned reaches the
sea.” The islands concerned are those “situated less than 200 nautical miles from
the general maritime zone belonging to another of those countries” 77. Affected
insular zones end at that parallel of latitude because the limit of each State’s
general maritime zone was also agreed to be “the parallel at the point at which
771
the land frontier of the States concerned reaches the sea” . That parallel was the
line at which “the general maritime zone belonging to another of those countries”
began. Peru was the only party to the Santiago Declaration with which the other
768 Santiago Declaration, Annex 47 to the Memorial, Art. IV. The original Spanish text
reads as follows:
“En el caso de territorio insular, la zona de 200 millas marinas se aplicará
en todo el contorno de la isla o grupo de islas. Si una isla o grupo de islas
pertenecientes a uno de los países declarantes estuviere a menos de 200
millas marinas de la zona marítima general que corresponde a otro de
ellos, la zona marítima de esta isla o grupo de islas quedará limitada por
el paralelo del punto en que llega al mar la frontera terrestre de los
estados respectivos.”
769
Ibid., Art. IV, first sentence.
770 Ibid., Art. IV.
771
Ibid.
268two States parties, Chile and Ecuador, shared a maritime boundary. And as
discussed in detail above at paragraphs 2.32-2.34, Peru had fixed the limits of its
maritime zone in 1947 using the same parallels of latitude on which the three
States agreed in the Santiago Declaration.
4.15. A s P e r u ’ s i n t e r p r e t a t i o n o f A r t i c l e I V o f t h e S a n t i a g o D e c l a r a t i o n
would result in a partial delimitation, and only between two of the three States
parties to it, the onus must be on Peru to establish the proposition that the three
States parties to the Santiago Declaration went to the trouble of laterally
delimiting the boundary between insular maritime zones and the part of an
adjacent general maritime zone with which overlap could have arisen, but agreed
absolutely nothing about the lateral delimitation of the general, and most
important, maritime zones that they were claiming 772. This is an unreasonable
proposition.
4.16. Peru seeks to avoid this onus by saying that because, as a factual
matter, the only islands within 200 nautical miles of the general maritime zone of
an adjacent State party are Ecuadorean islands in the Gulf of Guayaquil,
Article IV of the Santiago Declaration does not apply at all between Chile and
Peru. Yet Article IV says nothing about applying to only two of the three States
parties. If a provision of a treaty between three States parties was to apply
between only two of them, one would expect the treaty to say. s 773 Io a factual
772
See Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and
Iraq), Advisory Opinion 1925, P.C.I.J., Series B, No. 12, p . 2 0 ; nerritorial
Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 23-24,
paras 47-48, discussed at paras 4.79-4.80 below.
773 When Chile, Ecuador and Peru were preparing a protocol for other States to accede
to the Santiago Declaration, they expressly excluded Article IV from that protocol
because the boundary for which Article IV provided would not necessarilyhave been
appropriate for other States; see paras 3.121-3.126 above. As a matter of treaty
technique, when Article IV was to be inapplicable, the States parties to the Santiago
269sense the only islands affected by Article IV of the Santiago Declaration are
Ecuadorean. But that is a purely factual matter. It is irrelevant to the proper legal
interpretation of Article IV of the Santiago Declaration, which in Chile’s
submission delimits the general maritime zones of adjacent States parties as well
as the maritime zones of any islands coming within 200 nautical miles of the
maritime boundary.
2. The ordinary meaning of the Lima Agreement in its context
4.17. The States parties to the Lima Agreement are Chile, Peru and Ecuador
— the same three States as in the Santiago Declaration. The full title of the Lima
Agreement is the “Agreement Relating to a Special Maritime Frontier Zone”.
The recitals refer to “violations of themaritime frontier between adjacent States”
774
(emphasis added) . In Article 1 the Agreement refers to “the parallel which
constitutes amaritime boundary between the two countries” (emphasis added) 775.
A clarificatory agreement concluded on the same day as the Lima Agreement
refers to enforcement decisions being taken by “the authorities of the country
whose maritime jurisdictional boundary would have been transgressed”
(emphasis added) 776. In all of these extracts the emphasis on the reference to the
maritime boundary is added. All of these extracts confirm that the Santiago
Declaration delimited the maritime boundary between Chile and Peru, because,
as in the Territorial Dispute case between Libya and Chad, in a subsequent
agreement to the one delimiting the boundary, “the existence of a determined
Declaration expressly made it so. If Article IV had not been applicable to Chile, the
States parties would not have included it in the Santiago Declaration.
774 Lima Agreement, Annex 50 to the Memorial , first recital.
775
Ibid., Art. 1.
776 See Annex 40 and para. 2.210 above.
270 777
frontier was accepted and acted upon” and the subsequent agreement
“mention[s] ‘the frontier’. . .with no suggestion of there being any uncertainty
about it” .78
4.18. In full, Article 1 of the Lima Agreement reads as follows: “A special
zone is hereby established, at a distance of twelve nautical miles from the coast,
extending to a breadth of 10 nautical miles on either side of the parallel which
779
constitutes a maritime boundary between the two countries.” As explained at
paragraphs 2.202-2.205 above, the ordinary meaning of “the two countries” in
Article 1 of the Lima Agreement is the two States on either side of the parallel of
latitude constituting a maritime boundary between these two States.
4.19. The “parallel which constitutes a maritime boundary” in Article 1 of
the Lima Agreement serves as the reference line on either side of which a 10M
zone of tolerance was established. If the “parallel which constitutes a maritime
boundary” in the Lima Agreement did not apply at all as between Chile and
780
Peru, as Peru now suggests , then it would follow that there was no zone of
tolerance between Chile and Peru. This would mean that in so far as Chile was
concerned the entire Lima Agreement would have no effet utile; in fact, it would
have no effet at all. An interpretation that deprives a treaty provision, let alone an
781
entire treaty, of its effectiveness, is obviously to be avoided .
777 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
p. 35, para. 66.
778
Ibid., p. 35, para. 66.
779 Lima Agreement, Annex 50 to the Memorial , Art. 1.
780
See Memorial, paras 4.103-4.104.
781 See Lighthouses Case between France and Greece, Judgment, 1934, P.C.I.J., Series
A/B, No. 62, p. 27; Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 35, para. 66;
2714.20. As discussed in Section 10 of Chapter II, third States, the United
Nations and publicists from many legal traditions have consistently understood
the ordinary meaning of the Santiago Declaration and Lima Agreement as being
that there is an agreed maritime boundary between Chile and Peru.
B. T HE O BJECT AND PURPOSE OF THE SANTIAGO D ECLARATION AND THE L IMA
A GREEMENT
4.21. The object and purpose of a treaty can be expressed at varying levels
of specificity . At the most general level, the States parties to the Santiago
Declaration were “determined to conserve and safeguard for their respective
783
peoples the natural resources of the maritime zones adjacent to their coasts” .
More specifically, the object and purpose of the Santiago Declaration was to set
forth extended maritime zones subject to the “exclusive sovereignty and
784
jurisdiction” of each State party. More specifically still, a necessary part of
785
that object and purpose was the identification of the physical perimeter of the
maritime space appertaining to each State, within which such sovereignty and
jurisdiction would be exercised.
4.22. The seaward limit of each State’s maritime zone was doubtless of
primary importance. This seaward limit was expressed in Article II as being “a
Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978,
p. 22, para. 52; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J.
Reports 1994, p. 25, para. 51.
782 See Fisheries Jurisdiction Case (United Kingdom v. Iceland), Jurisdiction of the
Court, Judgment, I.C.J. Reports 1973, p. 17, para. 32.
783
Santiago Declaration, Annex 47 to the Memorial, fourth recital.
784 Ibid., Art. II.
785
Also see 1947 Chilean Declaration, Annex 27 to the Memorial, Art. 3; and 1947
Peruvian Supreme Decree, Annex 6 to the Memorial , final recital and Art. 3.
272minimum distance of 200 nautical miles”. The lateral delimitation of those zones
between the States parties was also within the object and purpose of the Santiago
Declaration. It was part of the broader goal of identifying the spatial limits of
each State’s claim to “exclusive sovereignty and jurisdiction”. Peru itself
acknowledges that lateral delimitation was within the scope of the Santiago
Declaration, although it claims it was only in respect of delimitation between the
general maritime zone of Peru and the maritime zones of Ecuadorean islands
within 200 nautical miles of the parallel passing through the point at which the
Ecuador-Peru land boundary reaches the sea.
4.23. As for the Lima Agreement, its only purpose was to create zones of
tolerance on either side of the maritime boundaries between the States parties, in
response to accidental boundary violations by small fishing vessels. That the
Lima Agreement was concluded to deal with boundary violations, and used the
maritime boundaries as reference lines for the creation of zones of tolerance,
confirms the existence of those maritime boundaries.
4.24. The purpose of the Lima Agreement totally undermines Peru’s
contention that the Santiago Declaration established one unified maritime zone
shared between the three States parties. As discussed at paragraphs 2.93-2.99
above, this contention fails on the language of the Santiago Declaration alone.
The very existence of the Lima Agreement also demonstrates that by the time of
its conclusion each of the States parties had its own maritime zone. This is clear
even from the language of Peru’s Memorial, where Peru refers to
“encroachments on another State’s maritime zone” 786 occurring prior to the Lima
Agreement, which encroachments the Lima Agreement was designed to address.
There could not have been encroachments on a maritime zone that remained to
be delimited. A good-faith interpretation of the ordinary meaning of the terms of
786 Memorial, para. 4.98.
273the Santiago Declaration, read together with the Lima Agreement, in their proper
context and in light of the object and purpose of these treaties, leads ineluctably
to the conclusion that there was by 1954 and there continues now to exist an
agreed maritime boundary between Chile and Peru.
C. S UBSEQUENT A GREEMENTS BETWEEN C HILE AND PERU IN 1968 AND 1969
4.25. As mandated by Article 31(3)(a) of the Vienna Convention, “any
subsequent agreement between the parties regarding the interpretation of [the
Santiago Declaration] or the application of its provisions” is to be taken into
account in interpreting the Santiago Declaration. Chile and Peru reached such
agreements as part of a lengthy process of co-operation in 1968 and 1969, which
culminated in the building of two lighthouses to signal their maritime boundary.
That process, together with the relevant agreements, is described in detail at
paragraphs 3.22-3.38 above.
4.26. When the delegates of the two States first met at the site of Hito No. 1
in April 1968, they prepared joint minutes in which they memorialized their
mandate. That was “physically to give effect to the parallel of the maritime
frontier originating at Boundary Marker number one (No. 1)” . The 1968
Minutes refer a second time to “the parallel of the maritime frontier”88as the
parallel on which both lighthouses would be built. The 1968 Minutes were
followed by an exchange of diplomatic notes between the Parties. Peru recorded
that it “approve[d] in their entirety” the 1968 Minutes, which Peru acknowledged
were signed in connection with the process of installing lighthouses physically to
787
1968 Minutes, Annex 59 to the Memorial, first paragraph. The original Spanish text
reads as follows: “materialicen el paralelo de la frontera marítima que se origina en
el Hito número uno (No. 1)”.
788 Ibid.
274give effect to “the parallel of the maritime frontier” 789. Chile’s response also
accepted the proposals made in the 1968 Minutes, and reproduced Peru’s
language in referring to the purpose of the exercise as being “physically to give
effect to the parallel of the maritime frontier” 790. At the end of the signalling
process, the head of the Peruvian delegation and the head of the Chilean
delegation agreed on a joint report, the 1969 Act, regarding the condition of the
hitos that they had inspected “on the occasion of the works which they had been
instructed to conduct in order to verify the location of Boundary Marker number
791
one and to signal the maritime boundary” .
4.27. Ecuador was not involved in the 1968-1969 signalling agreements,
which implemented the boundary between the Parties. The argument on which
Peru relies in connection with the Santiago Declaration and the Lima Agreement,
i.e. that any reference to a parallel of latitude relates only to Peru and Ecuador,
cannot apply to the 1968-1969 process. That process expressly and exclusively
concerned signalling the maritime boundary between Chile and Peru, which was
stated to be the parallel of Hito No. 1.
4.28. The 1968 Minutes, the exchange of formal diplomatic notes that
accompanied them, and the 1969 Act constitute binding agreements between the
Parties. They confirm that the Parties had already agreed their maritime
boundary and were by then engaged in the task of signalling the precise physical
location of that pre-existing boundary. Signalling the precise physical location of
789 Note No. (J) 6-4/43 of 5 August 1968 from the Secretary-General of the Ministry of
Foreign Affairs of Peru (signed for the Foreign Minister) to the Chilean chargé
d’affaires in Peru, Annex 74 to the Memorial .
790
Note No. 242 of 29 August 1968 from the Embassy of Chile to the Ministry of
Foreign Affairs of Peru, Annex 75 to the Memorial .
791 1969 Act, Annex 6, first paragraph.
275a boundary presupposes that it has already been delimited9. That delimitation
between Chile and Peru was agreed in the Santiago Declaration and acted upon
in the Lima Agreement.
D. S UBSEQUENT P RACTICE IN THEA PPLICATION OF THE SANTIAGO
D ECLARATION AND THE L IMA AGREEMENT
4.29. Article 31(3)(b) of the Vienna Convention requires that “any
subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation” shall be taken into account.
There are numerous examples of State practice that confirm that the correct
interpretation of the Santiago Declaration and Lima Agreement is that the Parties
have an agreed maritime boundary. Details are provided in Chapters II and III.
Here highlights are collated for the purpose of the interpretive exercise at hand.
These examples demonstrate that until very recently Peru adopted the same
p o s i t i o n a s C h i l e h a s c o n s i s t e n t l y a d o p t e d f r o m t h e t i m e o f t h e S a n t i a g o
Declaration until the present.
1. Peru’s legislation recognizes the maritime boundary with Chile
4.30. The object of Peru’s Supreme Resolution No. 23 of 195593, quoted in
full and discussed at paragraphs 3.50-3.56 above, was to specify as a matter of
internal law the seaward and lateral limits of Peru’s maritime zone “referred to”
in the Santiago Declaration. Peru resolved, for the purpose of depicting the zone
in cartographic and geodesic work, that “[i]n accordance with Clause IV of the
Declaration of Santiago” that zone “may not extend beyond [the line] of the
792
See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, p. 28, para. 56.
793 1955 Supreme Resolution, Annex 9 to the Memorial .
276corresponding parallel at the point where the frontier of Peru reaches the sea.” 794
The text speaks for itself.
4.31. Peru now says that since, on its current argument, Article IV of the
Santiago Declaration only applied to the insular zones of islands near the
seaward terminus of the Ecuador-Peru land boundary, it follows that the 1955
Supreme Resolution was similarly limited 79. Such an interpretation is certainly
not borne out by the plain terms of the Resolution, and Peru made no mention of
this narrow interpretation when it transmitted the Resolution to the United
Nations in 1972, or following its publication in the United Nations Legislative
Series in 1974 796. A good-faith reading of the Resolution is that Peru considered
Article IV of the Santiago Declaration to have delimited both of Peru’s lateral
maritime boundaries. Peru’s suggestion is that a Supreme Resolution designed to
set forth the limits of Peru’s “maritime dominion” for the purpose of
cartographic and geodesic work left the entire southern boundary totally
undelimited and the northern boundary only partially delimited, without
mentioning either of these two limitations. That is hardly credible.
4.32. Other examples of Peruvian legislation are collated in Chapter III,
S e c t i o n 3 ( B ) ( 2 ) . O n e s u c h e x a m p l e , m o r e r e c e n t t h a n t h e 1 9 5 5 S u p r e m e
Resolution, is Peru’s 1987 Regulation of Captaincies and Maritime, Fluvial and
797
Lacustrine Activities . That Regulation divides Peru’s “maritime dominion”
into internal “maritime districts”. The southernmost district is Maritime
794
1955 Supreme Resolution, Annex 9 to the Memorial , second operative paragraph.
795 See Memorial, para. 4.113.
796
United Nations Legislative Series,National Legislation and Treaties Relating to the
Law of the Sea, 1974, Annex 164, pp. 27-28.
797 Regulation of the Captaincies and Maritime, Fluvial and Lacustrine Activities,
approved by Supreme Decree No. 002-87-MA of 11 June 1987, Annex 174. See
further paras 3.72-3.76 above.
277District 31. It is limited in the south by “the frontier boundary between Peru and
798
Chile e [l límite fronterizo entre Perú y Chile]” . The same Regulation defines
the geographic jurisdiction of the Captaincies of Peru’s major ports. The
Captaincy of Peru’s southernmost major port, Ilo, has jurisdiction “up to the
799
frontier with Chile to the South hasta la frontera con Chile por el Sur]” . The
Regulation of the Law on the Control and Surveillance of Maritime, Fluvial and
Lacustrine Activities of 2001 also recognizes Peru’s maritime frontier with
Chile 80. T h e t e r m s u s e d i n P e r u ’ s l e g i s l a t i o n a r e s e l f - e x p l a n a t o r y
unqualified.
2. Peru’s complaints of violations of the boundary by Chilean vessels
4.33. In late 1962 Peru complained that a number of private Chilean fishing
vessels had been fishing on the Peruvian side of the agreed maritime boundary.
On 20 December 1962 the Embassy of Peru in Chile submitted a memorandum
to the Ministry of Foreign Affairs of Chile. Its text was as follows:
“[T]he Government of Peru, taking strongly into account
the sense and provisions of the ‘Agreement Relating to a
Special Maritime Frontier Zone’. . .wishes the Government
of Chile, particularly through the competent authorities of
the port of Arica, to adopt measures to put an end to these
illegitimate incursions, and that the owners of fishing
798
Regulation of the Captaincies and Maritime, Fluvial and Lacustrine Activities,
approved by Supreme Decree No. 002-87-MA of 11 June 1987, Annex 174, Chapter
II Section III, Clause A-020301.
799 Ibid., Chapter II Section IV, Clause A-020401.
800 Regulation of the Law on the Control and Surveillance of Maritime, Fluvial and
Lacustrine Activities, approved by Supreme Decree No. 028 DE/MGP of 25 May
2001, Annex 192, Part A, Chapter I, Section III (Jurisdiction of Captaincy Districts),
Section IV (Jurisdiction of the Captaincies); and see para. 3.75 above.
278 vessels be notified that they must refrain from continuing
to fish north of the Peru-Chile frontier.” 801
Peru expressly acknowledged the existence of a maritime “frontier”, complained
about incursions of it, and took “strongly into account” the Lima Agreement in
doing so. This leaves no doubt on two points: first, the Lima Agreement applied
between Chile and Peru; second, there was a “Peru-Chile frontier” acknowledged
in that Agreement.
3. Peru enforces its maritime boundary with Chile
(a) Peru obliges ships to inform Peru when they cross the maritime boundary
4.34. The Directorate of Hydrography and Navigation of the Peruvian Navy
issued the second edition of its Sailing Directions (Derrotero de la Costa) in
1988. The Directions oblige all ships to give advance notice to the Peruvian
authorities of their intention to enter Peru’s “maritime dominion”. For this
purpose a ship “crosses into Peruvian waters” from the south at “the southern
802
parallel 18° 21' S” . The Sailing Directions apply to all vessels, not just fishing
boats. All ships entering the Peruvian “maritime dominion” for any purpose must
submit a “Sailing Plan Report”. When a ship enters Peru’s “maritime dominion”
from the south, the required Report must provide the estimated time at which the
803
vessel will cross the “jurisdictional parallel” of Hito No. 1 .
801 Memorandum No. 5-4-M/64 of 20 December 1962 from the Peruvian Embassy in
Chile to the Ministryof Foreign Affairs of Chile, Annex 73.
802 Directorate of Hydrography and Navigation of the Navy of Peru, Derrotero de la
Costa del Perú, Vol. II, 2nd edn, 1988, Annex 175, p. 12, section 1.34.
803 See further para. 3.83 above.
279(b) Resolutions of the Harbour Master of Ilo
4.35. On 5 June 1989 the Harbour Master of the Peruvian port of Ilo issued
two Resolutions, each of which imposed a fine on a Chilean vessel for finding
herself north of the “frontier line of the Republic of Chile, in the jurisdictional
804
waters of Peru” . The Harbour Master further referred to the “dividing line of
805
the maritime frontier” . Each vessel was laden with 80 tons of anchovy and was
fined US$20,000. Having enforced the “maritime frontier” against Chilean
vessels, and extracted fines from those responsible for transgressing that frontier,
Peru cannot now claim that such a frontier does not exist.
(c) The Diez Canseco incident of 22 March 1966
4.36. On 22 March 1966 a Peruvian Navy patrol boat, the Diez Canseco,
fired warning shots at a Chilean fishing boat. Chile sought an explanation of the
incident from Peru. As set forth in more detail at paragraphs 3.16-3.18 above,
Peru provided an explanation in the form of a memorandum from the Embassy in
Santiago to the Ministry of Foreign Affairs of Chile. Peru explained that when
the Diez Canseco was “7 miles north of the frontier line” it caught sight of three
806
Chilean vessels that were also north of that line . The Diez Canseco pursued
one of the Chilean vessels, a fishing boat, and fired 16 warning shots when the
Diez Canseco was “3 miles north of the frontier line”. Peru further explained that
804 Resolution No. 006-89-M, Annex 176, first paragraph; and Resolution No. 007-89-
M, Annex 177, first paragraph.
805
Resolution No. 006-89-M, Annex 176, third recital; and Resolution No. 007-89-M,
Annex 177, third recital.
806 Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 75, para. 2.
280the Diez Canseco ceased pursuit “2 miles north of the frontier line”, because the
807
Chilean fishing boat had crossed to the south of that line .
4.37. This incident very plainly indicates that Peru considered that a
maritime boundary was in place. As explained at paragraphs 3.16-3.18, above,
and illustrated in Figure 21, the coordinates and measurements given in Peru’s
memorandum indicate that Peru considered the boundary to be the parallel of
latitude of 18° 21' S. Peru explicitly referred to its maritime boundary with Chile
numerous times in the memorandum, and Peru defended that boundary by firing
warning shots at a fishing vessel. That vigorous defence of the boundary line
cannot be reconciled with Peru’s present description of the Lima Agreement as
merely a “practical device” 808designed “to reduce friction between fishermen on
small boats” 809.
4. Peru uses the maritime boundary as the limit of the airspace above its
“maritime dominion”
4.38. On the day on which Peru responded to Chile’s request for an
explanation about the Diez Canseco incident, 8 June 1966, there was a meeting
in Santiago between the Peruvian Ambassador to Chile and the Director-General
o f t h e C h i l e a n M i n i s t r y o f F o r e i g n A f f a i r s . L a t e r t h a t d a y , P e r u ’ s E m b a s s y
prepared a note memorializing that in the meeting the Peruvian Ambassador had
formally communicated to the Chilean Ministry of Foreign Affairs Peru’s
objection to numerous incidents in which Chilean vessels and aircraft had
allegedly crossed illegally the maritime/airspace boundary between Chile and
Peru.
807 Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 75, para. 2.
808
Memorial, para. 4.100.
809 Ibid., para. 8.5.
2814.39. The note recorded that the Peruvian Ambassador had “denounced new
acts violating the Peruvian maritime frontier” 810, referring to boundary crossings
by 44 Chilean vessels and two Chilean aircraft. The number of vessels was
obviously significant. More significant for immediate purposes, however, is that
Peru complained about “illegal incursions” 811 by Chilean aircraft flying over
Peru’s maritime zone.
4.40. If the parallel of latitude passing through the point at which the Chile-
Peru land frontier reaches the sea were merely a jurisdictional limit for a
restricted purpose — “to avoid conflicts between fishing vessels” 812 — P e r u
would not have considered itself entitled to object to aerial transgressions of that
limit. Peru proceeded on the basis that in the airspace of its “maritime dominion”
it enjoyed the same plenitude of jurisdiction and sovereignty as over waters, that
it was entitled to object to aerial incursions of the southern boundary of its
maritime zone, and Peru did in fact so object. Just seven months before this
official communication, in Law No. 15720 of 11 November 1965, Peru had
explicitly claimed “sole sovereignty over the air space above its territory and
jurisdictional waters within a distance of 200 miles” 813. This is consistent with
the account of Peru’s “maritime dominion” given at paragraphs 2.166-2.176
814
above, according to which, in its Constitution and in legislation as recent as
810
Memorandum of 8 June 1966 by the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 76, first paragraph.
811 Ibid., first paragraph.
812
Memorial, para. 4.106.
813 Law No. 15720 of 11 November 1965: Law on Civil Aeronautics, Annex 12 to the
Memorial, Art. 2 (translation taken from United Nations Legislative Series,
National Legislation and Treaties Relating to the Law of the Sea, 1974, Annex 164.)
814
See Political Constitution of Peru of 1993, Annex 179, Art. 54.
2822000 815, Peru claims sovereignty in the airspace above the entire 200M breadth
of its “maritime dominion”.
4.41. Under its 2000 legislation Peru requires that all aircraft give notice of
816
“entry into, transit within and exit from” Peruvian airspace, including over the
“maritime dominion”. As explained at paragraphs 3.111-3.114, Peru uses its
maritime boundary with Chile as the southern limit of its airspace for the purpose
of such notification. Peru also uses the maritime boundary as the southern limit
817
of FIR Lima under the Chicago Convention . The point of primary significance
is that Peru claims sovereignty in the airspace above its “maritime dominion”,
and considers that airspace to be laterally delimited by the all-purpose maritime
boundary with Chile.
5. Peru has authorized maps depicting its maritime boundary with Chile
4.42. Peruvian Supreme Decree No. 570 of 1957 818 requires any publication
of a map referring to or representing Peru’s frontiers to be authorized by the
Ministry of Foreign Affairs. As discussed in detail above at paragraphs 3.144-
3.151 and illustrated in Figures 37-41, Peru has authorized the publication of a
number of maps depicting the maritime boundary between Chile and Peru as the
parallel of latitude passing through Hito No. 1, even as recently as 1999. This
reinforces the obvious conclusion that Peru’s 1955 Supreme Resolution,
discussed above at paragraph 4.30 and earlier at paragraphs 3.50-3.56, indeed
identified the parallel of latitude expressed in Article IV of the Santiago
815
See Law No. 27261 of 9 May 2000: Law on Civil Aeronautics, Annex 185, Art. 3.
816 Ibid., Art. 21.
817
See para. 3.114 and footnote 677 of this Counter-Memorial.
818 At Annex 11 to the Memorial .
283Declaration as the maritime boundary between Chile and Peru, which was to be
used in “geodesic and cartographic works”.
4.43. A map is a memorandum. In the present case, cartographic evidence
can provide a good indication of the relevant Party’s position regarding the
existence and course of the maritime boundary 819. It can do so, in particular,
when it is the practice of that Party either to produce or to authorize the
production of maps depicting its maritime boundaries. When a Government
officially authorizes a map, that approval can constitute recognition of the
situation depicted in that map 820. In such cases, the legal value of the map lies,
not so much in its intrinsic cartographic merits, but rather in the official
imprimatur which the map carries: the map can then be said to be “a physical
821
expression of the will of the State” . The probative value of such a map is
greater if it constitutes an admission against interest — i.e., “when the State
adversely affected has itself produced and disseminated it, even against its own
interest”822. At the very least, such a map will have evidential value in
complementing other evidence of official recognition of the situation which the
823
map depicts , and in confirming the conclusions to be drawn from an analysis
of the relevant agreements and State p 824. rIanctcee present case, the maps
819 See Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle
Rocks and South Ledge (Malaysia/Singapore), I.C.J. Judgment, 23 May 2008, p. 74,
para. 271.
820 See Honduras Borders (Guatemala/Honduras), Award, 23 January 1933, RIAA,
Vol. II, pp. 1330-1331 and 1360-1361.
821
Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J Reports 1986,
pp. 582-583, paras 53 and 56.
822 Decision regarding delimitation of the border between Eritrea and Ethiopia, Award,
13 April 2002, RIAA, Vol. XXV, p. 116, para. 3.28.
823 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, p. 23, para. 45.
824
See Question of Jaworzina (Polish-Czechoslovakian Frontier), Advisory Opinion,
1923, P.C.I.J., Series B, No. 8, p. 33.
284o f f i c i a l l y a u t h o r i z eb y P e r u c o n s t i t u t e r e c o g n i t i o n o n P e r u ’ s
existence of a maritime boundary with Chile, and of the fact that the course of
this boundary follows the parallel of latitude of Hito No. 1. These maps confirm
Chile’s case and squarely contradict the argument that Peru now makes before
the Court.
E. T HE PREPARATORY W ORKS OF THE SANTIAGO D ECLARATION AND LIMA
A GREEMENT
4.44. Pursuant to Article 32 of the Vienna Convention, it is appropriate to
refer to the preparatory works of the Santiago Declaration and the Lima
Agreement to confirm the meaning resulting from the interpretive methods listed
in Article 31 of the Vienna Convention, which have been applied above. The
preparatory works of a treaty may be called in aid in so far as they “serve the
825
purpose of illuminating a common understanding” of the treaty in question.
The br ie f a cco unt here o f t he sa lie nt aspect s o f t he preparato ry wo rks o f t he
Santiago Declaration and Lima Agreement, which are discussed
comprehensively in Chapter II, Section 4.G. and Section 9.C. above, indicates
that the Parties shared a common understanding that in the Santiago Declaration
they did indeed agree on the delimitation of their maritime boundary.
1. The preparatory works of the 1952 Santiago Declaration
4.45. On 11 August 1952 a draft of the Santiago Declaration was considered
at the First Session of the Legal Affairs Commission of the 1952 Conference.
The minutes of that meeting record that the Ecuadorean delegate–
825
The Iron Rhine (Ijzeren Rijn) Arbitration, Award, 24 May 2005, RIAA, Vol. XXVII,
p. 63, para. 48.
285 “observed that it would be convenient to clarify [the
provision which became Article IV of the Santiago
D e c l a r a t i o n ] f u r t h e r i n o r d e r t o a v o i d e r r o r s
construing the zone of interference in the case of islands.
He suggested that the declaration be drafted on the basis
that the boundary line of each country’s jurisdictional zone
be the respective parallel of the point at which the frontier
of the countries reaches the sea.”826
827
The minutes record that: “All the delegates agreed to this proposal.”
4.46. This extract from the records of the Santiago Declaration shows the
intention of all three States parties that the boundary line of each State’s
jurisdictional zone be the parallel of the point at which the land frontier with
another State party reaches the sea. The negotiating draft was revised by the
Chilean and Peruvian delegates to that effect. Article IV provides that insular
maritime zones are to be cut off if they reach the parallel of latitude passing
through the point at which the land boundary of the States concerned reaches the
sea. That is so precisely because the States parties had a common understanding
that the parallel of latitude was “the boundary line of each country’s
jurisdictional zone”.
2. The preparatory works of the 1954 Lima Agreement
4.47. At the 1954 Inter-State Conference, Ecuador proposed that the
Complementary Convention include–
826
M i n u t e s o f t h e F i r s t S e s s i o n o f t h e L e g a l A f f a i r sC o m m i s s i o n
Conference, 11 August 1952 at 4.00 p.m., Annex 56 to the Memorial, p. 2. Chile’s
translation.
827 Ibid., p. 2. Chile’s translation.
286 “a complementary article clarifying the concept of the
dividing line of the jurisdictional sea, which has already
been explained at the Conference of Santiago, b828which
would not be redundant to include herein.”
4.48. As recounted in more detail at paragraphs 2.191-2.193 above, the
Peruvian and Chilean delegates expressed the view “that article 4 of the
Declaration of Santiago is clear enough and, therefore, does not require further
829
explanation” . The Ecuadorean delegate insisted that the general maritime
boundaries be acknowledged. He thought that Article IV of the Santiago
Declaration “was aimed at establishing the principle of delimitation of waters
830
regarding the islands” . At the initiative of the Chilean Chairman of the
1954 Inter-State Conference, the three States agreed to provide this clarification
by formally recording in the minutes of the conference–
“that the three countries deemed the matter on the dividing
line of the jurisdictional waters settled and that said line
w a s t h e p a r a l l e l s t a r t i n g a t t h e p o i n t a t w h i c h t h e l a n d
frontier between both countries reaches the sea.” 831
The Peruvian delegate specified that “this agreement was already established in
the Conference of Santiago as recorded in the respective Minutes by the request
of the Delegate of Ecuador” 832.
4.49. It was on the basis of this minuted agreement that the Ecuadorean
delegate ceased to pursue the addition of a provision confirming the existing
828
Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38, p. 3.
829 Ibid.
830
Ibid.
831 Ibid.
832
Ibid., p. 4.
287agreement on maritime boundaries in the main convention concluded at the
1954 Inter-State Conference. When the minutes were read the next morning, they
were modified so that they recorded, not simply that the Ecuadorean delegate
had made the suggestion that an agreement be recorded in the minutes, but rather
“that the three countries had agreed on the concept of a dividing line of the
jurisdictional sea” 83. With that modificat ion, the minutes of the First Sessio n
were approved.
4.50. This preparatory work, and the express agreement of the three States
which it records, are precisely on-point in the present dispute. The Ecuadorean
delegate expressed the concern that the text of Article IV of the Santiago
Declaration might be read in exactly the way in which Peru now proposes that it
be read — i.e., that it was aimed at delimiting the maritime zones of islands vis-
à-vis the maritime zones of continental territories. The three States formally and
explicitly recorded their agreement that the scope of Article IV of the Santiago
Declaration was not limited in that way. They agreed that Article IV delimited all
maritime zones — both “general” (continental) and insular — of all three States.
And it was Peru which insisted that the minutes expressly record that agreement
on this point had been reached in Santiago in 1952.
4.51. Neither Peru nor Chile nor Ecuador can unilaterally renege on that
common understanding half a century after the event 834. The formally minuted
agreement on the correct interpretation of Article IV of the Santiago Declaration
833
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39, p. 1.
834 See International Status of South-West Africa, Advisory Opinion, I.C.J. Reports
1950, pp. 135-136; Case concerning the Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment, I.C.J. Reports 1962, pp. 32-33; Separate opinion of
Judge Ajibola, Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J.
Reports 1994, pp. 73-74, 76; H. Lauterpacht, The Development of International Law
by the International Court, 1958, Annex 288, pp. 171-172.
288estops Peru from now asserting a contrary interpretation. In fact Chile and Peru
have both acted — including in subsequent agreements and through acts of
enforcement — on the basis that a maritime boundary was in place. They have
enjoyed the benefits of the stability that comes with an agre 835,ad boundary
well as regional solidarity in the face of challenges to their national maritime
zones by third States. In these circumstances Peru cannot now advance an
interpretation of Article IV of the Santiago Declaration that is the exact opposite
of the interpretation to which it agreed in 1954.
4.52. Later on 3 December 1954 the delegates to the 1954 Inter-State
Conference returned again to the agreed interpretation of Article IV of the
Santiago Declaration. As set forth elsewhere in this Counter-Memorial 836,
A r t i c l e 1 o f t h e L i m a A g r e e m e n t r e f e r s t o “ t h e p a r a l l e l w h i c h c o n s t i t u t e s a
maritime boundary between the two countries”. The minutes of the Second
Session of the 1954 Inter-State Conference indicate the circumstances in which
that phrase was agreed. Those minutes record that “the concept already declared
in Santiago that the parallel starting at the boundary point on the coast constitutes
the maritime boundary between the neighbouring signatory countries, was
incorporated into this article” 837. Against this background, the final text of
Article 1 of the Lima Agreement was agreed by all three States.
4.53. The foregoing review of the preparatory works clearly and explicitly
confirms that Chile and Peru had the same understanding on the fundamental
point: that their maritime boundary was delimited by agreement in the Santiago
Declaration of 1952.
835 Cf. Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 32.
836
See paras 2.200-2.201 and 4.17 above.
837 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39, p. 7.
289 F. T HE C IRCUMSTANCES OF THE S ANTIAGO D ECLARATION ’SC ONCLUSION
4.54. Pursuant to Article 32 of the Vienna Convention, account may be
taken of the circumstances in which a treaty was concluded, to confirm the
interpretation indicated by the interpretive means mandated by Article 31 of the
Vienna Convention. The “circumstances” which may be considered include legal
instruments that const itute part of a series of legal acts of which the primar y
treaty being interpreted forms part. These legal acts may include unilateral legal
instruments of one of the States parties to that treat.
4.55. The Santiago Declaration was not an isolated instrument. As well as
being followed by the Lima Agreement and the implementation agreements
regarding the signalling exercise concluded in 1968-1969, it was also preceded
by the 1947 unilateral and concordant proclamations of Chile and Peru. When
Chile, Ecuador and Peru met to conclude the Santiago Declaration in 1952, both
Chile and Peru had already, in 1947, unilaterally proclaimed concordant
839
maritime zones of 200 nautical miles .
4.56. Peru had specifically indicated in its Supreme Decree of 1947 the
method by which its maritime zone was to be measured. It was to be measured
“following the line of the geographical parallels [medida siguiendo la línea de
los paralelos geográficos]”840. This is acknowledged in Peru’s Memorial, where
the measurement of Peru’s maritime zone as proclaimed in 1947 is described as
follows: “at each point on the coast a line 200-mile long would be drawn
seaward along the geographical line of latitude, so that there would be a ‘mirror’
838 See Anglo-Iranian Oil Co. case, Jurisdiction, Judgment, I.C.J. Reports 1952,
pp. 105-107.
839
See Chapter II, Section 3, above.
840 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
290coastline parallel to the real coastline” 84. As discussed at paragraphs 2.31-2.37
above, since Peru measured its maritime zone in this fashion, Peru’s maritime
zone could not extend northwards of the parallel of latitude passing through the
point where Peru’s land boundary with Ecuador reaches the sea, and it could not
extend southwards of the parallel of latitude passing through the point where
Peru’s land boundary with Chile reaches the sea.
4.57. Chile and Peru exchanged formal notifications of their 1947
proclamations 842. Neither State protested the other’s zone. (Nor did Ecuador
protest Peru’s zone.) As a result, five years later at the Santiago Conference of
1952, the Parties were acting on the concordant basis that their respective
maritime zones were bounded by a parallel of latitude. The question of lateral
boundaries of the States parties’ maritime zones under the Santiago Declaration
was therefore not controversial. Peru was the only State party with which both
Chile and Ecuador shared a maritime boundary. The question of lateral maritime
boundaries could be, and was in fact, dealt with in summary terms in the
Santiago Declaration.
Section 5. Location and Course of the Maritime Boundary
4.58. Having established that there is an agreed maritime boundary between
Chile and Peru, the next matter is to identify the course of that boundary. The
text of the Santiago Declaration provides the answer. The boundary is “the
parallel at the point at which the land frontier of the States concerned reaches the
843
sea” .
841 Memorial, para. 4.58.
842
See paras 2.41-2.42 above.
843 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
2914.59. The Santiago Declaration did not specify coordinates for the precise
point at which the land boundary reaches the sea; nor did it need to do so as a
matter of legal efficacy. As between the Parties, that point was in fact determined
without controversy or difficulty. The Parties found it desirable to use a stable
reference point to mark the parallel of latitude constituting their maritime
boundary. They used Hito No. 1 as that reference point.
4.60. The reasons for which Hito No. 1 is used as the reference point for the
maritime-boundary parallel are straightforward and have already been noted. As
discussed more fully above, at paragraphs 2.9-2.16, the Parties agreed in 1930
that the “demarcated boundary line starts from the Pacific Ocean at a point on the
seashore [línea frontera demarcada parte del océano Pacífico en un punto en la
orilla del mar]” 844. The hitos used to demarcate the boundary were listed in an
agreed table which described the coordinates and physical characteristics of all
the hitos. The hitos were listed “starting in order from the Pacific Ocean
[partiendo ordenamente del océano Pacífico]” . Hito No. 1 was listed as being
846
placed on the “seashore [orilla del mar]” . H it o N o . 1 w a s a c c o r d ing l y t he
natural reference point for the Parties to use in implementing the legal expression
“the point at which the land frontier of the States concerned reaches the sea” in
Article IV of the Santiago Declaration.
4.61. The 1968-1969 signalling agreements and the actual erection of
alignment towers in 1972 were a specific response by the Parties to difficulties
which had been experienced by mariners in identifying at sea the precise parallel
of latitude constituting the maritime boundary. In that process Chile and Peru
844 1930 Final Act, Annex 54 to the Memorial , second paragraph.
845
1930 Final Act, Annex 54 to the Memorial, the list of hitos; repeated in Act of
Plenipotentiaries, Annex 55 to the Memorial .
846 Act of Plenipotentiaries,Annex 55 to the Memorial; see the description of the first
hito.
292jointly verified the exact physical location of Hito No. 1 and constructed two
847
lighthouses to signal the parallel of latitude of Hito No. 1 .
4.62. In the 1968 Minutes, signed by representatives of both States, Chile
and Peru agreed that “the parallel of the maritime frontier” that was to be marked
by the lighthouses was “that which corresponds to the geographical
848
location. . .for Boundary Marker No. 1” . In the 1969 Act the Parties were just
as explicit. They agreed that lighthouses would be installed “in order to signal
the maritime boundary and physically to give effect to the parallel that passes
849
through. . .Boundary Marker number one” . The 1930 Final Act specifies that
Hito No. 1 had an astronomical latitude of 18° 21' 03" S. When referred to the
WGS84 datum, Hito No. 1 is at latitude 18° 21' 00" S.
4.63. As a matter of law, where two States act jointly to resolve any
difficulties with identifying the actual physical location of an agreed boundary
line, and in this process the States confirm the precise location of the boundary,
such confirmation constitutes an authentic interpretation of the original boundary
850
agreement . The 1968-1969 agreements and the signalling process as a whole
confirmed Hito No. 1 as the reference point for the parallel of latitude
constituting the maritime boundary between the Parties. The Parties have used
the parallel of latitude of Hito No. 1 to control entry into their respective
maritime zones and as the maritime boundary for the capture and prosecution of
foreign vessels, as described in Chapter III, Section 4(A) and (B), above.
847 See Chapter III, Section 2, above.
848
1968 Minutes, Annex 59 to the Memorial , penultimate paragraph.
849 1969 Act, Annex 6, first paragraph.
850
See Case concerning the location of boundary markers in Taba between Egypt and
Israel, Award, 29 September 1988, RIAA, Vol. XX, pp. 56-57, para. 210; Territorial
Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 23,
para. 45. Also see Case concerning the Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 34.
293 Section 6. Maritime Zones Delimited by the Boundary
between Chile and Peru
4.64. The States parties claimed, in Article II of the Santiago Declaration,
“exclusive sovereignty and jurisdiction over the sea along the coasts of their
respective countries to a minimum distance of 200 nautical miles from these
851
coasts.” The States parties added, in Article III of the Santiago Declaration,
that this claim encompassed “exclusive sovereignty and jurisdiction over the
seabed and the subsoil thereof.” The “sea”, “the seabed and the subsoil thereof”,
“along the coasts of their respective countries to a minimum distance of
200 nautical miles from these coasts” were the object of the delimitation between
Chile, Ecuador and Peru in 1952.
4.65. The Parties’ current maritime zones are discussed in detail at
paragraphs 2.164-2.177 above. It is simply recalled here that Chile has a 12M
territorial sea, a 24M contiguous zone, a 200M EEZ and a continental shelf 85.
These zones are all consistent with UNCLOS, to which Chile is a party. Peru is
not a party to UNCLOS, and claims a unitary maritime zone of 200 nautical
miles, which it calls a “maritime dominion”. In this unitary 200M zone Peru
claims to exercise full sovereignty and jurisdiction from the subsoil of the seabed
to the airspace above.
4.66. Since the States parties to the Santiago Declaration claimed plenitude
of sovereignty and jurisdiction, and delimited that claim inter se, they established
an all-purpose maritime boundary. That boundary applies to any and all more
specific zones that are from time to time claimed by the States parties in exercise
of their sovereignty and jurisdiction. Their delimitation under the Santiago
851 Santiago Declaration, Annex 47 to the Memorial, Art. II.
852
Also see para. 2.177 above with respect to Chile’s continental shelf.
294Declaration therefore remains effective, and it covers all the maritime zones now
actually claimed by each of the Parties.
4.67. I n i t s M e m o r i a l P e r u a s s e r t s t h a t t h e d i v i d i n g l i n e b e t w e e n t h e
maritime spaces of Chile and Peru is only a “policing limit” between the “limited
functional jurisdiction in respect of fisheries” claimed by the States parties to the
Lima Agreement 853. Yet the States parties to the Lima Agreement were not
concerned with claiming jurisdiction. That had already been done two years
earlier in the Santiago Declaration, in which Chile, Ecuador and Peru had each
claimed exclusive jurisdiction and sovereignty to a seaward distance of at least
200 nautical miles. The Lima Agreement was solely concerned with creating a
zone of tolerance to deal with “innocent and inadvertent violations of the
854
maritime frontier” . The Lima Agreement recounted that small fishing vessels
were mainly responsible for these violations, and the 10M zone of tolerance on
855
either side of each relevant maritime boundary was designed for their benefit .
4.68. The Lima Agreement did not establish a “policing limit” between
Chile and Peru. It did not establish any limit at all. Rather, the Lima Agreement
established a zone of tolerance on either side of a boundary — “maritime
frontier” — that was acknowledged already to exist in unqualified terms. The
Lima Agreement might be said to be “functional” in the sense that it was
concerned with a zone of tolerance for fishing vessels, but what matters here is
that creating that zone was an exercise of the sovereignty and jurisdiction already
claimed in the Santiago Declaration two years earlier. The provisions of the
856
Lima Agreement were specifically stated “not in any way to abrogate” the
853
See Memorial, para. 4.4.
854 Lima Agreement, Annex 50 to the Memorial , first recital and Art. 2.
855
Ibid.
856 Lima Agreement, Annex 50 to the Memorial , Art. 4.
295Santiago Declaration. The Lima Agreement did not affect, but rather confirmed,
the States parties’ claims to exclusive jurisdiction and sovereignty, as it
confirmed the existing delimitation of those all-encompassing claims under the
Santiago Declaration.
4.69. It follows from the foregoing that there is an agreed all-purpose single
maritime boundary between the Parties 857.
Section 7. Stability of Agreed Boundaries
4.70. The final question to address is whether there is any basis on which
the agreed maritime boundary can be set aside. That question is not raised in
Peru’s Memorial, and is briefly addressed here for the sake of completeness.
4.71. The fundamental principle is that once two States have agreed their
maritime boundary, later unilateral opposition to that agreement by one of its
parties does not undermine the boundary’s ongoing validity. A boundary treaty is
subject to the normal rule ofpacta sunt servanda: it “is binding upon the parties
to it and must be performed by them in good faith” 858.
4.72. Stability of boundaries is in itself a cardinal rule of international
law 859. As the Court said in theCase concerning the Temple of Preah Vihear: “In
general, when two countries establish a frontier between them, one of the
857
This is noted in, for example, E. Jiménez de Aréchaga, “South American Maritime
Boundaries” in J. I. Charney and L. M. Alexander (eds), International Maritime
Boundaries, Vol. I, 1993, Annex 279, p. 287; and in Maritime Delimitation in the
Area between Greenland and Jan Mayen (Denmark v. Norway), Memorial submitted
by the Kingdom of Denmark on 31 July 1989, I.C.J. Pleadings, Vol. I, para. 364.
858
Vienna Convention, Art. 26.
859 See Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports
1978, pp. 35-36, para. 85; Territorial Dispute (Libyan Arab Jamahiriya/Chad),
Judgment, I.C.J. Reports 1994, p. 37, para. 72.
296 860
primary objects is to achieve stability and finality” . The Court also made clear
in Aegean Sea Continental Shelf t h a t “ t h e s a m e e l e m e n t o f s t a b i l i t y a n d
permanence” applies to maritime boundaries as to land boundaries 861. Further, no
rule of international law permits a State unilaterally to resile from an agreement
establishing a land or maritime boundary because of subsequent legal
developments which, had they occurred by the time of the boundary agreement,
might have helped that State obtain a more favourable boundary in the
862
agreement. Much less does one State’s view that a previously agreed land or
863
maritime boundary is “inequitable” create a valid basis for that boundary to be
set aside. Once a boundary is validly agreed, the boundary may be altered only
by consent of the parties to the boundary agreement. In sum, the validity of a
boundary agreement falls to be assessed against the circumstances at the time of
its conclusion. If it were otherwise, the stability of boundaries, which are an
elemental component of international relations, would be constantly at risk.
4.73. In a number of places in its Memorial, Peru asserts that the Santiago
864 865
Declaration and the Lima Agreement were “provisional” or “temporary” .
Nowhere are these adjectival assertions supported. They are present-day
unilateral characterizations without foundation in the Santiago Declaration, the
Lima Agreement or the relevant subsequent State practice. Like the Santiago
Declaration, many treaties delimiting boundaries contain no mention of their
860
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 34.
861 See Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports
1978, pp. 35-36, para. 85.
862 See Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J Reports
1986, p. 633, para. 149.
863
See Case concerning the Delimitation of the Maritime Boundary between Guinea-
Bissau and Senegal, Award, 31 July 1989, RIAA, Vol. XX, p. 149, para. 79.
864 See Memorial, paras 2.31, 4.4, 4.9(b), 4.71 and 4.106.
865
Memorial, para. 4.95.
297duration. Consistent with the principle of stability of boundaries, boundary
agreements that contain no express provision as to their duration are to be
interpreted as creating boundaries of indefinite duration 86. Even if an agreement
creating an international boundary lapses — which the Santiago Declaration has
not, even on Peru’s view — the boundary itself remains. This is because the
boundary as a juridical fact takes on a legal existence separate from the
agreement that created it 867.
4.74. The foregoing rules on stability of existing boundaries were
868
uncontroversial at the Third Conference on the Law of the Sea .
4.75. A major issue at that Conference was the delimitation of the
continental shelf and EEZ. The issue of “equitable” delimitation was considered
over many sessions of the Conference. The primary rule was agreed in UNCLOS
869
to be that such delimitations were to be “effected by agreement” between the
States concerned. This treaty provision reflected the fundamental principle,
which had been previously acknowledged by the Court 870, that delimitation in
accordance with equitable principles is to be effected by agreement. This is not a
hortatory directive. UNCLOS provides that delimitation “shall be e ffect ed b y
871
agreement” (emphasis added). Similarly, Article 6 of the 1958 Geneva
866 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, p. 37, para. 72.
867
See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
1994, p. 37, paras 72-73; Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, I.C.J. Judgment, 13 December 2007, p. 29, para. 89.
868
See S. Nandan and S. Rosenne (eds), United Nations Convention on the Law of the
Sea 1982: A Commentary, Vol. II, 2002-2003, Annex 295, pp. 984-985, para.
83.19(e).
869 See UNCLOS, Arts 74(1) and 83(1).
870
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 53, para. 101(C)(1);
and see paras 2.161-2.162 above.
871
UNCLOS, Arts 74(1) and 83(1).
298Convention on the Continental Shelf required that boundaries between States
with opposite or adjacent continental shelves “shall be determined by agreement
between them” 872.
4.76. In the Third Conference on the Law of the Sea, there were significant
differences between, on the one hand, those States which advocated
equidistance, as modified by special circumstances, as the approach to be taken
to the delimitation of the continental shelf and EEZ, and on the other hand, States
which placed primary importance on equitable principles. However great that
disagreement, “[c]ommon to both approaches was recognition that delimitation
by agreement [was] the most satisfactory way of resolving issues arising from
overlapping claims” 873.
4.77. U N C L O S e x p r e s s l y c o n f i r m s t h a t b o u n d a r i e s a g r e e d p r i o r t o i t s
coming into force are to be respected, in the following terms:
“Where there is an agreement in force between the States
concerned, questions relating to the delimitation [of the
exclusive economic zone or the continental shelf] shall be
determined in accordance with the provisions of that
agreement.” 874
4.78. Again, the preservation of existing agreements was not a controversial
question. If UNCLOS had not preserved pre-existing maritime boundary
agreements, a number of States that are now party to UNCLOS would have
refused to adhere to it.
872 Convention on the Continental Shelf, signed at Geneva on 29 April 1958, 499UNTS
311 (entered into force on 10 June 1954), Art. 6.
873
S. Nandan and S. Rosenne (eds), United Nations Convention on the Law of the Sea
1982: A commentary, Vol. II, 2002-2003, Annex 295, p. 954.
874 UNCLOS, Arts 74(4) and 83(4).
2994.79. Respect for the stability of boundaries gives rise to the interpretive
presumption enunciated by the Permanent Court in its Treaty of Lausanne
Advisory Opinion:
“[A]ny article designed to fix a frontier should, if possible,
be so interpreted that the result of the application of its
provisions in their entirety should be the establishment of a
precise, complete and definitive frontier.” 875
4.80. In the Libya/Chad Territorial Dispute case the Court relied on the
authority of the Treaty of Lausanne Opinion 876 and held that the boundary treaty
before the Court “was aimed at settling all the frontier questions, and not just
877
some of them.”When Article IV of the Santiago Declaration, read with the
Lima Agreement, is interpreted in good faith following the interpretive process
set forth in this Chapter, there is an abundance of material for the Court to
preserve the stability of boundaries by finding that the maritime boundary
between Chile and Peru has been fully and definitively delimited by agreement,
that the agreement delimits all the maritime zones claimed by the Parties; that the
agreed boundary is the parallel of latitude of Hito No. 1; and that, having made
an agreement on these matters, Peru cannot now unilaterally challenge a long-
settled boundary.
875 See Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier between Turkey and
Iraq), Advisory Opinion, 1925, P.C.I.J., Series B, No. 12, p. 20.
876
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
pp. 23-24, para. 47.
877 Ibid., p. 24, para. 48.
300 CHAPTER V
SUMMARY
5.1. This Chapter contains a concise summary of the principal aspects of
Chile’s position and reasoning, in compliance with Practice Direction II of the
Court.
5.2. In 1947 both Chile and Peru issued proclamations claiming
sovereignty over a maritime zone having a seaward breadth of 200 nautical
miles. Both texts envisaged possible future extensions of the maritime zones
proclaimed further seaward. Both texts addressed the perimeter of the maritime
zones proclaimed and, in the result, the zones were spatially concordant. In
particular, the 1947 Peruvian Supreme Decree explicitly set forth that Peru’s
maritime zone was to be measured “following the line of the geographic
parallels”, thus establishing its perimeter. Using this method, Peru’s zone was to
be bounded in the south by a line following the parallel of latitude corresponding
to the point where Peru’s land boundary with Chile reaches the sea. Peru sent its
proclamation to Chile. Chile acknowledged it without objection.
5.3. The Santiago Declaration of 1952 is a multilateral treaty which
recognized an entit lement of each State party (Chile, Ecuador and Peru) to a
maritime zone of “exclusive sovereignty and jurisdiction” to a seaward distance
of at least 200 nautical miles. In Article IV of the Santiago Declaration the States
parties agreed that the “general maritime zone belonging to another of those
countries” commenced at the “parallel at the point at which the land frontier of
the States concerned reaches the sea”. Thus the Santiago Declaration established
that Peru had the same lateral maritime boundaries with its neighbours as Peru
itself had claimed five years earlier.
5.4. In 1954 Chile, Ecuador and Peru again gathered to defend jointly their
extended maritime claims. They recorded in the agreed minutes of their
conference that they “deemed the matter on the dividing line of the jurisdictional
301waters settled and that said line was the parallel starting at the point at which the
land frontier between both countries reaches the sea”. At that same conference
the three States concluded the Agreement Relating to a Special Maritime
Frontier Zone. That agreement, referred to throughout this Counter-Memorial as
the Lima Agreement, refers to the “maritime frontier” in its title and in its
recitals. In Article 1 it refers to “the parallel which constitutes the maritime
boundary between the two countries”. These acknowledgements of the existing
maritime boundary in the Lima Agreement were “deemed to be an integral and
s u p p l e m e n t a r y p a r t o f ” t h e S a n t i a g o D e c l a r a t i o n . I n c o n c l u d i n g
Agreement, Chile, Peru and Ecuador were giving effect to the Santiago
Declaration, and confirming that the boundaries between all three States parties
followed a parallel of latitude “at the point at which the land frontier of the States
concerned reaches the sea” in accordance with Article IV of the Santiago
Declaration.
5.5. As a matter of fact, both Chile and Peru have acknowledged and
enforced their agreed maritime boundary. They have done so by unilateral action
and a lso o n a bilat era l ba s is, o ver t he co urse o f ha lf a ce nt ury. The re le va nt
practice of Chile and Peru is collated in Chapter III of this Counter-Memorial.
Two prominent examples of recognition of the boundary are the following:
(a) In its 1955 Supreme Resolution Peru stated that its maritime zone
“referred to in the Supreme Decree of 1 August 1947 and the Joint
Declaration signed in Santiago on 18 August 1952”–
“1 – shall be limited at sea by a line parallel to the
Peruvian coast and at a constant distance of 200 nautical
miles from it;
2 – In accordance with clause IV of the Declaration of
Santiago, the said line may not extend beyond that of the
corresponding parallel at the point where the frontier of
Peru reaches the sea.”
302(b) In 1968 and 1969 Chile and Peru agreed to take practical measures to
signal for mariners the precise physical location of their maritime
boundary. A Chile-Peru Mixed Commission of 1968-1969 recorded
t h a t i t s t a s k h a d b e e n t o “ p h y s i c a l l y m a r k t h e p a r a l l e l t h a t p a s s e s
through. . .Hito No. 1”. This parallel was to be physically marked “in
order to signal the maritime boundary”. The parallel constituting the
maritime boundary was agreed to have an astronomical latitude of
18° 21' 03" S. In the WGS84 datum this is latitude 18° 21' 00" S.
5.6. Not only have Chile and Peru recognized and enforced their agreed
maritime boundary over time; the existence of that agreed boundary has also
been consistently recognized by the United Nations, through its Division for
Ocean Affairs and the Law of the Sea, by third States and by a plethora of
respected publicists from a diversity of legal traditions.
5.7. In addition to its claim to a maritime area within Chile’s 200M limit,
P e r u a l s o c l a i m s a n a r e a o f h i g h s e a s , r e f e r r e d t o t h r o u g h o u t t h i s C o u n t e r -
Memorial as thaelta mar area. Peru asks the Court to extend Peru’s “maritime
dominion” into this high-seas area, which is seaward of Chile’s EEZ and
continental shelf. Yet under the Santiago Declaration the parallel of latitude
which constitutes the maritime boundary also constitutes an agreed lateral limit
beyond which neither State can claim any maritime zone, even where the other
State has no abutting maritime zone. Peru’s claim to the alta mar area is
therefore precluded by the Santiago Declaration.
5.8. Peru seeks to resile from an agreement of 1952, which has conferred a
stable maritime boundary upon the Parties over a long period, and whose roots
are in concordant unilateral proclamations made by the Parties in 1947. The rules
of pacta sunt servanda and stability of boundaries prevent Peru from doing so.
Article 38(1) of the Court’s Statute provides that the Court shall apply
international conventions applicable between the contesting States. The
governing agreement in this case sets forth the maritime boundary which was
303agreed between Chile and Peru in 1952 and then confirmed on numerous
subsequent occasions over the course of more than 50 years.
304 CHAPTER VI
SUBMISSIONS
Chile respectfully requests the Court to:
(a) DISMISS Peru’s claims in their entirety;
(b) ADJUDGE AND DECLARE that:
(i) the respective maritime zone entitlements of Chile and Peru
have been fully delimited by agreement;
(ii) those maritime zone entitlements are delimited by a boundary
following the parallel of latitude passing through the most seaward
boundary marker of the land boundary between Chile and Peru, known
as Hito No. 1, having a latitude of 18° 21' 00" S under WGS84 Datum;
and
(iii) Peru has no entitlement to any maritime zone extending to the
south of that parallel.
Alberto van Klaveren Stork
Agent of the Republic of Chile
9 March 2010
305306 LIST OF ANNEXES
(VOLUMES II - V)
VOLUME II
T REATIES AND INTER -STATE A CTS
Annex 1. A g r e e m e n t b e t w e e n F r a n c e a n d S p a i n , s i g n e d a t B a y o n n e
30 March 1879
Annex 2. Declaration of Panama, in the Final Act of the Consultative Meeting
of Foreign Ministers of the American Republics, signed at Panama
City on 3 October 1939
Annex 3. Protocol of Peace, Friendship and Boundaries between Peru and
Ecuador, signed at Rio de Janeiro on 29 January 1942
Annex 4. Agreement Relating to Measures of Supervision and Control in the
Maritime Zones of the Signatory Countries, signed at Lima on
4 December 1954
Annex 5. Regulation of Permits for the Exploitation of the Resources of the
South Pacific, signed at Quito on 16 September 1955
Annex 6. Act of the Chile-Peru Mixed Commission in Charge of Verifying
the Location of Boundary Marker No. 1 and Signalling the
Maritime Boundary, 22 August 1969
Annex 7. Exchange of Notes Constituting an Agreement between the
Government of Brazil and the Government of Uruguay on the
Definitive Demarcation of the Sea Outlet of the River Chui and the
Lateral Maritime Border, signed at Montevideo on 21 July 1972
Annex 8. Agreement between the Government of the United Kingdom of
Great Britain and Northern Ireland, the Government of the Kingdom
of Norway and the Government of the Union of Soviet Socialist
R e p u b lic s o n t he R e g u la t io n o f t he F is h in g o f N o rt h- E a st Ar c t ic
(Arcto-Norwegian) Cod, signed at London on 15 March 1974
307Annex 9. Agreement Concerning Delimitation of Marine and Submarine
A r e a s a n d M a r i t i m e C o - o p e r a t i o n b e t w e e n t h e
Colombia and Ecuador, signed at Quito on 23 August 1975
Annex 10. Reciprocal Fisheries Agreement between the Government of the
United States of America and the Government of Canada, signed at
Washington D.C. on 24 February 1977
Annex 11. Memorandum of Understanding between the Government of the
Republic of Indonesia and the Government of Australia Concerning
the Implementation of a Provisional Fisheries Surveillance and
Enforcement Arrangement, signed at Jakarta on 29 October 1981
Annex 12. Agreement on the Protection o f the Marine Environment and the
Coastal Area of the South-East Pacific, signed at Lima on 12
November 1981
Annex 13. The Protocol for the Protection of the South-East Pacific against
Pollution from Land-based Sources, signed at Quito on 22 July
1983
Annex 14. Declaration of Viña del Mar of 10 February 1984
Annex 15. Treaty of Peace and Friendship between Chile and Argentina,
signed at Vatican City on 29 November 1984
Annex 16. Agreement between the Government of Japan and the Government
of the Union of Soviet Socialist Republics on Co-operation in the
Field of Fisheries, signed at Moscow on 12 May 1985
Annex 17. Agreement between the Libyan Arab Socialist People’s Jamahariya
a n d t h e R e p u b l i c o f T u n i s i a t o I m p l e m e n t t h e J u d g m e n t o f t h e
International Court of Justice in the Tunisia/Libya Continental Shelf
Case, signed at Benghazi on 8 August 1988
Annex 18. Protocol for the Conservation and Administration of the Protected
Marine and Coastal Areas of the South-East Pacific, signed at Paipa
on 21 September 1989
Annex 19. Protocol for the Protection of the South-East Pacific against
Radioactive Contamination, signed at Paipa on 21 September 1989
308Annex 20. Protocol on the Programme for Regional Study of the Phenomenon
“El Niño” in the South-East Pacific, signed at Callao on
6 November 1992
Annex 21. Final Minutes of Understanding of the Fourth Bilateral Meeting
between the Commanders of the Frontier Naval Zones of Chile and
Peru, 13 July 1995
Annex 22. Interim Accord between Greece and the Former Yugoslav Republic
of Macedonia, signed at New York on 13 September 1995
Annex 23. Act of Brasilia, signed by the Presidents of Peru and Ecuador at
Brasilia on 26 October 1998
Annex 24. Agreement between the Government of the Republic of Peru and
t h e G o v e r n m e n t o f t h e R e p u b l i c o f C h i l e f o r t h e R e c i p r o c a l
Promotion and Protection of Investments, signed at Lima on
2 February 2000
Annex 25. Framework Agreement for the Conservation of the Living Marine
Reso urces o n t he H ig h Sea s o f t he So ut h-East Pac ific, s ig ned at
Santiago on 14 August 2000 (not in force) (also known as the
“Galápagos Agreement”)
Annex 26. Minutes of the Fifteenth Roundtable Discussions between the High
Commands of the Armed Forces of Chile and Peru, signed by the
Chief of Staff of the National Defence Force of Chile and the Chief
of Staff of the Air Force of Peru on 29 September 2000
Annex 27. Agreement on Provisional Arrangements for the Delimitation of the
Maritime Boundary between the Republic of Tunisia and the
People’s Democratic Republic of Algeria, signed at Algiers on
11 February 2002
Annex 28. Final Minutes of Understanding of the Eleventh Bilateral Meeting
between the Commanders of the Frontier Naval Zones of Chile and
Peru, 16 August 2002
Annex 29. Final Minutes of Understanding of the Twelfth Bilateral Meeting
between Commanders of the Frontier Naval Zones of Chile and
Peru between 21 and 25 July 2003
309Annex 30. Joint Declaration by the Presidents of Ecuador and Chile on the
Occasion of the Official Visit to Ecuador of the President of Chile,
1 December 2005
Annex 31. Free Trade Agreement between the Government of the Republic of
Peru and the Government of the Republic of Chile, signed at Lima
on 22 August 2006
Annex 32. Minutes of the Second Meeting of the Chile-Ecuador Bilateral Inter-
Ministerial Council of 6-7 September 2009
RECORDS OF INTERNATIONAL C ONFERENCES
Annex 33. Minutes of the Third Session of the Third Commission of the Ninth
Inter-American Conference, 27 April 1948
Annex 34. Minutes of the Second Session of the Legal Affairs Commission of
the 1952 Conference, 12 August 1952 at 4.00 p.m.
Annex 35. Minutes of the Inaugural Session of the 1954 CPPS Meeting,
4 October 1954 at 6.00 p.m.
Annex 36. M i n u t e s o f t h e P l e n a r y S e s s i o n o f t h e 1 9 5 4 C P P S M e e t i n g ,
8 October 1954 at 10.30 a.m.
Annex 37. Minutes of the Inaugural Session of the 1954 Inter-State
Conference, 1 December 1954 at 5.00 p.m.
Annex 38. Minutes of the First Session of Commission I of the 1954 Inter-
State Conference, 2 December 1954 at 10.00 a.m.
Annex 39. Minutes of the Second Session of Commission I of the 1954 Inter-
State Conference, 3 December 1954 at 10.00 a.m.
Annex 40. Final Minutes of the 1954 Inter-State Conference, 4 December
1954
Annex 41. United States Department of State, Santiago Negotiations on
Fishery Conservation Problems, 14 September – 5 October 1955
310Annex 42. Intervention by Dr. García Sayán of Peru in the general debate in
the Second Committee of the First United Nations Conference on
the Law of the Sea, 13 March 1958
Annex 43. Intervention by Mr. Arias-Schreiber of Peru during the 30th
Meet ing o f the Second Sessio n of the Second Committee of the
Third United Nations Conference on the Law of the Sea, 7 August
1974 at 11.10 a.m.
Annex 44. Intervention by Mr. Arias-Schreiber of Peru during the 45th
Meet ing o f the Second Sessio n of the Second Committee of the
Third United Nations Conference on the Law of the Sea, 28 August
1974 at 11.00 a.m.
Annex 45. Intervention by Mr. Bákula of Peru during the 48th Meeting of the
Second Session of the Second Committee of the Third United
Nations Conference on the Law of the Sea, 2 May 1975 at
3.30 p.m.
Annex 46. Letter No. 804/124 of 20 August 1979 from the Heads of
Delegation of Chile, Colombia, Ecuador and Peru to the President
of the Third United Nations Conference on the Law of the Sea
Annex 47. Intervention by Mr. Arias-Schreiber of Peru during the 118th
Meeting of the Resumed Eighth Session of the Plenary Meetings of
t h e T h i r d U n i t e d N a t i o n s C o n f e r e n c e o,n t h e L a w o f t h e S e a
23 August 1979 at 4.35 p.m.
Annex 48. Statement by the Delegation of Peru at the Third United Nations
Conference on the Law of the Sea, 4 April 1980
Annex 49. Note verbale of 9 March 1981 from the Heads of Delegation of
Chile, Colombia, Ecuador and Peru to the President of the Third
United Nations Conference on the Law of the Sea, transmitting the
Cali Declaration of 24 January 1981
Annex 50. Intervention by Mr. Arias-Schreiber of Peru during the 182nd
Plenary Meeting of the Third United Nations Conference on the
Law of the Sea, 30 April 1982 at 3.20 p.m.
Annex 51. Statement by the CPPS to the Third United Nations Conference on
the Law of the Sea
311 VOLUME III
CORRESPONDENCE BETWEEN STATES
AND BETWEEN S TATES AND INTERNATIONAL O RGANIZATIONS
Annex 52. Note No. 621/64 of 24 July 1947 from the Chilean Ambassador to
Peru to the Minister of Foreign Affairs of Peru
Annex 53. Note No. 5-4-M/45 of 8 October 1947 from the Peruvian
Ambassador to Chile to the Minister of Foreign Affairs of Chile
Annex 54. Note No. (D)-6-4/46 of 17 November 1947 from the Minister of
Foreign Affairs of Peru to the Chilean Ambassador to Peru
Annex 55. Note No. 015799 of 3 December 1947 from the Vice-Minister of
Foreign Affairs of Chile (signing for the Foreign Minister) to the
Peruvian Ambassador to Chile
Annex 56. Protest by the United Kingdom Government of 6 February 1948 to
the Ministry of Foreign Affairs of Chile
Annex 57. Note of 2 July 1948 from the United States Ambassador to Chile to
the Minister of Foreign Affairs of Chile
Annex 58. Note of 7 April 1951 from the Government of France to the
Government of the United Kingdom
Annex 59. Note No. 468/51 of 7 July 1952 from the Chilean Ambassador to
Ecuador to the Minister of Foreign Affairs of Ecuador
Annex 60. Note No. 141 (1270/12/54) of 12 August 1954 from the British
Embassy in Chile to the Ministry of Foreign Affairs of Chile
Annex 61. Note No. 5-20-M/18 of 13 August 1954 from the Peruvian
Embassy in Panama to the Minister of Foreign Affairs of Panama
Annex 62. Note No. 101 of 20 September 1954 from the United States
Ambassador to Peru to the Minister of Foreign Affairs of Peru
312Annex 63. Note of 29 September 1954 from the Legation of Norway in Chile
to the Ministry of Foreign Affairs of Peru
Annex 64. Note No. 57/1954 of 4 October 1954 from the Legation of Sweden
in Peru to the Minister of Foreign Affairs of Peru
Annex 65. Note No. 197 of 4 October 1954 from the Danish chargé d’affaires
in Peru to the Minister of Foreign Affairs of Peru
Annex 66. Memorandum No. 3883 of 28 October 1954 from the Legation of
the Netherlands in Peru to the Ministry of Foreign Affairs of Peru
Annex 67. Note No. 276 of 4 March 1955 from the United States Ambassador
to Peru to the Minister of Foreign Affairs of Peru, enclosing an
aide-mémoire
Annex 68. Note No. 34 (1271/11/54) of 31 August 1954 from the British
Ambassador to Peru to the Minister of Foreign Affairs of Peru
Annex 69. Note No. 5-4-M/29 of 20 April 1955 from the Peruvian Embassy in
Chile to the Ministry of Foreign Affairs of Chile
Annex 70. Memorandum of 23 June 1955 from the Peruvian Embassy in
Ecuador to the Government of Ecuador
Annex 71. Memorandum of 14 August 1955 by the Chilean Embassy in
Ecuador: “Observations on the Ecuadorean draft of the Protocol of
Accession to the Agreements of Santiago on Maritime Zone”
Annex 72. Note No. 142 of 20 June 1961 from the Chilean Ambassador to
Peru to the Minister of Foreign Affairs of Peru
Annex 73. Memorandum No. 5-4-M/64 of 20 December 1962 from the
Peruvian Embassy in Chile to the Ministry of Foreign Affairs of
Chile
Annex 74. Note No. V.1000-491 of 20 November 1964 from the Harbour
Master of Mollendo-Matarani to the Maritime Governor of Arica
Annex 75. Memorandum of 8 June 1966 from the Peruvian Embassy in Chile
to the Ministry of Foreign Affairs of Chile
313Annex 76. Memorandum of 8 June 1966 from the Peruvian Embassy in Chile
to the Ministry of Foreign Affairs of Chile
Annex 77. Memorandum of 27 September 1967 from the Ministry of Foreign
Affairs of Peru to the Chilean Embassy in Peru
Annex 78. Note No. 5-4-M/76 of 13 August 1969 from the Peruvian Embassy
in Chile to the Ministry of Foreign Affairs of Chile
Annex 79. Note of 26 September 1969 from the Peruvian Embassy in Ecuador
to the Ministry of Foreign Affairs of Ecuador
Annex 80. Letter No. 12610/28 of 28 July 1970 from the Director of the
Hydrographic Institute of the Chilean Navy to the Director of
Hydrography and Lighthouses of Peru
Annex 81. Note DRI-DAE No. 22973 of 26 July 1972 from the Ministry of
Foreign Affairs of Chile to the Peruvian Embassy in Chile
Annex 82. Circular Note No. (Du)-2-6-GG/17 of 7 June 1972 from the
Ministry of Foreign Affairs of Peru to all diplomatic missions
accredited to Peru
Annex 83. Letter of 3 December 1973 from the Permanent Representatives of
Peru and Chile and the Ecuadorean chargé d’affaires to the United
Nations to the Secretary-General of the United Nations
Annex 84. Note No. 7-1-SG/22 of 6 May 1976 from the Permanent
Representative of Peru to the United Nations to the Secretary-
General of the United Nations
Annex 85. Note No. 5-4-M/291 of 20 November 1987 from the Peruvian
Embassy in Chile to the Ministry of Foreign Affairs (Special Policy
Directorate) of Chile
Annex 86. Note No. 24516 of 10 December 1987 from the Ministry of Foreign
Affairs of Chile to the Peruvian Embassy in Chile
Annex 87. Note No. 6-4/02 of 3 January 1996 from the Ministry of Foreign
Affairs of Peru to the Chilean Embassy in Peru, enclosing an aide-
mémoire
314Annex 88. Fax No. 024 of 25 February 1999 from the Deputy Harbour Master
of Arica to the Consul of Peru in Arica
Annex 89. Fax No. 408/99 of 24 September 1999 from the Harbour Master of
Arica to the Harbour Master of Ilo and the Consul General of Peru
in Arica
Annex 90. Letter No. 8-10-B-C/0150-2000 of 3 April 2000 from the Consul
General of Peru in Arica to the Harbour Master of Arica
Annex 91. Letter No. 8-10-B-C/0169-2000 of 14 April 2000 from the Consul
General of Peru in Arica to the Harbour Master of Arica
Annex 92. Note No. 081 of 26 April 2000 from the United States Embassy in
Chile to the Ministry of Foreign Affairs of Chile
Annex 93. Fax No. 226-00 of 28 June 2000 from the Harbour Master of Ilo to
the Harbour Master of Arica
Annex 94. Letter No. 8-10-B-C/0353-2000 of 5 September 2000 from the
Consul General of Peru in Arica to the Harbour Master of Arica
Annex 95. Fax No. 417 of 4 October 2000 from the Harbour Master of Arica
to the Harbour Master of Ilo
Annex 96. Letter No. 8-10-B-C/0354-2000 of 6 October 2000 from the Consul
General of Peru in Arica to the Harbour Master of Arica
Annex 97. Letter No. 8-10-B-C/0378-2000 of 19 October 2000 from the
Consul General of Peru in Arica to the Harbour Master of Arica
Annex 98. Fax No. 211/08 of 9 August 2001 from the Harbour Master of
Arica to the Harbour Master of Ilo
Annex 99. Letter No. 8-10-B-C/323-2001 of 10 August 2001 from the Consul
General of Peru in Arica to the Harbour Master of Arica
Annex 100. Aide-mémoire of 25 January 2002 from the Ministry of Foreign
Affairs of Chile to the Peruvian chargé d’affaires in Chile,
transcribed in a message of the same date from the Ministry of
Foreign Affairs of Chile to the Chilean Embassy in Peru
315Annex 101. Note No. (DSL) 6-4/112 of 6 November 2002 from the Ministry of
Foreign Affairs of Peru to the Chilean Embassy in Peru
Annex 102. Fax No. 211-2002 of 9 November 2002 from the Harbour Master
of Ilo to the Harbour Master of Arica
Annex 103. Note No. 090 of 3 April 2003 from the United States Embassy in
Chile to the Ministry of Foreign Affairs of Chile
Annex 104. Letter No. 8-10-B-C/389-2004 of 30 September 2004 from the
Consul General of Peru in Arica to the Maritime Governor of Arica
Annex 105. Note No. 48 of 24 May 2005 from the Ministry of Foreign Affairs
of Chile to the Peruvian Embassy in Chile
Annex 106. Note No. 17,192/05 of 28 October 2005 from the Minister of
Foreign Affairs of Chile to the Peruvian Ambassador to Chile
Annex 107. Note No. 17359/05 of 3 November 2005 from the Minister of
Foreign Affairs of Chile to the Peruvian Ambassador to Chile
Annex 108. Note RE (GAB) No. 6-4-A/157 of 11 November 2005 from the
Minister of Foreign Affairs of Peru to the Chilean Ambassador to
Peru
Annex 109. Note No. 1415/07 of 12 August 2007 from the Minister of Foreign
Affairs of Chile to the Peruvian Ambassador to Chile
Annex 110. Fax message of 15 January 2008 from the Chief of the Liaison and
Protocol Department of the Air Force of Peru to the Directorate of
the Air and Space Affairs of the Ministry of Foreign Affairs of Peru
and to the Air Force Attaché of the Chilean Embassy in Peru
O FFICIAL TEXTS , FFICIAL STATEMENTS AND
INTERNAL D OCUMENTS : CHILE
Annex 111. Note No. 04938 of 27 June 1952 from the Minister of Foreign
Affairs to the Chilean Ambassador to Ecuador
Annex 112. Confidential Note No. 68 of 27 November 1954 from the Ministry
of Foreign Affairs to the Chilean Ambassador to Peru
316Annex 113. Confidential Note No. 6 of 31 January 1955 from the Minister of
Foreign Affairs to the Chilean Ambassador to Peru
Annex 114. Confidential Note No. 94/15 of 3 February 1955 from the Chilean
Ambassador to Peru to the Minister of Foreign Affairs
Annex 115. Note No. 2890 of 25 March 1955 from the Minister of Foreign
Affairs to the Director of the Official Gazette
Annex 116. Cable No. 33 of 31 March 1955 from the Chilean Ambassador to
Peru to the Minister of Foreign Affairs
Annex 117. Decree No. 130 of 11 February 1959: Regulation on Permits for
Fishing by Foreign Vessels in Chilean Territorial Waters
Annex 118. Letter No. 12115/1 of 10 February 1961 from the Maritime
Governor of Arica sent to,inter alios, fishing companies INDO and
EPERVA
Annex 119. Letter No. 12115/2 of 11 February 1961 from the Maritime
Governor of Arica to the President of the Union of Fishermen in
Arica
Annex 120. Confidential Letter No. 1043/72 of 27 September 1961 from the
Chilean chargé d’affaires in Peru to the Minister of Foreign Affairs
Annex 121. Note No. 12115/5 of 30 January 1963 from the Maritime Governor
of Arica to the Director of the Coast and Merchant Navy
Annex 122. Cable No. 48 of 23 March 1966 from the Ministry of Foreign
Affairs to the Chilean Embassy in Peru
Annex 123. Aerogram No. 14 of 22 May 1967 from the Consul General of
Chile in Tacna to the Ministry of Foreign Affairs
Annex 124. Instrument of ratification of the Agreement Relating to a Special
Maritime Frontier Zone signed by the President of Chile on
21 September 1967
Annex 125. Note No. 397 of 26 September 1967 from the Minister of National
Defence to the Minister of Foreign Affairs
317Annex 126. Note No. 21 of 2 November 1967 from the Governor of Arica to
the Minister of the Interior
Annex 127. Statement by Mr. Palza on 3 December 1969 in the Chamber of
Deputies on the “Installation in Arica (Tarapaca) of the alignment
lighthouse for demarcating the maritime boundary zone with Peru”
Annex 128. Note No. 12115/6 of 12 May 1971 from the Maritime Governor of
Arica to the Director of International Relations of the Ministry of
Foreign Affairs
Annex 129. Notice to Mariners No. 57 of 1972 issued by SHOA
Annex 130. Notice to Mariners No. 152 of 1972 issued by SHOA
Annex 131. Decree No. 711 of 22 August 1975 approving the Regulation on the
Control of Marine Scientific and Technological Investigations in
the maritime zone of national jurisdiction
Annex 132. Decree No. 1,190 of 29 December 1976 on the Organization of the
Maritime Search and Rescue Service of the Chilean Navy
Annex 133. SHOA, Derrotero de la Costa de Chile, Vol. 1: From Arica to
Chacao Canal, 6th edn, 1980
Annex 134. Decree No. 408 of 17 December 1986 on the Prohibition of Use of
Fishing Equipment for Dragging and Fencing in the Indicated Area
and Repealing the Specified Decree
Annex 135. SHOA, Derrotero de la Costa de Chile, Vol. 1: From Arica to
Chacao Canal, 7th edn, 1988
Annex 136. Supreme Decree No. 453 of 3 May 1989 Creating the Fourth Naval
Zone
Annex 137. Law No. 18,892 (as amended), General Law on Fisheries and
Aquaculture, consolidated text published in Decree No. 430 of 21
January 1992
Annex 138. Decree No. 704 of 29 October 1990 modifying Decree No. 1190 of
29 December 1976 on the Organization of the Maritime Search and
Rescue Service of the Navy of Chile
318Annex 139. Extracts of the Logbook of the Chilean Navy patrol boatSalinas,
for 30 March 1995
Annex 140. SHOA, Derrotero de la Costa de Chile, V o l . :1Fr o m A r i c a t o
Chacao Canal, 8th edn, 1995
Annex 141. Extracts of the Logbook of the Chilean Navy patrol boatMachado,
for 26 February and 25 March 1996
Annex 142. SHOA Resolution No. 13270/A-21 VRS of 1 March 1996
Annex 143. SHOA Resolution No. 13270/64/VRS of 22 December 1997
Annex 144. SHOA Resolution No. 13270/71/VRS of 26 November 1999
Annex 145. SHOA Resolution No. 13270/72/VRS of 26 November 1999
Annex 146. SHOA Resolution No. 13270/37/VRS of 9 June 2000
Annex 147. SHOA Resolution No. 13270/63/VRS of 3 October 2000
Annex 148. SHOA Resolution No. 13270/69/VRS of 18 October 2000
Annex 149. SHOA, Derrotero de la Costa de Chile, Vol. 1: From Arica to
Chacao Canal, 9th edn, 2001
Annex 150. SHOA Resolution No. 13270/6/VRS of 11 January 2002
Annex 151. SHOA Resolution No. 13270/4/VRS of 12 January 2000
Annex 152. Extracts of the Logbook of the Chilean Navy patrol boatArica, for
12 November and 9 December 2002
Annex 153. Libro de la Defensa Nacional de Chile [Defence White Book of
Chile], 2002
Annex 154. SHOA Resolution No. 13270/04/113/VRS of 23 July 2003
Annex 155. SHOA Resolution No. 13270/04/266/VRS of 22 December 2004
Annex 156. SHOA Resolution No. 13270/04/263/VRS of 28 September 2005
319Annex 157. Extracts of the Logbook of the Chilean Navy patrol boat Iquique,
for 27, 28 and 29 June 2006
Annex 158. Fax No. 555 of 5 September 2007 from the Chilean Air Force
Attaché in Peru to the Directorate of International Relations of the
Air Force of Chile;
Fax No. 654 of 12 October 2007 from the Chilean Air Force
Attaché in Peru to the Directorate of International Relations of the
Air Force of Chile;
Fax No. 697-A of 13 November 2007 from the Chilean Air Force
Attaché in Peru to the Directorate of International Relations of the
Air Force of Chile
Annex 159. SHOA, List of Lights, 17th edn, 2008
320 VOLUME IV
OFFICIAL TEXTS , FFICIAL STATEMENTS ,
OFFICIALLY A UTHORIZED TEXTS AND INTERNAL DOCUMENTS : PERU
Annex 160. Reservations made by Peru to the Pact of Bogotá, 1948
Annex 161. Supreme Resolution of 11 April 1953
Annex 162. Official Communiqué of 16 November 1954 issued by the
Directorate-General of Information
Annex 163. D e c i s i o n o f t h e H a r b o u r M a s t e r o f P a i t a i n t h e m a t t e r o f t h e
offences in the Maritime Zone of Peru, 26 November 1954
Annex 164. Law No. 15720 of 11 November 1965: Law on Civil Aeronautics
of Peru as published in United Nations Legislative Series, National
Legislation and Treaties relating to the Law of the Sea, 1974, p. 27
Annex 165. Supreme Resolution No. 0478-69-RE of 13 August 1969
Annex 166. Official Communiqué of 22 August 1969 issued by the Ministry of
Foreign Affairs
Annex 167. Supreme Decree No. 261-69-AP of 12 December 1969 on the
Regulation of Titles I, II and III of Decree-Law No. 17752: General
Law on Waters
Annex 168. E. Mercado Jarrín, “Maritime Sovereignty: Basis for the Peruvian
Position”, speech delivered on 11 May 1970 in Lima at a
conference organized by the Ministry of Foreign Affairs for the
Diplomatic Corps accredited to Peru
Annex 169. Geographic Advisor’s Office of the National Institute of Planning
i n t h e O f f i c e o f t hAetssiHistótr,ico Geográfico y de
Paisajes Peruanos, 1963-1970
321Annex 170. Supreme Resolution No. 23 of 12 January 1955 as published by the
Ministry of Foreign Affairs, Instrumentos Nacionales e
Internacionales sobre Derecho del Mar, 1971
Annex 171. Regulation on the Visit and Stay of Foreign Warships at National
Ports and Transit through the Waters under the Sovereignty and
Jurisdiction of Peru, originally approved by Supreme Decree No.
004-77-MA of 22 March 1977 and modified by Supreme Decree
No. 080-93-MGP of 26 October 1993
Annex 172. Directorate of Hydrography and Navigation of the Navy, Derrotero
de la Costa del Perú, Vol. II, 1982
Annex 173. J.A. Benavides Estrada, Geografía del Perú y del Mundo, 1984,
approved by Resolution No. 0185 of 17 April 1984 of the Ministry
of Foreign Affairs
Annex 174. Supreme Decree No. 002-87-MA of 11 June 1987 approving the
Regulation of Captaincies and Maritime, Fluvial and Lacustrine
Activities
Annex 175. Directorate of Hydrography and Navigation of the Navy, Derrotero
de la Costa del Perú, Vol. II, 2ndedn, 1988
Annex 176. Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of
Ilo
Annex 177. Resolution No. 007-89-M of 5 June 1989 by the Harbour Master of
Ilo
Annex 178. Directorial Resolution No. 347-91-DC/MGP of 20 December 1991
of the Directorate-General of Captaincies and Coastguard
Annex 179. Political Constitution of Peru, 29 December 1993
Annex 180. Directorial Resolution No. 0313-94/DCG of 23 September 1994 of
the Directorate-General of Captaincies and Coastguard
Annex 181. Directorate of Hydrography and Navigation of the Navy, List of
Lights, 9th edn, 1998
Annex 182. Statement by the Minister of Foreign Affairs, 13 November 1999
322Annex 183. Peruvian Congress, Foreign Affairs Committee, Congreso y
Gestión Externa, Part I, Chapter IX “Congress and external issues
of the 1990s”, 1999
Annex 184. L. Quintanilla, Atlas del Perú y del Mundo, 1999, authorized for
circulation by Letter (DFL-CAR) No. 0-3-D/29 of the Ministry of
Foreign Affairs
Annex 185. Law No. 27261 of 9 May 2000: Law on Civil Aeronautics
Annex 186. National Institute of Statistics and InformationP, erú: Estadísticas
del Medio Ambiente 2000, 2000
Annex 187. Resolution No. 098-2000-M of 13 June 2000 by the Harbour
Master of Ilo
Annex 188. Resolution No. 149-2000-M of 2 November 2000 by the Harbour
Master of Ilo
Annex 189. Letter No. 4626 SGMD-D of 21 November 2000 from the Minister
of Defence to the Minister of Foreign Affairs
Annex 190. Ministry of Energy and Mines, Anuario Estadístico de
Hidrocarburos – Hydrocarbons Statistical Yearbook 2000
Annex 191. Law No. 27415 of 25 January 2001: Territorial Demarcation of the
Province of Tacna
Annex 192. Supreme Decree No. 028 DE/MGP of 25 May 2001 approving the
Regulation of the Law on the Control and Surveillance of
Maritime, Fluvial and Lacustrine Activities
Annex 193. Directorate of Hydrography and Navigation of the Navy, Derrotero
de la Costa del Perú, Vol. II, 3rd edn, 2001
Annex 194. Ministry of Agriculture, Perú: Estadística Agraria 2000, 2002
Annex 195. Ministerial Resolution No. 068-2002-PE of 15 February 2002 by
the Ministry of Production
Annex 196. IMARPE, Coastal Laboratory of Ilo,Identificación y Delimitación
de Bancos Naturales de Recursos Bentónicos en el Litoral de la
Región Tacna, 2003
323Annex 197. Transcript of an interview with the Minister of Foreign Affairs on
5 April 2004
Annex 198. Law No. 28611 of 13 October 2005: General Law of the
Environment
Annex 199. Official Communiqué RE/13-05 of 25 November 2005 issued by
the Ministry of Foreign Affairs
Annex 200. Official Communiqué RE 14-05 of 1 December 2005 issued by the
Ministry of Foreign Affairs
Annex 201. P e r u ’ s w i t h d r a w a l o f i t s r e s e r v a t i o n st o A r t i c l e sV ,
XXXIV, XXXV, and XLV of the Pact of Bogotá, 27 February
2006
Annex 202. Ministry of Production, Information and illustration of marine
resources management areas along the coast of Tacna, 2008
Annex 203. Examples of “Declaration for Weighing Anchor by Artisanal
Fishing Vessels” [Declaración de Zarpe Embarcaciones Pesqueras
Artesanales] issued by the Harbour Master of Ilo
TEXTS AND DOCUMENTS OF T HIRD STATES
Annex 204. Ecuadorean Presidential Decree of 15 April 1836 approving the
Regulation on the Coastguard and Measures for Preventing and
Punishing the Maritime Smuggling
Annex 205. Ecuadorean Presidential Decree No. 53 of 7 October 1939
establishing the Limits of the Maritime Zone of Security
Annex 206. Press Release (for advance release) of 7 August 1945 issued by the
United States Department of the Interior, Office of the Coordinator
of Fisheries
Annex 207. Ecuadorean Legislative Decree of 21 February 1951 relating to
Territorial Waters
Annex 208. Ecuadorean Decree No. 275 of 7 February 1955
324Annex 209. Internal note of 17 January 1958 of the United Kingdom Foreign
Office authored by the Legal Advisor Sir Gerald Fitzmaurice
Annex 210. Ecuadorean Decree No. 2556 of 9 November 1964
Annex 211. Ecuadorean Decree No. 1542 of 10 November 1966 modifying
Article 633 of the Civil Code
Annex 212. Ecuadorean Supreme Decree No. 959-A of 28 June 1971
prescribing straight baselines for the measurement of the Territorial
Sea
Annex 213. United States Department of State, Office of the Geographer,
Limits in the Seas, No. 42: Straight Baselines: Ecuador, May 1972
Annex 214. Statement of Reasons of September 1975 by the Minister of
Foreign Affairs of Colombia before the Colombian Congress in
respect of the bill to approve the Agreement between Colombia and
Ecuador concerning Delimitation of Marine and Submarine Areas
and Maritime Cooperation
Annex 215. Presentation of 15 October 1975 by Senator Fernández before
Colombia’s Congressional Commission on International Relations
and National Defence of the bill approving the Colombia-Ecuador
delimitation agreement before the Congressional Commission on
International Relations and National Defence
Annex 216. United States Department of State, Office of the Geographer,
Limits in the Seas, No. 86: Maritime Boundary: Chile-Peru, July
1979
Annex 217. Grisbådarna: primary boundary lines proposed by Sweden and
Norway to the Tribunal and the boundary established by the
Tribunal, Figure submitted by the United States in Delimitation of
the Maritime Boundary in the Gulf of Maine Area (Canada/United
States of America), I.C.J. Pleadings, Vol. VIII, Map No. 30, (with
annotations added by Chile)
Annex 218. People’s Republic of China State Oceanic Administration Policy
Research Office, Collection of International Maritime Delimitation
Treaties, 1989
325Annex 219. United States Department of State, Office of Ocean Affairs, Limits
in the Seas, No. 108: Maritime Boundaries of the World, 1st
Revision, 1990
Annex 220. United States Department of State, Office of Ocean Affairs, Limits
in the Sea, No. 36: National Claims to Maritime Jurisdiction, 7th
Revision, 1995
Annex 221. Intervention by United States Senator Pell on freedom of overflight
in the Peruvian airspace beyond twelve nautical miles, United
States Congressional Record, 1995, Vol. 141, p. S9196.
Annex 222. United States Department of State, Office of Ocean Affairs, Limits
in the Seas, No. 36: National Claims to Maritime Jurisdictions, 8th
Revision, 2000
Annex 223. R e s o l u t i o n o f t h e N a t i o n a l C o n g r e s s o f E c u a d o r , 1 5 N o v e m b e r
2005
Annex 224. Press Release No. 660 of 2 December 2005 issued by the Ministry
of Foreign Affairs of Ecuador
D OCUMENTS OF INTERNATIONAL ORGANIZATIONS
Annex 225. Communication from the Republic of Chile on the Conclusion of
an Agreement between Chile and Peru regarding Tacna and Arica
during the Third Meeting of the Fifty-fifth Session of the Council
of League of Nations, 13 June 1929, at 10.30 a.m.
Annex 226. United Nations, Report of the Special Rapporteur to the ILC,
Second Session of the ILC, 1950
Annex 227. United Nations, Memorandum on the Regime of the High Seas
submitted by the Secretariat of the ILC, Second Session of the ILC,
1950
Annex 228. United Nations, Report of the ILC on its Second Session, 1950
Annex 229. United Nations, Summary Record of the 69th meeting of the ILC,
17 July 1950
326Annex 230. U n i t e d N a t i o n s , “ D r a f t A r t i c l e s o n t h e C o n t i n e n t a l S h e l f a n d
Related Subjects”, annexed to the Report of the ILC on its Third
Session, 1951
Annex 231. United Nations, Report on the Regime of the Territorial Sea by
Mr. J.P.A. François, Special Rapporteur, 1952
Annex 232. United Nations, Summary Record of the 171st meeting of the ILC,
24 July 1952
Annex 233. United Nations, Annex to the Second Report on the Regime of the
Territorial Sea by Mr. J.P.A. François, Special Rapporteur, 1953
Annex 234. United Nations, Regime of the Territorial Sea: Information and
Observations Submitted by Governments Regarding the Question
of the Delimitation of the Territorial Sea of Two Adjacent States,
1953
Annex 235. United Nations, “Chapter III on the Regime of the High Seas”,
annexed to Report of the ILC covering the Work of its Fifth
Session, 1953
Annex 236. United Nations, Report of the ILC on the Work of its Eighth
Session, 1956
Annex 237. Resolution XII adopted during the Fifth Ordinary Meeting of the
CPPS in Santiago on 30 September and 1 October 1957
Annex 238. Establishment of an integrated air route network suitable for the
efficient provision of air traffic services, Working paper presented
by Peru, LIM SAM/SAT, WP/31, 1961
Annex 239. Statement by Dr. García Sayán, “Al Cabo de 15 Años” in CPPS
Secretary-General, Convenios y Otros Documentos (1952-1966),
p. 1
Annex 240. CPPS Secretary-General, Infracciones en la Zona Marítima del
Pacífico Sur, January 1972
Annex 241. United Nations Office for Ocean Affairs and the Law of the Sea,
The Law of the Sea – Maritime Boundary Agreements (1942-1969),
1991
327Annex 242. United Nations, Office of Legal Affairs, Division for Ocean Affairs
and the Law of the Sea, Handbook on the Delimitation of Maritime
Boundaries, 2000
Annex 243. ICAO Inter-Office Memorandum of 3 February 2005 “Boundaries
of the Antofagasta and Lima FIRs” with Enclosures
Annex 244. United Nations Division for Ocean Affairs and the Law of the Sea,
Table of Claims to Maritime Jurisdiction as at 28 May 2008
PRESS A RTICLES
Annex 245. “El Tratado de Tacna y Arica ante el Congreso Pleno Peruano”, El
Diario Ilustrado, 27 June 1929
Annex 246. J. M. Peña Prado, Address to the Congress of Peru, reproduced in
La Crónica, 7 May 1955
Annex 247. “Señalan errores en medición del mar territorial peruano”, El
Comercio, 23 May 1956
Annex 248. J. Velando Ugarteche, “La Salida al Mar de Bolivia”, Expreso, 19
May 1967, reproduced in a collection of his written work, 1988
328 VOLUMEV
W RITINGS OF P UBLICISTS IN ALPHABETICAL ORDER )
Annex 249. F. A. Ahnish, The International Law of Maritime Boundaries and
the Practice of States in the Mediterranean Sea, 1993
Annex 250. F. Altuve – Febres Lores,El Perú y la Oceanopolítica, 1998
Annex 251. A. Arias-Schreiber, “La Nature Juridique de la Zone Économique
Exclusive”, in Académie Diplomatique Internationale, Propos sur
le nouveau droit de la mer – Colloque, 1985
Annex 252. V. A. Belaúnde, Trayectoria y Destino – Memorias Completas,
Vol. II, 1967
Annex 253. E. D. Brown, Sea-Bed Energy and Mineral Resources and the Law
of the Sea, Vol. III – Selected Documents, Tables and Bibliography,
1986
Annex 254. R. R. Bundy, “State Practice in Maritime Delimitation”, in G. H.
Blake (ed.), World Boundaries volume 5: Maritime Boundaries,
1994, p. 18
Annex 255. J. L. Bustamante y Rivero, Derecho del Mar – La Doctrina
Peruana de las 200 Millas, 1972
Annex 256. J. Castañeda, “Les Positions des États Latino-Américains”,
Actualités du droit de la mer, 1973, p. 158
Annex 257. B . C o n f o r t i a n d G . F Atlan ofathleaneacbid ( e d s ) ,
Boundaries, Part Two , 1987
Annex 258. R. Dupuy and D. Vignes (eds),A Handbook on the New Law of the
Sea, Vol. I, 1991
Annex 259. M. Evans, Relevant Circumstances and Maritime Delimitation,
1989
329Annex 260. W. C. Extavour, The Exclusive Economic Zone, 1979
Annex 261. E. Ferrero Costa, “Fundamento de la Soberanía Marítima del Perú
Hasta las 200 Millas”, in Pontificia Universidad Católica del Perú,
Derecho, No. 32, 1974, p. 38
Annex 262. G. Francalanci and T. Scovazzi (eds),Lines in the Sea, 1994
Annex 263. J. P. A. François,Handboek van het Volkenrecht, 1949
Annex 264. Kuen-Chen Fu, Equitable Ocean Boundary Delimitation – On
Equitable Principles and Ocean Boundary Delimitation, 1989
Annex 265. R. Galindo Pohl, “The Exclusive Economic Zone in the Light of
Negotiations of the Third United Nations Conference on the Law of
the Sea”, in F. Orrego Vicuña (ed.), The Exclusive Economic Zone
– A Latin American Perspective, 1984, p. 31
Annex 266. E. García Sayán, Notas sobre la Soberanía Marítima del Perú –
Defensa de las 200 millas de mar peruano ante las recientes
transgresiones, 1955
Annex 267. F. V. García-Amador, “The Origins of the Concept of an Exclusive
Economic Zone: Latin American Practice and Legislation”, in
F. Orrego Vicuña (ed.), The Exclusive Economic Zone – A Latin
American Perspective, 1984, p. 7
Annex 268. G. González Videla, Memorias, Vol. 2, 1975
Annex 269. F o r e w o r d b y J . S a l v a d o r L a r aLímiite P . G o y e s A r r o y o ,
Marítimo: Ecuador-Perú, 2007, p. xi.
Annex 270. Yuan Gujie, The Theory and Practice of International Maritime
Delimitation, 2000
Annex 271. R. Hodgson and R. Smith, “Boundaries of the Economic Zone”, in
E. Miles and J. K. Gamble, Jr. (eds), Law of the Sea: Conference
Outcomes and Problems of Implementation, 1977, p. 183
330Annex 272. R. Hodgson, “The Delimitation of Maritime Boundaries between
Opposite and Adjacent States through the Economic Zone and the
Continental Shelf: Selected State Practice”, in T. A. Clingan, Jr.
(ed.), Law of the Sea: State Practice in Zones of Special
Jurisdiction, 1982
Annex 273. A. Jaffe Carbonell, Venezuela y la Evolución del Derecho del Mar
en Materia de Delimitación Marítima, 1996
Annex 274. S. P. Jagota, “Maritime Boundary”, Recueil des cours, Vol. 171,
1981-II, p. 83
Annex 275. H. W. Jayewardene, The Regime of Islands in International Law,
1990
Annex 276. R. Jennings and A. Watts (eds), Oppenheim’s International Law,
Vol. 1: Peace, Parts 2 to 4, 9th edn, 1992
Annex 277. Zhou Jian, International Law Case Studies on Island Sovereignty
and Maritime Delimitation, 1999
Annex 278. Gao Jianjun,International Maritime Delimitation Study – Study on
the Rule of Equidistance/Special Circumstances, 2005
Annex 279. E. Jiménez de Aréchaga, “South American Maritime Boundaries”,
in J. I. Charney and L. M. Alexander (eds),International Maritime
Boundaries, Vol. I, 1993, p. 285
Annex 280. E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and L. M.
Alexander (eds), International Maritime Boundaries, Vol. ,I 1993,
p. 793
Annex 281. E. Jiménez de Aréchaga, “Colombia-Ecuador”, in J. I. Charney and
L. M. Alexander (eds),International Maritime Boundaries, Vol. I,
1993, p. 809
Annex 282. E. Jiménez de Aréchaga, “Chile-Peru – Report 3-5 (Corr. 1,
Add. 1)”, in J. I. Charney and R. W. Smith (eds), International
Maritime Boundaries, Vol. IV, 2002, p. 2639
Annex 283. D. M. Johnston, The Theory and History of Ocean Boundary-
Making, 1988
331Annex 284. D. M. Johnston and M. J. Valencia, Pacific Ocean Boundary
Problems – Status and Solutions, 1991
Annex 285. B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the
New Law of the Sea, 1989
Annex 286. G. Labrecque, Les frontières maritimes internationales –
Géopolitique de la délimitation en mer, 2004
Annex 287. C. Lara Brozzesi, La Delimitación Marítima entre el Ecuador y el
Perú: Nuevas Aclaraciones, 2005
Annex 288. H. Lauterpacht, The Development of International Law by the
International Court, 1958
Annex 289. L . L u c c h i n i alncdk eMl r,. i t d e l a M e :r , T o m e I I
Délimitation – Navigation Pêche, 1996
Annex 290. N. Marques Antunes, Towards the Conceptualisation of Maritime
Delimitation – Legal and Technical Aspects of a Political Process,
2003
Annex 291. P. Martínez de Pinillos, “Geografía y superficie de nuestro mar”, in
Revista Geográfica del Perú, December 1956, p. 147
Annex 292. T. L. McDorman, K. P. Beauchamp, D. M. Johnston, Maritime
Boundary Delimitation: an Annotated Bibliography, 1983
Annex 293. M. W. Mouton, The Continental Shelf, 1952
Annex 294. S. N. Nandan, “The Exclusive Economic Zone: A Historical
Perspective”, in Essays in memory of Jean Carroz: The Law and
the Sea, 1987, p. 171
Annex 295. S. Nandan and S. Rosenne (eds),United Nations Convention on the
Law of the Sea 1982: A Commentary, Vol. II, 2002-2003
F. Novak and L. García-Corrochano, Derecho Internacional
Annex 296.
Público, Tome II, Vol. 1, 2001
Annex 297. K. G. Nweihed, Frontera y Límite en su Marco Mundial, 2nd edn,
1992
332Annex 298. D. P. O’Connell, The International Law of the Sea, Vol. I, 1982
Annex 299. L. Oppenheim, International Law: A Treatise, Vol. 1: Peace
(H. Lauterpacht (ed.)), 8th edn, 1955
Annex 300. F. Orrego Vicuña, “The Exclusive Economic Zone in a Latin
American Perspective: An Introduction”, in F. Orrego Vicuña (ed.),
The Exclusive Economic Zone – A Latin American Perspective,
1984, p. 1
Annex 301. F. Orrego Vicuña, The Exclusive Economic Zone: Regime and
Legal Nature under International Law, 1989
Annex 302. F. Orrego Vicuña, “International Ocean Developments in the
Southeast Pacific: The Case of Chile”, in J. P. Craven, J. Schneider
and C. Stimson (ed Ths),International Implications of Extended
Maritime Jurisdiction in the Pacific, 1989, p. 221
Annex 303. F. M. Pfirter de Armas, “¿Perú: la marcha hacia el oeste?”, in
R. Zacklin (ed.), El Derecho del Mar en Evolución: La
Contribución de los Países Americanos, 1975, p. 295
Annex 304. J. R. V. Prescott,The Political Geography of the Oceans, 1975
Annex 305. J. R. V. Prescott, The Maritime Political Boundaries of the World,
1985
Annex 306. J. R. V. Prescott and C. Schofield, The Maritime Political
Boundaries of the World, 2nd edn, 2005
Annex 307. P. J.-M. Reuter, “Une ligne unique de délimitation des espaces
maritimes?”, in Mélanges Georges Perrin, 1984, p. 251
Annex 308. S. Rhee, “Equitable Solutions to the Maritime Boundary Dispute
between the United States and Canada in the Gulf of Maine”,
American Journal of International Law, Vol. 75, 1981, p. 590
Annex 309. J. A. Roach and R. W. Smith,United States Responses to Excessive
Maritime Claims, 2nd edn, 1996
333Annex 310. T. Scovazzi, “Turkey-Soviet Union (Territorial Sea)” in J. I.
Charney and L. M. Alexander (eds), International Maritime
Boundaries, Vol. II, 1993, p. 1685
Annex 311. G. J. Tanja, The Legal Determination of International Maritime
Boundaries, 1990
Annex 312. A. Ulloa, Para la Historia Internacional y Diplomática del Perú:
Chile, 1987
Annex 313. L. Valencia Rodríguez, Análisis de la Posición Jurídica
Ecuatoriana en las Doscientas Millas, 1980
Annex 314. E. Vergaray Lara, “El Mar del Perú es una Región Geográfica”,
Asociación Nacional de Geógrafos Peruanos, Anales, Vol. III, 1962
Annex 315. T. Wolff, Peruvian-United States Relations over Maritime Fishing,
Law of the Sea Institute University of Rhode Island, Occasional
Paper No. 4, 1970
Annex 316. R. Young, “Recent Developments with Respect to the Continental
Shelf”, American Journal of International Law, Vol. 42, 1948,
p. 849
Annex 317. J. Zavala, Consenso y Confrontación en la Delimitación de la ZEE
y de la Plataforma Continental, 1998
O THER D OCUMENTS
Annex 318. Perupetro, Estadística Petrolera 2008
Annex 319. J. A. del Busto Duthurburu, Los Peruanos en la Antártida, 1989
Annex 320. FAO Fisheries Statistics Query Results
334 LIST OF FIGURES
(VOLUME VI)
Figure 1. Use of parallels as agreed maritime boundaries on the west coast
of South America
Figure 2. Sketch-map showing Peru’s alta mar claim
Figure 3. Schematic illustration of the perimeter of Peru’s maritime zone
under the 1947 Supreme Decree
Figure 4. Sketch-map of Peru’s maritime zone by Minister García Sayán
(1955)
Figure 5. Sketch-map of Peru’s maritime zone by Dr. Vergaray Lara (1962)
Figure 6. Neutrality zone under the Declaration of Panama, 3 October 1939
Figure 7. Ecuador-Peru maritime boundary and Peru’s interpretation of
Article IV of the Santiago Declaration
Figure 8. Seaward extent of maritime zones of Chile and Peru at the time of
the Santiago Declaration
Figure 9. Co mpar iso n o f t he o ut er limit s o f mar it ime zo nes o f C hile a nd
Peru using tracé parallèle and envelope of arcs of circles
Figure 10. Alta mar area arising from the agreed maritime boundary between
Chile and Argentina (1984)
Figure 11. Chile-Peru Special Maritime Frontier Zone under the Lima
Agreement of 1954
Figure 12. Sketch-map of Peru’s maritime dominion by Professor Martínez
de Pinillos (1956)
Figure 13. Sketch-map of the Chile-Peru maritime boundary by the United
States Department of State (1979)
Figure 14. Sketch-map of the Chile-Peru maritime boundary by the People’s
Republic of China State Oceanic Administration Policy Research
Office (1989)
335Figure 15. Sketch-map of the Chile-Peru maritime boundary by the United
Nations Office for Ocean Affairs and the Law of the Sea (1991)
Figure 16. Sketch-map of the Chile-Peru maritime boundary by Professors
Conforti and Francalanci (1987)
Figure 17. Sketch-map of the Chile-Peru maritime boundary by Professor
Prescott (1985)
Figure 18. Sketch-map of the Chile-Peru maritime boundary by Mr. R. Bundy
(1994)
Figure 19. Sketch-map of the Chile-Peru and Peru-Ecuador maritime
boundaries by Professor Altuve – Febres Lores (1998)
Figure 20. Extract from the Rules of Engagement of the Chilean Navy
(1990s)
Figure 21. Boundary implied by Peru’s report of the Diez Canseco incident
(1966), plotted on an extract of Peruvian chart 325
Figure 22. Signalling of the maritime boundary through alignment of the
Chilean and Peruvian lighthouses on Hito No. 1
Figure 23. Operation of Chilean and Peruvian lighthouses signalling the
maritime boundary
Figure 24. Point 266 of Peru’s baselines plotted on Peru’s current large-scale
chart (chart 3255, 3rd edition 1985, revised 30 October 2002)
Figure 25. Chile’s benthonic management areas under Supreme Decree
No. 210 (as amended)
Figure 26. Marine-resources management areas in Peru’s southernmost
region of Tacna
Figure 27. Diagram showing nearshore marine-resources management areas
of Chile and Peru in the vicinity of the maritime boundary
Figure 28. Locations where Peruvian vessels have been arrested by Chile for
violating the maritime boundary, 1984 and 1994-2009
336Figure 29. Peruvian chart: Flight Information Regions (FIRs), Air-Route
Navigation Chart — Upper Airspace
Figure 30. Authorized points of entry into and exit from the Peruvian airspace
Figure 31. Scientific voyage authorized by the Chilean Navy: Hespérides
(1996)
Figure 32. Scientific voyage authorized by the Chilean Navy: Melville (1997)
Figure 33. Scientific voyage authorized by the Chilean Navy: Merlion and
Beach Surveyor (1999)
Figure 34. Scientific voyage authorized by the Chilean Navy: Melville (2000)
Figure 35. Scientific voyage authorized by the Chilean Navy: Roger Revelle
(2003)
Figure 36. Sketch-map in the CPPS report on the second joint regional
oceanographic research (1999) showing the oceanographic stations
of the national institutions of its Member States and the routes
taken by their research ships
Figure 37. Sketch-maps of Peru’s maritime zone in J. A. Benavides Estrada,
Geografía del Perú y del Mundo, 1984, approved by Resolution
No. 0185 of 17 April 1984 of the Ministry of Foreign Affairs of
Peru
Figure 38. Sketch-maps of Peru’s maritime zone in J. A. Benavides Estrada,
A. Marín del Águila, O. Díaz Alva and A. Soto Sánchez, Escuela
Nueva, Enciclopedia Escolar, 1982, approved by Resolution
No. 0405 of 26 August 1982 of the Ministry of Foreign Affairs of
Peru
Figure 39. Sketch-maps of Peru’s maritime zone in J. A. Benavides Estrada,
Geografía: Atlas del Perú y del Mundo, 1983, approved by
Ministerial Resolution No. 0016-82-ED of the Ministry of
Education and by Ministerial Resolution No. 404-82-RE of the
Ministry of Foreign Affairs of Peru
337Figure 40. Sketch-maps of Peru’s maritime zone in J. A. Benavides Estrada,
Geografía, 1992, approved by Resolution No. 0611 of
20 December 1991 of the Ministry of Foreign Affairs of Peru and
Decree No. 032 of 10 March 1992 of the National Institute of
Research and Development of Education of Peru
Figure 41. Sketch-maps of Peru’s maritime zone in L. Quintanilla, Atlas del
Perú y del mundo, 1999, approved by Letter (DFL-CAR) No. 0-3-
D/29 of the Ministry of Foreign Affairs of Peru
Figure 42. Sketch-map of the Ecuador-Peru maritime boundary and the
Ecuadorean baselines by the United States Department of State
(1972)
Figure 43. Sketch-map of Peru’s maritime zone in G. Pons,Historia del Perú.
El Perú Contemporáneo, undated, authorized by Ministerial
Resolution No. 4284 of 21 March 1961 of the Ministry of Public
Education of Peru
Figure 44. Sketch-map of Peru’s maritime zone in J. A. Benavides Estrada,
Geografía del Perú y del Mundo: Política y Económica, Segundo
Año de Educación Secundaria, 12th edn., undated, authorized by
Ministerial Resolution No. 612 of 26 February 1966 and ratified
by Ministerial Resolution No. 0344 of 7 March 1969, both issued
by the Ministry of Public Education of Peru
Figure 45. Sketch-maps of Peru’s maritime zone in J. Villanueva Sotomayor,
Geografía, Primer Grado de Educación Secundaria, undated,
authorized by Ministerial Resolution No. 587-86-ED of 10
September 1986 of the Ministry of Education of Peru
Figure 46. Sketch-map of Peru’s maritime zone in J. Villanueva Sotomayor,
Geografía, Segundo Grado de Educación Secundaria, 1994,
winner of the national competition convened by the Ministry of
Education in 1994
Figure 47. Sketch-map of Peru’s maritime zone in J. A. Benavides Estrada,
Geografía del Perú, Primer Grado de Educación Secundaria,
undated, in accordance with the official educational curriculum of
1982
338Figure 48. Sketch-map of Peru’s maritime zone in J. A. Benavides Estrada
and C. A. Benavides Aquije, Geografía (Geopolítica), Quinto
Grado de Educación Secundaria, 3rd edn, 2001, in accordance
with the official educational curriculum
Figure 49. Sketch-map of Peru’s maritime zone in J. A. Benavides Estrada,
Geografía 3, Tercer Grado de Educación Secundaria, 7th edn,
2003, in accordance with the official educational curriculum
Figure 50. Sketch-map of Peru’s maritime zone in P. Díaz Suárez, M. Narrea
Delgado and J. A. Benavides Estrada, Historia del Perú en el
Proceso Americano y Mundial, Quinto Grado de Secundaria,
2003, in accordance with the official educational curriculum
Figure 51. Sketch-map of Peru’s maritime zone in J. A. Benavides Estrada,
Geografía del Perú, Quinto Grado de Primaria, 2nd edn, undated,
in accordance with the official educational curriculum
Figure 52. Sketch-map of Peru’s maritime zone in G. Pons,Historia del Perú,
República, Cuarto Año de Secundaria, undated, in accordance
with the official educational curriculum
Figure 53. Sketch-map of Peru’s maritime zone in J. A. Benavides Estrada,
Geografía, Primer Año de Educación Secundaria, 2nd edn, 1979,
in accordance with the official educational curriculum
Figure 54. Sketch-map of Peru’s maritime zone in J. A. Benavides Estrada
Geografía del Perú y del Mundo, Tercer Grado de Educación
Secundaria, 3rd edn, 1984, in accordance with the official
educational curriculum
Figure 55. Sketch-map of Peru’s maritime zone in D. S. Sotelo Apolaya and
C. Sandoval Dávila, Geografía 5: Introducción a la Geopolítica,
undated, in accordance with the official educational curriculum
Figure 56. Sketch-map of Peru’s maritime zone in L. Navarrete L., Gran
Atlas Universal y del Perú, undated, in accordance with the
official educational curriculum
Figure 57. Sketch-map of Peru’s maritime zone in G. Romero A., ¿De Quién
es el Mar?, 1975
339Figure 58. Sketch-maps of Peru’s maritime zone in J. A. Benavides Estrada y
C.A. Benavides Aquije, Atlas del Perú y del Mundo para
Educación Primaria, 2003
Figure 59. Sketch-map of Peru’s maritime zone in J. A. Benavides E., P. Díaz
S. and M. Narrea D.,Historia y Geografía, 2003
Figure 60. Sketch-map of Peru’s maritime zone in A. Paredes Galván,
Geografía, 2005
Figure 61. Sketch-map of Peru’s maritime zone in Asociación Fondo de
Investigadores y Editores, Compendio Académico de Geografía,
2007
Figure 62. Sketch-map of Peru’s maritime zone in Fondo Editorial Navarrete,
Geografía del Perú y del Mundo 5, Para Aprender, undated
Figure 63. Sketch-map of Peru’s maritime zone in J. Villanueva Sotomayor,
Geografía, Primer Grado de Educación Secundaria, undated
340 LIST OF DOCUMENTS DEPOSITED WITH THE REGISTRY
TREATIES AND INTER-STATE ACTS
1. Declaration of Viña del Mar of 10 February 1984
2. Protocol on the Programme for Regional Study of the
Phenomenon “El Niño” in the South-East Pacific, signed at Callao
on 6 November 1992
3. Final Minutes of Understanding of the Fourth Bilateral Meeting
bet wee n t he Co mma nd ers o f t he Fro nt ier Na va l Zo nes o f C hile
and Peru, 13 July 1995
4. Framework Agreement for the Conservation of the Living Marine
Resources on the High Seas of the South-East Pacific, signed at
Santiago on 14 August 2000 (not in force) (also known as the
“Galápagos Agreement”)
5. Final Minutes of Understanding of the Twelfth Bilateral Meeting
between Commanders of the Frontier Naval Zones between 21 and
25 July 2003
6. Minutes of the Second Meeting of the Chile-Ecuador Bilateral
Inter-Ministerial Council of 6-7 September 2009
RECORDS OF INTERNATIONAL C ONFERENCES
7. Minutes of the Third Session of the Third Commission of the
Ninth Inter-American Conference, 27 April 1948
8. United States Department of State, Santiago Negotiations on
Fishery Conservation Problems, 14 September – 5 October 1955
341 C ORRESPONDENCE BETWEEN S TATES
AND BETWEEN STATES AND INTERNATIONAL O RGANIZATIONS
9. Note No. 468/51 of 7 July 1952 from the Chilean Ambassador to
Ecuador to the Minister of Foreign Affairs of Ecuador
10. Note No. 141 (1270/12/54) of 12 August 1954 from the British
Embassy in Chile to the Ministry of Foreign Affairs of Chile
11. Note No. 276 of 4 March 1955 from the United States Ambassador
to Peru to the Minister of Foreign Affairs of Peru, enclosing an
aide-mémoire
12. Note No 124-18 of 17 October 1995 from the Ministry of Foreign
Affairs of Spain to the Ministry of Foreign Affairs of Chile
13. Note No. 6-4/02 of 3 January 1996 from the Ministry of Foreign
Affairs of Peru to the Chilean Embassy in Peru, enclosing an aide-
mémoire
14. Note No. 081 of 26 April 2000 from the United States Embassy in
Chile to the Ministry of Foreign Affairs of Chile
15. Note No. 090 of 3 April 2003 from the United States Embassy in
Chile to the Ministry of Foreign Affairs of Chile
O FFICIALT EXTS , FFICIAL STATEMENTS AND
INTERNAL DOCUMENTS : CHILE
16. SHOA, Derrotero de la Costa de Chile, Vol. 1: From Arica to
Chacao Canal, 6th edn, 1980
17. SHOA, Derrotero de la Costa de Chile, Vol. 1: From Arica to
Chacao Canal, 7th edn, 1988
18. SHOA, Derrotero de la Costa de Chile, Vol. 1: From Arica to
Chacao Canal, 8th edn, 1995
19. SHOA Resolution No. 13270/A-21 VRS of 1 March 1996
34220. SHOA Resolution No. 13270/71/VRS of 26 November 1999
21. SHOA, Derrotero de la Costa de Chile, Vol. 1: From Arica to
Chacao Canal, 9th edn, 2001
O FFICIALT EXTS , FFICIAL STATEMENTS , OFFICIALLY
AUTHORIZED T EXTS AND INTERNAL D OCUMENTS : ERU
22. E. Mercado Jarrín, “Maritime Sovereignty: Basis for the Peruvian
Position”, speech delivered on 11 May 1970 in Lima at a
conference organized by the Ministry of Foreign Affairs for the
Diplomatic Corps accredited to Peru
23. Geographic Advisor’s Office of the National Institute of Planning
in the Office of the President,Atlas Histórico Geográfico y de
Paisajes Peruanos, 1963-1970
24. Ministry of Foreign Affairs of Peru, Instrumentos Nacionales e
Internacionales sobre Derecho del Mar, 1971
25. Regulation on the Visit and Stay of Foreign Warships at National
Ports and Transit through the Waters under the Sovereignty and
Jurisdiction of Peru, originally approved by Supreme Decree No.
004-77-MA of 22 March 1977 and modified by Supreme Decree
No. 080-93-MGP of 26 October 1993
26. Directorate of Hydrography and Navigation of the Navy,
Derrotero de la Costa del Perú, Vol. II, 1982
27. J.A. Benavides Estrada,Geografía del Perú y del Mundo, 1984
28. Supreme Decree No. 002-87-MA of 11 June 1987 approving the
Regulation of Captaincies and Maritime, Fluvial and Lacustrine
Activities
29. Directorate of Hydrography and Navigation of the Navy,
Derrotero de la Costa del Perú, Vol. II, 2ndedn, 1988
30. Directorial Resolution No. 347-91-DC/MGP of 20 December 1991
of the Directorate-General of Captaincies and Coastguard
343 31. Directorial Resolution No. 0313-94/DCG of 23 September 1994 of
the Directorate-General of Captaincies and Coastguard
32. Directorate of Hydrography and Navigation of the Navy, List of
Lights, 9th edn, 1998
33. L. Quintanilla, Atlas del Perú y del Mundo, 1999
34. Letter No. 4626 SGMD-D of 21 November 2000 from the Minister
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