INTERNATIONAL COURT OF JUSTICE
MARITIME DISPUTE
(PERU v. CHILE)
REJOINDER OF THE
GOVERNMENT OF CHILE
VOLUME I
11 JULY 2011 TABLE OF CONTENTS
page
GLOSSARY OF PRINCIPAL DEFINED TERMS, ABBREVIATIONS
AND ACRONYMS ix
LIST OF FIGURES IN VOLUME I xiii
CHAPTER I INTRODUCTION 1
Section 1.This Case concerns the Legal Source and Character
of the Parties’ Agreed Maritime Boundary 1
Section 2.Major Problems in Peru’s Case 11
Section 3.Key Evidence of the Parties’ Acknowledgement,
Implementation and Enforcement of their Agreed
Maritime Boundary 18
A. AGREEMENT ONA RTICLEIVOF THESANTIAGO
D ECLARATION WASCONFIRMED AT THE1954 NTER-
STATE CONFERENCE 18
B. HE AGREEMENT R ELATING TO SPECIALM ARITIME
FRONTIER ZONE1954 20
C. ERU’SS UPREMER ESOLUTION DEFINING TLEIMITS OF
ITSM ARITIMEZONE 21
D. HE DIEZCANSECO NCIDENT 22
E. HE 1968 MINUTES 24
F. HE 1968 EXCHANGE OFN OTES 25
G. ERUVIAN NOTE OF13A UGUST 1969 26
H. HE 1969 ACT 27
I. ONSULTATION ON POTENTIALBOLIVIANM ARITIME
ZONE IN1976 28
i J. RESOLUTIONS OF THEH ARBOUR M ASTER OF LO IN1989 29
K. CONCLUSION 30
CHAPTER II THE GOVERNING INSTRUMENTS 33
Section 1. The Unilateral Proclamations of 1947 33
Section 2. The Santiago Declaration of 1952 41
A. THE SANTIAGO D ECLARATION HAS ALWAYS BEEN A
TREATY 42
1. The Santiago Declaration is an Instrument of
‘Positive Law’ 45
2. The Santiago Declaration established Binding Legal
Obligations 47
3. The Title and Form of the Santiago Declaration 52
4. Ratification of the Santiago Declaration under
Domestic Law 54
5. Relevance of Registration of the Santiago Declaration
by the United Nations 55
B. THE DELIMITATION ASPECT OF THESANTIAGO
D ECLARATION 57
1. Peru’s Maritime Projection at the Time of the
Santiago Declaration 59
2. Minutes of the 1952 Santiago Conference 63
3. The Text of Article IV of the Santiago Declaratio66
4. Acknowledgement of the Maritime Boundary by
Peru’s Congress 73
5. Regional Discussion in 1952 of the Obligation to
Establish Maritime Boundaries by Agreement 77
Section 3. The Agreements of 1954 Confirming the Maritime
Boundary 79
ii A. HE 1954 MINUTES 79
B. HE 1954 AGREEMENT RELATING TO SPECIAL
M ARITIMEFRONTIERZ ONE 84
1. The Title of the Agreement 84
2. The Purpose and Effect of the Agreement 85
3. “The maritime boundary between the two countri86”
4. The Treatment of Existing Lateral Boundaries i901954
5. The 1954 Agreement Relating to a Special Maritime
Frontier Zone and the 1952 Santiago Declaration are
to be Read Together 93
6. The Statement by Mr. Cristóbal Rosas 95
Section 4.The Parties’ Agreement in 1968-1969 to Signal their
Maritime Boundary 98
A. HE LIGHTHOUSES WERE TOSIGNAL THEMARITIME
B OUNDARY NOT THE LAND BOUNDARY 99
B. HE LIGHTHOUSES WERE TOSIGNAL THEMARITIME
B OUNDARY NOT AN AD HOCFISHERIEPOLICINGL INE 105
Section 5.Hito No. 1 as the Agreed Reference Point for the
Maritime Boundary Parallel 111
A. NTRODUCTION: ERU’SA TTEMPTS TOUNSETTLE THE
M ARITIMEBOUNDARY 111
B. CHILE ANPERU CONSENSUALLY D ETERMINEDH ITO
N O. AS THEREFERENCE POINT WITHFULLK NOWLEDGE
OF ITSLOCATION 112
C. HITONO. 1WAS AGREED TO BE THPOINT WHERE THE
“LAND FRONTIER REACHES THESEA”UNDER THE
SANTIAGO DECLARATION 115
D. NTERNATIONAL LAW PERMITS THU SE OFHITONO . 1
AS THER EFERENCEPOINT FOR THCHILE-PERU
M ARITIMEBOUNDARY 122
iii E. ERU UNILATERALLYD ECLAREDP OINT266AS PART OF
ITSCHALLENGE TO THEEXISTINGMARITIMEB OUNDARY 126
F. BSENCE OFJURISDICTION OVER THLAND BOUNDARY 129
CHAPTER III THE PRACTICE OF THE PARTIES 133
Section 1.Peru’s Supreme Resolution (1955): Implementation
of the Boundaries Agreed in Article IV of the
Santiago Declaration 134
Section 2.Protocol of Accession to the Santiago Declaration
(1955) 138
Section 3.Peru’s Acknowledgement of the Maritime Boundary
in the Context of a Possible Access to the Sea for
Bolivia (1975-1976) 140
Section 4.The Parties’ Cartographic Depiction of the Maritime
Boundary 146
A. ERU OFFICIALLA UTHORIZED THEDEPICTION OF ITS
“MARITIME DOMINIO”B OUNDED BY PARALLELS TO THE
NORTH AND SOUTH 149
B. RRELEVANCE OFTWO M APSRELIED UPON BYPERU 153
Section 5.Practice of Peru and Chile Confirming Chile’s
Entitlement South of the Parallel of Hito No. 1 154
A. NTRODUCTION 154
B. NFORCEMENT OF THEM ARITIMEBOUNDARY 157
1. Peru’s Enforcement of the Boundary Line 157
2. Chile’s Capture of Peruvian Fishing Vessels to the
South of the Parallel 160
C. MONITORING OENTRY INTO,AND EXIT FRO,THE
M ARITIMEZONES OFPERU ANDC HILE BD OMESTIC AND
FOREIGNV ESSELS 162
iv 1. Peru 162
2. Chile 165
D. EOGRAPHIC SCOPE OF THJURISDICTION OF NHAVAL
AND M ARITIMA UTHORITIES OPERU ANDCHILE 166
1. Peru 167
2. Chile 169
E. ERU’SA IRSPACISBOUNDED BY TWO PARALLELS,TO
THEN ORTH AND THESOUTH 171
F. HE LINESDIVIDINV ARIOUSZONES UNDER THEIMO
AND ICAOR ÉGIMESH AVEB EENALIGNED WITH THE
M ARITIMEBOUNDARY 173
1. Division of the FIRs of Chile and Peru 174
2. Division of the NAVAREAs of Chile and Peru 175
3. Division of the Maritime SAR Regions of Chile and
Peru 177
G. ONTROL OFEXPLOITATION OL IVINR ESOURCES BY
PERU ANDC HILE IN THRIESPECTIVM ARITIMEZONES 177
1. Peru 178
2. Chile 179
H. CIENTIFIRESEARCH INWATERS SOUTH OF THE
M ARITIMEBOUNDARY 181
I. UBMARINE CABLES ONPERU’SCONTINENTALSHELF 184
Section 6.Chile’s Internal Note of 1964 and the Bákula
Memorandum of 1986 confirm the existence of a
maritime boundary 185
A. ONFIRMATION OF M ARITIMEBOUNDARY BETWEEN
CHILE ANDPERU IN1964 186
B. HE BÁKULA MEMORANDUM OF 1986 WAS ANISOLATED
PROPOSAL TORENEGOTIATE THEEXISTINM ARITIME
BOUNDARY 187
vCHAPTER IV THE POSITION OF ECUADOR 194
Section 1.The Historical Record between Ecuador and Peru 195
Section 2.Diplomatic Events since Peru’s Initiation of these
Proceedings 201
A. PERU’SJUNE2010 LETTER TOECUADOR 201
B. ECUADOR S NAUTICAL CHART DEPICTING THE
BOUNDARY P ARALLEL WITHPERU 203
C. DISCUSSION OF THECUADOR B OUNDARY INPERU S
PLEADINGS 206
CHAPTER V WIDESPREAD INTERNATIONAL
ACKNOWLEDGEMENT OF THE PARTIES’
AGREED BOUNDARY 212
Section 1.Third States 213
Section 2.International Organizations 215
Section 3.Publicists 219
Section 4.Orthodox and Revisionist Peruvian Authors 221
Section 5.Acknowledgment of the Chile-Peru Maritime
Boundary in the Limits in the Seas Series of the
United States Department of State 230
A. LIMITS IN TSEAS ACKNOWLEDGED THE EXISTENCE OF
THE MARITIME BOUNDARY—1979-2000 230
B. WIDESPREAD ACKNOWLEDGMENT BEFORE LIMITS IN THE
SEASNO.86 (1979) 232
CHAPTER VI STABILITY OF BOUNDARIES AND THE
SETTLED PRACTICE 234
vi Section 1.Bilateral Conduct Demonstrating the Parties’
Agreement that the Boundary had been Settled 236
Section 2.Peru’s Enforcement of the Agreed Boundary 239
Section 3.Peru’s Confirmation of the Agreed Boundary 242
Section 4.The Settled Practice Demonstrates the Existence of a
Maritime Boundary, not a “Fisheries Policing Lin245
CHAPTER VII THE ALTA MAR AREA: PERU’S ALTERNATIVE
SUBMISSION 250
Section 1.The Parallel was agreed as a Lateral Limit regardless
of the Seaward Extent of either State’s Maritime
Zone 253
Section 2.Peru’s Unilateral Change in measuring its Seaward
Projection cannot change the Agreed Southern Limit
of its “Maritime Dominion” 258
Section 3.Ecuador’s Straight Baseline and an Alta Mar Area260
Section 4.The Alta Mar Area is treated as High Seas 261
A. ERU’SC ONTROL OFSHIPS ENTERINPERU S “MARITIME
D OMINION”ACKNOWLEDGES THAT THE ALTAM ARA REA
ISHIGH SEAS 261
B. ERU’SC ONTROL OFAIRCRAFT ENTERING IT“MARITIME
D OMINION”ACKNOWLEDGES THAT THE ALTAM ARA REA
ISHIGH SEAS 264
C. ERUVIAN VESSELSTREAT THEA LTAMAR AREA ASH IGH
SEAS 265
D. REATMENT OF THEA LTAMAR AREA ASH IGHSEAS IN
THE TRANSIT OS CIENTIFIVESSELS 266
vii Section 5.Peruvian Authors Acknowledge that the Alta Mar
Area is High Seas 267
Section 6.Implications of Absorption of the Alta Mar Area into
Peru’s “Maritime Dominion” 269
Section 7.Alta Mar Situations are Possible in Law and Occur in
Practice 274
CHAPTER VIII SUMMARY 280
CHAPTER IX SUBMISSIONS 285
APPENDIX A: HISTORICAL DEVELOPMENT OF
TECHNIQUES TO MEASURE THE OUTER
LIMIT OF MARITIME ZONES 286
LIST OF ANNEXES (VOLUMES II - IV) 305
LIST OF DOCUMENTS DEPOSITED WITH THE REGISTRY 323
viii 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
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, in preparation for the
1954 Inter-State Conference
1954 Inter-State Second Conference on Exploitation and Conservation
Conference of the Maritime Resources of the South Pacific, held in
Lima in December 1954
1954 Minutes Minutes of the 1954 Inter-State Conference
1955 Supreme Peruvian Supreme Resolution No. 23 of 11 January
Resolution 1955
ix 1968 Minutes Minutes of the meeting of the Chilean and Peruvian
delegates of 26 April 1968, at the Chile-Peru frontier,
recording their joint proposal to build two alignment
markers on the parallel of Hito No. 1. The 1968
Minutes were subsequently approved by an exchange
of notes between Peru and Chile on 5 and 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
Protocol of Accession to the Declaration of Santiago on
Accession Protocol
the Maritime Zone, signed at Quito on 6 October 1955
Act of Act (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
Bákula Memorandum annexed to Note No. 5-4-M/147 of
Memorandum 23 May 1986 from the Embassy of Peru in Chile to the
Ministry of Foreign Affairs of Chile
Bazán Note Note No. 138 of 15 September 1964 by the Legal
Advisor to the Ministry of Foreign Affairs of Chile
Complementary Complementary Convention to the Declaration of
Convention Sovereignty on the Two-Hundred-Mile Maritime Zone
signed at Lima on 4 December 1954
CPPS Permanent Commission of the South Pacific (Comisión
Permanente del Pacífico Sur)
EEZ Exclusive Economic Zone
FIR Flight Information Region
x 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 datum, 18° 20' 58" S when
referred to SAD69 datum, and 18° 21' 00" S when
referred to WGS84 datum.
ICAO International Civil Aviation Organization
ILC International Law Commission
LPI Límite político internacional (international political
boundary)
M Nautical mile(s)
PSAD56 Provisional South American Datum 1956
SAD69 South American Datum 1969
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 Chile (Servicio Hidrográfico y Oceanográfico de la
Armada de Chile), formerly called the Hydrographic
and Oceanographic Institute (Instituto Hidrográfico y
Oceanográfico)
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)
xi 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 United Nations Convention on the Law of the Sea,
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
xii LIST OF FIGURES IN VOLUME I ▯
Figure 64 Texts of the 1947 Chilean Declaration and Peruvian After p. 34
1947 Supreme Decree
Figure 65 Peruvian and Chilean islands in the vicinity of the After p. 72
Chile-Peru maritime boundary
Figure 66 Chile-Peru Special Maritime Frontier Zone under After p. 86
the Agreement Relating to a Special Maritime
Frontier Zone of 1954
Figure 67 Peru’s chart 2394 (new chart 1968) showing swell After p. 116
and loose surface on the seashore
Figure 68 Peruvian Map of Tacna, No. 37-v (1995) After p. 120
Figure 69 Reproduction of Map 2 of the Guyana v. Suriname After p. 126
Award (2007) showing the first segment of the
maritime boundary between the two States
Figure 70 Diagram showing inaccuracies in the illustration at After p. 128
Figure R-2.9 of Peru’s Reply
Figure 71 Chart I, Arica-Iquique published by the Chilean After p. 128
Navy in 1954 at a scale of 1:500,000 superimposed
with the parallel of Hito No. 1 and with a 20×
enlargement of the coast at the parallel
Figure 72 Overlap of Peru’s claimed “área en controversia” After p. 146
with the maritime area appertaining to Chile and
proposed by Peru in 1976 as maritime zone for
Bolivia
Figure 73 Diagram showing the Peruvian Proposal of 1976 by After p. 146
R. B. St. John (1994)
▯ These figures are reproduced in Volume V of the Rejoinder.
xiiiFigure 74 Sketch-map of Peru’s maritime dominion (1989) After p. 154
Figure 75 Extract from the Rules of Engagement of the After p. 156
Chilean Navy (1990s)
Figure 76 Maritime Districts of Peru and Maritime After p. 168
Gobernaciones of Chile
Figure 77 Sketch-map showing the division of NAVAREAs After p. 176
(1977)
Figure 78 Areas defined by Chile’s National Service for After p. 182
Fisheries (SERNAPESCA) for monitoring purposes
Figure 79 Sketch-map of the area surveyed by the research After p. 182
vessel operated by the Western Geophysical
Company of America for ENAP in 1977
Figure 80 Sketch-map in the CPPS report on the thirteenth After p. 184
joint regional oceanographic research (September-
October 2010) showing the oceanographic stations
of the national institutions of Colombia, Ecuador
and Peru
Figure 81 Foreign Scouting map dated 1968 showing oil After p. 196
concession areas granted by Peru, with the northern
limit of the northernmost concession areas above
the parallel of the Ecuador-Peru maritime boundary
Figure 82 Foreign Scouting map dated 1969, showing the oil After p. 196
concession areas granted by Peru to be exclusively
to the south of the maritime-boundary parallel
between Ecuador and Peru
Figure 83 Peru’s oil blocks as depicted in Supreme Decree After p. 196
No. 015-86-EM/VME
Figure 84 Ecuadorean Nautical Chart IOA 42 depicting the After p. 200
Ecuador-Peru maritime boundary, the special
maritime frontier zone, the straight baselines of
Ecuador and the outer limit of Ecuador’s maritime
zone
xivFigure 85 Republic of Ecuador – Geographic Map (2011) After p. 204
Figure 86 Peru’s interpretation of Article IV of the Santiago After p. 206
Declaration with respect to the Peru-Ecuador
maritime boundary, shown on Ecuador’s official
nautical chart (No. IOA 42)
Figure 87 Data on the fishing industry at the ports of Arica After p. 248
and Iquique extracted from the Directorate-General
of the Maritime Territory and Merchant Navy
Figure 88 Chile’s Chart No. 6 of 2000 showing normal After p. 250
baselines, the 12M territorial sea and outer limits of
the 24M contiguous zone, the 200M EEZ and the
continental shelf in northern Chile
Figure 89 Diagram showing the alta mar area by Dr. Elferink After p. 260
(1998)
Figure 90 The alta mar area between Peru and Ecuador, After p. 262
existing prior to Ecuador’s declaration of straight
baselines in 1971, shown on Ecuador’s official
nautical chart (No. IOA 42)
Figure 91 Point of entry into Peru’s “maritime dominion” as After p. 262
set out in Peru’s official model reports for mariners
Figure 92 Examples of entry into or departure from Peru’s After p. 264
“maritime dominion” as reported by foreign vessels
to the Peruvian authorities
Figure 93 Points of entry into and exit from Peruvian airspace After p. 264
adjacent to the alta mar
Figure 94 Scientific voyage authorized by the Chilean Navy: After p. 266
R/V Melville (2000)
Figure 95 Scientific voyage authorized by the Chilean Navy: After p. 268
R/V Ronald H. Brown (2004)
Figure 96 Sketch-map of the Peruvian Sea and Its Boundaries After p. 268
by Admiral Faura (1977)
xvFigure 97 Sketch-map of the Peruvian Sea and Its Boundaries After p. 268
by Admiral Faura, reproduced by Professor Ferrero
Costa (1979)
Figure 98 “Situation of the maritime dominion of Peru in the After p. 268
southern zone” by Dr. Marisol Agüero Colunga
(2001)
Figure 99 Alta mar area arising from the agreed maritime After p. 276
boundary between Chile and Argentina (1984) with
hypothetical median line
xvi CHAPTER I
INTRODUCTION
1.1. The Republic of Chile (Chile) submits this Rejoinder pursuant to the
Court’s Order of 27 April 2010. In accordance with Article 49(3) of the Rules of
Court, Chile sets out in this Rejoinder its position on the main issues that divide
the Parties, in the light of the Reply by the Republic of Peru (Peru) and the
arguments there contained which call for a response.
Section 1. This Case concerns the Legal Source and Character of the
Parties’ Agreed Maritime Boundary
1.2. It is common ground that a boundary line is in place between the
Parties, that it follows the parallel of latitude of 18° 21' 03'' S which corresponds
to the first land-boundary marker (Hito No. 1), and that this line has been in
place for many decades. Chile submits that this is an all-purpose and definitive
boundary founded in international treaties. Peru contends it is an ad hoc,
temporary arrangement for “coastal fisheries”. The Parties disagree about the
legal foundation and character of a boundary line which has been in place for
many decades and observed in the Parties’ bilateral practice without incidents or
reservations of position, and in relation to a range of matters (e.g., overflight)
unconnected to fisheries. The contrast is stark between the situation in this case
and maritime spaces in the world which are actually disputed between States.
Not only has there been quiet possession on either side of the agreed boundary
parallel for many decades, but months only before Peru launched these
proceedings, it confirmed that notwithstanding its present claim to Chilean
1
waters “the status quo shall be maintained” .
1.3. It is incumbent on Peru to prove the existence of the ad hoc
arrangement for which it contends. But Peru’s case is merely an interpretative
1 “Perú y Chile continuarán con actividades pesqueras [Peru and Chile will continue
with fishing activities]”, El Peruano, 16 August 2007, Annex 143.
1one: there is no record of an agreement referring to a fisheries line, temporary or
otherwise. Rather, the record is replete with unqualified references, over many
decades, to the “maritime boundary” or the “maritime frontier”. In any event,
Peru’s case strains credulity. It is common ground that fishing has historically
been, and remains, the most important activity in the vicinity of the boundary,
both near the shore and farther out at sea. Peru invites the Court to find that the
Parties have agreed, observed and enforced a line dividing fisheries jurisdiction,
and allocating the most important maritime resource in the relevant area, without
having agreed on an all-purpose maritime boundary and without at any time
having reserved their position to agree subsequently on a different line as the all-
purpose boundary.
1.4. In Chile’s submission, the correct explanation is the logically
straightforward one. The boundary line in place applies to fishing and fisheries
(as it applies in other contexts, including airspace jurisdiction) because it is an
agreed, all-purpose, definitive boundary. On this basis Chile submits that the
controlling rules in the present case are pacta sunt servanda and stability of
existing boundaries. These are elemental principles of international law.
1.5. Chile’s position is as follows. The Parties have delimited their
maritime boundary by agreement. The boundary is the parallel of latitude of the
point where their land boundary reaches the sea. The Parties’ agreement is set
forth in the Santiago Declaration of 1952. This is the treaty by which Chile, Peru,
and Ecuador agreed that “they each possess 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” . This broad
formulation of maritime jurisdiction encompasses all rights which a State may
exercise within 200M of its coasts under present customary international law.
Indeed for Chile, as an UNCLOS State, the Santiago Declaration 200M-zone
entitlement is given effect to by an UNCLOS-compliant continental shelf and
2 Santiago Declaration, Annex 47 to the Memorial, Art. II.
2EEZ — expressly preserving the already existing maritime boundaries . Peru is 3
not an UNCLOS State, and it has a single 200M “maritime dominion” (dominio
marítimo) which covers waters, subsoil and airspace. Peru’s zone has
4
characteristics of a territorial sea . The legal basis on which Peru’s maritime
zone is opposable to Chile is the Santiago Declaration. The maritime boundary
set forth in the Santiago Declaration is an integral part of Peru’s “maritime
dominion” under that agreement.
1.6. The delimitation provision of the Santiago Declaration is Article IV.
The delimitation effected under this provision has three aspects:
(a) Article IV effectively confirmed the existing limits of Peru’s maritime
zone vis-à-vis the other two States parties, Chile and Ecuador. Peru’s
200M maritime zone had been defined by a Supreme Decree issued by
the President of Peru five years earlier, in 1947. In that Decree, Peru
proclaimed a maritime zone with an outer limit replicating the coast at
a distance of 200M, and “measured following the line of the
5
geographical parallels” so far as its lateral extent was concerned .
Peru’s continental coast projected in a rectilinear thrust outward,
bounded by parallels of latitude. This claim had met with no protest by
either of the adjacent States, Chile and Ecuador.
(b) Article IV also dealt with the maritime zone of islands. Islands are to
have 200M zones in the form of a radial projection of “the[ir] entire
coast” — following, in this respect as well, the Peruvian 1947 claim 7
3 See para. 3.117 below.
4
See paras 7.44-7.50 below.
5 Peru’s Supreme Decree of 1947, Annex 6 to the Memorial, Art. 3.
6
Santiago Declaration, Annex 47 to the Memorial, Art. IV.
7 See Peru’s Supreme Decree of 1947, Annex 6 to the Memorial, Art. 3. Chile’s 1947
claim was to like effect, providing for a projection “parallel to these [Chilean]
islands at a distance of 200 nautical miles around their coasts”: Annex 27 to the
Memorial, Art. 3.
3 — except that when an insular zone overlaps with a zone generated by
a continental territory, the insular zone “shall be limited by the parallel
at the point at which the land frontier of the States concerned reaches
8
the sea” . In other words, the maritime zone which extends seawards
from the continent along geographic parallels of latitude cannot be
curtailed by an overlapping insular zone located on the other side of
the parallel.
(c) Finally, and following the same logic, the boundary parallels agreed
under Article IV continue to operate as limits to a State’s maritime
zone even if that State extends the outer limit of its zone in any way.
The 200M breadth of the maritime zones set forth in the Santiago
9
Declaration is a “minimum distance” ; but no matter how far seaward
any State might claim, the Santiago Declaration would constitute a
complete delimitation using the parallel of latitude.
1.7. The primacy of the parallels serving as lateral limits to the States
parties’ continental projections at sea is the key to this entire case, both from an
historical perspective and from a conceptual standpoint. Historically, there is a
direct line of parentage linking the Santiago Declaration to Peru’s 1947 200M
claim: in the words of Peru’s Congress, the 1947 text is a “necessary antecedent”
to the Santiago Declaration . Conceptually, the States parties to the Santiago
Declaration adopted the lateral boundaries which followed from Peru’s
conception of its maritime zone. Peru conceived its continental projection as
containing lateral limits in its very definition: to use the language in Peru’s 1947
Supreme Decree, its maritime projection was “measured following the line of the
8 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
9 Ibid., Art. II.
10
See para. 2.11 below.
4geographical parallels” . In his scholarly writings, Judge Jiménez de Aréchaga
describes the position as follows:
“The reason for the fundamental difference in the methods
employed between the Atlantic and Pacific delimitations is
easy to explain. In 1952 the states that were party to the
tripartite [Santiago] declaration were opening entirely new
ground in the Law of the Sea by marking their 200-
nautical mile (n.m.) claims. In the absence at that time of
known principles or agreed rules of delimitations, 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 of the
fundamental ground invoked in support of their maritime
claims, namely, the direct and linear projection of their
land boundaries and land territories into the adjacent seas.
Also, the fact that the South American countries in the
Pacific have no physical continental shelf in the geological
sense, or a very narrow one, may have encouraged the
adoption of a solution as the one agreed.” 12
1.8. The Parties were fully aware of the need for lateral boundaries of the
200M zones they were claiming under the Santiago Declaration . Their choice
14
of parallels of latitude was as deliberate as it was justified. As the law stood in
1952, court and arbitral decisions (including the Court’s Judgment in the Anglo-
Norwegian Fisheries case), State practice, codification efforts, and scholarly
writings overwhelmingly supported the tracé parallèle method — to define the
11
Peru’s Supreme Decree of 1947, Annex 6 to the Memorial, Art. 3.
12 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 to the Counter-Memorial, pp. 285-286.
13
See the Draft Convention on Territorial Waters and Related Questions sponsored by
(inter alios) Chile and Peru and adopted by the Inter-American Juridical Committee
on 30 July 1952, described at paras 2.84-2.85 below.
14 Contrary to what Peru suggests at para. 12 of the Reply.
5 15
outer limit of the maritime projection of a continental territory . Using parallels
of latitude as lateral limits was entirely consistent with this conception of
maritime projection. It was also in harmony with the broad geographical context:
Chile, Peru and Ecuador were claiming vast ocean expanses by the standards of
the time, unconstrained by coasts opposite. Finally, parallels of latitude and
meridians had been adopted in the 1939 Panama Declaration to define large
zones in the ocean around the Americas, albeit for different purposes . 16
1.9. Because the States parties’ continental projections at sea were
conceived as adjoining but not overlapping with each other, their lateral limits
were an uncontroversial matter in the diplomatic negotiation of the Santiago
Declaration. The travaux préparatoires record the States parties’ intent to use
parallels of latitude, drawn from the point where their respective land boundaries
reach the sea, as lateral boundaries of their continental maritime zones . The 17
States parties’ premise also explains the particular attention given to islands in
the wording of the provision — again, to confirm the primacy of the boundary
parallels as lateral maritime boundaries in addressing overlaps between
continental zones and insular zones. Thus, the States parties claimed maritime
zones which were conceived as spatially co-ordinate and concordant.
1.10. Whether a boundary is thought of as a separator of two States’
18
overlapping entitlements or, more broadly, as a line representing the spatial
confines of a State’s jurisdiction , a line between two States’ adjoining but not
15 For a comprehensive historical account see Appendix A to this Rejoinder, pp. 286 et
seq.
16 See Counter-Memorial, paras 2.45-2.46 and Figure 6 to the Counter-Memorial,
Vol. I, after p. 64.
17
See paras 2.53-2.55 below.
18 Thus the Award in the Guinea/Guinea-Bissau case: “une limite indique jusqu’à
quelle extrémité s’étend un domaine, tandis qu’une frontière possède une fonction
séparative entre deux Etats.” Delimitation of the maritime boundary between Guinea
and Guinea-Bissau, Award, 14 February 1985, RIAA, Vol. XIX, para. 49.
19 Thus in the Aegean Sea case the Court described a boundary as the “line. . .where the
extension in space of the sovereign powers of Greece meets those of Turkey”:
6overlapping maritime zones constitutes a boundary between these zones. This
was the case under the Santiago Declaration.
1.11. The Parties’ agreement on their maritime boundary in the Santiago
Declaration of 1952 was both confirmed in and implemented by the Agreement
Relating to a Special Maritime Frontier Zone of 1954. As its title indicates, this
Agreement established a 10M “special” zone of tolerance “on either side of the
parallel which constitutes the maritime boundary between the two countries” . 20
The 1954 Agreement was expressed to be an “integral and supplementary part
21
of, and not in any way to abrogate” the Santiago Declaration .
1.12. There was a further significant event at the inter-State conference at
which the Agreement Relating to a Special Maritime Frontier Zone was adopted.
The three States parties to the Santiago Declaration also memorialized their
agreement that “the concept already declared in Santiago that the parallel starting
at the boundary point on the coast constitutes the maritime boundary between the
22
neighbouring signatory countries” .
1.13. These two agreements in 1954 are a joint, formal, and unambiguous
record of what had been the States parties’ intent in Article IV of the Santiago
Declaration two years earlier. This record had been in Peru’s possession for over
half a century when Peru launched the present case. Peru now presumes to
advance a reading of Article IV which takes no account of this record. Peru’s
Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports 1978,
p. 36, para. 85. Oppenheim’s International Law, 9th edn, 1992, p. 661, para. 226:
“Boundaries of state territory are, it was said in earlier editions of this work, the
imaginary lines on the surface of the earth which separate the territory of one state
from that of another, or from unappropriated territory, or from the open sea.”
(Citations omitted.)
20 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 1.
21
Ibid., Art. 4.
22 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
7reading is that Article IV addresses the limits of insular zones but is not a
23
delimitation provision and does not in itself delimit any boundary . The
24
demerits of that reading are discussed elsewhere in this Rejoinder . The
immediate point is that treaty interpretation is a legal process by which to give
effect to the intent of the contracting States, in good faith. The intent of the
Parties here is known from the objective contemporaneous record: “the parallel
starting at the boundary point on the coast constitutes the maritime boundary
between the neighbouring signatory countries” . There can be no suggestion that
international law requires an intent to effect a maritime delimitation to be
expressed in any particular form of words. The ordinary rules of treaty
interpretation govern. And on those rules the record in its totality leaves no doubt
that the Santiago Declaration, which was complemented by the Agreement
Relating to a Special Maritime Frontier Zone, effected a maritime delimitation
between the Parties.
1.14. That Chile’s reading of Article IV is the proper one also finds ample
confirmation in the decades of bilateral practice between the Parties. In
particular, Peru has consistently controlled entry to, exit from, and activities in
its “maritime dominion” and the airspace above it. In order to do so, Peru has
found it necessary to specify and enforce the southern boundary of its “maritime
dominion”. It has consistently used the existing boundary parallel for that
purpose. Peru’s present-day gloss that this extensive body of practice — to the
very limited extent Peru seeks to address it — is explicable on the basis of an ad
23 See, e.g., Reply, para. 3.81 and footnote 356.
24
See Chapter II, Section 2.B.3 below. One notes that the existing boundary between
the Parties would find a basis in the Santiago Declaration even under Peru’s reading
of Article IV. There are (near-coast) islands within a 200M radius of the boundary
line, both in Chile and Peru. The presence and location of these islands would
account for the largest part of the course of the existing boundary. This matter is
discussed at paragraphs 2.70-2.71 and illustrated on Figure 65.
25
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
8hoc temporary arrangement for near-shore fisheries is impossible to credit and
unsupported by the documentary record.
1.15. In fact, Peru’s main argument in this case is one which is expressed
only as the leitmotif. Peru characterizes the existing boundary line as an
“unbalanced delimitation by which it would have ceded a huge part of its
26
maritime domain”. Peru devotes a Section of its Reply (Chapter V,
Section III)27 to an exposition of the supposed “inequitableness” of the existing
boundary line. As often as possible Peru urges the reader to ignore the
agreements which Peru actually concluded, and the half-century of practice and
quiet possession on either side of the boundary line, in favour of its perceptions
of equitableness formed many decades later, after 200M zones had been accepted
as mainstream in international law.
1.16. There are a number of objections to the legal anachronism which Peru
proposes. First, no agreement can be overturned or supplanted by later
28
perceptions of inequitableness held by one of the parties . Secondly, the
permanence of agreements on boundaries, at sea as on land, is a fundamental rule
of international law . Thirdly, the preservation of the existing state of affairs is
in itself equitable, protecting the reliance placed by States and their populations
30
on the boundary that has been actually observed in practice . Finally, Peru’s
claims ignore the many benefits that Peru and its population have derived from
the 200M zone to which the Santiago Declaration gave cover of an international
treaty. Notably, the harvest from Peru’s fishing grounds increased exponentially
in the 1960s and 1970s, reaching the world’s top position in 1972 (eclipsing the
26 Reply, para. 13.
27
At pp. 274 et seq.
28 See Frontier Dispute (Burkina Faso v. Mali), Judgment, I.C.J. Reports 1986, p. 633,
para. 149.
29
See paras 6.1-6.6 below; and Counter-Memorial, paras 4.70 et seq.
30 Grisbådarna Case (Norway v. Sweden), Award, 23 October 1909, RIAA, Vol. XI,
pp. 161-162.
9 31
catch of the State second in line, Japan, by 72%) . It is hardly equitable to
permit Peru to resile now from the delimitation aspect of the treaty which has
conferred so much benefit on it over many decades.
1.17. The position is that the lateral boundary agreed between the Parties
under the Santiago Declaration remains binding on Peru. This is the case both
under the Santiago Declaration and customary international law. That in 2005
Peru adopted an arcs-of-circles methodology to define the outer limit of its
32
“maritime dominion” evidently cannot affect the ongoing validity and binding
force of the agreed, existing boundary. Peru’s unilateral change of methodology
is opposable to Chile only to the extent that it does not affect the Parties’ agreed
33
boundary. Chile, too, has adopted an arcs-of-circles methodology , without of
course suggesting that this has any effect on its agreed maritime boundaries.
Quite apart from the rule that agreed boundaries are not affected by a
supervening change in circumstances , Article IV of the Santiago Declaration
read together with Article II make clear that the boundary parallel limits laterally
the States parties’ maritime zones whatever the seaward extent of these zones
may be at any given time. This is of especial importance in assessing Peru’s
claim to an area of high seas (the alta mar area), “[b]eyond the point where the
35 2
common maritime border ends” , forming a triangle of 28,356 km that would
wrap around Chile’s EEZ and continental shelf and cut off 111M of these zones
36
from access to the high seas . Finally, as a matter of customary international
law, Articles 74(4) and 83(4) of UNCLOS codify the rule that delimitation of the
EEZ and continental shelf is subject to an existing “agreement in force between
31
See Counter-Memorial, paras 2.135 et seq., in particular paras 2.137-2.138.
32 See para. 2.50 below.
33
See the official Chilean chart at Figure 88.
34 See Chapter VI (para. 6.3) below.
35
Reply, p. 331, Submission (2).
36 See Figures 2.4 and 7.1 to the Memorial, Vol. IV, pp. 15 and 109 and Figure 2 to
the Counter-Memorial, Vol. I, after p. 8
10the States concerned”. The Santiago Declaration is the relevant agreement in this
case.
1.18. Clearly, Peru now feels that a maritime boundary delimited in
accordance with the equidistance method would be more advantageous to it than
the parallel of latitude upon which it actually agreed in 1952. Peru knows that
pacta sunt servanda and the principle of stability of boundaries prevent any
attempt to invite the Court to redraw a boundary that has already been agreed.
Thus, Peru has recently manufactured an argument that no agreement ever
existed, hoping that this will be enough to entice the Court to change the existing
boundary. Chile’s response is simply to invite the Court to review the actual
evidential record of treaties and other related practice between the Parties, and
then to perform its duty to maintain the stability of this settled boundary.
1.19. This Introduction now turns to a series of unsustainable propositions
contained in Peru’s case. They all arise from Peru’s attempt to create arguments
divorced from historical and juridical reality (Section 2). The Introduction then
concludes, in Section 3, by providing a summary list of core examples of the
agreements and practice of the Parties subsequent to the boundary upon which
they agreed in the Santiago Declaration. This list demonstrates that for half a
century Chile and Peru have enjoyed a settled maritime boundary.
Section 2. Major Problems in Peru’s Case
1.20. The remarkable defect of Peru’s pleadings is that they avoid any
methodical analysis of the agreement between Chile and Peru on their maritime
boundary as confirmed by the relevant subsequent agreements and practice.
Indeed, Peru simply ignores much of the evidence that does not suit its case. Peru
selectively addresses individual pieces of evidence, isolates them from their
context, and seeks to invoke present-day hindsight to find imperfections in
historical documents and events. This way Peru seeks to defend a position
already arrived at, notwithstanding the inconsistency of that position with the
11weight of the evidence. These are some of the problems arising from Peru’s use
of this technique:
(a) Peru asks the Court to find that it is irrelevant to this case that when in
1947 Peru first declared its 200M maritime zone, Peru specified that it
was to be “measured following the line of the geographical
parallels” .7
(b) Peru argues that the Santiago Declaration of 1952 is not and never has
been a treaty. Peru argues that it was not “a legally-binding
38 39
instrument” , and although it “acquired the status of a treaty” this
was apparently only “in domestic political terms” , at least until some
time later, when “the States concerned came to treat the Declaration as
41
a treaty in their international relations” . Peru asks the Court to accept
its present arguments in spite of the fact that after Chile, Ecuador and
Peru jointly requested registration of the Santiago Declaration under
Article 102 of the United Nations Charter in 1973, the instrument was
registered as a treaty, and one that had entered into force upon
42
signature .
(c) Peru asks the Court to find that the Santiago Declaration was not “an
agreement on international maritime boundaries between the three
43
States or between any two of them” and “did not address lateral
37
1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3. And see
Counter-Memorial paras 2.32-2.40; and cf. Reply para. 3.37.
38 E.g., Reply, para. 3.157.
39 Memorial, para. 4.70.
40
Reply, para. 3.161.
41 Ibid., para. 3.165.
42
Santiago Declaration, Annex 47 to the Memorial, footnote 1.
43 Reply, para. 3.118.
12 44
boundaries at all” . At the same time, Peru itself says that until now
the Santiago Declaration limits the projection of Ecuadorean islands as
against Peru’s continental maritime zone . 45
(d) Peru asks the Court to accept that the Santiago Declaration did not
46
establish a maritime boundary between Ecuador and Peru , or
between Chile and Peru, without providing any explanation for the fact
that when Ecuador, Chile and Peru concluded the Agreement Relating
to a Special Maritime Frontier Zone of 1954, which they deemed to be
“an integral and supplementary part of” 47 the Santiago Declaration,
they referred in Article 1 to “the parallel which constitutes the
maritime boundary between the two countries” and in the preamble to
that same agreement to “violations of the maritime frontier between
adjacent States” .48
(e) Peru’s 1955 Supreme Resolution referred to the limits of its “maritime
dominion” for the purposes of accurate depiction in cartographic and
49
geodesic works . Recording that the definition therein was “[i]n
accordance with clause IV of the Declaration of Santiago”, the 1955
Supreme Resolution expressly used the “parallel at the point where the
frontier of Peru reaches the sea” to specify the lateral limits of Peru’s
50
maritime zone . Peru’s present case is that this had no application as
51
between Peru and Chile ; and apparently no application between Peru
44
Memorial, para. 4.74. And also see para. 4.72.
45 E.g., Reply, paras 3.71 and 3.81.
46 Ibid., p. 192, footnote 356.
47
Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 4.
48 Ibid.
49
See 1955 Supreme Resolution, Annex 9 to the Memorial, preambular recital.
50 Ibid., Art. 2.
51 Reply, p. 318, footnote 604.
13 and Ecuador either except concerning Ecuador’s insular maritime
projection. Peru asks the Court to accept that in an instrument
promulgated solely for the purpose of defining the limits of Peru’s
“maritime dominion”, the entire southern boundary and part of the
northern boundary of the maritime zone of one of the world’s largest
fisheries industries 52 was actually left unspecified, without any
mention of that fact. Yet following this official cartographic guidance
Peru’s Foreign Ministry approved maps showing Peru’s maritime
boundary with Chile as a parallel of latitude as correctly depicting
information “directly related to the delimitation of Peru’s bordering
53
zones, in accordance with positive international law on this matter” .
Peru now asks the Court to believe that its official approvals of these
maps do not “reflect the Government’s position” . 54
(f) Peru asks the Court to accept that “the sole purpose of the 1968 lights
was to show near-shore fishermen where the land boundary between
Peru and Chile lay and whose coasts they were alongside” . Yet the55
two towers were aligned specifically to signal a parallel of latitude,
which the land-boundary line was not. Moreover, the 1968 Minutes
jointly prepared by the delegations of Chile and Peru recorded their
instructions to signal “the parallel of the maritime frontier originating
56
at Boundary Marker number one” . Indeed, the note to Chile from
Peru’s Secretary-General of the Ministry of Foreign Affairs, Mr. Pérez
52 See Counter-Memorial, Chapter II, Section 6.
53
Peruvian Ministerial Resolution No. 458 of 28 April 1961, Annex 9 to the Reply.
54 Reply, para. 4.130.
55
Ibid., para. 4.28 (emphasis added).
56 1968 Minutes, Annex 59 to the Memorial, first paragraph.
14 de Cuéllar, approving those minutes, also referred to signalling “the
57
parallel of the maritime frontier” .
(g) Peru would have the Court find that the dozens of authoritative
publicists on maritime boundary issues, including, for example,
Bundy, Evans, Hodgson, Jagota, Jiménez de Aréchaga, Johnston,
Lucchini and V▯lckel, Prescott, Reuter, and Salvador Lara, who
consider that the Santiago Declaration created a maritime boundary
between Chile and Peru along the parallel of latitude are
58
“unconvincing” . Peru similarly dismisses government publications to
59
the same effect by the United States of America and China . Peru
would not have failed to note the number of scholarly, professional
and government publications which for decades recorded the Chile-
Peru maritime boundary as having been definitively agreed; nor would
these authors have failed to record the existence of a dispute if one had
existed, which it did not .60
61
(h) Peru asks the Court to find that it is “immaterial” that in 1993 a
former President of the Court, Eduardo Jiménez de Aréchaga, wrote a
detailed report in the world’s leading reference work on international
57 Note No. (J) 6-4/43 of 5 August 1968 from the Secretary-General of Foreign Affairs
of Peru to the chargé d’affaires of Chile, Annex 74 to the Memorial (emphasis
added).
58
Reply, para. 3.173.
59 Ibid., para. 3.174.
60 Note, e.g., E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and R. W. Smith
(eds), International Maritime Boundaries, Vol. IV, 2002, Annex 282 to the
Counter-Memorial, p. 2639, which includes an addendum noting that in 2001 Peru
sent a communication to the Secretary-General of the United Nations stating that
Peru and Chile had not concluded a “specific maritime delimitation treaty”.
61 Reply, para. 3.176.
15 maritime boundaries explaining the existence and course of the Chile-
Peru maritime boundary, including with respect to the alta mar area . 62
(i) Peru asks the Court to find that the fact that the United Nations
Division for Ocean Affairs and the Law of the Sea has issued three
publications, in 1987, 1991 and 2000, treating the Santiago
Declaration as a maritime boundary agreement between Chile and
63
Peru does “not have evidential weight” .
(j) Peru would have the Court find that it is of “no probative value” that 64
in pleadings before the Court the United States of America, Germany,
Denmark, the Netherlands, Canada, Libya and Malta have all treated
the Santiago Declaration as having established a maritime boundary
65
between Chile and Peru following a parallel of latitude . Equally
inconsequential, Peru says, is the fact that in the North Sea Continental
Shelf cases, after the pleadings of Professors Oda and Jaenicke for
Germany, and Sir Humphrey Waldock for Denmark and the
Netherlands, in which they were all ad idem on the fact that the
Santiago Declaration created a maritime boundary between Chile and
Peru following a parallel of latitude , the Peruvian President of the
Court (and former President of Peru), Judge Bustamante y Rivero,
issued a separate opinion in which he did not demur from those
submissions, and in which he considered it the normal position that
62 E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and L. M. Alexander (eds),
International Maritime Boundaries, Vol. I, 1993, Annex 280 to the Counter-
Memorial, p. 793.
63
Reply, para. 3.175; and see para. 5.9 below.
64 See Reply, para. 3.174.
65
See Counter-Memorial, paras 2.224-2.234.
66 Ibid., para. 2.163.
16 “lateral delimitation lines of adjacent shelves” be given “parallel
directions” creating “shelves of a rectangular shape” . 67
68
(k) Peru curtly dismisses as “wholly unpersuasive” , but without
explaining why, the position of the Government of Colombia. This
position was that lateral delimitation by lines of geographic parallels,
“used frequently by several States, was in particular chosen by the
three 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 meets the interests of the two countries adequately.” 69
This statement was part of the “Statement of Reasons” given by the
Government of Colombia in Congress in the process of ratification of
the 1975 Ecuador-Colombia maritime boundary treaty, under which
the maritime boundary was established as “the line of geographical
parallel traversing the point at which the international land frontier
70
between Ecuador and Colombia reaches the sea. . . .”
(l) Most importantly, Peru would have the Court believe that more than a
half-century of peaceful exercise of sovereign rights and jurisdiction
67
Separate opinion of President Bustamante y Rivero, North Sea Continental Shelf,
Judgment, I.C.J. Reports 1969, p. 61.
68 Reply, para. 3.174.
69
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 Co-operation, Annex 214 to the Counter-
Memorial, p. 15.
70
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
to the Counter-Memorial, Art. 1.
17 on either side of the parallel of latitude is not indicative of the
existence of an agreed maritime boundary .
Section 3. Key Evidence of the Parties’ Acknowledgement,
Implementation and Enforcement of their Agreed Maritime Boundary
1.21. Peru seeks to destroy an agreed maritime boundary by proposing a
syntactical interpretation of Article IV of the Santiago Declaration that is
inconsistent with the interpretation that the three parties to it have given it since
it was agreed in 1952. Chile responded to these syntactical arguments about
Article IV of the Santiago Declaration in paragraphs 2.76 et seq. and in
Chapter IV of the Counter-Memorial. Peru having renewed them in its Reply,
Chile is constrained to deal with them again at paragraphs 2.41-2.56 of this
Rejoinder. Peru’s attempt to create a dispute based on a newly minted reading of
Article IV pales into insignificance, however, when the weight of evidence
concerning the Parties’ subsequent agreements and State practice is considered.
The purpose of this section is to set forth in summary form some key examples
of subsequent agreements and State practice which demonstrate that for half a
century Chile and Peru have been jointly operating on the basis that they have an
agreed maritime boundary.
A. A GREEMENT ON ARTICLE IV OF THE SANTIAGO DECLARATION WAS
C ONFIRMED AT THE 1954 INTER -STATE CONFERENCE
1.22. In negotiating the 1954 Complementary Convention (i.e.,
complementary to the Santiago Declaration), Ecuador requested the inclusion of
an article clarifying “the dividing line of the jurisdictional sea” between adjacent
States. The president of the Session, the Chilean delegate, asked if instead of a
new article being added to the Complementary Convention, Ecuador would
accept that the three States’ agreement on the point be recorded in the Minutes.
The Ecuadorean delegate “agreed to record in the Minutes that the three
71 See further Counter-Memorial, paras 3.77-3.119.
18countries 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
72
frontier between both countries reaches the sea.” The Peruvian delegate agreed,
and added “that this agreement was already established in the Conference of
Santiago” .73
1.23. In its Memorial, Peru entirely ignored this explicit agreement that the
parallel was “the dividing line of the jurisdictional waters”. Although it produced
as Annex 57 to the Memorial an extract from the same Minutes, which included
a page on which this agreement was explicitly recorded, Peru redacted that part
of the page, without indicating that a redaction had been made. The redaction can
be seen if one compares page 322 of volume II of the annexes to Peru’s
Memorial with page 346 of volume II of the annexes to Chile’s Counter-
Memorial, where the unredacted Minutes appear as Annex 39. In its Reply, Peru
makes no attempt to explain this redaction, which Chile pointed out in the
74
Counter-Memorial .
1.24. Peru’s approach in its Reply is to focus on the fact that what is
recorded in the 1954 Minutes as having been “settled” in the Santiago
75
Declaration was only “the dividing line of the jurisdictional waters” . Peru
asserts that: “There is no mention of what Chile refers to in its Counter-
Memorial as the ‘maritime boundaries’.” 76 This assertion is misleading. The
same agreed Minutes record that on the following day–
“the concept already declared in Santiago that the parallel
starting at the boundary point on the coast constitutes the
72 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38 to the Counter-Memorial, p. 3.
73 Ibid., p. 4.
74 Counter-Memorial, paras 2.191-2.194, especially footnote 398.
75
Reply, para. 4.14. The Parties’ use of the term “jurisdictional waters” is discussed
further at paras 2.89-2.92 below.
76 Ibid.
19 maritime boundary between the neighbouring signatory
countries, was incorporated into [Article 1 of the
Agreemen77Relating to a Special Maritime Frontier
Zone].” (Emphasis added.)
1.25. There is simply no escape from the fact that the Parties agreed in 1954
that they had already settled their maritime boundary in 1952.
B. T HE AGREEMENT R ELATING TO A S PECIAL M ARITIME FRONTIER ZONE 1954
1.26. The preamble to the Agreement Relating to a Special Maritime
Frontier Zone refers to the desire of the three States to establish zones of
tolerance on either side of the maritime boundaries between them because
78
“violations of the maritime frontier between adjacent States occur frequently” .
Accordingly, Article 1 of that Agreement established zones of tolerance “on
either side of the parallel which constitutes the maritime boundary between the
79
two countries” . As noted immediately above, the Minutes of the session at
which that Article was adopted 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.”
1.27. It was on the basis of this agreement that Peru sent a Memorandum to
Chile in 1962 complaining about “the frequency with which Chilean fishing
vessels have trespassed into Peruvian waters” and stating that–
77
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
78 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, first recital.
79
Ibid., Art. 1.
80 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
20 “the Government of Peru, taking strongly into account the
sense and provisions of the ‘Agreement Relating to a
Special Maritime Frontier Zone’, signed in Lima on
4 December 1954, 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 continuing
to fish north of the Peru-Chile frontier.”
C. P ERU ’SS UPREME R ESOLUTION DEFINING THE L IMITS OF ITSM ARITIME Z ONE
1.28. In January 1955 the same Peruvian Foreign Minister who had signed
the 1954 Agreement Relating to a Special Maritime Frontier Zone, David
Aguilar Cornejo, jointly issued with the Peruvian President a Supreme
Resolution, prompted by the need–
“to specify in cartographic and geodesic work the manner
of determining the Peruvian maritime zone of 200 miles
referred to in the Supreme Decree of 1 August 1947 and
the Joint Declaration signed in Sa82iago on 18 August
1952 by Peru, Chile and Ecuador” .
1.29. The Supreme Resolution had only two substantive provisions. The
first concerned the outer limit of Peru’s 200M claim, which “shall be limited at
sea by a line parallel to the Peruvian coast and at a constant distance of 200
nautical miles from it” . The second provision concerned the lateral limits. It
read: “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.”4There was no mention of islands — just as
81 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 to the Counter-
Memorial (emphasis added).
82
1955 Supreme Resolution, Annex 9 to the Memorial, preambular recital.
83 Ibid., Art. 1.
84
Ibid., Art. 2.
21there was no mention of islands in the Official Message to Congress by Peru’s
Foreign Minister in the Parliamentary process for ratification of the agreements
85
of 1952 and 1954 which took place later in the year . There was no suggestion
that the parallel bounding Peru’s maritime zone applied only as between Ecuador
and Peru. Rather, Peru was referring to Article IV of the Santiago Declaration as
having established the northern and southern lateral limits of its maritime zone.
1.30. This plain reading is confirmed by a contemporaneous publication by
Dr. Enrique García Sayán. Dr. García Sayán, who was a Peruvian leading legal
and diplomatic specialist on the law of the sea at the time, as Peru’s Foreign
Minister had co-signed the 1947 proclamation together with the President of the
country, and later served as a Peruvian delegate to the First United Nations
Conference on the Law of the Sea. He noted that the outer limit of Peru’s
maritime zone “will not go beyond the corresponding parallels ‘at the point
86
where the frontier of Peru reaches the sea’.” Peru provided this 1955 Supreme
Resolution to the United Nations in 1972, which was published in the United
Nations Legislative Series in 1974 .7
D. T HE D IEZ CANSECO INCIDENT
1.31. In March 1966 a Peruvian Navy corvette, the Diez Canseco, responded
to perceived transgressions of the Chile-Peru maritime boundary by two Chilean
fishing vessels (Mariette and Angamos) by firing 16 warning shots from its
canon. Chile considered that the fishing vessels had been “south of the boundary
85 Official Letter No. (M)-3-0-A/3 of 7 February 1955 from the Ministry of Foreign
Affairs of Peru, Annex 95 to the Memorial.
86
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 to the
Counter-Memorial, p. 28 (emphasis added).
87
See United Nations Legislative Series, National Legislation and Treaties Relating to
the Law of the Sea, 1974, Annex 164 to the Counter-Memorial, pp. 27-28.
22 88
with Peru” and so requested an explanation from Peru as to why its Navy had
89
“trespassed over the boundary and open[ed] fire in Chilean waters” . In June
1966 the Peruvian Embassy in Chile sent a memorandum to the Chilean Ministry
of Foreign Affairs stating that the Chilean fishing vessels had been found “north
of the frontier line”, giving a series of coordinates for the Peruvian corvette, and
90
stating the distances that those points were from “the frontier line” . Peru noted
that when the Chilean boat that it had pursued “was crossing the frontier line”,
the Peruvian corvette had “abandoned the pursuit” . Thus, Peru concluded, its
Navy “did at no time cross the frontier line” . 92
1.32. Peru neither mentioned this incident in its Memorial nor responded to
it in its Reply. The Diez Canseco incident is mentioned but once in Peru’s Reply,
in footnote 11 at page 5. Peru describes it as an example of Chile’s arguing that
because the Parties had “agreed on practical arrangements concerning coastal
fishing activities” they had also established an “all-purpose boundary between
93
their respective maritime domains” .
1.33. Peru now makes the unsupported assertion that its pursuit was
predicated only on the existence of an undefined and apparently temporary
“practical arrangement” for which no source is or could be cited, but which fell
short of constituting a maritime boundary. The contemporaneous official
correspondence cited immediately above plainly shows that Peru understood the
“frontier line” to apply to its own Navy, not just to the fishing vessel of which it
88 Cable No. 48 of 23 March 1966 from the Ministry of Foreign Affairs of Chile to the
Chilean Embassy in Peru, Annex 122 to the Counter-Memorial.
89 Ibid.
90
Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 75 to the Counter-Memorial, p. 1.
91 Ibid., p. 2.
92
Ibid.
93 Reply, para. 8.
94 Ibid., pp. 4-5, footnote 11.
23was in pursuit. The bilateral exchange shows Chile to have had the same
position.
1.34. Unable to meet this evidence directly, Peru seizes on the wording used
in Chile’s Counter-Memorial that the boundary “implied” by the Diez Canseco
95
incident was the parallel of latitude of 18° 21' S . The implication referred to
was that although the exact latitude of the boundary was not mentioned in the
diplomatic exchange, it could be calculated using the coordinates for the Diez
Canseco that Peru gave in its memorandum combined with the distances that
Peru said the corvette was from “the frontier line”. But the existence of the
maritime boundary was express, indeed emphatic, on the face of the official
correspondence. Peru’s memorandum referred to the “frontier line” on eleven
occasions.
1.35. On the same day as the memorandum to Chile explaining the actions
of the Diez Canseco, Peru sent a separate memorandum to Chile denouncing 44
“new acts violating the Peruvian maritime frontier [nuevos actos violatorios de
la frontera marítima peruana]” by Chilean boats as well as “illegal incursions
[incursiones ilegales]” into the airspace over Peru’s “maritime dominion” by two
96
Chilean aeroplanes . This “frontera marítima” is more than a line dividing areas
of fisheries jurisdiction. It is a boundary, which Peru considered operative in the
air as well as at sea and to Navy vessels as well as to fishing vessels.
E. T HE 1968M INUTES
1.36. In April 1968 representatives of Chile and Peru met at the seaward
terminus of the two States’ land boundary. The Chilean delegation was led by the
Head of the International Boundaries Division of the Ministry of Foreign Affairs
of Chile. The Peruvian delegation was led by the Head of the Frontier
95
Reply, para. 8; Figure 21 to the Counter-Memorial, Vol. I, after p. 184.
96 Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 76 to the Counter-Memorial.
24Department of the Ministry of Foreign Affairs of Peru. Both States included
hydrographical experts (active-duty and retired Navy officers) in their
delegations. In the Minutes that were signed by all of the representatives, the two
delegations recorded that their joint task was “to materialise the parallel of the
97
maritime frontier originating at Boundary Marker number one” and that in
order to do so they would place one “leading mark” near Hito No. 1, in Peruvian
territory, and a second 1,800 metres away in Chilean territory “in the direction of
the parallel of the maritime frontier” . As agreed, these two structures were
99
subsequently built to signal the boundary parallel at sea .
F. T HE 1968 E XCHANGE OF NOTES
1.37. By note of August 1968, the Secretary-General of the Ministry of
Foreign Affairs of Peru, Mr. Javier Pérez de Cuéllar, signing “[f]or the Minister”,
informed the Chilean chargé d’affaires in Lima that the Government of Peru
approved the 1968 Minutes “in their entirety”. The note recorded that those
Minutes had been signed “by the representatives of both countries in relation to
the installation of leading marks to materialise the parallel of the maritime
frontier”100.
1.38. Mr. Pérez de Cuéllar’s September 2010 statement which was
submitted to the Court as Appendix B to Peru’s Reply, makes no mention of his
own note from 1968, which was a key document in the 1968-1969 agreements
between the Parties. More than forty years after the events under discussion, and
without a single reference to the contemporaneous documentary record,
Mr. Pérez de Cuéllar now says that “the only purpose” of the Parties’ 1968
97 1968 Minutes, Annex 59 to the Memorial, p. 1.
98 Ibid.
99
See Counter-Memorial, para. 3.37 and Figure 22 to the Counter-Memorial, Vol. I,
after p. 194.
100 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.
25agreement to build two lighthouses in alignment “was for fishermen of both
countries to see from the sea the land boundary” and “did not include any
101
reference to maritime boundaries” . Yet in 1968 Mr. Pérez de Cuéllar explicitly
represented that the purpose of the two lighthouses was to be “to materialise the
parallel of the maritime frontier” 102. Peru’s representation of 1968 cannot be
recanted in the course of litigation 42 years later, not least because it formed the
first step in an agreement with Chile, in the form of an exchange of notes, which
ultimately led to the 1969 Act, discussed below. Chile replied to Mr. Pérez de
Cuéllar’s note later the same month, August 1968, echoing the language used by
both States in the 1968 Minutes and by Peru in its note. Chile referred to “the
installation of the leading marks visible from the sea to materialise the parallel of
the maritime frontier originating at Boundary Marker No. 1” 103.
G. P ERUVIAN N OTE OF 13A UGUST 1969
1.39. The following year, Peru informed Chile of the composition of its
delegation to the 1968-1969 Peru-Chile Mixed Commission. Peru there recorded
that the task of that Mixed Commission was–
“to verify the position of boundary marker number one and
fix the definitive location of the two alignment towers that
104
were to signal the maritime boundary” .
101
Statement of Mr. Javier Pérez de Cuéllar, 30 September 2010, Appendix B to the
Reply.
102 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.
103
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.
104 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 to the Counter-Memorial.
26 H. T HE 1969A CT
1.40. The full title of the 1969 Act is the “Act of the Chile-Peru Mixed
Commission in Charge of Verifying the Location of Boundary Marker No. 1 and
Signalling the Maritime Boundary”. The 1969 Act constitutes an agreement
between the Parties. Consistently with its title the Act recorded that:
“The undersigned Representatives of Chile and of Peru,
appointed by their respective Governments for the
purposes of verifying the original geographical position of
the concrete-made Boundary Marker number one (No. 1)
of the common frontier and for determining the points of
location of the Alignment Marks that both countries have
agreed to install in order to signal the maritime boundary
and physically to give effect to the parallel that passes
through the aforementioned Boundary Marker number one,
located on the seashore, constituted a Mixed Commission,
in the City of Arica, on the nineteenth of August, nineteen
105
sixty-nine.”
1.41. The 1969 Act also recorded that on 21 August 1969 “the Mixed
Commission met at Boundary Marker number one” where, “[t]he parallel having
been determined, the two points at which the front and rear alignment towers
106
shall be erected were physically marked on this line” . The lighthouses to
signal the parallel of the maritime boundary were subsequently constructed on
107
those points and began functioning in 1972 .
1.42. It is clear on the face of the text that the 1968-1969 Peru-Chile Mixed
Commission was implementing the two States’ common position that a
“maritime boundary” was in place, that it was constituted by a parallel of
105 1969 Act, Annex 6 to the Counter-Memorial.
106 Ibid., para. B.2.
107
See Notices to Mariners Nos 57 and 152 of 1972 issued by the Hydrographic
Institute of the Chilean Navy, Annexes 129 and 130 to the Counter-Memorial.
27latitude, and that the relevant parallel was to be identified and signalled by
reference to Hito No. 1.
I. C ONSULTATION ON P OTENTIAL BOLIVIAN M ARITIME ZONE IN1976
1.43. Peru has failed to acknowledge that in 1976 it expressed no opposition
to the notion that the boundary parallel with Chile would become the maritime
boundary between Peru and a then-envisaged Bolivian corridor to the sea to be
ceded by Chile as part of an exchange of territory with Bolivia. Peru was
formally consulted on this matter, and tasked a special commission to study the
matter, chaired by the former President of Peru (and the Court) Bustamante y
Rivero. The commission proposed a different territorial arrangement. Peru’s
proposal was for the coast from a point to the north of the Chilean city of Arica
up to the border with Peru to become an area of joint sovereignty among Chile,
Peru and Bolivia. Signally, however, Peru continued to accept that the maritime
zone appertaining to the relevant coast would be ceded to Bolivia: unlike today,
Peru did not lay claim to any part of that maritime zone. Even on Peru’s
proposal, the existing Chile-Peru maritime boundary would have become the
Bolivia-Peru maritime boundary. The proposed maritime zone for Bolivia and its
boundaries are depicted on Figure 73. Ultimately, negotiations terminated
without reaching agreement.
28 J. R ESOLUTIONS OF THE H ARBOUR M ASTER OF ILO IN 1989
108
1.44. On 5 June 1989 the Harbour Master of Ilo issued decisions in two
administrative proceedings brought against Chilean vessels, the Coray-I and the
109
Coray-II . Each vessel was fined 20,000 U.S. Dollars for having breached
Article C-070004 of the Peruvian Regulation of Captaincies and Maritime,
Fluvial and Lacustrine Activities, which, as set forth in the decisions, “provides
that it is prohibited for foreign ships and fishing vessels to carry out fishing
110
activities in waters under Peruvian maritime dominion” . The two vessels were
to remain impounded until the fines were paid. The two decisions are
substantively identical and record that the vessels were “seized at a point located
1.5 miles from the frontier line of the Republic of Chile, in the jurisdictional
waters of Peru” 11. The text repeats that the vessels were “intercepted and
captured” at a location with coordinates 18° 19' S and 70° 39' W by a Peruvian
112
Navy vessel “1.5 miles away from the dividing line of the maritime frontier” .
The decisions make clear that the “frontier” is not some sort of limited-purpose
108 The Harbour Master of Ilo (a city 140 km northwest of the city of Arica) is an officer
of the Peruvian Navy responsible for the control and regulation of activities carried
out in Peru’s “maritime dominion” “up to the frontier with Chile to the South [hasta
la frontera con Chile por el Sur]”. Areas of responsibility include, inter alia,
management of Ilo harbour, fishing activities, safety regulation, law enforcement,
resource protection and control of entries into Peru’s maritime dominion: Supreme
Decree No. 002-87-MA of 11 June 1987 approving the Regulation of Captaincies
and Maritime, Fluvial and Lacustrine Activities, Annex 174 to the Counter-
Memorial.
109 See Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo,
Annex 176 to the Counter-Memorial; and Resolution No. 007-89-M of 5 June
1989 by the Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
110
Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo, Annex 176
to the Counter-Memorial; and Resolution No. 007-89-M of 5 June 1989 by the
Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
111
Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo, Annex 176
to the Counter-Memorial; and Resolution No. 007-89-M of 5 June 1989 by the
Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
112
Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo, Annex 176
to the Counter-Memorial; and Resolution No. 007-89-M of 5 June 1989 by the
Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
29functional line113. Rather, the “frontier” referred to was the line that delimited, to
use the language of the Peruvian Regulations, the “waters under Peruvian
114
maritime dominion” , which the Harbour Master also described as “the
jurisdictional waters of Peru” 11.
K. C ONCLUSION
1.45. In its Reply, Peru makes the following remark: “Had the 1952
Declaration of Santiago established an international maritime boundary between
Peru and Chile there would surely have been reference to it in the years that
followed. But there was not.” 116 The examples described immediately above
demonstrate that there were numerous references to and confirmations of the
Parties’ maritime boundary in the years following its agreement. These examples
are a small selection of the voluminous evidential record attesting to the
existence of an all-purpose maritime boundary following a parallel of latitude, in
accordance with the Santiago Declaration.
* * *
1.46. The main body of this Rejoinder is organized as follows:
1.47. Chapter II of this Rejoinder analyses the issues that still divide the
Parties in connection with–
113
See, e.g., Reply, paras 4.25-4.26.
114 Quoted in Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo,
Annex 176 to the Counter-Memorial; and Resolution No. 007-89-M of 5 June
1989 by the Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
115
Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo, Annex 176
to the Counter-Memorial; and Resolution No. 007-89-M of 5 June 1989 by the
Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
116 Reply, para. 3.119.
30(a) the 1947 unilateral proclamations, which were antecedents to the
agreement delimiting the Parties’ maritime boundary;
(b) the Santiago Declaration of 1952, in which the Parties delimited their
maritime boundary using the parallel at the point where the land
boundary reaches the sea;
(c) the Agreement Relating to a Special Maritime Frontier Zone of 1954,
which acknowledged that the Parties had already delimited their
maritime boundary using the parallel of latitude, and was deemed by
the Parties to be an integral and supplementary part of the Santiago
Declaration; and
(d) the series of instruments and agreements from 1968 and 1969 by
which the Parties agreed jointly to signal their maritime boundary
using two lighthouses aligned on the operative parallel of latitude.
1.48. Chapter III discusses issues concerning the practice of the Parties in
further implementation of their agreed maritime boundary. Chapter IV explains
that as the third State party to the Santiago Declaration and to the Agreement
Relating to a Special Maritime Frontier Zone, Ecuador has consistently adopted
the same interpretation of those treaties as Chile. This has been recently
confirmed in Ecuador’s depiction of its maritime boundary with Peru on Nautical
Chart IOA 42, published in 2010. Chapter V addresses Peru’s attempt in its
Reply summarily to dismiss the widespread international acknowledgement of
the Parties’ agreed maritime boundary. Chapter V also juxtaposes that
widespread international acknowledgement against revisionist Peruvian authors
who have advocated changing the Parties’ maritime boundary, and who, in
advocating a change of the boundary, acknowledged that the boundary had been
settled. Chapter VI applies the principle of stability of boundaries to the settled
practice between the Parties, through which they have acknowledged, observed
and enforced their agreed maritime boundary. Chapter VII examines Peru’s
31alternative argument, in which Peru accepts the maritime boundary constituted
by a parallel of latitude until the outer limit of Chile’s 200M maritime zone, and
asks the Court to allow Peru to absorb into its “maritime dominion” an area of
high seas south of that parallel but beyond the outer limit of Chile’s maritime
zone. Chapter VIII contains a concise summary of the principal aspects of
Chile’s position and reasoning, and Chapter IX is Chile’s formal submissions as
to how the Court should dispose of this case.
1.49. This Rejoinder is accompanied by three appendices. Appendix A, as
already noted, explains the historical development of methods by which the outer
limits of maritime zones are measured. It demonstrates that the tracé parallèle,
rather than the envelope of arcs of circles, was the dominant method when the
Santiago Declaration was concluded in 1952. Appendix B summarizes recent
examples of commercial vessels reporting to the Peruvian maritime authorities
upon entering into or exiting from Peru’s “maritime dominion”. Appendix C sets
out details of authorizations issued by the Chilean authorities to Peruvian fishing
vessels to enter into and transit through Chile’s EEZ.
32 CHAPTER II
THE GOVERNING INSTRUMENTS
2.1. In the Santiago Declaration of 1952, the Parties delimited their
maritime boundary by agreement. That is the “agreement” for the purposes of
Articles 15, 74(4) and 83(4) of UNCLOS, concerning delimitation by agreement
of the territorial sea, EEZ and continental shelf, respectively. It is common
ground between the Parties that these provisions reflect customary international
law.
2.2. The agreement embodied in the Santiago Declaration must be read in
its proper context. The Santiago Declaration followed the concordant unilateral
proclamations of the Parties in 1947, in which Peru had explicitly claimed a
200M maritime zone measured using parallels of latitude. It was followed by the
1954 Agreement Relating to a Special Maritime Frontier Zone, which was
conceived as and stated to be “an integral and supplementary part” of the
117
Santiago Declaration , and in which the Parties acknowledged their pre-
existing maritime boundary and created zones of tolerance on either side of it.
The 1954 Agreement was in turn followed by the 1968-1969 process, in which
the Parties agreed to build two lighthouses to signal the parallel of latitude
constituting their maritime boundary. This Chapter discusses each one of this
series of instruments in chronological order, addressing the matters concerning
each of them that remain in dispute between the Parties.
Section 1. The Unilateral Proclamations of 1947
2.3. In its Reply, Peru devotes close to 20 pages 118 to an attempt to
disprove a contention that Chile does not in fact make. Peru attributes to Chile
the “contention that the 1947 declarations established an international maritime
117
Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 4. Chile discussed this at paragraphs 2.206 and 4.5-4.7 of the
Counter-Memorial.
118 See Reply, pp. 98-116.
33 119
boundary between Peru and Chile.” Peru wrongly characterizes Chile’s case in
the same way at paragraphs 3.29, 3.34, 3.40, 3.43 and 3.49 of the Reply. If
Chile’s case had been that an agreement on the maritime boundary had been
definitively reached in 1947, then Chile would have objected to the jurisdiction
of the Court, since such an agreement would have pre-dated the Pact of
120
Bogotá of 1948.
2.4. The primary significance of the 1947 proclamations to this case is as
antecedents to the Parties’ maritime boundary agreement. The Peruvian
proclamation specified that the outer limit of the Peruvian maritime claim was
121
“measured following the line of the geographical parallels” . This conception
of seaward projection meant that the southern limit of the Peruvian maritime
zone was the parallel of latitude passing through the point where Peru’s land
boundary with Chile reached the sea. Chile was formally notified of the approach
122
Peru followed in setting forth its maritime claim and acknowledged it without
objection. 123A month earlier, the Chilean proclamation had already set forth 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
124
from the coasts of Chilean territory.” Thus, when Chile and Peru came to
119
Reply, para. 3.51.
120 See Counter-Memorial, paras 1.66-1.71.
121 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3. For further
discussion see paras 2.21-2.42 and 4.54-4.57 of the Counter-Memorial.
122
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 to the Counter-Memorial.
123 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 to the Counter-Memorial.
124 1947 Chilean Declaration, Annex 27 to the Memorial, Art. 3. As noted in the
Counter-Memorial, the Chilean and Peruvian proclamations are substantially similar;
see Counter-Memorial, paras 2.27-2 43, and the two texts are juxtaposed to each
other in Figure 64. Chile noted the similarity between the proclamations in its
communication to the ILC in 1951: see Comments by Governments on the draft
articles on the continental shelf and related subjects prepared by the ILC at its third
Session in 1951 (5th session of the ILC (1953)), document A/2456, Annex II,
Annex 119, p. 242.
34 Figure 64
Figure 65
CHILE : PRESIDENTIAL D ECLARATION CONCERNING CONTINENTAL SHELF , 23JUNE 1947 P ERU : UPREME D ECREE N O . 781OF 1A UGUST 1947
Considering: THE P RESIDENT OF THE REPUBLIC ;
1. That the Governments of the United States of America, of Mexico and of the Argentine Republic, by presidential Considering:
declarations made on 28 September 1945, 29 October 1945, and 11 October 1946, respectively, have categorically
proclaimed the sovereignty of their respective States over the land surface or continental shelf adjacent to their coasts,
That the continental submerged shelf forms one entire morphological and geological unit with the continent;
and over the adjacent seas within the limits necessary to preserve for the said States the natural riches belonging to
them, both known and to be discovered in the future; That the shelf contains certain natural resources which must be proclaimed as our national heritage;
2. That they have explicitly proclaimed the rights of their States to protect, preserve, control and inspect fishing
That it is deemed equally necessary that the State protect, maintain and establish a control of fisheries and other
enterprises, with the object of preventing illicit activities threatening to damage or destroy the considerable natural natural resources found in the continental waters which cover the submerged shelf and the adjacent continental seas
riches of this kind contained in the seas adjacent to their costs, and which are indispensable to the welfare and in order that these resources which are so essential to our national life may continue to be exploited now and in the
progress of their respective peoples; and that the justice of such claims is indisputable; future in such a way as to cause no detriment to the country’s economy or to its food production;
...
3. That it is manifestly convenient, in the case of the Chilean Republic, to issue a similar proclamation of
sovereignty, not only by the fact of possessing and having already under exploitation natural riches essential to the That the right to proclaim sovereignty and national jurisdiction over the entire extension of the submerged shelf as
life of the nation and contained in the continental shelf, such as the coal-mines, which are exploited both on the
mainland and under the sea, but further because, in view of its topography and the narrowness of its boundaries, the well as over the continental waters which cover it and the adjacent seas in the area required for the maintenance and
vigilance of the resources therein contained, has been claimed by other countries and practically admitted in
life of the country is linked to the sea and to all present and future natural riches contained within it, more so than in international law (Declaration of the President of the United States of 28 September 1945; Declaration of the
the case of any other country; President of Mexico of 29 October 1945; Decree of the President of the Argentine Nation of 11 October 1946;
Declaration of the President of Chile of 23 June 1947);
4. That international consensus of opinion recognizes the right of every country to consider as its national territory ...
any adjacent extension of the epicontinental sea and the continental shelf;
That in fulfilment of its sovereignty and in defence of national economic interests it is the obligation of the State to
5. That the State has the obligation to protect and guard the exploitation of the natural riches contained in this
determine in an irrefutable manner the maritime domain of the Nation, within which should be exerted the protection,
territory, on sea, on land, and in the air; conservation and vigilance of the aforesaid resources;
With the advisory vote of the Cabinet:
The President of the Republic hereby declares: Decrees:
(1) The Government of Chile confirms and proclaims its national sovereignty over all the continental shelf adjacent 1. To declare that national sovereignty and jurisdiction are extended to the submerged continental or insular shelf
to the continental and island coasts of its national territory, whatever may be their depth below the sea, and claims by adjacent to the continental or insular shores of national territory, whatever depths and extension of this shelf may be.
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 2. National sovereignty and jurisdiction are exercised as well over the sea adjoining the shores of national territory
whatever may be their depths, and within those limits necessary in order to reserve, protect, preserve and exploit the whatever its depth and in the extension necessary to reserve, protect, maintain and utilize natural resources and
natural resources of whatever nature found on, within, and below the said seas, placing within the control of the wealth of any kind which may be found in or below those waters.
government especially all fisheries and whaling activities with the object of preventing the exploitation of natural
riches of this kind to the detriment of the inhabitants of 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 3. As a result of previous declarations the State reserves the right to establish the limits of the zones of control and
protection of natural resources in continental or insular seas which are controlled by the Peruvian Government and to
under the control of the Government of Chile will be made in virtue of this declaration of sovereignty at any moment modify such limits in accordance with supervining [ sic] circumstances which may originate as a result of further
which the Government may consider convenient, such demarcation to be ratified, amplified, or modified in any way discoveries, studies or national interests which may become apparent in the future and at the same time declares that
to conform with the knowledge, discoveries, studies and interests of Chile as required in the future. Protection and it will exercise the same control and protection on the seas adjacent to the Peruvian coast over the area covered
control is hereby declared immediately over all the seas contained within the perimeter formed by the coasts and the
between the coast and an imaginary parallel line to it at a distance of two hundred (200) nautical miles measured
mathematical parallel projected into the sea at a distance of 200 nautical miles from the coasts of Chilean territory. following the line of the geographical parallels. As regards islands pertaining to the Nation, this demarcation will be
This demarcation will be calculated to include the Chilean islands, indicating a maritime zone contiguous to the traced to include the sea area adjacent to the shores of these islands to a distance of two hundred (200) nautical miles,
coasts of the said islands, projected parallel to these islands at a distance of 200 nautical miles around their coasts. measured from all points on the contour of these islands.
(4) The present declaration of sovereignty does not disregard the similar legitimate rights of other States on a basis 4. The present declaration does not affect the right to free navigation of ships of all nations according to
of reciprocity, nor does it affect the rights of free navigation on the high seas. international law.
…conclude the Santiago Declaration in 1952, their maritime zones abutted, but did
not overlap. Delimitation of the maritime zones generated by continental
coastlines was therefore a straightforward and uncontroversial exercise when it
was done in 1952 and confirmed in 1954 in tripartite international agreements
setting forth 200M claims. As between Peru and Chile, delimitation consisted of
confirming the dividing line of their non-overlapping unilateral claims.
2.5. Rather than dealing with this point concerning the predicate for the
Santiago Declaration, upon which Chile actually relies, Peru embarks in its
Reply on a long discussion about the status of Chile’s 1947 Official Declaration
under Chilean law. The Parties’ 1947 proclamations are relevant to this case
insofar as they constituted unilateral declarations by Chile and Peru to each
other, and by each of them to the international community, of their claims to
200M maritime zones. The precise status of those proclamations under domestic
law is neither determinative of their function on the international plane, nor a
question for the Court. As the Court stated in the Nuclear Tests case in
connection with statements made by the French President: “There can be no
doubt, in view of his functions, that his public communications or statements,
oral or written, as Head of State, are in international relations acts of the French
State.”125 Their status under French law was not determinative of their status
126
under international law . The Peruvian 1947 Supreme Decree was jointly
issued by Peru’s President and Foreign Minister. Chile’s 1947 Declaration was
125 Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 494,
para. 51; also see Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v. Rwanda), I.C.J. Reports 2006, p. 27,
para. 46; and Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, pp. 121-122,
paras 25-27.
126 Also see United Nations, Guiding Principles applicable to unilateral declarations of
States capable of creating legal obligations, with commentaries thereto (58th session
of the ILC (2006)), document A/61/10, Annex 136, Principle 4 and commentary
thereto, pp. 370-374. E.g.,: “State practice shows that unilateral declarations creating
legal obligations for States are quite often made by heads of State or Government or
ministers for foreign affairs without their capacity to commit the State being called
into question.”
35issued by the President of Chile. Just like Peru’s proclamation, the Chilean text
constituted an international claim made by Chile addressed to the international
community, including Peru. For the purposes of international law, there is no
doubt that it did perform, and was perceived to have performed, that function. In
particular:
(a) The Chilean Declaration was regarded by those States that protested it
as setting forth a claim for international-law purposes 127.
(b) Chile so described it in official statements of the legal position in that
128
period . For example, in its comments submitted to the ILC in 1952,
Chile described its 1947 Official Declaration as a “categorical claim”
129
to the continental shelf and the superadjacent waters .
(c) The ILC’s Special Rapporteur on the Regime of the High Seas and the
Regime of the Territorial Sea, Professor J.P.A. François, observed in
1950 that in its 1947 Declaration, Chile “confirms and proclaims its
130
national sovereignty over the seas adjacent to its coasts. . .” .
127 See Protest by the United Kingdom Government of 6 February 1948 to the Ministry
of Foreign Affairs of Chile ,nnex 56 to the Counter-Memorial Note o; 2 July
1948 from the United States Ambassador to Chile to the Minister of Foreign Affairs
of Chile ,nnex 57 to the Counter-Memorial ; Note of 7 April 1951 from the
Government of France to the Government of the United Kingdom, Annex 58 to the
Counter-Memorial , p. 62.
128
See Letter of 16 March 1956 from the Permanent Mission of Chile to the United
Nations, reproduced in United Nations, Comments by Governments on the
Provisional Articles Concerning the Regime of the High Seas and the Draft Articles
on the Regime of the Territorial Sea adopted by the International Law Commission
at its Seventh Session (8th session of the ILC (1956)), document A/CN.4/99/Add.1,
Annex 17, pp. 42-43.
129
United Nations, Comments by Governments on the Draft Articles on the Continental
Shelf and Related Subjects Prepared by the ILC at its Third Session in 1951 (5th
session of the ILC (1953)), document A/2456, Annex II, Annex 119, pp. 242-245.
130
United Nations, Summary Record of the 69th meeting of the ILC (2nd session of the
ILC (1950)), document A/CN.4/SR.69, Annex 116, para. 108.
36(d) The Inter-American Juridical Committee acknowledged that in its
1947 Declaration, Chile “proclaimed national sovereignty” over the
seas adjacent to its coasts 131. It made a similar acknowledgment with
respect to Peru’s 1947 Supreme Decree 132.
(e) In a 1971 publication titled National and International Instruments on
the Law of the Sea, Peru’s Ministry of Foreign Relations considered
that Chile’s 1947 Declaration “establishes” Chile’s 200M claim 133.
(f) In its Reply, Peru quotes with apparent approval the statement of a
Chilean official who remarked that “even if the internal legal effects of
the Presidential gesture were dubious, the desired international impact
was accomplished.” 134
2.6. The salient point here is well illustrated by the Truman Proclamation.
This was a text issued by the President of the United States of America in
September 1945, and it is a well-accepted example of a maritime claim 135. It was
cited as an antecedent in both the Chilean and Peruvian proclamations of
136
1947 . Although the Truman Proclamation was not incorporated into
137
legislation until 1953 , its international effect from the time that it was made
131
Inter-American Juridical Committee, Statement of Reasons accompanying the Draft
Convention on Territorial Waters and Related Questions, 30 July 1952, Annex 117,
p. 5.
132
Ibid., pp. 5-6.
133 Ministry of Foreign Affairs of Peru, Instrumentos Nacionales e Internacionales
sobre Derecho del Mar, 1971, Annex 86, p. 105.
134
Reply, para. 3.26, quoting E. Bernstein Carabantes, Recuerdos de un diplomatíco.
Haciendo camino, 1933-1957, Santiago de Chile, Andrés Bello, 1984, pp. 102-103.
135 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.
136 1947 Chilean Declaration, Annex 27 to the Memorial, first recital; 1947 Peruvian
Supreme Decree, Annex 6 to the Memorial, fifth recital.
137 43 U.S.C. Subchapter III, Outer Continental Shelf Lands, Sec. 1331-1356, Ch. 345,
7 August 1953.
37has been accepted by the Court. In the North Sea Continental Shelf cases, the
Court observed that the Truman Proclamation “soon came to be regarded as the
138
starting point of the positive law on the subject” . The “subject” to which the
Court was referring was a coastal State’s “right to the continental shelf off its
shores” 139 as a matter of international law. The United States of America has
described the effect of the Truman Proclamation in similar terms in pleadings
140
before the Court .
2.7. Similarly, the Mexican Presidential Declaration of October 1945 was
an international claim to an extended maritime zone. It was issued by way of
publication in the Mexican newspaper El Universal 141. It concluded by noting
that the “competent authorities” had been instructed “to proceed with the drafting
of the appropriate legislation and the conclusion of such treaties as may be
138
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, para. 47; also see
United Nations, Guiding Principles applicable to unilateral declarations of States
capable of creating legal obligations, with commentaries thereto, (58th session of
the ILC (2006)), document A/61/10, Annex 136, Commentary to principle 3, para.
(3), footnote 938; Commentary to principle 5, para. (2), footnote 954; United
Nations, Eighth Report on Unilateral Acts of States by Mr V. Rodríguez Cedeño,
Special Rapporteur, document A/CN.4/557, 26 May 2005, Annex 134, para. 10; also
see paras 127 et seq., 170 and 182.
139 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, para. 47. Also see
Maritime Delimitation in the Area Between Greenland and Jan Mayen, Judgment,
I.C.J. Reports 1993, Separate Opinion of Judge Ajibola, p. 294.
140 See Delimitation of the Maritime Boundary in the Gulf of Maine Area
(Canada/United States of America), I.C.J. Pleadings, Vol. II, Memorial of the United
States, p. 56, para. 89 (“The United States extended its jurisdiction and control over
the natural resources of its continental shelf by the well-known Truman
Proclamation of 1945” (reference omitted)); p. 81, para. 134 (“[The Truman
Proclamation] established for the United States exclusive jurisdiction and control
over the natural resources of the seabed and subsoil of the shelf off its coasts
extending to a depth of 100 fathoms”); p. 123, para. 199 (“The starting point for
development of continental shelf doctrine was the Truman Proclamation of 1945”
(reference omitted)); Reply of the United States, p. 392, para. 40 (“The purpose of
the Truman Proclamation was to establish in general terms the sovereign rights and
jurisdiction of the United States over its continental shelf”).
141
See Declaration of the President of Mexico on the Continental Shelf of 29 October
1945, Annex 89 to the Memorial.
38 142 143
necessary.” There was no such legislation until 1960 . The Mexican
proclamation was also a text relied upon by Chile and Peru as an antecedent in
their 1947 proclamations 14.
2.8. The 1947 proclamations of Chile and Peru were in turn cited to by
145
Costa Rica in its Law No. 116 of 27 July 1948 and Honduras in its
146
Presidential Decree of 28 January 1950 . In those instruments, Costa Rica and
Honduras recognized the Chilean and Peruvian proclamations as existing claims
to the continental shelf and the waters above it 147.
2.9. To conclude, whatever their status in their domestic legal systems,
there is no doubt that the unilateral proclamations made by Chile and Peru in
1947 constituted claims under international law.
2.10. Returning to the point that is relevant to this case — Peru’s
148
notification to Chile of Peru’s use of the “line of the geographic parallels” to
measure the outer limit of the maritime zone it claimed — Peru simply asserts
that “nothing suggests that the geographical parallels were also intended to serve
as the northern and southern boundaries of Peru’s zone.” 149 Peru fails to grapple
with the fact that, having claimed a maritime zone “measured following the line
142 Declaration of the President of Mexico on the Continental Shelf of 29 October 1945,
Annex 89 to the Memorial.
143
See Decree of 20 January 1960, Official Journal of the Federation, 20 January 1960;
Law Regulating Paragraph 8 of Article 27 of the Constitution, relating to the
Exclusive Economic Zone, Official Journal of the Federation, 13 February 1976.
144
1947 Chilean Declaration, Annex 27 to the Memorial, first recital; 1947 Peruvian
Supreme Decree, Annex 6 to the Memorial, fifth recital.
145 Costa Rican Law No. 116 of 27 July 1948, Official Journal of the Republic of Costa
Rica No. 171, 29 July 1948, Annex 104, second preambular paragraph.
146 Honduran Decree No. 25 of 28 January 1950, Official Journal of the Republic of
Honduras, 22 January 1951, Annex 105.
147
Ibid.
148 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
149 Reply, para. 3.37.
39of the geographic parallels” 150, there was simply no Peruvian maritime projection
or claim southwards of the parallel of the point at which the land boundary
between Chile and Peru reaches the sea. The Peruvian maritime zone was
necessarily limited at that parallel: the limits of the zone were inherent in its
151
definition . Peru’s Ambassador Bákula recognized this in 1985:
“[A]ccording to Supreme Decree No. 781, the adjacent
zone is measured ‘following the line of the geographic
parallels’; thus the separation line between the
neighbouring countries also follows the line of the
geographic parallel of the point at which the land frontier
reaches the coast. In the case of Chile, for example, point
‘Concordia’ signals the separation parallel between the
152
Peruvian and Chilean zones” .
2.11. It was on that foundation that the Parties addressed the issue of lateral
limits at the Santiago Conference of 1952. As Peru’s Congressional Committee
of Foreign Affairs noted in its 1955 report recommending to the Peruvian
Congress that it approve the Santiago Declaration of 1952 and the Agreement
Relating to a Special Maritime Frontier Zone of 1954, Peru’s 1947 Supreme
Decree was a “necessary antecedent [obligado antecedente]” to the 1952 and
153
1954 agreements . Consistently with that approach, Peru’s 1955 Supreme
Resolution, concerning accurate depiction of the seaward and lateral limits of
Peru’s maritime zone in cartographic works, cited “the Supreme Decree of
150 1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
151
For further discussion, and illustration, of this point, see paras 2.33 and 2.34, and
Figure 3 to the Counter-Memorial, Vol. I, after p. 60.
152 J. M. Bákula, El Dominio Marítimo del Perú, 1985, Annex 163, p. 341.
153
Report of the Foreign Affairs Committee of the Peruvian Congress regarding the
agreements and treaties signed by Peru, Chile and Ecuador at Santiago, on 18 August
1952; and at Lima, on 4 December 1954, 4 May 1955, Annex 78, p. 1.
401 August 1947 and the Joint Declaration signed in Santiago on 18 August 1952
154
by Peru, Chile and Ecuador” as the bases for its maritime zone.
2.12. The unilateral proclamations made by Chile and Peru in 1947, and in
155
particular Peru’s use of the “line of the geographical parallels” to measure its
maritime projection, constitute circumstances of the conclusion of the Santiago
Declaration and of the Agreement Relating to a Special Maritime Frontier Zone
which are particularly apposite to their interpretation, in accordance with
Article 32 of the Vienna Convention 156.
Section 2. The Santiago Declaration of 1952
2.13. In its Reply, Peru states that its–
“case rests on two basic propositions: First, that the
Declaration of Santiago was not, and was not intended to
be, a legally-binding instrument establishing international
maritime boundaries. Second, that on a plain reading of the
text of the Declaration of Santiago it is obvious that the
text was a declaration of international maritime policy
which (regardless of its legal status) cannot have the effect
as an internati157l boundary treaty that Chile tries to
ascribe to it.”
2.14. In this Section, Chile addresses Peru’s two basic propositions in turn.
First, the treaty status of the Santiago Declaration is discussed. Second, the
Santiago Declaration’s delimitation of both the insular and continental (or
“general”) maritime zones of the States parties to that treaty is addressed.
154 1955 Supreme Resolution, Annex 9 to the Memorial, preambular recital. For
further discussion of Peru’s 1955 Supreme Resolution, see paras 3.3-3.10 below.
155
1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
156 See further, Counter-Memorial, paras 4.54-4.57.
157
Reply, para. 3.6.
41 A. T HE S ANTIAGO D ECLARATION HAS ALWAYS BEEN A TREATY
2.15. Chile, Ecuador and Peru jointly submitted the Santiago Declaration for
registration with the United Nations as a treaty under Article 102 of the United
Nations Charter in 1973 158. The registration request concerned twelve
instruments that had been adopted within the framework of the CPPS between
1952 and 1967, including the Santiago Declaration and the Agreement Relating
to a Special Maritime Frontier Zone. As a result, the registration process took
several years to be completed. In 1975, the United Nations Secretary-General
informed Chile, Peru and Ecuador that further information was required in order
for all twelve agreements to be registered in the Treaty Series pursuant to
159
Article 102 of the United Nations Charter . The three States, acting within the
framework of the CPPS, agreed to send separate responses confirming that no
reservations or declarations had been made to the 1952 agreements 160 and
described the domestic-law ratification processes for three 161 of the 1954
158 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 to the Counter-Memorial.
159 Letter of 8 September 1975 from the Secretary-General of the United Nations to the
Permanent Representative of Chile to the United Nations, Annex 24.
160
These were: the Santiago Declaration, Annex 47 to the Memorial; the Agreement
Relating to the Organization of the Permanent Commission of the Conference on the
Exploitation and Conservation of the Marine Resources of the South Pacific,
Santiago, signed and entered into force on 18 August 1952, 1006 UNTS 331,
Annex 48 to the Memorial; the Joint Declaration concerning Fishing Problems in
the South Pacific, Santiago, signed and entered into force on 18 August 1952, 1006
UNTS 317; and the 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.
161 These were: the Agreement Relating to a Special Maritime Frontier Zone, Annex 50
to the Memorial; the Convention Relating to the Granting of Permits for the
Exploitation of the Maritime Resources of the South Pacific, signed at Lima on
4 December 1954, Annex 36 to the Reply; and the Convention on the Ordinary
Annual Meeting of the Permanent Commission of the South Pacific, signed at Lima
on 4 December 1954, Annex 37 to the Reply.
42 162
agreements . (On the same occasion, the three States also decided not to pursue
registration of two of the twelve instruments, which dealt with internal
organizational issues of the CPPS 163.) The three States submitted their respective
164
responses to the United Nations in 1976 . In so doing, the three States
specifically addressed their minds to the treaty status of the Santiago Declaration
and the Agreement Relating to a Special Maritime Frontier Zone, confirming that
these agreements had treaty status at their time of entry into force. Chile also
provided to the United Nations an official declaration stating that (inter alia) the
165
Santiago Declaration had entered into force upon signature .
2.16. The United Nations duly registered the Santiago Declaration as a
treaty pursuant to Article 102 and recorded in the Treaty Series in 1976 that it
166
had entered into force upon signature . Peru did not indicate any disagreement
about the status of the Santiago Declaration — in fact it had not done so until
this case — and even now Peru does not allege that the United Nations
registration in the Treaty Series was in error in stating that the Santiago
Declaration entered into force on signature. Peru is silent in its Reply about how
an instrument jointly registered as a treaty with the United Nations by the States
parties, and which entered into force on signature, could be anything other than a
treaty, and a treaty from the start.
162 Extract from the Final Act of the XIIIth Ordinary Meeting of the Permanent
Commission of the South Pacific in relation to the registration of the Agreements of
the South Pacific with the United Nations, 9 January 1976, Annex 15.
163
Ibid., p. 114, para. 6.
164 Letter 4-2-30 of 21 April 1976 from the Permanent Mission of Ecuador to the United
Nations to the Secretary-General of the United Nations, Annex 28; Letter No.
325/43 of 31 March 1976 from the Permanent Mission of Chile to the United
Nations to the Secretary-General of the United Nations, Annex 27; 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 29.
165 Declaration of 16 September 1971 by Chile’s Under-Secretary of Foreign Affairs,
Annex 52; also see Letter of 31 March 2011 from the Secretariat of the United
Nations to the Permanent Mission of Chile to the United Nations, Annex 38.
166 Santiago Declaration, Annex 47 to the Memorial, footnote 1.
432.17. In its Memorial, Peru asserted that the Santiago Declaration was
conceived “not as a treaty but as a proclamation of the international maritime
policy of the three States”, and went on to say that on “ratification by Congress,
it acquired the status of a treaty, and was subsequently registered with the United
167
Nations.” Thus expressed, Chile understood Peru’s argument to be that when
signed, the Santiago Declaration was not a treaty, but that it subsequently was
transformed into one by dint of the domestic-law ratification process. Chile
responded to that argument in paragraphs 2.62-2.69 of its Counter-Memorial. In
its Reply, Peru says for the first time that although ratification of the Santiago
Declaration by Chile, Ecuador and Peru in 1954 and 1955 gave it “the status of a
treaty” 168, this was only “in domestic political terms” 169 and did not “directly
170
affect the status of the instrument as a matter of international law.” Peru states
that following congressional approval in accordance with domestic law, and joint
registration as a treaty with the United Nations, “the States concerned came to
treat the Declaration as a treaty in their international relations.” 171That is to say,
Peru now argues that the Santiago Declaration never actually became a treaty as
172
a matter of international law . In this way Peru seeks to introduce into the
corpus of international law the novel category of instruments which are not
treaties but are “treated as” such.
2.18. Peru’s position now appears to be that when the Santiago Declaration
173
was signed, it was “a policy declaration” and that “[s]ubsequent developments,
including domestic ratification and eventual registration with the United
Nations” 174 did not alter the fact that as a matter of international law it remains
167
Memorial, para. 4.70.
168 Ibid., para. 4.70; Reply, para. 3.161.
169
Reply, para. 3.161.
170 Ibid.
171
Ibid., para. 3.165.
172 Ibid., para. 3.144.
173
Ibid., para. 3.143.
174 Ibid., para. 3.144.
44“a purely political instrument” 175. The conclusion that Peru now appears to
contend for is that the Santiago Declaration was not and has never become a
treaty — i.e., that it does not meet the customary international law test reflected
in Article 2(1)(a) of the Vienna Convention of being “an international
176
agreement. . .governed by international law” . Peru says that the parties gave
the Santiago Declaration the status of a treaty under domestic law, and treated it
as a treaty in their international relations, but it was not, and is not, a treaty for
the purposes of international law.
2.19. Peru has not explained how an instrument could have the status of a
treaty, and be treated as a treaty, but not actually be a treaty. If the parties confer
the status of a treaty on an instrument and they treat it as a treaty in their
international relations, then they clearly intend it actually to be a treaty, and the
instrument is a treaty for the purposes of the Vienna Convention. An instrument
operating as a treaty is a treaty. Peru’s purpose in suggesting otherwise is
obvious. Peru wishes to establish that the Santiago Declaration “was not an
international agreement capable even in principle of establishing. . .a
boundary” 177.
2.20. Without reiterating the analysis of the Santiago Declaration as a treaty
appearing at paragraphs 2.58-2.69 of its Counter-Memorial, which it fully
maintains, here Chile simply responds to points raised by Peru in its Reply.
1. The Santiago Declaration is an Instrument of ‘Positive Law’
2.21. In support of its attempt to deny treaty status to the Santiago
Declaration, Peru quotes as “very illustrative” 178 a statement made by Peru’s
Ambassador Bákula in an academic work published in 1985. Ambassador
175 Reply, para. 3.144.
176
Ibid., para. 3.147.
177 Ibid., para. 3.143.
178
Ibid., para. 3.145.
45Bákula referred to the “‘purely declarative’ nature of the documents signed in
Santiago de Chile” 179. Peru overlooks two points. First, in the very same
180
sentence, Ambassador Bákula refers to these documents as “agreements” . The
fact that an agreement may be described as “declarative” does not negate its
treaty status. So far as Chile and Peru were concerned, the Santiago Declaration
was, as already noted, declarative of their 200M claims and their abutting but not
overlapping zones. Second, Peru says nothing about the much earlier official
statement made by Dr. Enrique García Sayán (who as Foreign Minister had co-
signed Peru’s 1947 proclamation) in his capacity as Peru’s representative at the
First United Nations Conference on the Law of the Sea in 1958. This statement
was quoted at paragraph 2.64 of the Counter-Memorial, but Peru remained silent
about it in the Reply. The official summary record of the conference indicates
that Dr. García Sayán said: “The instruments of positive law which stated Peru’s
position were the decree of 1 August 1947 and the pact with Chile and Ecuador,
181
referred to as the Santiago Declaration, signed in 1952” . The verbatim record
published in Peru 182 confirms that Dr. García Sayán clearly acknowledged that
the Santiago Declaration was an international treaty. Prominent Peruvian authors
183
have also considered the Santiago Declaration to be a treaty . In fact, Peru’s
pleadings in this case mark the first time Peru has denied treaty status to the
Santiago Declaration.
2.22. Chile has always held the view that the Santiago Declaration is part of
positive law. For example, at the inaugural session of the 1954 CPPS Meeting,
179
Reply, para. 3.145.
180 Ibid.
181
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 (emphasis
added).
182
Intervention by Dr. García Sayán of Peru in the general debate of the Second
Committee of the First United Nations Conference on the Law of the Sea, 13 March
1958, Annex 14, p. 50.
183 See, e.g., E. Ferrero Costa, El Nuevo Derecho del Mar – El Perú y las 200 Millas,
1979, Annex 174, pp. 60-61.
46the Minister of Foreign Affairs of Chile referred to the Santiago Declaration as
“the legal statement [la expresión jurídica]” formulated by Chile, Ecuador and
184
Peru in 1952 . The same position was expressed in a communication to the ILC
in 1956 185.
2. The Santiago Declaration established Binding Legal Obligations
2.23. Peru argues that the “actual terms of the Declaration of Santiago
demonstrate beyond doubt that it was not intended to establish legally-binding
186
obligations” and that it has “all the hallmarks of a statement of policy” . In fact,
however, the position is that the Santiago Declaration set forth binding
obligations. Article II provides that:
“[T]he Governments of Chile, Ecuador and Peru proclaim
as a norm [norma] of their international maritime policy
that they each possess exclusive sovereignty and
jurisdiction over the sea along the coasts of their respective
countries to a minimum distance of 200 nautical miles
from these coasts.”
The term norma, rendered above as “norm”, denotes a rule. Article II sets forth
an obligation for the States parties to maintain their 200M zones. That this
184
Minutes of the Inaugural Session of the 1954 CPPS Meeting, 4 October 1954,
Annex 35 to the Counter-Memorial, p. 3.
185 See Letter of 16 March 1956 from the Permanent Mission of Chile to the United
Nations, reproduced in United Nations, Comments by Governments on the
Provisional Articles Concerning the Regime of the High Seas and the Draft Articles
on the Regime of the Territorial Sea adopted by the International Law Commission
at its Seventh Session (8th session of the ILC (1956)), document A/CN.4/99/Add.1,
Annex 17, pp. 42-43, where Chile referred to the Santiago Declaration and the
Agreement Relating to a Special Maritime Frontier Zone of 1954 as “international
agreements signed with Ecuador and Peru”.
186 Reply, para. 3.150.
47provision is related to the maintenance of the States parties’ “international
maritime policy” 187does not make it any less of an obligation.
2.24. Further, the provisions which set forth the nature and geographic
scope of the 200M zones of the States parties are worded in terms readily
recognizable as the language of legal rights or obligations. Accordingly,
Article III of the Santiago Declaration provides that the “exclusive jurisdiction
and sovereignty over this maritime zone shall also encompass exclusive
sovereignty and jurisdiction over the seabed and subsoil thereof.” 188 These
statements of legal rights pertaining to the maritime area include the continental
shelf.
2.25. Article IV of the Santiago Declaration provides 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 which the land frontier of the States
concerned reaches the sea.”
Article V is as follows:
“This declaration shall be without prejudice to the
necessary limitations to the exercise of sovereignty and
jurisdiction established under international law to allow
innocent and inoffensive passage through the area
indicated for ships of all nations.”
187
Santiago Declaration, Annex 47 to the Memorial, Art. II.
188 Ibid., Art. III.
482.26. Self-evidently, these are statements of rights and obligations capable
of being part of a treaty. Peru must agree, at least with respect to Article IV,
given that it considers that Article IV limits the projection of Ecuadorean insular
maritime zones as against the Peruvian continental maritime zone 189. Article IV
simply could not have performed that function unless it was a treaty obligation.
2.27. Peru emphasizes that Article VI of the Santiago Declaration announces
the parties’ intention–
“to sign agreements or conventions which shall establish
general norms to regulate and protect hunting and fishing
within the maritime zone belonging to them, and to
regulate and co-ordinate the exploitation and development
of all other kinds of products or natural resources existing
in these waters which are of common interest.”
Peru notes that this intention was announced to be for “the application of the
190
principles contained in this Declaration” . Peru argues that this provision “is
explicit on the non-binding nature of the points contained in the Declaration of
Santiago” because it envisages future agreements for the application of the
191
“principles” contained in the Santiago Declaration .
2.28. It is a non sequitur to say that because further agreements were
envisaged to implement the principles in the Santiago Declaration, the
Declaration itself was not an agreement governed by international law 19. The
Santiago Declaration contained principles, and it envisaged subsequent, more
189 E.g., Reply, paras 3.71 and 3.81.
190 Santiago Declaration, Annex 47 to the Memorial, Art. VI.
191
Reply, para. 3.150.
192 Ibid., paras 3.150-3.151. Cf. e.g., Convention for the Protection of the Ozone Layer,
signed at Vienna on 22 March 1985, 1513 UNTS 323 (entered into force 22
September 1998), Art. 2(2) (“. . .the Parties shall. . .(c) Co-operate in the formulation
of agreed measures, procedures and standards for the implementation of this
Convention, with a view to the adoption of protocols and annexes”).
49specific treaties in further implementation of those principles. This fact does not
permit the conclusion that Peru now seeks to draw, which is that these principles
193
were “only non-binding principles” . The subsequent more specific treaties
concluded in further implementation of the Santiago Declaration include the
following:
— two instruments, signed in 1954 and 1955 19, relating to the issuance
of permits for the exploitation of maritime resources (both living and
non-living) in the maritime zones of Chile, Ecuador and Peru;
— the Agreement Relating to Measures of Supervision and Control in the
195
Maritime Zones of the Signatory Countries of 1954 ; and
— the Agreement Relating to a Special Maritime Frontier Zone of 1954,
creating zones of tolerance on either side of the maritime boundaries
that had already been delimited in the Santiago Declaration.
2.29. These implementing agreements proceeded on the basis that the States
parties’ individual maritime zones, and their maritime boundaries, had already
been delimited in the Santiago Declaration. And all the above instruments were
treaties under international law. It is strained to suggest that a number of treaties
were entered into pursuant to an express provision in the Santiago Declaration
and yet that Declaration itself was not a treaty.
193 Reply, para. 3.152. Cf. e.g., International Convention on the Elimination of all forms
of Racial Discrimination, signed at New York on 21 December 1965, 660 UNTS 195
(entered into force 4 January 1969), Art. 7 (“State Parties undertake to adopt
immediate and effective measures. . .with a view to. . .propagating the purposes and
principles of. . .this Convention”).
194
Convention on the Granting of Permits for the Exploitation of the Maritime
Resources in the South Pacific, signed at Lima on 4 December 1954, Annex 36 to
the Reply; Regulation of Permits for the Exploitation of the Resources of the South
Pacific, signed at Quito on 16 September 1955, Annex 5 to the Counter-Memorial.
195
Annex 4 to the Counter-Memorial.
502.30. The fact that the Santiago Declaration created rights and obligations
for its signatories may further be seen from its invocation by those signatories in
their bilateral discussions initiated by the United States of America about testing
the validity of the 200M claims or proposing potential bilateral fisheries
arrangements deviating from the Santiago Declaration. For example, on 2 May
1955 the United States Department of State recorded that the United States
Ambassador to Ecuador had discussed with the President of that country about
Ecuador’s maritime claim. Ecuador resisted the proposal by the United States to
submit the dispute to the International Court of Justice, and instead “insisted
upon acting together with Peru and Chile in working out a solution of the
problem.” Ecuador “was not a free agent and was bound by the Santiago
Declaration to consider this question with the other two signatories.” 196The same
view was expressed by Chile in response to a subsequent proposal from the
197
United States for an international fisheries conference . Finally, in January
1963, the United States Embassy in Lima made a similar report to the Secretary
of State concerning Peru’s approach to the Santiago Declaration. The Embassy
reported that it had been handed a note by the Secretary-General of the Peruvian
Foreign Ministry in response to protests by the United States about seizure of,
and fines levied on, United States ships. It also reported that Peru could not
accept the protest by the United States about its exercise of jurisdiction beyond
three nautical miles, and that Peru was “bound by its international obligations
under [the] 1952 Santiago Declaration and other acts undertaken with Chile and
198
Ecuador.”
196
United States Department of State, Memorandum of Conversation of 2 May 1955
entitled “Marginal Seas Conflict with Ecuador”, Annex 106.
197 See Note No. A-762 of 10 June 1967 from the United States Embassy in Chile to the
United States Department of State, with an unofficial translation of Letter No. 09700
of 8 June 1967 from the Chilean Ministry of Foreign Affairs, Annex 19.
198
Telegram No. 719 of 31 January 1963 from the United States Embassy in Peru to the
Secretary of State of the United States, Annex 18.
512.31. Having previously treated the Santiago Declaration as a treaty, Peru
cannot now credibly assert that it is not a treaty just because that contrary
approach suits it better for the purposes of this litigation 199.
3. The Title and Form of the Santiago Declaration
2.32. Peru argues that the title and form of the Santiago Declaration indicate
that it was not a treaty 20. Chile dealt with this argument at paragraphs 2.62-2.69
of its Counter-Memorial, and nothing that Peru has said in its Reply affects the
validity of those points. Peru now acknowledges that the Maroua Declaration,
considered by the Court in the Case Concerning the Land and Maritime
201
Boundary between Cameroon and Nigeria , effected a maritime-boundary
202
delimitation . What Peru does not record is that every one of the characteristics
that Peru alleges show that the Santiago Declaration is not a treaty 203was also
extant in the Maroua Declaration 204. These characteristics are also present in
205
other treaties that States have chosen to title as a “declaration” . These
206
characteristics include that :
199
See Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2007, p. 859, paras 79-80; Award of the
President of the United States in Regard to the Validity of the Treaty of Limits
between Costa Rica and Nicaragua of 15 July 1858, 22 March 1888, RIAA,
Vol. XXVII, pp. 203, 206.
200 Memorial, paras 4.70-4.71 and 4.81; Reply, paras 3.153-3.155.
201
See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria; Equatorial Guinea intervening), Merits, Judgment, I.C.J. Reports 2002,
para. 263.
202
Reply, para. 3.153, footnote 291.
203 Ibid., para. 3.153.
204
Maroua Declaration between the United Republic of Cameroon and Nigeria,
Maroua, signed and entered into force on 1 June 1975, 1237 UNTS 319, Annex 5.
205 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, Annex 3; the Tashkent Declaration between
India and Pakistan, Tashkent, signed and entered into force on 10 January 1966, 560
UNTS 39, Annex 2; and the Declaration on the Construction of Main International
52— the signatory States are not referred to as “Parties”;
— the instrument contains “points” rather than “articles”;
— the instrument does not conclude with a testimonium; and
— the individuals who signed the declaration were not explicitly stated to
be signing “for” their government.
2.33. To take Peru’s argument that the Santiago Declaration is not a treaty
207
because it has “points” not “articles” as an example: even if this were true, it
would be irrelevant. But it is not true either. The individual parts of the Santiago
Declaration are simply numbered: in the text of the Declaration they are not
called articles, paragraphs, points, or anything else. In its Memorial, Peru
208
referred to them as “paragraphs” . Peru’s letter to Ecuador of 9 June 2010
refers to “article IV”209 of the Santiago Declaration. At the 1954 Inter-State
Conference, the Peruvian and Chilean delegates both referred to “Article 4” of
210
the Santiago Declaration . Peru’s 1955 Supreme Resolution implementing
Article IV of the Santiago Declaration refers to it as “inciso IV”, which is
translated by Peru as “clause IV”211. It was only in its Reply of November 2010
that Peru began referring to the Santiago Declaration as having “points”, and
sought to draw a legal conclusion from that newly-assigned terminology.
Traffic Arteries, Geneva, signed and entered into force on 16 September 1950,
92 UNTS 91, Annex 1.
206
See Reply, para. 3.153.
207 Ibid., para. 3.153(d).
208
See, e.g., Memorial, paras 4.75-4.80.
209 Letter of 9 June 2010 from the President of Peru to the President of Ecuador,
Annex 81 to the Reply, second paragraph.
210
Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38 to the Counter-Memorial, p. 3.
211 1955 Supreme Resolution, Annex 9 to the Memorial, second operative paragraph.
532.34. In conclusion, arguments about title and form simply cannot advance
Peru’s case. First, they have been invented in the course of this litigation.
Second, as the Court held in Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, “international agreements may take a number of
212
forms and be given a diversity of names.” As the Case Concerning the Land
and Maritime Boundary between Cameroon and Nigeria 213 shows, that principle
applies to maritime boundary treaties just as it does to other types of treaties.
4. Ratification of the Santiago Declaration under Domestic Law
2.35. Peru emphasizes in its Reply that the ratification of the Santiago
Declaration in the domestic legal systems of the three States parties could not
affect the objective status of the Santiago Declaration as a treaty under
international law 214. That is true. As noted above 215, the Santiago Declaration
entered into force upon signature. Whatever subsequent acts of ratification or
approval may have been necessary or desirable under the domestic legal systems
216
of the States parties , they would be incapable of changing the nature or force
of the instrument under international law, which was extant on signature.
212 Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, p. 120, para. 23. Also
see United Nations, Report of the ILC to the United Nations General Assembly (17th
session of the ILC (1966)), document A/6309/Rev.1, Commentary to Draft Article 2
on the Law of Treaties, Annex 121, p. 188.
213 See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria; Equatorial Guinea intervening), Merits, Judgment, I.C.J. Reports 2002,
para. 263.
214 Reply, para. 3.161.
215 See para. 2.16 above.
216 The acknowledgement during the ratification process in Peru of the boundary-
delimitation component of the Santiago Declaration is discussed at paras 2.74-2.81
below.
54 5. Relevance of Registration of the Santiago Declaration by the United Nations
2.36. Article 102 of the United Nations Charter provides that: “Every treaty
and every international agreement entered into by any Member of the United
Nations after the present Charter comes into force shall as soon as possible be
registered with the Secretariat and published by it.” Peru argues that it is
somehow legally significant that Chile, Ecuador and Peru did not submit the
Santiago Declaration for registration until 1973.
2.37. Peru acknowledges the relevance of the Court’s decision in Maritime
Delimitation and Territorial Questions between Qatar and Bahrain in this
context 21, and it may be helpful to provide the relevant passage from that
judgment: “Non-registration or late registration. . .does not have any
consequence for the actual validity of the agreement, which remains no less
218
binding upon the parties” . The fact that registration of the Santiago
Declaration was delayed is of no consequence. The salient fact is, rather, that in
jointly registering the Santiago Declaration with the United Nations as a treaty,
all three contracting States specifically considered the status of the Declaration
as a treaty, and acknowledged in concert that it was a treaty binding upon
them 219. That acknowledgement cannot be undone by unilateral assertions made
decades later in pleadings before the Court designed to put in dispute a matter
that previously was not.
2.38. Peru also cites as authority a paper by D. N. Hutchinson for the
proposition that registration of an instrument is not conclusive as to its status 220.
Chile does not take issue with this proposition. But Chile also agrees with the
legal proposition which is more apposite here and which is also set out in
217
Reply, para. 3.158; also see paras 3.147 and 3.153.
218 Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, p. 122, para. 29.
219 See para. 2.15 above.
220
Reply, para. 3.167.
55Professor Hutchinson’s paper (though not quoted by Peru): “[The] act of
transmitting the agreement for registration. . .will serve as evidence that [the
transmitting State] considers the agreement in question to be a treaty” 221. Here,
all three signatories jointly submitted the Santiago Declaration for registration as
a treaty under Article 102 of the United Nations Charter.
2.39. Peru suggests that the “primary reason for registration may well have
been a desire further to enhance the political weight of the Declaration in the
context of the hard-fought negotiations on the 200-nautical-mile maritime zone
at UNCLOS III (1973-1982).” 222 If that is Peru’s view, it only reinforces the
point that Chile made in paragraphs 2.135-2.149 of the Counter-Memorial:
having obtained significant political and economic benefits from the Santiago
Declaration as a whole, Peru cannot now resile from the one aspect of the
Santiago Declaration by which it no longer wishes to be bound, i.e., the maritime
delimitation aspect 22. In any event, after-the-event speculation about why the
three States parties registered the Santiago Declaration as a treaty cannot alter the
objective fact of registration and these States’ acknowledgement of treaty status
that follows from their having submitted it for registration under Article 102 of
the United Nations Charter.
2.40. To conclude, Peru’s attempts to discredit the Santiago Declaration by
asserting that it was not a treaty, never became one as a matter of international
law, and did not comport with imaginary formal requirements for boundary
treaties, are mere distractions. The proper object of the debate concerning the
Santiago Declaration is whether it did or did not effect a maritime delimitation
between Chile and Peru. It is to that issue that this Rejoinder now turns.
221
D. N. Hutchinson, “The Significance of the Registration or Non-Registration of an
International Agreement in Determining Whether or Not it is a Treaty”, in
S. Davidson (ed.), The Law of Treaties, 2004, Annex 177, p. 265. Also see para.
2.15 above.
222 Reply, para. 3.168.
223
Also see para. 2.26 above on Peru’s reliance on the legal obligations derived from
the Santiago Declaration.
56 B. T HE DELIMITATION A SPECT OF THE SANTIAGO D ECLARATION
2.41. In the Santiago Declaration of 1952 the Parties reasserted in a
multilateral instrument the individual maritime claims that they had already
made unilaterally in 1947. The outer limit of those claims was of paramount
importance, for the obvious reason that it had come under challenge in the
international community. In the Santiago Declaration, the Parties were defending
and consolidating their individual claims, as part of a tripartite effort also
involving Ecuador. Since the lateral extent of each maritime zone was not
controversial, it was far less prominent than the outer limit in the text of the
Santiago Declaration. Peru even now acknowledges that lateral limits were
indeed dealt with, at least with respect to insular projections.
2.42. Peru argues in its Reply that, first, the Santiago Declaration “was not
an international agreement capable even in principle of establishing. . .a
boundary” 224. There is simply no support for this proposition. Customary
international law prescribes no standard of specificity to determine the starting
point, reference point, or the course of a maritime boundary. Second, Peru makes
an internally inconsistent argument that Article IV of the Santiago Declaration
“limits the maritime zones of islands; but it does not purport to delimit the zones
between States in any other circumstances 225. Peru contends that: “Specifically,
and as a pragmatic and simple solution, the maritime zones which [islands]
generate may be curtailed by lines of latitude in circumstances where they
overlap with the ‘general maritime zone’ of another country that participated in
226
formulating the declaration” .
2.43. Peru has never confronted the fundamental problem that arises on the
interpretation of Article IV of the Santiago Declaration that it has created for
224 Reply, para. 3.143.
225 Ibid., para. 3.71.
226
Ibid., para. 3.72.
57these proceedings. Why would the three States deal with the overlap between
insular zones of one State and the continental zone of an adjacent State, but not
with the supposed overlap between the continental zones generated by those
States? Overlap between an insular zone and a continental zone was only one
aspect of lateral limits, and concerned primarily only two of the three States
parties, Peru and Ecuador. The fact is that all three States parties were claiming
“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” 22. This “exclusive sovereignty and jurisdiction” encompassed “the
seabed and subsoil thereof” 228. This claim applied first and foremost to the
229
“general maritime zone” appertaining to the continental coast of each of the
three States parties to the Santiago Declaration. And that is what the three States
parties delimited. As Dr. Marisol Agüero Colunga of Peru wrote in 1990, a
230
contrary interpretation would be “nonsensical” , and this is graphically
illustrated at paragraphs 2.60 et seq. below.
2.44. As the travaux préparatoires confirm, the maritime projection of
islands received particular attention in Article IV of the Santiago Declaration,
because that was the sole situation which could give rise to an overlap of the
maritime projections of adjacent States. The maritime projection of the continent
was conceived as proceeding seawards along lines of latitude. Peru explicitly
formulated its claim in that manner in 1947 and neither Chile nor Ecuador
objected to it. For this reason, the maritime projection of the continental zones of
the adjacent States abutted but did not overlap, and the limits of each State’s
zone were inherent in the definition of it as extending seaward along lines of
latitude. The delimitation between them was thus both simple and
227 Santiago Declaration, Annex 47 to the Memorial, Art. II.
228
Ibid., Art. III.
229 Ibid., Art. IV.
230
M. F. Agüero Colunga, Delimitación Marítima del Perú con Ecuador y con Chile,
1990, Annex 156, pp. 101-102. On Dr. Agüero Colunga’s writings see further paras
5.28-5.29 below.
58uncontroversial. It followed the line of latitude where the adjacent zones abutted.
This point was developed in paragraphs 2.32-2.42 and 2.80-2.88 of the Counter-
Memorial. Peru’s answer is to persist in its Reply with the bare contention that
by the time of the Santiago Declaration Peru was using an arcs-of-circles
methodology, rather than a form of tracé parallèle, to determine its continental
maritime projection, thus creating overlap with Chile’s maritime zone. It is
therefore necessary to return to this issue.
1. Peru’s Maritime Projection at the Time of the Santiago Declaration
2.45. Peru asserts that an “ordinary reading” of the Santiago Declaration is
“that the maritime reach of the mainland coasts would radiate in all directions for
231
200 nautical miles as an ‘arcs of circles’ entitlement” . That is incorrect. The
three States parties agreed in Article II of the Santiago Declaration that they
possessed “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” 232. Article II did not indicate that this 200M zone would be measured
following an envelope-of-arcs-of-circles approach.
2.46. As noted above, in 1947 Peru had explicitly indicated the method by
which it measured the outer limit of its maritime projection. It was measured
233
“following the line of the geographical parallels” . This created a maritime
zone bounded laterally by two parallels of latitude and in respect of its seaward
limit following a form of tracé parallèle 234. In other words, this was a method
which consisted “of drawing the outer limit of the belt of territorial waters by
following the coast in all its sinuosities” 235. As international law stood in 1952,
231
Reply, para. 3.74.
232 Santiago Declaration, Annex 47 to the Memorial, Art. II.
233
1947 Peruvian Supreme Decree, Annex 6 to the Memorial, Art. 3.
234 This is further explained at para. 4.58 of Peru’s Memorial and para. 2.33 of Chile’s
Counter-Memorial.
235
Fisheries Case (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 128.
59there was overwhelming support for the tracé parallèle method to define the
236
outer limit of the maritime projection of a continental territory . Confirmation
of Peru’s position in 1947 and 1952 is that Peru was still using that same
conception of its maritime zone in 1955. In that year it issued a Supreme
Resolution specifying the seaward and lateral limits of the Peruvian maritime
zone for the purposes of depicting it in cartographic and geodesic work. In so
doing, Peru specifically cited “the Supreme Decree of 1 August 1947 and the
Joint Declaration signed in Santiago on 18 August 1952 by Peru, Chile and
237
Ecuador” as the bases for its maritime zone. This 1955 Supreme Resolution
defined the outer limit of Peru’s maritime zone as follows:
“The said zone shall be limited at sea by a line parallel to
the Peruvian coast and at a constant distance of
200 nautical miles from it” 238.
2.47. Since the outer limit was “a line parallel to the Peruvian coast”, as a
simple matter of geometry, the limit cannot have been determined using an
envelope of arcs of circles. This can be seen on Figure 4.1 of Peru’s own
Memorial 23, as it can be seen on Figure 9 of the Counter-Memorial 24. An outer
limit determined using arcs of circles will never be “a line parallel to
the. . .coast”. Thus, in its 1955 Supreme Resolution, Peru maintained the
conception of maritime projection that it had adopted in its 1947 Supreme
Decree, and specifically referred to the Santiago Declaration in doing so. As it
had been in 1947, and in 1952, in 1955 the “constant distance” of 200M was
measured along parallels of latitude.
236
See Appendix A to this Rejoinder.
237 1955 Supreme Resolution, Annex 9 to the Memorial, preambular recital.
238
Ibid., first operative paragraph.
239 Memorial, Vol. IV, p. 23.
240
Counter-Memorial, Vol. I, after p. 102.
602.48. Peru asserts that its Petroleum Law of 1952 241, issued some months
before the Santiago Declaration, adopted an envelope-of-arcs-of-circles
approach, such that by the time of the Santiago Declaration, the tracé parallèle
established by the 1947 Supreme Decree had been abandoned 24. There is no
evidence for the proposition, and Peru blithely ignores its own Supreme
Resolution of 1955, three years after the Petroleum Law and the Santiago
Declaration. In fact, the Petroleum Law is silent on the method of measuring the
200M outer limit. It simply refers to “an imaginary line drawn seaward at a
constant distance of 200 miles from the low-water line along the continental
coast” 24. It does not say how that constant distance is to be measured. The 1947
Supreme Decree had already done so. The Petroleum Law was an act
implementing the maritime zone already proclaimed. That Law neither purported
to set forth Peru’s maritime zone nor resulted in changing it.
2.49. A more recent document of the Peruvian Navy confirms how, until
this litigation, Peru viewed the method of measuring seaward projection used in
its 1952 Petroleum Law. In November 2000, the Peruvian Minister of Defence,
communicating the position of the Navy on a possible ratification of UNCLOS,
wrote to the Peruvian Minister of Foreign Affairs noting that such ratification
and the enactment of the proposed Law on Baselines, “would allow the
correction of the existing error in the current legislation [citing the 1955 Supreme
Resolution and the 1952 Petroleum Law] in measuring the 200 miles following
the parallels of the points of the coast.” 244 In this communication the Peruvian
Navy explicitly acknowledged that the Petroleum Law of 1952 “measur[ed] the
241 Law No. 11780 of 12 March 1952: Petroleum Law, Annex 8 to the Memorial,
Art. 14(4).
242 Reply, para. 3.60.
243
Law No. 11780 of 12 March 1952: Petroleum Law, Annex 8 to the Memorial,
Art. 14(4).
244 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 to the Counter-
Memorial, para. (m).
61200 miles following the parallels of the points of the coast” 245. It is inconceivable
that in 2000 Peru’s Navy did not know how Peru was measuring the outer limit
of its 200M “maritime dominion”. Chile discussed this in paragraph 2.121 of the
Counter-Memorial. Peru was silent in reply.
2.50. In 2005, the Peruvian Baselines Law was enacted, in accordance with
the expressed desire of the Navy. It states in Article 4 that:
“In accordance with the Political Constitution of the State,
the outer limit of the maritime domain [dominio marítimo]
of Peru is traced in such a manner that every point of the
mentioned outer limit is at a distance of two hundred
nautical miles from the nearest baselines point, pursuant to
the delimitation criteria established in International
Law.” 246(Emphasis added.)
That is an envelope-of-arcs-of-circles provision. It reflects the approach taken in
Article 4 of UNCLOS concerning the outer limit of the territorial sea (except that
it uses 200M instead of 12M). No earlier document published by Peru contains a
provision that sets forth the same method.
2.51. Peru has pleaded an interpretation of its Petroleum Law that is not
supported by the text of the instrument, which is inconsistent with both the 1947
Supreme Decree which preceded it and the 1955 Supreme Resolution which
followed it, and which is directly contradicted by an internal Peruvian
Government communication of 2000 from the Minister of Defence to the
Minister of Foreign Affairs. Peru asserts that the Petroleum Law used an
245 “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 to
the Counter-Memorial, 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.
246
Law No. 28621 of 3 November 2005: Baselines Law of the Maritime Dominion of
Peru, Annex 23 to the Memorial, Art. 4.
62envelope-of-arcs-of-circles methodology because it wishes now to deny the
historical fact that when the Santiago Declaration was agreed, Peru and Chile
had maritime zones that abutted, but did not overlap, thus explaining why lateral
limits between the Parties were so uncontroversial in 1952.
2.52. Ecuador also understood that the fact that Peru’s 1947 Supreme
Decree projected Peru’s maritime zone “following the line of the geographical
parallels” was an “antecedent” to the Santiago Declaration, in which “[t]his
criterion was adopted”, “by the three countries”, to constitute an “international
maritime frontier” that was a line “of easy and simple recognition” 247. Peru
cannot in the course of these proceedings unilaterally revise this agreed basis for
the creation of its maritime boundaries.
2. Minutes of the 1952 Santiago Conference
2.53. The 1952 Minutes were formally signed by the delegates of Chile,
Ecuador and Peru. They record the discussions in the Legal Affairs Commission
of the 1952 Santiago Conference, which developed the text of the Santiago
Declaration. The Minutes record that the Ecuadorean delegate–
“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 the borders
248
of the countries touches or reaches the sea.” (Emphasis
added.)
247 Memorandum No. 3-DST of 20 January 1969 from the Ministry of Foreign Affairs
of Ecuador to the Embassy of Argentina in Ecuador, Annex 22, discussed further at
paras 4.12-4.13 below.
248 Minutes of the First Session of the Legal Affairs Commission of the 1952
Conference, 11 August 1952 at 4.00 p.m., Annex 56 to the Memorial, p. 2.
63Immediately afterwards the 1952 Minutes record that:
249
“All the delegates agreed to this proposal.”
2.54. The 1952 Minutes specifically record that:
“The motion to keep special record of the foregoing
statements in the Minutes of this Commission’s Sessions
was unanimously agreed, in order to serve as a true record
of the extent, sense and accuracy of interpretation of this
part of the Declaration. It was also agreed to provide each
delegation with an authenticated copy of these Minutes so
that it is attached to the declaration for the purposes each
country may deem appropriate.” 250
So described, it is clear that the States parties recorded in the 1952 Minutes
“their precise intentions regarding the meaning attached by them to a particular
article of the treaty.” 251 The 1952 Minutes “illuminat[e] a common
252
understanding as to the meaning” of Article IV of the Santiago Declaration,
rather than simply recording the individual positions of the States parties in the
negotiations. Article 31(2) of the Vienna Convention, reflecting customary
249
Minutes of the First Session of the Legal Affairs Commission of the 1952
Conference, 11 August 1952 at 4.00 p.m., Annex 56 to the Memorial, p. 2. The
original Spanish text reads as follows: “Todos los delegados estuvieron conformes
con esta proposición.”
250 Minutes of the Second Session of the Legal Affairs Commission of the 1952
Conference, 12 August 1952 at 4.00 p.m., Annex 34 to the Counter-Memorial,
p. 3.
251 Conditions of Admission of a State to Membership in the United Nations, Advisory
Opinion, I.C.J. Reports 1948, Dissenting Opinion of Judges Basdevant, Winiarski,
McNair and Read, para. 12.
252 Cf. Arbitration regarding the Iron Rhine (“Ijzeren Rijn”) Railway between the
Kingdom of Belgium and the Kingdom of the Netherlands, Award, 24 May 2005,
RIAA, Vol. XXVII, para. 48.
64 253
international law , compels reference to this context in interpreting Article IV
of the Santiago Declaration.
2.55. The 1952 Minutes, as a “true record” of the agreed “interpretation” of
the Santiago Declaration, confirm that the delegates from the three countries
agreed that “the boundary line” was to be “the respective parallel from the point
at which the borders of the countries touches or reaches the sea”. It was on this
agreed basis that Article IV of the Santiago Declaration was drafted. Chile
emphasized this agreement at paragraph 2.78 of its Counter-Memorial. Peru says
nothing about it in its Reply.
2.56. It was necessary to clarify how the boundary would operate with
respect to islands for two reasons. First, the issue of islands was brought to the
fore with Ecuador’s participation. Secondly, maritime projection of islands was
conceived as being separate and different from the maritime projection of the
continent: continental projection was conceived since 1947 as being constrained
by the zone of adjacent States, while insular projection was not necessarily so.
Thus, no clarification or amplification was needed regarding the operation of the
boundary with respect to continental projections. Again, since the continental
landmass projected along lines of latitude, the continental projections of adjacent
States abutted, but did not overlap, at the parallel of latitude passing through the
point where the relevant land boundary reached the sea. The clarification that
was made with respect to islands was that although they would have a 200M
radial projection as an ordinary rule, that projection would be cut short if it met
254
the parallel of latitude constituting the “boundary line” . Indeed, the existence
253
254 See the authorities mentioned at footnote 761 of the Counter-Memorial.
See the observations made by Mr. Fernández, the Ecuadorean delegate to the 1952
Conference: Minutes of the First Session of the Legal Affairs Commission of the
1952 Conference, 11 August 1952 at 4.00 p.m., Annex 56 to the Memorial, p. 2.
65 255
of the boundary line was the only logical reason for curtailing insular zones , as
will presently be seen.
3. The Text of Article IV of the Santiago Declaration
2.57. No attempt will be made here to repeat the extensive analysis in
Chapter IV of Chile’s Counter-Memorial of the proper interpretation of
Article IV of the Santiago Declaration following the interpretive process
mandated by Articles 31 and 32 of the Vienna Convention. Here Chile limits
itself to brief supplementary observations on Article IV of the Santiago
Declaration. Those observations are made on the basis that “the Court cannot
base itself on a purely grammatical interpretation of the text. It must seek the
interpretation which is in harmony with a natural and reasonable way of reading
256
the text, having due regard to the intention of” the Parties.
2.58. For the purposes of this litigation, Peru has proffered an argument that
Article IV serves only to limit the radial projection of islands within 200M of the
parallel of latitude passing through the point where the land boundary reaches the
sea, on the one hand, and the continental maritime projection of the adjacent
State, on the other hand.
2.59. Article IV refers to islands “situated less than 200 nautical miles from
the general maritime zone belonging to another” declarant country. How could
one determine whether an island was 200M from the general maritime zone of
another declarant country if the maritime boundary between the general maritime
zones of adjacent declarant countries was not delimited? On Peru’s interpretation
of Article IV, this determination simply could not be made. Yet Article IV
255 Dr. Agüero Colunga, one of the Peruvian authors relied upon by Peru, and the co-
ordinator of Peru’s legal team in these proceedings, agreed in her 1990 monograph
that this was the logical reason: see M. F. Agüero Colunga, Delimitación Marítima
del Perú con Ecuador y con Chile, 1990, Annex 156, pp. 101-102, quoted at
para. 5.28 below.
256 Anglo-Iranian Oil Co. Case, Jurisdiction, Judgment, I.C.J. Reports 1952, p. 104.
66requires it to be made. Chile highlighted this problem at paragraph 2.83 of the
Counter-Memorial. Peru has not responded.
2.60. The treatment of islands in Article IV of the Santiago Declaration was
a specific implementation of the maritime boundary that also applied between
the “general” (i.e., continental) maritime zones of adjacent States. That boundary
was, in the terms of Article IV, “the parallel at the point at which the land
frontier of the States concerned reaches the sea”. As Chile observed at paragraph
2.82 of the Counter-Memorial:
“[T]he 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. . .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. . .there is no reason to delimit the insular
maritime zone of State A. . .by using that parallel of
latitude”.
The following diagram was included to illustrate this point graphically:
67In the above-quoted extract Chile simply noted that which a distinguished
Peruvian specialist recently described as the reading commanded by logic 257.
Chile used the term “presupposes” to indicate exactly the same point of logic.
2.61. Today, however, Peru makes three arguments in its Reply. First, Peru
says that Article IV of the Santiago Declaration is a “protective provision” for
islands 258. Peru illustrates its reading by an adaptation of the box on the left of
259
Chile’s diagram, on Figure R-3.1 of its Reply . Peru’s illustration is
reproduced below, with minor adaptations:
2.62. Peru says that its delimitation line “would describe an irregular
course” 26, “sav[ing]” for the island of State A a “wedge-shaped maritime
space” 261. Peru’s delimitation line follows a highly improbable and impractical
course. As may be seen in the diagram, it includes a segment consisting of two
arcs of unequal lengths, joined by a straight line which follows a parallel of
257 See M. F. Agüero Colunga, Delimitación Marítima del Perú con Ecuador y con
Chile, 1990, Annex 156, pp. 101-102, quoted at para. 5.28 below.
258
See Reply, para. 3.96.
259 Ibid., p. 135.
260
Ibid., para. 3.97.
261 Ibid., para. 3.98.
68latitude. That “irregular” segment is shown as a black/yellow line in the
illustration above.
2.63. Peru fails to explain why the States parties to the Santiago Declaration
would have agreed to “protect” insular zones by using a parallel of latitude in the
first place, and then choose to do so in a way resulting in an eccentric boundary
line — and yet, for all that, failing to give to islands the full effect of their
maritime zones. What is more, if Peru’s reading were correct, much of the
Agreement on the Special Maritime Frontier Zone 262would have practically no
effect. This agreement is “an integral and supplementary part” of the Santiago
Declaration 263. In its Article 1 it provides for a “special zone. . .on either side of
the parallel which constitutes the maritime boundary between the two countries”.
If Peru’s present reading were to be credited, the Article 1 zone would apply
only on part of one segment of the boundary line, as shown in the illustration
above. Suffice it to say that never has such a reading been advanced by any of
the States parties.
2.64. The truth is, Peru stands Article IV of the Santiago Declaration on its
head. The provision does not “protect” insular zones. It does the converse. It
preserves continental maritime zones to their full extent, i.e., up to the boundary
parallel, confining any overlapping insular zones to the other side of the
boundary parallel. This is illustrated in the middle box of Chile’s diagram, which
is reproduced at paragraph 2.60 above.
2.65. Peru’s second argument is to say that if there had been an “established,
presupposed maritime boundary”, as Peru understands Chile to claim, “[t]here
would have been no need to reiterate this point with point IV of the
Declaration” 26. As has already been explained, however, Chile’s position is not
262 See Counter-Memorial, paras 2.197 et seq. and Rejoinder, paras 2.99-2.122.
263 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 4.
264
Reply, para. 3.94.
69that a boundary delimitation had been effected in 1947. Rather, Chile’s position
is that in 1947 neither Chile nor Ecuador had objected to Peru’s claimed 200M
maritime zone, which was conceived as bounded by parallels of latitude to the
265
north and the south . In the Santiago Declaration, when the three States parties
memorialized their maritime claims in an international treaty, they agreed on
parallels of latitude as their lateral boundaries. Indeed, the travaux préparatoires
of both the Santiago Declaration and the Agreement on the Special Maritime
Frontier Zone show a concern to leave a clear record that parallels of latitude are
the lateral boundaries between the States parties, both as between two continental
maritime zones and as between an insular zone and a continental maritime
266
zone .
2.66. Finally, Peru comments on the box on the right-hand side of Chile’s
diagram (paragraph 2.60 above) that it is irrelevant. Peru says that in this case
there is no overlap between the insular zone of State A and the continental zone
of State B, and hence no need for State A to limit the insular zone at a parallel of
latitude. Peru’s point is valid on the diagram but wrong in principle. A slightly
revised diagram is provided below. As may be seen from it, if the boundary
between the continental maritime zones of State A and State B is a line other
than a parallel of latitude, and that line curtails the insular zone of State A in the
slightest, then Peru’s reading of Article IV would limit the insular zone at the
parallel even though the boundary line between the continental maritime zones
would not require such a limitation.
265
See Counter-Memorial, paras 2.34-2.39.
266 See paras 2.53 et seq. above and paras 2.87 et seq. below.
702.67. In sum, Peru’s newly proposed reading of Article IV of the Santiago
Declaration leads to eccentric and improbable results.
2.68. Based on its newly-minted reading of Article IV, Peru says that since
there are islands within 200M of the parallel of latitude passing through the point
where the Ecuador-Peru land boundary reaches the sea, but not within 200M of
the point where the Chile-Peru land boundary reaches the sea, Article IV applies
between Ecuador and Peru, but not as between Chile and Peru.
2.69. For all the reasons that Chile has advanced, this interpretation is
incorrect. Nonetheless, the interpretation of Article IV that Peru has advanced in
these proceedings would also create a maritime boundary between Chile and
Peru constituted by the parallel of latitude passing through the point where their
land boundary reaches the sea.
2.70. The small Chilean island of Alacrán lies close to the coast of Arica,
7.6M south of the parallel constituting the maritime boundary. It has an area of
0.08 km². In 1967 it was joined to Arica by a causeway. When the Santiago
Declaration was concluded in 1952, there was no such connection. Alacrán was
shown as an island on the Peruvian chart of 1968, which is partially reproduced
in Figure 65.
712.71. There are also a number of small Peruvian islands within 200M of the
parallel of latitude passing through Hito No. 1. Although Peru does not
acknowledge the existence of these small islands in its pleadings in this case, the
Peruvian Government’s National Institute for Statistics and Information records
two of these small islands, Isla Casca and Isla Blanca, in its list of Peru’s insular
territories, and specifies that they have a surface area of 0.15 km², which is
15 hectares 267. As shown on Figure 65, the 200M radial maritime projections
created by these islands pursuant to the terms of the Santiago Declaration would,
on Peru’s present interpretation of Article IV, create a maritime boundary
extending further seaward than Chile’s 200M maritime zones, although not to the
full extent of Peru’s 200M “maritime dominion” measured following an arcs-of-
circles methodology. Even on Peru’s incorrect interpretation of Article IV of the
Santiago Declaration the existing maritime boundary rests on the Parties’
agreement for almost all of its length.
2.72. These small islands are mentioned here for the sake of completeness.
None of them was mentioned in the negotiating record related to the 1952
Santiago Declaration. Nor were any of the islands shown by Peru on Figure 2.2
of its Memorial, which Peru now says distinguish the Ecuador-Peru situation
from the Chile-Peru situation. The only islands that were mentioned in the
context of the Santiago Declaration were Ecuador’s Galápagos Islands, which
would only have become relevant to issues of lateral delimitation if Peru had
extended its maritime zone further seaward, as it was permitted to do under
Article II of the Santiago Declaration 268.
2.73. The true position is that the States parties to the Santiago Declaration
agreed that their maritime zones were to be limited by the parallels of latitude
passing through the points at which their land frontiers reached the sea. They
267
National Institute of Statistics and Information of Peru, Perú: Compendio Estadístico
2008, Annex 102, p. 24, section 1.11.
268 See Counter-Memorial, paras 2.85-2.86.
72 Figure 65
Figure 65
Peruvian and Chilean islands in the vicinity of the Chile-Peru maritime boundary Isla Blanca
776°W 774°W 772°W 770°W
Islote Kay Islote Casca
Peru
Isla Blanca, Islote Kay and Islote Casca
Islotes Lobos
Islotes Lobos
118°S 118°S
Allacrán
Alaccrán
Parallel of the international maritime boundary
200M limits drawn by envelope of arcs of circles
from the mainland baselines
200M arc from Islote Kay and Islote Casca, islands off Matarani
200M arc from Islotes Lobos, islands off Ilo
200MM arc from AAlacrán (connected to the mainland by causeway
since 1967), island off Arica
Datum: WGS84 Projection: Mercator
Charts:
220°S 220°S
Bahía Matarani: Peru Dirección de Hidrografía y Navegación chart 3231,
new chart 1981, 2nd Ed. Oct 2002
Puerto Io:: Peru Dirección de Hidrografía y Navegación chart 3245,
new chart 1972, 5th Ed. Mar 2009
Arica: Peru Departmento de Hidrografia y Faros chart 2390,
Chile
new chart 1968
0 20 40 60 80 100 M
776°W 774°W 772°W 770°W
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancyalso agreed that islands would have a 200M radial projection, except if they were
within 200M of the boundary of the continental zones, in which case they would
be limited by that same, all-purpose, boundary.
4. Acknowledgement of the Maritime Boundary by Peru’s Congress
2.74. In its Memorial Peru stated that when “reference was made to the
[Santiago] Declaration in the Congresses of Peru and Chile in the 1950s there
was no mention of it being a boundary agreement” 26. In the Counter-Memorial,
Chile pointed out that in fact, when addressing Congress concerning
congressional approval of the Santiago Declaration, a member of the Foreign
Affairs Committee of Congress, Dr. Peña Prado, had specifically acknowledged
that the objectives of the 1952 and 1954 conferences included “establishing the
270
maritime boundaries between the signatory countries” . There can be no
argument about the meaning of that statement. Unable to cast doubt on the
content of the statement, in the Reply Peru attempted to discredit its source.
Seizing on the fact that the speech was published in a Peruvian newspaper of
record, La Crónica, two days after it was delivered, Peru refers to it as “a
newspaper report of a speech supposedly as delivered before the Peruvian
271
Congress” . Peru asserts that “the Official Records of the Peruvian Congress
272
for 5 May 1955 contain no such reference” .
2.75. The congressional record produced by Peru is not a verbatim record of
273
the debate, but rather summary minutes of interventions made . Chile sought
access to the verbatim record of the debate at Peru’s Congressional Library, but
was told that although verbatim records of debates from 1947 to 1955 inclusive
269 Memorial, para. 4.81.
270
J. M. Peña Prado, Address to the Congress of Peru, reproduced in La Crónica, Lima,
7 May 1955, Annex 246 to the Counter-Memorial.
271 Reply, para. 3.162.
272
Ibid.
273 See Records of the Second 1954 Extraordinary Legislature of the Peruvian Congress,
Second Session held on Thursday 5 May 1955, Annex 7 to the Reply.
73existed, they were missing. Chile has been able to obtain from a library outside
274
Peru a subsequent issue of the Diario de los Debates del Congreso Nacional
that commences on 28 July 1955, but has been unable to locate the equivalent
publication for 5 May 1955.
2.76. The summary minutes that Peru has produced for 5 May 1955 make
clear that in his capacity as a member of the Foreign Affairs Committee,
Dr. Peña Prado did address the Peruvian Congress that day on the topic of the
Santiago Declaration and the Agreement Relating to a Special Maritime Frontier
275
Zone, and that he “explained the scope of the clauses” of those two treaties .
That explanation is contained in the reproduction of his speech which is at
Annex 246 to Chile’s Counter-Memorial. That document is not, as Peru alleges,
276
“a newspaper report” . It is a verbatim record of the speech Dr. Peña Prado
delivered in Congress, contemporaneously reproduced in full in a newspaper of
record.
2.77. The editorial component of the publication is as follows:
“We hereinafter reproduce the important intervention of
Deputy Dr. Juan Manuel Peña Prado during the session of
Congress held on the 5th instant. We offer it after having
obtained it in its entirety; in it, the distinguished
congressman reaffirms the historical, legal and fair stance
on the 200 nautical miles of the Peruvian Coast. Dr. Peña
Prado, with a wide experience in the field, essentially
supported the report of the Foreign Affairs Committee of
the Congress, when the agreements and conventions
signed between the Governments of Peru, Chile and
Ecuador on the Exploitation and Conservation of the
Maritime Resources of the South Pacific were put to
274 See República Peruana, Diario de los Debates del Congreso Nacional, Vol. I, 1955,
Annex 81.
275 Records of the Second 1954 Extraordinary Legislature of the Peruvian Congress,
Second Session held on Thursday 5 May 1955, Annex 7 to the Reply, p. 7.
276
Reply, para. 3.162.
74 debate. Here is the text of this important
intervention. . .”277
2.78. Following this, Dr. Peña Prado’s speech was produced verbatim. In it
he explicitly refers to the establishment of “the maritime boundaries between the
278
signatory countries” . No correction was ever published. Chile submits that the
Court should accept as authoritative the verbatim record reproduced in La
Crónica, unless and until Peru makes available to the Court the full official
verbatim report of the debate in Congress on 5 May 1955, rather than just the
summary report.
2.79. Even the summary report that Peru has produced makes clear that the
lateral limits of Peru’s “maritime dominion” were discussed in Congress on
5 May 1955. Not only does it describe Dr. Peña Prado as having “explained the
279
scope of the clauses” of the two treaties placed before Congress for its
approval, Deputy Vildoso Rejas clearly also discussed Peru’s maritime
boundaries. He is recorded as having made an intervention in which he declared
himself “in favour of the Agreements” 280. He is further recorded as having
“formulated some comments on the first clause of the Agreement Relating to a
Special Maritime Frontier Zone” 281, which is the article that refers to “the
parallel which constitutes the maritime boundary between the two countries” 282.
He then “advocated for the provision contained therein to be combined
with. . .the supreme decree No.-23 of 12 January 1955, specifying the
277
J. M. Peña Prado, Address to the Congress of Peru, reproduced in La Crónica, Lima,
7 May 1955, Annex 246 to the Counter-Memorial, with a transcript and translation
of this portion produced as Annex 138 to this Rejoinder, pp. 74-75.
278 Ibid.
279
Records of the Second 1954 Extraordinary Legislature of the Peruvian Congress,
Second Session held on Thursday 5 May 1955, Annex 7 to the Reply, p. 7.
280 Records of the Second 1954 Extraordinary Legislature of the Peruvian Congress,
Second Session held on Thursday 5 May 1955, Annex 79, p. 7.
281
Ibid.
282 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 1.
75cartographic technique for the drawing of the 200-mile distance line.” 283 In so
doing, Deputy Vildoso Rejas explicitly linked the maritime boundary referred to
in the Agreement Relating to a Special Maritime Frontier Zone to Peru’s
Supreme Decree, promulgated less than four months prior to his comments,
which had specified how to measure the lateral and outer limits of Peru’s
maritime zone. As noted above at paragraph 1.29, Peru’s Supreme Decree No. 23
of 1955 provided that “[i]n accordance with clause IV of the Declaration of
Santiago” the line constituting the lateral limit of Peru’s maritime zone, “may not
extend beyond that of the corresponding parallel at the point where the frontier
284
of Peru reaches the sea.” Peru’s domestic congressional approval of the
Santiago Declaration and the Agreement Relating to the Special Maritime
Frontier Zone in May 1955 followed swiftly after Peru’s specification of the
lateral and seaward limits of its maritime zone for cartographic and geodesic
purposes, including by reference to Article IV of the Santiago Declaration, in
January of that same year.
2.80. Having sought to disregard Dr. Peña Prado’s speech, Peru says in its
Reply that “[w]hat is significant” is that “the ‘Report’ issued by the Foreign
Affairs Committee of the Congress at the time of the approval of said
instruments by the legislative branch. . .contained no reference to maritime
285
boundaries.” This is inaccurate. Peru refers to Annex 96 to its Memorial. That
annex contains three pages only of the eleven-page report. None of those three
pages contains a reference to the maritime boundary. The full report appears as
Annex 6 to Peru’s Reply. None of the extracts translated by Peru contains any
reference to the maritime boundary. However, at page 10 of the original Spanish
version, which Peru chose not to translate, the Report discusses the Agreement
Relating to the Special Maritime Frontier Zone of 1954 and specifically refers to
the “maritime frontiers between the neighbouring States [fronteras marítimas
283 Records of the Second 1954 Extraordinary Legislature of the Peruvian Congress,
Second Session held on Thursday 5 May 1955, Annex 79, p. 7.
284 1955 Supreme Resolution, Annex 9 to the Memorial, Art. 2.
285
Reply, para. 3.163; and also see Reply, para. 3.127.
76entre los Estados vecinos]” 286. Not only is this an explicit reference to maritime
frontiers, it uses the plural “fronteras” — rather than the singular “frontera”
which would have been consistent with Peru’s present argument that the 1954
Agreement referred only to the maritime frontier between Ecuador and Peru 287.
Peru’s own contemporaneous record shows its present argument to have been
created for the purposes of this litigation.
2.81. Even the summary Report which Peru has made available shows that
in 1955, Peru’s congressional Foreign Affairs Committee considered Peru to
have two maritime frontiers, one in the north with Ecuador and one in the south
with Chile, and that the Committee recommended to Congress that it approve the
1952 and 1954 agreements on that basis. In Legislative Resolution No. 12305 of
6 May 1955 Peru’s Congress duly gave its approval simultaneously to the
Santiago Declaration and the Agreement Relating to a Special Maritime Frontier
Zone. The Peruvian President “enacted” that resolution of Congress on 10 May
1955 288.
5. Regional Discussion in 1952 of the Obligation to Establish Maritime
Boundaries by Agreement
2.82. In its Reply Peru states:
“Today a State may claim an exclusive economic zone,
knowing what that claim entails and knowing that it
implies a need eventually to define the limits of its
exclusive economic zone as against the zones of
neighbouring States — although even now such defined
286
Report of the Foreign Affairs Committee of the Congress of Peru on the Agreements
and Treaties signed by Peru, Chile and Ecuador in Santiago, on 18 August 1952 and
in Lima, 4 December 1954, Annex 6 to the Reply, with a translation of this portion
produced as Annex 78 to this Rejoinder.
287 See Memorial, paras 4.103-4.104; Counter-Memorial, paras 2.202-2.205; Reply,
para. 4.15; and para. 2.112 below.
288
Legislative Resolution No. 12305 of 6 May 1955, enacted by the Peruvian President
on 10 May 1955, Annex 10 to the Memorial.
77 limits are usually negotiated over long periods, and usually
years after the initial claim is made. But sixty years ago the
South American States were feeling their way in uncertain,
unchartered waters, without the benefit of the clarity
brought by later developments on the law of the sea.” 289
2.83. This rhetoric is designed to support Peru’s assertion that “there was no
intention on the part of the authors of the Declaration of Santiago to agree upon
one or more international maritime boundaries in 1952.” 290
2.84. The awareness of the Parties in 1952 of the need to delimit their
extended maritime zones can be seen from their sponsorship of the Draft
Convention on Territorial Waters and Related Questions 291. That Draft
Convention was adopted by the Inter-American Juridical Committee on 30 July
1952, weeks only before the Santiago Declaration was signed in August 1952.
Article 1 of the Draft Convention set forth a right for the coastal State to the
physical continental shelf and to the waters above it. Article 2 set forth a right “to
establish an area of protection, control and economic exploitation, to a distance
of two hundred nautical miles” in the waters along a State’s coast. Article 3
addressed the question of delimitation by agreement in the following terms:
“When two or more continental shelves, or areas of
protection and control, overlap, the States to which they
belong shall limit the scope of their sovereignty or
jurisdiction by mutual agreement or by submitting the
289
Reply, para. 4.7.
290 Ibid., para. 4.8.
291
Inter-American Juridical Committee, “Draft Convention on Territorial Waters and
Related Questions”, 30 July 1952, Annex 117. On the contribution of Latin
American States to the development of the law of the sea more generally, see
F. V. García-Amador, “The Latin American Contribution to Development of the
Law of the Sea”, American Journal of International Law, Vol. 68, 1972, p. 33;
A. A. Mawdsley, “The Latin American Contribution to the Modern Law of the Sea”,
Netherlands International Law Review, Vol. XXXIX, p. 63; 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.
78 question to the procedures established by the 292ties for
the settlement of international controversies.”
2.85. The 1952 Draft Convention was sponsored by Argentina, Chile,
Mexico and Peru. Although it was never adopted as a treaty, it demonstrates that
immediately prior to the Santiago Declaration, both Chile and Peru were
advocating a legal obligation to delimit the extended maritime zones of adjacent
States by agreement. Such an obligation was subsequently adopted in the Geneva
Convention on the Continental Shelf of 1958, which provided in relevant part
that:
“Where the same continental shelf is adjacent to the
territories of two adjacent States, the boundary of the
continental shelf shall be determined by agreement
between them. . . .”93
2.86. Consistently with the position that they had taken at the Inter-
American Juridical Committee just weeks earlier, in the Santiago Declaration of
August 1952, Chile and Peru delimited their maritime boundary by agreement.
Section 3. The Agreements of 1954 Confirming the Maritime Boundary
A. T HE 1954M INUTES
2.87. In the course of negotiating the 1954 Complementary Convention and
the 1954 Agreement Relating to a Special Maritime Frontier Zone, Chile,
Ecuador and Peru agreed that they had already delimited their maritime
boundaries in 1952.
292 Inter-American Juridical Committee, “Draft Convention on Territorial Waters and
Related Questions”, 30 July 1952, Annex 117, Art. 3.
293
Convention on the Continental Shelf, signed at Geneva on 29 April 1958, 499 UNTS
311 (entered into force on 10 June 1964), Art. 6(2).
792.88. This is a point of fundamental importance to these proceedings. The
1954 Minutes formally record the agreement of Chile, Ecuador and Peru on the
correct interpretation of Article IV of the Santiago Declaration. Pursuant to the
rule of customary international law reflected in Article 31(3)(a) of the Vienna
Convention, this agreement must be taken into account in the interpretation of
Article IV of the Santiago Declaration. It constitutes an authentic interpretation
of Article IV, of equal value and status to a joint interpretive declaration or
protocol. Yet when Peru annexed to its Memorial the very page of the 1954
Minutes on which this agreement is recorded, it redacted the part of the page
recording the agreement 294. In response to the discussion of this agreement in
Chile’s Counter-Memorial, Peru considers the 1954 Minutes only in cursory
fashion, at paragraphs 4.14-4.16 and 4.18 of its Reply. Since Chile has already
described the agreement recorded in the 1954 Minutes in detail in the Counter-
Memorial 29, here Chile simply responds to the few assertions that Peru made in
its Reply.
2.89. First, Peru attacks the agreement on the basis that it related to the
296
“dividing line of the jurisdictional waters”, not “maritime boundaries” . Peru
says that there “is no mention of what Chile refers to in its Counter-Memorial as
the ‘maritime boundaries’.” 297
2.90. In the Santiago Declaration the parties had claimed “exclusive
sovereignty and jurisdiction” over the sea, the seabed and its subsoil 298. The
Complementary Convention recited that they had already “proclaimed their
Sovereignty” up to a minimum distance of 200M, over “the sea”, including “the
294
See further para. 1.23 above.
295 For detailed discussion of this agreement see Counter-Memorial, paras 2.189-2.201
and 4.47-4.53.
296
Reply, para. 4.14.
297 Ibid.
298
Santiago Declaration, Annex 47 to the Memorial, Arts II and III.
80 299
corresponding soil and subsoil” . In Article 1 of the Complementary
Convention, the three States recorded their “defence of the principle of
Sovereignty over the Maritime Zone up to a minimum distance of 200 nautical
miles, including the soil and subsoil thereof.” 300Clearly, when the three States
were discussing the Complementary Convention, they were discussing a
comprehensive maritime claim, not some sort of limited functional jurisdiction
concerned only with fisheries.
2.91. The States parties to the 1954 agreements used a number of different
terms to refer to the delimitation of their maritime zones including, as Peru
301
emphasizes, “the dividing line of the jurisdictional waters” . In a three-day
period, delegates are recorded in the Minutes as also having used the terms “the
302 303
dividing line of the jurisdictional sea” , simply “the dividing line” , the
“maritime jurisdictional boundary” 304 and “the maritime boundary between the
neighbouring signatory countries” 30. These terms were used interchangeably to
refer to the maritime boundary between the maritime zones of sovereignty and
jurisdiction claimed by the three States in the Santiago Declaration and affirmed
in the Complementary Convention.
299
Complementary Convention to the Declaration of Sovereignty on the Two-Hundred-
Mile Maritime Zone (the Complementary Convention), Annex 51 to the Memorial,
first recital.
300
Ibid., Art. 1.
301 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38 to the Counter-Memorial, p. 3.
302
Ibid.
303 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 1.
304 Final Minutes of the 1954 Inter-State Conference, 4 December 1954, Annex 40 to
the Counter-Memorial, p. 12.
305
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
812.92. Peru’s assertion that there “is no mention of what Chile refers to in its
Counter-Memorial as the ‘maritime boundaries’” is simply false 306. The term
“maritime boundary [límite marítimo]” is used twice in the 1954 Minutes, at
pages 7 and 8 of the Minutes of the Second Session of Commission I of the 1954
Inter-State Conference 307.
2.93. Peru’s second attack on the agreement recorded in the 1954 Minutes is
308
to ask: “What, precisely, was ‘settled’ and when was it settled?” The Minutes
state what was settled:
“[T]hat 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.” 309
The Minutes also state when this was settled. The Peruvian delegate insisted that
310
“this agreement was already established in the Conference of Santiago” .
2.94. Peru’s third attack is to assert that: “The minutes do not reveal what
311
the Ecuadorean [delegate’s] specific concern was in initiating the debate.” In
fact, the Minutes record precisely the Ecuadorean delegate’s concern. It was to
exclude the prospect of a reading of the text of Article IV of the Santiago
Declaration that is exactly the one that Peru now advances in these proceedings.
The Minutes record that the Ecuadorean delegate, Mr. Salvador Lara–
306
Reply, para. 4.14.
307 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, pp. 7 and 8.
308
Reply, para. 4.15.
309 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38 to the Counter-Memorial, p. 3.
310
Ibid., p. 4.
311 Reply, para. 4.15.
82 “moved for the inclusion in this [Complementary]
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.” 312
The Ecuadorean delegate wished to confirm that the “dividing line of the
jurisdictional sea” had already been agreed in the Santiago Declaration, and did
not relate only to “delimitation of waters regarding the islands” 313.
2.95. The 1954 Minutes record that the Peruvian and Chilean delegates said
in response that they “believe that Article 4 of the Declaration of Santiago is
314
clear enough and, therefore, does not require further explanation.”
2.96. Peru’s final attack on the agreement is to ask in its Reply: “But what
315
was clear?” What was clear was that which the Ecuadorean delegate wished to
confirm: “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.” 316
2.97. All three States agreed on that point. Since Chile and Peru considered
it unnecessary to include an additional article in the Complementary Convention
to confirm that the maritime boundaries applied for all purposes, and not just
with respect to islands, Ecuador consented to the (Chilean) Chairman’s
compromise suggestion that the agreement of the three States be memorialized in
the Minutes. When the draft Minutes were read out at the beginning of the next
312 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38 to the Counter-Memorial, p. 3.
313 Ibid.
314 Ibid.
315
Reply, para. 4.16.
316 Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38 to the Counter-Memorial, p. 3.
83session, they were changed so that they did not record merely the Ecuadorean
statement, but rather “that the three countries had agreed on the concept of a
317
dividing line of the jurisdictional sea” . With this agreement recorded, the
delegates of each State then signed the Minutes.
2.98. One may see the immediate implementation of this agreement in
Article 1 of the Agreement Relating to a Special Maritime Frontier Zone, to
which the three States then turned in the course of the 1954 Inter-State
Conference 318. Article 1 specifically refers to “the parallel which constitutes a
maritime boundary”. The 1954 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
319
countries, was incorporated into this article.”
B. T HE 1954 A GREEMENT RELATING TO A S PECIAL M ARITIME F RONTIER ZONE
1. The Title of the Agreement
2.99. In its Reply, Peru takes issue with the abbreviated title that Chile used
in the Counter-Memorial for the 1954 Agreement Relating to a Special Maritime
320
Frontier Zone . Chile had referred to it as the “Lima Agreement”. The only
purpose of the abbreviation was brevity. Peru having objected, in this Rejoinder
Chile refers to the agreement by its full title: the Agreement Relating to a Special
Maritime Frontier Zone. What Chile objects to, as pointed out in the Counter-
317
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 1.
318 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 1.
319
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
320 Reply, para. 4.4.
84Memorial 321, is that the abbreviation that Peru has created for these proceedings,
the “Agreement on a Special Zone”, simply omits the two words that are
problematic for Peru’s case: “Maritime Frontier”.
2.100. With those two words included, the title of the 1954 Agreement is
itself evidence of the pre-existing maritime frontier between the Parties, since it
“mention[ed] ‘the frontier’. . .with no suggestion of there being any uncertainty
about it” 32. This is confirmed by the contents of the agreement.
2. The Purpose and Effect of the Agreement
2.101. In the recitals, Chile, Ecuador and Peru referred to their experience
323
with frequent “violations of the maritime frontier between adjacent States” .
2.102. In Article 1 the three States parties established “a special zone”
commencing “12 nautical miles from the coast” and “extending to a breadth of
10 nautical miles”. This zone was established “on either side of the parallel
which constitutes a maritime boundary between the two countries” 324. It is
depicted on Figure 11 of the Counter-Memorial 325, and reproduced here with
slight adjustment as Figure 66. As that Figure demonstrates, the zone of
tolerance (or buffer zone) did not commence until 12M from the coastlines of the
parties. It then proceeded to the full 200M extent of each party’s maritime zone.
321 Counter-Memorial, para. 2.202.
322
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
p. 35, para. 66.
323 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, first recital.
324 Ibid., Art. 1.
325 Counter-Memorial, Vol. I, after p. 144.
85 3. “The maritime boundary between the two countries”
2.103. Article 1 of the Agreement Relating to a Special Maritime Frontier
Zone 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 nautical miles on either side of the parallel which
constitutes the maritime boundary between the two
countries.”
2.104. The ordinary meaning of “the two countries” in Article 1 is the two
States on either side of the parallel of latitude constituting the maritime
326
boundary between those two States . In its Memorial, Peru argued that “the two
countries” referred only to Ecuador and Peru 327. Peru maintains this submission
in paragraph 4.15 of its Reply. Peru asserts there that Chile’s reference in the
Counter-Memorial to “adjacent states” is incorrect. That is clearly not so.
2.105. The term “adjacent States” appears in the first recital to the Agreement
Relating to a Special Maritime Frontier Zone, which refers to the “maritime
328
frontier between adjacent States” . Article 2 also refers to “adjacent
countries” 329. Moreover, the 1954 Minutes, quoted above, refer to the
330
incorporation in Article 1 of the “concept already declared in Santiago” . That
concept was described as being “the maritime boundary between the
326 See further Counter-Memorial, paras 2.202-2.205.
327
See Memorial, paras 4.103-4.104.
328 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, first recital.
329
Ibid., Art. 2.
330 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
86 Figure 66
Figure 66
Chile-Peru Special Maritime Frontier Zone under the Agreement Relating to a Special Maritime Frontier Zone of 1954
78°W 76°W 74°W 72°W 70°W
Peru
Bolivia
18°S 18°S
Chile
20°S 20°S
Parallel of the international maritime boundary
Chilean special maritime frontier zone drawn south of the agreed boundary
Peruvian special maritime frontier zone drawn north of the agreed boundary
12M territorial sea of Chile
200M limits drawn by envelope of arcs of circles from the mainland baselines
TTracé parallèle of mainland coast projected 200M along parallels of latitude
0 50 100 150 200 M
(ignores straight baselines)
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 Consultancyneighbouring signatory countries”, which was constituted by the “parallel
331
starting at the boundary point on the coast” .
2.106. There is no reference to islands anywhere in the Agreement Relating
to a Special Maritime Frontier Zone, and so Peru is deprived of the argument that
it mounts in connection with Article IV of the Santiago Declaration. In its
Memorial Peru thus sought to defend the proposition that an agreement between
three adjacent States, which had the sole express purpose of creating maritime
frontier zones, applied between only two of the three States parties 332. But this
proposition is indefensible, and in its Reply Peru changed tack: “It seems clear
that the focus was on the waters between Peru and Ecuador, although the buffer
zone arrangement was in fact also applied in the waters between Peru and
333
Chile.” The diffidence of language betrays an attempt to reconcile what cannot
be reconciled. There is no evidence cited for the proposition that the buffer zone
applied between Peru and Chile on some sort of de facto basis, rather than
because it was established by the Agreement Relating to a Special Maritime
Frontier Zone. This assertion was created for this litigation, and is inconsistent
with Peru’s historical position.
2.107. To recall, in 1962 Peru complained to Chile about “the frequency with
which Chilean fishing vessels have trespassed into Peruvian waters” and stated
that–
“the Government of Peru, taking strongly into account the
sense and provisions of the ‘Agreement Relating to a
Special Maritime Frontier Zone’, signed in Lima on 4
December 1954, wishes the Government of Chile,
particularly through the competent authorities of the port
of Arica, to adopt measures to put an end to these
331 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
332 See Memorial, paras 4.103-4.104.
333
Reply, para. 4.15.
87 illegitimate incursions, and that the owners of fishing
vessels be notified that they must refrain from continuing
to fish north of the Peru-Chile frontier.”34
2.108. Peru is silent on this memorandum in its Reply, even though Chile
relied on it at paragraphs 2.219, 3.12, 3.14, 3.41 and 4.33 of the Counter-
Memorial. In 1962 Peru clearly considered that the Agreement Relating to a
Special Maritime Frontier Zone applied between Chile and Peru, and
acknowledged the Parties’ maritime “frontier”, north of which Chilean vessels
were committing “illegitimate incursions”.
2.109. In the Bákula Memorandum submitted to Chile in 1986, Peru
acknowledged “the existence of a special zone — established by the ‘Agreement
Relating to a Maritime Frontier Zone’ — [which] referred to the line of the
335
parallel of the point reached by the land border” . While Peru suggested that
“an extensive interpretation” of the Agreement Relating to a Special Maritime
Frontier Zone “could generate a notorious situation of inequity and risk” 336, there
was no attempt to deny the applicability of this agreement as between Chile and
Peru, or to suppress the words “Maritime Frontier” from its title. Those
developments only came in Peru’s pleadings in this case.
2.110. The acknowledgement in Ambassador Bákula’s 1986 Memorandum of
the applicability between Chile and Peru of the Agreement Relating to a Special
Maritime Frontier Zone is consistent with the official position that he had taken
earlier as Secretary-General of the CPPS. In that role, in May of 1978 he
conducted an “Evaluation of the Agreements of the CPPS” 337. These
334 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 to the Counter-
Memorial.
335
Bákula Memorandum, Annex 76 to the Memorial, second page (third paragraph).
336 Ibid.
337
Ambassador Juan Miguel Bákula, Secretary-General, Evaluación de los Convenios
de la CPPS, May 1978, Annex 129.
88“Agreements” included both the 1952 Santiago Declaration and the 1954
Agreement Relating to a Special Maritime Frontier Zone. Both of these treaties
were discussed as part of Ambassador Bákula’s “analysis of the legal texts in
force” 33. Ambassador Bákula recorded that the 1954 Agreement was for “the
purposes of preventing innocent and inadvertent violations of the maritime
frontiers” and that, to that end, zones of tolerance were established “on either
side of the parallel which constitutes the maritime boundary between the two
countries.” 339 Ambassador Bákula considered then that the 1954 Agreement
would “not require any modification” and that its being in force “contributes to
the avoidance of incidents between the three contracting governments: Chile,
Ecuador and Peru.” 340 Clearly, as Secretary-General of the CPPS, Ambassador
Bákula considered that the Agreement Relating to a Special Maritime Frontier
Zone applied to both “maritime frontiers” governed by this trilateral Agreement,
not just to the maritime frontier between Ecuador and Peru.
2.111. That the position which Peru asserts in these proceedings represents a
recent change may also be seen from a letter of April 2000 from the Consul
General of Peru in Arica to the Harbour Master of Arica, an officer of the
Chilean Navy. Chile had apprehended a Peruvian vessel in Chile’s EEZ. The
Peruvian Consul General specifically invoked “the Agreement relating to a
‘Special Maritime Frontier Zone’ signed by Peru, Chile and Ecuador in 1954” as
341
having established a 10M zone of tolerance . Peru considered that the Peruvian
vessel had been within this zone “without catch” and so was protected by the
338 Ambassador Juan Miguel Bákula, Secretary-General, Evaluación de los Convenios
de la CPPS, May 1978, Annex 129, p. 9.
339
Ibid., p. 15 (emphasis added).
340 Ibid.
341
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 to the Counter-Memorial.
891954 Agreement 342. Peru is silent on this incident in its Reply, even though Chile
relied on it at paragraph 3.98 of the Counter-Memorial.
2.112. As already noted at paragraph 2.80 above, Peru’s position in April
2000 is consistent with the 1955 Report of the Foreign Affairs Committee of the
Congress of Peru recommending congressional approval of the Santiago
Declaration and of the Agreement Relating to a Special Maritime Frontier Zone.
The Report referred to “maritime frontiers between the neighbouring States
[fronteras marítimas entre los Estados vecinos]” 34.
4. The Treatment of Existing Lateral Boundaries in 1954
2.113. In its Reply Peru states that: “In 1954, as in 1952, the primary focus
was on maintaining a united front on the part of Chile, Ecuador and Peru towards
third States, rather than upon the development of an internal legal régime
defining their rights inter se.” 344 As a general proposition it is historically
accurate that the primary focus of the 1954 Inter-State Conference, which led to
six agreements, was on the concerted defence of the “exclusive sovereignty and
jurisdiction” that each State had claimed over its maritime zone and on the
seaward extent of those claims. It does not follow, however, that in 1954 Chile,
Ecuador and Peru did not address their lateral boundaries at all. The opposite is
true: they did so in express terms, in three instances of the texts adopted at the
1954 Conference.
342
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 to the Counter-Memorial.
343 Report of the Foreign Affairs Committee of the Congress of Peru on the Agreements
and Treaties signed by Peru, Chile and Ecuador in Santiago, on 18 August 1952 and
in Lima, 4 December 1954, Annex 6 to the Reply, with a translation of this portion
produced as Annex 78 to this Rejoinder.
344
Reply, para. 4.5.
902.114. First, as noted 345, the Agreement Relating to a Special Maritime
Frontier Zone was concerned only with the lateral maritime boundaries between
Chile, Ecuador and Peru. It had no other function.
2.115. Secondly, on the same day that Chile, Ecuador and Peru signed the
Agreement Relating to a Special Maritime Frontier Zone, they adopted an
instrument concerning its interpretation, called the “Clarification [Aclaración]on
Provisions of the Agreements” 346. Article 31(2)(a) of the Vienna Convention
requires that this aclaración be taken into account in the interpretation of the
Agreement Relating to a Special Maritime Frontier Zone, as “an agreement. . .
made between all the parties in connexion with the conclusion of the treaty”. Yet
Peru has not a word to say about it in its Reply. The aclaración provides that
“accidental presence” within the meaning of Article 2 of the Agreement Relating
to a Special Maritime Frontier Zone was to be “determined exclusively by the
authorities of the country whose maritime jurisdictional boundary would have
347
been transgressed” . The unambiguous wording acknowledges the existence of
“maritime jurisdictional boundaries” between all three States parties.
2.116. Thirdly, the Agreement Relating to Measures of Supervision and
Control of the Maritime Zones of the Signatory Countries, also adopted at the
1954 Inter-State Conference, provides in Article 2 that:
“The supervision and control referred to in article one shall
be exercised by each country exclusively in the waters of
its jurisdiction. Nevertheless, their ships or aircrafts will be
allowed to enter the Maritime Zone of another signatory
345 See paras 2.101-2.102 above.
346 Final Minutes of the 1954 Inter-State Conference, 4 December 1954, Annex 40 to
the Counter-Memorial, p. 12, discussed further at para. 2.210 of Chile’s Counter-
Memorial.
347
Ibid.
91 country with no need for special authorization when their
cooperation is expressly requested.” 348
This article proceeded on the footing that each State’s maritime zone had been
delimited, and that, absent a request for cooperation by a neighbouring State,
neither ships nor aircraft of one State party could enter the “Maritime Zone of
349
another signatory country” .
2.117. Peru notes in its Reply that: “The 1954 Agreement on a Special Zone
had nothing to do with the seabed or subsoil, or with navigation or any other use
350
of the water column apart from fishing.” That is factually true but legally
irrelevant to the express confirmation of a “maritime boundary” in Article 1 of
the agreement. The zones of tolerance created by the agreement related only to
“small vessels manned by crews with insufficient knowledge of navigation or not
351
equipped with the necessary instruments” . The creation of zones of tolerance
for the benefit of such vessels on either side of the “parallel which constitutes a
352
maritime boundary” does not in any way reduce the acknowledgement in
Article 1 of that agreement that such a maritime boundary was one delimiting the
full sovereignty and jurisdiction that had already been claimed and delimited in
the Santiago Declaration two years earlier.
2.118. Furthermore, Article 1 of the Agreement Relating to Measures of
Supervision and Control of the Maritime Zones of the Signatory Countries
referred to each State party’s supervision and control of “the exploitation of the
resources in its maritime zone”, without limitation to fisheries or any other
348 Agreement Relating to Measures of Supervision and Control in the Maritime Zones
of the Signatory Countries, Annex 4 to the Counter-Memorial, Art. 2.
349 See Counter-Memorial, para. 3.129.
350 Reply, para. 4.9.
351
Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 2 and preambular recitals.
352 Ibid., Art. 1.
92 353
individual category of resource . As with the other instruments adopted at the
1954 Inter-State Conference, this agreement, too, was deemed to be an
“integral. . .part” of the Santiago Declaration of 1952, 354which had set forth the
States parties’ “exclusive sovereignty and jurisdiction” 355 over the “sea” 356,
357 358
“seabed” and “subsoil” .
2.119. What is more, Articles 2 and 3 of the Agreement Relating to Measures
of Supervision and Control of the Maritime Zones of the Signatory Countries
governed the passage of aircraft over the lateral maritime boundaries between the
States parties, indicating that the parties considered their maritime boundaries to
apply to the airspace above their maritime zones, as well as to the sea, seabed,
and subsoil. The 1954 Minutes record that it was a Peruvian delegate who
specifically suggested the inclusion of aircraft in Article 3 of the Agreement
Relating to Measures of Supervision and Control of the Maritime Zones of the
359
Signatory Countries .
5. The 1954 Agreement Relating to a Special Maritime Frontier Zone and the
1952 Santiago Declaration are to be Read Together
2.120. The Agreement Relating to a Special Maritime Frontier Zone is
expressed “to be an integral and supplementary part of” the Santiago
353 Agreement Relating to Measures of Supervision and Control of the Maritime Zones
of the Signatory Countries, Annex 4 to the Counter-Memorial, Art. 1.
354 See Agreement Relating to Measures of Supervision and Control of the Maritime
Zones of the Signatory Countries, Annex 35 to the Reply, Art. 7.
355
See Santiago Declaration, Annex 47 to the Memorial, Arts II and III.
356 Ibid., Art. II.
357
Ibid., Art. III.
358 Ibid., Art. III.
359 Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 2.
93Declaration 360. The two treaties are to be read together, and the second
constitutes an authentic interpretation of the first. The States parties’ use of this
technique is not surprising given that all of them had civil-law traditions, in
which a later instrument (such as a law or agreement) can supplement or
authentically interpret an earlier instrument, such that the two must be read
together.
2.121. Peru acknowledges that “[a]ll the instruments adopted in 1954” were
“an integral part of the agreements and resolutions adopted in 1952.” 361The
significance of this point is that the following statements in the Agreement
362
Relating to a Special Maritime Frontier Zone are all to be regarded as an
“integral part” of the Santiago Declaration:
(a) the reference to the “maritime frontier” in the title;
(b) the reference to “inadvertent violations of the maritime frontier
between adjacent States” in the first recital;
(c) the reference to “the parallel which constitutes the maritime boundary
between the two countries” in Article 1; and
(d) the reference to “violation” of one State’s waters by a vessel of “either
of the adjacent countries” in Article 2.
The Santiago Declaration must be read together with all of these statements.
They demonstrate that in 1952 and 1954, Chile, Ecuador and Peru all agreed that
360
Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 4. Chile discussed this at paragraphs 2.206 and 4.5-4.7 of the
Counter-Memorial.
361 Memorial, para. 4.88.
362
Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial.
94each pair of adjacent States had a “maritime boundary” between them,
constituted by a parallel of latitude.
2.122. Peru remained silent in its Reply about the fact that in the Agreement
Relating to a Special Maritime Frontier Zone the three States deemed all of the
provisions of that agreement “to be an integral and supplementary part of” the
Santiago Declaration 363. There is no dispute that the Agreement Relating to a
364
Special Maritime Frontier Zone is a treaty and was a treaty from its inception .
That Agreement, to use the language that Peru used to describe the 1954
Complementary Convention, “follows in all formal respects what is to be
365
expected in a treaty” . Peru argues that the Santiago Declaration was not and
has never become a treaty. Peru has not explained how the provisions of a treaty
(the Agreement Relating to a Special Maritime Frontier Zone) could have been
deemed to have been an integral and supplementary part of a text that Peru now
says was not a treaty (the Santiago Declaration).
6. The Statement by Mr. Cristóbal Rosas
2.123. With its Reply Peru filed a statement made in September 2010 by
Mr. Cristóbal Rosas, a private entrepreneur in the Peruvian whaling industry who
attended the 1952 and 1954 conferences on the invitation of the Peruvian
Government. The statement discusses events that took place more than half a
century ago. The Court has made clear that it “will treat with caution evidentiary
materials specially prepared for [a] case” and “will prefer contemporaneous
evidence” 366. There are official minutes for the meetings about which Mr. Rosas
now testifies. They were signed by all three States parties for the express purpose
363 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 4.
364
Cf. Reply, para. 3.154.
365 Ibid.
366
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61.
95of memorializing their joint intent 367. Those contemporaneous trilateral official
documents are plainly to be preferred to what one Peruvian businessman says
more than 55 years later in a document created expressly for the purpose of
litigation, and after the first round of written pleadings had already been
submitted to the Court.
2.124. Mr. Rosas says that “as an eyewitness of the discussions, I can assure
that in the 1952 Conference of Santiago the issue of establishing boundaries
between the maritime zones of the countries was not addressed.” 368
2.125. Mr. Rosas is not recorded as having been a member of the Peruvian
delegation at the First Session of the Legal Affairs Commission of the 1952
Conference, at which the Santiago Declaration was prepared. As noted above 369,
the minutes of that session record the agreement of all of the delegates that the
Santiago Declaration was to–
“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 the borders of the
countries touches or reaches the sea.” 370
2.126. Mr. Rosas is recorded as having attended the First and Second
Sessions of Commission I at the 1954 Conference. The Complementary
Convention and the Agreement Relating to a Special Maritime Frontier Zone
were adopted at these sessions. The evidence of Mr. Rosas concerning the 1954
Conference is narrow. He says only that “the establishment of maritime
boundaries” was not “included as an agenda topic” and that the Peruvian
delegation did not “have any authorisation to negotiate or sign” boundary
367 See paras 2.53-2.56 and 2.87-2.98 above.
368
Appendix A to the Reply, 7th section.
369 See para. 2.53 above.
370
Minutes of the First Session of the Legal Affairs Commission of the 1952
Conference, 11 August 1952 at 4.00 p.m., Annex 56 to the Memorial, p. 2.
96agreements 371. As expressly confirmed at the First and Second Sessions of the
1954 Inter-State Conference, at which Mr. Rosas was present, the lateral
maritime boundaries had already been settled in 1952 37. This confirmation is
discussed in detail at paragraphs 2.87-2.98 above. Mr. Rosas fails to make any
mention of these confirmations. Since the maritime boundaries had already been
settled in 1952, there would have been no reason for the delegates to have
authorization to sign a boundary agreement. In short, the evidence of Mr. Rosas
is irrelevant for three reasons. First, there are official contemporaneous records
about the matters to which he now testifies. Second, he was not present at the
Session of the 1952 Conference at which the delimitation aspect of the Santiago
Declaration was discussed. Third, although he was present at the sessions of the
1954 Conference at which the existing maritime boundaries were expressly
confirmed, he fails to make any mention of those confirmations, which are
recorded in the official contemporaneous Minutes.
* * *
2.127. In conclusion, the “parallel which constitutes a maritime boundary” in
Article 1 of the Agreement Relating to a Special Maritime Frontier Zone is the
reference line on either side of which a 10M zone of tolerance was established. It
applied between Peru and Ecuador, and between Peru and Chile. In this way, as
in the Libya/Chad case, “the existence of a determined frontier was accepted and
acted upon” 37. It cannot now be cast aside.
371 Appendix A to the Reply, 8th section.
372 See paras 2.87-2.88 above.
373
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
p. 35, para. 66.
97Section 4. The Parties’ Agreement in 1968-1969 to Signal their Maritime
Boundary
2.128. In 1968 and 1969, Chile and Peru agreed to implement physically
(“materializar”) their agreed maritime boundary. They agreed to align two
374
lighthouses on the parallel of latitude of Hito No. 1 for this purpose . In
completing the signalling work, the Parties were implementing their maritime-
delimitation agreement found in the Santiago Declaration, which is to be read
375
together with the Agreement Relating to a Special Maritime Frontier Zone .
2.129. Peru has attempted to deny that the two alignment lighthouses were to
indicate a maritime boundary which was already in place and served all
purposes. To that end, Peru raises three arguments: first, the lighthouses were
constructed “to show near-shore fishermen where the land boundary between
Peru and Chile lay and whose coasts they were alongside” 376; second, they were
377
“to signal the whereabouts of the line used for fisheries policing” ; and third,
the line could not be an all-purpose maritime boundary because it does not cross
Punto Concordia, as unilaterally declared by Peru in 2005 and alleged by it to be
378
the point of intersection of the land-boundary line and the low-water line .
2.130. This Section demonstrates that the first two of these arguments are not
supported by the contemporaneous records, in particular the 1968 Minutes and
the 1969 Act. What the contemporaneous records show is that the Parties
considered that a maritime boundary already existed and that they were agreeing
to erect the lighthouses to signal that pre-existing maritime boundary.
374
See Counter-Memorial, paras 3.19 et seq. for detail.
375 Ibid., paras 3.39-3.41.
376
Reply, para. 4.28.
377 Ibid., para. 4.29
378
Ibid., paras 2.79 and 4.80-4.82.
982.131. The third argument, regarding the identification of a reference point
for the boundary parallel of latitude, is addressed in Section 5 (paragraphs 2.155
et seq.).
A. T HE LIGHTHOUSES WERE TO SIGNAL THE M ARITIME BOUNDARY ,NOT THE
LAND BOUNDARY
2.132. Peru’s argument on the 1968 signalling work relies on a statement
written for these proceedings in September 2010 by Ambassador Pérez de
Cuéllar, who in 1968 was the Secretary-General of the Ministry of Foreign
Affairs of Peru. He says that “the only purpose” of the lighthouses was for
fishermen of both countries to “see from the sea the land boundary”7. This is
illogical on a number of counts. It is impossible for a pair of lighthouses, aligned
east-west on a parallel of latitude, to indicate the course of the land-boundary
line in the coastal area, where the land-boundary line follows an arc in a north-
east to south-west direction. In addition to being illogical, Mr. Pérez de Cuéllar’s
assertion is also inconsistent with the contemporaneous official documentation,
notably the relevant agreements between the Parties.
2.133. Mr. Pérez de Cuéllar fails to refer to Peru’s diplomatic note to Chile of
5 August 1968, which he signed for the Foreign Minister. In it, Peru expressed
its unreserved approval of the 1968 Minutes, in which Chilean and Peruvian
delegates who had met in April 1968 proposed, in the terms of the Peruvian note
signed by Mr. Pérez Cuéllar, the “installation of leading marks to materialise the
380
parallel of the maritime frontier.”The Chilean and Peruvian delegations, each
headed by senior Foreign Ministry officials in charge of boundaries, and
accompanied by serving and retired Navy officers, memorialized the following
in the 1968 Minutes:
379 Statement of Mr. Javier Pérez de Cuéllar, 30 September 2010, Appendix B to the
Reply, third paragraph.
380
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 (emphasis added).
99(a) They were entrusted by their respective Governments with
undertaking an on-site study “for the installation of leading marks
visible from the sea to materialise the parallel of the maritime frontier
381
originating at Boundary Marker number one (No. 1).”
(b) They agreed to submit to their respective Governments a proposal for
“the installation of leading marks” to be placed “in the direction of the
382
parallel of the maritime frontier” .
(c) The parallel of the maritime frontier to which the lighthouses were to
give physical effect passed through Hito No. 1; and the coordinates of
Hito No. 1 had been confirmed in the 1930 Final Act signed by the
1929-1930 Mixed Boundary Commission 383.
2.134. Peru’s note to Chile on 5 August 1968 confirmed Peru’s acceptance of
these points “in their entirety” 384. Later that month, Chile accepted the joint
proposal made in the 1968 Minutes 38. By this exchange of diplomatic notes, the
Parties agreed without any reservation or qualification that they would signal the
386
parallel of the “maritime frontier originating at [Hito No. 1]” .
2.135. The two States subsequently agreed to create a mixed commission (the
1968-1969 Mixed Commission) to verify the location of Hito No. 1 and finalize
the technical specifications of the two lighthouses that would “signal the
381 1968 Minutes, Annex 59 to the Memorial, first preambular paragraph (emphasis
added).
382 Ibid., first preambular paragraph and first operative paragraph.
383
Ibid., penultimate paragraph.
384 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.
385
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, second paragraph.
386 1968 Minutes, Annex 59 to the Memorial, first preambular paragraph.
100 387
maritime boundary” . This bilateral agreement was reflected in Peru’s
diplomatic note to Chile of 13 August 1969, in which Peru announced its
delegation to the 1968-1969 Mixed Commission and expressly confirmed that
the lighthouses were to be erected in order to “signal the maritime boundary
388
[señalar el límite marítimo]” .
2.136. In its Reply, Peru simply ignores the numerous references to “the
maritime frontier” in this series of instruments. Peru chooses to rely on a
statement by Mr. Pérez de Cuéllar, created for these proceedings, which is
389
contradicted by the contemporaneous record .
2.137. Peru also invokes one internal document of its Foreign Ministry, dated
24 January 1968 390, which preceded, and in any event is inconsistent with, the
bilateral record. Peru describes this document as containing a “thorough account
391
of the circumstances which led to the erection of the light towers” . This was a
report by the head of the Boundaries Department of Peru’s Foreign Ministry,
Mr. Velando Ugarteche, concerning a meeting earlier that month with his
Chilean counterpart, Mr. Forch. Mr. Velando Ugarteche wrote that the Chilean
and Peruvian officials agreed to place next to Hito No. 1 a high leading mark,
392
visible several miles from the coast . Peru apparently considers that this is
387 See, e.g., the preamble to the 1969 Act and the first paragraph of the Joint Report
attaching the 1969 Act, Annex 6 to the Counter-Memorial.
388 Note No. 5-4-M/76 of 13 August 1969 from the Peruvian Embassy in Chile to the
Chilean Ministry of Foreign Affairs of Chile, Annex 78 to the Counter-Memorial.
389
On the evidential value of witness statements created for the purposes of litigation,
as compared with contemporaneous official documents, see para. 2.123 above and
the authority cited there in footnote 366.
390 See Memorandum No. (J)-11 of 24 January 1968 from the Head of Borders
Department to the Secretary-General of the Ministry of Foreign Affairs of Peru,
Annex 10 to the Reply, second paragraph.
391 Reply, para. 4.28.
392
Memorandum No. (J)-11 of 24 January 1968 from the Head of Borders Department
to the Secretary-General of the Ministry of Foreign Affairs of Peru, Annex 10 to the
Reply, second paragraph.
101evidence that the Parties wished to signal their land boundary, not their maritime
boundary. But its internal note of 24 January 1968 does not say this.
2.138. The salient point arising from the initial Forch–Velando Ugarteche
meeting in January 1968, and a subsequent exchange of diplomatic notes in
February and March of that year, is the Parties’ agreement that the point “at
which the common border reaches the sea” needed to be made visible from the
sea393. The Parties intended to signal for mariners the parallel “at the point at
which the land frontier of the States concerned reaches the sea” as set out in
Article IV of the Santiago Declaration 39.
2.139. An internal note of April 1968 by the International Boundaries
Division of the Ministry of Foreign Affairs of Chile records that at the Forch–
Velando Ugarteche meeting in January 1968 the Parties agreed to convene a
395
meeting at Hito No. 1 to study the signalling of the maritime frontier . That is
entirely consistent with the bilateral instruments that followed, namely the
Minutes of April 1968, the exchange of notes of August 1968 and the 1969 Act.
2.140. Mr. Velando Ugarteche, the author of the Peruvian internal document
of January 1968 on which Peru relies 396, later led the Peruvian delegation to the
bilateral meeting in Arica in April 1968 to study how to “materialize” the
parallel of the maritime frontier. The Chilean delegation was led again by his
Chilean counterpart, Mr. Forch. The delegates of the Parties prepared there a
joint proposal, memorialized in the 1968 Minutes, to construct two leading
393
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, first paragraph;
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, first
paragraph. Also see Counter-Memorial, paras 3.22-3.23.
394
See Counter-Memorial, paras 3.39-3.41.
395 Memorandum No. 14 of 22 April 1968 by the International Boundaries Division of
the Ministry of Foreign Affairs of Chile, Annex 49, p. 2.
396
Reply, para. 4.28.
102marks to signal the “parallel of maritime frontier” 397. Mr. Velando Ugarteche
signed the 1968 Minutes together with all the other delegates. This proposal was
398
agreed to by both Parties in an exchange of diplomatic notes in August 1968 .
As noted at paragraphs 2.133-2.134 above, those bilateral instruments referred to
the Parties’ agreement to signal the “maritime frontier”.
2.141. Peru’s argument that the lighthouses were to signal the land boundary
is unsustainable. Indeed, Peru’s own Memorial acknowledges elsewhere that the
two lighthouses were to signal a line at sea 399.
2.142. That the lighthouses were to signal a line at sea, rather than the land
boundary, is also borne out in publications of the Peruvian and Chilean Navies.
The 1971 edition of Peru’s List of Lighthouses, issued by Peru’s Ministry of the
Navy, describes the Concordia lighthouse placed adjacent to Hito No. 1 as an
400
“alignment light [Luz de enfilación]” . The 1976 edition of the same List is
even more specific. It states that the lighthouse was an alignment light
illuminating the direction of 270°, i.e., due west along 18° 20' 47" S (the latitude
401
of Hito No. 1 when referred to PSAD56 Datum) . Similarly, the sixth edition of
the Sailing Directions issued by the Hydrographic Institute of the Chilean Navy
(the first revision after the coming into operation of the lighthouses) states that
the “maritime boundary is the parallel of Boundary Marker No. 1”, and indicates
that Chile’s “Alignment Concordia Lighthouse” is located at 90° from Hito No. 1
397
1968 Minutes, Annex 59 to the Memorial.
398 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.
399 See, e.g., Memorial, para. 4.127 and Reply, para. 4.29.
400
Ministry of Navy of Peru, Lista de Faros 1971 — Costa del Perú, 1971, p. 25,
Annex 85.
401 Directorate of Hydrography and Navigation of the Navy of Peru, Lista de Faros y
Señales Náuticas — Costa del Perú, 5th edn, 1976, Annex 88, p. 54.
103 402
(i.e., due east from Hito No. 1, on the parallel of latitude of that hito) . The
Peruvian and Chilean press also reported in 1969 that the two States were to
build alignment marks to signal the course of the maritime boundary to
fishermen 403.
2.143. There is evidence that third States also understood the Parties to be
signalling their maritime boundary. The Argentine Ambassador to Peru followed
the process, and his report to Buenos Aires in June 1969 says that: “Experts from
Peru and Chile will meet. . .to decide the form in which the maritime frontier
404
between these countries will be demarcated.” He added that the “demarcation
shall take the form of alignments and will physically give effect to
[materializará] the parallel of hito number one” 405. (At the time, Argentina and
Uruguay were negotiating a maritime-boundary agreement, and it is understood
406
that Argentina had proposed a boundary line following a parallel of latitude .)
2.144. To conclude: Peru argues that the 1968-1969 signalling exercise
should be evaluated on the basis of the “express words used” 407 in the
instruments underlying it. Chile agrees with that test. Peru’s case is that the
lighthouses were constructed to signal the land boundary. That argument
402 Hydrographic Institute of the Chilean Navy, Derrotero de la Costa de Chile, Vol. 1:
From Arica to Chacao Canal, 6th edn, 1980, Annex 133 to the Counter-Memorial,
Chap. I, p. 1.
403
From the Peruvian press see, e.g., “Frontera Marítima Perú y Chile Demarcarán
[Peru and Chile will demarcate the Maritime Frontier]”, El Expreso, 27 June 1969,
Annex 139; “Torres y Señalización en la Frontera Marítima: Tacna-Arica [Towers
and Signalling at the Maritime Frontier: Tacna-Arica]”, La Voz de Tacna, 1 July
1969, Annex 140.
404
Memorandum entitled “Demarcation [of the] Chile-Peru Maritime Frontier” of 30
June 1969 from the Ambassador of Argentina to Peru to the Ministry of Foreign
Affairs and Worship of Argentina, Annex 23, first paragraph.
405
Ibid., fourth paragraph.
406 E. Jiménez de Arechaga, “South American Maritime Boundaries”, in J. I. Charney
and L. M. Alexander (eds), International Maritime Boundaries, Vol. I, 1993, p. 285,
Annex 279 to the Counter-Memorial, p. 286.
407 Reply, para. 4.28.
104receives no support in the contemporaneous documents. Chile’s case is that the
Parties agreed to build the lighthouses “to materialise the parallel of the maritime
frontier”0. The contemporaneous bilateral record is replete with those “express
words”.
B. T HE L IGHTHOUSES WERE TO SIGNAL THE M ARITIME B OUNDARY ,NOT AN AD
HOC F ISHERIESP OLICING LINE
2.145. The repeated reference to a límite marítimo or a frontera marítima in
the 1968 Minutes, the Parties’ exchange of notes in August 1968 approving the
joint proposal in those Minutes, and the 1969 Act are all clear evidence of the
409
Parties’ shared understanding that the parallel so “materialised” was a
definitive, all-purpose maritime boundary. Peru now asserts that the line to be
“materialised” was a fisheries policing line. Nowhere does Peru even attempt to
explain how this newly-proffered and unsupported assertion could possibly be
consistent with the unqualified and repeated use of the terms límite marítimo
(maritime boundary) and frontera marítima (maritime frontier) in the documents
in which the Parties memorialized their bilateral commitments. It is simply not
credible that in 1968 and 1969 representatives of Chile and Peru, including the
senior official in each State responsible for boundary matters and Mr. Pérez de
Cuéllar, called the parallel of latitude passing through Hito No. 1 the “maritime
boundary” and the “maritime frontier” but did not really mean it; yet Peru’s case
asks the Court to accept that hypothesis. Nor is there any evidence at all that the
Parties discussed, let alone agreed, an ad hoc or temporary line for fisheries
purposes only. The totality of the evidence points to the Parties’ implementing an
existing all-purpose maritime boundary which is described in the
contemporaneous official papers as “maritime boundary” and “maritime frontier”
without any reservation.
408
1968 Minutes, Annex 59 to the Memorial, first preambular paragraph.
409 Ibid.
1052.146. Peru’s argument that the boundary line agreed to be “materialised”
was a fisheries line 410 proceeds from the premise that the signalling lighthouses
were primarily to serve artisanal fishermen. The premise is correct but the
411
conclusion does not follow . The bulk of the maritime traffic in the vicinity of
the maritime boundary is fishing vessels. The primary maritime resource in the
area is fisheries. By building the lighthouses the Parties were addressing the
traffic that was most considerable and which had led to transgressions of the
412
boundary and so provoked involvement by the Navies of the two States .
2.147. That is the context of Chile’s diplomatic note of August 1968 which
says that lighthouses would “act as a warning to fishing vessels that normally
413
navigate in the maritime frontier zone” . The significance of the 1968-1969
signalling process to this case is that in the bilateral instruments concerning it,
the Parties acknowledged their maritime boundary and, in response to repeated
violations of that boundary by fishing vessels, agreed to construct two
lighthouses to signal the parallel of the maritime boundary primarily for the
414
benefit of those vessels . As noted, Peru did not suggest otherwise at the time.
If Peru’s present position had been its position in 1968 and 1969, it would have
been incumbent on Peru to accompany its references to the “maritime boundary”
410
See Reply, para. 4.28.
411 See Counter-Memorial, para. 3.32.
412
Ibid., paras 3.12-3.18 and Rejoinder, paras 3.51-3.55.
413 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, quoted in the Reply,
para. 4.28.
414 In an aide-mémoire handed to the Peruvian chargé d’affaires in January 2002, Chile
stated that the two lighthouses performed a signalling function to “help the mariners
and fishermen”: see Aide-Mémoire of 25 January 2002 from the Ministry of Foreign
Affairs of Chile to the Peruvian chargé d’affaires in Chile, Annex 100 to the
Counter-Memorial. Peru refers to this document and claims on the basis of it that
Chile maintained the view that the line was relevant only to fishing vessels (see
Reply, para. 4.28). First, the document refers to mariners in general, as well as
fishermen. Second, the categories of people for whose benefit the lighthouses were
constructed does not detract from the all-purpose nature of the boundary that was
being signalled.
106with a reservation to the effect that actually this “maritime boundary” was
merely a provisional fisheries-policing line which could later be varied.
2.148. In its Reply, Peru raises certain new arguments to claim that the
parallel of Hito No. 1 cannot be the maritime boundary. First, Peru says that the
whole process of the agreed construction of the lighthouses was too “informal”
415
to concern an all-purpose maritime boundary . However Peru now views the
matter, the objective contemporaneous documentation is clear. The Parties were
not establishing a maritime boundary in 1968 and 1969. They were
implementing an existing boundary, which in document after document they
described as such, in unqualified terms. The bilateral instruments the Parties used
were perfectly adequate to record a binding agreement between them to signal
their maritime boundary. The process was initiated by an exchange of notes
416
between Chile and Peru and the proposal for erecting a pair of alignment
lighthouses on the parallel of Hito No. 1, made in the 1968 Minutes, was also
accepted and agreed in its entirety by both States through a further exchange of
417
diplomatic notes . Senior foreign ministry officials responsible for boundary
issues were instructed by their respective Governments to conduct an “on-site
study” 418 and finalize the technical specifications of the alignment lighthouses,
and the Peruvian officials were appointed to perform this task by means of a
Supreme Resolution. There are no requirements of form that must be met for
conduct to constitute confirmation of an existing maritime boundary, but the
415 Reply, para. 4.28.
416
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 from the Chilean chargé d’affaires in Peru to the acting Minister of
Foreign Affairs of Peru, Annex 72 to the Memorial; see Counter-Memorial
paras 3.22-3.23.
417
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; see Counter-Memorial, para. 3.27.
418 1968 Minutes, Annex 59 to the Memorial, first preambular paragraph.
1071968-1969 process was in any case a formal series of transactions and joint acts
by the Parties.
2.149. Second, Peru says that the “technical procedures employed” by the
two States indicate no intention of delimiting a precise maritime boundary
line419. Section 5 of this Chapter describes in more detail how the Parties’
representatives inspected the area around Hito No. 1, both on land and from the
sea, in April 1968. Here, suffice it to say that this was not a delimitation exercise
because the maritime boundary between Chile and Peru had already been
delimited by the Santiago Declaration and confirmed in the Agreement Relating
420
to a Special Maritime Frontier Zone . Rather, as is recorded in the
1968 Minutes and the 1969 Act, the intention was physically to give effect to the
maritime boundary which already existed. This the Parties did by confirming the
precise latitude of the parallel of their boundary and then physically signalling it.
They agreed to do so by reference to an existing demarcated point, Hito No. 1,
the last demarcated hito on the “seashore” 42. No complex technical exercise was
needed.
2.150. Third, Peru argues that Chile’s northernmost basepoint declared in
2000 422 is not on the parallel of Hito No. 1, which allegedly indicates that Chile
does not consider the parallel of Hito No. 1 to be the maritime boundary 423. In
the list of Chile’s basepoints on which Peru relies, the latitude of the
419
Reply, para. 4.28.
420 See paras 2.41-2.98 and 2.99-2.122 above.
421
1930 Final Act, Annex 54 to the Memorial, table with the description of the
boundary markers.
422 United Nations, Communication M.Z.N.37.2000.LOS (Maritime Zone Notification)
from the Secretary-General of the United Nations, entitled “Deposit by Chile of
charts showing normal and straight baselines, the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf”, 29 September 2000,
Annex 132.
423 See Reply, para. 4.84 and Figure R-4.3 to the Reply, Vol. III, p. 51.
108 424
northernmost point is recorded to be 18° 21' 00" S when referred to WGS84
Datum. The list of Chile’s basepoints also clearly states (but Peru omits to
mention) that the northernmost basepoint has been defined to be on the same
latitude as “18° 21' 03" S when referred to Local Datum, obtained on the basis of
astronomic measurement carried out by the Chile-Peru Demarcation Commission
in 1930” 425. The astronomical latitude of 18° 21' 03" S is that of Hito No. 1 as
recorded in the 1930 Final Act 42. It is also equivalent to that of the geographic
parallel which the Parties jointly referred to as the maritime-boundary line in
427
1968-1969 . Plainly, Chile’s northernmost basepoint has been defined to be on
the parallel of latitude passing through Hito No. 1.
428
2.151. Peru seeks to argue otherwise in reliance on its Figure R-4.3 . In
order to construct Figure R-4.3, Peru took the latitude of Chile’s northernmost
basepoint from the list of basepoints 429 printed on the back of Chile’s Chart
No. 6 of 2000, and then plotted it on an image selected by Peru from “Google
Earth”. Peru’s figure purports to depict Chile’s northernmost basepoint slightly
north of the parallel of latitude of Hito No. 1. There is no scale provided on the
imagery created by Peru for these proceedings, so the magnitude of the alleged
discrepancy cannot be validated.
2.152. What seems certain is that Peru has not taken account of the fact that
the latitudes and longitudes provided in the list of Chile’s basepoints are stated to
424 Geographic Positions of Points of the Normal Baselines from which the National
Maritime Jurisdictions have been Drawn, on the reverse of SHOA Chart No. 6, Rada
de Arica a Caleta Matanza, 1st edn, 2000, Annex 70.
425
Ibid., the first legend.
426 1930 Final Act, Annex 54 to the Memorial, table with the description of the
boundary markers.
427 See the 1968 Minutes, Annex 59 to the Memorial, and the 1969 Act, Annex 6 to
the Counter-Memorial.
428
Reply, Vol. III, p. 51.
429 Peru produced this list at Annex 110 of the Memorial.
109 430
be approximate . Rather, Peru appears to proceed on the basis that the latitude
of Chile’s northernmost basepoint is precisely 18° 21' 00.00" S, rather than
having been rounded to 18° 21' 00" S.
2.153. Chile’s northernmost basepoint was determined by identifying the
intersection of the parallel of latitude of Hito No. 1 and the low-water line on
Chile’s Chart 1101 431. Since this was the largest-scale chart officially published
by Chile (1998 edition, at scale 1:25,000), Chile’s approach was in conformity
432
with Article 5 of UNCLOS . Because of the inherent difficulties with
identifying the coordinates of any point on a chart with precision 43, it is
reasonable and usual to round coordinates derived in this way to the nearest
434
second for publication purposes . Alleging discrepancies based on a
comparison of coordinates plotted on a chart, and declared to be approximate,
with the location of a point having the same coordinates on satellite imagery is
easy to do. But it is irrelevant to this case and to Chile’s obvious intention to
nominate a northernmost basepoint having the same latitude as Hito No. 1.
2.154. Peru now also claims that the parallel of latitude of Hito No. 1 could
not have served as the maritime boundary because Chile’s northernmost
basepoint does not correspond to the precise point of intersection of the low-
430 Geographic Positions of Points of the Normal Baselines from which the National
Maritime Jurisdictions have been Drawn, on the reverse of SHOA Chart No. 6, Rada
de Arica a Caleta Matanza, 1st edn, 2000, Annex 70.
431
Ibid., see description of the northernmost basepoint.
432 Article 5 of UNCLOS: “Except where otherwise provided in the Convention, the
normal baseline for measuring the breadth of the territorial sea is the low-water line
along the coast as marked on large-scale charts officially recognized by the coastal
State.”
433 A distance of 0.2 mm (a reasonable resolution for a plotted point) on a chart at a
scale of 1:25,000 is a distance of 5m on the ground. At 18 degrees of latitude, that
distance equates to approximately two-tenths of a second of latitude.
434 The coordinates of Peru’s Point 266 are also rounded to the nearest second: see Law
No. 28621 of 3 November 2005: Baselines Law of the Maritime Dominion of Peru,
Annex 23 to the Memorial.
110water line with the land-boundary line. The next Section addresses this
argument.
Section 5. Hito No. 1 as the Agreed Reference Point for the Maritime
Boundary Parallel
A. I NTRODUCTION : PERU ’SA TTEMPTS TO U NSETTLE THE M ARITIME B OUNDARY
2.155. Peru devotes 66 pages at the beginning of its Reply to a discussion of
the role of Hito No. 1 as a marker on the Chile-Peru land boundary. Peru seeks to
create a dispute about the land boundary by observing that Hito No. 1 is not
located on the physical low-water line. Peru says that the land-boundary line
intersects the present-day low-water line southwest of Hito No. 1, at a point
which Peru has unilaterally identified as Punto Concordia under Article 2 of the
435
1929 Treaty of Lima . Peru also says that this point is the southernmost
basepoint of Peru (Point 266)436 and has latitude of 18° 21' 08" S when referred
to WGS84 Datum 43.
2.156. Peru’s arguments about the land-boundary terminus have no inherent
significance and are directed solely to Peru’s attempt to unsettle the maritime
boundary. Punto Concordia (Point 266) was declared by Peru as late as 2005. It
was declared, not within the framework jointly established by the Parties to
address issues related to the land boundary (see paragraph 2.162 below), but
within the context of unilaterally defining its basepoints, baselines and the outer
438
limit of its “maritime dominion” . Peru claims that Punto Concordia is on the
low-water line, although it is not on the low-water line when depicted on Peru’s
435 Reply, paras 2.79 and 4.80-4.82.
436
Ibid., para. 2.50.
437 Law No. 28621 of 3 November 2005: Baselines Law of the Maritime Dominion of
Peru, Annex 23 to the Memorial, Annex 1.
438
Ibid., Arts 2 and 3 and Annex 1.
111large-scale chart of the area required by international l. Peru attempts to
justify the claim on the basis of diagrams employing “Google Earth” imagery
specifically prepared for these proceedings. On the basis of this unilaterally and
recently declared point, Point 266, Peru now argues that “the Parties could not
have agreed a maritime boundary along the parallel of latitude passing through
Hito No. 1”440and, consequently, that a new maritime-boundary line must be
determined with Peru’s Punto Concordia as its starting point.
2.157. Arguments about the relative advantages and disadvantages of Hito
No. 1 and Punto Concordia cannot undo the Parties’ long-standing agreement
that their maritime boundary is “the parallel at the point at which the land
frontier of the States concerned reaches the se. As discussed in the previous
Section, the Parties have also agreed that Hito No. 1 was the reference point for
the parallel constituting their maritime boundary. This further bilateral agreement
cannot be undone by Peru’s new unilateral declarations about Punto
Concordia/Point 266.
B. C HILE AND P ERU CONSENSUALLY DETERMINED H ITON O. 1AS THE
REFERENCE POINT WITH FULL K NOWLEDGE OF ITS L OCATION
2.158. When the agreement on maritime delimitation was set forth in the
Santiago Declaration of 1952, the three States parties did not, in that instrument,
specify the coordinates for the point where the land frontier “reaches the sea” as
between each two States parties. This was the case for the Chile-Peru boundary
as for the Peru-Ecuador boundary. The Santiago Declaration is a tripartite
agreement on the three States’ entitlement to maritime zones and the outward
and lateral limits of these zones, but the point where the land frontier reaches the
sea was for each pair of adjacent States parties to confirm between them. When
439
See Article 5 of UNCLOS, quoted at footnote 432 above. Also see Counter-
Memorial, para. 3.47 and Figure 24 to the Counter-Memorial, Vol. I, after p. 200.
440 Reply, para. 2.88 (emphasis in the original).
441
Santiago Declaration, Annex 47 to the Memorial, Art. IV.
112observance and identification of the parallel of the maritime boundary by
mariners gave rise to practical difficulties between Chile and Peru, the two States
442
agreed to signal the parallel of their maritime boundary with two lighthouses
aligned on the parallel of latitude passing through Hito No. 1.
2.159. As expressly recorded in the 1968 Minutes, when the Chilean and
Peruvian delegations met at the Chile-Peru frontier in April 1968, they inspected
443
the area around Hito No. 1 both on land and from the sea . An internal report
by Mr. Forch, the head of the Chilean delegation, confirms that on 25 April
1968, the two delegations 444 sailed from the nearest port, Arica, observed Hito
No. 1 from the sea and aligned their position with Hito No. 1 and the control
tower of Arica’s Chacalluta Airport (a visible landmark close to the parallel of
Hito No. 1) in order to observe an approximate course of the parallel of Hito
445
No. 1 . On the following day, the delegations inspected the land around Hito
446
No. 1 . The delegates were thus well aware of Hito No. 1’s location on the
seashore and its limited visibility from out at sea.
2.160. Neither delegation suggested that the reference point for the parallel of
the maritime boundary should have been by the water. The delegations had
already received clear instructions from their respective Governments on the use
of Hito No. 1 in connection with the maritime-boundary line. As explicitly
recorded in the 1968 Minutes, the delegates were instructed to propose technical
means of signalling the “parallel of the maritime frontier originating at Boundary
442
See Counter-Memorial, paras 3.5-3.38; Rejoinder, paras 2.128 et seq.
443 1968 Minutes, Annex 59 to the Memorial, second preambular paragraph.
444
The Peruvian delegation consisted of the head of the Frontier Department of the
Ministry of Foreign Affairs, the Sub-Director of Hydrography and Lights of the
Ministry of Navy and a specialist (retired Navy officer) on hydrography. The
Chilean delegation consisted of the head of the International Boundaries Division of
the Ministry of Foreign Affairs and a maritime advisor (retired Navy officer).
445
Report No. 16 on the meeting at the Chile-Peru frontier, by Alejandro Forch, Chief
of the International Boundaries Division, May 1968, Annex 50, Section C, para. 3.
446 Ibid., Section C, para. 5.
113Marker number one (No. 1)” 447. They were not tasked to identify or vary the
maritime-boundary line, but merely to implement it; and to implement it by
signalling the Hito No. 1 parallel. These instructions were consistent with
internal advice given in Chile in 1964 that the maritime boundary between the
Parties follows the parallel of latitude of Hito No. 1 448.
2.161. Peru is correct that the mandate of the delegations in 1968-1969 did
not involve revisiting or revising the Parties’ agreement on their land boundary,
reached in 1929-1930 449. The Parties simply determined that the reference point
for the parallel of their maritime boundary was Hito No. 1, namely the most
seaward point of the land boundary for which the Parties had agreed and
450
memorialized coordinates . For that reason, they also agreed to rebuild Hito
No. 1 “at the place where it was initially erected in 1930” 451. Until Peru began
preparing for this case, no one had raised the slightest objection to this practical
arrangement.
2.162. For completeness, Chile notes that Peru did not contest the continued
use of Hito No. 1 in 1987, when Chile and Peru agreed to establish another
mixed commission concerned with the land boundary. One of the tasks of this
mixed commission was to “[p]ropose the erection of intermediary boundary
markers in the areas where this is deemed necessary” 452. The Parties agreed to
establish this mixed commission 14 months after the Bákula Memorandum of
1986, in which Peru proposed a renegotiation of the existing maritime boundary
447 1968 Minutes, Annex 59 to the Memorial, first preambular paragraph.
448 Note No. 25 of 9 April 1964 from the General President of the Boundary
Commission of Chile to the Minister of Foreign Affairs of Chile, Annex 46, third
and fourth paragraphs.
449
See Reply, para. 2.86.
450 Act of Plenipotentiaries, Annex 55 to the Memorial.
451
1969 Act, Annex 6 to the Counter-Memorial, section F.1.
452 Agreement between the Governments of the Republics of Chile and Peru of
19 October 1987, reproduced in Decree No. 776 of 23 September 1988, Annex 8,
see para. 1.4 of the General Provisions and Work Plan.
114(see paragraphs 3.106-3.119 below). Neither at the time of the Bákula
Memorandum, nor in connection with the 1987 mixed commission, did Peru
suggest that the Parties should conduct a technical exercise to determine
consensually what Peru has now unilaterally identified as Punto Concordia.
When yet another mixed commission on the land boundary was created by the
453
two States in 1997 , there was a further opportunity for Peru to raise the
concerns it now voices so stridently; yet it did not.
C. H ITO NO . 1WAS A GREED TO BE THE POINT WHERE THE “L AND FRONTIER
REACHES THE SEA ”UNDER THE S ANTIAGO DECLARATION
2.163. Chile and Peru delimited their land boundary in full in Article 2 of the
1929 Treaty of Lima 454. In Article 3 of that Treaty the Parties agreed that a
Mixed Commission was to determine and mark the agreed boundary using a
455
series of hitos . In its 1930 Final Act the 1929-1930 Mixed Commission
recorded the precise locations (with agreed coordinates) of the 80 hitos that it
456
had placed on the ground to demarcate the land boundary . The Final Act
records that the “demarcated boundary line starts from the Pacific Ocean at a
point on the seashore [orilla del mar] ten kilometres northwest from the first
bridge over the River Lluta” 457. The list of hitos in the 1930 Final Act
commences with Hito No. 1. It is described as having been placed on the
“seashore [orilla del mar]”5.
2.164. The Parties concluded a further instrument concerning the
determination and marking of their land boundary: the Act of Plenipotentiaries of
453
Agreement between Peru and Chile on the Conservation of Markers on the Common
Boundary, signed on 6 March 1997, Annex 38 to the Reply.
454 Treaty of Lima, Annex 45 to the Memorial, Art. 2.
455 Ibid., Art. 3.
456 1930 Final Act, Annex 54 to the Memorial.
457
Ibid., second paragraph.
458 Paragraphs 2.9-2.16 of the Counter-Memorial recount in more detail the process
through which Chile and Peru fully delimited and marked their land boundary.
115 459
August 1930 . This document was signed by the plenipotentiaries of the two
States, pursuant to Article 4 of the Treaty of Lima, under which “the position and
distinguishing characteristics of the boundary markers” were to be set out in a
“deed of transfer” 460. In the Act of Plenipotentiaries, the same list of hitos that
had been memorialized in the 1930 Final Act was reproduced. The Act of
Plenipotentiaries acknowledged that those hitos demarcated the land boundary
461
“beginning in order from the Pacific Ocean” . Hito No. 1 was by agreement of
the Parties placed on the “seashore [orilla del mar]”, at a point where it would be
safe from waves during high tides and storms 462. The local knowledge of the
impact of frequent heavy swell and tsunamis, as well as the loose-surface
463
geomorphology of the area near the water line , meant that Hito No. 1 had to be
built at a location ensuring that it would be a lasting monument.
2.165. It is clear that the small distance between Hito No. 1 and the low-water
line was of no practical significance to the Parties. Hence they agreed to
memorialize the coordinates of Hito No. 1 (but no other point closer to the sea)
464
and confirmed that Hito No. 1 was located on the seashore, “orilla del mar” ,
465
and that the demarcation had commenced “from the Pacific Ocean” .
459
Act of Plenipotentiaries, Annex 55 to the Memorial.
460 Chile and Peru signed a deed of transfer on 28 August 1929 (Annex 45 to the
Reply) which did not include the position or characteristics of boundary markers.
The last operative paragraph of that deed provided that another act was to be signed
by Chile and Peru which would set out such position and characteristics “pursuant to
Article 4 of the [Treaty of Lima]”. That “other act” was the Act of Plenipotentiaries.
461 Act of Plenipotentiaries, Annex 55 to the Memorial, introductory paragraph.
462
See the Instructions to the Chilean Delegate with the prior approval of the Ministries
of Foreign Affairs of Chile and Peru of 24 April 1930, Annex 87 to the Memorial.
463
Chart 2394 issued by the Directorate of Hydrography and Lights of Peru in 1971
(reproduced at Figure 67) shows near-shore loose sand and a breakers symbol in the
area around Hito No. 1.
464 1930 Final Act, Annex 54 to the Memorial, second paragraph.
465 Act of Plenipotentiaries, Annex 55 to the Memorial, introductory paragraph.
116 Figure 67
Figure 67
Peru's chart 2394 (new chart 1968) showing swell and loose surface on the seashore
Sandy shore symbol
Land boundary line symbol
Breakers symbol
Peru's Direccion de Hidrografia y Faros chart 2394, new chart 1968, corrected to 1971
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancy2.166. In 1968 Chile and Peru shared a common understanding that the legal
basis of the maritime boundary was to be found in the Santiago Declaration, as
complemented by the Agreement Relating to a Special Maritime Frontier Zone.
Both Chile and Peru had invoked these agreements in the requests that each State
made to the other to take measures to prevent illegal crossings of the maritime
boundary 466. As was noted in the Counter-Memorial 467 (and is accepted by
Peru) 468, such transgressions prompted the signalling agreements of 1968-1969.
This continuum of practice and agreements demonstrates that when in 1968 and
1969 the Parties agreed to signal their maritime boundary, they were
implementing a maritime boundary that had already been delimited by
agreement.
2.167. Both Parties operated on the basis that Hito No. 1 was to be used as
the reference point for “the parallel at the point at which the land frontier of the
States concerned reaches the sea” 469. The records of meetings between their
delegations in 1968 and 1969 do not indicate that any line other than the Hito
No. 1 parallel had been considered as a possible alternative. As noted, in a report
prepared in 1964, the Boundary Commission of the Ministry of Foreign Affairs
of Chile had already taken the view that the operative parallel of the maritime
470
boundary was the latitude of Hito No. 1 .
466 See 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 to the Counter-
Memorial; and Memorandum of 6 October 1965 by the Ministry of Foreign Affairs
of Chile (addressed to the Peruvian Ambassador to Chile), Annex 68 to the
Memorial.
467 Counter-Memorial, paras 3.19-3.20.
468
See Reply, paras 4.28-4.29.
469 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
470
Note No. 25 of 9 April 1964 from the General President of the Boundary
Commission of Chile to the Minister of Foreign Affairs of Chile, Annex 46, third
and fourth paragraphs. This Note was issued to confirm the accuracy of the depiction
of the maritime boundary on a chart by the Governor of the Department of Arica in
1964. (The chart could not be located in the archives.)
1172.168. At the time of the 1968-1969 signalling agreements, and in fact until
as late as 2008, Peru’s position was that the land boundary ended at Hito No. 1
and, consequently, the southernmost point of Peru’s land territory was marked by
that hito. This position was explicitly confirmed by Mr. Wagner de Reyna, a
former Director of Frontier and Geographic Studies of the Foreign Ministry of
Peru, in his 1961 monograph on the boundaries of Peru. He stated that the land
boundary “ends on the seashore of the Pacific Ocean at a boundary marker
(Concordia) which is located at 18° 21' 03" S., which is the southernmost point
471
of Peru.” Peru continued to hold this position long thereafter, as evidenced, for
472
example, in an Atlas published by the Office of the President in 1970 and a
series of maps depicting the boundaries of Peru with its neighbouring States,
published by the Ministry of Foreign Affairs in 1988 473. This last publication was
cited in 1990 by Dr. Agüero Colunga of Peru for the proposition that the
474
southernmost point of Peru’s coastline ended at Hito No. 1 . Other Peruvian
official bodies also acknowledged Hito No. 1 as the southernmost point of
Peruvian territory 47, and Peruvian publicists expressed the same position 476.
2.169. In 2001 Peru was still content to treat Hito No. 1 as the seaward
terminus of the land boundary. In Peru’s Law on Territorial Demarcation of the
Province of Tacna, of 2001, Peru identified Hito No. 1 as the southernmost point
471 A. Wagner de Reyna, Los Límites del Perú, 1961, Annex 186, p. 15.
472
See Geographic Advisor’s Office of the National Institute of Planning in the Office
of the President, Atlas Histórico Geográfico de Paisajes Peruanos, 1963-1970,
Annex 169 to the Counter-Memorial, p. 22.
473
Ministry of Foreign Affairs of Peru, El Perú en Gráficos, published in El Comercio,
16 October 1988, Annex 91.
474 M. F. Agüero Colunga, Delimitación Marítima del Perú con Ecuador y con Chile,
1990, Annex 156, p. 76.
475
Ministry of Energy and Mines of Peru, Anuario Estadístico de Hidrocarburos —
Hydrocarbons Statistical Yearbook 2000, 2000, Annex 190 to the Counter-
Memorial, p. 13; National Institute of Statistics and Information of Peru,
Environmental Statistics 2000 (Estadísticas del Medio Ambiente 2000), Annex 186
to the Counter-Memorial.
476 See Counter-Memorial, para. 2.17 and footnote 145 (Professors Novak and García-
Corrochano), and para. 2.37 and footnote 174 (Professor Vergaray Lara).
118of its southernmost province 477. One of the maps serving as the express basis on
478
which the southern boundary of the province of Tacna was demarcated (see
Figure 68) indicated that the Chile-Peru land boundary terminates at Hito No. 1.
An amendment to the 2001 Law in 2008 479, published in Peru’s Official Journal
the day after Peru’s application to the Court, purported to change Peru’s position
from the one that it had previously accepted to that which it now advocates
before the Court. This was simply an attempt by Peru to improve its position in
this litigation, and serves only to do the opposite.
2.170. Since they first established the position of Hito No. 1 in 1930, both
Parties have been aware that there is a narrow strip of seashore between Hito
No. 1 and the changing sea levels. Neither Party considered it to be of any
importance, until Peru seized on it as part of its litigation strategy.
2.171. In Chapter II, Section IV of the Reply (paragraphs 2.58 et seq.), Peru
attempts to show that Chile’s own practice was such that the land boundary
continued seawards of Hito No. 1, following an arc. In so doing Peru refers to
(a) Chile’s cartographic materials; (b) the construction and removal of a
surveillance booth by Chile in the Chile-Peru frontier area in 2001; and (c) a
Chilean bill of 2005-2006 which was intended to create a new administrative
region in the Chile-Peru frontier area. These are all matters concerning the role
of Hito No. 1 in connection with the land boundary and therefore, for the reasons
explained in Subsection F below, outside the Court’s jurisdiction. Nonetheless,
the following brief observations are in order for the sake of completeness.
477 Law No. 27415 of 25 January 2001: Territorial Demarcation of the Province of
Tacna, Annex 191 to the Counter-Memorial, Art. 3; also see Counter-Memorial,
para. 2.17.
478
Map No. 2834 (37-v) J631 2nd edn, 1995, published by the National Geographic
Institute of Peru, referred to in Law No. 27415 of 25 January 2001: Territorial
Demarcation of the Province of Tacna, Department of Tacna, Annex 97, first
transitional and final provision.
479
Law No. 29189 of 17 January 2008: Law specifying Article 3 of Law No. 27415,
Annex 16 to the Reply, Sole Article.
1192.172. Starting with cartographic materials, Peru relies on ten Chilean maps,
produced as Figures R-2.10 to R-2.19 480. Most of these seem to have been relied
upon by Peru in the present proceedings because they include the word
“Concordia” in the vicinity of the point where the land boundary reaches the sea.
That is indeed the language of Article 2 of the Treaty of Lima of 1929. None of
these maps identifies a precise point for the intersection of the land boundary and
the low-water line, let alone a point matching the one that Peru now unilaterally
postulates in these proceedings (Point 266). Only one of the ten Chilean maps
produced by Peru is of a scale and clarity sufficient to show clearly the line of
the land boundary continuing seaward of Hito No. 1 along an arc. This is at
Figure R-2.14 481. Although emphasizing this depiction, Peru does not mention
that the map states: “The drawing of the boundary is approximate and not official
482
[El trazado del límite es aproximado y no oficial]” .
2.173. Peru argues that Chile’s decision in 2001 to remove a surveillance
booth placed by Chile to the north of the geodetic arc from the bridge over the
River Lluta, between Hito No. 1 and the sea, constitutes acknowledgement by
Chile that the land-boundary line continues from Hito No. 1 towards the Pacific
Ocean in a south-westerly direction 483. In fact, Chile decided to remove that
booth so as to comply fully with the proposals of the Armies of Chile and Peru
that there be no surveillance patrol within 100 metres of the international land
boundary, and Chile duly reserved its position regarding the course of the land
484
boundary .
480 Reply, Vol. III, pp. 21-37.
481
Ibid., Vol. III, p. 29.
482 See Excerpt from Chile’s Nautical Chart 101 of 1989, reproduced at Figure R-2.14
to the Reply, Vol. III, p. 29.
483
Reply, paras 2.70-2.71.
484 See Official Declaration of 6 April 2001 by the Ministry of Foreign Affairs of Chile,
Annex 71; Note No. 1027 of 12 April 2001 from the Minister of Foreign Affairs of
Chile to the Minister of Foreign Affairs of Peru (Mr. Pérez de Cuéllar), Annex 31.
120 Figure 68
Peruvian Map of Tacna, No. 37-v (1995)
Source: National Geographic Institute of Peru, Map of Tacna No. 37-v, 1:100,000, 19952.174. Lastly, on Chile’s practice referred to by Peru in connection with the
land boundary, an amendment by the Chilean Government to the bill introduced
in 2005 for the creation of a new administrative region in the Chile-Peru frontier
area 485indicated that the parallel of latitude of Hito No. 1 constituted part of the
boundary of this new administrative region. Peru claims that this amendment to
the bill attempted to modify the land-boundary line and suggests that Chile
decided not to adopt it because of Peru’s protest that the bill was inconsistent
with the “final boundary delimitation and demarcation agreed in 1929 and
486
1930” . That is incorrect. The Constitutional Court considered that the
amendment proposed by the Government was significant compared to the text of
487
the original proposal . The Constitutional Court pronounced on an issue of
legislative process, rather than the substance of the description of the proposed
region’s land boundary. This decision and the consequential amendment to the
bill have nothing to do with Peru’s protest or Chile’s understanding of the course
of the land boundary. The northern limit of this new region (comprising of the
former provinces of Arica and Parinacota) 488 continues to follow in part the
485 See Message No. 372-353 of 21 October 2005 from the President of Chile to the
Chilean Chamber of Deputies beginning the process of approval of Bill creating the
XV Region of Arica and Parinacota and the Province of Tamarugal in the Region of
Tarapacá, Annex 28 to the Reply; Bulletin No. 4048-06 of 13 November 2006 with
instructions given during the general discussion on the draft Law creating the XV
Region of Arica and Parinacota and the Province of Tamarugal in the Region of
Tarapacá, Annex 29 to the Reply; and Second Report of 5 December 2006 issued
by the Commission for the Government, Decentralization and Regionalization on the
Second Constitutional Reading on Bill creating the XV Region of Arica and
Parinacota and the Province of Tamarugal in the Region of Tarapacá, Annex 30 to
the Reply.
486 Note (GAB) No. 6/4 of 24 January 2007 from the Minister of Foreign Affairs of Peru
to the Minister of Foreign Affairs of Chile, Annex 80 to the Reply, second
paragraph. Also see Reply, paras 2.75-2.76.
487
Judgment in Case 719-2007 of 26 January 2007 by the Chilean Constitutional Court
regarding the Bill creating the XV Region of Arica and Parinacota and the Province
of Tamarugal in the Region of Tarapacá, Annex 31 to the Reply, twenty-fifth
paragraph.
488
Law No. 20,175 of 23 March 2007: Law Creating the XV Region of Arica and
Parinacota and the Province of Tamarugal in the region of Tarapacá, Annex 32 to
the Reply, Art. 1.
121northern limit of the former province of Arica, namely “[t]he boundary with
489
Peru, from the Chilean Sea” .
2.175. To summarize, there is no dispute about the coordinates of Hito No. 1,
or that these coordinates have been long agreed between the Parties in
international agreements, or about the fact that Hito No. 1 is the most seaward
demarcated point on the land boundary90. What Peru has now sought to place in
dispute is the precise course of the land boundary through the scintilla of
seashore between Hito No. 1 and the low-water line. As discussed, Peru seeks to
raise this issue concerning delimitation of the land boundary as part of its attempt
to unsettle the agreed maritime boundary.
2.176. Since Hito No. 1 was, and is, the most seaward demarcated point of
the land boundary with coordinates agreed between the Parties, there were good
reasons to adopt it as the reference point for the parallel of the maritime
boundary. Even if one were to assume for argument’s sake that there had been
some deviation from the underlying delimitation agreement in the Santiago
Declaration, which established the boundary as the parallel where the land
frontier “reaches the sea”, the consensual choice of Hito No. 1 by the Parties
491
would govern .
D. I NTERNATIONAL LAW PERMITS THE U SE OFH ITON O. 1AS THE REFERENCE
POINT FOR THE C HILE-PERU M ARITIME B OUNDARY
2.177. The operative parallel of latitude for the Parties’ maritime boundary
has been agreed to be the one passing through Hito No. 1. For the purpose of
Article IV of the Santiago Declaration the Parties have adopted the parallel of
489
Decree with Force of Law No. 2-18,175 of 9 June 1989, which Determines the
Specific Limits of the Provinces of the Country, Annex 25 to the Reply, Art. 1.
490 See Reply, para. 1.18.
491
See Case Concerning the boundary markers in Taba between Egypt and Israel,
Award, 29 September 1988, RIAA, Vol. XX, pp. 56-57, para. 210. Also see Counter-
Memorial, p. 200, footnote 583.
122latitude of Hito No. 1 as the parallel “at the point at which the land frontier of the
States concerned reaches the sea” 49. For legal and charting purposes, the
maritime boundary commences at the low-water line as marked on large-scale
charts officially recognized by the coastal State. The Parties’ maritime boundary
commences where the Hito No. 1 parallel crosses the low-water line, wherever
the low-water line may be from year to year.
2.178. Peru now asserts that since Hito No. 1 is not on the physical low-water
line, it could not have been used as the reference point for the maritime
boundary 493. It is unclear whether Peru’s argument is based on a legal
proposition (for which no authority is or could be cited) or rather as a hypothesis
about Peru’s intent in 1968-1969. On either basis, the argument fails.
2.179. Peru says that the use of Hito No. 1 would have deprived a “stretch of
494
Peru’s coast” of a maritime projection, to which Peru would never have
agreed. That “stretch of Peru’s coast” is 46 metres as best as Chile can calculate
using Peru’s current large-scale chart 495, or approximately 0.00018% of the total
496
length of the coasts of the continental territories of Chile and Peru . What Peru
actually agreed must of course be determined objectively, rather than on the
basis of what Peru now says it could not have agreed 497. And, in fact, Peru’s
entire argument rests on the premise that a coastline of approximately 46 metres
to the south of the parallel passing through Hito No. 1 is Peruvian territory. This
proposition need not be tested in these proceedings, because Peru’s argument
492 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
493 See, e.g., Reply, paras 2.10, 2.88, 4.82 and 7.4.
494 Reply, para. 4.82.
495
See Peru’s chart 3255, reproduced in Figure 24 to the Counter-Memorial, Vol. I,
after p. 200.
496
Approximately 25,800 km using the internationally recognized world vector
shoreline.
497 See Case Concerning Maritime Delimitation and Territorial Questions between
Qatar and Bahrain, Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994,
pp. 121-122, para. 27.
123requires it to establish one further proposition — namely, that a maritime
boundary cannot as a matter of law be defined by reference to a point on the
coast (the “seashore”) but only by reference to a point on the low-water line.
That proposition is unsound as a matter of law, and no authority is cited for it by
Peru. As a matter of fact, on Peru’s own case, the parallel of Hito No. 1 does
serve as the boundary for the Parties’ fishing/fisheries zones, i.e., the boundary
for the most important economic activity in the area, now and historically. It is
difficult to credit the theory that Peru could not have agreed to use as a maritime
boundary the very line that Peru itself says it has agreed as a boundary for its
most prominent maritime activity.
2.180. Indeed, Peru’s proposition fails in light of its own practice in the north.
The maritime-boundary line between Peru and Ecuador follows the parallel of
latitude 3° 23' 33.96" S (astronomical datum). This latitude corresponds to the
498
most seaward demarcated point (No. 1) of the Ecuador-Peru land boundary at
499
Boca de Capones . This first demarcated point of the Ecuador-Peru land
boundary is located in the middle of a channel in an area with a dynamic, i.e.,
shifting, coastline. Neither the land-boundary agreement nor any official chart of
Ecuador or Peru specifies this point as being on the line joining the two points on
either side of the mouth of the channel that lie on the low-water line. The line
across the mouth of a channel moves. By contrast, the demarcated point and
hence the parallel of the maritime boundary are stable.
2.181. If the arguments that Peru makes against Chile about Hito No. 1 were
accurate, then the first demarcated point of the Ecuador-Peru land boundary
498 This point is not physically marked, but witnessed by two boundary markers placed
on either side of the channel and above the high-water line.
499
See Geographic Advisor’s Office of the National Institute of Planning in the Office
of the President, Atlas Histórico Geográfico de Paisajes Peruanos, 1963-1970,
Annex 84, p. 602. The latitude of the northernmost basepoint of Peru is also stated to
be 3° 23' 33.96" S: Law No. 28621 of 3 November 2005: Baselines Law of the
Maritime Dominion of Peru, Annex 23 to the Memorial, Art. 2. See further paras
3.152-3.156 of the Counter-Memorial.
124could not serve as a reference point for a maritime boundary any more than Hito
500
No. 1 could. Yet both Ecuador and Peru accept that it does .
2.182. Peru’s proposition that two adjacent States must ensure that the land-
and maritime-boundary lines meet at a point on the physical low-water line is not
only unsupported by authority, it is inconsistent with the practice of States and
decisions of international tribunals 501. In the remainder of this Subsection, Chile
briefly summarizes, as an example, the Award of an UNCLOS Tribunal which
delimited the maritime zones of Guyana and Suriname. The Award demonstrates
that the course of a maritime boundary may be determined by a point on dry
land.
2.183. Chile noted in the Counter-Memorial 502that the UNCLOS Tribunal in
Guyana v. Suriname accepted that a fixed point on dry land was chosen by the
parties as the reference point for the course of the first segment of the maritime
boundary. The Tribunal determined the starting point and course of that segment
of the maritime boundary without having to find the course of the land boundary
in the vicinity of that reference point. In this respect, the Tribunal’s reasoning is
particularly pertinent to the present case. In Guyana v. Suriname the reference
point was not even on the land-boundary line.
2.184. The Tribunal found that an azimuth of ten degrees (N10°E) had been
agreed as the territorial sea boundary line between Guyana and Suriname up to a
distance of three nautical miles, as is shown on Map 2 of the Award, which is
reproduced here as Figure 69. This finding was made on the basis of the report
500
See Note (GAB) No. 6-12-YY/01 of 2 May 2011 from the Minister of Foreign
Affairs of Peru to the Minister of Foreign Affairs of Ecuador, Annex 39, para. 2;
Note No. 9428 GMRECI/CGJ/2011 of 2 May 2011 from the Minister of Foreign
Affairs of Ecuador to the Minister of Foreign Affairs of Peru, Annex 41, para. 2; and
Note (GAB) No. 7-9-C-YY/01 of 2 May 2011 from the Minister of Foreign Affairs
of Peru to the Secretary-General of the United Nations, Annex 40, para. 2.
501 See Counter-Memorial, para. 3.45 and footnote 579.
502
Ibid.
125by the United Kingdom-Netherlands Boundary Commission in 1936. As noted
by the Tribunal, in 1936 the Boundary Commission agreed that the maritime
boundary in the territorial sea should be fixed at an azimuth of N10°E from a
specific point on the west bank of the Corentyne River, near to its mouth, which
was referred to as “Point 61” or the “1936 Point”3. The Boundary Commission
buried two markers near Point 61 (Marker A and Marker B) for the purpose of
aligning a 10° azimuth passing through Point 61, and two pillars were
constructed to identify the alignment with sufficient visibility . On the basis of
this arrangement and the subsequent practice of the two States, the Tribunal
decided that the first segment of the maritime boundary of the Parties runs from
“the intersection of the low water line of the west bank of the Corentyne River
and the geodetic line of N10°E which passes through Marker ‘B’ established in
505
1936” .
2.185. There was no agreed land boundary terminus between Guyana and
Suriname. That did not deter the Tribunal from identifying the starting point of
the maritime boundary based on the practice of the two States. The Tribunal
concluded that its findings had no consequence for the land boundary.
E. P ERU UNILATERALLY D ECLARED POINT 266 AS PART OF ITSC HALLENGE TO
THE E XISTING M ARITIME B OUNDARY
2.186. The precise point for “the parallel at the point at which the land
frontier of the States concerned reaches the sea” under the Santiago Declaration
was to be agreed between the Parties. For sound practical reasons, Hito No. 1
503
Guyana v. Suriname, Award, Permanent Court of Arbitration, 17 September 2007,
paras 137-138.
504 Report of 5 July 1936 on the Inauguration of the Mark at the Northern Terminal of
the Boundary between Surinam and British Guiana, exhibited as Annex 2 to the
Counter-Memorial of Suriname, Annex 103, para. 4. The 1936 Point is identical to
mark A in this report.
505
Guyana v. Suriname, Award, Permanent Court of Arbitration, 17 September 2007,
para. 327.
506 Ibid., para. 308.
126 Figure 69
Figure 69
Reproduction of Map 2 of the Guyana v. Suriname Award (2007) showing the first segment of the
maritime boundary between the two States
Prepared for the Ministry of Foreign Affairs, Chile, by the UKHO Law of the Sea Consultancywas in fact so agreed. Thus Peru’s criticism that Chile ought to have recognized
Peru’s Point 266 is misplaced 507. Point 266 was proposed by Peru, not as the
basis for a new agreement implementing the Parties’ agreement on a parallel of
latitude, but rather as a lever designed as an attempt to destroy that agreement.
2.187. Chile protested Peru’s unilateral declaration of Point 266 508. Chile
disputes that point not only because of its unilateral nature but also because of its
technical imprecision. First, as depicted on Figure 70, Point 266 is not placed on
the arc with a radius of ten kilometres from the bridge on the River Lluta, which
is how the first segment of the land boundary is constructed 50. Nor does Point
266 seem to have been identified using the method adopted by the 1930 Mixed
Commission, in accordance with the instructions of the Parties (i.e., by
constructing a polygon consisting of a series of 1,046.7-metre chords at 174
510
degrees of angle) . Peru has not produced any documents explaining how Peru
measured the seaward continuation of the jointly established course of the
boundary arc and/or the frontier polygon, prepared at the time of the
measurement of Point 266. Second, Peru now arbitrarily places Point 266 near
the surf zone using an image taken from “Google Earth” as deployed for these
511
proceedings , without any specification of the status of the tide at the time the
photograph was taken, and without presenting any evidence of an accurate
modern survey of the relevant coast. Third, Point 266 is 183 metres seaward of
the low-water line depicted on Peru’s most recent large-scale chart of the area
507
See Reply, paras 2.51-2.57.
508 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 to the Counter-
Memorial, fourth and fifth paragraphs.
509
See the two identical sets of instructions approved by the Foreign Ministries of Chile
and Peru, Annex 87 to the Memorial.
510
Instructions 19 and 19A Concerning Boundary Markers at the Arc of Concordia —
Moyano–Tirano Sub-Commission — Issued on 22 May 1930 by Peruvian Delegate
Federico Basadre and Chilean Delegate Enrique Brieba, Annex 50 to the Reply,
Third and Fourth paragraphs.
511 See Figure R-2.9 to the Reply, Vol. III, p. 19.
127(published in 2002), as depicted on Figure 24 of the Counter-Memorial 51. In its
Reply, Peru remained silent about this obvious difficulty. More generally, the
difficulty of precisely identifying the actual low-water line at any given time is
further illustrated by a different point identified in 2001 by Dr. Agüero Colunga
of Peru as the seaward terminus of the land boundary, with coordinates
18° 21' 07" S and 70° 22' 88" W, stated to be 126 metres away from Hito
No. 1 513. This underscores the need for agreement on a precise point with agreed
coordinates. Hito No. 1 is such an agreed point. Point 266 is not.
2.188. Until the 1970s, maritime boundaries were normally determined by
graphical means, namely, by constructing the boundary line on a chart and
reading off the relevant coordinates, including those of the point on the low-
water line, from that chart 514. On the nautical charts of the Chile-Peru frontier
area available in 1952, 1954 and 1968, the distance between Hito No. 1 and the
low-water line is barely visible. If the Parties had drawn on any of those charts a
parallel line at the point where the Chile-Peru land boundary reached the sea, the
margin of error involved could have placed that line anywhere between, or on
either side of, the actual physical location of Hito No. 1 and Point 266. As an
example, Figure 71 shows how the maritime-boundary line could be depicted on
a Chilean large-scale chart of 1954 (contemporaneous with the 1952-1954
515
agreements) , and where Hito No. 1 and Point 266 could be plotted on that
chart. The distance between Hito No. 1 and Point 266 on the chart (10.6 mm on
the enlarged extract in Figure 71, 0.53 mm at the natural scale of the chart) is
negligible.
512 Counter-Memorial, Vol. I, after p. 200.
513 M. Agüero Colunga, Consideraciones para la delimitación marítima del Perú, 2001,
Annex 157, p. 317, Diagram No. 21.
514 P. Beazley, “Technical Considerations in Maritime Delimitations”, in J. I. Charney
and L. M. Alexander (eds), International Maritime Boundaries, Vol. I, 1993,
Annex 165, p. 250.
515
Chilean Navy Chart, Chile: Arica-Iquique, 1:50,000, 1954.
128 FiFigure 70
Diagram showing inaccuracies in the illustration at Figure R-2.9 of Peru's Reply
770°22'40" 770°22'30"
118°21' 118°21'
Detail added to extract of Peru Figure R-2.9
Land boundary running NE from Hito No. 1
as measured and agreed by the Mixed Boundary Commission
Arc of Lluta Bridge radius running SW from Hito No. 1
Geodetic radius of 10km from Lluta Bridge as agreed in 1930
(9992.51m on a WGS84 framework)
Peru base point 266
Hito No. 1
Detail shown on new diagram
Land boundary running NE from Hito No. 1
as measured and agreed by the Mixed Boundary Commission
Arc of Lluta Bridge radius running SW from Hito No. 1
Geodetic radius of 10km from Lluta Bridge as agreed in 1930
(9992.51m on a WGS84 framework)
Peru base point 266
Hito No. 1
118°21'10" 118°21'10"
770°22'40" 770°22'30"
Extract of Peru's figure R-2.9 fitted to WGS84 using the listed positions The backdrop of this illustration is taken from Google Earth imagery dated 13 May 2010.
of Hito No. 1 and Point 266. Added detail corresponds to that shown in the It is reproduced at an approximate scale of 1 : 2,500 when printed at A3 landscape
right-hand side illustration.
Prepared for the Ministry of Foreign Affairs, Chile by Marine Delimitation Ltd. Figure 71
Figure 71
Chart I, Arica - Iquique published by the Chilean Navy in 1954 at a scale of 1:500,000 superimposed with the parallel of Hito No. 1 and with a 20 x enlargement of the coast at the parallel.
Extract of south west corner of the chart showing
details of the publication date and corrections.
Enlargement of coast in the vicinity of Hito No. 1
shown at 20x chart scale
Peru basepoint 266
Hito No. 1
Parallel of latitude of Hito No. 1
Extract of Chilean chart reproduced at true
chart scale when printed at A3 landscape
The enlargement of the relevant section of coast shows the relative positions of Hito No. 1 and the Peruvian point 266. The magnified inset shows the points to be 10.6mm apart on paper but at
the natural scale of the 1954 chart, the distance between the points is 0.53mm. The distance from Hito No. 1 to the low waterline shown on this 1954 chart is far less, a mere 0.3mm on the chart.
Prepared for the Ministry of Foreign Affairs, Chile by Marine Delimitation Ltd.2.189. In sum, the use of Hito No. 1 as a reference point for the maritime
boundary retains today the advantage which led to its having been adopted in the
first place. Regardless of changes in the physical low-water line over time, the
course of the maritime boundary remains stable.
F. A BSENCE OF JURISDICTION OVER THE LAND B OUNDARY
2.190. Peru has invoked the jurisdiction of the Court under Article XXXI of
the Pact of Bogotá. On that basis the Court is asked to determine whether a
maritime boundary has been agreed under the Santiago Declaration and
confirmed in the Agreement Relating to a Special Maritime Frontier Zone and, if
so, the course of that maritime boundary. In order to determine the course of the
maritime boundary, the Court is required to pronounce on which parallel of
latitude corresponds to the “point at which the land frontier of the States
concerned reaches the sea” under Article IV of the Santiago Declaration.
2.191. Again, it is undisputed that the final demarcated point of the Parties’
land boundary is Hito No. 1. The Parties have agreed that Hito No. 1 has an
astronomical latitude of 18° 21' 03" S. Chile’s position is that Hito No. 1 is the
agreed reference point for the parallel of latitude of the maritime boundary, and
that the maritime boundary starts where that parallel of latitude crosses the low-
water line, wherever that may be from time to time. The Parties’ agreement
relating to the role of Hito No. 1 for purposes of Article IV of the Santiago
Declaration is an agreement relating to the maritime boundary, not the land
boundary. The Court has no need to make any finding concerning the dispute
that Peru has sought to create about the course of the land boundary between
Hito No. 1 and the low-water line.
2.192. By contrast, Peru’s case seeks to create, and then asks the Court to
determine, “a dispute between Peru and Chile concerning the co-ordinates of the
516 1930 Final Act, Annex 54 to the Memorial.
129starting-point of the land boundary” 51. Yet the Parties’ land boundary was fully
delimited and demarcated in the 1929 Treaty of Lima 518 and the 1930 Final
519
Act .
2.193. Article VI of the Pact of Bogotá excludes from the jurisdiction of the
Court–
“matters already settled by arrangement between the
parties. . .or which are governed by agreements or treaties
in force 520the date of the conclusion of the present
Treaty” .
2.194. The Pact was concluded on 30 April 1948, after the Parties had
delimited and demarcated their land boundary pursuant to the 1929 Treaty of
Lima and the 1930 Final Act.
2.195. As the Court recently noted,–
“the clear purpose of this provision was to preclude the
possibility of using those procedures, and in particular
judicial remedies, in order to reopen such matters as were
settled between the parties to the Pact, because they had
been the object of an international judicial decision or a
521
treaty.”
2.196. It is clear on the face of the text of the 1929-1930 agreements that the
matter concerning the delimitation and demarcation of the land boundary is
517 Reply, para. 1.15.
518 Treaty of Lima, Annex 45 to the Memorial, Art. 2.
519 1930 Final Act, Annex 54 to the Memorial.
520
Pact of Bogotá, Annex 46 to the Memorial, Art. VI.
521 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2007, p. 858, para. 77.
130“governed” and “settled” by these agreements. It is therefore beyond the scope of
the Court’s jurisdiction in the present case.
2.197. Peru makes two arguments in an effort to avoid the clear effect of
Article VI of the Pact. First, Peru argues that since none of the instruments from
1929 and 1930 “provide the answer to the question as to what are the precise co-
522
ordinates of Point Concordia” the Court has jurisdiction to settle that question
“notwithstanding the final delimitation and demarcation of the land boundary of
523
1929-1930.” If Peru’s approach to Article VI of the Pact were correct, issues
arising under any treaty from prior to 1948 could be litigated simply by one of its
parties framing a question of sufficient specificity so as not to be explicitly
answered on the face of the treaty. Delimitation and demarcation of the land
boundary are “matters. . .governed by” the 1929 and 1930 agreements, which
“settled” these matters. Moreover, the 1929 Treaty of Lima contains its own
provision for the settlement of disputes, which is different from the provisions in
the Pact of Bogotá. Peru cannot seise the Court of any matter concerning the
delimitation or demarcation of the Parties’ land boundary.
2.198. Second, Peru attempts to avoid the effect of Article VI of the Pact by
arguing that since Article XXXI of the Pact empowers the Court to interpret a
treaty, Article VI “does not prevent the Court from applying or interpreting a
524
treaty, whatever the date of its entry into force.” This is a fundamentally
incorrect approach to the Pact of Bogotá. It is one thing to say that the Court may
determine whether the delimitation and demarcation of the land boundary under
the 1929-1930 agreements are “matters already settled. . .or. . .governed by
agreements or treaties in force” within the meaning of Article VI of the Pact.
This is an exercise of the Court’s jurisdiction to determine its own jurisdiction,
pursuant to Article 36 of the Statute and Article XXXIII of the Pact. It is an
522 Reply, para. 1.14.
523
Ibid., para. 1.15; also see para. 1.14.
524 Ibid., para. 1.16.
131altogether different matter to suggest that the Court has jurisdiction to settle
disputes concerning the interpretation and application of the 1929-1930
agreements. The general statement in Article XXXI of the Pact, to the effect that
the parties recognize the jurisdiction of the Court “in all disputes. . .
concerning. . .the interpretation of a treaty”, evidently cannot override the
specific temporal limitation to that jurisdiction, which is set forth in Article VI of
the Pact.
132 CHAPTER III
THE PRACTICE OF THE PARTIES
3.1. The maritime-boundary parallel agreed upon by the Parties, as
described in detail in Chapter II above, has been observed and applied by both
Chile and Peru for more than half a century, in respect of a wide range of
activities within their maritime zones. Both Chile and Peru have enjoyed quiet
possession of the maritime area on their own side of the parallel of latitude of
Hito No. 1. Peru does not deny the existence and continued application of that
parallel by the Parties, but now challenges the character of the dividing line. It
claims that the line was provisional and for limited purposes only, viz. fisheries,
rather than an all-purpose maritime boundary.
3.2. This Chapter will test Peru’s claim by addressing a range of the
Parties’ practice after the 1952 Santiago Declaration and the 1954 Agreement
Relating to a Special Maritime Frontier Zone. That practice can support only one
conclusion, namely that the Hito No. 1 parallel has been observed as the Parties’
all-purpose maritime boundary. In outline:
(a) As will be seen in Sections 1 and 2, in 1955 (the year after the 1954
Inter-State Conference at which the Agreement Relating to a Special
Maritime Frontier Zone was concluded), Peru adopted domestic
legislation and both Parties undertook a treaty initiative confirming
their understanding that a maritime boundary was in place between
them, on the basis of Article IV of the Santiago Declaration.
(b) Section 3 summarizes Chile’s negotiations with Bolivia and related
consultation with Peru, in 1975-1976, concerning the possibility of
granting Bolivia direct access to the sea in the form of a corridor
adjoining Peru’s territory. In 1976, Peru was consulted on the
proposed corridor and the attendant maritime zone for Bolivia, whose
northern boundary would have remained the parallel of Hito No. 1.
Peru raised no objection or concern. The records of the 1975-1976
133 525
negotiations were published at the time by the Government of Chile .
This publication elicited no protest from Peru.
(c) Section 4 addresses the issue of cartographic evidence and its legal
import. The evidence is that Peru has formally authorized the
publication of maps depicting the maritime boundary with Chile; and
that when Chile started depicting the boundary on naval charts in
1992, Peru failed to react until 2000, when it started preparing its
present claim.
(d) Section 5 describes aspects of the broad spectrum of the practice of
Chile and Peru, including monitoring of vessels’ entry into and exit
from Peru’s maritime dominion, Peru’s control of the airspace above
its maritime dominion, authorization for scientific research and laying
of a submarine cable system. The totality of this evidence confirms the
existence of an all-purpose maritime boundary between the Parties.
(e) Lastly, Section 6 deals with Peru’s reliance on an internal note of
Chile from 1964 and Peru’s Bákula Memorandum of 1986. These
papers are unavailing to Peru’s case. The Chilean note concluded that
a maritime boundary was in place following the parallel at the point at
which the land boundary reached the sea. As for the Bákula
Memorandum, it was a call for renegotiation of the existing boundary.
Section 1. Peru’s Supreme Resolution (1955): Implementation of the
Boundaries Agreed in Article IV of the Santiago Declaration
3.3. One month after the Lima Inter-State Conference of December 1954,
Peru issued a Supreme Resolution referring to the perimeter of its “maritime
525 Historia de las Negociaciones Chileno-Bolivianas — 1975-1978, 1978. Relevant
extracts may be found in Annexes 4, 25 and 87.
134dominion”. The preamble and operative provisions of Supreme Resolution
No. 23 of January 1955 read as follows:
“Whereas it is necessary to specify in cartographic and
geodesic work the manner of determining the Peruvian
maritime 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;
IT IS HEREBY RESOLVED:
1 – The said zone shall be limited at sea by a line parallel
to the Peruvian coast and at a constant distance of 200
nautical miles from it;
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.” 526
3.4. A plain-terms, good-faith reading of Article 2 is that Peru considered
Article IV of the Santiago Declaration to have delimited Peru’s lateral maritime
527
boundaries in the north and the south . In response, Peru argues that the 1955
Supreme Resolution evidenced only Peru’s acceptance of a provisional line for
specific purposes, but not of an all-purpose maritime boundary 528. Peru also says
that the “only reference to a parallel” in the Supreme Decree can be explained on
the basis of Peru’s interpretation of Article IV of the Santiago Declaration,
namely that it refers only to Peru’s northern limit with Ecuador 52.
526 1955 Supreme Resolution, Annex 9 to the Memorial.
527
See Counter-Memorial, paras 4.30-4.31.
528 See Reply, para. 4.43 and footnote 407.
529
Ibid., p. 318, footnote 604.
1353.5. There are three major difficulties with Peru’s present interpretation.
First, nothing in the text of the 1955 Supreme Resolution suggests that the limits
therein specified apply only provisionally or only to fisheries. Rather, the text
deals with Peru’s “maritime zone”, in unqualified terms, as “referred to” in
Peru’s 1947 Supreme Decree and the Santiago Declaration 530. Both of these texts
claimed “sovereignty and jurisdiction” over the sea along the coasts, the seabed
and subsoil, to a minimum distance of 200M, and did so without any temporal
limitation. The 1955 Supreme Resolution was promulgated for the purpose of
depicting correctly that all-purpose maritime zone in cartographic and geodesic
work.
3.6. Second, Peru’s interpretation is inconsistent with its own interpretation
of Article IV of the Santiago Declaration. If Article IV simply restricted the
maritime zone of islands, that limit would not reach the 200M outer limit that
Peru claims that it had by applying the envelope-of-arcs-of-circles method. This
was illustrated on Figure 7 of the Counter-Memorial 531. Article 2 of the 1955
Supreme Resolution would, on Peru’s interpretation, have no effet utile: in the
south, there would be no operative parallel of latitude at all; and in the north, the
parallel of latitude would stop before reaching the outer limit of Peru’s maritime
zone, and could not operate as a lateral limit to the full extent of Peru’s maritime
zone. That is clearly not a natural, logical or good-faith interpretation of the plain
terms of the Supreme Resolution.
3.7. Third, Article 2 of the Supreme Resolution refers to “[the line] of the
532
corresponding parallel [la [línea] del paralelo correspondiente]” : if the
intention were to refer only to the northern boundary parallel, it would have been
easy and more straightforward either to specify the latitude of that one parallel or
to say the “parallel at the point where the frontier with Ecuador reaches the sea”.
530 1955 Supreme Resolution, Annex 9 to the Memorial.
531
Counter-Memorial, Vol. I, after p. 88.
532 1955 Supreme Resolution, Annex 9 to the Memorial, Art. 2.
136Either formulation would have been easier to apply in “cartographic and
geodesic work”.
3.8. Ordinarily, “it is for each State, in the first instance, to interpret its
own domestic law. The Court does not, in principle, have the power to substitute
533
its own interpretation for that of the national authorities” . However:
“Exceptionally, where a State puts forward a manifestly
incorrect interpretation of its domestic law, particularly for
the purpose of gaining an advantage in a pending case, it is
for the Court t534dopt what it finds to be the proper
interpretation.”
3.9. Chile respectfully submits that this exception applies to the
incomprehensible reading of Peru’s 1955 Supreme Resolution that Peru
advances in this case. That reading derives from Peru’s desire to force-fit the
Supreme Resolution to the needs of its case.
3.10. Chile’s interpretation of the 1955 Supreme Resolution is
straightforward. The Supreme Resolution was intended to ensure a correct
depiction of “the Peruvian maritime zone of 200 miles” in cartographic and
geodesic work. The maritime zone is stated to be defined in the 1947 Supreme
Decree and the 1952 Santiago Declaration. Under the 1947 Supreme Decree
Peru’s maritime zone could not extend beyond the two parallels of latitude
passing through Peru’s two land-boundary termini, to the north (with Ecuador)
and the south (with Chile) 53. Article IV of the Santiago Declaration confirms
that Peru’s maritime zone is bounded by the two parallels at the points at which
the land boundaries with Ecuador (in the north) and with Chile (in the south)
meet the sea. In its 1955 Supreme Resolution, Peru clearly gave effect in its
533 Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo), I.C.J. Judgment, 30 November 2010, para. 70.
534
Ibid.
535 1947 Peruvian Supreme Decree, Annex 6 to the Memorial.
137domestic legal system to the delimitation that it had agreed under international
law in Article IV of the Santiago Declaration 536.
Section 2. Protocol of Accession to the Santiago Declaration (1955)
3.11. In the Accession Protocol of 1955, Chile, Ecuador and Peru agreed to
open to accession by Latin American countries parts of the Santiago Declaration,
namely the “fundamental principles” contained in its preamble and the rules (or
537
“norms”) set out in its Articles I, II, III and V . Article IV on maritime
delimitation was excluded from the norms of the Santiago Declaration to which
other States would be able to accede. The reason for this exclusion is significant
for the present case 538. Article IV was excluded so as to allow acceding States to
determine the boundaries between overlapping maritime entitlements in areas
where a parallel of latitude under Article IV of the Santiago Declaration would
not be suitable because of geographic configurations different from those of the
original three States parties, Chile, Peru and Ecuador.
3.12. Specifically, Peru proposed in June 1955 that Article IV of the
Santiago Declaration, “which establish[es] the frontier between the countries”,
should be excluded from the Accession Protocol because it would be
539
“inapplicable in other locations” . For its part, Chile similarly believed that the
use of parallels of latitude may be “practically inapplicable” in other countries 540.
536 Also see Counter-Memorial, para. 3.56.
537 Protocol of Accession to the Declaration of Santiago on “Maritime Zone”, signed at
Quito on 6 October 1955, Annex 52 to the Memorial, second and third paragraphs.
538 See Counter-Memorial, paras 3.121-3.126.
539
Memorandum of 23 June 1955 from the Peruvian Embassy in Ecuador to the
Government of Ecuador, Annex 70 to the Counter-Memorial, first page.
540 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 71 to the Counter-Memorial, para. 2.
1383.13. In its Reply Peru seeks to cast doubt on both of those two
contemporaneous documents. In respect of its own proposal, Peru now says that
541
it was contained in a “non-paper” of June 1955, which set forth “talking
points” with Ecuador and related to the boundary between these two States
542
only . Whatever the status of the communication may have been, it sets forth
Peru’s position on the meaning and effect of Article IV of the Santiago
Declaration. Peru itself does not contend otherwise. More importantly, from the
fact that Peru’s communication was addressed to Ecuador it does not follow that
the communication concerned only the Peru-Ecuador boundary. Indeed, it is
clear that in material part the communication concerned the effect which
Article IV would have on acceding States, and in that context it is said that this
provision “establish[es] the frontier between the countries [los países]” — not
“our two countries”, but rather all three existing States parties.
3.14. As for Chile’s position at the time, Peru cites an internal Peruvian
document which purportedly records Chile’s position as being that Article IV
“only applies [to] the delimitation between the maritime zones of the signatories
543 544
to the case of islands” , and hence (Peru argues) not between Chile and Peru .
This is a two-paragraph letter from the Peruvian chargé d’affaires in Santiago to
the Peruvian Foreign Minister about a discussion at the Chilean Foreign Ministry
on a draft of the Accession Protocol. It is difficult to credit this short letter as
properly recording Chile’s position. It gives no indication of when or with whom
the meeting at Chile’s Foreign Ministry took place, nor does it supply any detail
of the discussion that ensued on other provisions on the draft Protocol. Chile has
found no record of the meeting in its archives.
541 This is how Peru describes the Memorandum of 23 June 1955, Annex 70 to the
Counter-Memorial: Reply, para. 4.58.
542
See Reply, para. 4.58.
543 Official Letter No. 5-4-Y/68 of 11 July 1955 from the Peruvian chargé d’affaires to
Chile to the Minister of Foreign Affairs of Peru, Annex 8 to the Reply, with a
translation of the first paragraph at Annex 80.
544
See Reply, para. 4.59.
1393.15. In fact, Peru’s internal document is inconsistent with the record of
Chile’s official position, which was communicated to Ecuador in August 1955,
very shortly after Peru’s internal document. Chile stated that Article IV would be
545
practically inapplicable to countries other than the original three States parties .
Chile did not state that there was no need to exclude Article IV from the
Accession Protocol on grounds that it applied only in the case of islands. What is
more, the internal document of Peru says that the Ministry of Foreign Affairs of
Chile was already discussing the draft Protocol with the Ecuadorean Embassy in
546
Chile . If the Peruvian internal letter is to be credited, in these discussions
Chile would have taken a view that was different from the communication that
followed in August. Yet so far as Chile is aware Ecuador has never suggested
that the August communication involved a change of position from the earlier
discussions with the Embassy.
Section 3. Peru’s Acknowledgement of the Maritime Boundary in the
Context of a Possible Access to the Sea for Bolivia (1975-1976)
3.16. This Section describes negotiations between Chile and Bolivia in
1975-1976, which envisaged an exchange of territories. Had these negotiations
been successful, Bolivia would have acquired access to the sea in the form of a
corridor between Peru and Chile. The maritime zone appertaining to that corridor
was also discussed in the negotiations. Both Chile and Bolivia proceeded on the
explicit basis that the existing maritime boundary, following the parallel of
latitude of Hito No. 1, would delimit the envisaged Bolivian maritime zone vis-à-
vis Peru. In 1976, Peru was specifically consulted on the matter, as was required
under the 1929 Treaty of Lima, and it expressed no objection or reservation in
that regard.
545 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
546 on Maritime Zone”, Annex 71 to the Counter-Memorial, para. 2.
Official Letter No. 5-4-Y/68 of 11 July 1955 from the Peruvian chargé d’affaires to
Chile to the Minister of Foreign Affairs of Peru, Annex 8 to the Reply, with a
translation of the first paragraph at Annex 80.
1403.17. The Presidents of Chile and Bolivia met at the frontier of the two
States in February 1975 and determined that dialogue should continue at various
levels to search for agreements on bilateral issues. One of the issues specifically
mentioned in the Presidential joint declaration, called the Act of Charaña, was
547
Bolivia’s access to the sea . Following this, Chile and Bolivia commenced
negotiations on a set of arrangements to provide Bolivia access to the sea.
Negotiations had reached an advanced stage by late-1975 and continued well
into 1976 548. As part of the proposed exchange of territory, Chile would cede to
Bolivia a corridor to the sea. The cession of that corridor would have resulted in
Bolivia’s acquiring the part of Chile’s maritime zone that corresponded to the
coastal front of the territory to be ceded. Thus, Bolivia would acquire a maritime
zone between the Hito No. 1 parallel, which constitutes the Chile-Peru maritime
boundary, to the north, and another parallel, to the south, which would pass
through the point at which the new land boundary between Chile and Bolivia
would reach the sea. This was accepted by Bolivia.
3.18. The cession of Chilean territory along the Chile-Peru land boundary
required the consent of Peru, pursuant to Article 1 of the Supplementary Protocol
549
to the 1929 Treaty of Lima . Thus, Peru was involved in the process from early
in 1976, and a series of discussions were held between Chile and Peru that year.
As will be seen below, Peru was fully informed of the arrangement envisaged for
the maritime boundary and expressed no reservation or opposition to it. In fact,
Peru acknowledged the existence and course of the Chile-Peru maritime
547 Act of Charaña, signed by the Presidents of Chile and Bolivia at Charaña on
8 February 1975, reproduced in Ministry of Foreign Affairs of Chile, Historia de las
Negociaciones Chileno-Bolivianas: 1975-1978, 1978, Annex 4, p. 41.
548
The key negotiating texts are in the public domain, reproduced in Ministry of
Foreign Affairs of Chile, Historia de las Negociaciones Chileno-Bolivianas — 1975-
1978, 1978.
549 Article 1 of the Supplementary Protocol to the Treaty of Lima reads in material part:
“The Governments of Chile and Peru shall not, without previous agreement between
them, cede to any third Power the whole or part of the territories which, in
conformity with the [Treaty of Lima], come under their respective sovereignty”,
Annex 45 to the Memorial.
141boundary in one of the Chile-Peru sessions in 1976. The relevant events are as
follows.
3.19. The Chilean proposal to Bolivia included a brief description of the
land territory to be exchanged with Bolivia and the maritime zone attendant to
the land territory to be ceded to Bolivia. After describing the northern and
southern boundaries of the land territory which Bolivia would acquire (the
northern boundary being the Chile-Peru land boundary under the 1929 Treaty of
Lima), Chile’s proposal went on to say:
“[T]he cession will include the land territory thus
described and the maritime territory between the parallels
of the extreme points of the coast [comprendido entre los
paralelos de los puntos extremos de la costa] that will be
ceded (territorial sea, economic zone and continental
550
shelf).” (Emphasis added.)
3.20. Chile was confirming that the parallel of latitude of Hito No. 1 would
continue to apply as an all-purpose maritime boundary between all the maritime
zones of Peru and Bolivia after the exchange of territories, and was proposing
that the same method of delimitation be followed as between Chile and Bolivia.
3.21. Chile communicated this proposal to Peru shortly thereafter. Peru
551
acknowledged receipt of it in January 1976 . It did not raise any concern over
the “maritime territory” that Chile proposed to cede to Bolivia. (By contrast,
Peru expressed concern on issues related to its interests in Arica 552.) It is of note
550 Note No. 686 of 19 December 1975 from the Chilean Minister of Foreign Affairs to
the Bolivian Ambassador to Chile, reproduced in Ministry of Foreign Affairs of
Chile, Historia de las Negociaciones Chileno-Bolivianas: 1975-1978, 1978,
Annex 25, p. 44.
551 Note No. 6-Y/1 of 29 January 1976 from the Minister of Foreign Affairs of Peru to
the Minister of Foreign Affairs of Chile, Annex 26, second paragraph.
552
Peru was concerned about the connection between Arica and Tacna which could be
altered if a corridor along the Chile-Peru boundary was transferred to Bolivia. Peru
also referred to the full implementation of Chile’s obligations vis-à-vis Peru pursuant
142that the ad hoc commission created in Peru to discuss the proposed cession was
chaired by the former President of Peru (and the Court) Bustamante y Rivero,
who had co-signed the Peruvian Supreme Decree of 1947. If there had been any
inconsistency or overlap between Peru’s maritime zone and the proposed
maritime zone for Bolivia, as Peru’s present case suggests, the ad hoc
commission would not have failed to notice it.
3.22. Representatives of the Ministries of Foreign Affairs of Peru and Chile
held a first round of discussions on the proposed cession in April 1976. A second
round of discussions took place between 5 and 9 July 1976. The agenda agreed
for this round, as recorded in an internal Chilean document, included a
discussion on maritime and air spaces 553. According to Chile’s record of the
meeting of 8 July 1976 (there were no joint minutes), the Chilean delegation
stated the position in respect of the maritime boundary between Chile and Peru
as follows:
“[T]he agreements signed between Chile, Ecuador and
Peru in 1952, and another one, signed in 1954, which
established the parallels corresponding to the points on the
coast where the boundary is as the maritime boundary,
have been taken into account. In the same agreement, a
maximum tolerance of 10 miles to the south and to the
north of the boundary was established for the navigation of
Chilean and Peruvian fishing vessels beyond the territorial
boundary of 12 miles from the coast, but with no right to
fish.
to the Treaty of Lima. See Note No. 6-Y/1 of 29 January 1976 from the Minister of
Foreign Affairs of Peru to the Minister of Foreign Affairs of Chile, Annex 26, third
paragraph.
553 Record of the first Meeting of the second round of Chile-Peru Discussions, 5 July
1976, Annex 54.
143 He stated that Chile considers it necessary to obtain
assurances of Bolivia’s full compliance with the 1954
554
agreement.”
3.23. The 1952 agreement is of course the Santiago Declaration; and the
1954 agreement is the Agreement Relating to a Special Maritime Frontier Zone.
It is in keeping with the rules of international law that the State to which territory
would be ceded would be bound by the existing agreements between the ceding
State (Chile) and the adjacent State (Peru) in respect of the maritime zone
appertaining to the coast of the territory, including the boundaries of the
555
maritime zone .
3.24. Two members of the Peruvian delegation spoke for Peru, and
confirmed agreement with Chile’s position. Ambassador Antonio Belaúnde
556
stated that “he has not identified major problems with respect to the sea” . Both
he and Ambassador Arturo García considered that the Agreement Relating to a
557
Special Maritime Frontier Zone settled the maritime boundary issue .
3.25. In short, Peru did not raise any issue with the Chilean proposal that
Bolivia would acquire a maritime zone in the form of a corridor between the two
parallels passing through the seaward termini of the existing Chile-Peru land
boundary (which would become the new Peru-Bolivia boundary) and the new
Chile-Bolivia land boundary. The only point of discussion was the application of
the 10M tolerance-zone régime under the Agreement Relating to a Special
554 Record of the fourth Meeting of the second round of Chile-Peru Discussions, 8 July
1976, Annex 55.
555 See Vienna Convention on Succession of States in Respect of Treaties, signed at
Vienna on 23 August 1978, 1946 UNTS 3 (entered into force on 6 November 1996),
Art. 11; Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali),
Judgment, I.C.J. Reports 1986, p. 566, para. 24; Delimitation of the Maritime
Boundary between Guinea and Guinea-Bissau, Decision, 14 February 1985, RIAA,
Vol. XIX, p. 165, para. 40.
556
Record of the fourth Meeting of the second round of Chile-Peru discussions on
8 July 1976, Annex 55.
557 Ibid.
144Maritime Frontier Zone to the Bolivian maritime corridor, because this entire
corridor was to be 5.1M wide (see Figure 72).
3.26. In the end, Peru refused to accept Chile’s proposal for granting Bolivia
access to the sea through cession of territory. In November 1976, Peru made a
counter-proposal. To the extent relevant here, Peru’s counter-proposal involved:
(a) “Establishment in the province of Arica, after the corridor, of a
territorial area under shared sovereignty of the three States, Bolivia,
Chile and Peru, located to the south of the Peru-Chile frontier, between
the Concordia Line, the Tacna-Arica road, the northern area of the city
558
of Arica and the coast of the Pacific Ocean” ; and
(b) Bolivia’s exclusive sovereignty over the sea adjacent to the coastline
559
of the area to be placed under shared sovereignty .
3.27. A sketch-map included in a scholarly study by Dr. St. John, an
international-relations specialist who lectures frequently at Peru’s Diplomatic
Academy, illustrates the counter-proposal by Peru, according to which the
maritime zone to be ceded to Bolivia would be bounded by the Hito No. 1
parallel and a parallel corresponding to the northern area of the city of Arica. The
lateral limits of the proposed maritime zone for Bolivia follow parallels of
latitude to the north and south 56. Peru did not lay claim to that proposed
558
Memorandum of 18 November 1976 of the Embassy of Peru in Chile, reproduced in
Ministry of Foreign Affairs of Chile, Historia de las Negociaciones Chileno-
Bolivianas: 1975-1978, 1978, Annex 87, p. 50, para. 2, which reads in Spanish:
“Establecimiento en la provincia de Arica, a continuación del
corredor, de una área territorial bajo la soberanía compartida de los
tres Estados, Bolivia, Chile y Perú, situada al sur de la frontera
peruano-chilena, entre la Línea de Concordia, la carretera Tacna-
Arica, el casco norte de la ciudad de Arica y el Litoral del Océano
Pacífico”.
559 Ibid., p. 50, para. 4.
560
See Figure 73.
145maritime zone in 1976. Figure 72 illustrates how Peru’s present claim (“área en
controversia”) overlaps with the area Peru proposed as the maritime zone for
Bolivia in 1976.
3.28. In conclusion, it is clear that Peru had accepted that any maritime area
to be ceded to Bolivia would be bounded by the Hito No. 1 parallel. Peru’s
counter-proposal in November 1976 did not suggest any change in this position.
What is more, Peru’s counter-proposal did not raise any issue of potential
overlap between the “maritime dominion” of Peru and the maritime area which
Bolivia would acquire. There was no overlap because the Peruvian “maritime
dominion” was bounded by the Hito No. 1 parallel. In 1976, Chile and Peru were
again ad idem on the existence of a defined maritime boundary between them.
Section 4. The Parties’ Cartographic Depiction of the Maritime
Boundary
3.29. Cartographic evidence in this case is relevant in two respects. First, as
discussed in the Counter-Memorial (paragraphs 3.146-3.151), Peru’s Foreign
Ministry authorized maps depicting Peru’s maritime zone as limited by two
parallels, to the north and south (sometimes more specifically referring to the
parallel of Hito No. 1 in the south). Such depiction of Peru’s maritime zone is in
conformity with Peru’s Supreme Decree of 1947, the 1952 Santiago Declaration
and the 1955 Supreme Resolution. Peru argues that the relevant maps cannot “be
said to reflect the ‘physical expressions of the will of the State or States
561
concerned’” because they were not published by the State . Assuming in Peru’s
favour this to be the case, on any view Peru’s official authorization and approval
of the maps which were reproduced in widely disseminated school textbooks and
other publications constitute, at the very least, evidence confirming the
conclusions to be drawn from an analysis of the relevant agreements and State
practice. The maps officially authorized and approved by Peru constitute its
561 Reply, para. 4.132.
146 Figure 7272
Ovverrapp of Peru's claimeed "área en controversia " with the maritime area appertaining to Chile and proposed by Peru in 1976 as maritime zone for Bolivia
70°30'W
5.1M
18°30'S 18°30'S
Parallel of the international maritime boundary
Maritime zone for Bolivia following Peru's proposal of 1976
Perus caimeed"área en controversia""
Datum: WGS84 Projection: Mercator
70°30'W
Skketch-maap of he Peeruvian propossalof 19766in J.de la Puente Raadbill,"La meediterraneidad de Boolvia",,n E..Ferrero Coosta(ed.),Reelaciones del Perú con Chile y Bolivia, 1989, p. 54
0 5 10 M
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancy Figure 73
Diagram showing the Peruvian Proposal of 1976 by R. B. St. John (1994)
Source: R. B. St. John, “the Bolivia-Chile-Peru Dispute in the Atacama Desert”, in International
Boundaries Research Unit, Boundary & Territory Briefing, Vol. 1(6), 1994, p. 23confirmation of the existence of a maritime boundary with Chile, and of the fact
562
that the course of this boundary follows the parallel of latitude of Hito No. 1 .
Peru’s authorization and approval of the maps amount to an adoption of the
position depicted therein, thereby lending them greater probative value 563. The
Court will “give particular attention to reliable evidence acknowledging facts or
564
conduct unfavourable to the State represented by the person making them” .
565
Contrary to Peru’s assertion , maps which are authorized and approved (i.e.,
“adopted” 566) by a State, can constitute admissions against interest, in the same
way as other documents authorized, approved or adopted by a State 567.
3.30. Secondly, when Chile’s official charts started depicting the maritime
boundary with Peru in 1992 and 1994, Peru did not react. The lack of reaction on
Peru’s part is consistent only with an understanding that the change in Chile’s
charting practice reflected no change in Chile’s substantive position on the
existence and course of the maritime boundary 568. Peru reacted for the first time
several years later, in 2000, to a chart that had been issued in 1998.
3.31. Peru seeks to make an argument from the fact that Chilean charts
issued after the Chile-Argentina maritime-boundary delimitation under the Peace
562 See Dispute between Argentina and Chile concerning the Beagle Channel,
18 February 1977, RIAA, Vol. XXI, pp. 163-164, para. 137.
563 Decision regarding delimitation of the border between Eritrea and Ethiopia, Award,
13 April 2002, RIAA, Vol. XXV, p. 114, para. 3.21.
564
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61.
565 Reply, para. 4.133.
566
Decision regarding delimitation of the border between Eritrea and Ethiopia, Award,
13 April 2002, RIAA, Vol. XXV, p. 114, para. 3.21.
567
See 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, para. 227; Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61;
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64.
568 Counter-Memorial, para. 1.44.
147Treaty of 1984 do depict that boundary, while the Chile-Peru maritime boundary
was depicted on charts for the first time in 1992. Peru seeks to argue from this
569
that Chile believed there not to be a maritime boundary with Peru . There is
nothing here. As a matter of international law, there is no requirement to depict
international maritime boundaries in charts 570. Nor is there any such requirement
in Chilean law. So if a maritime boundary is not depicted on charts, this cannot
be said to be probative of the absence of a boundary. Thus, so far as Chile is
aware, Peru has not depicted its maritime boundary to the north, with Ecuador, in
its own official charts 571, even though Peru and Ecuador were in agreement on
the existence of a maritime boundary (although perhaps Peru no longer agrees
572
with Ecuador on the legal foundation for that boundary ). As a matter of fact,
the depiction on Chilean charts of the maritime-boundary line with Argentina in
the south was a natural consequence of the resolution of a long and complex
dispute in the Beagle Channel. By contrast, Chile and Peru peacefully possessed
and controlled their respective areas to the north and south of the parallel of Hito
No. 1 without conflict or dispute for more than half a century. There is therefore
no inconsistency in Chile’s practice.
3.32. Peru also argues that the authorization of various maps by its Foreign
Ministry did not extend to the depiction of a maritime boundary 573. This is based
on a manifestly incorrect reading of Peru’s domestic legislation which confers
power upon the Foreign Ministry to authorize such publications, as will be seen
in Subsection A below. In Subsection B, Chile will also explain the irrelevance
569
Reply, paras 4.115-4.140.
570 See, e.g., UNCLOS, Arts 15, 74 and 83, which specify that delimitation zones should
“be effected by agreement” and do not require the delimitation to be depicted on a
map or chart. Also 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. 272.
571 Peru accepted Ecuador’s chart IOA 42 which depicts the Ecuador-Peru maritime
boundary; see paras 4.25-4.26 below.
572
See Reply, p. 192, footnote 356; and paras 4.11-4.20 below.
573 See Reply, paras 4.129-4.131.
148of two foreign maps relied upon by Peru which allegedly depict a perpendicular
line dividing the Chilean and Peruvian waters (see Figure R-4.5 of the Reply )4
or recognize the area to which Peru lays claim as a disputed one (see Figure R-
575
4.6 of the Reply ).
A. P ERU O FFICIALLY A UTHORIZED THE DEPICTION OF ITS “MARITIME DOMINION ”
B OUNDED BY P ARALLELS TO THE N ORTH AND S OUTH
3.33. In the Counter-Memorial, Chile presented four school textbooks on the
geography of Peru and the World, and one Atlas of Peru, which depicted Peru’s
“maritime dominion” bounded by two parallels, to the north and the south, as its
576
lateral boundaries . (Chile also presented many other pieces of cartography to
the same effect, which were part of Peru’s official school curriculum 57.) The
four textbooks were part of the official school curriculum to teach students about
Peru’s political boundaries. Both the textbooks and the Atlas were formally
authorized by the Foreign Ministry of Peru pursuant to Supreme Decree No. 570
of 1957. To recall, under that Supreme Decree, prior authorization by the
Foreign Ministry is required for printing or circulating any “geographic or
cartographic publication referring to or representing the frontier zones of the
578
Nation” . In its Reply Peru has presented a number of defences to this
cartographic evidence, which are addressed in the following paragraphs.
3.34. Contrary to what Peru suggests, the number of these publications is
immaterial. So far as Chile is aware, the Foreign Ministry of Peru has not
574 Reply, Vol. III, p. 55.
575 Ibid., Vol. III, p. 57.
576
See Counter-Memorial, paras 3.146-3.151 and Figures 37-41 to the Counter-
Memorial, Vol. I, after p. 254.
577
See Figures 44-63 to the Counter-Memorial, Vol. VI. Many of the relevant
publications were textbooks authorized by the Peruvian Ministry of Public Education
or stated to be in accordance with Peru’s official school curriculum.
578 Supreme Decree No. 570 of 5 July 1957, Annex 11 to the Memorial (emphasis
added).
149authorized publications depicting different lateral boundaries to the north or the
south. Nor has Peru produced any such publication before the Court. It is equally
579
immaterial that four of the five texts were by the same author : each edition
was authorized by a separate resolution of the Foreign Ministry in the period
between 1982 and 1992 580. This fact serves only to underscore Peru’s continued
approval over time of the same depiction of its maritime boundaries.
3.35. According to Peru, the caption of the relevant maps indicates that they
show only the author’s interpretation of the 1947 proclamation (Supreme Decree
No. 781) rather than an international boundary under the Santiago Declaration 581.
If so, this supports Chile’s position. On Peru’s reading, these maps show the
southern limit of Peru’s maritime dominion, which by definition coincides with
the international boundary with Chile, since the 1955 Supreme Resolution cites
the 1947 proclamation and the Santiago Declaration as the two sources for
582
determining the perimeter of Peru’s maritime zone . In addition, one of the five
maps, taken from an Atlas of 1999 (see Figure 41 of the Counter-Memorial 583),
is accompanied by an explanatory note that Peru’s “[m]aritime frontier” was
“[e]stablished. . .according to Supreme Decree No. 781” and “reaffirmed in the
584
Declaration of Santiago, in 1952” .
3.36. Authorization under Supreme Decree No. 570 relates to the “frontier
zones” of Peru, a term which Peru suggests does not include maritime
boundaries. Yet the notion of “frontier zones” obviously includes international
boundaries, both at sea and on land. Indeed, the text of the two Foreign Ministry
579
See Reply, para. 4.128.
580 Details of the authorization by the Foreign Ministry, and in some cases copies of the
communications authorizing the publication, are set out in Figures 37-41 to the
Counter-Memorial, Vol. I, after p. 254.
581
See Reply, para. 4.128.
582 1955 Supreme Resolution, Annex 9 to the Memorial, preambular recital.
583
Counter-Memorial, Vol. I, after p. 256.
584 Ibid., para. 3.151.
150resolutions which Chile has been able to obtain 585 specifically confirms that
“Peru’s international boundaries have been drawn in an acceptable way”.
3.37. Further, Peru misrepresents Ministerial Resolution No. 458 of 1961,
which relates to authorizations granted by the Peruvian Foreign Ministry under
Supreme Decree 781. Under this Resolution, the Ministry’s authorizations do not
“imply, in any way, the approval of concepts and commentaries relating to the
586
historic and cartographic material” . Peru claims that authorization by its
Foreign Ministry does not reflect Peru’s position as to the accuracy of the
depiction of the maritime dominion in the authorized maps 58. The wording of
the Resolution, however, makes it clear that authorization covers boundary lines
as delimited. The relevant part of the Ministerial Resolution, which Peru fails to
quote, reads:
“The authorization that the Ministry of Foreign Affairs
shall grant, in conformity with the afore-mentioned
Supreme Decrees [including Supreme Decree No. 570 of
1957], to the publications related to frontiers, maps and
other cartographic material, only implies the correction
[corrección] of data that is directly related to the
delimitation of Peru’s bordering zones, in acco588nce with
positive international law on this matter” . (Emphasis
added.)
3.38. Thus, a depiction of Peru’s “maritime dominion” bounded by two
parallels to the north and south which has been authorized by the Foreign
Ministry under Supreme Decree No. 570 and Ministerial Resolution No. 458,
585 Reproduced in Figures 37 and 38 to the Counter-Memorial, Vol. I, after p. 254.
586
Ministerial Resolution No. 458 of 28 April 1961, issued by the Ministry of Foreign
Affairs of Peru, Annex 9 to the Reply.
587 See Reply, para. 4.129.
588
Ministerial Resolution No. 458 of 28 April 1961, issued by the Ministry of Foreign
Affairs of Peru, Annex 9 to the Reply.
151“following the corresponding technical inquiry” 589, evidences Peru’s
understanding of the “delimitation” of its maritime dominion “in accordance
590
with positive international law” .
3.39. What is more, Peru has not produced any official maps showing a
boundary other than the Hito No. 1 parallel or an entitlement by Peru to the zone
that it now says remains to be delimited. Although Peru has now produced three
maps published by official sources 59, these maps do not purport to show Peru’s
lateral maritime boundaries or even Peru’s entitlement to undelimited maritime
areas. Two of these three maps (Figures R-4.9 and R-4.15 of the Reply ) 592
cannot be regarded as depicting the exact perimeter of Peru’s maritime zone or
the maximum extent of Peru’s potential maritime claim. They only show a
maritime area, shaded in light blue, stated to be within the “limit of 200 miles”
(although it is not clear how this limit was measured). That area extends well to
the north of the parallel of the boundary with Ecuador, into Ecuadorean waters.
593
As for the third sketch-map, at Figure R-4.14 of the Reply (attributed to
Peru’s Ministry of Fisheries), this does not depict the entire perimeter of Peru’s
maritime zone, but only the outer-limit projections of 12M and 200M from the
Peruvian coast (following what appears to be a tracé parallèle). And that outer
limit extends to the north beyond the boundary parallel with Ecuador.
3.40. It seems, in fact, that finding further examples of authorized or
authoritative Peruvian maps depicting the existing boundary with Chile is a
matter only of time and access to relevant sources. In 1989, Mr. Flores Palomino,
589
Supreme Decree No. 570 of 5 July 1957, Annex 11 to the Memorial, para. 2.
590 Ministerial Resolution No. 458 of 28 April 1961, issued by the Ministry of Foreign
Affairs of Peru, Annex 9 to the Reply, operative paragraph.
591
See Reply, paras 4.136-4.138 and Figures R-4.9, R-4.14 and R-4.15 to the Reply,
Vol. III, pp. 63, 73 and 75.
592 Reply, Vol. III, pp. 63 and 75.
593
Ibid., Vol. III, p. 73.
152the head of the Sea Institute of Peru (IMARPE) at the time 59, considered that
the boundaries of the “maritime dominion” were determined by “the projection
of 3° 23' Lat. South (coastal frontier with Ecuador) and 18° 20' Lat. South
595
(coastal frontier with Chile), up to 200 miles westwards” . This book was
published under the auspices of Peru’s National Council of Science and
Technology (CONCYTEC). It contains a sketch-map showing Peru’s “maritime
dominion”, which is reproduced here as Figure 74.
3.41. This depiction of Peru’s “maritime dominion” was reproduced in a
subsequent compilation published by the Peruvian Centre for International
596
Studies (CEPEI) in 1992 . This compilation was edited by Professor Ferrero
597
Costa, one of the Peruvian authors cited prominently in the Reply . The
contours of Peru’s “maritime dominion” were clearly marked by the head of
IMARPE and subsequently endorsed by Professor Ferrero Costa. Both of these
publications were issued well after the Bákula Memorandum of 1986, in which
Peru now says it communicated to Chile that no maritime boundary was extant.
B. I RRELEVANCE OF TWO M APS R ELIED UPON BY PERU
3.42. Peru has annexed to its Reply (a) a touristic map of South America
published by the Institut Géographique National of France (IGN) in 2007
showing an azimuthal line without any indication that it is a boundary, which
594 IMARPE is an official body of Peru, currently under the auspices of the Ministry of
Production, responsible for, among others, (a) studying the marine environment and
biodiversity, (b) assessing the fishery resources, and (c) giving information and
advice for management options on fisheries, aquaculture and the protection of the
marine environment.
595
M. Flores Palomino, La Zona Costera del Perú: Un Ensayo de Interpretación y
Proposición de su Organización para su Administración, 1989, Annex 175, p. 4;
also see the first paragraph of the Summary [Resumen].
596
M. Vegas, “El Mar Peruano: Un Ambiente Natural - La Conservación y Utilización
de sus Recursos”, in E. Ferrero Costa (ed.), El Perú, El Medio Ambiente y El
Desarrollo, 1992, Annex 185, p. 157 (Figure 3).
597 Reply, para. 3.180.
153appears to extend some 66M, and (b) a map issued by the Flanders Marine
Institute (VLIZ) in 2009 (i.e., after the commencement of the present
proceedings), which Peru alleges shows the “Chile-Peru Disputed Maritime
Area” 598. Both institutions have informed Chile that the maps in question have
no official status. The IGN further confirmed that the line, a prolongation of the
land-boundary line, does not represent the maritime frontier 59. (This is obvious
on the face of the map: boundaries are depicted by black lines punctuated by dots
while the line on which Peru relies is a succession of mauve dots, which
according to the legend of the map divides time zones.) As for VLIZ’s map, it
carries a disclaimer about the accuracy of the data on which it is based 60. These
two maps rather highlight the penury of Peru’s cartographic evidence.
Section 5. Practice of Peru and Chile Confirming Chile’s Entitlement
South of the Parallel of Hito No. 1
A. I NTRODUCTION
3.43. In Chapter III of the Counter-Memorial, Chile described the wide-
ranging practice of the Parties subsequent to the Santiago Declaration of 1952
and the 1954 Agreement Relating to a Special Maritime Frontier Zone. The
practice confirms a long-standing, undisputed, uninterrupted and in fact on-going
application of a parallel of latitude as the line dividing the maritime zones of the
Parties. For more than a half-century, Peru and Chile have enjoyed quiet
possession of the maritime areas to the north and south of the parallel of Hito
No. 1 respectively. No conflict has been reported relating to the existence of the
maritime boundary between the two States. This is in stark contrast to situations
598
Reply, para. 4.117 and also see Figures R-4.5 and R-4.6 to the Reply, Vol. III,
pp. 55 and 57.
599 Note of 17 February 2011 from the Director-General of the Institut Géographique
National to the Ambassador of Chile to France, Annex 35, third paragraph.
600
Note of 27 January 2011 from the Director of the Flanders Marine Institute to the
Secretary-General of the Department of Foreign Affairs of Belgium, forwarded to
Chile, Annex 34, second paragraph.
154 Figure 74
Sketch-map of Peru’s maritime dominion (1989)
Source: M. Flores Palomino, La Zona Costera del Perú: Un Ensayo de Interpretación y Proposición de su Organización para su Administración, 1989, DIAGRAM 2where disputes over maritime boundaries cause friction in the exercise of various
forms of jurisdiction by the States laying claim to a disputed area (including, in
the past, areas claimed by both Chile and Argentina). Nor has there ever been
any modus vivendi or similar arrangement reserving rights of either Party to any
maritime area on the other side of the boundary parallel. As already noted,
shortly before lodging its Application with the Court Peru confirmed that the
601
status quo, i.e., the existing boundary parallel, would continue to apply .
3.44. Of signal importance, the boundary parallel has been applied by the
Parties not only in respect of fisheries, but for all purposes. The Parties’
respective authorities have treated encroachments of that line as infringements of
their sovereignty. The sketch-map which was part of the Chilean Navy’s Rules
of Engagement in its version of the early 1990s (see Figure 75) clearly indicated
the area to the south of the parallel which the Navy was tasked to defend.
3.45. While Chile has adduced a wealth of materials evidencing quiet
possession and enjoyment, it is able to produce only Chilean materials and, of
Peru’s materials, what has been communicated to it or is accessible to it. In
respect of such materials, Chile has been forthcoming, going so far as to produce
an extract from its classified Rules of Engagement. The same cannot be said for
Peru. There is a striking paucity of evidence on Peru’s part relating to what Peru
now calls the “área en controversia”. Indeed, until Peru started preparing for this
litigation in the early 2000s, there had been not a single Peruvian official paper
asserting that no boundary was in place with Chile, or disputing Chile’s
entitlement to the area south of the parallel. The balance of the evidence between
the Parties could not have been starker.
3.46. In its Reply, Peru declined to address the large majority of the practice
invoked by Chile, arguing that “no amount of practice concerning fisheries
policing can convert the line on which the zone of tolerance was based into a
601 See para. 1.2 above.
155permanent, all-purpose international maritime boundary” and that “[t]here is a
difference between the use of a line in the sea for limited purposes and
agreement upon a permanent international maritime boundary” 60. But this is just
rhetoric, which fails to account for two key facts. First, fishing and fisheries are
by-and-large the most important everyday activities in the vicinity of the
boundary. Second, the evidential record shows the Parties’ exercise of
jurisdiction in a range of matters with which a State would be entitled to deal in
603
its EEZ . Chile identified in Chapter III, Section 4 of the Counter-Memorial (at
pages 214-239) the Parties’ exercise of jurisdiction in respect of:
— monitoring and control of entry into the maritime zones;
— capture and prosecution of unauthorized foreign vessels;
— control of the airspace above the maritime zones; and
— scientific investigations.
3.47. In addition, the Navies of Chile and Peru discharge their
responsibilities of defending and policing their respective State’s waters, not
solely a narrow 3M territorial sea but the entire 200M maritime zones of their
respective State. Peru’s capture of the Onassis fleet was among the early
examples of Peru’s exercise of jurisdiction through its Navy. For its part, as early
as 1955 Chile established a co-ordinated plan for its Navy and the Air Force to
604
patrol the 200M area declared under the Santiago Declaration .
602
Reply, paras 4.25 and 4.26.
603 See UNCLOS, Arts 56(1) and 77(1).
604 Plan Convenio Tripartito by the Office of Chief of Staff of the First Naval Zone,
12 May 1955, Annex 45. This patrolling plan was prepared in order to ensure
compliance with provisions set forth in the Tripartite Agreement [Convenio
Tripartito] between Chile, Ecuador and Peru for the protection of maritime resources
in Chile’s 200M zone. The six CPPS agreements signed by the three States at the
1954 Inter-State Conference were annexed to the plan.
156 Figure 75
Extract from the Rules of Engagement of the Chilean Navy (1990s)3.48. It is impossible to dismiss this extensive body of concordant practice
spanning more than half a century and, signally, the absence of incidents
between the two Navies, as being based on an ad hoc, temporally limited
fisheries arrangement which is recorded nowhere.
3.49. In sum, Peru summarily skates over Chile’s account of the extensive
605
practice without attempting to show the use of any different line between the
Parties for any purpose, or explaining why Peru has agreed to observe the
parallel line for more than half a century. Nor does Peru explain the difference
between an all-purpose maritime boundary between the Parties and a line
consensually applied to divide the zones in which each of the Parties has
exercised jurisdiction in respect of many different subject-matters. In fact, there
is no difference: a boundary, at sea as on land, is a line dividing the exercise of
jurisdiction between States.
3.50. In this Section, Chile briefly recounts and supplements the practice of
the two States and responds to Peru’s criticism on the few factual points in
Chile’s evidential case which Peru chooses to address.
B. E NFORCEMENT OF THE M ARITIME B OUNDARY
1. Peru’s Enforcement of the Boundary Line
3.51. Peru contends that the boundary parallel, and the zone of tolerance on
either side of the “maritime boundary” under the Agreement Relating to a
Special Maritime Frontier Zone of 1954, were designed for the purpose of
avoiding friction between Peruvian and Chilean fishermen 60. While the
incidents that had been experienced related to fishing vessels, the friction was
605 Peru simply states at para. 4.24 of its Reply that “[i]t is not necessary to address the
details of this practice — although Peru should not be taken to accept the accuracy of
Chile’s account”.
606
See, e.g., Reply, para. 4.18.
157between States, not fishermen. Nor is it fair to suggest, as Peru seems to do, that
the boundary parallel was simply a line keeping the two States’ fishermen apart.
3.52. The preamble of the 1954 Agreement acknowledged that “innocent
and inadvertent violations of the maritime frontier between adjacent States occur
frequently” and that it was “desirable to avoid the occurrence of such
unintentional infringements” because the application of penalties in such cases
would produce ill-feeling in the fishermen prosecuted and “friction between the
countries concerned” 607. The existence of the “maritime boundary” was
confirmed, and a “special maritime frontier zone” was created along that
maritime boundary because crossing that boundary would be an infringement of
the sovereignty of the States parties.
3.53. Peru indeed treated crossings of the parallel by Chilean fishing vessels
as illegal transgressions into “Peruvian waters”, Peru’s “territorial waters” or its
608
“jurisdictional waters” . These terms were used interchangeably, and all of
them denote a plenitude of sovereignty and jurisdiction: the term “jurisdictional
waters” is, on Peru’s own case, a term referring to the entirety of its maritime
zone 609. And Peru sometimes attempted to defend its maritime frontier by
resorting to forcible measures: this is a clear indication of the importance which
Peru has attached to the line of the parallel as the limit of its “maritime
dominion”.
3.54. In the Counter-Memorial (paragraphs 3.16 et seq.), Chile described the
pursuit of Chilean fishing vessels by a Peruvian Navy corvette, Diez Canseco.
This was not the only such incident. On 23 July 1968, another Chilean fishing
vessel, Martín Pescador 2°, was attacked by a Peruvian patrol boat, Atico, in the
area to the north of the parallel boundary. The master of the Chilean vessel was
607 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, preambular paragraphs.
608 See Counter-Memorial, para. 3.12.
609
See Reply, para. 24.
158 610
wounded by machine-gun fire . No friction between Martín Pescador 2° and
Peruvian fishermen was reported at the time. Rather, only Peru’s Navy was
involved. The following explanation in Peru’s diplomatic note to Chile, which
followed the event, reveals Peru’s clear understanding that the line of the parallel
(then in the process of being signalled by the alignment lighthouses) was Chile’s
“jurisdictional boundary” and the “dividing line” of the maritime zones of the
two States:
“1) As patrol boat ‘Atico’ became aware of the presence of
twenty Chilean vessels carrying out activities in the area, it
informed them that they were beyond the jurisdictional
boundary of their country, a notice which was complied
with by all the vessels except for ‘Martín Pescador 2º’, the
master of which was reluctant to leave the Peruvian
waters;
2) In view of this persistent attitude, the patrol boat shot
with no other purpose than calling the attention of the
vessel’s crew and prompting them to turn their course
towards the dividing line, which resulted in the vessel’s
master being accidentally injured.
3) The Peruvian Government does not conceal its concern
about the frequent violations of its territorial sea
committed by Chilean fishing vessels and expects that,
while the installation of alignment marks envisaged by
representatives of the two countries during the meeting of
26 April 1968 is being completed, the Chilean maritime
authorities carry out greater surveillance so as to avoid
such incursions occurring again.” 611(Emphasis added.)
610
See Note No. 30 of 24 July 1968 from the Governor of Arica to the Minister of
Interior of Chile, Annex 51.
611 Note No. 5-4-M/95 of 23 September 1968 from the Peruvian Ambassador to Chile to
the Minister of Foreign Affairs of Chile, Annex 20.
1593.55. Peru used stern and self-explanatory terms in the note, and ultimately
the forcible action of its Navy speaks louder than words. Peru was ready and
willing to defend, by use of force if necessary, the dividing line of the maritime
zones of Chile and Peru. A press release by the Peruvian Navy in 1990 also
confirmed that it was the Navy’s standard procedure to fire warning shots at
612
Chilean vessels illegally fishing in Peruvian waters . Peru’s current position
that the line was necessary only for avoiding friction between fishermen of the
two States cannot be sustained in light of Peru’s own clear practice in defence of
the boundary line.
2. Chile’s Capture of Peruvian Fishing Vessels to the South of the Parallel
3.56. Chile also has enforced the maritime boundary by capturing Peruvian
fishing vessels illegally engaging in fishing in the waters south of the
613
“international political boundary” . Chile has informed the Peruvian consul in
Arica and the Harbour Master of Ilo in Peru of the details of each capture. Until
2004, Peru did not challenge Chile’s position that transgressions had been
assessed by reference to the “international political boundary”, which both sides
understood to be the parallel signalled by the alignment lighthouses. The
Peruvian Consul General expressly acknowledged both the existence of a
maritime boundary dividing the jurisdictional waters of the two States and the
application of the Agreement Relating to a Special Maritime Frontier Zone of
1954 between them 61. There were also in place procedures jointly adopted by
612 Press Release No. 29-90 of 24 April 1990 issued by the Directorate of Information of
the Peruvian Navy, Annex 92. This press release also acknowledged that two
Chilean vessels escaped pursuit by a Peruvian patrol boat, crossing the “maritime
frontier” into the Chilean waters.
613
See Counter-Memorial, paras 3.96-3.99 and Figure 28 to the Counter-Memorial,
Vol. I, after p. 224.
614 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 to the Counter-Memorial; also see
Counter-Memorial, para. 3.98.
160Chile’s Navy and Peru’s Coastguard for escorting captured vessels to the
boundary parallel 615.
3.57. As noted, Peru summarily dismisses this practice, claiming that the use
of the parallel derives from an ad hoc arrangement between Chile and Peru
which does not amount to acknowledgement of a maritime boundary 616. Peru has
not identified the source of that arrangement. Peru also fails to address the fact
that the parallel of latitude which runs through the Special Maritime Frontier
Zone was expressly confirmed by both Parties as the boundary dividing their
jurisdictional waters 617. Nor does Peru explain how it was content for Peruvian
fishermen to be continually deprived of any right to fish in an area of 38,324 km²
(roughly equal to the size of Belgium) to which Peru now says it has always been
entitled.
3.58. In fact, Peruvian fishermen well understood the nature of the parallel.
For example, formally recorded statements made by captains and crew of the
618
vessels captured by Chile in 1984 (i.e., before the Bákula Memorandum)
indicate their understanding that the line was “the Chilean international political
boundary” 619 or the “Peru-Chile Boundary” 620 and that their vessels had crossed
621
that line into Chilean waters .
615
See Counter-Memorial, paras 3.100-3.105.
616 See Memorial, para. 4.105 and Reply, para. 4.25.
617 See Counter-Memorial, para. 3.98.
618 These vessels and the location of their captures are summarized in the Appendix to
the Counter-Memorial. Chile explained at para. 3.95 of the Counter-Memorial that
there is no general record-retention or reporting policy for routine matters such as
capture of Peruvian fishing vessels in Chilean waters, and records were available for
the period 1984 and 1994-2009.
619 Voluntary Declaration by Mr. Esteban Sacatuma Escalante (mechanic of the Pocoma
I), 30 August 1984, Annex 150, second paragraph.
620 Voluntary Declaration by Mr. Leoncio Rodríguez Mori (Captain of the Nicolas),
31 July 1984, Annex 149, second paragraph; also see Voluntary Declaration by
161 C. M ONITORING OF ENTRY INTO ,AND EXIT FROM ,THE M ARITIME ZONES OF
PERU AND C HILE BY DOMESTIC AND FOREIGN VESSELS
1. Peru
3.59. Peru set forth procedures for monitoring entry of foreign vessels into
622
its “maritime dominion” as early as 1972 . Peruvian legislation requires
domestic and foreign vessels to give advance notice of entry into the Peruvian
“maritime dominion” and also to report at the moment of entry into, and exit
623
from, that maritime zone . By 1987, this reporting obligation was set out in a
Supreme Decree adopted by Peru’s Directorate-General of Captaincies and
Coastguard approving the Regulation of Captaincies and Maritime, Fluvial and
Lacustrine Activities2. The reporting obligation was subsequently implemented
in 1991, 1994 and 2001 through regulations approving the “system of
information on position and security in the maritime dominion of Peru”
625
(SISPER) . SISPER is operated by the Directorate-General of Captaincies and
Mr. Bernardo Ventocilla Espada (mechanic of the Jessica), 30 August 1984,
Annex 151, second paragraph, referring to the “Chile-Peru boundary”.
621 Voluntary Declaration by Mr. Bernardo Ventocilla Espada (mechanic of the Jessica),
31 July 1984, Annex 148, second paragraph.
622 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 82 to the
Counter-Memorial; also see Counter-Memorial, para. 3.79.
623
See Counter-Memorial, paras 3.78-3.82.
624 Supreme Decree No. 002-87-MA of 11 June 1987 approving the Regulation of
Captaincies and Maritime, Fluvial and Lacustrine Activities, Annex 90, Section A-
040301.
625 Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 178 to the
Counter-Memorial; Directorial Resolution No. 0313-94/DCG of 23 September
1994 of the Directorate-General of Captaincies and Coastguard of Peru, approving
the System of Information on Position and Security in the Maritime Dominion of
Peru, Annex 180 to the Counter-Memorial; Directorate of Hydrography and
Navigation of the Navy, Derrotero de la Costa del Perú, Vol. II, 3rd edn, 2001,
Annex 193 to the Counter-Memorial, p. 17, section 4.4.
162Coastguard of Peru pursuant to the Regulation of Captaincies and Maritime,
626
Fluvial and Lacustrine Activities .
3.60. Chile does not cavil with Peru’s explanation that SISPER has been
established to ensure that Peru’s authorities are informed of the location of
merchant ships, and more generally ships conducting other authorized activities
627
including fishing (but not limited to it) . However, Peru fails to mention that
the system is intended to enable its authorities to track the locations of ships
628
within the confines of Peru’s maritime dominion . It is for this reason that Peru
requires each ship to report its location at the moment of entering into 629, and
exiting from 630, the “maritime dominion” — in addition to regular reporting
while navigating through that zone, or engaging in any activities in it. The
importance accorded by Peru to the reporting system is such that vessels failing
631
to comply with the obligation to report their position are subject to fines which
632
may reportedly reach up to USD10,000 . In fact, Peru has altogether failed to
626 Supreme Decree No. 002-87-MA of 11 June 1987 approving the Regulation of
Captaincies and Maritime, Fluvial and Lacustrine Activities, Annex 90, Section A-
010201.
627
Reply, para. 4.31.
628
See, e.g., Directorial Resolution No. 0313-94/DCG of 23 September 1994 of the
Directorate-General of Captaincies and Coastguard of Peru, approving the System of
Information on Position and Security in the Maritime Dominion of Peru, Annex 180
to the Counter-Memorial, third preambular paragraph.
629
Ibid., Annex (3), First Case.
630 Directorial Resolution No. 0313-94/DCG of 23 September 1994 of the Directorate-
General of Captaincies and Coastguard of Peru, approving the System of Information
on Position and Security in the Maritime Dominion of Peru, Annex 94, Annex (4),
Third Case.
631 Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 93, Art. 3;
Directorial Resolution No. 0313-94/DCG of 23 September 1994 of the Directorate-
General of Captaincies and Coastguard of Peru, approving the System of Information
on Position and Security in the Maritime Dominion of Peru, Annex 94, Annex (1),
Art. 4.
632
See, e.g., “Guidelines for Entering to Peruvian Waters published by Inchcape
Fishing Services”, available at <www.iss-shipping.com>, Annex 153, p. 1.
163include these notification requirements upon entry and exit in its Reply and in
the relevant Annex translating extracts from SISPER 63.
3.61. A system requiring notification at the precise moment of entry and exit
into a maritime zone may function only because those applying the system, i.e.,
both the competent authorities of Peru and ships navigating its waters 63, know
the perimeter of Peru’s “maritime dominion”. Therefore, the existence of
SISPER is in itself evidence of Peru’s conviction that its maritime dominion is
fully delimited. The practical operation of SISPER relies on the fact that Peru has
publicly announced the lateral boundaries of its maritime zone. Indeed, as has
been explained at paragraphs 3.81-3.83 of the Counter-Memorial, since 1988 the
southern limit of the reporting area is indicated the “jurisdictional parallel” of
635
latitude of 18° 20' 08'' S, practically corresponding to that of Hito No. 1 .
3.62. The Peruvian Navy has taken measures to ensure that foreign vessels
comply with the reporting requirements. In 2009, for example, the Harbour
Master of Callao (a port near Lima) informed merchant shipping companies how
to notify the Peruvian Navy of their “entry into Peruvian waters” pursuant to the
relevant regulations 636. This circular letter issued by the Peruvian Navy officer
633 See Directorial Resolution No. 0313-94/DCG of 23 September 1994, approving the
Peruvian Positioning and Security Information System issued by the Ministry of
Defence, Annex 13 to the Reply.
634 See, e.g., “Guidelines for Entering to Peruvian Waters published by Inchcape
Fishing Services”, available at <www.iss-shipping.com>, Annex 153, p. 1.
635
See, e.g., Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 178 to the
Counter-Memorial, Annex (3). The Directorial Resolution also contains model
reports (see para. 7.25 below) with entry and exit points to the north and south of
Peru’s maritime dominion, but no point on the outer limit to the west.
636
Letter No. V.200-3762 of 27 November 2009 from the Captaincy of Callao to
Merchant Shipping Companies, Annex 100. The letter refers to Directorial
Resolution No. 0313-94/DCG of 23 September 1994 of the Directorate-General of
Captaincies and Coastguard of Peru, approving the System of Information on
Position and Security in the Maritime Dominion of Peru, Annex 180 to the
Counter-Memorial, and Directorial Resolution No. 330-2005/DCG of 28 June
164explains that some foreign vessels had been notifying entry “into Peruvian
waters” incorrectly.
3.63. Indeed, vessels have been reporting entry into and exit from the
“maritime dominion” of Peru well before 2009, and continue to do so today, at
the parallel of 18° 20' S or 18° 21' S 637. Appendix B summarizes recent records
of reporting to the Peruvian authorities, including the name and nationality of the
vessels, the date of reporting and the exact coordinates at which the vessels were
entering or exiting the Peruvian waters 638.
2. Chile
3.64. Chile’s Directorate of Security and Maritime Operations
(DIRSOMAR) also receives requests from Peruvian vessels for authorization to
traverse Chile’s EEZ to reach fishing grounds in the high seas to the west of
Chile’s EEZ. Appendix C to this Rejoinder lists recent examples of such requests
by Peruvian fishing vessels, in 2008 and 2009. When requiring authorization to
traverse Chile’s EEZ, Peruvian vessels informed Chile that they were entering
“Chile’s exclusive economic zone”, “Chilean jurisdictional waters” or “Chilean
639
waters” . The latitude of the northern point of entry/exit from Chile’s EEZ has
consistently been the parallel 18º 20' S or 18º 21' S. When the Harbour Master of
Ilo (Peru) and the Maritime Governor of Arica (Chile) discussed such transit in
2005, which is stated to set out the email address to which foreign vessels should
send information to the Peruvian authorities.
637
See the definition of Hito No. 1 at page xi above for the latitude of this boundary
marker when referred to different datums. These two parallels closely correspond to
that of Hito No. 1.
638 Messages from vessels have been sent to email addresses of the War Navy of Peru or
the Directorate-General of Captaincies and Coastguard of Peru.
639
See transcripts of requests by Peruvian fishing vessels to cross Chile’s EEZ to reach
fishing grounds in the high seas, Annex 155.
1652007, both sides acknowledged that it involved navigating through Chile’s EEZ,
640
not a disputed area .
D. G EOGRAPHIC SCOPE OF THE JURISDICTION OF THE N AVAL AND M ARITIME
A UTHORITIES OF PERU AND CHILE
3.65. In Chile and Peru alike, naval and maritime authorities assume
responsibility for a wide range of issues, including maritime safety, enforcement
of laws and regulations in general, protection of the marine environment, and
641
suppression of illegal activities . By virtue of regulations issued in 1987, the
area of responsibility of Peru’s Directorate-General of Captaincies and
Coastguard is defined by reference to Maritime Districts which cover “[t]he
waters of the maritime dominion up to 200 nautical miles” 64. Six such Districts
(numbered under Nos. 11, 12, 21, 22, 23 and 31) were established. As for Chile,
Supreme Decree No. 991 of 1987 principally determines the jurisdiction of
643
Maritime Gobernaciones , which covers “the territorial sea, the contiguous
640
Minutes of the Meeting between the Harbour Master of Ilo and the Maritime
Governor of Arica, 27 April 2007, Annex 12, section 3.
641
See Supreme Decree No. 002-87-MA of 11 June 1987 approving the Regulation of
Captaincies and Maritime, Fluvial and Lacustrine Activities, Annex 174 to the
Counter-Memorial, Chapter I, Section IV (Captaincies); Annex 90, Chapter I,
Section II (Directorate-General of Captaincies and Coastguard); Chile’s Decree with
Force of Law No. 292 of 25 July 1953 approving the Organic Law of the
Directorate-General of the Maritime Territory and Merchant Navy, Annex 44, Arts 3
and 15; and Chile’s Decree with Force of Law No. 2222 of 21 May 1978
Substituting the Navigation Law, Annex 57, Art. 6.
642 Supreme Decree No. 002-87-MA of 11 June 1987 approving the Regulation of
Captaincies and Maritime, Fluvial and Lacustrine Activities, Annex 90, Chapter II,
Section II, Clause A-020201.
643
As indicated in the title of 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.
166zone, the exclusive economic zone and the continental shelf belonging to the
State of Chile.” 644
3.66. As illustrated on Figure 76, both in Chile and in Peru the geographic
area of responsibility of most maritime authorities (i.e., the various Maritime
Districts and Gobernaciones) project westwards, bounded by two parallels of
latitude645. In fact, the use of parallels of latitude to divide areas of jurisdiction at
646
sea has been the practice in Chile since the middle of the 19th century . Despite
both Parties’ practice, Peru denies that the line dividing the respective areas of
responsibility of the Chilean and Peruvian authorities has been determined. This
Subsection addresses the argument put forward by Peru.
1. Peru
3.67. It is recalled that, under the Regulation of Captaincies and Maritime,
Fluvial and Lacustrine Activities of 1987, Peru’s southernmost Maritime District
(No. 31) covered an area from “the provincial limit between Caraveli and
Camaná (Parallel 16° 25' South) to the frontier boundary [límite fronterizo]
between Peru and Chile” 647. The provision defining the scope of Maritime
648
District No. 31 is to be read as drawing the district’s full perimeter on the sea .
644 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. 2.
645 The exception to this are the Maritime Gobernaciones covering areas of jurisdiction
to the south of the parallel 40º 45' 35" S.
646
See Law of 30 August 1848 on the Division of the Territory of the Maritime
Gobernaciones, Annex 42, Art. 2. Also see Supreme Decree No. 844 of 19 May
1945 on the Division of Chile’s First, Second and Third Naval Zones, Annex 43,
Art. 2.
647 Supreme Decree No. 002-87-MA of 11 June 1987 approving the Regulation of
Captaincies and Maritime, Fluvial and Lacustrine Activities, Annex 174 to the
Counter-Memorial, Chapter II, Section III, Clause A-020301.
648 See further Counter-Memorial, paras 3.72-3.75.
1673.68. However, Peru argues that the “frontier boundary” is a reference to the
land boundary, on the footing that the Regulation “defines the limits of the
649
districts in terms of the stretch of coastline that each district covers” . Peru’s
reading is puzzling. The Regulation on any possible view sets forth lines in the
water to apportion areas of responsibility among maritime authorities, i.e.,
defined zones of control. The northern limit of Maritime District No. 31 is
defined as a parallel of latitude (16º 25' S), as is in fact every limit of a Maritime
District in the 1987 Regulation. The southern limit of Maritime District No. 31 is
defined as “the frontier boundary [límite fronterizo] with Chile” — just like the
northern boundary of Maritime District No. 11 is defined as the “maritime
frontier [frontera marítima] with Ecuador”. These verbal descriptors are used in
the Regulation because the boundaries with both Chile and Ecuador are
constituted by parallels of latitude. The fact is simply that the Regulation
conceives, rightly, the projection of the relevant “stretch of coastline” not to
extend to the south of the Hito No. 1 parallel. No other reading is tenable in light
of the object and purpose of the Regulation, its actual wording, and the manner
in which the limits of each of Peru’s Maritime Districts are there set out,
following parallels of latitude. Chile respectfully submits that Peru’s present
interpretation of this Regulation is manifestly incorrect and that it is thus for the
650
Court to adopt the proper interpretation .
3.69. Peru also contends, as a second-line defence, that it had already
reserved its position in 1986, in the Bákula Memorandum, and that the definition
of Maritime District No. 31 could not refer to an international maritime
boundary. Peru goes on to say that by confining its law-enforcement actions to
the area north of the parallel, Peru only took reasonable steps to maintain
maritime policing in a non-provocative manner and avoid confrontation with
649
Reply, para. 4.32.
650 See para. 3.8 above and Case Concerning Ahmadou Sadio Diallo (Republic of
Guinea v. Democratic Republic of the Congo), I.C.J. Judgment, 30 November 2010,
para. 70.
168 Figure 76
Maritime Districts of Peru and Maritime Gobernaciones of Chile
80°W 70°W
Parallels of the international maritime boundary
200M limits
M. D. 11 Limits dividing the maritime gobernaciones of Chile
Limits dividing the maritime districts of Peru
Tracé parallèle of mainland coast projected 200M along parallels of latitude (ignores straight baselines)
M. D. 12 Peru's declared straight baselines published in Peruvian Law No. 28621 of 3 November 2005
as amended by Law No. 29687 of 19 May 2011
M. D. Maritime District
10°S M. D. 21 10°S
M..G.. Ma ariime Goobernaación
Sources:
Peru
M. D. 22 Peru's Supreme Decree No. 002-87-MA of 11 June 1987
Chile's Supreme Decree No. 991 of October 1987
Datum: WGS84 Projection: Mercator
M. D. 23
M. D. 31
0 50 100 150 200 M
M. G. Arica
20°S 20°S
M. G. Iquique
Chile
M. G. Antofagasta
M. G. Caldera
30°S M. G. Coquimbo 30°S
80°W 70°W
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea ConsultancyChile 651. Peru’s argument that the Bákula Memorandum was a blanket pre-
emptive reservation fails for the simple reason that, as will be demonstrated in
Section 6 below, Peru acknowledged in the very same memorandum that a
652
maritime boundary was already in place, which it wished to renegotiate . In any
event, if Peru’s purpose was to avoid confrontation one would have expected it
to communicate this to Chile formally, reserving any entitlement Peru thought it
had to waters to the south of the boundary parallel. Peru did no such thing. The
reason is that it did not believe it had any such entitlement.
2. Chile
653
3.70. Under Article 1 of Supreme Decree No. 991 of 1987 , the
jurisdiction of the Maritime Gobernación of Arica is defined as the area from the
Chile-Peru international political boundary [límite político internacional] in the
north to the parallel of 19° 13' 00" S (Punta Camarones) some 50M to the south.
Peru claimed in its Memorial that there was “no indication of what, in juridical
terms, this ‘international political limit’ was, or the legal basis for it, or of where
654
it was thought to be located.” In the Counter-Memorial Chile pointed out that
the term “international political boundary” is commonly used to refer to
international boundaries and that such was the meaning of this term when used
by the naval authorities of Peru and Chile in their bilateral meetings 655. In the
656
Reply, Peru now says that it was simply the land border with Peru . Peru seems
to draw this conclusion from the fact that Chile’s Decree 991 uses the term
“maritime boundary” when referring to the boundary with Argentina and the
term “international political boundary” when referring to the boundary with
651
See Reply, para. 4.33.
652 See Counter-Memorial, para. 1.39; Rejoinder, paras 3.14-3.29.
653
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.
654 Memorial, para. 4.134.
655
See Counter-Memorial, para. 3.64.
656 See Reply, para. 4.92.
169 657
Peru . The distinction Peru seeks to draw is specious. Records of meetings
between the naval authorities of Argentina and Chile show that the maritime
boundary of the two countries was referred to both as the “international maritime
boundary” and as the “international political boundary” without distinction 658.
3.71. Chile has also explained that Peru was fully aware of the meaning and
precise location of the “international political boundary” from Chilean official
communications 659. The maritime authorities and Foreign Ministry of Peru
clearly understood that the international political boundary followed the Hito
No. 1 parallel signalled by the pair of alignment lighthouses 660.
3.72. Peru suggests that the alleged difference in nomenclature for the
northern and southern maritime boundaries indicates Chile’s understanding that
the parallel of Hito No. 1 in the north is less than an all-purpose maritime
boundary 661. Chile does not deny that these two boundary lines have on occasion
been described in different terms and with a varying degree of detail. However,
the differences hardly support the inference Peru asks the Court to draw.
657
Reply, para. 4.92.
658 See, e.g., the Minutes of the XVII Meeting of the Southern Integration Committee
between Chilean and Argentinean maritime authorities of 18 and 19 April 2007,
where under the heading “Placing of fishing equipment in the Beagle channel on the
navigation channel [of the] International Maritime Boundary”, Chile and Argentina
referred to the “procedures and seizures in the LPI [límite político internacional]”,
Annex 11; also see Minutes of the First Meeting of Maritime Authorities of the
Beagle Channel of 24 March 2006, where Argentina and Chile agreed to
“coordination. . .during situations created by extractive fishing in the vicinity of the
Beagle Channel maritime boundary [límite político internacional]”, Annex 9; and
Minutes of the Third Meeting of the Maritime Authorities of the Beagle Channel of 3
April 2007, where the Chilean maritime authority was recorded as having announced
a prohibition on Chilean vessels fishing at a distance of 1 cable (0.1M) “from the
L.P.I. [límite político internacional]”, Annex 10.
659
See Counter-Memorial, paras 3.63-3.65.
660 See Fax No. 024 of 25 February 1999 from the Deputy Harbour Master of Arica to
the Consul of Peru in Arica, Annex 88 to the Counter-Memorial; also see Counter-
Memorial, para. 3.64.
661 See Reply, paras 4.100-4.105.
1703.73. Peru relies on Chile’s Decree No. 704 of 1990. This relates to the
organization of search and rescue operations by the Chilean Navy, and provides
that the search and rescue area includes “all the waters under national maritime
jurisdiction and those of the Pacific Ocean”. As Peru rightly points out, this
Decree describes the northern limit of that area as “the parallel
18° 20' 08" South” and the south-eastern limit by citing the Peace Treaty with
662
Argentina . The fact that for the parallel to the North no agreement is
specifically cited is in Peru’s submission a meaningful absence. On closer
examination, it is no such thing.
3.74. Both of these lines in Decree No. 704 constitute parts of the outer limit
of the search and rescue area covering the waters under national jurisdiction, and
both of them correspond to Chile’s maritime boundaries. The description of the
south-eastern line, namely “the Line that joins together points A, B, C, D, E and
F of Chart No. 1 of the Treaty of Peace and Friendship with the Argentine
Republic, enacted by Supreme Decree (Ministry of Foreign Affairs) No. 401 of
663
1985” is merely a simpler way of describing each of the five segments of the
Chile-Argentina boundary, rather than using a list of six pairs of coordinates. The
Peace Treaty contains a chart agreed with Argentina and depicting that boundary
line, which is also an easy reference to the line. By contrast, the boundary with
Peru is a parallel of latitude and no further clarification was required.
E. P ERU S A IRSPACE ISB OUNDED BY T WO P ARALLELS ,TO THE NORTH AND THE
SOUTH
3.75. As Chile has already explained, Peru uses the parallels at the points
where its land boundaries to the north and south meet the sea as the lateral limits
662
Decree No. 704 of 29 October 1990, Amending Decree No. 1,190 of 1976 that
Organizes the Maritime Search and Rescue Service of the Navy of Chile, Annex 26
to the Reply, Art. 1.
663 Ibid.
171of the airspace above its maritime dominion 66. In response, Peru alleges that
Chile sought to assimilate the Flight Information Region (FIR) of Lima to Peru’s
airspace in an attempt to show that Peru’s airspace is bounded by parallels 665.
But Chile sought to do no such thing. Chile accepts that Peru’s airspace and FIR
Lima are different in juridical nature and in their spatial extent, and a discussion
of FIR Lima is to be found separately, at paragraphs 3.80 et seq. below.
3.76. For the sake of clarity, the position is as follows. As Peru claims
“exclusive sovereignty over the air space which covers its territory and
666
jurisdictional waters within a range of two hundred miles” , the perimeter of
Peru’s airspace coincides with that of its “maritime dominion” at sea. Peru
regulates air traffic within its vast airspace by authorizing and monitoring entry
into and exit from it. In the “Explanatory Report [Exposición de Motivos]” with
which the Peruvian Minister of Aeronautics submitted the bill on Civil
Aeronautics to Peru’s Congress in 1963, the Minister described Peru’s intention
to control air traffic as follows:
“In Title I, related to air traffic, the principles of
sovereignty concerning airspace and their relations with
the principle of State sovereignty, are established. . .In
accordance with doctrine and with the international
principles established by the Chicago Convention, national
rules which stem from the State’s right to regulate air
traffic within the area limited by the aerial frontiers are
enacted, and the rights of transit of aircraft overflying [the
frontier] and rules relative to the establishment of customs
664 See Counter-Memorial, paras 3.109-3.114.
665 See Reply, para. 4.40.
666
Law No. 15720 of 11 November 1965: Law on Civil Aeronautics, Annex 12 to the
Memorial, Art. 2; Law No. 27261 of 9 May 2000: Law on Civil Aeronautics,
Annex 185 to the Counter-Memorial, Art. 3.
172 for international air traffic are determined.(Emphasis
added.)
3.77. Peru requires prior authorization for entry into and exit from Peru’s
668 669
airspace , and the points of entry and exit are on the parallel of 18° 21' 00" S
in the south. An example of a Peruvian authorization to a Chilean Air Force
aircraft was provided as Figure 30 of the Counter-Memorial0. As is clear from
the document, authorization was granted for “overflight [of] Peruvian territory
[sobrevuelo territorio peruano]”, with an indication of the entry and exit points.
Pursuant to the Law on Civil Aeronautics, authorization was granted, not for
flying through FIR Lima (nor does the authorization say so), but rather through
Peru’s “territory”, i.e., in Peru’s airspace. The use of FIR code-names was
simply a convenient way of identifying the entry and exit points.
F. T HE LINES DIVIDING V ARIOUS ZONES UNDER THE IMO AND ICAOR ÉGIMES
H AVE B EEN ALIGNED WITH THE M ARITIME BOUNDARY
3.78. Chile and Peru are responsible for ensuring the safety of navigation at
sea and in the air in the areas west of their respective continental territories. The
relevant responsibilities are exercised pursuant to multilateral agreements and
arrangements under the auspices of the International Maritime Organization
(IMO) 671and the International Civil Aviation Organization (ICAO). Such zones
include (a) maritime search and rescue (SAR) regions; (b) areas established
under an IMO Assembly resolution for the purpose of coordinating the
667
Explanatory Report of 5 December 1963, signed by the Minister of Aeronautics of
Peru, Annex 83, p. 2.
668 See Law No. 27261 of 9 May 2000: Law on Civil Aeronautics, Annex 185 to the
Counter-Memorial, Art. 21.
669
See Counter-Memorial, paras 3.110-3.114.
670 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, Annex 110 to the Counter-Memorial.
671 Reference to IMO in this Rejoinder includes reference to its predecessor body, the
Inter-Governmental Maritime Consultative Organization.
173transmission of radio navigational warnings (each referred to as a “NAVAREA”
672
in the resolution) ; and (c) FIRs established under Annex 11 to the 1944
Chicago Convention.
3.79. Peru says that the division of zones adopted for particular issues is
separate from the delimitation of maritime zones 673. As a statement of a general
rule, that is correct. However, the Parties’ conduct in respect of all three special
zones concerned is consistent, and indicates their acknowledgment that these
zones were divided by a line following a parallel of latitude, on the
understanding that the maritime and aerial boundaries between the two also
followed a parallel of latitude. The consistency is significant because it is
predicated on explicit acknowledgements of a boundary line following a parallel
of latitude, which boundary line the Parties wished also to adopt in dividing SAR
regions, NAVAREAs, and FIRs.
1. Division of the FIRs of Chile and Peru
3.80. In 1962 the line dividing the adjacent FIRs of Chile and Peru was
changed by the ICAO Council to the current line, namely the parallel of
18° 21' S674. The change was initiated by Peru, not Chile. Peru submitted a
working paper depicting the structure of the air-route network in Peru’s airspace.
As explained in the Counter-Memorial, under the Chicago Convention, if the
parallel of 18° 21' S were not the boundary line between the airspaces of Chile
and Peru, or that boundary had not been agreed upon, this would have meant that
Chile might be controlling part of Peru’s airspace; and accordingly the Parties
would have been required by the Chicago Convention to enter into an agreement
regarding Chile’s provision of services in Peruvian airspace south of parallel
672 Plan for the Establishment of a World-Wide Navigational Warning Service, adopted
by IMO Assembly Resolution A. 381(X), 14 November 1977, Annex 128.
673 See Memorial, p. 131, footnote 197.
674
See Counter-Memorial, para. 3.114.
17418° 21' S 67. In fact, neither Peru nor Chile considered it necessary to enter into
such an agreement. They did not do so because south of parallel 18° 21' S Chile
was not providing services in Peru’s airspace. This is the point Peru is required
to answer, but it remains silent on it.
3.81. In fact, shortly after the change, in 1962, to the current dividing line
between the Parties’ adjacent FIRs, there was confirmation of the motivation for
this change. In 1967, Chile issued a Decree changing the northern limit of the
aerial SAR region to 18° 21' S so as to align it with that of the northernmost FIR
of Chile (FIR Antofagasta). The preamble of the Decree records Chile’s
understanding that the line dividing the adjacent FIRs of Chile and Peru was
modified by ICAO so as to coincide with the maritime boundary, and also that
the modification was initiated by Peru 676. The Decree was published, but Peru
did not react to it.
2. Division of the NAVAREAs of Chile and Peru
3.82. When the World-Wide Navigational Warning Service was established
at the initiative of IMCO and IHO, the initial plan was for one of the States in the
South-East Pacific to take responsibility for the area south of the Equator and
east of meridian 135° W 67. Both Chile and Peru expressed their willingness to
assume responsibility in the area. It was eventually agreed in 1975 to divide the
area into northern and southern segments, with Chile assuming responsibility for
the southern segment. This was agreed among Chile, Peru, and Ecuador and then
endorsed by the IMCO. The report of the IMCO working group recorded the
three States’ agreement as follows:
675
See Annex 11 to the Chicago Convention and Counter-Memorial, p. 233,
footnote 677.
676 See Decree No. 57 of 17 February 1967 amending Regulation Series A
No. 25 “Organ[s] and Functioning of the Search and Rescue Service (SAR Service)”,
Annex 48, first preambular paragraph.
677
See Report of the Ad hoc Joint IHO/IMCO Committee on Promulgation of Radio
Navigational Warnings, 1st session, document PRNW I/7, 31 May 1973, Annex 123.
175 “The Working Group was informed of the agreement
reached by Chile, Ecuador and Peru to divide the Area XV
into two at the latitude of the border of Chile and Peru and
that Chile would take the responsibility of the Area Co-
ordinator for the Southern Area. Ecuador and Peru would
continue consultations to decide on the Area Co-ordinator
for the Northern Area and to make arrangements for the
promulgation of navigational warnings.” 678 (Emphasis
added.)
3.83. The wording acknowledges that the Parties’ “border” at sea is a
“latitude”, that is to say a parallel of latitude. The division of the Chilean and
Peruvian NAVAREAs (both extending westwards to 120° W, i.e., some 2,800M
from Ilo and Arica) along a line of parallel is shown on the sketch-map attached
to the final text of the IMO Plan for the Establishment of a World-Wide
Navigational Warning Service (reproduced as Figure 77). Peru now assumes
responsibility in a corridor of the South-East Pacific, projecting due west from its
coastline.
3.84. It is noted for completeness that the final text of the IMO Guidance
Document contains a standard disclaimer that “[t]he delimitation of such
[NAVAREAs] is not related to and shall not prejudice the delimitation of any
679
boundaries between States” . This is of no moment. When the Parties agreed to
divide their NAVAREAs, this was an unqualified, unreserved agreement
referring explicitly to the “latitude of the border of Chile and Peru”. Chile,
Ecuador and Peru reached a specific agreement, implementing an agreed
boundary line. They had no reservation or qualification to make, because the
678 IMCO, Sub-Committee on Radiocommunications — 15th session, Agenda item 7:
International Co-ordination of Promulgating Navigational Warnings to Shipping —
Communication Aspects: Report of the Working Group on Radio Navigational
Warnings, document COM XV/WP.11, 18 September 1975, Annex 125, p. 3,
para. 16.
679
See the definition of “Area” in Plan for the Establishment of a World-Wide
Navigational Warning Service, adopted by IMO Assembly Resolution A. 381(X),
14 November 1977, Annex 128, para. 2 (Definitions).
176 Figure 77
Sketch-map showing the division of NAVAREAs (1977)
Source: IMO Assembly, Resolution No. S.381(X), Plan for the Establishment of a World-Wide Navigational Warning System, adopted on 14 November 1977, Appendix 1boundary line was an agreed one and in place at that stage for 25 years already.
In any event, this disclaimer was first mentioned in the near-final draft of the
Plan for the Establishment of a World-Wide Navigational Warning Service in
680
November 1977 , well after the Parties’ understanding in 1975.
3. Division of the Maritime SAR Regions of Chile and Peru
3.85. Before the International Convention on Maritime Search and Rescue
was concluded in 1979 and States began to establish their SAR regions under
that Convention, Chile had established its own maritime SAR regions in 1976.
Four such regions were created. The northernmost region was bounded in the
north by the parallel of “18° 20'8 S”, and this line was also described in the
681
relevant Decree as the “Northern Boundary parallel” . Chile then notified the
IMO that it had established SAR services “in accordance with national laws and
regulations”68. Peru lodged no protest with either the IMO or Chile. The current
SAR regions of Chile and Peru are divided practically by the parallel of Hito
683
No. 1 .
G. C ONTROL OF E XPLOITATION OF L IVINGR ESOURCES BY P ERU AND CHILE IN
THEIR RESPECTIVE M ARITIME Z ONES
3.86. One method for Peru and Chile to exploit and at the same time protect
living resources within their respective maritime zones is to control fishing
680
See IMCO, Assembly — 10th session, Committee II, Report of Committee II to the
Plenary, document A X/C.2/2, 14 November 1977, Annex 127, p. 3, para. 5(14).
681 Decree No. 1,190 of 29 December 1976 on the Organization of the Maritime Search
and Rescue Service of the Chilean Navy, Annex 132 to the Counter-Memorial,
Title II, para. 1. Also see Counter-Memorial, para. 3.59.
682 IMCO, Group of Experts on Search and Rescue — 5th session: Report of the
Maritime Safety Committee, document SAR V/6, 15 June 1977, Annex 126,
para. 29.
683
See IMO, Global SAR Plan Containing Information on the Current Availability of
SAR Services, document SAR.8/Circ.1/Corr.222 March 2005 (Chile,
“18° 21' 03" S”), Annex 133, Annex 2, p. 40 and document SAR.8/Circ.1/Corr.4,
21 April 2006 (Peru, “18° 21'.00 S”), Annex 135, Annex 2, p. 38.
177 684
activities through permits . Chile, Ecuador and Peru signed a Regulation in
1955, under the auspices of the CPPS, which confirmed the rule that a permit for
the exploitation of such resources must be obtained from the State in the
685
maritime zone of which the activities were to take place . As already noted, this
requirement was issued on the footing that there were distinct national maritime
zones in accordance with a prior agreed delimitation 68. In Chile and Peru,
several legislative and regulatory texts govern the issuance of fishing permits to
foreign vessels. These texts indicate that both Peru and Chile have regulated
fishing activities on the understanding that their respective, separate maritime
zones were established by the 1952 Santiago Declaration.
1. Peru
3.87. Peru’s Supreme Decree No. 22 of 1956 requires foreign vessels to
obtain fishing permits from Peru before engaging in fishing within Peru’s
687
“jurisdictional waters” . One such permit issued to four fishing vessels
registered in the United States of America, officially communicated to Chile by
Peru, indicates that they were permitted to fish in the “Maritime Zone [Zona
Marítima]. . .established in the Agreements of Santiago of 1952, and Lima of
688
1954” . This was issued shortly after the 1955 Supreme Resolution, which
confirmed that Peru’s maritime zone was limited by two parallels to the north
689
and south .
684 See UNCLOS, Arts 56(a), 61 and 62.
685
See Regulation of Permits for the Exploitation of the Resources of the South Pacific,
signed at Quito on 16 September 1955, Annex 5 to the Counter-Memorial, Arts IV
and VI.
686 See Counter-Memorial, para. 3.129.
687 Supreme Decree of 5 January 1956: Regulation for Fishing Permits to Foreign
Vessels, Annex 82, Art. 1.
688
Ministerial Resolution No. 478 of 9 March 1955, Annex 77, first preambular
paragraph.
689 See Counter-Memorial, paras 3.50-3.52.
1783.88. The 1956 legislation also requires fishing vessels with the requisite
permit to communicate to the Peruvian authorities “the dates on which they enter
690
[into] and exit from Peruvian waters” . Again, if the outer and lateral limits of
Peru’s maritime zone had not been known, this requirement would have been a
meaningless one to stipulate.
2. Chile
3.89. Peru cites Chile’s legislation on the issuance of permits to foreign
vessels 69, and points out that the legislation does not make reference to the
Santiago Declaration as the maritime delimitation agreement 69. The argument
seems to be that unless every law or regulation explicitly refers to the Santiago
Declaration as having fully delimited Chile’s maritime zone with Peru, one must
conclude that Chile does not consider that a maritime boundary exists 693. This is
illogical, and wrong as a matter of common experience. Legislation and
regulations which are referable to, or are based on, a defined maritime zone need
not refer to the boundary delimitation text. Such laws and regulations are
concerned with specific implementation measures, and need not cite every
antecedent act.
3.90. In any event Peru’s argument fails on the facts. Some of the relevant
regulations do specifically cite the 1952 Santiago Declaration as the basis for
Chile’s maritime zone. As was noted by Peru itself, Chile’s Decree No. 332 of
1963 granted the Ministry of Agriculture authority to issue fishing permits to
foreign-flag vessels within Chile’s “200-mile zone established by the Declaration
on the Maritime Zone of 18 August 1952” 694. Similarly, Chile’s General
690
Supreme Decree of 5 January 1956: Regulation for Fishing Permits to Foreign
Vessels, Annex 82, Art. 12.
691 See Counter-Memorial, paras 3.58-3.68.
692
See Reply, para. 4.91.
693 Ibid., paras 4.93-4.95.
694
Ibid., para. 4.94.
179Regulation of Order, Security and Discipline in the Ships and Coastline of the
Republic, as amended in 1978, provided that “any vessel navigating to a national
port or entering, in transit, into the 200-mile National Maritime Zone established
in the Declaration on the Maritime Zone of 1952, shall communicate its position
daily at 08:00 and 20:00, and shall also communicate its course, speed in knots
695
and port of call.”
3.91. Chile’s Decree No. 130 of 1959, referred to by Peru 696, implements the
Regulation of Permits for the Exploitation of the Resources of the South Pacific,
signed in 1955 under the auspices of the CPPS in respect of fishing activities 697.
This CPPS Regulation concerns exploitation of resources in the “maritime zone
698
of Chile, Ecuador or Peru” . This is the 200M maritime zone under the
699
Santiago Declaration, which forms the basis of the entire CPPS system .
Decree No. 130 implements this Regulation, and controls fishing activities by
foreign vessels in Chile’s “territorial waters [aguas territoriales]” 700.
3.92. In implementation of the foregoing regulations, permits issued by
Chile to domestic fishing companies covered areas within Chile’s maritime zone
up to the “parallel 18º 20' L.S.” 701 or the “parallel 18° 21' L.S.” 702. Other fishing
695 Decree No. 441 of 8 July 1978: Amendment to the General Regulation of Order,
Security and Discipline on Vessels and the Coast of the Republic, Annex 58, Art. 1.
696 Decree No. 130 of 11 February 1959: Regulation on Permits for Fishing by Foreign
Vessels in Chilean Territorial Waters, Annex 117 to the Counter-Memorial; Reply,
para. 4.93.
697 Decree No. 130 of 11 February 1959: Regulation on Permits for Fishing by Foreign
Vessels in Chilean Territorial Waters, Annex 117 to the Counter-Memorial, first
preambular recital.
698
Regulation of Permits for the Exploitation of the Resources of the South Pacific,
signed at Quito on 16 September 1955, Annex 5 to the Counter-Memorial, Art. 1.
699
See Counter-Memorial, para. 3.130.
700 Decree No. 130 of 11 February 1959: Regulation on Permits for Fishing by Foreign
Vessels in Chilean Territorial Waters, Annex 117 to the Counter-Memorial, Art. 1.
701
See Resolution No. 311 of 7 May 1993 by the Under-Secretariat of Fisheries of
Chile, Annex 67, para. 1.
180permits referred to areas located between 18º 20' and another parallel of latitude
to the south, the length of the permitted area being determined by the Under-
Secretariat of Fisheries on a case-by-case basis03.
3.93. Chile’s control of fishing activities does not end at the issuance of
fishing permits. Pursuant to Chile’s Fisheries Law, which applies to extractive
fishing activities undertaken in Chile’s EEZ 70, owners of fishing vessels are
required to report to Chile’s National Service for Fisheries (SERNAPESCA) 705.
For the purposes of monitoring fishing within Chile’s EEZ, SERNAPESCA
defined 44 areas at sea which serve as the basis for ship owners to report the
location where they carry out fishing activities. The two northernmost areas
defined by SERNAPESCA end at the parallel of 18º 21' S, as illustrated on
Figure 78 706.
H. S CIENTIFIC RESEARCH IN W ATERS SOUTH OF THE M ARITIME BOUNDARY
3.94. In its Reply, Peru does not dispute the fact that (a) Chile has
authorized research missions in Chile’s maritime zones, including the maritime
spaces now claimed by Peru 707; and (b) in the CPPS-coordinated study of the
periodic climatic phenomenon “El Niño”, each CPPS Member State has
702 See Resolution No. 1412 of 31 December 1992 by the Under-Secretariat of Fisheries
of Chile, Annex 65, para. 1; Resolution No. 1 of 8 January 1993 by the Under-
Secretariat of Fisheries of Chile, Annex 66, para. 1.
703 See the following Resolutions by the Under-Secretariat of Fisheries of Chile:
No. 350 of 10 November 1971, Annex 53; No. 397 of 9 October 1980, Annex 59;
No. 402 of 13 October 1980, Annex 60; No. 403 of 13 October 1980, Annex 61;
No. 450 of 17 November 1980, Annex 62; No. 512 of 30 December 1980,
Annex 63.
704 See Law No. 18,892 (as amended), General Law on Fisheries and Aquaculture,
consolidated text published in Decree No. 430 of 21 January 1992, Annex 64, Art. 1.
705
Ibid., Arts 63 and 64; also see Supreme Decree No. 464 of 31 July 1995, Annex 69,
Art. 6.
706 See Industrial Unload Form DI-01 issued by Chile’s National Service for Fisheries,
Annex 75.
707 See Counter-Memorial, paras 3.115-3.117.
181conducted research within the maritime area under its jurisdiction 708. Peru
acknowledges the existence of three parallels of latitude dividing the respective
areas of scientific research of the Member States, including the parallel which
divides the Chilean and Peruvian areas. Peru suggests that the line was agreed
specifically for scientific research purposes but nothing more 709. The argument is
difficult to credit for a number of reasons.
3.95. Exercise of jurisdiction over marine scientific research is an aspect of
the coastal State’s rights in its EEZ 710. Peru did not raise any objection to Chile’s
having authorized research projects to the south of the boundary parallel, nor did
Peru claim that it, rather than Chile, should be the authorizing State. Peru was
well aware of Chile’s authorizations, in particular for research conducted by
vessels covering both Peruvian and Chilean zones on the same voyage 711.
3.96. In fact, Chile’s practice of authorizing scientific research projects in its
maritime zone spans a period longer than the last 15 years which the examples in
paragraphs 3.115-3.117 of the Counter-Memorial cover. For example, in 1977,
the Hydrographic Office of the Chilean Navy authorized a research project
712
organized by the National Petroleum Company of Chile (ENAP) . The project
involved a bathymetry survey and seismic tests on the seabed off the coast of
Chile 713. The area surveyed by the research vessel, which was operated by the
Western Geophysical Company of America, under contract to ENAP, included
an area along a parallel of latitude in the vicinity of the maritime-boundary
parallel (see Figure 79).
708
Counter-Memorial, paras 3.118-3.119.
709 See Reply, para. 4.26.
710
See UNCLOS, Art. 56(b)(ii).
711 See, e.g., Counter-Memorial, paras 3.115(c) and 3.115(f).
712
See Letter No. 13000/5 of 25 February 1977 from the Director of the Hydrographic
Institute of the Chilean Navy to the General Manager of ENAP, Annex 56.
713 See Western Geophysical Company of America, Final Field Operation Report,
March-November 1977, Annex 147, pp. 1-3.
182Figure 78 Figure 79
Sketch-map of the area surveyed by the research vessel operated by the Western Geophysical Company of America for ENAP in 1977
Source: Western Geophysical Company of America, Map ENA-3-3, 1:500,000, 19783.97. What is more, Peru’s position in the Reply in respect of the CPPS-
coordinated project for the study of “El Niño” is inconsistent with its own
position when the project commenced in 1998. When an urgent meeting was
convened in the city of Callao in Peru in March 1998 to discuss the details of the
project, the head of the Sea Institute of Peru (IMARPE), Mr. Luis A Giampietri
Rojas, expressed his understanding that each CPPS Member State nominated one
714
official institution and tasked it to conduct research within its “maritime area
of national jurisdiction” 715. He clearly acknowledged that each CPPS Member
State was responsible for conducting research and collecting data within its
maritime zone. Figure 36 of the Counter-Memorial reproduced a sketch-map
from the report of the second CPPS joint scientific research programme in 1999,
showing that Chile, Ecuador and Peru conducted research within their respective
716
maritime zones, limited by two parallels, to the north and south .
3.98. The 13th joint scientific research programme was conducted in 2010
with the participation of Colombia, Ecuador and Peru. (Chile did not participate,
because of the major earthquake and the devastating tsunami which followed it
in February 2010.) The report issued by Colombia, the regional coordinator of
this project, on the findings of the programme confirms that the three
participating States conducted research in their respective “jurisdictional
717
waters” . The project is stated to have covered an aggregate area between 7° N
and 20° S, but Figure 1 of the report, indicating the oceanographic stations used
714 The Member States nominated the following institutions: Chile: IFOP (Institute for
the Promotion of Fisheries); Colombia: CCCP (Centre for Oceanographic and
Hydrographic Investigation of the Pacific); Ecuador: INOCAR (Oceanographic
Institute of the Navy); Peru: IMARPE (Sea Institute of Peru).
715 Speech of the President of the Executive Board of IMARPE, Vice-Admiral Luis A.
Giampietri Rojas, opening the extraordinary meeting of the coordination committee
of the Regional Oceanographic Cruise of the Southeast Pacific, reproduced in
Annex I to the Minutes of the Urgent Meeting of the Coordination Committee of the
Joint Regional Cruise of Oceanographic Investigation in the Southeast Pacific, 26-27
March 1998, Annex 16.
716
Counter-Memorial, Vol. I, after pp. 240.
717 Final Report of the 13th Joint Oceanographic Regional Cruise in the Southeast
Pacific, undated, Annex 137, p. 10.
183by the three States for the research (reproduced here as Figure 80), shows that
Peru’s IMARPE did not conduct any research in the “área en controversia” now
718
claimed by Peru .
I. SUBMARINE CABLES ON P ERU ’SC ONTINENTAL S HELF
3.99. The application of the parallel of Hito No. 1 has not been limited to
various types of jurisdiction in respect of the water-column. This Subsection
briefly describes Peru’s application of the parallel of Hito No. 1 as the southern
limit of its continental shelf in authorizing the laying of a submarine cable
system.
3.100. A resolution issued by the Director-General of Captaincies and
Coastguard of Peru in September 2000 approved the preliminary plan for the
installation on Peru’s continental shelf of two segments of a submarine cable
system running along the coasts of, among other countries, Colombia, Ecuador,
Peru and Chile 71. Peru’s authorization was issued in respect of part of a
Segment N in the north, from a point with coordinates 3° 23' 00.0" S and
88° 18' 39.6" W, and part of a Segment O in the south, down to a point with
coordinates 18° 21' 00.0" S and 73° 35' 58.0" W 720. The authorization thus
reflects Peru’s understanding that it was not entitled to authorize the laying of a
submarine cable on the continental shelf to the north of 3° 23' 00.0" S (boundary
721
with Ecuador) or to the south of 18° 21' 00.0" S (boundary with Chile) . The
authorization referred to Article 2(e) of the Law on Control and Surveillance of
718
For completeness it is noted that by that time Peru had undertaken to observe the
status quo of the existing boundary line; see “Perú y Chile continuarán con
actividades pesqueras [Peru and Chile will continue with fishing activities]”, El
Peruano, 16 August 2007, Annex 143.
719 See Directorial Resolution No. 0403-2000/DCG of 7 September 2000 of the
Directorate-General of Captaincies and Coastguard, Annex 96, Art. 1.
720
Ibid., Art. 2.
721 The maritime boundary between Ecuador and Peru follows the parallel of
3° 23' 33.96" S. It is presumed that the value was rounded down to the closest minute
for ease of administration.
184 Figure 80
Sketch-map in the CPPS report on the thirteenth joint regional oceanographic research
(September-October 2010) showing the oceanographic stations of the national institutions
of Colombia, Ecuador and Peru (with Chile-Peru maritime boundary, Chile’s maritime
zone and alta mar area superimposed)
Source: Informe Final del Décimo Tercero Crucero Regional Conjunto Oceanográfico en el
Pacífico Sudeste, <http://cpps.dyndns.info/cpps-docs-web/dircient/2011/abril/XIV-crucero/
CPPS_DC_RCCXIV_06_Informe_XIII_crucero_regional.pdf>Maritime, Fluvial and Lacustrine Activities, which provides that this Law applies
to marine “devices” and installations situated adjacent to Peru’s coast up to a
distance of 200M 72.
3.101. The submarine cable system authorized by Peru continues southwards
and lands at Arica and Valparaíso in Chile 723.
Section 6. Chile’s Internal Note of 1964 and the Bákula Memorandum of
1986 confirm the existence of a maritime boundary
3.102. Peru prominently cites a note by the legal advisor at the Ministry of
Foreign Affairs of Chile in September 1964 (the Bazán Note) 724 as evidence of a
supposed view by Chile that no maritime boundary with Peru was in place at the
725
time . Peru also claims that the Bákula Memorandum “stands out as an explicit,
unequivocal, written assertion, uncontradicted by Chile at the time, that no
international maritime boundary between Peru and Chile had been agreed”. 726
However, as explained below, the Bazán Note did confirm the existence of a
maritime boundary between the Parties. As for the Bákula Memorandum, this
was a proposal by Peru for renegotiation of the existing maritime boundary
between the two States. These two texts are discussed in turn in this Section.
722
See Law No. 26620 of 30 May 1996: Law on Control and Surveillance of Maritime,
Fluvial and Lacustrine Activities, Annex 95, Art. 2(e).
723 As was explained in the Counter-Memorial, Chile authorized a United States
company to conduct scientific research in relation to the proposed installation of the
same submarine cable system; see Counter-Memorial, para. 3.115(c).
724 Note No. 138 of 15 September 1964 issued by the Head of the Legal Advisor’s
Office of the Ministry of Foreign Affairs of Chile: text and full translation at
Annex 47.
725
See Reply, paras 4.86-4.90.
726 Ibid., para. 4.47.
185 A. C ONFIRMATION OF A M ARITIME B OUNDARY BETWEEN C HILE AND PERU IN
1964
3.103. The Bazán Note concluded that “[t]he maritime delimitation between
Chile and Peru is the parallel that passes through the point at which its land
frontier touches the sea” 72. This is in fact the current position of Chile. The
Bazán Note is also consistent with earlier (unpublished) advice provided by the
Boundary Commission of the Ministry of Foreign Affairs of Chile in April 1964,
to the effect that the maritime boundary between Chile and Peru followed the
728
parallel of latitude of Hito No. 1 . Neither of these two internal documents
advances Peru’s case.
3.104. Peru prefers to place emphasis on a sentence in the Bazán Note saying
that the Santiago Declaration “does not constitute an express pact for
determining the lateral boundary of the respective territorial seas”. Yet the note
also confirmed that Article IV of the Santiago Declaration “starts by assuming
that this boundary coincides with the parallel that passes through the point where
729
the land boundary reaches the sea” and “reveals that, for the contracting
parties, what delimits their territorial sea is neither the prolongation of the land
frontier, nor a perpendicular to the coast, nor the median line, but a geographic
730
parallel” . This accords with Chile’s position before the Court that “the
Santiago Declaration was. . .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
731
the sea” . The note further concluded that Chile, Ecuador and Peru “cannot
727 Bazán Note, Annex 47, fourth page (last paragraph).
728
See Note No. 25 of 9 April 1964 from the General President of the Boundary
Commission of Chile to the Minister of Foreign Affairs of Chile, Annex 46, third
and fourth paragraphs.
729
Bazán Note, Annex 47, second page (fourth paragraph).
730 Ibid., second page (last paragraph).
731 Counter-Memorial, para. 2.79.
186deny or contravene unilaterally” the existence of an agreed maritime
732
boundary .
3.105. In sum, the Bazán Note cannot be fairly read as indicating Chile’s
position to have been that no maritime boundary was in place with Peru. Indeed,
the Note comes to the opposite conclusion. As this was a publicly available
document (published in the annual Memoria of Chile’s Foreign Ministry), Peru
would have reacted to this conclusion if it believed it to be wrong. It did not.
B. T HEB ÁKULA M EMORANDUM OF 1986 WAS AN ISOLATED PROPOSAL TO
R ENEGOTIATE THE EXISTING M ARITIME BOUNDARY
3.106. Peru’s proposal for renegotiation of its maritime boundary with Chile
was made by the then Foreign Minister, Ambassador Allan Wagner, who
dispatched Ambassador Bákula with a personal message from the Minister. The
733
message was later submitted to Chile in the form of the Bákula Memorandum .
As noted, Peru claims that this démarche stands out as an “explicit, unequivocal,
written assertion, uncontradicted by Chile at the time, that no international
734
maritime boundary between Peru and Chile had been agreed” . The document
cannot bear the weight of this assertion.
3.107. The Bákula Memorandum was an attempt by Peru to renegotiate the
735
existing maritime boundary . Peru then believed that the “definition of new
maritime spaces” in UNCLOS gave it a foothold to seek a renegotiation. This is
distinctly not Peru’s position today, but it had the merit of acknowledging that a
maritime boundary was in place between the Parties, which Peru now denies.
The Bákula Memorandum has to be understood in the context of mounting
domestic dissatisfaction with the boundary line. As described in Chapter V,
732 Bazán Note, Annex 47, fourth page (first paragraph).
733
See Bákula Memorandum, Annex 76 to the Memorial.
734 Reply, para. 4.47.
735
See Counter-Memorial, para. 1.39.
187Section 4 below (paragraphs 5.18 et seq.), influential Peruvian diplomats,
officers, and lawyers, whilst acknowledging the existence of an agreed boundary,
were rehearsing several arguments to critique it, and so press for a renegotiation,
or cast doubt on its legal force and effect. The Bákula Memorandum is notable
for pressing for a renegotiation, while Peru’s present case is notable for
following a different strand of thought, outright denial.
3.108. The Bákula Memorandum was a plea for renegotiation on the ground
that the existing boundary was based on an allegedly “extensive” interpretation
of existing agreements between the Parties, which “could generate a notorious
situation of inequity and risk, to the detriment of the legitimate interests of Peru,
736
that would come forth as seriously damaged” . It also referred to the
desirability of “preventing the difficulties which would arise in the absence of an
express and appropriate maritime demarcation” and of avoiding a maritime
boundary with “some deficiency therein” 737. The language employed is very
circumspect, but the message is clear: the text of the agreements of 1952 and
1954 was in fact understood by Peru to have produced a boundary, but the
boundary should be altered and rest on a renegotiated agreement.
3.109. It is also helpful to examine the grounds on which the Bákula
Memorandum raised an issue of boundary delimitation. Peru argues in its Reply
that the Memorandum distinguished between “‘the formal and definitive
delimitation’ of their marine spaces” of the two States and “ad hoc arrangements
738
for specific purposes, such as the 1954 fisheries policing tolerance zone” .
This, Peru says, was one of the two reasons for drawing Chile’s attention to the
need for “formal and definitive delimitation”. It is true that an inference from this
passage is that Peru was advocating the view that the agreements of 1952 and
1954 were somehow less than a “formal and definitive delimitation”. But it was
736 Bákula Memorandum, Annex 76 to the Memorial, second page (third paragraph).
737
Ibid., third page (second paragraph).
738 Reply, para. 4.49.
188nowhere said that these texts were provisional, or of limited import for fisheries
only.
3.110. In fact, contrary to Peru’s new argument that the Agreement Relating
to a Special Maritime Frontier Zone of 1954 applied only between Peru and
Ecuador 739, the Bákula Memorandum clearly accepted that this agreement also
established a special maritime frontier zone between Chile and Peru 740. And the
Memorandum did not indicate that this zone was a provisional one, as Peru now
741
claims . Nor did the Memorandum state, for it could not say, that the “maritime
frontier” around which the “special zone” was established was a fisheries/fishing
boundary, as Peru now asserts 742.
3.111. The second reason in the Bákula Memorandum for raising a
delimitation issue was the conclusion of UNCLOS four years earlier. Peru
considered that the Parties needed to define, in their respective domestic
legislation, the characteristics of the territorial sea, contiguous zone, EEZ and
continental shelf “including the reference to the delimitation of the said spaces at
international level” 743. These maritime zones, Peru said, are different from the
then existing 200M maritime zones. This was in fact mostly an issue for Peru,
744 745
rather than Chile . Chile already had a 3M territorial sea and ipso jure rights
to a continental shelf, which it had claimed in the 1947 proclamation and the
1952 Santiago Declaration. Chile was in fact shortly to adopt UNCLOS-
compliant zones in its domestic law a few months later 74. By contrast, Peru did
739
See Memorial, para. 4.105; Reply, p. 192, footnote 356.
740 See Bákula Memorandum, Annex 76 to the Memorial, second page (third
paragraph). Also see the Counter-Memorial, para. 2.222.
741
See Reply, para. 2.81.
742 Ibid., paras 2.81 and 4.25.
743
Bákula Memorandum, Annex 76 to the Memorial, second page (fourth paragraph).
744 Ibid., second page (last paragraph).
745
See Supreme Decree No. 1340 of 14 June 1941, Annex 26 to the Memorial.
746 See para. 3.117 below.
189not, and does not have, differentiated zones, but rather a singular, undivided
“maritime dominion” 74. In any event, since Peru did not ratify UNCLOS, the
argument made in the Bákula Memorandum was lost to it, and Peru has now
adopted the new strategy of pretending that no maritime boundary was ever
agreed.
3.112. Ultimately, that Peru was seeking to renegotiate an agreed maritime
boundary already in place — rather than making an “explicit” or “unequivocal”
assertion that no boundary had been agreed at all — was reflected in
contemporaneous public remarks by Peru’s Foreign Minister himself. Minister
Wagner is reported to have stated in June 1986 that the Santiago Declaration
established the rules for maritime delimitation and the existing line of parallel
should be “corrected” 74.
3.113. If further proof were required of Peru’s intent in the Bákula
Memorandum, it is important to note that it remained without suite. Chile did not
see any need to respond immediately to Peru’s proposal for a renegotiation and,
rather than agreeing to negotiate, it continued applying the parallel as the
maritime boundary. And, signally, so did Peru, and without so much as reserving
its position in any way in any subsequent official instrument or communication
with Chile. The Bákula Memorandum was an isolated event. Peru did not pursue
this issue further with Chile for the next 14 years.
3.114. Peru does not deny its failure to follow-up on the Bákula
Memorandum. But it argues that the Memorandum was effectively a blanket pre-
emptive measure, precluding “any possibility that Chile could have considered
that applications of the fisheries policing line could be regarded as evidence of
747 See Counter-Memorial, paras 2.166-2.176 and paras 7.38-7.50 below.
748
“Chile y Perú Analizan Delimitación Marina [Chile and Peru analyze marine
delimitation]”, El Mercurio, 12 June 1986, Annex 141. Also see “Cancillería chilena
informa sobre delimitación con Perú [Chilean Ministry of Foreign Affairs informs
about delimitation with Peru]”, El Comercio, 17 June 1986, Annex 142.
190the existence of an agreed international maritime boundary” 74. This argument,
however, is premised on the wrong footing that the Memorandum spoke of a
“fisheries policing line”. This is an unsupported gloss 25 years after the event. A
further point is that Peru’s own conduct post-1986, affirmatively observing the
boundary without reservations or qualifications 75, defeats any possible inference
that the Bákula Memorandum stops the clock for evidential purposes. Indeed,
Peru’s own conduct between 1986 and 2000 shows that the Bákula
Memorandum cannot possibly be read as denying the existence of the boundary.
3.115. To illustrate, the Harbour Master of Ilo, the senior Peru Navy officer at
the port closest to the vicinity of the boundary, continued to use the line of the
Hito No. 1 parallel, described in official administrative decisions as the “dividing
line of the maritime frontier” and the “frontier line of the Republic of Chile” 751,
in order to determine whether Chilean fishing vessels had crossed into Peru’s
“maritime dominion”. The terminology is plain, and at odds with Peru’s
argument that the boundary was a functional line based on an ad hoc agreement.
The “dividing line of the maritime frontier” is the southern limit of Peru’s
752
“maritime dominion” .
3.116. Cartographic materials post-1986 are to the same effect. As was
discussed more fully above (paragraphs 3.33-3.41), Peru’s Foreign Ministry
continued to authorize the depiction of Peru’s maritime zone bounded by two
753
parallels, to the north and to the south . Nor did Peru protest, until 2000,
749
Reply, para. 4.45.
750 Chile pointed out in the Counter-Memorial (para. 1.42) that Peru did not seek to
include a “without prejudice” clause in the many agreements concluded under the
auspices of the CPPS, although this is normal practice in treaties which may affect a
party’s entitlement to a disputed or undelimited maritime zone. Peru remained silent
on this point.
751 Both terms were used in, for example, Resolution No. 006-89-M of 5 June 1989 by
the Harbour Master of Ilo, Annex 176 to the Counter-Memorial.
752
Also see Counter-Memorial, paras 3.90-3.92.
753 Ibid., paras 3.145-3.151.
191Chile’s official charts in 1992, 1994 and 1998 which depicted the maritime
boundary as the parallel of Hito No. 1 754. If the Bákula Memorandum had the
general pre-emptive effect which Peru now contends it did, there would have
been no need for these objections in 2000. The fact is that they represented a
change of Peru’s position.
3.117. Chile incorporated UNCLOS-compliant maritime zones in its
domestic law in October 1986, shortly after the Bákula Memorandum,
confirming on that occasion that “[t]he maritime delimitations referred to in
Articles 593 and 596 of the Civil Code shall not affect the current maritime
limits”755. Peru did not react. When the Chilean Government set in motion the
ratification process for UNCLOS in 1994, the Chilean President stated in his
message to Congress that there were in place maritime-boundary agreements
with Peru and Argentina 756. Peru did not react. Chile continued to capture
Peruvian vessels illegally fishing in its maritime zone to the south of the
757
boundary parallel . Peru did not react. Despite the “urgency” suggested in the
758
Bákula Memorandum in 1986 , the démarche was abandoned.
3.118. Ambassador Rodríguez Cuadros, a Peruvian author cited in the Reply,
also noted that Peru’s claim set out in the Bákula Memorandum was an “isolated
759
event” and no official action was taken to follow it up . Even Ambassador
Bákula himself considered that Peru should have reacted to Chile’s continued
754
See the 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.
755
Law No. 18,565 of 13 October 1986 Amending the Civil Code Regarding Maritime
Spaces, Annex 36 to the Memorial.
756 See Message from the President of Chile to the House of Deputies of the Congress of
Chile with draft agreement relating to UNCLOS and its Annexes, and its Part XI and
its annex, Bulletin No. 1425-10, 28 October 1994, Annex 68, p. 5.
757 See Counter-Memorial, paras 3.93-3.99.
758
Bákula Memorandum, Annex 76 to the Memorial, second page (fourth paragraph).
759 M. Rodríguez Cuadros, La Soberanía Marítima del Perú — La Controversia entre el
Perú y Chile, 2010, Annex 183, p. 91.
192enforcement of the boundary parallel 760. Indeed, as late as 1999, Peru stated,
upon the conclusion of the Act of Execution of the 1929 Treaty of Lima, that
761
there remained no pending conflict with Chile .
3.119. In sum, the conclusion to draw from the Bákula Memorandum, in the
context of the decades of Peruvian practice which preceded and followed that
Memorandum, is that it was an isolated proposal for renegotiation of a boundary
whose existence the memorandum acknowledged, however grudgingly.
760
See J. M. Bákula, Perú: Entre la Realidad y la Utopía — 180 Años de Política
Exterior, Vol. II, 2002, Annex 164, p. 1151.
761 See Counter-Memorial, para. 1.41; Statement by the Ministry of Foreign Affairs of
Peru on 13 November 1999, Annex 182 to the Counter-Memorial.
193 CHAPTER IV
THE POSITION OF ECUADOR
4.1. The Santiago Declaration and the Agreement Relating to a Special
Maritime Frontier Zone are trilateral treaties. Two of the three States parties,
Chile and Ecuador, have maintained a constant position on the interpretation and
application of these two treaties. That position is that the Santiago Declaration,
read together with the Agreement Relating to a Special Maritime Frontier Zone,
fully delimited the maritime boundary between Chile and Peru, on the one hand,
and between Ecuador and Peru, on the other hand.
4.2. Before Peru began to develop its arguments for the present case, Chile,
Ecuador and Peru all had the same interpretation of the Santiago Declaration and
the Agreement Relating to a Special Maritime Frontier Zone. This was
evidenced, for example, in the explicit interpretative agreement recorded in the
1954 Minutes that the maritime boundaries between the three States had been
762
settled in the Santiago Declaration . Peru’s recent tactics have involved saying
one thing to Chile and the Court, and something different to Ecuador. This has
led Peru to an untenable position: on the one hand, Peru maintains that the
Santiago Declaration never established lateral boundaries between any of the
three States parties; but on the other hand, Peru says it is in agreement with
Ecuador, while Ecuador takes a position which is concordant with Chile’s
position, namely that the geographic parallel under the Santiago Declaration does
constitute its maritime boundary with Peru. Furthermore, Peru’s position towards
Ecuador has changed over time according to Peru’s view of the evolving tactical
needs of this case. By contrast, both Chile and Ecuador have expressed, defended
and relied upon their consistent position over time: the maritime boundaries of
762 See Minutes of the First Session of Commission I of the 1954 Inter-State
Conference, 2 December 1954 at 10.00 a.m., Annex 38 to the Counter-Memorial,
p. 3; Minutes of the Second Session of Commission I of the 1954 Inter-State
Conference, 3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial,
p. 7, discussed at paras 2.91-2.98 above.
194the three States were settled by agreement in the Santiago Declaration, as
complemented by the Agreement Relating to a Special Maritime Frontier Zone.
4.3. The historical record between Peru and Ecuador is described in
Section 1. Section 2 describes the inconsistencies between Peru’s pleadings in
this case and its formal communications to Ecuador. As will be seen in Section 3,
in May 2011 Peru fully accepted in substance Ecuador’s position on the maritime
boundary, which is fully consistent with Chile’s position in respect of its own
boundary with Peru.
Section 1. The Historical Record between Ecuador and Peru
4.4. An incident recorded in a diplomatic note from Peru to Ecuador in
1969 is a pertinent example of the established historical position between Peru
763 764
and Ecuador . A specialized Swiss publisher, Foreign Scouting , had
published a chart showing the northern limit of a hydrocarbons concession area
granted by the Peruvian government as a line running in a north-westerly
direction from the seaward terminus of the Ecuador-Peru land boundary. This
chart is reproduced as Figure 81.
4.5. Ecuador had requested Peru to have the publication rectified in order
to respect the maritime boundary, which was the “parallel of the extreme point of
Peru’s northern territorial frontier” 76. Peru acknowledged Ecuador’s complaint
that transgression of that parallel would have the following consequences:
763
On which see Section 8 of Chapter III of Chile’s Counter-Memorial (paras 3.152-
3.159).
764 This was the precursor to the IHS Energy Group, a well-known producer of maps
and charts for oil and gas matters.
765
Note of 26 September 1969 from the Peruvian Embassy in Ecuador to the Ministry
of Foreign Affairs of Ecuador, Annex 79 to the Counter-Memorial, first page,
second paragraph.
195 “. . . a manifest violation would be committed against the
international instruments in force which establish the
international boundary of the jurisdictional waters, which,
according to the same instruments, is also [the
international boundary] of 766he soil and subsoil
corresponding to these waters.”
4.6. Peru duly requested Foreign Scouting to correct the chart, and reported
back to Ecuador that it had made the request and the publisher had made the
rectification. With its response to Ecuador, Peru included a copy of the corrected
chart in which, again to use Peru’s words, “it can be seen that the international
boundary is correctly indicated with the inclusion of the following legend:
‘Generally recognized offshore boundary between Peru and Ecuador
(0[3]° 23' 33.96" S) over the line of parallel from Boca de Capones (Northern
767
Territorial Boundary of Peru).’” The corrected chart is reproduced as
Figure 82.
4.7. The common understanding of Ecuador and Peru concerning their
maritime boundary is also reflected in Peru’s practice in issuing hydrocarbon
licences on its continental shelf. In 1986 Peru published a diagram showing
blocks declared under its 1952 Petroleum Law 768. The northernmost limit of the
northernmost block appears to be the parallel of the point where the Ecuador-
Peru land boundary reaches the sea, i.e., the maritime boundary. This is shown
on Figure 83.
766
Note of 26 September 1969 from the Peruvian Embassy in Ecuador to the Ministry
of Foreign Affairs of Ecuador, Annex 79 to the Counter-Memorial, first page,
second paragraph.
767 Ibid., second page, first paragraph. This legend is set out in the revised Foreign
Scouting chart of 1969 and, in that legend, the latitude of the maritime-boundary
parallel is stated to be 03° 23' 33.96" S, but the Peruvian note omitted 3 from the
notation 03°.
768
Supreme Decree No. 015-86-EM/VME of 21 August 1986 granting Block S-2 of the
Titicaca Basin to Petroperu S.A., Annex 89.
196 Figure 81
Figure 81
Foreign Scouting map dated 1968 showing oil concession areas granted by Peru, with the northern limit of the northernmost concession areas above the parallel of the Ecuador-Peru maritime boundary
N 59° W
Superimposed line:
Parallel of the international maritime boundary from Ecuador's nautical charts No. IOA 42
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancy Figure 82
Figure 82
Foreign Scouting map dated 1969, showing the oil concession areas granted by Peru to be exclusively to the south of the maritime boundary parallel between Ecuador and Peru
"Geenerallyrecoggnized ofshore bounndary between Peeu and Eccuador (03° 23' 33.96")"
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancy Figure 83
Figure 83
Peru's oil blocks as depicted in Supreme Decree No. 015-86-EM/VME
INDEX MAP OF BLOCKS
Source:EEllPerruunoo-NoormaassLeeglls,,10 September 19864.8. This practice contradicts Peru’s statement in its Reply that there “is no
dispute over the maritime boundary between Peru and Ecuador; but that is not
because the maritime boundary was established by the 1952 or 1954
instruments” 769. Ecuador has been explicit that its maritime boundary with Peru
is based upon “the international instruments in force” — the Santiago
Declaration and the Agreement Relating to a Special Maritime Frontier Zone.
For example, a Resolution of the Ecuadorian Congress in 2005 reiterates–
“the full force of the Santiago Declaration which
established the 200-mile maritime sovereignty on
18 August 1952, and the Agreement Relating to a Special
Maritime Frontier Zone of 4 December 1954, International
Treaties that established as maritime frontier boundaries
between Ecuador, Peru and Chile those which are
determined by the parallel at the point at which t770land
frontier of the signatory States reaches the sea.”
4.9. The following month, the Presidents of Chile and Ecuador jointly–
“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
delimitati771between the Parties through a geographic
parallel.”
769
Reply, p. 192, footnote 356.
770 Resolution of the National Congress of Ecuador of 15 November 2005, Annex 223
to the Counter-Memorial, first operative paragraph.
771 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 to
the Counter-Memorial, para. 6. Also see Minutes of the Second Meeting of the
Chile-Ecuador Bilateral Inter-Ministerial Council of 6-7 September 2009, Annex 32
to the Counter-Memorial, para. 3.
1974.10. When Peru objected to this joint statement on the basis that the
Santiago Declaration and the Agreement Relating to a Special Maritime Frontier
772
Zone “are not maritime delimitation treaties” , the Ecuadorean Ministry of
Foreign Affairs issued the following statement the next day:
“The maritime boundaries between Ecuador and Peru are
grounded on the Declaration of Santiago of 1952, the
Agreement Relating to a Special Maritime Frontier Zone
of 1954 and the Act of Brasilia of 1998 [773]in which it is
declared that the boundary disputes between the two
countries are definitely settled.
The statement that the Declaration on the Maritime Zone
of 1952 and the Agreement Relating to a Special Maritime
Frontier Zone of 1954, to which Chile, Ecuador and Peru
are Parties, ‘are not maritime delimitation treaties’, is a
unilateral interpretation that does not accord with a strict
application of the international law on boundary matters.
The maritime frontier between Ecuador and Peru is the
parallel line that is projected on to the sea alo774the
200 miles, whose latitude is 3° 23' 33" 96 S.”
4.11. Ecuador issued a similar statement in 2006, and again in 2008, when
Peru repeated the assertion that the Santiago Declaration does not constitute a
maritime delimitation agreement but rather establishes only “criteria” for
delimitation 775.
772
Official Communiqué RE 14-05 of 1 December 2005 issued by the Ministry of
Foreign Affairs of Peru, Annex 200 to the Counter-Memorial.
773 On which see para. 1.59 of Chile’s Counter-Memorial. The 1998 Presidential Act of
Brasilia was the result of the peace process which followed the 1995 Peru-Ecuador
conflict, to which process Chile contributed.
774 Press Release No. 660 of 2 December 2005 issued by the Ministry of Foreign Affairs
of Ecuador, Annex 224 to the Counter-Memorial, paras 3-5.
775
Note No. 7811 2006/GM of 17 February 2006 from the Ecuadorean Minister of
Foreign Affairs to the Peruvian Minister of Foreign Affairs, Annex 107; Press
1984.12. Demonstrating the regional significance of using lines of latitude and
longitude as maritime boundaries, correspondence between Argentina and
Ecuador in 1969 confirms Ecuador’s understanding of the maritime boundaries
established by the Santiago Declaration. On 10 January 1969, Argentina wrote to
Ecuador requesting to “be informed about the antecedents that served as the basis
for the countries of the South Pacific to adopt, in demarcating their respective
776
territorial seas, the geographic parallels as boundary lines” . (As noted at
paragraph 2.143 above, Argentina had proposed to Uruguay a latitudinal
boundary, and at the time it was also following the process of signalling the
Chile-Peru boundary.) Later the same month Ecuador responded, observing the
significance of Peru’s Supreme Decree of 1947 as an “antecedent” to the
Santiago Declaration 777. Ecuador explained that in its 1947 Supreme Decree Peru
had claimed a seaward projection of 200M “following the line of the
geographical parallels”, which, Ecuador explained,
“means that, for each point of the coast, starting at that at
which the northern frontier of Peru reaches the sea and
ending at that at which its southern frontier reaches the sea,
corresponds another one located on th778ame latitude at
two hundred miles from the coast.”
4.13. Ecuador added that “[t]his criterion was adopted in the conventions of
the South Pacific”, and went on to say this:
Release No. 073 of 7 February 2008 issued by the Ministry of Foreign Affairs of
Ecuador, Annex 108.
776
Memorandum 2/69 of 10 January 1969 from the Embassy of the Republic of
Argentina in Ecuador to the Ministry of Foreign Affairs of Ecuador, Annex 21.
777 See Memorandum No. 3-DST of 20 January 1969 from the Ministry of Foreign
Affairs of Ecuador to the Embassy of Argentina in Ecuador, Annex 22. This is
consistent with the Report of the Committee of Foreign Affairs of the Peruvian
Congress, dated 4 May 1955, concerning the Agreements and Conventions signed by
Peru, Chile and Ecuador at Santiago, on 18 August 1952; and at Lima, on
4 December 1954, Annex 78, p. 1, discussed at para. 2.11 above.
778 Memorandum of No. 3-DST of 20 January 1969 from the Ministry of Foreign
Affairs of Ecuador to the Embassy of Argentina in Ecuador, Annex 22.
199 “The norm adopted by the three countries of the South
Pacific allows for the external line of the maritime
boundary of the 200 miles to be practically an exact
reproduction, in dimension and form, of the coastal profile
of each one of them, even preserving, as far as latitude is
concerned, their astronomic positions, and thus converting
both the outer maritime limit and the international
maritime frontier into lines of easy and simple
779
recognition” .
4.14. This official correspondence with Argentina in 1969 demonstrates that
(a) Ecuador considered that at the time of the Santiago Declaration, Peru
measured its seaward projection following parallels of latitude 780and (b) this was
an antecedent to the adoption “by the three countries” of parallels of latitude as
an “international maritime frontier”.
4.15. Peru’s attempts to resile from the boundaries agreed in the Santiago
Declaration, and acknowledged and acted upon in the Agreement Relating to a
Special Maritime Frontier Zone, have been consistently and resolutely resisted
by both Chile and Ecuador, both of whom have relied on the stability of their
agreed maritime boundaries. A further example of Ecuador’s reliance is its 1971
baselines Decree which identifies Ecuador’s southernmost baseline as being 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
781
with Peru.” This baseline can be seen, for example, on Ecuador’s official chart
IOA 42, reproduced as Figure 84.
779
Memorandum of No. 3-DST of 20 January 1969 from the Ministry of Foreign
Affairs of Ecuador to the Embassy of Argentina in Ecuador, Annex 22.
780 This contradicts what Peru now says. For further discussion see paras 2.45-2.52
above.
781
Supreme Decree No. 959-A of 28 June 1971, Annex 212 to the Counter-Memorial,
Art. 1(d).
200 Figure 84
Ecuadorean Nautical Chart IOA 42 depicting the Ecuador-Peru maritime boundary, the special maritime frontier zone, the straight baselines of Ecuador and the outer limit of Ecuador’s maritime zone
Source: Oceanographic Institute of the Ecuadorean Navy, Chart IOA 42, 1:500,000, approved by the Ecuadorean Foreign Ministry on 12 July 2010 and Presidential Decree No. 450 of 2 August 2010 (English translation
added)Section 2. Diplomatic Events since Peru’s Initiation of these Proceedings
4.16. Peru argues in the present litigation that the Santiago Declaration was
never a treaty and never delimited a maritime boundary between Chile and Peru.
782
In a letter from its President in June 2010, Peru represented to Ecuador that on
the basis of the Santiago Declaration and the Agreement Relating to a Special
Maritime Frontier Zone, Ecuador and Peru have no “boundary problems”
between them. Subsequently, in its Reply of November 2010, Peru denied that
the Santiago Declaration or the Agreement Relating to a Special Maritime
Frontier Zone delimited the maritime boundary between Ecuador and Peru. This
inconsistency is for Peru, not Chile, to explain. However, any confusion created
by Peru’s manoeuvring was dispelled by Ecuador’s issuance, in August 2010, of
783
an official nautical chart depicting its maritime boundary with Peru . The chart
and the Presidential Decree accompanying it made clear that the Ecuador-Peru
boundary, which follows a parallel of latitude, is based on the Santiago
Declaration and the Agreement Relating to a Special Maritime Frontier Zone.
Ultimately, in May 2011 Peru accepted that this Ecuadorean chart accurately
depicted the Ecuador-Peru maritime boundary.
A. P ERU’S JUNE 2010L ETTER TO ECUADOR
4.17. On 9 June 2010, after Chile had submitted its Counter-Memorial of
9 March 2010, and after the Court’s Registrar had notified Ecuador of these
proceedings in accordance with Article 63 of the Court’s Statute, Peru’s
President wrote to Ecuador’s President on the subject of their maritime
boundary. Peru’s President was writing “to inform [Ecuador’s President] about
the position of the State of Peru about the effects of those instruments [the
Santiago Declaration and the Agreement Relating to a Special Maritime Frontier
782
Letter of 9 June 2010 from the President of Peru to the President of Ecuador,
Annex 81 to the Reply.
783 Ecuador chart IOA 42 reproduced as Figure 84.
201 784
Zone] in connection with our two countries.” Peru’s letter went on to say that
Article IV of the Santiago Declaration “addresses a situation only applicable to
the case of Peru and Ecuador” and that the “maritime projection” of islands “is
785
limited by the parallel of latitude” . Hence, “the parallel of latitude from the
point at which the land boundary reaches the sea, at Boca de Capones
(03° 23' 33.96" SL), is only applicable to Peru and Ecuador.” 786 Peru’s President
confirmed that his country’s “official position” was that “there are no boundary
787
problems with Ecuador.” Thus “the proceedings instituted by Peru before the
International Court of Justice solely refer to the maritime boundary between Peru
and Chile, where there are characteristics and circumstances different from those
existing between our two countries.” 788
4.18. Peru’s Reply of November 2010 is inconsistent with Peru’s “official
position” expressed in the presidential letter only five months earlier. Peru says
at paragraph 4.8 of its Reply that “there was no intention on the part of the
authors of the Declaration of Santiago to agree upon one or more international
789
maritime boundaries in 1952.” In footnote 356 one finds the following
statement: “There is no dispute over the maritime boundary between Peru and
Ecuador; but that is not because the maritime boundary was established by the
790
1952 or 1954 instruments.” In this statement Peru continues to refer to “the
maritime boundary between Peru and Ecuador” but makes the bare assertion that
it was not established by the Santiago Declaration or the Agreement Relating to a
Special Maritime Frontier Zone. In its letter to Ecuador just five months before
Peru filed its Reply, Peru had specifically referred to Article IV of the Santiago
784 Letter of 9 June 2010 from the President of Peru to the President of Ecuador,
Annex 81 to the Reply.
785
Ibid.
786 Ibid.
787
Ibid.
788 Ibid.
789
Reply, para. 4.8.
790 Ibid., p. 192, footnote 356.
202Declaration as the basis for its official position that “there are no boundary
791
problems with Ecuador” . Yet in its Reply, where Peru continues to
acknowledge the existence of a maritime boundary with Ecuador, it disclaims the
Santiago Declaration as the foundation of the boundary. Even more recently, in a
letter to the United Nations Secretary-General of 2 May 2011, discussed at
paragraph 4.26 below, Peru reverts to acknowledging the significance of
Article IV of the Santiago Declaration for the “maritime boundary between Peru
792
and Ecuador”, on the basis of “the presence of islands.
4.19. Whilst Peru oscillates as it tries to find escape routes from the
fundamental inconsistency between its positions vis-à-vis Ecuador and vis-à-vis
Chile and the Court, Ecuador’s position has been constant. It was reaffirmed the
month following Peru’s June 2010 letter to Ecuador, as will presently be seen.
B. E CUADOR S N AUTICAL C HART D EPICTING THE B OUNDARY PARALLEL WITH
PERU
4.20. On 12 July 2010 Ecuador published an official nautical chart (No.
IOA 42) depicting its maritime boundary with Peru. This was followed by a
Presidential Decree of 2 August 2010 (No. 450) conferring approval on that
chart, “which depicts the Ecuador-Peru maritime boundary [que grafica el límite
marítimo Ecuador-Perú]” 793. This recent Ecuadorean chart is reproduced as
Figure 84 in this Rejoinder. It cites the Santiago Declaration and the Agreement
Relating to a Special Maritime Frontier Zone, and it depicts the maritime
boundary between Peru and Ecuador established by those treaties as following
the parallel of latitude of Boca de Capones, the last demarcated point of the
791
Letter of 9 June 2010 from the President of Peru to the President of Ecuador,
Annex 81 to the Reply.
792 Note (GAB) No. 7-9-C-YY/01 of 2 May 2011 from the Minister of Foreign Affairs
of Peru to the Secretary-General of the United Nations, Annex 40.
793
Presidential Decree of Ecuador No. 450, 2 August 2010, Annex 109, Art. 1.
203Ecuador-Peru land boundary, until the outer limit of Ecuador’s 200M territorial
794
sea .
4.21. The maritime boundary shown on Ecuador’s chart is not simply a limit
on the maritime projection of Ecuadorean islands. It is a fully delimited maritime
boundary between Ecuador’s 200M territorial sea and Peru’s 200M “maritime
dominion”, which applies to both continental and insular maritime zones. This is
discussed further in paragraph 4.26 below and illustrated on Figure 86.
4.22. Ecuador’s nautical chart IOA 42 of July 2010 was followed in 2011 by
a map issued by Ecuador’s Military Geographic Institute showing Ecuador’s land
and maritime boundaries. This also showed a full delimitation between the
maritime zones of Ecuador and Peru, and included both the Santiago Declaration
and the Agreement Relating to a Special Maritime Frontier Zone in a list of
“boundary treaties concluded by Ecuador”. It is reproduced here as Figure 85.
4.23. On 10 March 2011, Ecuador submitted to the United Nations copies of
chart IOA 42 and the Presidential Decree approving it 79. The Ecuadorean
Foreign Minister explained, in the submittal letter addressed to the Secretary-
General of the United Nations, that the nautical chart had been–
“drawn in application of the geographic parallel of the
point at which the land frontier between Ecuador and Peru
reaches the sea, as the maritime boundary between the two
countries, according to the Declaration of Santiago of 18
August 1952 and the Agreement Relating to a Special
Maritime Frontier Zone of 4 December 1954.” 796
794
See para. 2.180 above.
795 See Note No. 4-2-45/2011 of 10 March 2011 from the Permanent Mission of
Ecuador to the United Nations to the Secretary-General of the United Nations,
Annex 37.
796
See Note No. 4998CGJ/GM/2011 of 9 March 2011 from the Minister of Foreign
Affairs of Ecuador to the Secretary-General of the United Nations, Annex 36.
204 Figure 85
Republic of Ecuador – Geographic Map (2011)
Source: Military Geographic Institute of Ecuador, Geographic Map of Ecuador, 1:500,000, 2011 (English translation added)4.24. In April 2010, Peru had written to the Secretary-General of the United
Nations expressing a “reservation with regard to any map which depicts alleged
797
maritime boundaries between Peru and the neighbouring States.” In October
2010, the Ministry of Foreign Affairs of Ecuador issued an official press release
stating that–
“if the boundaries are legally ratified in accordance with
the Ecuadorean Nautical Chart (Decree 450), there would
be no need to intervene in the proceedings [between Peru
and Chile], but if [the Nautical Chart] is challenged by
Peru, we should consider seriously the prospect of Ecuador
taking part in the proceedings at The Hague” 798.
4.25. When Ecuador deposited chart IOA 42 with the United Nations it
expressly objected to Peru’s “reservation with regard to any map which depicts
alleged maritime boundaries between Peru and the neighbouring States” 79. Peru
then modified this reservation by indicating that it did not apply with respect to
Ecuador, and at the same time accepted that chart IOA 42 accurately depicts their
maritime boundary 800.
4.26. On 2 May 2011, Peru and Ecuador concluded an exchange of notes in
which they confirmed, inter alia, that a sketch-map attached to the exchange of
notes formed “an integral part” of their “understanding” of their maritime
boundary. The agreed sketch-map showed the maritime boundary to be the same
parallel of latitude as depicted in Ecuador’s chart IOA 42, extending 200M
westwards from the point where Ecuador’s straight baseline meets the boundary
797 Letter No. 7-1-SG/26 of 12 April 2010 from the Permanent Mission of Peru to the
United Nations to the Secretariat of the United Nations, Annex 33.
798 Ministry of Foreign Affairs of Ecuador, Chile comprometido con la democracia y el
orden constitucional, Press Release No. 758 of 11 October 2010, Annex 144.
799 Note No. 4998CGJ/GM/2011 of 9 March 2011 from the Minister of Foreign Affairs
of Ecuador to the Secretary-General of the United Nations, Annex 36.
800
See Note (GAB) No. 7-9-C-YY/01 of 2 May 2011 from the Minister of Foreign
Affairs of Peru to the Secretary-General of the United Nations, Annex 40.
205parallel. The two States agreed that “this understanding and the graphic
representation annexed” would be jointly registered by the two States with the
United Nations 801 (see further paragraph 4.35, below). Figure 86 demonstrates
that the agreed understanding of the maritime boundary expressed by Ecuador
and Peru in May 2011 is inconsistent with the arguments made by Peru in these
proceedings. Figure 86 takes the Ecuadorean chart IOA 42, which Peru has
formally accepted as depicting the true position, and then superimposes the
different position that would obtain between Ecuador and Peru if Peru’s
argument were correct that the Santiago Declaration created a lateral limit only
for insular projections. This illustration demonstrates that Peru’s argument in
these proceedings cannot explain the full delimitation existing between Ecuador
and Peru, which was Ecuador’s consistent position and which Peru has now
come to accept. The true interpretation of Article IV of the Santiago Declaration
is that it delimited all maritime zones between all three States parties, not just
Ecuador’s insular zones as against Peru’s continental zones.
C. D ISCUSSION OF THE E CUADOR B OUNDARY IN PERU ’SP LEADINGS
4.27. In its Memorial, Peru stated that Article IV of the Santiago Declaration
“limited only the entitlements generated by certain islands, not the entitlements
802
generated by the continental coast.” Thus, Peru said, Article IV of the
Santiago Declaration was “a matter of concern only in the context of an Ecuador-
Peru border, there being no islands near the Peru-Chile land border which could
803
encroach upon the maritime rights of another State.”
4.28. Peru went on to make the following submission in its Memorial:
801
See Note (GAB) No. 6-12-YY/01 of 2 May 2011 from the Minister of Foreign
Affairs of Peru to the Minister of Foreign Affairs of Ecuador, Annex 39, para. 6; and
Note No. 9428 GMRECI/CGJ/2011 of 2 May 2011 from the Minister of Foreign
Affairs of Ecuador to the Minister of Foreign Affairs of Peru, Annex 41, para. 6.
802 Memorial, para. 4.77.
803
Ibid.
206 FigurFigure 86
Peru's interpretation of Article IV of the Santiago Declaration with respect to the Peru-Ecuador maritime boundary, shown on Ecuador's official nautical chart (No. IOA 42)
Ecuador's official nautical chart (No. IOA 42), agreed by Ecuador and Peru to depict their maritime boundary, with the following marks highlighted and superimposed:
(a) Highlighted marks:
Ecuador's 200M limit as depicted on its nautical chart (No. IOA 42)
(b) Superimposed marks:
Ecuador's 200M limit generated by insular territories alone
Part of Ecuador-Peru boundary not explained by Peru's interpretation of Article IV of the Santiago Declaration
Ecuador's mainland coastal islands
Datum: WGS84 Projection: Mercator
Isla de la Plata
Isla Salango
Isla Pelado
Isla Puna
Isla Santa Clara
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancy “Apart from the second part of Paragraph IV, which deals
with the limit of the maritime zones of certain islands and
groups of islands, nothing in the text of the 1952
Declaration of Santiago suggests that the Declaration was
intended to have any bearing upon the lateral boundaries
between the maritime zones of the three States measured
from their continental coasts.” 804
And later in the same paragraph: “aside from the second part of Paragraph IV —
[the Santiago Declaration was] not at all concerned with lateral boundaries or
geographical parallels.” 805
4.29. Thus Peru plainly said that Article IV of the Santiago Declaration
concerned the delimitation of certain Ecuadorean insular maritime zones as
against Peru’s continental maritime zone. This contradicted Peru’s assertion in
the Memorial that the Santiago Declaration “did not address lateral boundaries at
806
all” and that in the Santiago Declaration “there was no concern with the
807
question of lateral boundaries between the participating States.”
4.30. Similar difficulties appear in Peru’s position in the Memorial on the
1954 Agreement Relating to a Special Maritime Frontier Zone. Peru asserted that
the 1954 Agreement showed “no interest in or concern for the delimitation of
lateral maritime boundaries between the three States.” 808 As noted 80, this is
impossible to reconcile with the fact that the preamble to that Agreement referred
810
to “violations of the maritime frontier between adjacent States” as the reason
that had prompted the parties to create zones of tolerance on either side of their
804 Memorial, para. 4.80 (emphasis added).
805
Ibid., para. 4.80.
806 Ibid., para. 4.74.
807
Ibid., para. 4.71.
808 Ibid., para. 4.88.
809
See paras 2.101-2.102 above.
810 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, first recital (emphasis added).
207existing maritime boundaries. It is also impossible to reconcile with the reference
to “the parallel which constitutes a maritime boundary between the two
811
countries” in Article 1 of the agreement .
4.31. In its Memorial, Peru sought to explain the reference to a “maritime
boundary” in Article 1 of the Agreement Relating to a Special Maritime Frontier
Zone on the basis that it “referred only to one parallel between two countries
(despite the fact that the 1954 Agreement on a Special [Maritime Frontier] Zone
812
had three States Parties)” . Immediately after this, Peru says in its Memorial
that the supposed reference to one boundary only was “readily understandable in
the context of the 1952 Declaration of Santiago, which it complemented.” 813
Chile explained at paragraphs 2.202-2.205 of the Counter-Memorial, and at
paragraphs 2.103-2.112 above that the term “two countries” in Article 1 refers to
the two States on either side of the parallel of latitude constituting a maritime
boundary between those two States. Nevertheless, the point here is the
irreconcilable internal inconsistency in Peru’s position. From Peru’s Memorial,
Chile understood that Peru’s position was that there was a maritime boundary
between Ecuador and Peru, but not between Peru and Chile. This understanding
was confirmed by reference to an official communiqué issued by the Peruvian
Ministry of Foreign Affairs in November 2005 which denied that there was a
maritime boundary between Peru and Chile, and stated in connection with the
Santiago Declaration and the Agreement Relating to a Special Maritime Frontier
Zone that the “reference to the geographic parallel as a method of maritime
delimitation is only applicable to the Peru-Ecuador frontier due to the existence
814
of islands.”
811 Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 1 (emphasis added).
812
Memorial, para. 4.103 (emphasis in the original).
813 Ibid.
814
Official Communiqué RE/13-05 of 25 November 2005 by the Ministry of Foreign
Affairs of Peru, Annex 199 to the Counter-Memorial (emphasis added).
2084.32. On this basis, Chile’s Counter-Memorial pointed out that the
interpretation of Article IV of the Santiago Declaration advanced by Peru in its
Memorial could not account for a complete maritime delimitation between
815
Ecuador and Peru . If Article IV of the Santiago Declaration were to delimit
only Ecuador’s insular zones as against Peru’s continental zone, then the seaward
portion of the continental maritime zones of Ecuador and Peru would remain
816
undelimited. This was depicted on Figure 7 of Chile’s Counter-Memorial , and
it is also depicted on Figure 86, which is based on Ecuadorean chart IOA 42.
Yet both Ecuador and Peru have previously confirmed that they have a fully
817
delimited maritime boundary .
4.33. The maritime boundary between Ecuador and Peru is fully delimited
because the Santiago Declaration, as complemented by and authentically
interpreted in the Agreement Relating to a Special Maritime Frontier Zone,
delimits the continental maritime zones of Ecuador and Peru, as well as
Ecuador’s insular zones as against Peru’s continental zone. If the Santiago
Declaration has that effect as between Ecuador and Peru, it follows inexorably
that it has the same effect as between Chile and Peru. When Chile highlighted
this point in the Counter-Memorial of March 2010, the sequence of events
described above at paragraphs 4.17-4.19 ensued, whereby Peru sought to appease
Ecuador with a presidential letter, while at the same time, before the Court,
disclaiming the Santiago Declaration as the foundation of the two States’
undisputed maritime boundary.
4.34. An exchange of notes between Ecuador and Peru of 2 May 2011 now
confirms that the joint understanding of Ecuador and Peru is that their maritime
boundary extends to the full seaward extent of their respective 200M maritime
815 See Counter-Memorial, paras 2.88-2.91.
816 Counter-Memorial, Vol. I, after p. 88.
817
For Ecuador, see footnote 770 above. For Peru, see, e.g., Note of 26 September 1969
from the Peruvian Embassy in Ecuador to the Ministry of Foreign Affairs of
Ecuador, Annex 79 to the Counter-Memorial.
209zones 818. As a matter of incontrovertible geographical fact, the boundary line
therefore cannot be dependent on the existence of islands, for the reasons
explained above and depicted on Figure 86. Doubtless for that reason there is
not a single reference to “islands” anywhere in the exchange of notes between
Ecuador and Peru of May 2011. The bilateral “understanding” expressed by
Ecuador and Peru about their complete maritime boundary is therefore not
dependent on the existence or role of islands.
4.35. The exchange of notes includes an agreement that the notes would be
registered with the United Nations jointly by the two countries. On the same day
as the exchange of notes, 2 May 2011, ahead of the joint registration, Peru wrote
unilaterally to the Secretary-General of the United Nations in connection with
Ecuador’s Nautical Chart IOA 42. Peru wrote ostensibly in response to
819
Ecuador’s note of 9 March 2011 , under cover of which Ecuador had first
deposited chart IOA 42 with the United Nations. Peru stated–
“that it agrees that, due to the presence of islands, the
geographic parallel passing through Boca de Capones —
as depicted in the Nautical Chart of Ecuador IOA42 — is
the maritime boundary between Peru and Ecuador,
pursuant to point IV of the Declaration on the Maritime
Zone, adopted in Santiago on 18 August 1952, and the
other aspects agreed by Peru and Ecuador which are
recorded in Notes of identical content exchanged today.” 820
(Emphasis added.)
818
See Note (GAB) No. 6-12-YY/01 of 2 May 2011 from the Minister of Foreign
Affairs of Peru to the Minister of Foreign Affairs of Ecuador, Annex 39, para. 6; and
Note No. 9428 GMRECI/CGJ/2011 of 2 May 2011 from the Minister of Foreign
Affairs of Ecuador to the Minister of Foreign Affairs of Peru, Annex 41, para. 6.
819 See Letter No. 4998CGJ/GM/2011 of 9 March 2011 from the Minister of Foreign
Affairs of Ecuador to the Secretary-General of the United Nations, Annex 36.
820
Note (GAB) No. 7-9-C-YY/01 of 2 May 2011 from the Minister of Foreign Affairs
of Peru to the Secretary-General of the United Nations, Annex 40 (emphasis added).
2104.36. This gloss, referring to islands, is contained in a unilateral
communication from Peru written on the same day as Peru reached a bilateral
“understanding” with Ecuador that contained no reference to islands. Manifestly,
Peru’s unilateral assertion that the Santiago Declaration delimits the Ecuador-
Peru maritime boundary “due to the presence of islands” does not represent
Ecuador’s position; and this is also clear from the historical record 821. Peru’s
unilateral account is not a joint interpretative statement and is entitled to no
weight. Peru felt compelled to issue such an account in an attempt to protect its
position in these proceedings.
4.37. To summarize, by accepting Ecuador’s depiction of the Ecuador-Peru
maritime boundary in Ecuador’s 2010 nautical chart, Peru has accepted the
complete all-purpose maritime boundary consistently held by Ecuador to have
been created by the Santiago Declaration, as stated on the face of the chart.
Peru’s recent posturing to try to present to the Court a different interpretation of
its maritime boundary with Chile simply demonstrates Peru’s awareness of the
fundamental defects in its case. Peru’s efforts to try to address those defects
postdate Peru’s Application to the Court — indeed they postdate Chile’s
Counter-Memorial — and it is obvious that the Court must have regard to the
historical record, not to Peru’s recent attempts to alter it.
821 On which see paras 4.4 et seq. above.
211 CHAPTER V
WIDESPREAD INTERNATIONAL ACKNOWLEDGEMENT OF THE
PARTIES’ AGREED BOUNDARY
5.1. Not only have Chile and Peru confirmed and enforced their agreed
maritime boundary over several decades; there is also long-standing
acknowledgment by the international community that the Chile-Peru maritime
boundary has been delimited by agreement.
5.2. In the Counter-Memorial, Chile demonstrated the extensive
acknowledgment of the settled maritime boundary between Chile and Peru by
822
third States, the Secretariat of the United Nations, and numerous publicists .
This widespread acknowledgment has spanned a period of almost half a century.
In its Reply, Peru purports curtly to dismiss all of this evidence as
“unconvincing”, on the ground that it “can have no effect on either the nature or
the content of an instrument” 82.
5.3. Peru’s argument misses the point. The widespread understanding in
the international community about the existence and source of the Chile-Peru
maritime boundary was not formed ex nihilo. It is grounded on the 1952 and
1954 agreements and the practice of the States parties in implementing and
observing these agreements. Both Chile and Peru have consistently treated the
parallel of latitude passing though the point at which their land boundary reaches
the sea as their maritime boundary, and that understanding was consistently
recorded as a juridical fact by the international community. Of course, Peru is
correct that international acknowledgement could not create a boundary if the
Parties had not agreed one. The significance of the widespread and uniform view
of third States, international organizations and publicists is that it constitutes
“important evidence of general opinion or repute” 82. This evidence confirms
822 See Counter-Memorial, paras 2.223 et seq.
823
Reply, para. 3.173.
824 Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), Award,
9 October 1998, RIAA, Vol. XXII, p. 295, para. 381.
212that the settled understanding of the Santiago Declaration and the Agreement
Relating to a Special Maritime Frontier Zone is that Chile and Peru have
delimited their maritime boundary by agreement and that it is constituted by the
parallel of latitude of the point where their land boundary reaches the sea.
5.4. As will be seen below, a survey of the literature on maritime
delimitation by publicists, geographers and lawyers from various State agencies
and international organizations shows a consensus that there is a maritime
boundary in place between Chile and Peru. In retort, Peru calls in aid “Peruvian
experts”, who it says “have consistently sustained the absence of a maritime
825
boundary treaty between Peru and Chile” . These Peruvian experts do not assist
Peru. Their writings are all recent and constitute a body of nationalist advocacy
for the result that Peru now asks the Court to accept — although as will be seen
Peru’s present arguments are an eclectic mix of the various arguments that were
mooted in Peru in recent years to argue against the existing boundary. As
explained at paragraphs 5.24-5.33 below these recent writings represent a
departure from prior Peruvian writings, notably in the 1950s and 1960s, which
were indeed consistent with the acknowledgement of the boundary by Chile,
Peru and the international community.
Section 1. Third States
5.5. Several third States have acknowledged the settled maritime boundary
between Chile and Peru. Some of these States have a special interest in the
matter, notably because of their nationals’ operations in the waters off Chile and
Peru (and Ecuador) or because of the regional context of maritime delimitations.
In its Counter-Memorial, Chile gave the examples of Colombia, the United
States of America and the People’s Republic of China 826.
825
Reply, para. 3.179.
826 Counter-Memorial, paras 2.225-2.229.
2135.6. In pleadings submitted to the Court, other third States have also relied
on the maritime boundary between Chile and Peru, as evidence that latitudinal
(non-equidistant) boundary lines can be appropriate for the continental shelf, the
EEZ, or both. These States are Germany, Denmark, the Netherlands, the United
States of America, Canada, Libya and Malta 827.
5.7. There are two further examples of such reliance by third States in
inter-State litigation. In Guyana v. Suriname, as part of its case that the
equidistance methodology had no status as an obligatory rule in customary
international law, Suriname referred to the Santiago Declaration as an example
of an agreed delimitation that did not follow an equidistance line:
“The Santiago Declaration of August 18, 1952, confirmed
and coordinated the claims of Chile, Peru, and Ecuador to
a maritime zone, in Spanish, zona marítima, of at least 200
miles embracing the waters and seabed and subsoil. . . .
The declaration specifies that the maritime zone. . .of
another party may not extend beyond the parallel of
latitude of the point when the land boundary between the
respective parties reaches the sea. A supplemental fisheries
agreement of December 4, 1954, between Chile, Peru, and
Ecuador refers to the parallel of latitude extending from
the terminus of the land frontier as the maritime boundary
. . . It is, therefore, of particular interest that equidistance
lines remain the exception, not the rule, with respect to
lateral maritime boundaries of South American states that
claimed 200-mile zones p828r to the Third U.N. Conference
on the Law of the Sea” .
827
Counter-Memorial, paras 2.224 et seq.
828 Guyana v. Suriname, Verbatim Record of the Hearing, 14 December 2006, pp. 872
and 874.
2145.8. In Nicaragua v. Honduras, Honduras referred to the “widespread use
829
of lines of latitude or longitude” in the maritime delimitations of the world .
One of the examples it cited was the boundary delimitation between Chile, Peru
and Ecuador effected by the Santiago Declaration, which it described as
830
following “lines of latitude” .
Section 2. International Organizations
831 832
5.9. In widely available publications of 1991 and 2000 , the United
Nations Secretariat cited the Santiago Declaration as an example of a maritime
delimitation agreement, which used parallels of latitude as delimitation lines
between the three States parties. These publications were discussed in the
833
Counter-Memorial . An earlier similar United Nations publication in 1987 had
also listed the delimitation between Chile and Peru as an agreed delimitation
effected by the Santiago Declaration 834. One would have expected Peru, a
member State of the United Nations, to have objected to this continued
characterization if it disagreed with it. No objection is recorded.
5.10. In September 2000, when Chile deposited with the United Nations
charts showing its maritime boundaries, in accordance with the relevant
829 Case Concerning Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), I.C.J. Verbatim Record of
the public sitting held on 16 March 2007, CR 2007/10, p. 31, para. 150.
830 Ibid., p. 32, para. 154.
831
See 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 to the
Counter-Memorial, pp. 87-88.
832 See 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
to the Counter-Memorial, p. 57, para. 223.
833 See Counter-Memorial, paras 2.235-2.236.
834
See United Nations Office for Ocean Affairs and the Law of the Sea, The Law of the
Sea — Maritime Boundary Agreements (1970-1984), 1987, Annex 130, p. 297.
These publications contain legal, technical and practical information to help Member
States negotiate maritime-boundary delimitation agreements.
215provisions of UNCLOS, Peru did protest Chile’s depiction of its maritime
boundary with Peru. Peru’s understanding was that the Santiago Declaration did
effect a maritime delimitation between Chile and Peru, but that this delimitation
835
was not “specific” to maritime zones under UNCLOS . At no time, however,
has Peru suggested, let alone formally protested, that the United Nations was
wrong to describe the Santiago Declaration as a delimitation agreement between
Chile and Peru. Having submitted its 1955 Supreme Resolution for inclusion in
836
the United Nations Legislative Series and then jointly registered the Santiago
837
Declaration as a treaty under Article 102 of the United Nations Charter , it
obviously could not credibly do so. To recall, Peru’s 1955 Supreme Resolution
provided that: “In accordance with Clause IV of the Declaration of Santiago” the
outer limit of Peru’s maritime zone “may not extend beyond [the line] of the
838
corresponding parallel at the point where the frontier of Peru reaches the sea.”
5.11. The CPPS, a regional international organization which was established
“to achieve the goals set forth” in the Santiago Declaration, and of which Peru
and Chile are founding members, has also acknowledged the agreed maritime
boundary between Chile and Peru. In 1969, the CPPS published a Collection of
agreements and resolutions of the system of the South Pacific (1952-1969). One
of the instruments contained in this Collection is Resolution VII adopted by the
839
CPPS at the 1954 CPPS Meeting in Santiago . This Resolution provided for the
835 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.
836 See United Nations Legislative Series, National Legislation and Treaties Relating to
the Law of the Sea, 1974, Annex 164 to the Counter-Memorial, pp. 27-28.
837
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 to the Counter-Memorial.
838 1955 Supreme Resolution, Annex 9 to the Memorial, Art. 2. See also paras 3.3-3.10
above.
839 Shortly after it was concluded, the Santiago Declaration was criticized by some
States as being contrary to general international law. The 1954 CPPS Meeting was
convened in response to this mounting opposition to further develop the agreements
216 840
establishment of zones of tolerance on either side of the maritime boundary .
These were to be–
“at twelve 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.” 841
5.12. The preambular recitals in this Resolution indicate that the three
member States considered it desirable to establish a zone of tolerance on either
side of each maritime boundary between the “neighbouring states”. There was no
indication that this arrangement was somehow dependent on the presence of
islands, or that it applied only between Ecuador and Peru. All three member
842
States approved the Resolution .
5.13. This Resolution, which was recognized as being of a “permanent”
character 843, was subsequently implemented, in almost identical terms, in the
reached at the 1952 Conference and prepare recommendations (many of which were
in the form of draft agreements) which would then be submitted to the 1954 Inter-
State Conference to be held two months later in Lima. The 1954 Inter-State
Conference would be attended by representatives of Chile, Peru and Ecuador. See
Counter-Memorial, para. 2.186.
The index of this CPPS publication lists Resolution VII under the heading “Límite
Internacional Marítimo” and provides that this Resolution recognized the parallel as
the “Límite Internacional Marítimo”. CPPS, Compilación de Acuerdos y
Resoluciones del Sistema Marítimo del Pacífico Sur (1952-1969), 1969, Annex 120,
p. XVI.
840
See Counter-Memorial, paras 2.184-2.185.
841 Resolution VII, in CPPS, Compilación de Acuerdos y Resoluciones del Sistema
Marítimo del Pacífico Sur (1952-1969), 1969, Annex 120.
842 Ibid.
843
In the foreword to thisCompilación , Dr. García Sayán of Peru, in his capacity as
Secretary-General of the CPPS, wrote that this Collection included instruments
which are “of a permanent nature or remain in force”, Annex 122.
217Agreement Relating to a Special Maritime Frontier Zone concluded in December
844
1954 by Chile, Ecuador and Peru . Article 1 of that agreement 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
nautical miles on either side of the parallel which
constitutes a maritime boundary between the two
countries.” 845(Emphasis added.)
A full account of the terms and effect of this agreement is set out at paragraphs
2.197-2.209 of the Counter-Memorial, and in summary form above, at
paragraphs 2.99-2.122.
5.14. In his annual report for 1999, the Secretary-General of the CPPS, then
an Ecuadorean diplomat, stated that Chile, Ecuador and Peru had agreed upon
846
their maritime boundaries . Peru responded that this statement “constitutes an
interpretation of the scope of the [Agreement Relating to a Special Maritime
847
Frontier Zone] that is not consistent with the juridical reality” , and asked for
the Secretary-General’s report to be withdrawn from circulation. Peru did not
explain in its letter what the “juridical reality” was. Although Peru did provide
this letter with its Reply, it omitted to refer to the response of the Secretary-
General of the CPPS, which was immediate and unambiguous. It states that
“[t]his General Secretariat has not formulated ‘subjective appreciations on the
content and scope’ of the abovementioned legal instrument, nor has it made any
‘interpretation of the scope of the Agreement that is not consistent with the
juridical reality’, which is why the withdrawal of the publication does not seem
844 Resolution VII, in CPPS, Compilación de Acuerdos y Resoluciones del Sistema
Marítimo del Pacífico Sur (1952-1969), 1969, Annex 120.
845
Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 1.
846 See CPPS, Publicación de la Secretaría General 1999, 1999, Annex 131, p. 42.
847
Fax F-330 of 27 January 2000 from the President of the Peruvian Section of the
CPPS to the Secretary-General of the CPPS, Annex 74 to the Reply.
218 848
appropriate to me” . The Secretary-General reiterated the treaty basis for the
statement to which Peru had objected:
“The book entitled ‘Agreements and other documents
1952-1968’, published by the General Secretariat of the
CPPS, ‘Lima, November 1968’, [which] at pages 57 and
58, quotes the text of the Agreement Relating to a Special
Maritime Frontier Zone, signed at Lima on 4 December
1954, the first article of which literally 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 nautical miles on either side of the
parallel which constitutes the849ritime boundary
between the two countries’.”
5.15. The CPPS’s understanding of the natural meaning of the Agreement
Relating to a Special Maritime Frontier Zone was, therefore, that a maritime
delimitation had been effected between the States parties. That understanding,
which was conveyed to Peru on 28 January 2000 by the CPPS, has not, as far as
Chile is aware, elicited a response from Peru.
Section 3. Publicists
5.16. A plethora of publicists from various legal traditions of the world have
acknowledged that there is a settled maritime boundary between Chile and Peru.
In the Counter-Memorial, Chile cited works by the following 34 publicists on
maritime-boundary issues: Salvador Lara, Valencia Rodríguez, Jiménez de
Aréchaga, Reuter, Hodgson, Johnston, Valencia, Lucchini, V▯lckel, Ahnish,
Jagota, Conforti, Prescott, Tanja, Labrecque, Bundy, Altuve – Febres Lores,
Brown, Evans, Francalanci, Scovazzi, Kuen-Chen Fu, Yuan Gujie, Jayewardene,
848
Note CPPS/SG/CG/2-081/2000 of 28 January 2000 from the Secretary-General of
the CPPS to the President of the Peruvian Section of the CPPS, Annex 30.
849 Ibid.
219Zhou Jian, Gao Jianjun, Marques Antunes, McDorman, Beauchamp, Nweihed,
850
Orrego Vicuña, Pfirter de Armas, Rhee, and Zavala . All these authors refer to
the Santiago Declaration or the Agreement Relating to a Special Maritime
Frontier Zone, or both, as the source of the maritime boundary between Chile
and Peru, constituted by a parallel of latitude. This acknowledgment was made as
recently as 2007 by Dr. Salvador Lara, the Ecuadorean plenipotentiary who
851
signed the Agreement Relating to a Special Maritime Frontier Zone in 1954 .
5.17. There are many additional examples — no less than 16 — of publicists
from various legal traditions whose writings cite the Santiago Declaration or the
Agreement Relating to a Special Maritime Frontier Zone, or both, as having
established the maritime boundary between Chile and Peru 852. The few dissents
850 See Counter-Memorial, paras 2.237 et seq.
851
See Foreword by J. Salvador Lara in P. Goyes Arroyo, Límite Marítimo: Ecuador-
Perú, 2007, Annex 269 to the Counter-Memorial, p. xiii.
852
See L. M. Alexander, “Baseline Delimitations and Maritime Boundaries”, Virginia
Journal of International Law, Vol. 23, 1983, Annex 158, p. 532; J. Attard, The
Exclusive Economic Zone in International Law, 1987, Annex 162, p. xxxvi; J. Beer-
Gabel, “Accords de délimitation” in Indemer (ed.), Le processus de délimitation
maritime étude d’un cas fictif, Colloque International, 2004, Annex 167, p. 331;
J. Beer-Gabel, “Variations sur la notion de frontière maritime”, in Indemer (ed.),
Droit de la mer — Etudes dédiées au Doyen Claude-Albert Colliard, 1992,
Annex 166, p. 17; G. Blake, “World maritime boundary delimitation: the state of
play” in G. Blake (ed.), Maritime Boundaries and Ocean Resources, 1987,
Annex 168, pp. 3-4 (figure 1.1); M. Pratt (ed.), Jane’s Exclusive Economic Zones
2002-2003, 2002, Annex 182, pp. 41, 91-92; G. Blake and R. Swarbrick,
“Hydrocarbons and International Boundaries: A Global Overview”, in G. Blake, M.
Pratt, C. Schofield and J. A. Brown (eds), Boundaries and Energy: Problems and
Prospects, 1998, Annex 169, p. 9 (map No. 2); P. J. Cook and C. M. Carleton,
“Introduction”, in P. J. Cook and C. M. Carleton (eds), Continental Shelf Limits, The
Scientific and Legal Interface, 2000, Annex 171, p. 4 (figure 1.1); G. Despeux, Droit
de la délimitation maritime — Commentaire de quelques décisions plutoniennes,
2000, Annex 172, p. 16; E. Gounaris, “The Delimitation of the Continental Shelf of
Islands: Some Observations”, Revue Hellénique de droit international, Vol. 33,
1980, Annex 176, p. 115; A. G. Oude Elferink, “Does Undisputed Title to a
Maritime Zone Always Exclude its Delimitation: The Grey Area Issue”,
International Journal of Marine and Coastal Law, Vol. 13(2), 1998, Annex 181, p.
187; C. Lathrop, “The technical aspects of international maritime boundary,
depiction and recovery”, in Ocean Development and International Law, Vol. 28,
1997, Annex 179, p. 185; E. Collins Jr. and M. A. Rogoff, “The International Law of
Maritime Boundary Delimitation”, Maine Law Review, Vol. 34, 1982, Annex 170, p.
220from this position are all from certain Peruvian authors, and all in recent years, as
will be seen in the next Section.
Section 4. Orthodox and Revisionist Peruvian Authors
5.18. In the Counter-Memorial, Chile gave the example of Professor
Martínez de Pinillos, an eminent Peruvian geographer, who in 1956 expressly
acknowledged that Peru’s maritime boundary with Chile had been confirmed in
the Agreement Relating to a Special Maritime Frontier Zone as being the parallel
of latitude passing through the point where the Chile-Peru boundary reaches the
853
sea .
5.19. In the Reply, Peru argues that Professor Martínez de Pinillos “did not
represent the Government” and “did not give an accurate statement of the
Government position” 854. Yet in 1951 Professor Martínez de Pinillos had been
charged by the Government with the preparation of the Official Text of
855
Geography of Peru . The Government of Peru must have considered that
Professor Martínez de Pinillos had a proper understanding of Peru’s existing
boundaries. In 1952 Professor Martínez de Pinillos published a book entitled
Human Geography of Peru and the World, which was an official text issued by
Peru’s Ministry of Education and which described Peru’s maritime zone as
covering 626,240 km “from the parallels which limit our Coast to the north and
18; E. W. Anderson, International Boundaries — a Geopolitical Atlas, 2003,
Annex 159, p. 170; and M. Zahraa, “Prospective Anglo-Scottish Maritime Boundary
Revisited”, European Journal of International Law, Vol. 12(1), 2001, Annex 189, p.
82.
853
See Counter-Memorial, paras 2.213-2.214.
854 Reply, para. 4.12.
855
See Supreme Resolution No. 923 of 3 August 1951, Annex 76.
221to the south, up to an imaginary line of 200 nautical miles to the West of the
coast and which preserves its sinuosities.” 856
5.20. In its Reply, Peru also states that Chile failed to mention that two
distinguished Peruvian diplomats and international lawyers, Dr. Ulloa and
Dr. García Sayán, “never referred to the existence of maritime boundaries with
857
Chile.” Peru stresses that Messrs Ulloa and García Sayán were the “most
representative Peruvian figures” in the period when the Santiago Declaration was
concluded 858. Dr. Ulloa was the Peruvian delegate at the 1952 Santiago
Conference, while Dr. García Sayán co-signed Decree No. 781 of 1947 and
represented Peru at the First United Nations Conference on the Law of the Sea.
Both of these gentlemen were delegates for Peru in the Second United Nations
Conference on the Law of the Sea in 1960.
5.21. Peru is correct that Dr. Ulloa is not recorded as having discussed the
issue of maritime boundaries outside his official role at the 1952 Santiago
Conference. The 1956 speech and the 1959 article by Dr. Ulloa that are cited by
Peru 859 simply do not address the subject of lateral delimitation at all. They do
not include any reference to the maritime boundary between Peru and Ecuador,
or to the limitation of the maritime zones generated by islands within 200M of
the adjacent State’s continental zone, which even on Peru’s account was effected
by the Santiago Declaration. Dr. Ulloa’s writings and diplomatic efforts focused
on defending the seaward extent of the maritime zone and the nature of Peru’s
856 P. Martínez de Pinillos, Geografía Humana del Perú y del Mundo, 1952, Annex 180,
p. 196. The surface covered by Peru’s maritime zone as calculated by Professor
Martínez de Pinillos is identical to the surface calculated by Dr. García Sayán in
1955 (see Figure 4 to the Counter-Memorial, Vol. I, after p. 60) and by Dr.
Vergaray Lara in 1962 (Figure 5 to the Counter-Memorial, Vol. I, after p. 60),
both of whom understood Peru’s maritime zone to be bounded by the parallels of
latitude passing through the seaward termini of Peru’s land boundaries with Ecuador
and Chile.
857
Reply, para. 3.178.
858 Ibid.
859 Ibid.
222rights therein. The lateral delimitation of the three States’ maritime zones was
not subject to challenges by third States, and thus did not feature in Dr. Ulloa’s
defence of the claim to zones of 200M or more. The two papers cited in the
Reply cannot advance Peru’s case.
5.22. As for Dr. García Sayán, he, too, concentrated on the seaward extent
of Peru’s zone, rather than lateral boundaries. In fact, this is a feature common to
most analyses and writings in the 1950s, for the obvious reason that seaward
projection was the controversial issue at the time. Nevertheless, so far as
Dr. García Sayán’s writings do deal with the lateral boundaries of Peru’s
maritime zone, they are entirely consistent with Chile’s position and utterly
inconsistent with Peru’s. As noted at paragraph 1.30 above, in a book first
published in 1955 (and again in 1966), Dr. García Sayán wrote that, pursuant to
Peru’s 1947 Supreme Decree, the 1952 Santiago Declaration and Peru’s 1955
Supreme Resolution, Peru’s maritime zone was limited by the geographic
parallels of the point at which the land boundary reaches the sea:
“It is appropriate to mention, among the acts confirming
the rights declared in 1947, a recent Supreme Resolution
issued by the Ministry of Foreign Affairs on 12 January
1955, in which it is specified that, in order to depict the
200-mile maritime zone referred to in the 1947 Supreme
Decree and the 1952 Santiago Declaration in cartographic
and geodesic works, the indicated zone ‘is limited at sea by
a line parallel to the Peruvian coast at a constant distance
of 200 nautical miles from it’, which will not go beyond
the corresponding parallels860t the point where the frontier
of Peru reaches the sea’.”
5.23. Dr. García Sayán said in 1955 what Chile believed then and continues
to believe today: the Santiago Declaration “confirm[ed]” the position prevailing
860 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 to
the Counter-Memorial, p. 28.
223since Peru’s 1947 Supreme Resolution 86. Peru’s maritime zone, as then
proclaimed, was bounded by parallels of latitude. Neither Chile nor Ecuador
objected to this claim. In the Santiago Declaration five years later, the three
States parties addressed their continental maritime zones as abutting but not
overlapping. Only islands had the potential to create zones overlapping with
continental maritime zones, hence the need to address this matter in more
specific terms in Article IV of the Santiago Declaration. This obviously
contradicts Peru’s present assertion that the use of the geographic parallels in the
1947 Supreme Decree has no relevance to the agreed maritime delimitation 862.
5.24. Dr. García Sayán’s understanding that Peru’s “maritime dominion”
was bounded by two parallels was shared by many of the authors cited by Peru
as the most distinguished Peruvian specialists on this matter, including Admiral
Guillermo Faura, Professor Eduardo Ferrero Costa, Ambassador Juan Miguel
Bákula, Ambassador Alfonso Arias-Schreiber and Dr. Marisol Agüero
Colunga 863. Peru now contends that these Peruvian authors “highlighted the
864
absence of a maritime boundary treaty between Peru and Chile” . In fact these
authors do not state that there is no agreed maritime boundary between Chile and
Peru. Rather, they put forth a view that the Chile-Peru maritime boundary should
not be a parallel of latitude. They were pressing Peru’s Government to advance a
new interpretation of the 1952 and 1954 Agreements, against the boundary
parallel. In doing so, they acknowledge, as they must, that in the practice of both
Parties the 1952 and 1954 Agreements have been consistently understood as
establishing a maritime boundary between Peru and Chile, which runs through
the geographic parallel of the point at which the land boundary reaches the sea.
861 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 to the
Counter-Memorial, p. 28.
862
See Reply, paras 3.40 et seq.
863 Ibid., paras 3.177 and 3.180.
864
Ibid., para. 3.180.
2245.25. Historically, the first of the Peruvian authors cited in the Reply to have
questioned the 1952 and 1954 Agreements was Admiral Guillermo Faura. He did
so in 1977 — 22 years after the Santiago Declaration and the Agreement
Relating to a Special Maritime Frontier Zone were ratified by Peru, and nine
years after Peru and Chile agreed to signal their boundary by alignment
865
lighthouses .
5.26. Admiral Faura stated that “[t]he interest of the Nation above any other
866
consideration, calls for the correction of our maritime delimitation.” This is a
revealing sentence: one cannot correct what does not exist. Rather than
supporting Peru’s present position that there is no maritime boundary
delimitation between Chile and Peru, Admiral Faura’s text suggests that there
was in fact such a delimitation and that the boundary should be changed 867.
President Jiménez de Aréchaga appears to have formed the same understanding
868
of Admiral Faura’s thesis .
5.27. Admiral Faura led other Peruvian authors to suggest that the maritime
boundary with Chile should be revised. These authors have used a variety of
arguments, at times inconsistent with each other, to seek to change the settled
boundary in Peru’s favour. Almost all of the authors who contributed to the
revisionist literature start from the vague, and in any event legally wrong,
premise that an agreement fixing a maritime boundary has to be somehow
“specific”, and assert that the Santiago Declaration and the Agreement Relating
to a Special Maritime Frontier Zone did not meet the unarticulated standard of
specificity. All these authors acknowledge, however, that in the practice of Chile
865 See Chapter II, Section 4 above.
866 G. Faura Gaig, El Mar Peruano y sus Límites, 1977, Annex 173, p. 198 (emphasis
added).
867 Ibid., pp. 187 and 193-194.
868 See E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and L. M. Alexander
(eds), International Maritime Boundaries, Vol. I, 1993, Annex 280 to the Counter-
Memorial, p. 795.
225and Peru, the maritime frontier was established. Professor Ferrero Costa’s
writings are a good illustration in that respect, and the term “established” is from
869
his work .
5.28. Similarly, Dr. Marisol Agüero Colunga, before she assumed her
official position in Peru’s litigation team, was also among the Peruvian authors
who advocated for a revised interpretation of the 1952 and 1954 agreements. In
1990, Dr. Agüero Colunga submitted a thesis to Peru’s Diplomatic Academy
entitled Peru’s Maritime Delimitation with Ecuador and with Chile. There, while
she candidly states that the purpose of her work was to re-interpret the 1952 and
870
1954 agreements , she acknowledges that “in practice the separation of the
Peruvian maritime dominion and that of the northern and southern neighbouring
countries is effected by applying the method of the geographic parallel” 871. Dr.
Agüero Colunga nonetheless acknowledged that logic suggests that Article IV of
the Santiago Declaration establishes a maritime boundary between the 200M
maritime zones of the three States parties — not just between Peru and Ecuador,
and not just in respect of insular zones 872. She wrote:
“[T]here is no indication as to whether the parallel had to
be considered as the dividing line between the two
hundred-mile maritime zones drawn from the continental
territory of each one of the declaring States.
869
See, e.g., E. Ferrero Costa, El Nuevo Derecho del Mar – El Perú y las 200 Millas,
1979, Annex 174, pp. 379-380.
870 See M. F. Agüero Colunga, Delimitación Marítima del Perú con Ecuador y con
Chile, 1990, Annex 156, p. XV: The work “seeks to demonstrate that none of the
instruments interpreted as maritime delimitation treaties is such”.
871 M. F. Agüero Colunga, Delimitación Marítima del Perú con Ecuador y con Chile,
1990, Annex 156, p. XIII.
872
In 1990, Dr. Agüero Colunga concluded that: (a) the Santiago Declaration does not
constitute an international treaty; (b) the Santiago Declaration does not define clear
maritime boundaries between the signatory States; and (c) the Agreement Relating to
a Special Maritime Frontier Zone is based on the mistaken view that the maritime
boundaries with both Ecuador and Chile are determined by the geographic parallel of
latitude. Ibid., p. 102. M. Agüero Colunga, Consideraciones para la delimitación
marítima del Perú, 2001, Annex 157, pp. 271-272.
226 The logical reasoning would suggest that, were one not to
assume the latter, the reference to the islands would be
nonsensical, as there would be no reason for their maritime
zones to be limited in their extension by a line which is
different from the one that could mark the separation
between the maritime zones of each one of873e States,
drawn from the continental territory.”
5.29. More than a decade later, in 2001, the same author described as “hasty
reasoning” precisely the approach that she had deemed “logical reasoning” in
874
1990 ; and she espoused what in 1990 she had called a “nonsensical”
conclusion.
5.30. In a book on Peru’s foreign policy entitled Between Reality and
Utopia, published several years after his memorandum calling for a renegotiation
of the boundary on account of “new circumstances” 875, Ambassador Bákula, too,
contributed to the revisionist literature. (By that time, Ambassador Bákula had
retired from government service.) He is to be credited for the idea that Article 1
of the Agreement Relating to a Special Maritime Frontier Zone, which expressly
refers to “the parallel which constitutes the maritime boundary”, envisages after
876
all a mere “dividing line” . A further denigration of the 1954 Agreement he
proposed is that the zone of tolerance “on either side of the maritime boundary
between the two countries” under that agreement is “a sort of ‘no one’s
877
waters’” . This suggestion is eccentric, given that the 1954 Agreement calls for
forbearance in exercising some of the plenary jurisdiction that each of the three
States parties has in its respective maritime zone. The “special maritime frontier
873 M. F. Agüero Colunga, Delimitación Marítima del Perú con Ecuador y con Chile,
1990, Annex 156, pp. 101-102.
874
M. Agüero Colunga, Consideraciones para la delimitación marítima del Perú, 2001,
Annex 157, p. 265.
875 Bákula Memorandum, Annex 76 to the Memorial, second page (first paragraph).
876
J. M. Bákula, Perú: Entre la Realidad y la Utopía – 180 Años de Política Exterior,
Vol. II, 2002, Annex 164, p. 1147.
877 Ibid.
227zone” of forbearance remains under the “exclusive sovereignty and jurisdiction”
878
of the relevant State party .
5.31. In fact, Ambassador Bákula developed an argument from his earlier
memorandum of 1986, that there was no specific [especial] treaty on the subject
of delimitation. On this predicate he went on to say that the tolerance zone under
the 1954 Agreement is an “exceptional” or “restrictive norm”, and for this reason
the express references in that agreement to a “maritime boundary” should not be
879
“understood in the light of a more extensive criterion” . All these arguments
are circular and counter-textual: they assume what has to be proved.
5.32. Another strand of thought in Peruvian revisionist writings sought to
brush aside as mere “errors” the long-standing practice of Chile and Peru in
observing the existing maritime boundary, although no evidence is given in
support of this assertion. For example, in 2001, Ambassador Arias-Schreiber
argued that the Agreement Relating to a Special Maritime Frontier Zone was
based on “the erroneous supposition that the Santiago Declaration had adopted
the line of the geographic parallel as a general rule applicable to the delimitation
880
of the continental maritime zones” . This was an “erroneous supposition”
allegedly made by all three States parties to the 1954 Agreement in respect of
their prior agreement, just two years earlier in Santiago. The 1968-1969
881
agreements, in that author’s view, are born out of the same error . One notes
that Ambassador Arias-Schreiber did not express any of these views in an article
878 Santiago Declaration, Annex 47 to the Memorial, Art. II.
879 J. M. Bákula, Perú: Entre la Realidad y la Utopía – 180 Años de Política Exterior,
Vol. II, 2002, Annex 164, pp. 1148-1149.
880 A. Arias-Schreiber, “Delimitación de la frontera marítima entre Perú y Chile”,
Revista Peruana de Derecho Internacional, Vol. LI, January-June 2001, No. 117,
Annex 161, p. 16 (emphasis added).
881
Ibid., p. 27.
228 882
he published in 1970 about Peru’s maritime zone , in which he specifically
referred to the Santiago Declaration.
5.33. Until it initiated these proceedings, Peru obviously disagreed with the
advocacy in the revisionist writings outlined above. That is clear from Peru’s
practice subsequent to the 1952 and 1954 agreements, discussed in Chapter III
above. What is more, the Peruvian authors on whose writings Peru relies in its
Reply do not assist its case that there is no maritime boundary between Chile and
Peru. Rather, these authors all advocate that the Chile-Peru maritime boundary
should not be a parallel of latitude corresponding to the point where the land
boundary meets the sea. Thus the significance of these writings is as follows:
(a) None of these writings takes the view that the 1952 and 1954
agreements are no longer valid and binding.
(b) All these writings acknowledge expressly that the 1952 and 1954
agreements have been understood to establish a boundary between
Chile and Peru and applied in practice accordingly.
(c) None of these writings takes the view that the existing maritime
boundary, which has been actually observed in the practice of the
Parties, was anything but an all-purpose boundary.
(d) All these writings start from a belief that the existing boundary is
unhelpful to Peru, and proceed to mount an argument on how the
existing agreements could be unseated.
882 See A. Arias-Schreiber, “Fundamentos de la Soberanía Marítima del Perú”, Revista
de Derecho y Ciencias Políticas, XXXIVth year, Nos I-II, 1970, Annex 160, p. 55.
229Section 5. Acknowledgment of the Chile-Peru Maritime Boundary in the
Limits in the Seas Series of the United States Department of State
5.34. In the Reply, Peru seeks to diminish the widespread international
acknowledgment of an agreed maritime boundary between Chile and Peru,
asserting that there is in fact “no great body of third-party recognition” 883. The
reason for that, Peru argues, is that this recognition may be traced back to “. . .a
single, erroneous, analysis by the Office of the Geographer of the United States
Department of State” 884 in the Limits in the Seas serial publication 885. There are
two difficulties with this contention. First, this publication of the United States
Department of State consistently recognized, in all relevant issues, published in
the course of 21 years, that the Santiago Declaration effected a maritime
delimitation between Chile and Peru using a parallel of latitude. A minor mistake
in the notation of the precise latitude of the boundary parallel does not alter this.
Second, there are numerous examples of international acknowledgment of the
Chile-Peru maritime boundary that pre-date the first depiction of the Chile-Peru
boundary in Limits in the Seas.
A. L IMITS IN THE SEAS ACKNOWLEDGED THE EXISTENCE OF THE MARITIME
BOUNDARY —1979-2000
5.35. In the Counter-Memorial, Chile refers to the issue of Limits in the Seas
No. 86 which states that, pursuant to the Santiago Declaration, the boundary
follows a parallel of latitude886. The relevant issue was first published in 1979 887.
883
Reply, para. 4.73.
884 Ibid., paras 3.176 and 4.70.
885 This is a comprehensive collection of (notably) individual reports covering each
country, containing information about maritime boundaries and maritime claims. It is
extensively used by specialized practitioners and government officials.
886 See Counter-Memorial, para. 2.228. The Limits in the Seas series, now issued by the
Office of Oceans Affairs, Bureau of Oceans and International Environmental and
Scientific Affairs of the United States Department of State, “aims to set forth the
basis of national arrangements for the measurement of marine areas by coastal
States”: <http://www.state.gov/g/oes/ocns/opa/convention/c16065.htm>.
230Since then Limits in the Seas has confirmed the point on at least three subsequent
888 889 890
occasions, in 1990 , 1995 , and 2000 .
5.36. Peru’s response is that the analysis by the Office of the Geographer of
the United States Department of State is erroneous in that it contains “a
891
distinctive numerical (perhaps typographical) error” . This is correct: there is a
minor error, which as Peru points out is “perhaps typographical”. Rather than
stating that the maritime boundary extends along the 18° 21' 03" S parallel, it is
said that “[t]he maritime boundary extends along the 18° 23' 03" parallel of
892
South latitude” . That is the extent of the error. What is important for present
purposes is the unequivocal, and correct, statement that the maritime boundary
between Chile and Peru had been fully delimited by the Santiago Declaration,
and that it “coincides with the parallel of latitude on which the Peru-Chile land
boundary marker No. 1 has been placed.” The analysis by the Office of the
Geographer also refers to the work of the 1968-1969 Mixed Commission which
“established two land alignment towers to aid mariners to establish their position
with respect to the maritime boundary. . .[which were] placed on the 18° 23' 03"
South parallel of latitude.”
887 See United States Department of State, Office of the Geographer, Limits in the Seas,
No. 86: Maritime Boundary: Chile-Peru, July 1979, Annex 216 to the Counter-
Memorial.
888
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 to the Counter-Memorial.
889
See United States Department of State, Office of Ocean Affairs, Limits in the Sea,
No. 36: National Claims to Maritime Jurisdictions, 7th Revision, 11 January 1995,
Annex 220 to the Counter-Memorial.
890 See United States Department of State, Office of Ocean Affairs, Limits in the Seas,
No. 36: National Claims to Maritime Jurisdictions, 8th Revision, 25 May 2000,
Annex 222 to the Counter-Memorial.
891 Reply, para. 4.72.
892
See United States Department of State, Office of the Geographer, Limits in the Seas,
No. 86: Maritime Boundary: Chile-Peru, July 1979, Annex 216 to the Counter-
Memorial, p. 2 (emphasis added).
2315.37. For 21 years Peru stood idle, proffering no correction to a clear
statement, made in four publications issued in the course of that period, that there
was a maritime boundary with Chile and it followed the parallel of latitude of
Hito No. 1. There would have been every reason for Peru to react, given that
Limits in the Seas is a publication widely consulted by States, international
organizations, and professional advisors, and indeed a publication often relied
upon in proceedings before the Court — as in fact the issues describing the
Chile-Peru boundary have been relied upon by several States in such
893
proceedings .
B. W IDESPREAD ACKNOWLEDGMENT BEFORE LIMITS IN THES EASN O.86(1979)
5.38. Contrary to Peru’s assertion, publicists and third States had
acknowledged that the Santiago Declaration effected a delimitation between
Chile and Peru before the relevant Limits in the Seas issue was first published, in
1979, addressing the maritime boundary between Chile and Peru. Chile has been
able to identify three publications by specialist authors, in the period 1975-
894
1977 . Third States had also acknowledged that there is an agreed maritime
boundary between Chile and Peru, which follows a parallel of latitude, before
Limits in the Seas No. 86. There are two examples.
5.39. First, in the North Sea Continental Shelf cases, all three States
involved in the proceedings acknowledged that the maritime boundary between
Chile and Peru had been effected by the Santiago Declaration and that the
893
See paras 5.6-5.8 above.
894 See,J. R. V. Prescott, The Political Geography of the Oceans, 197304to
the Counter-Memorial, p. 103;. 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 to the Counter-Memorial, p. 303; and 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 to the Counter-Memorial, p. 190.
232maritime boundary followed a parallel of latitude 895. This case was decided by
the Court in 1969, ten years before Limits in the Seas No. 86.
5.40. Secondly, in 1975, four years before it joined the CPPS, Colombia
stated its understanding that the Santiago Declaration constituted a delimitation
agreement between Chile, Peru and Ecuador. During the ratification process of
the delimitation agreement that Colombia concluded with Ecuador in 1975, the
Colombian Foreign Minister stated:
“This system of delimitation [using parallels of geographic
latitude], used frequently by several States, was in
particular chosen by the three 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 meets the interests of the two
896
countries adequately” .
5.41. This statement was made four years before the Limits in the Seas issue
897
under discussion .
895
Para. 5.6 above and Counter-Memorial, paras 2.231 and 2.163.
896 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 Co-operation, Annex 214 to the Counter-
Memorial. Also see the 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 215 to the Counter-Memorial.
897 See further para. 1.20(k) above on the “Statement of Reasons” given by the
Government of Colombia in Congress.
233 CHAPTER VI
STABILITY OF BOUNDARIES AND THE SETTLED PRACTICE
6.1. UNCLOS expressly confirms that maritime boundaries established by
agreement prior to UNCLOS are to be respected:
“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.” 898
6.2. The rules of customary international law on treaty interpretation, and
their application to the legal and factual issues in this case, are discussed more
fully in Chapter IV of Chile’s Counter-Memorial. That discussion demonstrated
that the Parties have delimited their maritime boundary by agreement. Thus, this
case ultimately turns on the fundamental rule of pacta sunt servanda. The
Santiago Declaration is, as all treaties, “binding upon the parties to it and must be
performed by them in good faith” 899. The same is true for the Agreement
Relating to a Special Maritime Frontier Zone, which from the outset was
900
conceived and expressed to be an “integral part” of the Santiago Declaration .
6.3. The stability and permanence of boundaries is evident in
Article 62(2)(a) of the Vienna Convention, which provides that: “A fundamental
change of circumstance may not be invoked as a ground for terminating or
withdrawing from a treaty if the treaty establishes a boundary.”
6.4. In conjunction with these specific rules concerning respect for
boundary treaties, the Parties’ maritime boundary is subject to the more general
898 UNCLOS, Arts 74(4) and 83(4).
899 Vienna Convention, Art. 26.
900
Agreement Relating to a Special Maritime Frontier Zone, Annex 50 to the
Memorial, Art. 4.
234 901
customary international law principle of stability of boundaries . In asking the
Court to redraw the Parties’ maritime boundary, and adopt a boundary at
variance with the existing one, Peru asks the Court to act in a manner directly
contrary to the venerable authority of the Grisbådarna arbitration, which was the
first maritime boundary delimitation case, and in which it was held that–
“dans le droit des gens, c’est un principe bien établi, qu’il
faut s’abstenir autant que possible de modifier l’état des
902
choses existant de fait et depuis longtemps”.
6.5. The Court has also made clear, in the Aegean Sea Continental Shelf
case, that “the same element of stability and permanence” applies to maritime
903
boundaries as to land boundaries . Once the boundary between two States has
been settled, subsequent unilateral opposition to it by a change of position by one
party, or the unilateral creation of a dispute in respect of it, does not undermine
the boundary’s continuing validity 904.
6.6. The principle of stability of boundaries confers on a boundary a
905
juridical existence independent of the agreement that created that boundary .
As the Court said in the Libya/Chad case, a settled boundary has “a legal life of
its own” that is not dependent on its basis in a treaty 906. In the present case, the
901 The principle of stability of boundaries is also discussed at paras 4.70-4.80 of the
Counter-Memorial.
902 The Grisbådarna Case (Norway v. Sweden), Award, 23 October 1909, RIAA,
Vol. XI, p. 161.
903
See Aegean Sea Continental Shelf (Greece v. Turkey), Judgment, I.C.J. Reports
1978, pp. 35-36, para. 85.
904 See Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 34.
905 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, Judgment, I.C.J. Reports 2007, 13 December 2007, p.
861, para. 89.
906 Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,
p. 37, para. 72.
235independent juridical existence of the Parties’ maritime boundary is
demonstrated by numerous examples of State practice, a selection of which are
listed in summary form below.
Section 1. Bilateral Conduct Demonstrating the Parties’ Agreement that
the Boundary had been Settled
6.7. The Parties’ long-standing agreement that their maritime boundary has
been settled is evident from the following examples of their bilateral conduct in
the 1950s and 1960s:
(a) In the 1954 Minutes the delegates of Chile, Ecuador and Peru agreed
to memorialize, in lieu of adding a provision to a related treaty that
they were in the process of negotiating, their existing agreement “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.”907 The Peruvian delegate specified “that this agreement was
908
already established in the Conference of Santiago” .
(b) In the 1954 Minutes the three States also recorded the following
agreement concerning Article 1 of the Agreement Relating to a Special
Maritime Frontier Zone (which they went on to conclude the following
day):
“[T]he concept already declared in Santiago that the
parallel starting at the boundary point on the coast
constitutes the maritime boundary between the
907
Minutes of the First Session of Commission I of the 1954 Inter-State Conference,
2 December 1954 at 10.00 a.m., Annex 38 to the Counter-Memorial, p. 3.
908 Ibid., p. 4.
236 neighbouring signatory countries, was incorporated into
this article.”909
(c) In 1968 and 1969 the Parties engaged in a series of consensual steps to
signal the parallel of latitude constituting their pre-existing maritime
boundary. In doing so, they confirmed the existence and course of that
boundary. These steps included the following:
(i) In the 1968 Minutes the delegations from the two Parties
recorded that their joint task was “to materialise the parallel of the
910
maritime frontier originating at Boundary Marker number one” and
that in order to do so they would place one lighthouse on the seaward
side of Hito No. 1, and a second 1,800 metres inland in Chilean
911
territory, “in the direction of the parallel of the maritime frontier” .
(ii) In an exchange of notes in August 1968, the Parties approved
the 1968 Minutes. The Peruvian note was the first in the exchange and
recorded that the 1968 Minutes had been signed “by the
representatives of both countries in relation to the installation of
leading marks to materialise the parallel of the maritime frontier” 912.
Chile’s reply reflected the language used by both States in the 1968
Minutes and by Peru in its note. Chile referred to “the installation of
909
Minutes of the Second Session of Commission I of the 1954 Inter-State Conference,
3 December 1954 at 10.00 a.m., Annex 39 to the Counter-Memorial, p. 7.
910 1968 Minutes, Annex 59 to the Memorial.
911
Ibid.
912 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.
237 the leading marks visible from the sea to materialise the parallel of the
913
maritime frontier originating at Boundary Marker No. 1” .
(iii) In a 1969 note Peru informed Chile of the composition of its
delegation to the 1968-1969 Peru-Chile Mixed Commission. In doing
so, Peru recorded that the task of the Mixed Commission was–
“to verify the position of boundary marker number one and
fix the definitive location of the two ali914ent towers that
were to signal the maritime boundary” .
(iv) The 1969 Act recorded that:
“The undersigned Representatives of Chile and Peru,
appointed by their respective Governments for the
purposes of verifying the original geographical position of
the concrete-made Boundary Marker number one (No. 1)
of the common frontier and for determining the points of
location of the Alignment Marks that both countries have
agreed to install in order to signal the maritime boundary
and physically to give effect to the parallel that passes
through the aforementioned Boundary Marker number
one, located on the seashore, constituted a Mixed
Commission, in the city of Arica, on the nineteenth of
August, nineteen sixty-nine.” 915
(v) The 1969 Act also recorded that “the Mixed Commission met
at Boundary Marker number one” where, “[t]he parallel having been
determined, the two points at which the front and rear alignment
towers shall be erected were physically marked on this line” 916. The
913 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.
914
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 to the Counter-Memorial.
915 1969 Act, Annex 6 to the Counter-Memorial (emphasis added).
916
Ibid.
238 lighthouses to signal the parallel of the maritime boundary were
subsequently constructed on those points and began functioning in
917
1972 .
Section 2. Peru’s Enforcement of the Agreed Boundary
6.8. That Peru has considered itself to have agreed its maritime boundary
with Chile is evident from the following examples where Peru has enforced that
boundary:
(a) In March 1966 the Peruvian Navy corvette Diez Canseco responded to
perceived transgressions of the Chile-Peru maritime boundary by two
Chilean fishing vessels by firing warning shots from its canon. Chile
wrote to Peru on the basis that the fishing vessels had been “south of
918
the boundary with Peru” and thus requested an explanation from
Peru as to why its Navy had “trespassed over the boundary and
open[ed] fire in Chilean waters” 91. Peru responded that the Chilean
vessels were “north of the frontier line” 92. Peru informed Chile of a
series of coordinates for the Peruvian corvette, and stated the distances
that those points were “from the frontier line” 921. Peru provided
coordinates and distances on the basis of its understanding that the
maritime boundary that it was defending was the parallel of latitude
18° 21' S. Peru assured Chile that when a Chilean vessel that it had
pursued “was crossing the frontier line”, Peru’s Navy had “abandoned
917 See Notices to Mariners Nos 57 and 152 of 1972 issued by the Hydrographic
Institute of the Chilean Navy, Annexes 129 and 130 to the Counter-Memorial.
918
Cable No. 48 of 23 March 1966 from the Ministry of Foreign Affairs of Chile to the
Chilean Embassy in Peru, Annex 122 to the Counter-Memorial.
919 Ibid.
920
Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 75 to the Counter-Memorial.
921 Ibid.
239 922
the pursuit” . Peru thus concluded that its Navy “did at no time cross
923
the frontier line” . Chile requested no further explanation from Peru.
Both States proceeded on the explicit basis that they had a maritime
boundary in place, which followed the parallel of latitude 18° 21' S,
and that it should not be transgressed by Navy or commercial vessels
from the State on the other side of the boundary parallel.
(b) In 1989 the Harbour Master of Ilo, an officer of the Peruvian Navy,
issued decisions in two administrative proceedings brought against
Chilean vessels, fining them 20,000 U.S. Dollarsfor having carried out
924
“fishing activities in waters under Peruvian maritime dominion” .
These decisions record that the vessels were “seized at a point located
1.5 miles from the frontier line of the Republic of Chile, in the
925
jurisdictional waters of Peru” . They state that the vessels were
“intercepted and captured” at a location with coordinates 18° 19' S and
70° 39' W by a Peruvian Navy vessel “1.5 miles away from the
dividing line of the maritime frontier” 926. The “frontier” referred to
was the line that delimited, to use the language of the Peruvian
927
Regulations, the “waters under Peruvian maritime dominion” , which
922 Memorandum of 8 June 1966 from the Peruvian Embassy in Chile to the Ministry of
Foreign Affairs of Chile, Annex 75 to the Counter-Memorial.
923
Ibid.
924 Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo, Annex 176
to the Counter-Memorial; and Resolution No. 007-89-M of 5 June 1989 by the
Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
925 Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo, Annex 176
to the Counter-Memorial; and Resolution No. 007-89-M of 5 June 1989 by the
Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
926 Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo, Annex 176
to the Counter-Memorial; and Resolution No. 007-89-M of 5 June 1989 by the
Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
927
Quoted in Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo,
Annex 176 to the Counter-Memorial; and Resolution No. 007-89-M of 5 June
1989 by the Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
240 the Harbour Master also described as “the jurisdictional waters of
928
Peru” .
(c) Peru requires every kind of vessel, whatever the purpose of its journey,
to report to Peruvian authorities its entry into and exit from Peru’s
929
maritime dominion . Peru requires such a report to be made upon
930
crossing the parallel of its maritime boundary with Chile . The
shipping records discussed above at paragraphs 3.59-3.63 demonstrate
that vessels do in fact make the reports that Peru requires when
crossing Peru’s boundary parallels with Chile and Ecuador.
(d) Peru also uses the parallel of its maritime boundary with Chile as the
southern limit of the 200M of airspace corresponding to Peru’s
“maritime dominion”, in which airspace Peru purports to be
sovereign 931, and also as the southern limit of the area in which it
grants authorization to lay submarine cables on the continental
932
shelf .
928
Resolution No. 006-89-M of 5 June 1989 by the Harbour Master of Ilo, Annex 176
to the Counter-Memorial; and Resolution No. 007-89-M of 5 June 1989 by the
Harbour Master of Ilo, Annex 177 to the Counter-Memorial.
929
See Directorial Resolution No. 0313-94/DCG of 23 September 1994 of the
Directorate-General of Captaincies and Coastguard of Peru, approving the System of
Information on Position and Security in the Maritime Dominion of Peru, Annex 180
to the Counter-Memorial, Annex (3), First Case; and Annex 94, Annex (4), Third
Case.
930
See, e.g., Directorate of Hydrography and Navigation of the Navy, Derrotero de la
Costa del Perú, 2nd edn, 1988, Annex 175 to the Counter-Memorial, p. 12,
section 1.34; Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of
the Directorate-General of Captaincies and Coastguard of Peru, Annex 178 to the
Counter-Memorial, Annex (3); Directorial Resolution No. 0313-94/DCG of
23 September 1994 of the Directorate-General of Captaincies and Coastguard of
Peru, approving the System of Information on Position and Security in the Maritime
Dominion of Peru, Annex 180 to the Counter-Memorial, Appendix 1 to Annex (4).
931 See paras 3.75-3.77 above.
932 See paras 3.99-3.101 above.
241 Section 3. Peru’s Confirmation of the Agreed Boundary
6.9. Peru has confirmed in numerous instruments of its domestic legal
system that its maritime boundary with Chile has been settled. The following
instances are worth reiterating:
(a) In January 1955 Peru issued a Supreme Resolution–
“to specify in cartographic and geodesic work the manner
of determining the Peruvian maritime zone of 200 miles
referred to in the Supreme Decree of 1 August 1947 and
the Joint Declaration signed in Santia933on 18 August
1952 by Peru, Chile and Ecuador” .
The Supreme Resolution provided that the outer limit of Peru’s 200M
claim “shall be limited at sea by a line parallel to the Peruvian coast
and at a constant distance of 200 nautical miles from it” 934.
Concerning the lateral limits of Peru’s maritime zone, it stated that:
“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.” 935Peru provided this
instrument to the United Nations for inclusion in the United Nations
Legislative Series 936.
(b) Peru took a further step to ensure that its maritime zone was correctly
depicted in cartographic and geodesic work. Pursuant to Peruvian
Supreme Decree No. 570 of 1957, which requires Peru’s Foreign
Ministry to approve any “geographic or cartographic publication
933 1955 Supreme Resolution, Annex 9 to the Memorial, preambular recital.
934
Ibid., Art. 1.
935 Ibid., Art. 2.
936
See United Nations Legislative Series, National Legislation and Treaties Relating to
the Law of the Sea, 1974, Annex 164 to the Counter-Memorial, pp. 27-28.
242 937
referring to or representing the frontier zones of the Nation” , Peru
has formally authorized a number of maps depicting the Parties’
maritime boundary, which is the southern limit of Peru’s “maritime
938
dominion”, as a parallel of latitude . Resolutions of Peru’s Foreign
Ministry authorizing these publications confirm that in them “Peru’s
international boundaries have been drawn in an acceptable way” 939.
Pursuant to Peru’s Ministerial Resolution No. 458 of 1961, while such
ministerial approval implies no official approval of “concepts and
commentaries”, it does confer official approval on the correctness of
the “delimitation of Peru’s bordering zones” 940.
(c) In 1976, as part of a proposed exchange of territory between Chile and
Bolivia, Chile consulted Peru about a proposed cession of territory to
Bolivia. This cession would have allowed Bolivia direct access to the
sea in the form of a corridor between Peru and Chile. Chile was
obliged not to cede any territory to Bolivia without having reached
941
agreement on such cession with Peru . Chile informed Peru that the
cession would include certain land territory and “the maritime territory
between the parallels of the extreme points of the coast that will be
942
ceded (territorial sea, economic zone and continental shelf).” Peru
responded with a different proposal on the territorial aspects of the
arrangement, and an exchange of territory ultimately was not agreed.
937 Supreme Decree No. 570 of 5 July 1957, Annex 11 to the Memorial.
938
See Figures 37-41 to the Counter-Memorial, Vol. I, after p. 254 and paras 3.146-
3.151 of the Counter-Memorial.
939 Reproduced in Figures 37 and 38 to the Counter-Memorial, Vol. I, after p. 254.
940
Ministerial Resolution No. 458 of 28 April 1961, issued by the Ministry of Foreign
Affairs of Peru, Annex 9 to the Reply. See further paras 3.33-3.41 above.
941 Supplementary Protocol to the Treaty of Lima, Annex 45 to the Memorial, Art. 1.
942
Note No. 686 of 19 December 1975 from the Chilean Minister of Foreign Affairs to
the Bolivian Ambassador to Chile, reproduced in Ministry of Foreign Affairs of
Chile, Historia de las Negociaciones Chileno-Bolivianas: 1975-1978, 1978,
Annex 25, p. 44.
243 The significant point for present purposes is that Peru made absolutely
no objection to the proposed use of the actual maritime boundary
between Chile and Peru as the maritime boundary between Bolivia and
Peru. Peru accepted that it had no right to any maritime space to the
south of that boundary parallel.
(d) Chile depicted its maritime boundary with Peru on official charts
943 944 945
published in 1992 , 1994 and 1998 . The 1992 and 1994 charts
attracted no protest from Peru when they were published, or
subsequently, such that Peru must be regarded as having acquiesced in
their depiction of the agreed maritime boundary. In 2000, when Chile
deposited with the United Nations the 1998 chart showing its maritime
boundaries, for the first time, Peru did protest Chile’s depiction of a
maritime boundary with Peru. The basis of Peru’s objection in 2000
was not that there was no agreed maritime boundary operating
between the Parties. It was that there was no maritime delimitation
treaty “specific” to “the relevant rules of international law” 946, i.e., to
the maritime zones recognized by UNCLOS as reflective of customary
947
international law .
(e) In the years for which records are available, being 1984 and 1994-
2009, Chile captured more than 300 Peruvian fishing vessels found
943 Figure 7.3 to the Memorial, Vol. IV, p. 113.
944 Figure 5.24 to the Memorial, Vol. IV, p. 79.
945
Figure 5.25 to the Memorial, Vol. IV, p. 81.
946 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.
947 And see, similarly, the discussion of the Bákula Memorandum at paras 3.106-3.113
above.
244 948
south of the boundary parallel . Chile notified Peru of most of these
incidents, identifying the coordinates of the capture and the distance
from the “international political boundary” where it occurred 94. Only
950
in September 2004 did Peru begin to attempt to reserve its position .
In stark contrast to this recent reservation, in 1995 both States had
jointly memorialized a procedure by which captured vessels would be
escorted by the Navy or Coastguard of the capturing State to the
951
boundary, where they would be released .
Section 4. The Settled Practice Demonstrates the Existence of a
Maritime Boundary, not a “Fisheries Policing Line”
6.10. Peru acknowledges the use of the parallel of latitude by the Parties as a
line dividing their respective areas of exercise of jurisdiction. It also
acknowledges that the parallel in use is the one passing through Hito No. 1. The
real dispute between the Parties is about the character of that dividing line. Peru
952
says it was, and still is, “the fisheries policing line” . Peru asks the Court to
cast aside that existing arrangement and replace it with an equidistance boundary
applicable for all purposes. In doing so it asks the Court to unsettle something
that, on Peru’s own case, has been settled for a long time, and something which
has served both Parties well. Peru acknowledges in its Reply that: “The use of
948 See Counter-Memorial, para. 3.96, the Appendix and Figure 28 to the Counter-
Memorial, Vol. I, after p. 224.
949
See Counter-Memorial, para. 3.96 and the Appendix.
950 See 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 to the Counter-
Memorial.
951 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 (S.M.F.Z.), between the Harbour Master of Ilo and the Maritime
Governor of Arica”, 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 to the Counter-Memorial; and see Counter-
Memorial, paras 3.100-3.105.
952 Reply, para. 4.45.
245the line of latitude, discernible by small, ill-equipped fishing vessels, was not
only an obvious solution: it was the only practical solution.” 953 Peru does not
explain the basis on which it now asks the Court to cast aside something that the
two States agreed to be “the only practical solution”.
6.11. Chile acknowledges that fisheries are the primary resource and reason
for traffic in the area at issue in this case. Although for most relevant practical
purposes in that area a jurisdictional fisheries line following the parallel of
latitude would serve the same function as a maritime boundary, the fact that the
agreed maritime boundary is of primary significance for fisheries does not
relegate it to a jurisdictional fisheries line.
6.12. Peru has not produced a single document created prior to this dispute
in which either Party referred to the parallel as “the fisheries policing line”. Nor
has Peru produced a single document in which either Party indicated that the
agreed use of the parallel of latitude was somehow to be limited in time. Peru’s
assertions that the Agreement Relating to a Special Maritime Frontier Zone and
the establishment of the lighthouses signalling the parallel of Hito No. 1 were
simply practical arrangements that involved no acknowledgement of a maritime
boundary are nowhere accompanied by any explanation of why those
arrangements were arrived at in the first place or why they should now be at an
end.
6.13. The fisheries industry in the Chilean city of Arica has developed in
reliance on the agreed boundary. The port of Arica lies just 15 kilometres from
the land boundary with Peru. The maritime area claimed by Peru roughly extends
between the latitudes of the cities of Arica and Iquique (located some 200 km to
the south of Arica, also on the coast).
953 Reply, para. 4.18 (emphasis in original).
2466.14. The fishing industry at the ports of Arica and Iquique is significant in
national terms, second only to four other larger ports close to Santiago and
Concepción, the two largest cities in the country. Table 1, at Figure 87, shows
the catch unloaded (in tonnes) at these ports for the period 1991-2007 and the
954
percentage of the unloaded catch in the national context .
6.15. Table 2, at Figure 87, indicates the number of fishing vessels
registered at the ports of Arica and Iquique and the total number of fishing
vessels registered nationally 955. The table also shows the aggregate tonnage of
each category of fishing vessels at each of the two ports. A significant portion of
the fishing vessels below 400 tonnes in the country is registered at the ports of
Iquique and Arica, showing the importance of small- and medium-sized fishing
vessels for the economy of the northern part of Chile.
6.16. Altering the settled maritime boundary would not just be contrary to
the principle of stability of boundaries as an abstract principle of international
law. It would materially diminish the fishing grounds available to industrial and
artisanal fishing enterprises that have established themselves in Arica and
Iquique in reliance on the settled boundary. This will obviously affect the
livelihood of the significant part of the local population who are directly engaged
in fishing, and also those who are engaged in related fisheries activities, such as
storage, resale, transportation, etc.
6.17. As explained in the Counter-Memorial, Arica is not only a significant
commercial port and fishing centre, it is also a port which serves the interests of
956
Peru and Bolivia and provides key facilities to those countries . For example,
954
Data extracted from the Directorate-General of the Maritime Territory and Merchant
Navy, Maritime-Historical Statistic Reports, Annex 74, Sections 8.1 (1991-1993)
and 10.1 (1994-2007).
955 Ibid., Section 9.2. The table covers fishing vessels above 50 tonnes of gross
registered tonnage (TRG).
956
See Counter-Memorial, para. 1.20.
247Arica is the main transit port for Bolivian cargo. Peru also enjoys extensive port
facilities in Arica, which serves as the port of the Peruvian city of Tacna, some
50 km to the north. And, pursuant to its obligations under the Treaty of Lima,
Chile constructed in Arica a building for the Peruvian Customs office and a
957
terminal station for the railway to Tacna . Thus, Arica serves Peru’s economic
interests too, being the major port near the land boundary between the Parties.
6.18. Peru’s various attempts to diminish the significance of the agreed
maritime boundary are post-hoc assertions created for the purpose of this
litigation in an attempt to convince the Court that the boundary is not really a
boundary, and that the Court should draw one afresh using a method different
from the one on which the Parties agreed in 1952 and which they confirmed in
1954. There is absolutely no evidence in the contemporaneous documentary
record for such assertions. By contrast, the Parties have referred to the límite
marítimo, frontera marítima, or límite político internacional to describe the
parallel of latitude of the point where the land boundary reaches the sea. They
958
have done so notably during the joint signalling work of 1968-1969 , in
diplomatic correspondence complaining about transgressions of the boundary by
fishing vessels 959and when enforcing the boundary parallel by capturing fishing
960
vessels of the other Party and escorting them back to the parallel . There are
numerous more instances of references to “jurisdictional waters” and “territorial
waters” of the Parties.
6.19. Chile has been forthcoming in these proceedings before the Court, to
the extent of producing an extract from its Navy’s Rules of Engagement from the
early 1990s, which is naturally a document classified as secret. That extract is
957 Treaty of Lima, Annex 45 to the Memorial, Art. 5.
958
See Annexes 59, 74 and 75 to the Memorial and Annexes 6, 78, 80 and 165 to the
Counter-Memorial.
959 See Annexes 69, 74 and 76 to the Memorial.
960
See Annexes 88, 89, 95 and 98 to the Counter-Memorial and Annex 93 to the
Rejoinder.
248 Figure 87
Figure 76
Table 1: Catch unloaded (in tonnes) at the ports of Arica and Iquique, compared with national total catch, for the period 1991-2007
1991 1992 1993 1994 1995 1996 1997 1998 1999
ARICA 766,438 12.4% 723,391 10.9% 636,300 10.3% N/A N/A 569,519 7.3% 476,602 6.6% 532,501 8.4% 62,809 1.6% 391,340 7.0%
IQUIQUE 681,564 11.1% 909,712 13.7% 839,517 13.6% 1,058,502 13.2% 899,131 11.5% 545,786 7.5% 849,359 13.3% 103,065 2.7% 585,784 10.5%
NATIONAL TOTAL 6,166,081 100.0% 6,628,365 100% 6,190,648 100% 8,021,043 100% 7,825,696 100% 7,231,679 100% 6,365,535 100% 3,824,231 100% 5,599,849 100%
2000 2001 2002 2003 2004 2005 2006 2007
ARICA 393,002 7.9% 193,085 4.1% 355,878 6.9% 242,465 5.4% 377,572 6.1% 320,470 5.9% 214,552 4.1% 254,726 5.6%
IQUIQUE 705,731 14.2% 629,158 13.5% 925,765 18.0% 483,386 10.7% 898,047 14.5% 725,863 13.7% 520,703 9.8% 648,635 14.3%
NATIONAL TOTAL 4,972,263 100% 4,663,433 100% 5,132,741 100% 4,528,513 100% 6,204,344 100% 5,477,248 100% 5,297,525 100% 4,528,712 100%
Table 2: Number of fishing vessels registered at the ports of Arica and Iquique and the total number of fishing vessels registered nationally, for the period 1994-2007
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007
Arica No of vessels 17 16 16 12 5 6 9 8 7 7 7 4 6 3
Aggregate tonnage 1,389.83 1,305.75 1,305.75 931 401.68 479.6 703.11 632 564 564 564 328 509 236
GRT * No of vessels 20 20 15 7 7 6 1 2 1
Iquique
Less than 100 Aggregate tonnage 1,588.50 1,592.50 1,200.83 583 587.41 497.49 82 164 82
No of vessels 114 112 99 84 74 72 62 59 52 46 46 47 47 40
NATIONALTOTAL Aggregate tonnage 8,947.57 8,819.37 7,826.37 6,682 5,964.90 5,803.43 4,978.67 4,701 4,167 3,650 3,650 3,756 3,824 3,247
No of vessels 38 42 42 35 36 36 36 31 56 51 39 30 29 26
Arica
Aggregate tonnage 8,170.68 9,138.22 9,338.15 8,418 8,496.58 8,504.14 8,375.96 7,232 13,332 11,729 8,696 7,026 6,832 5,946
GRT No of vessels 56 46 45 40 39 40 45 44 22 19 41 31 41 40
101-400 Iquique Aggregate tonnage 11,656.28 9,269.14 9,152.68 8,527 8,599.52 8,870.55 10,447.93 10,517 5,081 4,424 10,039 7,329 10,107 10,376
NATIONALTOTAL No of vessels 242 236 223 205 188 185 176 167 159 150 150 149 140 116
Aggregate tonnage 49,885.83 48,977.66 46,388.17 43,232 40,592.74 40,170.32 38,769.36 36,884 35,234 33,318 33,318 33,261 31,503 26,558
No of vessels 2 2 2 2 2 3 2 2 14 9 6 2 1 2
Arica
Aggregate tonnage 975 975 975 975 975 1,530.94 975 975 6,904 4,383 3,013 975 512 975
GRT Iquique No of vessels 20 18 17 15 16 15 15 15 1 1 11 16 17 17
401-800 Aggregate tonnage 10,530.52 9,321.34 8,698.46 7,474 8,086.46 7,474.46 7,474.46 7,474 545 463 5,650 8,058 8,377 8,405
No of vessels 147 148 146 137 136 136 132 131 122 123 123 119 117 105
NATIONALTOTAL
Aggregate tonnage 86,447.08 87,598.38 86,107.80 80,854 80,407.94 80,317.10 77,418.32 77,003 72,384 72.561 72,561 70,417 69,222 62,088
No of vessels
Arica Aggregate tonnage
GRT Iquique No of vessels
801 or more Aggregate tonnage
No of vessels 39 44 43 53 55 55 54 53 54 52 52 54 57 57
NATIONALTOTAL Aggregate tonnage 50,518.16 55,175.66 60,237.90 69,300 71,438.02 71,543.90 70,189.40 67,529 68,822 62,124 62,124 69,301 71,909 71,629
*GRT: gross registered tonnagereproduced as Figure 75 961, and demonstrates unequivocally Chile’s internal
view of the Parties’ maritime boundary prior to Peru’s present claims. The fact
that the boundary parallel is set forth in the Navy’s Rules of Engagement clearly
demonstrates that there is an all-purpose maritime boundary, respected and
enforced as such by the armed forces of the two States, not some kind of
functional or provisional line. The inference to be drawn from Peru’s failure to
produce equivalent evidence is that the documents held by Peru contradict its
962
present arguments .
6.20. Demonstrating the significant benefits to both Parties of the stability of
their longstanding maritime boundary, there has not been a single conflict
between the Parties’ Navies concerning the existence or location of the boundary
since it was agreed in 1952.
961 Also see Figure 20 to the Counter-Memorial, Vol. I, after p. 176.
962
For an example of a publicly known position of the Peruvian Navy contradicting
Peru’s position in the present case, see para. 2.49 above.
249 CHAPTER VII
THE ALTA MAR AREA: PERU’S ALTERNATIVE SUBMISSION
7.1. Chapter VI of Peru’s Reply addresses the claim to what Peru calls “the
963
outer triangle”. Chile calls it the “alta mar area” to denote its high seas status .
7.2. Peru claims the alta mar area in its second submission, by which it
asks the Court to declare that: “Beyond the point where the common maritime
border ends, Peru is entitled to exercise exclusive sovereign rights over a
964
maritime area lying out to a distance of 200 nautical miles from its baselines” .
The area claimed by Peru can be seen on Figures 2.4 and 7.1 of Peru’s
965
Memorial . The alta mar area is also depicted on Figure 2 of Chile’s Counter-
Memorial 966. As those illustrations show, Peru’s second submission proceeds on
the basis that the Court will find that the maritime boundary between the Parties
is constituted by a parallel of latitude 200M in length. Peru asks the Court to
order that the area which is “[b]eyond the point where the common maritime
963 In academic writings areas of this kind have been referred to as “the grey area”. See
D. Colson, “The Legal Regime of Maritime Boundary Agreements” in J. I. Charney
and L. M. Alexander (eds), International Maritime Boundaries, Vol. I, 1993, pp. 67-
69; A. G. Oude Elferink, “Does Undisputed Title to a Maritime Zone Always
Exclude its Delimitation: The Grey Area Issue”, International Journal of Marine and
Coastal Law, Vol. 13(2), 1998, p. 143; and L. H. Legault and B. Hankey, “From Sea
to Seabed: The Single Maritime Boundary in the Gulf of Maine Case”, American
Journal of International Law, Vol. 79, 1985, pp. 987-988.
964 Reply, p. 331.
965
It is not clear on what basis Peru determined the outer limit of the alta mar area in
the depictions on Figures 2.4 and 7.1 to the Memorial (Vol. IV, pp. 15 and 109)
and it is not clear that its calculation takes account of the full extent of Chile’s 200M
maritime zones measured from the basepoints submitted by Chile to the United
Nations on 29 September 2000: United Nations, Communication
M.Z.N.37.2000.LOS (Maritime Zone Notification) from the Secretary-General of the
United Nations, entitled “Deposit by Chile of charts showing normal and straight
baselines, the territorial sea, the contiguous zone, the exclusive economic zone and
the continental shelf”, 29 September 2000, Annex 132; Chart No. 6 of the
Hydrographic and Oceanographic Service of the Chilean Navy entitled “Rada de
Arica a Caleta Matanza”, 1st edn, August 2000, Figure 88.
966
Counter-Memorial, Vol. I, after p. 8.
250 Figure 88
Chile’s Chart No.6 of 2000 showing normal baselines, the 12M territorial sea and outer limits
of the 24M contiguous zone, the 200M EEZ and the continental shelf in northern Chile
Source: Hydrographic and Oceanographic Service of the Navy (SHOA), Chart No. 6, Rada
de Arica a Caleta Matanza, 1:2,000,000, 1st edn, 2000border ends”, but within 200M of Peru’s coast measured using an envelope of
arcs of circles, is to become part of Peru’s “maritime dominion”.
7.3. Since this submission by Peru proceeds on the basis that the maritime
boundary between the Parties is a parallel of latitude up to a point 200M from the
coast, Chile regards this as a submission in the alternative to Peru’s primary
submission, which is that there is no boundary at all and an equidistant line is to
be drawn by the Court. In paragraphs 6.4-6.10 of its Reply, Peru ties itself in
knots asserting that its two submissions are not really alternative, but adds, in the
alternative, that even if they are, there is nothing inadmissible about alternative
arguments. Chile has never suggested that a submission in the alternative is
inadmissible. Chile simply considers it important that Peru make clear to the
respondent State and to the Court precisely what Peru, as the applicant State, is
asking for and in what circumstances.
7.4. The size of the alta mar area is significant. Peru claims that it is an
area of 28,356 km 2 96. Peru seeks to enlist the Court to appropriate to Peru’s
“maritime dominion” this area in which the entire international community
currently has equal high-seas rights. Peru’s submission with respect to the alta
mar seeks an attribution of maritime spaces.
7.5. Before addressing the detail of the arguments concerning the alta mar
area, an initial general observation is appropriate. Chile has no maritime zone or
other maritime claim in the alta mar area. If Peru is as confident in its position as
its pleadings suggest, why is Peru even asking the Court for a declaration of its
rights? On Peru’s approach, it is entitled to exercise that jurisdiction without
anyone’s permission to do so. Yet Peru’s practice has been consistent: it has
honoured the parallel of the maritime boundary as a limit to the entire length of
its “maritime dominion”, beyond the outer limit of Chile’s EEZ and continental
shelf. Hence Peru has not produced a single example of ever having exercised
967 See Memorial, para. 7.23.
251any jurisdiction in the alta mar area during the more than half century of practice
under the Santiago Declaration. It purported to identify two examples in the
Memorial 968, but when Chile pointed out that these incidents in fact occurred off
Peru’s northern coast, nowhere near the alta mar area 96, Peru fell silent in its
Reply. In truth, the practice is to the opposite effect. There are numerous
examples, discussed below, of Peru’s regarding the Hito No. 1 parallel as the
southern limit of its “maritime dominion” in the area seawards of the extremity
of Chile’s 200M maritime zone. Peru’s practice is consistent with the practice of
Chile and of third States: the alta mar is uniformly acknowledged to be high
seas.
7.6. The reason for Peru’s request to the Court in its second submission is
that Peru knows that exercising jurisdiction in the alta mar area would involve a
considerable change to the freedom for ships and aircraft of all States to use that
area. In an area in which all members of the international community currently
have equal rights and may exercise all high-seas freedoms, Peru cannot make
that change unless it can persuade the Court to change the status quo.
7.7. In its Memorial, Peru sought to put its claim to the alta mar area on
the footing that Chile’s presencial sea impeded Peru’s exercise of its sovereign
rights970. Chile explained in its Counter-Memorial that the presencial sea has
nothing to do with the issue before the Court, since the presencial sea is a label
971
that attaches to Chile’s international-law compliant activities in the high seas .
The question is whether the alta mar area now claimed by Peru is high seas or
not; and if it is, as Chile submits, whether it is to remain so. In its Reply, Peru
accepts that this is the relevant question. Peru states that the presencial sea
968 Memorial, para. 7.33.
969
See Counter-Memorial, para. 2.116.
970 See Memorial, Chapter VII.
971
See Counter-Memorial, paras 2.126-2.134.
252“might be sustainable as far as the high seas are concerned” 972, and objects to it
solely on the basis that it is “incompatible with the basic rights that the coastal
State — Peru in the present case — enjoys in maritime areas that lie within 200
nautical miles from its coasts” 973. These “basic rights” that Peru claims to
possess are, of course, subject to agreement. By agreement between Chile,
Ecuador and Peru, the alta mar area is high seas. Peru cannot now breach that
agreement and appropriate the alta mar.
Section 1. The Parallel was agreed as a Lateral Limit regardless of the
Seaward Extent of either State’s Maritime Zone
7.8. In Article II of the Santiago Declaration, Chile, Ecuador and Peru
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
974
coasts” . The Parties allowed for further seaward extension of their maritime
claims, beyond 200M, by the use of the words minimum distance. The 1952
Minutes record that the Chilean delegate to the Santiago Conference “deemed it
appropriate to clearly state the extent afforded to article II” and that he “asked
the delegates of Peru and Ecuador to express whether they agreed with Chile’s
standpoint.” 975 That standpoint was that any one of the States parties 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.” 976 The delegates of
972 Reply, para. 6.16.
973
Ibid.
974 Santiago Declaration, Annex 47 to the Memorial, Art. II.
975
Minutes of the Second Session of the Legal Affairs Commission of the 1952
Conference, 12 August 1952 at 4.00 p.m., Annex 34 to the Counter-Memorial,
p. 3.
976 Ibid.
253both Peru and Ecuador confirmed their agreement with this statement 977.
Following this agreement, the 1952 Minutes record, as noted above, that:
“The motion to keep special record of the foregoing
statements in the Minutes of this Commission’s Sessions
was unanimously agreed, in order to serve as a true record
of the extent, sense and accuracy of interpretation of this
part of the Declaration. It was also agreed to provide each
delegation with an authenticated copy of these Minutes so
that it is attached to the declarati978for the purposes each
country may deem appropriate.”
7.9. This agreed, authentic interpretation concerning the ability of each
State party to the Santiago Declaration unilaterally to extend its claim beyond
200M is an “agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty” 979 which, pursuant to
Article 31(2)(a) of the Vienna Convention, must be taken into account in the
interpretation of the Santiago Declaration.
7.10. That the Santiago Declaration envisaged potential further unilateral
extension of each State party’s maritime zone reflected the approach of both
Chile and Peru in their 1947 proclamations, which was that they were entitled to
extend their claim beyond 200M if that was later found to be necessary for the
980
control and protection of natural resources .
7.11. However far seaward any State’s claim was extended under the
Santiago Declaration, such a claim was to be laterally limited by “the parallel at
977 Minutes of the Second Session of the Legal Affairs Commission of the 1952
Conference, 12 August 1952 at 4.00 p.m., Annex 34 to the Counter-Memorial,
p. 3.
978
Ibid.
979 Vienna Convention, Art. 31(2)(a).
980 See 1947 Chilean Declaration, Annex 27 to the Memorial, Arts 2 and 3; 1947
Peruvian Supreme Decree, Annex 6 to the Memorial, Arts 2 and 3; and Reply para.
3.36.
254the point at which the land frontier of the States concerned reaches the sea” 981.
Thus a full, definitive delimitation was accomplished under the Santiago
Declaration. Any other interpretation would mean that further unilaterally-
decided seaward extension by one State could have wrapped around the outer
limit of the maritime zone of the adjacent State, preventing that second State
from later exercising its own right under the Santiago Declaration to extend its
own claim further seaward “without the need to obtain permission or consent
from the other signatory countries” 982, or creating a dispute between the two
States if both extended their claims. As President Jiménez de Aréchaga observed,
in the Santiago Declaration the approach of the three States was that they each
had a “direct and linear projection” 983 into the sea. This projection remained
limited by parallels no matter how far seaward it would extend. Any area within
a State’s “direct and linear projection” could potentially be claimed by it, but if it
was not claimed by that State, then that area would be high seas. An adjacent
State could never claim such an area.
7.12. Peru now counters that:
“It is unsustainable to allege nowadays that the 1952
Declaration of Santiago allows a participating State to
extend its maritime zones as far as it deems suitable. The
modern law of the sea. . .strictly limits any State’s
entitlements to sovereign rights in the exclusive economic
zone to 200 nautical miles from the baselines from984ich
the breadth of the territorial sea is measured.”
981 Santiago Declaration, Annex 47 to the Memorial, Art. IV.
982 Minutes of the Second Session of the Legal Affairs Commission of the 1952
Conference, 12 August 1952 at 4.00 p.m., Annex 34 to the Counter-Memorial,
p. 3.
983 E. Jiménez de Aréchaga, “Chile-Peru”, in J. I. Charney and L. M. Alexander (eds),
International Maritime Boundaries, Vol. I, 1993, Annex 280 to the Counter-
Memorial, p. 794.
984
Reply, para. 6.27.
2557.13. As an UNCLOS State (which neither Peru nor Ecuador is), Chile
concurs with that submission, subject to Chile’s claim to an extended continental
985
shelf where it exists . But Peru’s argument misses the point. True, the parallel
of latitude was agreed as a definitive lateral limit to the maritime claims of the
States parties to the Santiago Declaration because in 1952 the maximum seaward
claim that a State could or would make under international law was an open issue
so far as the three States parties were concerned. The three States were leaving
open the possibility of claims extending further seaward than 200M. The fact
that since then the international law of the sea has developed to accept 200M
zones does not mean that the agreement on the full, definitive delimitation of
lateral limits reached in 1952, prior to that development, should now be
interpreted as having changed too. Each State party’s agreement to limit its
claims (however measured and whatever their breadth) at the boundary parallel
was not conditional on the adjacent State’s actual desire or ability to extend its
own maritime zone. Each State party limited all its potential claims at the
boundary parallel, once and for all.
7.14. Peru urges upon the Court that it interpret the Santiago Declaration in
a dynamic fashion, i.e., that the Declaration “be interpreted and applied within
the framework of the entire legal system prevailing at the time of
986
interpretation” . Such an approach would be appropriate in circumstances such
as those of the South West Africa and Western Sahara advisory opinions, which
Peru cites as authority for it 987. These cases concerned, respectively, the
interpretation of provisions of the Covenant of the League of Nations concerning
985 In May 2009 Chile submitted to the United Nations preliminary information
indicative of the outer limits of the extended continental shelf beyond 200M from
Chile’s baselines, in the Taitao area; the Easter Island and Salas y Gómez area; the
Juan Fernández area; and the San Félix and San Ambrosia area. None of these areas
is in the vicinity of the maritime boundary with Peru. See Government of Chile,
“Preliminary Information Indicative of the outer limits of the Continental Shelf”,
May 2009, available at <www.un.org/Depts/los/clcs_new/commission
_submissions>, in particular the map at p. 21.
986 Reply, para. 6.26.
987
Ibid.
256mandates and principles of decolonization. By contrast, in the context of
international boundaries, where stability is the paramount rule 988, a treaty
limiting the physical space in which a State is entitled to exercise sovereign
rights and jurisdiction cannot, absent explicit agreement to the contrary, be
interpreted in a dynamic or evolutive manner. In the context of an agreement on
boundaries, to do otherwise would amount to impermissible revision of the
agreement.
7.15. The basic rule is that any dynamic or evolutive interpretation of any
treaty must be grounded in the common intention of the parties 989. Here, the
common intention of the Parties was to establish a lateral limit irrespective of the
seaward extent of the Parties’ maritime zones. That intention is reflected in the
clear and unambiguous terms of Article IV of the Santiago Declaration, read
together with Article II, and in the joint, authentic interpretation of the Santiago
Declaration recorded in the 1952 Minutes. The common intention of the Parties
precludes an evolutive interpretation of the Santiago Declaration which would
allow Peru to exercise sovereignty and jurisdiction in the area south of the
parallel. In 1952, Peru agreed on a maritime zone that was vast by the standards
of the time. It was based on the claim that Peru had originally made in 1947. In
1952, Peru also agreed not to exercise any sovereignty or jurisdiction in the area
south of the parallel. The Parties’ agreement on lateral limits was made in
conformity with international law. The fact that since then the international law
of the sea has changed, and in a separate development Peru has unilaterally
chosen to change its method of measuring the outer limit of its “maritime
dominion”, does not mean that the agreement on lateral limits concluded in 1952,
prior to either of these developments, should now be interpreted as having
changed too.
988
See paras 6.1-6.6 above; and Counter-Memorial, paras 4.70-4.80.
989 See Case Concerning the Dispute Regarding Navigational and Related Rights
(Costa Rica v. Nicaragua), I.C.J. Judgment, 13 July 2009, para. 64.
257 Section 2. Peru’s Unilateral Change in measuring its Seaward
Projection cannot change the Agreed Southern Limit of its “Maritime
Dominion”
7.16. The parties to the Santiago Declaration envisaged claims further
seaward than 200M. In the end the Parties did not make such claims (again,
subject to Chile’s claim for an extended continental shelf where it exists), but
Peru’s claim was extended further seaward by a different mechanism: by
unilateral change of the method by which Peru measured the outer limit of the
200M.
7.17. As already noted, from 1947 Peru’s maritime zone was a form of tracé
parallèle following the sinuosities of the coastline 990. That was the extant
Peruvian claim at the time of the Santiago Declaration in 1952. In 2005, Peru
specified that thenceforth it would measure the outer limit of its “maritime
dominion” using an envelope of arcs of circles 991. Insofar as Peru’s recent choice
concerns the area to the north of the parallel of latitude of Hito No. 1, Chile
992
naturally does not object to it . What Chile does object to is Peru’s attempt to
use a unilateral change to the method of measurement of the outer limit of its
maritime zone to unsettle the lateral limit of that zone which has been agreed by
the Parties.
7.18. In its Memorial and in its Reply, Peru repeatedly asserts that
customary international law, as reflected in Articles 57 and 76 of UNCLOS,
confers on Peru exclusive “legal entitlements to a maritime area up to a distance
of 200 nautical miles” 993. Peru describes this as “the crucial point” 994. Its
990
See para. 2.46 above.
991 See para. 2.50 above.
992
See Counter-Memorial, para. 2.123.
993 Reply, para. 6.2. Also see Reply, paras 6.17-6.19, 6.23-6.24 and 6.34; and Memorial,
paras 7.3, 7.23, 7.25 and 7.38.
994
Reply, para. 6.2.
258arguments concerning the alta mar hinge on it. The point is unavailing for one
simple reason. Any theoretical distance-based entitlement that any State may
have under customary international law is subject to contrary agreement (or a
unilateral commitment to the same effect). No matter how Peru may unilaterally
decide to measure the outer limit of its 200M “maritime dominion”, now or in
the future, any Peruvian claim to any area south of the parallel of latitude passing
through the point where the land boundary reaches the sea is precluded by the
definitive lateral limitation on prospective maritime claims agreed by the Parties
in 1952 and confirmed in 1954.
7.19. Now that Peru does use the envelope-of-arcs-of-circles method, the
outer limit of its “maritime dominion” in the area north of the parallel of Hito
No. 1 has extended a further 166.4M seawards along that parallel, as depicted on
Figure 2 of Chile’s Counter-Memorial. The change in measurement has thus
2
brought a significant new portion of ocean space (approximately 190,026 km )
within Peru’s “maritime dominion”, north of the parallel of latitude constituting
the maritime boundary.
7.20. A diagram that forms part of an academic article upon which Peru
relies in its Reply illustrates the relationship between the alta mar area, the
parallel of latitude of the Chile-Peru maritime boundary, and the different outer
limits of Peru’s maritime zone produced by a tracé parallèle compared to an
envelope of arcs of circles. In the chapter of its Reply dealing with the alta mar
area, Peru relies on an article by Dr. Elferink of the Netherlands Institute for the
Law of the Sea at Utrecht University 99. Peru omitted to state that Dr. Elferink
specifically discussed at pages 149-152 and 187 of his article the alta mar area
under consideration in this case, indicating that the Santiago Declaration read
with Peru’s 1947 Supreme Decree created an alta mar area that is indeed high
seas. Dr. Elferink’s diagram is reproduced here as Figure 89.
995 A. G. Oude Elferink, “Does Undisputed Title to a Maritime Zone Always Exclude its
Delimitation: The Grey Area Issue” International Journal of Marine and Coastal
Law, Vol. 13(2), 1998, p. 143, cited at Reply, p. 311, footnote 592.
259 Section 3. Ecuador’s Straight Baseline and an Alta Mar Area
7.21. The understanding of the parties to the Santiago Declaration that the
parallels of latitude constituting the lateral limits of their maritime zones
continued to limit those zones, even where there was no abutting claim by the
adjacent State, may also be seen from the consequences of Ecuador’s adoption in
1971 of a straight baseline joining Puntilla Santa Elena and “the geographic
parallel constituting the maritime frontier with Peru” 996.
7.22. When in 1971 Ecuador adopted a straight-baseline system including a
baseline drawn from a continental headland to the intersection of its maritime
boundary with Peru, the effect was to project its 200M territorial sea further
seaward, into an area that was previously high seas. The area in question was
within a 200M envelope of arcs of circles from Peru’s coast, but on the northern
side of the parallel constituting the maritime boundary with Ecuador. It was an
area of 1,152 km . Peru now claims that by 1971 it was measuring its maritime
997
projection using an envelope of arcs of circles . If that were true, and if the
argument that Peru makes in the present case about the alta mar area were true,
then the 1,152 km of high seas that became Ecuadorean territorial sea in 1971
should already have been part of Peru’s “maritime dominion”. Yet Peru has
produced no evidence in these proceedings of ever having made a claim to any
area north of the boundary parallel.
7.23. Under the Santiago Declaration, Ecuador’s further seaward projection
was possible, and could not be opposed by Peru, because the parallel of latitude
agreed in Article IV of the Santiago Declaration had prevented any competing
Peruvian claim north of that parallel. Both accepted that Peru could not have
996 Supreme Decree No. 959-A of 28 June 1971, Annex 212 to the Counter-Memorial,
Art. 1(d). Also see United States Department of State, Office of the Geographer,
Limits in the Seas, No. 42: Straight Baselines: Ecuador, May 1972, Annex 213 to
the Counter-Memorial.
997
See para. 2.48 above.
260 Figure 89
Diagram showing the alta mar area by Dr. Elferink (1998)
Source: A. G. Oude Elferink, “Does Undisputed Title to a Maritime Zone Always Exclude its
Delimitation: The Grey Area Issue”, International Journal of Marine and Coastal Law, Vol. 13(2),
1998, p. 151claimed any alta mar area north of their boundary parallel, since their maritime
zones were laterally limited by the parallel established by the Santiago
Declaration, even where, prior to 1971, the adjacent State had no abutting claim.
This is illustrated by Figure 90.
Section 4. The Alta Mar Area is treated as High Seas
A. P ERU ’SC ONTROL OF S HIPS ENTERING PERU ’S“M ARITIME DOMINION ”
ACKNOWLEDGES THAT THE ALTA M AR AREA IS HIGH SEAS
7.24. Peru requires that any “national or foreign ship of any type that crosses
into Peruvian waters (200 miles) from the. . .southern parallel 18° 21' S. . .
transiting innocently or requesting to enter a Peruvian Port, is obliged to give its
position, course, speed and port of destination” to designated Peruvian
authorities and “while in Peruvian waters, [ships] must communicate their
position [to those authorities] each day at 0800 and 2000 hours.” This obligation
is policed by the Peruvian Navy, and publicized in the Sailing Directions that it
issues99. As discussed above999, this system uses the Hito No. 1 parallel as the
limit of the Peruvian “maritime dominion” for all vessels, of any type, navigating
in the Peruvian “maritime dominion” for any reason. The relevant point in
connection with the alta mar area is that the “southern parallel” applies to
998
See Directorate of Hydrography and Navigation of the Navy, Derrotero de la Costa
del Perú, 2nd edn, 1988, Annex 175 to the Counter-Memorial, sections 1.34 and
1.35, and Appendix A. Also see Directorial Resolution No. 347-91-DC/MGP of
20 December 1991 of the Directorate-General of Captaincies and Coastguard of
Peru, Annex 178 to the Counter-Memorial, Art. 1 and Appendix 1 to Annex (1);
Directorial Resolution No. 0313-94/DCG of 23 September 1994 of the Directorate-
General of Captaincies and Coastguard of Peru, approving the System of Information
on Position and Security in the Maritime Dominion of Peru, Annex 180 to the
Counter-Memorial, Annex (1), Art. 1; Directorate of Hydrography and Navigation
of the Navy of Peru, Derrotero de la Costa del Perú, Vol. II, 3rd edn, 2001,
Annex 193 to the Counter-Memorial, section 4.4, Arts 1 and 2 and Annex (3); and
a translation of Annex (2), Note to Annex (2) and Annex (3), 3rd case produced as
Annex 98 to this Rejoinder. For further discussion see Counter-Memorial,
paras 3.78-3.84.
999 See paras 3.59-3.63 above.
261passage from the alta mar area to Peru’s “maritime dominion”, just as it does
from Chile’s EEZ or territorial sea to Peru’s “maritime dominion”. The
“southern parallel” is the limit of any and all Peruvian maritime entitlement.
7.25. Peru has produced official model reports for mariners to use in
communicating with Peruvian authorities. In models produced in 1991 and 1994,
one of the points of entry into the Peruvian “maritime dominion” is
“1820.8S/07620W” 1000. This point, which is illustrated on Figure 91, is located
on the Hito No. 1 parallel, seaward of Chile’s maritime zones, with the alta mar
area to its south. Similarly, in the model produced in 2001, one of the points of
entry is listed as “1820S/07620W”; this point is also seaward of Chile’s maritime
zones, with the alta mar area to the south 100. In this way, Peru has confirmed
that the southern limit of its “maritime dominion” is at that parallel, and that the
area to the south of that parallel is high seas.
7.26. Vessels are obliged under Peruvian law to make these reports, and
they do so in practice. Examples include the following six reports made by
Chilean, Panamanian and Liberian vessels in 2005 and 2007 1002, shortly before
and after Peru’s adoption of the arcs-of-circles method in its 2005 Baselines
Law. These reports record crossings of the boundary parallel between the alta
mar area newly claimed by Peru and Peru’s existing “maritime dominion” —
1000
See Directorial Resolution No. 347-91-DC/MGP of 20 December 1991 of the
Directorate-General of Captaincies and Coastguard of Peru, Annex 178 to the
Counter-Memorial, Appendix 2 to Annex (1), 1st case; Directorial Resolution
No. 0313-94/DCG of 23 September 1994 of the Directorate-General of Captaincies
and Coastguard of Peru, approving the System of Information on Position and
Security in the Maritime Dominion of Peru, Annex 180 to the Counter-Memorial,
Appendix 1 to Annex (4).
1001
Directorate of Hydrography and Navigation of the Navy of Peru, Derrotero de la
Costa del Perú, Vol. II, 3rd edn, 2001, Annex 193 to the Counter-Memorial, p. 20,
Appendix to Annex (3), 1st case.
1002 See Emails from Foreign Vessels to Peru’s Directorate-General of Captaincies and
Coastguard reporting entry into or departure from Peru’s maritime dominion
pursuant to the SISPER, Annex 154. Also see Appendix B, which summarizes
recent records of reporting to the Peruvian authorities.
262 FigurFigure 90
The alta mar area between Peru and Ecuador, existing prior to Ecuador's declaration of straight baselines in 1971, shown on Ecuador's official nautical chart (No. IOA 42)
Ecuador's official nautical chart (No. IOA 42), which is agreed by Peru to depict their maritime boundary, with the following marks highlighted and superimposed:
(a) Highlighted marks
Parallel of the international maritime boundary as depicted on Ecuador's official nautical chart (No. IOA 42)
Ecuador's 200M limit as depicted on Ecuador's official nautical chart (No. IOA 42)
Ecuador's straight baselines as depicted on Ecuador's official nautical chart (No. IOA 42)
(b) Superimposed marks
200M using envelope of arcs of circles measured from Peru's coast
200M limit measured using envelope of arcs of circles in the southern area of Ecuador's maritime zone measured from Ecuador's coast
Alta mar area existing prior to 1971
Area absorbed into Ecuador's maritime zone subsequent to its declaration of straight baselines in 1971
Datum: WGS84 Projection: Mercator
Alta mar = 1,152 sq km
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancy Figure 91
Figure 91
Point of entry into Peru's "maritime dominion" as set out in Peru's official model reports for mariners
78°W 76°W 74°W 72°W 70°W
16°S 16°S
Peru
18°S 18°S
Chile
20°S 20°S
0 20 40 60 80 100 M
78°W 76°W 74°W 72°W 70°W
Parallel of the international maritime boundary
Sources: Directorial Resolutions issued by the Directorate-General of
200M limits
Captaincies and Coastguard of Peru in 1991 and 1994 (reproduced in 2001)
(see Annexes 178, 180 and 193 to the Counter-memorial)
Point of entry into Peru's "maritime dominion" as
set out in Peru's official model reports for mariners
Datum: WGS84 Projection: Mercator
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancythat is to say, they are crossings for which on Peru’s case no report would have
been required 1003. These crossings are illustrated on Figure 92.
(a) On 4 March 2005, the Cabo Vírgenes notified the Peruvian authorities
that it would depart Peruvian waters on the same day, at 18° 20' S,
76° 40' W.
(b) On 10 April 2005, the Posavina notified the Peruvian authorities that it
would enter Peruvian waters on the same day, at 18° 20' S, 75° 38' W.
(c) On 15 June 2005, the Posavina notified the Peruvian authorities that it
would enter Peruvian waters on the same day, at 18° 20' S, 76° 19' W.
(d) On 4 September 2005, the Posavina notified the Peruvian authorities
that it would enter Peruvian waters on the same day, at 18° 20' S,
76° 25' W.
(e) On 25 November 2005, the Podravina notified the Peruvian
authorities that it would enter Peruvian waters on the same day, at
18° 20' S, 75° 25' W.
(f) On 31 December 2007, the Glen Helen notified the Peruvian
authorities that it would enter Peruvian waters on the same day, at
18° 21' S, 76° 44' W.
7.27. All these reports indicate that a vessel was either exiting Peru’s
“maritime dominion” by crossing the parallel into the alta mar area, or entering
Peru’s “maritime dominion” by crossing the parallel from the alta mar area. All
1003 According to the coordinates given by Peru in Figure 2.4 to the Memorial (Vol. IV,
p. 15), any crossing of the boundary parallel of latitude at any point of longitude
between 73° 52' 55" W and 76° 46' 04" W would be a crossing between Peru’s
“maritime dominion” and the alta mar area Peru now claims.
263these vessels complied with the official directives issued by the Peruvian Navy,
and for that reason Peru neither did, nor could have, suggested that these vessels
should have given notification of entry into or exit from Peru’s “maritime
dominion” at a more southerly point, upon entry into or exit from the “outer
triangle”, which Peru now asks the Court to grant to it.
B. P ERU’S CONTROL OF A IRCRAFT ENTERING ITS“M ARITIME D OMINION ”
ACKNOWLEDGES THAT THE A LTAM AR AREA IS HIGH SEAS
7.28. Peru uses the parallel of latitude passing through the point where its
land boundary with Chile reaches the sea to control passage from the airspace
above its “maritime dominion” to the airspace above the alta mar area. The
Peruvian Law on Civil Aeronautics specifies that authorization is required for
“entry into, transit within and exit from” Peru’s airspace. Peru purports to
exercise “full and exclusive sovereignty” over the airspace above its entire
1005
“maritime dominion” . For this reason Peru’s use of the parallel is not simply
for the purposes of FIR Lima established pursuant to the Chicago Convention,
but rather as the limit of Peru’s purported sovereignty over the airspace covering
its 200M “maritime dominion”. Peru uses the entry and exit points on the flight
paths in FIR Lima as the entry and exit points from its “sovereign” airspace.
There are two such points on the Hito No. 1 parallel, at a longitude that makes
them crossing points between Peru’s “maritime dominion” and the alta mar area.
One of these, code-named IREMI, is located at 18° 21' 00" S, 75° 23' 00" W. The
other, code-named SORTA, is located at 18° 21' 00" S, 76° 18' 12" W0. These
can be seen on Figure 93.
1004
Law No. 27261 of 9 May 2000: Law on Civil Aeronautics, Annex 185 to the
Counter-Memorial, Art. 21.
1005 See Counter-Memorial, paras 2.170-2.172, 3.109-3.114 and 4.38-4.41.
1006
See air-route chart of Peru, reproduced as Figure 29 to the Counter-Memorial,
Vol. I, after p. 232.
264 Figure 92 92
Examples of entry into or departure from Peru's "maritime dominion" as reported by foreign vessels to the Peruvian authorities
76°W 74°W 72°W 70°W
Peru
18°S 18°S
Chile
20°S 20°S
76°W 74°W 72°W 70°W
0 25 50 75 100 M Parallel of the international maritime boundary
200M limits
Source: Emails from foreign vessels to Peru's Directorate of Captaincies reporting entry into or departure from Peru's "maritime Cabo Virgenes 4 March 2005 departing Peruvian waters
dominion" pursuant to the System of Information on Position and Security in the Maritime Dominion of Peru (SISPER) Glen Helen 31 December 2007 entering Peruvian waters
Podravinaa 25 November 2005 entering Peruvian waters
Posavina 10 April 2005 entering Peruvian waters
Posavinaa 15 June 2005 entering Peruvian waters
Posavinaa 4 September 2005 entering Peruvian waters
Datum: WGS84 Projection: Mercator
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancy Figure 93
Figure 93
Points of entry into and exit from Peruvian airspace adjacent to the alta mar alta mar
78°W 76°W 74°W 72°W 70°W
16°S 16°S
Peru
18°S 18°S
SORTA IREMI
Chile
20°S 20°S
78°W 76°W 74°W 72°W 70°W
Parallel of the international maritime boundary
0 20 40 60 80 100 M
200M limits
Points of entry into and exit from Peruvian airspace on Peru's Flight Information Region
Soource::Coorpoorción Peruana de Aeropuertos y Aviación Comercial S. A.,
Caarta de Navvegacción en Ruta (ENRC), Espacio Aéreo Superior 2008
Datum: WGS84 Projection: Mercator
Prepared for the Ministry of Foreign Affairs, Chile, by UKHO Law of the Sea Consultancy7.29. Peru has granted authorizations to Chile for flights entering and
exiting Peru’s “sovereign” airspace at point IREMI — that is, entering Peru’s
1007
airspace from the alta mar and exiting from Peru’s airspace into the alta mar.
One example is Chile’s request for authorization for overflight by an aircraft
transporting Chile’s peace-keepers to Haiti in December 2007, which passed
1008
through point IREMI on its outbound and return journeys . As with Peru’s
control of ships entering its “maritime dominion” from the alta mar area, Peru’s
control of aircraft entering its “sovereign” airspace above its “maritime
dominion” from the alta mar area demonstrates Peru’s acknowledgement that its
“maritime dominion” is limited at the parallel of latitude 18° 21' 00" S and that,
seaward of Chile’s maritime zones, Peru considers that parallel to divide its
“maritime dominion” from the high seas.
C. P ERUVIAN VESSELS T REAT THE A LTAM AR A REA AS H IGH SEAS
7.30. Consistently with Peru’s treatment of the alta mar as high seas,
Peruvian vessels reporting to Chilean authorities have referred to the alta mar
area as “international waters”. When requesting authorization to enter into and
traverse Chile’s EEZ to reach fishing grounds in the high seas to the west of
Chile’s EEZ, in the alta mar, Peruvian vessels have indicated that they were
exiting Chile’s EEZ to “international waters”. Similarly, Peruvian vessels
requesting authorization to enter Chile’s EEZ from the alta mar have indicated
1009
that they were approaching from “international waters” . Appendix C to this
1007 Examples of such authorizations are included as Annex 158 to the Counter-
Memorial.
1008
See Counter-Memorial, para. 3.113; and 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, Annex 110 to the
Counter-Memorial. The flight path is reproduced in Figure 30 to the Counter-
Memorial, Vol. I, after p. 232.
1009
See Transcripts of requests by Peruvian fishing vessels to cross Chile’s EEZ to reach
fishing grounds in the high seas, Annex 155.
265Rejoinder contains examples of requests from 2008 and 2009, with relevant
coordinates.
D. T REATMENT OF THE ALTA M ARA REA AS H IGH SEAS IN THE TRANSIT OF
SCIENTIFIC V ESSELS
7.31. Two buoys were recently deployed for scientific purposes in high seas
waters westward of Chile’s EEZ. Research vessels en route to these buoys from
Chile’s coast traverse the alta mar. These vessels seek Chile’s authorization to
traverse Chile’s EEZ. By contrast, so far as Chile is aware, the vessels have not
sought Peru’s authorization, as would have been required if Peru treated the alta
mar as part of its “maritime dominion”. The alta mar area has high-seas status.
7.32. Both buoys were deployed by the Woods Hole Oceanographic
Institution, which is based in the United States of America. The first buoy, which
was deployed in 2000, is a surface mooring at 20° S 85° W, used for
meteorological observations and to assess oceanic and atmospheric
variability01. Annual research cruises to the surface mooring, which are funded
by the National Oceanic and Atmospheric Administration of the US (NOAA),
have departed from Arica and transited through the alta mar since 200001. The
authorized route of the research vessel Melville, as depicted on Figure 34 in the
1012
Counter-Memorial , reproduced here for convenience as Figure 94, traversed
the alta mar area now claimed by Peru. The second buoy, which has been
1010 See Woods Hole Oceanographic Institution, Upper Oceans Processes, Technical
Report 04-01, “Stratus Ocean Reference Station (20° S, 85° W), Mooring Recovery
and Deployment Cruise, R/V Revelle Cruise Dana 03, November 10 - November 26,
2003”, Annex 152, p. 1.
1011
See, e.g., Note No. 081 of 26 April 2000 from the United States Embassy in Chile to
the Ministry of Foreign Affairs of Chile, Annex 92 to the Counter-Memorial; also
see SHOA Resolution No. 13270/37/VRS of 9 June 2000, Annex 146 to the
Counter-Memorial; Note No. 090 of 3 April 2003 from the United States Embassy
in Chile to the Ministry of Foreign Affairs of Chile, Annex 103 to the Counter-
Memorial; SHOA Resolution No. 13270/04/113/VRS of 23 July 2003, Annex 154
to the Counter-Memorial.
1012
Counter-Memorial, Vol. I, after p. 236.
266 Figure 94
Figure 94
Scientific voyage authorized by the Chilean Navy: R/VR/V Melville000)
Sketch-map in Note No. 081 of 26 April 2000 from the United States Embassy in Chile to the
Chilean Foreign Ministry, showing the proposed route of the research ship Melville. The route
within Chilean waters was authorized by SHOA.operational since 2003, is a tsunami-detecting device owned by the Chilean
Hydrographic and Oceanographic Service of the Chilean Navy 1013. It was
originally deployed at 19° 40' S, 74° 50' W 1014 and since 2010 it is located in the
1015
alta mar . This buoy, too, is serviced by the same vessels as the
1016
meteorological buoy . There is no indication that these vessels sought or
obtained permission from Peru to transit through the alta mar to reach the buoy.
The authorized route of the research vessel Ronald H. Brown, as depicted on
Figure 95, traversed the alta mar area.
Section 5. Peruvian Authors Acknowledge that the Alta Mar Area is
High Seas
7.33. In its Reply, Peru criticized Chile for having failed to pay sufficient
attention to a number of Peru’s “renowned authors in the field of the law of the
sea”, including Admiral Faura, Professor Ferrero Costa and Dr. Agüero
Colunga 1017. All these three authors have acknowledged that the alta mar area is
an area of high seas, in which Peru has never exercised any jurisdiction.
7.34. In his 1977 book, Admiral Faura noted that the “triangular-shaped
area” constituting the alta mar area was “omitted” from Peru’s maritime
1018
dominion, and was “not being currently considered as within our boundaries” .
He produced a sketch-map in which the alta mar area was specifically identified.
1013
See Woods Hole Oceanographic Institution, Upper Oceans Processes, Technical
Report 04-01, “Stratus Ocean Reference Station (20° S, 85° W), Mooring Recovery
and Deployment Cruise, R/V Revelle Cruise Dana 03, November 10 - November 26,
2003”, Annex 152, p. 55.
1014
Ibid., p. 56.
1015 See Report of Commission No. 3 of 2 December 2010, “Anchoring of Buoy Dart II”,
by Lieutenant Commander Andrés Enríquez Olavarría, Head of the Department of
Planning and Operations of SHOA, to the Director of SHOA, Annex 73, p. 3.
1016 See, e.g., Note No. 144 of 10 June 2004 from the United States Embassy in Chile to
the Ministry of Foreign Affairs of Chile, Annex 32. Also see SHOA Resolution No.
13270/04/212/VRS of 25 October 2004, Annex 72.
1017
See Reply, para. 3.180.
1018 G. Faura Gaig, El Mar Peruano y sus Límites, 1977, Annex 173, pp. 193-194.
267He described the area as being “south of the parallel of the point at which the
land frontier reaches the sea” 1019. Admiral Faura’s sketch-map is shown here as
Figure 96.
7.35. Admiral Faura’s sketch-map was reproduced, with some further
1020
annotations, in Professor Ferrero Costa’s work, in 1979 . Professor Ferrero
Costa’s map, which is reproduced here as Figure 97, depicts the alta mar area
shaded as “Zone B”. “Zone B” is shown as being to the south of Peru’s
“maritime dominion” measured according to the “Boundaries on the parallels
[Límites sobre los paralelos]”. The author explicitly acknowledged that Peru’s
delimitation of its maritime boundaries is a result of “the content of two
instruments. . .approved by the countries of the South Pacific, which are the
Declaration of Santiago of 1952 and the Agreement Relating to a Special
1021
Maritime Frontier Zone of 1954.” He stated that:
“The delimitation of the boundary to the South following
the geographic parallel, results in two zones located in
front of Peru’s coasts being outside of the jurisdiction of
1022
the Peruvian state” .
These zones were “Zone B”, which was the alta mar area, and “Zone A”, which
was the area within 200M of Chile’s coast located between the parallel of
latitude constituting the maritime boundary and a hypothetical equidistance line.
7.36. A similar sketch-map was included in Dr. Marisol Agüero Colunga’s
1023
2001 book . This sketch-map, which is reproduced here as Figure 98, depicts
1019 G. Faura Gaig, El Mar Peruano y sus Límites, 1977, Annex 173, p. 194.
1020
See E. Ferrero Costa, El Nuevo Derecho del Mar – El Perú y las 200 Millas, 1979,
Annex 174.
1021 Ibid., p. 379.
1022
Ibid., p. 382.
1023 See M. Agüero Colunga, Consideraciones para la delimitación marítima del Perú,
2001, Annex 157, pp. 242 (Diagram No. 15) and 322 (Diagram No. 22).
268Figure 95 Figure 96
Sketch-map of the Peruvian Sea and Its Boundaries by Admiral Faura (1977)
Source: Rear Admiral G. S. Faura Gaig, El Mar Peruano y sus Límites, 1977, inserted after
p. 144 (English translation and highlighting added) Figure 97
Sketch-map of the Peruvian Sea and Its Boundaries by Admiral Faura, reproduced by
Professor Ferrero Costa (1979)
Source: E. Ferrero Costa, El Nuevo Derecho del Mar, El Perú y las 200 millas, 1979, inserted
after p. 384 (English translation and highlighting added) Figure 98
“Situation of the maritime dominion of Peru in the southern zone”
Source: M. Agüero Colunga, Consideraciones para la Delimitación Marítima del Perú, 2001, p. 322 (English translation and highlighting added)the alta mar area (marked as area “D”) as the “[á]rea de nadie” or “no-one’s
1024
area”. The author stated that this area “remains part of the high seas” and that
1025
it is not within Peru’s “maritime zone” . She acknowledged that–
“the recovery of such extensions of sea would entail the
configuration of a situation which has not existed so far,
with consequences on the bilateral relation: a portion of the
sea adjacent to the coasts of Chile would no longer abut
the high seas and would start abutting the maritime
dominion of Peru.” 1026
7.37. To conclude, consistently with the practice of Peru, outlined in
Subsection 4 above, all three of these Peruvian authors on whom Peru relies
acknowledge that Peru does not exercise jurisdiction in the alta mar and has
never purported to exercise jurisdiction there. It is clear that in asking the Court
to give it the alta mar area, Peru is asking for something to which it currently has
no entitlement. It has no such entitlement because of the agreement that it
concluded with Ecuador and Chile in the Santiago Declaration of 1952.
Section 6. Implications of Absorption of the Alta Mar Area into Peru’s
“Maritime Dominion”
7.38. If the Court were to award the alta mar area to Peru, particular
difficulties would arise. Peru’s constitutionally-entrenched maritime zone is
more than the sum of a continental shelf and an EEZ; rather, it is an
undifferentiated 200M zone equal to a territorial sea, and is in fact widely
1027
understood to be such . This is discussed more fully at paragraphs 2.166-2.176
1024 M. Agüero Colunga, Consideraciones para la delimitación marítima del Perú, 2001,
Annex 157, p. 323.
1025 Ibid.
1026
Ibid., p. 324.
1027 See United Nations Division for Ocean Affairs and the Law of the Sea, Table of
Claims to Maritime jurisdiction, 2008, Annex 244 to the Counter-Memorial. Also
see D. P. O’Connell, The International Law of the Sea, Vol. I, 1982, Annex 298 to
the Counter-Memorial, p. 572; J. Castañeda, “Les positions des États Latino-
269of the Counter-Memorial. In particular, Peru purports to control entry, transit and
exit of all vessels, whatever the nature and purpose of their voyage, out to the
full 200M extent of its “maritime dominion”. Peru exercises the same kind of
control over all aircraft overflying its “maritime dominion”. This kind of control
is inconsistent with the EEZ and continental shelf régimes 1028.
7.39. Chile has without protest complied with these requirements in Peru’s
maritime zone, pursuant to the Santiago Declaration which is the foundation for
Peru’s requirements. Given that the opposability of Peru’s requirements vis-à-vis
Chile rests on the Santiago Declaration, Peru must also respect the spatial limits
within which it may impose such requirements under that Declaration. Peru must
observe the boundary parallel.
7.40. However, if the Court were to expand Peru’s “maritime dominion” so
that it wrapped around the northern part of Chile’s maritime zone, this would
impede access from Chilean waters to the high seas. And this for a significant
distance of 111M (measured in a north-south direction at the edge of Chile’s
maritime zone). This may be seen on Figure 2 of the Counter-Memorial 1029.
7.41. Any ship or aircraft wishing to enter the high seas from that northern
part of Chile’s maritime zones would need either to ask permission from Peru to
transit Peru’s “maritime dominion” or navigate around it, steaming up to 111M
south before being able to gain direct access to the high seas. This would create
significant practical difficulties. The centre of the Chilean city of Arica lies just
18 kilometres to the south of the land boundary with Peru. It has a major harbour
servicing fishing and other vessels. Arica is the primary port used by Bolivia, on
account of geographical proximity and special facilities there available for
Américains”, Actualités du droit de la mer, 1973, Annex 256 to the Counter-
Memorial, p. 159; R. Dupuy and D. Vignes (eds), A Handbook on the New Law of
the Sea, Vol. I, 1991, Annex 258 to the Counter-Memorial, p. 302.
1028
Cf. UNCLOS, Arts 56 and 78.
1029 Counter-Memorial, Vol. I, after p. 8.
270Bolivia by virtue of international commitments by Chile 1030. Arica’s Chacalluta
airport is also there. The significance of the fishing and fisheries industries based
at the port of Arica has already been explained at paragraphs 6.13-6.15 above.
7.42. Peru seeks to avoid the obvious difficulties of asking the Court to
expand a maritime zone that is neither recognized by nor compliant with
customary international law by using language in its submissions that does
comply with customary international law. In its first submission, Peru asks the
Court to delimit “the respective maritime zones” of the Parties. In its second
submission, concerning the alta mar area, Peru borrows the language of
UNCLOS, to which it is not party, and asks the Court to declare that it is
“entitled to exercise exclusive sovereign rights” in that area 103. Yet, consistently
with its Constitution, what Peru would actually do is extend its “maritime
dominion” into that area.
7.43. Peru has crafted its submissions such that, in a formal sense, the Court
could remain neutral on the characteristics of Peru’s “maritime dominion”.
Given that any part of the alta mar area awarded to Peru would be inevitably
subsumed within its “maritime dominion”, Chile submits that the Court should
heed not only the formal content of the submissions made to it, but also the
consequences that would ineluctably flow from them as a matter of domestic
constitutional law.
7.44. Peru also seeks in its Reply to argue that its “maritime dominion” is
compliant with customary international law. As already noted, key aspects of this
1032
assertion are debatable . It is sufficient to reiterate here that on no possible
1030 See Counter-Memorial, para. 1.20.
1031 Reply, p. 331.
1032
See para. 7.38 above and the references there.
271view is controlling airspace beyond a 12M territorial sea compliant with
international law 1033.
7.45. In arguing that its “maritime dominion” is consistent with international
law, at paragraph 21 of its Reply Peru relies on Article 54 of its 1993
Constitution, which states that Peru “exercises sovereignty and
jurisdiction. . .without prejudice to the freedoms of international
communications, in conformity with the law and the treaties ratified by the
1034
State.” Reliance on this highly unspecific provision does not assist Peru at all,
for one obvious reason. Peru has not ratified UNCLOS, and so this constitutional
provision cannot even purport to be in compliance with it.
7.46. Moreover, Peru’s present description of its domestic law appears to be
unreliable. It is contradicted by a 2004 Report of the Foreign Affairs Committee
of the Congress of Peru, which concluded that UNCLOS was inconsistent with
Peru’s Constitution and thus Peru’s accession to UNCLOS would require
constitutional reform. The Report, which Peru failed to produce to the Court,
states:
“[T]he maritime and air space comprised within the two
hundred miles, in accordance with the Constitution in
force, is ‘Territory of the State’, which does not fit with a
mere acknowledgement of the ‘Exclusive Economic Zone’
to which the Convention refers and which only applies to
the sea.”1035
1033 See UNCLOS, Art. 58.
1034 Political Constitution of Peru, Annex 179 to the Counter-Memorial, Art. 54.
1035
Report of the Foreign Affairs Committee of the Congress of the Republic concerning
Draft Legislative Resolution No. 813/2001-CR, which proposes the approval of the
accession of Peru to the United Nations Convention on the Law of the Sea and the
Agreement Relating to the Implementation of Part XI of said Convention, approved
on 4 October 2004, Annex 99, p. 24.
2727.47. The Report quotes with approval the writings of Alfonso Benavides
Correa, a Peruvian publicist, who states that by acceding to UNCLOS, “Peru
would reduce the breadth of its 200-nautical mile territorial sea to 12” 1036, and
would thereby “convert 188 miles of its mutilated national maritime dominion
into a multinational maritime condominium maliciously called ‘Exclusive
Economic Zone’” 1037. He is quoted as noting that by acceding to UNCLOS Peru
would “likewise mutilate the airspace at present above its 200-mile maritime
1038
dominion” . There is no question about the authoritativeness of the Foreign
Affairs Committee of the Congress of Peru. Peru has relied on a report of this
same body as evidence in these proceedings 103.
7.48. The inconsistency between Peru’s “maritime dominion” and an
UNCLOS-compliant regime is no secret. Having strongly advocated a
“territorialist” position throughout the nine years of the Third United Nations
Conference on the Law of the Sea (and in fact its preparatory stages as well 1040),
Peru explained its difficulty with the final text of UNCLOS at the end of that
Conference. Ambassador Arias-Schreiber, the leader of Peru’s delegation, stated
that–
“the provisions of the draft convention concerning the
territorial sea and the exclusive economic zone and their
1036 Report of the Foreign Affairs Committee of the Congress of the Republic concerning
Draft Legislative Resolution No. 813/2001-CR, which proposes the approval of the
accession of Peru to the United Nations Convention on the Law of the Sea and the
Agreement Relating to the Implementation of Part XI of said Convention, approved
on 4 October 2004, Annex 99, p. 26 (emphasis added).
1037 Ibid., p. 27.
1038
Ibid.
1039 See Reply, paras 3.163 and 3.126.
1040
See, e.g., United Nations General Assembly, Report of the Committee on the
Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National
Jurisdiction, Vol. V, document SC.II/WG/Paper No. 4, Territorial Sea, 1973,
Annex 124, pp. 18-19. Peru proposed, together with Ecuador and Panama,
“sovereignty and jurisdiction” to a distance of 200M over waters, airspace, seabed
and subsoil.
273 relation to air space affected Peru’s juridical and
constitutional norms, and he therefore wished to state that
he had voted in favour of the draft convention ad
referendum and on condition that the conflict involving
those norms could be resolved in accordance with the
1041
procedures laid down in the constitution of Peru.”
7.49. The conflict has evidently not been resolved. Peru’s “maritime
dominion” does not comply with international law. The Court should not
authorize Peru’s attempt to wrap its “maritime dominion” around the
northernmost 111M of Chile’s EEZ. It would be to the detriment not only of
Chile, but also of the international community, to transform this significant area
of high seas into Peru’s “maritime dominion”.
7.50. Clearly, except for the purposes of this case, Peru does not consider its
“maritime dominion” to be consistent with customary international law as
reflected in the provisions of UNCLOS concerning the EEZ and the continental
shelf, and in particular with the rights and freedoms that third States are entitled
to exercise in these zones of another State. This being the case, customary
international law on the EEZ and the continental shelf can be of no assistance to
Peru in laying claim to the alta mar. The claim is inadmissible 104.
Section 7. Alta Mar Situations are Possible in Law and Occur in Practice
7.51. A situation is possible in law where one State’s theoretical distance-
based entitlement to a maritime zone is precluded by an agreed limit even where
the adjacent State does not have the same type of maritime zone, or any maritime
zone at all, on its side of that line. Such situations do in fact occur in practice,
where the boundary is not a perfect equidistance line.
1041
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 to the Counter-Memorial, para. 90.
1042 See Counter-Memorial, para. 1.74.
2747.52. Contrary to Peru’s assertion 104, there is no need for “express
renunciation” or “evidenced acquiescence” to create this result. It is simply a
consequence of the agreement between the parties, or the judgment or award of a
court or tribunal. As is evident from the following examples, and from common
sense, international law presumes against a situation where the maritime zone of
one State wraps around the outer limit of the maritime zone of an adjacent State,
and so occludes the latter zone from access to the high seas. It also presumes in
favour of full delimitations between adjacent States.
7.53. In the 1984 agreement between Argentina and Chile, two segments of
the maritime delimitation line follow meridians of longitude, and the segment
between them follows a parallel of latitude 1044. Figure 10 of the Counter-
1045
Memorial is reproduced here for convenience as Figure 99, with the addition
of a hypothetical equidistance line. This illustrates that there is an area of
26,200 km which is within 200M of Chile’s baselines, beyond 200M of
Argentina’s baselines, and lies to the east of the meridian designated as the final
1046
sector of the maritime boundary . This area is high seas, though within a
200M radius of Chile’s coast. The relevant provision of the 1984 agreement
states:
“To the south of the end of the boundary (point F), the
exclusive economic zone of the Republic of Chile shall
extend, up to the distance permitted by international law,
to the west of the meridian 67°16.0' West longitude,
ending on the east at the high sea.” 1047
1043 See Reply, paras 6.31-6.34.
1044
See Counter-Memorial, para. 2.125.
1045 Counter-Memorial, Vol. I, after p. 106.
1046
Also see Figure R-6.1 to the Reply, Vol. III, p. 97.
1047 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 to the Counter-Memorial, Art. 7.
275Contrary to Peru’s assertions, there is no language of “express renunciation” 1048
1049
or “cession” in this provision. And Chile, Argentina and third States who
exercise fishing rights in this alta mar area all accept that as a consequence of
the agreement between the parties, this is an area of high seas.
7.54. The analogy with the present case is clear: in the same way that the
selection of the meridian as the maritime boundary between Argentina and Chile
precludes Chile’s distance-based entitlement east of the boundary meridian, the
selection of the parallel of latitude as the maritime boundary by Chile and Peru
precludes any distance-based entitlement of Peru south of the parallel.
7.55. There are other examples from treaty practice where two States have
agreed a maritime boundary which results in one State’s theoretical distance-
based entitlement being partially precluded by the agreed boundary line although
the other State has no abutting maritime zone. The following examples are
illustrative:
(a) The 1975 agreement between Colombia and Ecuador establishes a
maritime boundary along “the line of the geographic parallel
traversing the point at which the international land frontier between
Ecuador and Colombia reaches the sea” 105. This agreed boundary
2
leaves an alta mar area of some 900 km on the Ecuadorean side of the
parallel, which is beyond 200M from Ecuador’s baselines but within
200M of Colombia’s. The agreement has the effect of precluding
Colombia’s distance-based entitlement as a result of the agreed
delimitation line.
1048
Reply, para. 6.31.
1049 Ibid., para. 6.33.
1050
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
to the Counter-Memorial, Art. 1.
276 FigFigure 99
Alta mar area arising from the agreed maritime boundary between Chile and Argentina with hypothetical median line
78°W 75°W 72°W 69°W 66°W 63°W
54°S 54°S
Chile Argentina
57°S 57°S
Maritime boundary
Alta mar
area 266,2000 km²
200M limits
Alta mar area not claimed by Chile
Hypothetical median line from entrance of Beagle Channel
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).
The hypothetical median line from the entrance to Beagle Channel to the 200M limit has been added for comparison.
Prepared for the Ministry of Foreign Affairs, Chile, by Marine Delimitation Ltd.(b) Similarly, the 1972 agreed boundary between Brazil and Uruguay,
which is described to run “at an azimuth of [128] sexagesimal degrees
(from true north), to the outer limit of the territorial sea of both
1051 2
countries” , leaves an alta mar area of 24 km on the Brazilian side
of the azimuth, which is within 200M of Uruguay’s baselines and
beyond 200M of Brazil’s baselines. This area is also high seas, again
by virtue of the delimitation agreement.
(c) An alta mar area of some 760 km is created by the maritime
delimitation agreement between Brazil and French Guiana, by the
establishment of a “maritime delimitation line, including that of the
1052
continental shelf” along an azimuth . The area is within 200M of
Brazil’s baselines. If the area were absorbed into Brazil’s maritime
zone, it would impede access to the high seas from a 47M stretch of
French Guyana’s EEZ. The use of the azimuth in the agreement
prevents such a cut-off, and the area in question is high seas.
(d) The 1975 agreement between Kenya and Tanzania, which established
a boundary “extending eastwards to a point where it intersects the
outermost limits of the territorial water boundary or areas of national
jurisdiction of two States” 105, leaves an area of 111 km outside
1051 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 to the
Counter-Memorial. Both States claimed a territorial sea of 200 miles.
1052 Maritime Delimitation Treaty between the Federative Republic of Brazil and the
French Republic, signed at Paris on 30 January 1981, 1340 UNTS 7 (entered into
force on 19 October 1983), Annex 7, Art. 1.
1053 Exchange of Notes between the United Republic of Tanzania and Kenya Concerning
the Delimitation of the Territorial Waters Boundary between the Two States, signed
on 9 July 1976, United States Department of State, Office of the Geographer, Limits
in the Seas, No. 92 (July 1981), Annex 6, Art. 2(d).
277 Tanzania’s maritime zones, on the Tanzanian side of the boundary
line, within 200M of Kenya’s baselines.
7.56. In addition to these analogous alta mar situations created by
agreements, decisions of arbitral tribunals establishing maritime boundaries have
resulted in one State’s full theoretical distance-based entitlement being precluded
by the boundary line.
(a) The 1909 award of the tribunal in the Grisbådarna arbitration between
Norway and Sweden created an alta mar area of 10.8 km . This area
was within four nautical miles of Norway’s coast, beyond four nautical
miles from Sweden’s coast, and it fell on the Swedish side of the
tribunal’s line. Norway’s theoretical entitlement to a 4M territorial sea
in the alta mar area was precluded by the tribunal’s boundary line, and
this area was therefore high seas 105. It is clear from the pleadings of
the parties in that case that the Tribunal had been made aware that this
would be the effect of the application of any non-equidistant line as
the maritime boundary 1055, and it chose to create a full delimitation
between the parties.
(b) A similar situation was created by the arbitral award in the maritime
delimitation between Guinea and Guinea-Bissau. The all-purpose
maritime boundary established by the tribunal, in its final segment,
“[s]uit une ligne loxodromique d’azimut 236°. . .jusqu’à la limite
extérieure des territoires maritimes reconnue à chaque Etat par le droit
1054
See The Grisbådarna Case (Norway v. Sweden), Award, 23 October 1909, 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 to the Counter-Memorial.
1055
See The Grisbådarna Case (Norway v. Sweden), Pleadings of Norway and Sweden,
Annex 145, Norway’s Memorial, pp. 12-13; Norway’s Counter-Memorial, p. 9;
Sweden’s Counter-Memorial, p. 312.
278 international général.” 1056This boundary created an alta mar area of
2
3,100 km on Guinea’s side of the azimuth, beyond 200M from
Guinea’s baselines and within 200M of Guinea-Bissau’s baselines.
The area is high seas. As is the case with the other examples
mentioned above, a full delimitation has been accomplished.
7.57. The foregoing examples of other alta mar situations demonstrate that a
State’s full theoretical distance-based maritime entitlement can be precluded by a
non-equidistant boundary line in areas where the adjacent State has no abutting
maritime zone. This has been done by agreement and by curial decision. No
“express renunciation” or “evidenced acquiescence” is necessary 105. The high
seas status of the examples of alta mar areas discussed above is simply a
consequence of the delimitation line. In contrast to the practice and authority set
out immediately above, Peru has been unable to produce a single instance of a
maritime boundary between adjacent States that has been interpreted as creating
a situation in which an area on one side of the boundary line is deemed to belong
to the State on the other side of that line. Because of the obvious difficulties that
such a wrap-around situation would create, there are none.
1056 Case Concerning the delimitation of the maritime boundary between Guinea and
Guinea-Bissau, Decision, 14 February 1985, RIAA, Vol. XIX, para. 130.
1057
Cf. Reply, para. 6.31.
279 CHAPTER VIII
SUMMARY
8.1. 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.
8.2. In 1947 Chile and Peru each unilaterally proclaimed sovereignty over
a maritime zone having a seaward breadth of 200M. The 1947 Peruvian Supreme
Decree explicitly set forth that Peru’s maritime zone was to be measured
“following the line of the geographic parallels”. Using this method, Peru’s zone
was bounded in the south by a line following the parallel of latitude of the point
where Peru’s land boundary with Chile reaches the sea. Peru formally notified
Chile of its proclamation. Chile acknowledged it without objection.
8.3. Thus, when Chile and Peru concluded the Santiago Declaration in
1952, their maritime zones abutted, but did not overlap. Delimitation was
accordingly a straightforward exercise. In Article II of the Santiago Declaration
the States parties claimed maritime zones of exclusive sovereignty and
jurisdiction. In Article III they specified that this encompassed “exclusive
sovereignty and jurisdiction over the seabed and subsoil thereof”. In Article IV
of the Santiago Declaration the States parties delimited their maritime zones of
sovereignty and jurisdiction using the “parallel at the point at which the land
frontier of the States concerned reaches the sea”. The boundary parallel applied
to all zones, both continental and insular. This interpretation of the Santiago
Declaration is confirmed in the 1952 Minutes, in which the representatives of
Chile, Ecuador and Peru recorded their agreement that Article IV of the Santiago
Declaration would 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 the borders of the countries touches or reaches the sea.” Since islands
were granted a 200M radial projection, delimitation of islands lying within 200M
of the maritime boundary required particular attention. In Article IV of the
280Santiago Declaration the States parties agreed that such insular zones were cut
short where they met the general maritime boundary.
8.4. That all three States parties to the Santiago Declaration adopted that
same interpretation of Article IV was confirmed in agreed minutes of their inter-
State conference in 1954 which resulted in a suite of international treaties
complementing those of 1952. Chile, Ecuador and Peru recorded their agreement
that they “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”. The Peruvian delegate
specifically remarked that this agreement had been reached in the 1952 Santiago
Declaration.
8.5. One of the treaties the three States concluded at the 1954 Conference
was the Agreement Relating to a Special Maritime Frontier Zone. That
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
boundaries were “deemed to be an integral and supplementary part of, and in no
way to deviate from” the Santiago Declaration. In the Agreement Relating to a
Special Maritime Frontier Zone, the States parties confirmed their existing
boundaries by creating zones of tolerance on either side of them.
8.6. In 1968 and 1969 Chile and Peru agreed to signal the precise course of
their maritime boundary by building two lighthouses aligned on the parallel of
latitude of Hito No. 1. This boundary marker is the most seaward point of the
land boundary with the coordinates agreed between the Parties, and a point
which the two States had agreed in 1930 to place on the “seashore”, as the most
seaward demarcated point of their land boundary. A Chile-Peru Mixed
Commission of 1968-1969 recorded that its task had been to “physically mark
the parallel that passes through. . .Hito No. 1”. This was in accordance with the
express terms of an agreement between the Parties in the form of an exchange of
281notes in August 1968. This parallel was to be physically marked “in order to
signal the maritime boundary”. The parallel constituting the maritime boundary
was agreed to have the astronomical latitude of 18° 21' 03" S. When referred to
WGS84 Datum, this is a latitude of 18° 21' 00" S.
8.7. Chile and Peru have acknowledged and enforced in practice their
agreed maritime boundary, on a bilateral basis and by unilateral action, over the
course of half a century. A significant example of bilateral acknowledgement is
the agreed signalling exercise of 1968 and 1969, recalled above. A prominent
example of Peruvian confirmation of the boundary is that in its 1955 Supreme
Resolution, issued shortly before the approval of the Santiago Declaration by
Peru’s Congress, 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.”
8.8. An example of Chilean enforcement is that the Rules of Engagement
of the Chilean Navy have relied on the parallel of latitude of the point where the
land boundary reaches the sea as the maritime boundary.
8.9. Chile and Peru have committed themselves to naval and maritime
cooperation and have had peaceful enjoyment of their respective maritime areas
on either side of their settled boundary over a long period. In their official
correspondence concerning enforcement of the maritime boundary in response to
transgressions by private vessels, both States have acknowledged the existence
of their agreed maritime boundary. As of 1995 such transgressions are addressed
282through an agreed procedure whereby vessels found on the wrong side of the
parallel are escorted to, and handed over to authorities of the other Party, at the
parallel.
8.10. Not only have Chile and Peru confirmed their agreed maritime
boundary over time, the existence of that agreed boundary has also been
consistently acknowledged by the United Nations, through its Division for Ocean
Affairs and the Law of the Sea, by the Permanent Commission of the South
Pacific (CPPS), by third States in a variety of contexts, and by a plethora of
respected publicists from a diversity of legal traditions.
8.11. Ecuador is the other State party to the Santiago Declaration and to the
Agreement Relating to a Special Maritime Frontier Zone. Ecuador has
consistently adopted the same interpretation of those treaties as Chile, and has
rejected Peru’s recent attempts to recharacterize them as being (i) non-binding,
or (ii) applying only with respect to islands, or (iii) limited to fisheries
jurisdiction.
8.12. Peru’s alternative claim, to the alta mar area, asks the Court to extend
Peru’s “maritime dominion” into an area of high-seas that wraps around the
northernmost 111M of Chile’s EEZ. Under the Santiago Declaration, the parallel
of latitude was agreed as a complete delimitation. Peru can have no maritime
zone on the Chilean side of the boundary parallel. That the boundary parallel is a
complete and definitive delimitation of any and all claims by Peru, excluding
such problematic wrap-around, is consistent with the practice of States and
international judicial bodies in agreeing or fixing maritime boundaries.
8.13. In sum, Peru attempts to convince the Court to redraw a long-settled
maritime boundary. To do so, Peru, having repeatedly acknowledged the
existence of that boundary for many decades, now claims before the Court that
no agreement on the boundary was ever reached. Peru mischaracterizes or
ignores the abundance of evidence that contradicts the case that it has contrived.
283Peru asks the Court to act contrary to two elemental rules of international law:
pacta sunt servanda and the stability of boundaries. Article 38(1) of the Court’s
Statute provides that the Court shall apply international conventions applicable
between the Parties before it. The governing agreement in this case sets forth the
maritime boundary which was agreed between Chile and Peru in 1952 and then
confirmed on numerous subsequent occasions over the course of more than 50
years.
284 CHAPTER IX
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
11 July 2011
285APPENDIX A: HISTORICAL DEVELOPMENT OF TECHNIQUES
TO MEASURE THE OUTER LIMIT OF MARITIME
ZONES
A.1 In the years that preceded the extensive offshore claims made by the
United States, Mexico, Argentina, Chile and Peru between 1945 and 1947, the
law of the sea issues that preoccupied the international community were those
that related to the narrow belts of territorial sea of the time. The quest for
agreement on the breadth of the territorial sea was at the forefront. However,
positions on this question were complicated by uncertainties about other matters,
including the location of the baseline from which the breadth of the territorial sea
was to be measured, and whether bays, islands, rocks and shoals should be
treated either as having or not having an effect on this measurement. Also
associated with the baseline questions were questions about the technique to be
employed to determine the outer limit of the territorial sea—that is, the limit
between the territorial sea and the high seas. These were central questions of
importance for the coastal State.
A.2 Of course, the Truman Proclamation claim to the continental shelf was
quickly embraced and it dramatically changed the scope of the law of the sea
questions before the international community after 1945.
A.3 This Appendix examines the issue of the techniques that might be
employed to determine the limit between the high seas and a distance-based zone
of jurisdiction (whether it be a 3M or 200M zone, the issue is the same) as that
issue stood in 1947 and 1952. The purpose is to ascertain what information on
these techniques was available to the officials in Chile and Peru in 1947 and the
diplomats who negotiated the Santiago Declaration in 1952. In 1952 the arcs-of-
circles method (promoted by geographers and hydrographers) had not yet
achieved general recognition and was less well-known than the tracé parallèle
method (promoted by lawyers and diplomats) which described an outer limit of
the territorial sea following the sinuosities of the coast.
286A.4 The officials of Chile and Peru in 1947, and the diplomats who met at
Santiago in 1952, did not have the benefit of three United Nations Conferences
on the Law of the Sea in 1958, 1960, and 1973-1982, nor the Conventions that
resulted from those Conferences. There was no codification of the method of
seaward projection in 1947 and 1952. Those officials and diplomats could only
have had access to the writings of certain publicists, two arbitrations concerning
bays that addressed the question of how to measure the outer limit of a distance-
based zone of jurisdiction, the reports from the 1930 Hague Conference, the
Judgment of the Court in the 1951 Anglo-Norwegian Fisheries case, and the
reports of the work of the first four sessions of the International Law
1
Commission (ILC) in 1949, 1950, 1951 and 1952 . All of the subsequent work
of the ILC concerning the law of the sea, in particular its reports and
recommendations for the First UN Conference on the Law of the Sea, and the
1953 report of the Technical Committee advising it, was unknown to those
officials and diplomats.
A.5 This Appendix reviews the documents and authorities relevant to the
technique for determining the boundary between the high seas and a distance-
based zone of jurisdiction available in 1952 in chronological order, beginning
with the North Atlantic Coast Fisheries arbitration of 1910 and the Gulf of
Fonseca judgment of 1917, and ending with the work of the ILC up to August
1952.
The North Atlantic Coast Fisheries arbitration and the Gulf of Fonseca
judgment
A.6 In the early 20th century, there were two international arbitrations that
addressed bays: the North Atlantic Coast Fisheries arbitration and the Gulf of
Fonseca case. In both of these cases the question arose as to how the outer limit
of a distance-based zone of jurisdiction should be determined. The answer in
1 The 1952 session of the ILC was held from 4 June to 8 August, with discussion of
matters relating to the law of the sea between 15 and 25 July.
287both cases was that the outer limit should be determined to run parallel to the
coastal configuration—as was said in one case “following the sinuosities of the
2
coast” , or, as was said in the other case, following “the contours of the
3
respective coasts” . This conceptualization of an outer limit that mirrored the
coastal configuration gave rise to the tracé parallèle methodology.
A.7 The Award of the Tribunal in North Atlantic Coast Fisheries referred to
the rule that the outer limit of the three mile zone was to follow the sinuosities of
the coast. It held:
“In [the] case of bays the three marine miles are to be
measured from a straight line drawn across the body of
water at the place where it ceases to have the configuration
and characteristics of a bay. At all other places the three
marine miles are to be measured following the sinuosities
of the coast.”4
A.8 The Central American Court of Justice in the Gulf of Fonseca case
formulated the question as follows:
“Thirteenth Question.— What direction should the
maritime inspection zone follow with respect to the coasts
of the countries that surround the Gulf?”
2 The North Atlantic Coast Fisheries Case (Great Britain, United States), Award,
7 September 1910, RIAA, Vol. XI, p. 199.
3
El Salvador v. Nicaragua, Central American Court of Justice, Judgment, 9 March
1917, translated and reprinted in American Journal of International Law, Vol. 11,
1917, Annex 146, p. 693.
4
The North Atlantic Coast Fisheries Case (Great Britain, United States), Award,
7 September 1910, RIAA, Vol. XI, p. 199.
288The majority, consisting of Judges Medal, Oreamuno, Castro Ramírez and
Bocanegra, answered that the zone should follow the contours of the respective
5
coasts, as well within as outside the Gulf .
6
A.9 As was later pointed out by proponents of the arcs-of-circles method ,
this was a landsman way of viewing the matter: for every coastal irregularity
there should be a corresponding irregularity in the outer limit. A navigator would
see the matter differently, asking always the simple question of whether the arc
of a circle that reflected the breadth of the territorial sea drawn from his position,
intersected any part of the coast. If so, he was in the territorial sea; if not, he was
on the high seas. But it was many years before the arcs-of-circles method became
a recognized method embodied in the 1958 Convention on the Territorial Sea
and the Contiguous Zone. Until then, tracing the outer limit to follow the
sinuosities of the coast was the common formulation.
The 1920s
A.10 During the 1920s there were several initiatives by various learned
associations, institutes and committees to develop a code of maritime
jurisdiction. In 1926, the International Law Association (ILA) developed a Draft
Convention on the Law of Maritime Jurisdiction in Time of Peace. This draft did
not specify the method to be used to identify the limit between territorial waters
and the high seas, except that in connection with bays and gulfs the draft refers to
7
the limit as following the sinuosities of the coast .
5
See El Salvador v. Nicaragua, Central American Court of Justice, Judgment,
9 March 1917, translated and reprinted in American Journal of International Law,
Vol. 11, 1917, Annex 146, p. 693.
6
See S. Whittemore Boggs, “Delimitation of the Territorial Sea: The Method of
Delimitation Proposed by the Delegation of the United States at the Hague
Conference for the Codification of International Law”, American Journal of
International Law, Vol. 24, 1930, Annex 188, pp. 543-544.
7 See International Law Association, “Draft Convention on Law of Maritime
Jurisdiction in Time of Peace, 1926”, American Journal of International Law Special
Supplement, Vol. 23, 1929, Annex 112, p. 374, Art. 7.
289A.11 At the time, the rules relating to bays were very much in flux. Were
closing lines allowed, and if so how long could they be? Also, what was the
character of the water landward and seaward of the closing line? In this context,
it is unsurprising that the 1926 ILA Draft Convention focused on the rules
pertaining to bays, rather than enunciating a rule of general application. The
Draft Convention took a conservative approach: there is no reference to closing
lines in the text, or to the possibility that some waters of the bay might be
internal waters. Thus, under this Draft Convention the waters of a bay would be
formed only of a belt of territorial waters following the sinuosities of the coast
and high seas. It is implicit in the specific rule that the belt of territorial waters
along the coast outside of the geographical bay would also follow the sinuosities
of the coast.
A.12 The same approach was followed in the “Amended Draft Convention
communicated to various Governments by the League of Nations Committee of
Experts for the Progressive Codification of International Law, with
Questionnaire No. 2, 29 January 1926”. The implicit understanding that the belt
of territorial waters, in general, follows the sinuosities of the coast is once again
seen in the treatment of bays. This Draft Convention refers to the belt of
territorial waters as following the sinuosities of the coast , though in this instance
a 10M closing line was provided for.
A.13 This pattern was followed again in the 1927 submission of the American
Institute of International Law to the International Commission of Jurists at Rio
9
de Janeiro .
8
See League of Nations, “Amended Draft Convention communicated to various
Governments by the League of Nations Committee of Experts for the Progressive
Codification of International Law, with Questionnaire No. 2, 29 January 1926”,
document C.196.M.70.1927.V, reproduced in American Journal of International
Law Special Supplement, Vol. 23, 1929, Annex 111, p. 366, Art. 4.
9
See American Institute of International Law, “Project No. 10 on ‘National Domain’
submitted to the International Commission of Jurists at Rio de Janeiro”, Apri1 1927,
American Journal of International Law Special Supplement, Vol. 23, 1929,
Annex 113, p. 370; see, e.g., Art. 6 (bays).
290A.14 A similar approach was taken at the 1928 Stockholm Session of the
Institut de Droit International in its “Projet de Règlement relatif à la Mer
Territoriale en temps de paix”. Article 3 provided in relevant part:
“Pour les baies dont les eaux baignent des territoires
appartenant à deux ou plusieurs Etats, la Mer Territoriale
10
suit les sinuosités des côtes.”
A.15 Another text of the time, the “Rules Concerning the Extent of Littoral
11
Waters and of Powers Exercised therein by the Littoral State” prepared by the
Japanese Institute of International Law in 1926, made no reference to the means
to determine the line dividing the “littoral waters” from the high seas, in the
context of bays or otherwise. There was no attempt to define how the outer limit
of “littoral waters” should be drawn.
A.16 In 1927 Philip Jessup published his seminal work, The Law of Territorial
Waters and Maritime Jurisdiction. In respect of the determination of the outer
limit of territorial waters, Jessup simply assumed that limit to be parallel to the
sinuosities of the coast; in other words he assumed that the tracé parallèle
method was the normal rule, although he did not use the term. This assumption
was reflected in his chapter on bays where he discusses options for closing
bays . He said:
“The first of these [options] is a strict application of the
usual three-mile limit of territorial waters. Under this rule
10 Institut de Droit International, “Projet de Règlement relatif à la Mer Territoriale en
temps de paix”, Session de Stockholm, Annuaire de l'Institut de Droit International,
1928, Annex 114, p. 756.
11
See Drafts prepared by the Kokusaiho-Gakkwai (l’Association de Droit International
du Japon) in conjunction with the Japanese branch of the International Law
Association, “Rules Concerning the Extent of Littoral Waters and of Powers
Exercised therein by the Littoral State”, July 1926, reproduced in American Journal
of International Law Special Supplement, Vol. 23, 1929, p. 376.
12
As noted at para. A.11 above, at the time, the issue most often arose in the context of
an exception to a bay closing line rule.
291 the line of territorial waters would be traced three miles
from shore, following all indentations of the coast.” 13
A.17 That Jessup assumed this to be the rule — that is, tracé parallèle
following the sinuosities of the coast — is not surprising. He referred to the 1884
Regulations proposed by the Institut de Droit International:
“Article 3:
For bays, the territorial sea follows the sinuosities of the
coast, except that it is measured from a straight line drawn
across the bay at the place nearest the opening toward the
sea where the distance between the two sides of the bay is
12 marine miles in width, unless a continued usage of long
standing has sanctioned a greater breadth.” 14
He also referred to the decisions in North Atlantic Coast Fisheries and Gulf of
Fonseca quoted in paragraphs A.7 and A.8 above.
A.18 Jessup’s assumption that the outer limit of the territorial sea parallels the
coastal configuration is most clearly seen in the Draft Convention on the Law of
Territorial Waters that he included at the end of his volume. Article II of this
Draft Convention provided:
“Territorial waters are those waters lying between the
coasts of a State and a line drawn parallel thereto at a
distance of three marine miles (60 to a degree of latitude)
13
P. C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, 1927,
Annex 178, pp. 355-356.
14 Ibid., p. 361 (quoting Institut de Droit International, “Projet de Règlement relatif à la
Mer Territoriale en temps de paix”, Session de Paris, Annuaire de l'Institut de Droit
International, Vol. 13, 1894, Annex 110, pp. 324-325: “Pour les baies, la mer
territoriale suit les sinuosités de la côte, sauf qu’elle est mesurée à partir d’une ligne
droite tirée en travers de la baie dans la partie la plus rapprochée de l’ouverture vers
la mer, où l’écart entre les deux côtes de la baie est de douze milles marins de
largeur, à moins qu’un usage continu et séculaire n’ait consacré une largeur plus
grande.”).
292 from the lowest point of low-wat15 mark. All waters lying
beyond this line are high seas.”
A.19 After publication of The Law of Territorial Waters and Maritime
Jurisdiction, and in the run-up to the 1930 Hague Conference, the Harvard
Research Committee (including Manley O. Hudson and Philip Jessup) prepared
its own draft convention with extensive commentary. As in the various proposals
previously mentioned, no general rule was proposed for the method to be used to
determine the outer limit of territorial waters. In respect of bays it was indicated
that the outer limit “shall follow the sinuosities of the shore in the bay or river-
mouth.” 16
A.20 The issue that was of most concern to the Committee (and which
confirmed the assumption that the outer limit of the territorial sea paralleled the
sinuosities of the coast) concerned bays that might be shared by two or more
States. If the coasts of a bay belonged to one State and the bay qualified as a
legal bay, a 10M bay closing line would be allowed to divide internal waters
from territorial waters. However, it was assumed that if the coasts of the bay
belonged to two States, and they had not agreed on a delimitation of the waters
of the bay, a bay closing line would not be possible. In that case the waters of the
bay would be comprised of a belt of territorial waters, the outer limit of which
followed the coastal sinuosities, and an area of high seas outside the territorial
belt.
A.21 To address this situation, Article 6 provided:
“When the waters of a bay or river-mouth which lie within
the seaward limit thereof are bordered by the territory of
two or more states, the bordering states may agree upon a
15 P. C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, 1927,
16 Annex 178, p. 480.
Draft Convention on Territorial Waters, prepared by the Research in International
Law of the Harvard Law School, American Journal of International Law Special
Supplement, Vol. 23, 1929, Annex 115, p. 243, Art. 6.
293 division of such waters as inland waters; in the absence of
such agreement, the marginal sea of each state shall not be
measured from the seaward limit but shall follow the 17
sinuosities of the shore in the bay or river-mouth.”
A.22 Therefore, in summary, one must conclude that by the time the 1930
Hague Conference began under the auspices of the League of Nations the
situation was that the outer limit of territorial waters was believed or at the very
least assumed to run parallel to the sinuosities of the coast.
The 1930 Hague Conference
A.23 The Conference for the Codification of International Law was held at The
Hague from 13 March to 12 April 1930 . “Territorial Waters” was one of three
items on the agenda and it was addressed in the Second Committee. Mr. J.P.A.
François was the Rapporteur for the Second Committee, as he would be for the
ILC’s work on the law of the sea.
A.24 The Second Committee’s work was facilitated by 28 “Bases of
Discussion” developed by a Preparatory Committee. These were in the form of
convention articles with accompanying commentary. They did not include any
19
points relating to questions concerning the outer limit of the territorial sea ; in
consequence it is hardly surprising that nothing was accomplished at the
Conference on this issue.
17
Draft Convention on Territorial Waters, prepared by the Research in International
Law of the Harvard Law School, American Journal of International Law Special
Supplement, Vol. 23, 1929, Annex 115, p. 243, Art. 6.
18 See League of Nations, Acts of the Conference for the Codification of International
Law Held at The Hague from 13 March to 12 April 1930, Minutes of the Second
Committee, Territorial Waters, document C.351(b).M.145(b).1930.V, reproduced in
Shabtai Rosenne (ed.), League of Nations Conference for the Codification of
International Law [1930], Vol. IV, 1975.
19 During the 1930 Hague Conference a consensus emerged to use the term “territorial
sea” to designate the belt of coastal waters in which sovereignty is exercised, in
preference to “territorial waters”.
294A.25 The arcs-of-circles method did emerge here, however. The United States
delegation circulated an amendment (to Basis of Discussion No. 6) providing for
the arcs-of-circles method for determining the outer limit of the territorial sea .20
The amendment read as follows:
“Except as otherwise provided in this Convention, the
seaward limit of the territorial waters is the envelope of all
arcs of circles having a radius of three nautical miles
drawn from all points on the coast (at whatever line of sea
level is adopted in the charts of the coastal State) or from
the seaward limit of those inland waters 21ich are
contiguous with the territorial waters.”
A.26 Nevertheless, Sub-Committee II of the Second Committee, which was
charged with drafting proposed rules for delimitation of the territorial sea,
framed a baseline rule in a manner which implied that in most circumstances the
outer limit of the territorial sea followed the sinuosities of the coast:
“Base-line.
Subject to the provisions regarding bays and islands, the
breadth of the territorial sea is measured from the line of
low-water mark along the entire coast. . . .
Observations. The line of low-water mark following all the
sinuosities of the coast is taken as the basis for calculating
the breadth of the territorial sea, excluding the special
cases of (1) bays, (2) islands near the coast and (3) groups
20 League of Nations, Observations and Proposals Regarding the Bases of Discussion
Presented to the Plenary Committee by Various Delegations at the Conference for
the Codification of International Law held at The Hague from 13 March to 12 April
1930, document C.351(b).M.145(b),1930.V, Annex II, reproduced in Shabtai
Rosenne (ed.), League of Nations Conference for the Codification of International
Law [1930], Vol. IV, 1975, Annex 13, p. 1397; also see diagrams at pp. 1399-1402.
21
Ibid., p. 1397.
295 of islands, which will be dealt with later. The article is
only concerned with the general principle.” 22
A.27 Thus, while it may be said that the arcs-of-circles method was introduced
at the Hague Conference, there was no agreement on this issue. As is well-
known, in large part as a consequence of differences over the breadth of the
territorial sea, the Second Committee did not agree upon a draft Convention.
The 1930 Article by Boggs
A.28 Shortly following the Hague Conference, S. Whittemore Boggs, the
Geographer of the United States Department of State, who was a member of the
United States Delegation to the 1930 Conference, published an article in the
American Journal of International Law. The purpose of the article was to
expound the arcs-of-circles method to determine the outer limit of the territorial
sea .
A.29 Boggs began by acknowledging that “[t]here appear to be no agreements
or understandings which affect the manner or method of drawing the boundary
line between the high sea and the territorial sea.” 24 Elsewhere in the article
Boggs referred to the “diverse and necessarily arbitrary methods employed by
25
the coastal state in the absence of a general method.” Boggs lamented that
diplomats and scholars concerned with the law of the sea were struggling to
categorize particular types of coasts and to develop rules to fit the various
22 League of Nations, Observations and Proposals Regarding the Bases of Discussion
Presented to the Plenary Committee by Various Delegations at the Conference for
the Codification of International Law held at The Hague from 13 March to 12 April
1930, document C.351(b).M.145(b),1930.V, Annex II, reproduced in Shabtai
Rosenne (ed.), League of Nations Conference for the Codification of International
Law [1930], Vol. IV, 1975, Annex 13, p. 1419 (emphasis added).
23 See S. Whittemore Boggs, “Delimitation of the Territorial Sea: The Method of
Delimitation Proposed by the Delegation of the United States at the Hague
Conference for the Codification of International Law”, American Journal of
International Law, Vol. 24, 1930, Annex 188, p. 544.
24
Ibid., p. 543.
25 Ibid., p. 554.
296categories. He found this to be a complex and ultimately fruitless exercise; it
meant that principles that could have some attraction as global standards were
not embraced because ultimately they would not be favoured in some coastal
26
configurations . Boggs’ answer was to promote the proposal made by the United
States at the Hague Conference to address the delimitation between the territorial
sea and the high seas .27
A.30 Boggs argued that it was widely accepted that the belt of the territorial
sea was to be measured following the sinuosities of the coast. Boggs indicated
that there were three basic techniques that could be employed:
“(1) A line parallel to the general trend of the coast,
following the sinuosities thereof;
(2) A series of straight lines, parallel to straight lines
drawn from point to point along the coast and from island
to island; and
(3) A line all points of which are precisely three miles (or
28
any other distance) from the nearest point on the coast.”
A.31 The first of these methods is the tracé parallèle method; the second is a
simplified tracé parallèle, drawn from straight lines approximating coastal
fronts; and the third is what became known as the arcs-of-circles method. Boggs’
article included the set of sketches that had been used to illustrate the proposal of
29
the United States at the 1930 Hague Conference .
26 See S. Whittemore Boggs, “Delimitation of the Territorial Sea: The Method of
Delimitation Proposed by the Delegation of the United States at the Hague
Conference for the Codification of International Law”, American Journal of
International Law, Vol. 24, 1930, Annex 188, p. 554.
27 Ibid., pp. 554-555.
28
Ibid., p. 543.
29 Ibid., pp. 546-547; also see League of Nations, Observations and Proposals
Regarding the Bases of Discussion Presented to the Plenary Committee by Various
Delegations at the Conference for the Codification of International Law held at The
297Gidel’s 1934 Treatise on International Law of the Sea
A.32 Between 1932 and 1934 Gilbert Gidel published his treatise, Le droit
international public de la mer. Part 2 of Volume III contains his discussion of
30
the determination of the outer limit of the territorial sea . Gidel (who was
present at the 1930 Conference) was heavily influenced by Boggs. Gidel largely
repeated the arguments found in Boggs’ 1930 article; Gidel’s treatise even
included the sketches used by the United States to illustrate its proposal at the
Hague Conference.
A.33 Gidel discussed different methods of measuring the outer limit of the
territorial sea and expressed a preference for the arcs-of-circles method. He noted
that Münch had described the application of this method in his 1934 work Die
Technischen Fragen des Küstenmeers, and this method had been used for
measuring the outer limit of territorial seas for convex coasts. He noted that the
advantage of the method was that it eliminated uncertainties for the navigator.
However, although Gidel considered the arcs-of-circles method to be preferable,
he was cautious about its general application, stating:
“En réalité il n’est pas de règle suffisamment générale par
elle-même pour faire abstraction des configurations
particulières des côtes au-devant desquelles il s’agit de
faire le tracé de la mer territorial, puisque la méthode de la
courbe tangente, tout en s’imposant de préférence à toute
autre méthode générale de tracé de la limite extérieure, a
besoin d’être completée dans son application par diverses
31
éliminations et corrections” .
Hague from 13 March to 12 April 1930, document C.351(b).M.145(b),1930.V,
Annex II, reproduced in Shabtai Rosenne (ed.), League of Nations Conference for
the Codification of International Law [1930], Vol. IV, 1975, Annex 13, pp. 1399-
1402.
30 See G. Gidel, Le droit international public de la mer, Vol. III: La mer territoriale et
la zone contiguë, 1934, pp. 153-192.
31
Ibid., pp. 515-516.
298The 1951 Anglo-Norwegian Fisheries Case
A.34 The Anglo-Norwegian Fisheries case was concerned with the lawfulness
of Norway’s straight baseline system. The issue of the outer limit of the
territorial sea was a factor in the case, since it related to the baseline in some
ways.
A.35 The Court said:
“Three methods have been contemplated to effect the
application of the low-water mark rule. The simplest
would appear to be the method of the tracé parallèle,
which consists of drawing the outer limit of the belt of
territorial waters by following the coast in all its
sinuosities. This method may be applied without difficulty
to an ordinary coast, which is not too broken. Where a
coast is deeply indented and cut into, as is that of Eastern
Finnmark, or where it is bordered by an archipelago such
as the ‘skjærgaard’ along the western sector of the coast
here in question, the base-line becomes independent of the
low-water mark, and can only be determined by means of a
geometrical construction. In such circumstances the line of
the low-water mark can no longer be put forward as a rule
requiring the coastline to be followed in all its sinuosities.
Nor can one characterize as exceptions to the rule the very
many derogations which would be necessitated by such a
rugged coast: the rule would disappear under the
exceptions. Such a coast, viewed as a whole, calls for the
application of a different method; that is, the method of
base-lines which, within reasonable limits, may depart
from the physical line of the coast.
It is true that the experts of the Second Sub-Committee of
the Second Committee of the 1930 Conference for the
codification of international law formulated the low-water
mark rule somewhat strictly (‘following all the sinuosities
of the coast’). But they were at the same time obliged to
admit many exceptions relating to bays, islands near the
coast, groups of islands. In the present case this method of
the tracé paralléle, which was invoked against Norway in
the Memorial, was abandoned in the written Reply, and
299 later in the oral argument of the Agent of the United
Kingdom Government. Consequently, it is no longer
relevant to the case. ‘On the other hand’, it is said in the
Reply, the courbe tangente—or, in English, ‘envelopes of
arcs of circles’—method is the method which the United
Kingdom considers to be the correct one.
The arcs of circles method, which is constantly used for
determining the position of a point or object at sea, is a
new technique in so far as it is a method for delimiting the
territorial sea. This technique was proposed by the United
States delegation at the 1930 Conference for the
codification of international law. Its purpose is to secure
the application of the principle that the belt of territorial
waters must follow the line of the coast. It is not obligatory
by law, as was admitted by Counsel for the United
Kingdom Government in his oral reply. In these
circumstances, and although certain of the Conclusions of
the United Kingdom are founded on the application of the
arcs of circles method, the Court considers that it need not
deal with these Conclusions in so far as they are based
upon this method.” 32
A.36 Sir Humprey Waldock, who was one of counsel for the United Kingdom
in the case, published an article in the British Yearbook of International Law
immediately following the Judgment. He respectfully took the Court to task:
“The Court refers to ‘this method of the tracé parallèle’ as
if it was the same thing as a base-line following the tide-
mark along the sinuosities of the coast, whereas tracé
parallèle concerns the outer limit of territorial waters.
This is a fundamental confusion and, in any event, the so-
called ‘method of tracé parallèle’ is not really a method of
delimiting even the outer limit of territorial waters. Tracé
parallèle was an expression coined by Gidel to describe a
misconception which he believed some writers to have in
regard to the outer rim of territorial waters. The
32 Fisheries Case (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951,
pp. 128-129.
300 misconception is that the outer rim is a line drawn parallel
to the shore-line and exactly reflecting each and every
sinuosity of the shore. . .” . (Emphasis in the original.)
A.37 Whether this criticism is valid or not, the language of the Judgment
provides endorsement for tracé parallèle and dismisses the arcs-of-circles
methodology as a “new technique”, “not obligatory by law”. In light of the
Judgment, the continuing use of the tracé parallèle in State practice in this
period was perfectly understandable.
The writings of publicists between 1945 and 1952
A.38 After 1945 the attention of publicists turned to the continental shelf.
There was a great deal of uncertainty and divergence of opinion as to the basis of
title over the continental shelf and, in part as a result of this uncertainty, also as
to the spatial extent of the continental shelf in a legal sense and as to the
entitlements of the coastal State and third States in that zone. (Furthermore, Latin
American States were proceeding with an effort to develop regional international
law based on 200M claims .) There was very limited discussion of the method
of measurement of the outer limit of a coastal State’s territorial sea.
Nevertheless, tracé parallèle was still used and referred to. For example, Herbert
A. Smith, Professor Emeritus of International Law at the University of London,
touched lightly on the issues under consideration in the second edition of The
Law and Custom of the Sea, published in 1950. He said: “[t]he outer limit of
territorial waters is parallel to the base line at a distance of three miles.”5
33
C. H. M. Waldock, “The Anglo-Norwegian Fisheries Case”, British Yearbook of
International Law, Vol. 28, 1951, Annex 187, p. 133.
34 See footnote 291 (p. 78) of the Rejoinder and the references contained therein.
35
H. A. Smith, The Law and Custom of the Sea, 2nd edn, 1950, Annex 184, diagram at
p. 11. This sketch suggests the tracé parallèle methodology with reference to the
outer limit of the territorial sea.
301The Work of the International Law Commission
A.39 The ILC was established as a subsidiary body of the United Nations
General Assembly in 1947 to give effect to Article 13 of the Charter of the
United Nations, which calls in relevant part for the progressive development of
international law and its codification. In 1949 the ILC placed 14 items on a
provisional list of topics for codification, including the régime of territorial
waters and the régime of the high seas.
A.40 The régime of the high seas was identified as one of three topics to
36
receive priority attention . The ILC elected Mr. J.P.A. François of the
Netherlands as Special Rapporteur to study the régime of the high seas and
prepare a report for consideration in the second session.
A.41 The second session of the ILC commenced on 5 June 1950. The Special
Rapporteur submitted his report on the régime of the high seas, which included
discussion both of the breadth of the territorial sea and the régime of the
continental shelf . The Secretariat also prepared a memorandum on these
issues . There was no discussion of the technique to determine the outer limit of
the territorial sea in these documents, nor was the issue taken up in the general
debate. During the second session, in response to a request from the General
Assembly, the ILC added the issue of the régime of the territorial sea to the
39
topics on its priority list .
A.42 The third session of the ILC commenced on 16 May 1951. The technique
of determining the outer limit of the territorial sea and the continental shelf was
36
The other two topics to receive priority attention were the law of treaties and arbitral
procedure. It was understood that the continental shelf would be addressed under the
high seas heading.
37 See United Nations, Report of the Special Rapporteur to the ILC (2nd session of the
ILC (1950)), document A/CN.4/17.
38
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.
39 See United Nations, Report of the ILC to the General Assembly (2nd session of the
ILC (1950)), document A/1316, p. 366, para. 18.
302not discussed during this session. The ILC decided to initiate work on the régime
of the territorial sea and appointed Mr. François as Special Rapporteur.
A.43 The Special Rapporteur submitted his report on the régime of the
territorial sea at the fourth session of the ILC held in 1952. This session
commenced on 4 June 1952 and concluded on 8 August of that year, just days
before the Santiago Declaration on 18 August. The report of the Special
Rapporteur contained 23 draft articles on the subject, along with commentary.
Article 5 concerned baselines. The commentary to Article 5 referred to the
Anglo-Norwegian Fisheries Judgment and its consideration of the arcs-of-circles
40
and tracé parallèle methods . In these respects the report reached no specific
conclusions, but it did formulate a straight-baseline article along the lines
suggested by the Judgment. The ILC discussed Article 5 during its 169th and
41
170th meetings on 22 and 23 July 1952 ; however, the tracé parallèle and arcs-
of-circles techniques for establishing the outer limit of the territorial sea were not
discussed.
A.44 The ILC decided that the Special Rapporteur might make contact with
experts to clarify certain technical aspects of the subject of delimitation, and
requested him to provide a further report with a revised draft and commentary at
the fifth session . The ILC also decided to ask governments to furnish
information on State practice and any observations they might wish to make on
the question of the delimitation of the territorial sea between two adjacent
43
States .
40
See United Nations, Report of the Special Rapporteur to the ILC (4th session of the
ILC (1952)), document A/CN.4/53, Annex 118, p. 33, para. 2.
41 See United Nations, Summary Record of the 169th and 170th Meetings of the ILC
(4th session of the ILC (1952)), document A/CN.4/Ser.A/1952, pp. 169-179.
42
See United Nations, Report of the ILC to the General Assembly (4th session of the
ILC (1952)), document A/2163, p. 68, paras 39-40.
43 Ibid., p. 68, para. 39. In response, see, e.g., Letter of 16 March 1956 from the
Permanent Mission of Chile to the United Nations, reproduced in United Nations,
Comments by Governments on the Provisional Articles Concerning the Regime of
303A.45 With regard to the régime of the high seas, the ILC decided to defer
consideration of the Special Rapporteur’s report until the fifth session without
44
substantive discussion .
A.46 Thus, as of August 1952, the ILC had reached no conclusions of any sort
45
regarding techniques to delimit the territorial sea from the high seas .
Summary and Conclusion
A.47 There can be no doubt that in 1952 the outer limit of a distance-based
zone of jurisdiction followed the sinuosities of the coast—tracé parallèle—
remained in the mainstream of legal thinking. The Court’s 1951 Judgment had, if
anything, elevated tracé parallèle and diminished the arcs-of-circles
methodology. With the 1958 Convention on the Territorial Sea and the
Contiguous Zone, the arcs-of-circles method was recognized as an accepted
method of measurement of the outer limit of a distance-based zone of
jurisdiction . In hindsight, the Technical Committee report to the ILC in 1953
47
was very influential on this issue . However, that report was issued only after
the diplomats meeting in Santiago, in August 1952, had negotiated and adopted
the Santiago Declaration.
the High Seas and the Draft Articles on the Regime of the Territorial Sea adopted by
the International Law Commission at its Seventh Session (8th session of the ILC
(1956)), document A/CN.4/99/Add.1, Annex 17, pp. 42-43.
44
See United Nations, Summary Record of the 182nd Meeting of the ILC (4th session
of the ILC (1952)), document A/CN.4/Ser.A/1952, p. 250.
45 See further discussion of the work of the ILC in the Counter-Memorial, paras 2.151-
2.158.
46
See Convention on the Territorial Sea and the Continuous Zone, signed at Geneva on
29 April 1958, 516 UNTS 205 (entered into force 10 September 1964), Art. 6.
47 See Counter-Memorial, para. 2.154 and paras 2.157-2.158.
304 LIST OF ANNEXES
(VOLUMES II - IV)
VOLUME II
INTERNATIONAL T REATIES AND INTER -STATE ACTS
Annex 1 Declaration on the Construction of Main International Traffic
Arteries, signed at Geneva on 16 September 1950
Annex 2 Tashkent Declaration between India and Pakistan, signed at
Tashkent on 10 January 1966
Annex 3 Declaration by France and Monaco Concerning the Delimitation of
the Territorial Waters of the Principality of Monaco, signed at
Paris on 20 April 1967
Annex 4 Act of Charaña, signed by the Presidents of Chile and Bolivia at
Charaña on 8 February 1975
Annex 5 Maroua Declaration between the United Republic of Cameroon
and Nigeria, signed at Maroua on 1 June 1975
Annex 6 Exchange of Notes between the United Republic of Tanzania and
Kenya Concerning the Delimitation of the Territorial Waters
Boundary between the Two States, signed on 9 July 1976
Annex 7 Maritime Delimitation Treaty between the Federative Republic of
Brazil and the French Republic, signed at Paris on 30 January 1981
Annex 8 Agreement between the Governments of the Republics of Chile
and Peru of 19 October 1987 reproduced in the Decree No. 776 of
23 September 1988
Annex 9 Minutes of the First Meeting of the Maritime Authorities of the
Beagle Channel, 24 March 2006
Annex 10 Minutes of the Third Meeting of the Maritime Authorities of the
Beagle Channel, 3 April 2007
305Annex 11 Minutes of the XVII Meeting of the Southern Integration
Committee between Chilean and Argentinean Maritime
Authorities, 18 and 19 April 2007
Annex 12 Minutes of the Meeting between the Harbour Master of Ilo and the
Maritime Governor of Arica, 27 April 2007
RECORDS OF INTERNATIONAL C ONFERENCES
Annex 13 League of Nations, Observations and Proposals Regarding the
Bases of Discussion Presented to the Plenary Committee by
Various Delegations at the Conference for the Codification of
International Law held at The Hague from 13 March to 12 April
1930
Annex 14 Intervention by Dr. García Sayán of Peru in the general debate of
the Second Committee of the First United Nations Conference on
the Law of the Sea, 13 March 1958
Annex 15 Extract from the Final Act of the XIIIth Ordinary Meeting of the
Permanent Commission of the South Pacific in relation to the
registration of the Agreements of the South Pacific with the United
Nations, 9 January 1976
Annex 16 Speech of the President of the Executive Board of IMARPE, Vice-
Admiral Luis A. Giampietri Rojas, opening the extraordinary
meeting of the co-ordination committee of the Regional
Oceanographic Cruise of the Southeast Pacific, 26-27 March 1998
C ORRESPONDENCE BETWEEN STATES
AND BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS
Annex 17 Letter of 16 March 1956 from the Permanent Mission of Chile to
the United Nations
Annex 18 Telegram No. 719 of 31 January 1963 from the United States
Embassy in Peru to the Secretary of State of the United States
306Annex 19 Note No. A-762 of 10 June 1967 from the United States Embassy
in Chile to the United States Department of State, with an
unofficial translation of Letter No. 09700 of 8 June 1967 from the
Chilean Ministry of Foreign Affairs
Annex 20 Note No. 5-4-M/95 of 23 September 1968 from the Peruvian
Ambassador to Chile to the Minister of Foreign Affairs of Chile
Annex 21 Memorandum 2/69 of 10 January 1969 from the Embassy of
Argentina in Ecuador to the Ministry of Foreign Affairs of
Ecuador
Annex 22 Memorandum No. 3-DST of 20 January 1969 from the Ministry of
Foreign Affairs of Ecuador to the Embassy of Argentina in
Ecuador
Annex 23 Memorandum entitled “Demarcation [of the] Chile-Peru Maritime
Frontier” of 30 June 1969 from the Ambassador of Argentina to
Peru to the Ministry of Foreign Affairs and Worship of Argentina
Annex 24 Letter of 8 September 1975 from the Secretary-General of the
United Nations to the Permanent Representative of Chile to the
United Nations
Annex 25 Note No. 686 of 19 December 1975 from the Chilean Minister of
Foreign Affairs to the Bolivian Ambassador to Chile
Annex 26 Note No. 6-Y/1 of 29 January 1976 from the Minister of Foreign
Affairs of Peru to the Minister of Foreign Affairs of Chile
Annex 27 Letter No. 325/43 of 31 March 1976 from the Permanent Mission
of Chile to the United Nations to the Secretary-General of the
United Nations
Annex 28 Letter 4-2-30 of 21 April 1976 from the Permanent Mission of
Ecuador to the United Nations to the Secretary-General of the
United Nations
Annex 29 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
307Annex 30 Note CPPS/SG/CG/2-081/2000 of 28 January 2000 from the
Secretary-General of the CPPS to the President of the Peruvian
Section of the CPPS
Annex 31 Note No. 1027 of 12 April 2001 from the Minister of Foreign
Affairs of Chile to the Minister of Foreign Affairs of Peru
Annex 32 Note No. 144 of 10 June 2004 from the United States Embassy in
Chile to the Ministry of Foreign Affairs of Chile
Annex 33 Letter No. 7-1-SG/26 of 12 April 2010 from the Permanent
Mission of Peru to the United Nations to the Secretariat of the
United Nations
Annex 34 Note of 27 January 2011 from the Director of the Flanders Marine
Institute to the Secretary-General of the Department of Foreign
Affairs of Belgium, forwarded to Chile
Annex 35 Note of 17 February 2011 from the Director-General of the Institut
Géographique National to the Ambassador of Chile to France
Annex 36 Note No. 4998CGJ/GM/2011 of 9 March 2011 from the Minister
of Foreign Affairs of Ecuador to the Secretary-General of the
United Nations
Annex 37 Note No. 4-2-45/2011 of 10 March 2011 from the Permanent
Mission of Ecuador to the United Nations to the Secretary-General
of the United Nations
Annex 38 Letter of 31 March 2011 from the Secretariat of the United Nations
to the Permanent Mission of Chile to the United Nations
Annex 39 Note (GAB) No. 6-12-YY/01 of 2 May 2011 from the Minister of
Foreign Affairs of Peru to the Minister of Foreign Affairs of
Ecuador
Annex 40 Note (GAB) No. 7-9-C-YY/01 of 2 May 2011 from the Minister of
Foreign Affairs of Peru to the Secretary-General of the United
Nations
308Annex 41 Note No. 9428 GMRECI/CGJ/2011 of 2 May 2011 from the
Minister of Foreign Affairs of Ecuador to the Minister of Foreign
Affairs of Peru
O FFICIAL TEXTS , FFICIAL STATEMENTS AND
INTERNAL DOCUMENTS : CHILE
Annex 42 Law of 30 August 1848 on the Division of the Territory of the
Maritime Gobernaciones
Annex 43 Supreme Decree No. 844 of 19 May 1945 on the Division of
Chile’s First, Second and Third Naval Zones
Annex 44 Decree with Force of Law No. 292 of 25 July 1953 approving the
Organic Law of the Directorate-General of the Maritime Territory
and Merchant Navy
Annex 45 Plan Convenio Tripartito of 12 May 1955 by the Office of Chief
of Staff of the First Naval Zone
Annex 46 Note No. 25 of 9 April 1964 from the General President of the
Boundary Commission to the Minister of Foreign Affairs
Annex 47 Note No. 138 of 15 September 1964 issued by the Head of the
Legal Advisor’s Office of the Ministry of Foreign Affairs
Annex 48 Decree No. 57 of 17 February 1967 amending Regulation Series A
No. 25 “Organ[s] and Functioning of the Search and Rescue
Service (SAR Service)”
Annex 49 Memorandum No. 14 of 22 April 1968 by the International
Boundaries Division of the Ministry of Foreign Affairs
Annex 50 Report No. 16 of May 1968 on the meeting at the Chile-Peru
frontier, by Alejandro Forch, Chief of the International Boundaries
Division
Annex 51 Note No. 30 of 24 July 1968 from the Governor of Arica to the
Minister of Interior
309Annex 52 Declaration of 16 September 1971 by the Under-Secretary of
Foreign Affairs
Annex 53 Resolution No. 350 of 10 November 1971 by the Under-Secretariat
of Fisheries
Annex 54 Record of the first Meeting of the second round of Chile-Peru
Discussions, 5 July 1976
Annex 55 Record of the fourth Meeting of the second round of Chile-Peru
Discussions, 8 July 1976
Annex 56 Letter No. 13000/5 of 25 February 1977 from the Director of the
Hydrographic Institute of the Navy to the General Manager of
ENAP
Annex 57 Decree with Force of Law No. 2222 of 21 May 1978 substituting
the Navigation Law
Annex 58 Decree No. 441 of 8 July 1978: Amendment to the General
Regulation of Order, Security and Discipline on Vessels and the
Coast of the Republic
Annex 59 Resolution No. 397 of 9 October 1980 by the Under-Secretariat of
Fisheries
Annex 60 Resolution No. 402 of 13 October 1980 by the Under-Secretariat
of Fisheries
Annex 61 Resolution No. 403 of 13 October 1980 by the Under-Secretariat
of Fisheries
Annex 62 Resolution No. 450 of 17 November 1980 by the Under-Secretariat
of Fisheries
Annex 63 Resolution No. 512 of 30 December 1980 by the Under-Secretariat
of Fisheries
Annex 64 Law No. 18,892 (as amended), General Law on Fisheries and
Aquaculture, consolidated text published in Decree No. 430 of
21 January 1992
310Annex 65 Resolution No. 1412 of 31 December 1992 by the Under-
Secretariat of Fisheries
Annex 66 Resolution No. 1 of 8 January 1993 by the Under-Secretariat of
Fisheries
Annex 67 Resolution No. 311 of 7 May 1993 by the Under-Secretariat of
Fisheries
Annex 68 Message from the President to the House of Deputies of the
Congress with draft agreement relating to UNCLOS and its
Annexes, Bulletin No. 1425-10, 28 October 1994
Annex 69 Supreme Decree No. 464 of 31 July 1995
Annex 70 Geographic Positions of Points of the Normal Baselines from
which the National Maritime Jurisdictions have been Drawn,
printed on the reverse of SHOA, Chart No. 6, Rada de Arica a
Caleta Matanza, 1st edn, 2000
Annex 71 Official Declaration of 6 April 2001 by the Ministry of Foreign
Affairs
Annex 72 SHOA Resolution No. 13270/04/212/VRS of 25 October 2004
Annex 73 Report of Commission No. 3 of 2 December 2010, “Anchoring of
Buoy Dart II”, by Lieutenant Commander Andrés Enríquez
Olavarría, Head of the Department of Planning and Operations of
SHOA, to the Director of SHOA
Annex 74 Data extracted from the Directorate-General of the Maritime
Territory and Merchant Navy, Maritime-Historical Statistic
Reports
Annex 75 Industrial Unload Form DI-01 by the National Service for
Fisheries
311 VOLUME III
O FFICIALTEXTS , FFICIALS TATEMENTS ,
O FFICIALLYA UTHORIZED TEXTS AND INTERNAL D OCUMENTS :P ERU
Annex 76 Supreme Resolution No. 923 of 3 August 1951
Annex 77 Ministerial Resolution No. 478 of 9 March 1955
Annex 78 Foreign Affairs Committee of Congress, Report of 4 May 1955
concerning the Agreements and Conventions signed by Peru, Chile
and Ecuador at Santiago, on 18 August 1952, and at Lima on
4 December 1954
Annex 79 Records of the Second 1954 Extraordinary Legislature of
Congress, Second Session held on Thursday 5 May 1955
Annex 80 Official Letter No. 5-4-Y/68 of 11 July 1955 from the chargé
d’affaires to Chile to the Minister of Foreign Affairs
Annex 81 República Peruana, Diario de los Debates del Congreso Nacional,
Vol. I, 1955
Annex 82 Supreme Decree of 5 January 1956: Regulation for Fishing Permits
to Foreign Vessels
Annex 83 Explanatory Report of 5 December 1963, signed by the Minister of
Aeronautics
Annex 84 Geographic Advisor’s Office of the National Institute of Planning
in the Office of the President, Atlas Histórico Geográfico de
Paisajes Peruanos, 1963-1970
Annex 85 Ministry of Navy, Lista de Faros 1971 – Costa del Perú, 1971
Annex 86 Official Declaration by the President of Chile of 23 June 1947 as
published by the Ministry of Foreign Affairs, Instrumentos
Nacionales e Internacionales sobre Derecho del Mar, 1971
312Annex 87 Memorandum of 18 November 1976 of the Embassy of Peru in
Chile
Annex 88 Directorate of Hydrography and Navigation of the Navy, Lista de
Faros y Señales Náuticas – Costa del Perú, 5th edn, 1976
Annex 89 Supreme Decree No. 015-86-EM/VME of 21 August 1986
granting Block S-2 of the Titicaca Basin to Petroperu S.A.
Annex 90 Supreme Decree No. 002-87-MA of 11 June 1987 approving the
Regulation of Captaincies and Maritime, Fluvial and Lacustrine
Activities
Annex 91 Ministry of Foreign Affairs, El Perú en Gráficos, published in El
Comercio, 16 October 1988
Annex 92 Press Release No. 29-90 of 24 April 1990 issued by the Directorate
of Information of the Navy
Annex 93 Directorial Resolution No. 347-91-DC/MGP of 20 December 1991
of the Directorate-General of Captaincies and Coastguard
Annex 94 Directorial Resolution No. 0313-94/DCG of 23 September 1994 of
the Directorate-General of Captaincies and Coastguard
Annex 95 Law No. 26620 of 30 May 1996 on Control and Surveillance of
Maritime, Fluvial and Lacustrine Activities
Annex 96 Directorial Resolution No. 0403-2000/DCG of 7 September 2000
of the Directorate-General of Captaincies and Coastguard
Annex 97 Law No. 27415 of 25 January 2001: Territorial Demarcation of the
Province of Tacna, Department of Tacna
Annex 98 Directorate of Hydrography and Navigation of the Navy,
Derrotero de la Costa del Perú, Vol. II, 3rd edn, 2001
Annex 99 Report of the Foreign Affairs Committee of the Congress of the
Republic concerning Draft Legislative Resolution No. 813/2001-
CR, 4 October 2004
Annex 100 Letter No. V.200-3762 of 27 November 2009 from the Captaincy
of Callao to Merchant Shipping Companies
313Annex 101 Law No. 29687 of 19 May 2011, amending Law No. 28621 of
3 November 2005: Baselines Law of the Maritime Dominion of
Peru
Annex 102 National Institute of Statistics and Information of Peru, Perú:
Compendio Estadístico 2008
T EXTS ANDD OCUMENTS OF T HIRDSTATES
Annex 103 Report of 5 July 1936 on the Inauguration of the Mark at the
Northern Terminal of the Boundary between Surinam and British
Guiana, exhibited as Annex 2 to the Counter-Memorial of
Suriname
Annex 104 Costa Rican Law No. 116 of 27 July 1948 Proclaiming National
Sovereignty over the Continental Shelf and the Epicontinental Sea
Annex 105 Honduran Decree No. 25 of 28 January 1950
Annex 106 United States Department of State, Memorandum of Conversation
of 2 May 1955 entitled “Marginal Seas Conflict with Ecuador”
Annex 107 Note No. 7811 2006/GM of 17 February 2006 from the
Ecuadorean Minister of Foreign Affairs to the Peruvian Minister of
Foreign Affairs
Annex 108 Press Release No. 073 of 7 February 2008 issued by the Ministry
of Foreign Affairs of Ecuador
Annex 109 Ecuadorean Presidential Decree No. 450 of 2 August 2010
D OCUMENTS OF INTERNATIONAL ORGANIZATIONS AND O THER BODIES
Annex 110 Institut de Droit International, “Projet de Règlement relatif à la
Mer Territoriale en temps de paix”, Session de Paris, Annuaire
d'Institut de Droit International, Vol. 13, 1894
314Annex 111 League of Nations, “Amended Draft Convention communicated to
various Governments by the League of Nations Committee of
Experts for the Progressive Codification of International Law, with
Questionnaire No. 2, 29 January 1926”, League of Nations
document C.196.M.70.1927.V, American Journal of International
Law Special Supplement, Vol. 23, 1929
Annex 112 International Law Association, “Draft Convention on Law of
Maritime Jurisdiction in Time of Peace, 1926”, American Journal
of International Law Special Supplement, Vol. 23, 1929
Annex 113 American Institute of International Law, “Project No. 10 on
‘National Domain’ submitted to the International Commission of
Jurists at Rio de Janeiro”, April 1927, American Journal of
International Law Special Supplement, Vol. 23, 1929
Annex 114 Institut de Droit International, “Projet de Règlement relatif à la
Mer Territoriale en temps de paix”, Session de Stockholm,
Annuaire d'Institut de Droit International, 1928
Annex 115 Draft Convention on Territorial Waters, prepared by the Research
in International Law of the Harvard Law School, American
Journal of International Law Special Supplement, Vol. 23, 1929
Annex 116 United Nations, Summary Record of the 69th meeting of the ILC,
17 July 1950
Annex 117 Inter-American Juridical Committee, “Draft Convention on
Territorial Waters and Related Questions”, 30 July 1952
Annex 118 United Nations, Report of the Special Rapporteur to the ILC
(4th session of the ILC (1952))
Annex 119 United Nations, Comments by Governments on the draft articles
on the continental shelf and related subjects prepared by the ILC
at its third Session in 1951 (5th session of the ILC (1953))
Annex 120 Resolution VII adopted by the CPPS at the 1954 CPPS Meeting,
Santiago
315Annex 121 United Nations, Report of the ILC to the United Nations General
Assembly (17th session of the ILC (1966)), Commentary to Draft
Article 2 on the Law of Treaties
Annex 122 Foreword by Dr. García Sayán, Secretary-General of the CPPS,
Compilación de Acuerdos y Resoluciones del Sistema Marítimo del
Pacífico Sur (1952-1969), 1969
Annex 123 Report of the Ad hoc Joint IHO/IMCO Committee on
Promulgation of Radio Navigational Warnings, 1st session,
document PRNW I/7, 31 May 1973
Annex 124 United Nations General Assembly, Report of the Committee on the
Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the
Limits of National Jurisdiction, Vol. V, 1973
Annex 125 IMCO, Sub-Committee on Radiocommunications — 15th session,
Agenda item 7: International Co-ordination of Promulgating
Navigational Warnings to Shipping — Communication Aspects:
Report of the Working Group on Radio Navigational Warnings,
document COM XV/WP.11, 18 September 1975
Annex 126 IMCO, Group of Experts on Search and Rescue — 5th session:
Report to the Maritime Safety Committee, document SAR V/6,
15 June 1977
Annex 127 IMCO, Assembly - 10th session, Committee II, Report of
Committee II to the Plenary of the Assembly at its 10th session,
document A X/C.2/2, 14 November 1977
Annex 128 Plan for the Establishment of a World-Wide Navigational Warning
Service, adopted by IMO Assembly Resolution A. 381(X),
14 November 1977
Annex 129 J. M. Bákula, Secretary-General, Evaluación de los Convenios de
la CPPS, May 1978
Annex 130 United Nations Office for Ocean Affairs and the Law of the Sea,
The Law of the Sea – Maritime Boundary Agreements (1970-
1984), 1987
Annex 131 CPPS, Publicación de la Secretaría General 1999, 1999
316Annex 132 United Nations, Communication M.Z.N.37.2000.LOS (Maritime
Zone Notification) from the Secretary-General of the United
Nations entitled “Deposit by Chile of charts showing normal and
straight baselines, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf”, 29 September
2000
Annex 133 IMO, Global SAR Plan Containing Information on the Current
Availability of SAR Services, 22 March 2005
Annex 134 United Nations, Eighth Report on Unilateral Acts of States by
Mr V. Rodríguez Cedeño, Special Rapporteur, 26 May 2005
Annex 135 IMO, Global SAR Plan Containing Information on the Current
Availability of SAR Services, 21 April 2006
Annex 136 United Nations, Guiding Principles applicable to unilateral
declarations of States capable of creating legal obligations, with
commentaries thereto (58th session of the ILC (2006))
Annex 137 Final Report of the 13th Joint Oceanographic Regional Cruise in
the Southeast Pacific
PRESS A RTICLES
Annex 138 J. M. Peña Prado, Address to the Congress of Peru, reproduced in
La Crónica, 7 May 1955
Annex 139 “Frontera Marítima Perú y Chile Demarcarán”, El Expreso, 27
June 1969
Annex 140 “Torres y Señalización en la Frontera Marítima: Tacna-Arica”, La
Voz de Tacna, 1 July 1969
Annex 141 “Chile y Perú Analizan Delimitación Marina”, El Mercurio,
12 June 1986
Annex 142 “Cancillería chilena informa sobre delimitación con Perú”, El
Comercio, 17 June 1986
317Annex 143 “Perú y Chile continuarán con actividades pesqueras”, El Peruano,
16 August 2007
Annex 144 Ministry of Foreign Affairs of Ecuador, Chile comprometido con
la democracia y el orden constitucional, Press Release No. 758 of
11 October 2010
318 VOLUME IV
O THER D OCUMENTS
Annex 145 The Grisbådarna Case (Norway v. Sweden), Memorial and
Counter-Memorial of Norway and Counter-Memorial of Sweden
Annex 146 El Salvador v. Nicaragua, Central American Court of Justice,
Judgment, 9 March 1917
Annex 147 Western Geophysical Company of America, Final Field Operation
Report, March-November 1977
Annex 148 Voluntary Declaration by Mr. Bernardo Ventocilla Espada
(mechanic of the Jessica), 31 July 1984
Annex 149 Voluntary Declaration by Mr. Leoncio Rodríguez Mori (Captain of
the Nicolas), 31 July 1984
Annex 150 Voluntary Declaration by Mr. Esteban Sacatuma Escalante
(mechanic of the Pocoma I), 30 August 1984
Annex 151 Voluntary Declaration by Mr. Bernardo Ventocilla Espada
(mechanic of the Jessica), 30 August 1984
Annex 152 Woods Hole Oceanographic Institution, Upper Oceans Processes,
Technical Report 04-01, “Stratus Ocean Reference Station (20°S,
85°W), Mooring Recovery and Deployment Cruise, R/V Revelle
Cruise Dana 03, November 10-November 26, 2003”
Annex 153 “Guidelines for Entering to Peruvian Waters published by
Inchcape Fishing Services”
Annex 154 Emails from Foreign Vessels to Peru’s Directorate-General of
Captaincies and Coastguard reporting entry into or departure from
Peru’s maritime dominion pursuant to the System on Information
of Position and Security in the Maritime Dominion of Peru
(SISPER)
319Annex 155 Transcripts of requests by Peruvian fishing vessels to cross Chile’s
EEZ to reach fishing grounds in the high seas
W RITINGS OF PUBLICISTS (IN ALPHABETICAL ORDER )
Annex 156 M. F. Agüero Colunga, Delimitación Marítima del Perú con
Ecuador y con Chile, 1990
Annex 157 M. F. Agüero Colunga, Consideraciones para la delimitación
marítima del Perú, 2001
Annex 158 L. M. Alexander, “Baseline Delimitations and Maritime
Boundaries”, Virginia Journal of International Law, Vol. 23, 1983,
p. 503
Annex 159 E. W. Anderson, International Boundaries – a Geopolitical Atlas,
2003
Annex 160 A. Arias-Schreiber, “Fundamentos de la Soberanía Marítima del
Perú”, Revista de Derecho y Ciencias Políticas, XXXIVth year,
Nos I-II, 1970, p. 35
Annex 161 A. Arias-Schreiber, “Delimitación de la frontera marítima entre
Perú y Chile”, Revista Peruana de Derecho Internacional, Vol. LI,
January-June 2001, No. 117, p. 13
Annex 162 J. Attard, The Exclusive Economic Zone in International Law,
1987
Annex 163 J. M. Bákula, El Dominio Marítimo del Perú, 1985
Annex 164 J. M. Bákula, Perú: Entre la Realidad y la Utopía – 180 Años de
Política Exterior, Vol. II, 2002
Annex 165 P. Beazley, “Technical Considerations in Maritime Delimitations”,
in J. I. Charney and L. M. Alexander (eds), International Maritime
Boundaries, Vol. I, 1993, p. 243
Annex 166 J. Beer-Gabel, “Variations sur la notion de frontière maritime”, in
Indemer (ed.), Droit de la mer – Etudes dédiées au Doyen Claude-
Albert Colliard, 1992, p. 11
320Annex 167 J. Beer-Gabel, “Accords de délimitation”, in Indemer (ed.), Le
processus de délimitation maritime étude d’un cas fictif, Colloque
International, 2004, p. 323
Annex 168 G. Blake, “World maritime boundary delimitation: the state of
play” in G. Blake (ed.), Maritime Boundaries and Ocean
Resources, 1987, p. 3
Annex 169 G. Blake and R. Swarbrick, “Hydrocarbons and International
Boundaries: A Global Overview”, in G. Blake, M. Pratt,
C. Schofield and J. A. Brown (eds), Boundaries and Energy:
Problems and Prospects, 1998, p. 3
Annex 170 E. Collins Jr. and M. A. Rogoff, “The International Law of
Maritime Boundary Delimitation”, Maine Law Review, Vol. 34,
1982, p. 1
Annex 171 P. J. Cook and C. M. Carleton, “Introduction”, in P. J. Cook and
C. M. Carleton (eds), Continental Shelf Limits, The Scientific and
Legal Interface, 2000, p. 3
Annex 172 G. Despeux, Droit de la délimitation maritime – Commentaire de
quelques décisions plutoniennes, 2000
Annex 173 G. Faura Gaig, El Mar Peruano y sus Límites, 1977
Annex 174 E. Ferrero Costa, El Nuevo Derecho del Mar – El Perú y las 200
Millas, 1979
Annex 175 M. Flores Palomino, La Zona Costera del Perú: Un Ensayo de
Interpretación y Proposición de su Organización para su
Administración, 1989
Annex 176 E. Gounaris, “The Delimitation of the Continental Shelf of Islands:
Some Observations”, Revue Hellénique de droit international,
Vol. 33, 1980, p. 111
Annex 177 D. N. Hutchinson, “The Significance of the Registration or Non-
Registration of an International Agreement in Determining
Whether or Not it is a Treaty”, in S. Davidson (ed.), The Law of
Treaties, 2004, p. 265
321Annex 178 P. C. Jessup, The Law of Territorial Waters and Maritime
Jurisdiction, 1927
Annex 179 C. Lathrop, “The technical aspects of international maritime
boundary, depiction and recovery”, in Ocean Development and
International Law, Vol. 28, 1997, p. 167
Annex 180 P. Martínez de Pinillos, Geografía Humana del Perú y del Mundo,
1952
Annex 181 A. G. Oude Elferink, “Does Undisputed Title to a Maritime Zone
Always Exclude its Delimitation: The Grey Area Issue”,
International Journal of Marine and Coastal Law, Vol. 13(2),
1998, p. 143
Annex 182 M. Pratt (ed.), Jane’s Exclusive Economic Zones 2002-2003, 4th
edn, 2002
Annex 183 M. Rodríguez Cuadros, La Soberanía Marítima del Perú – La
Controversia entre el Perú y Chile, 1st edn, 2010
Annex 184 H. A. Smith, The Law and Custom of the Sea, 2nd edn, 1950
Annex 185 M. Vegas, “El Mar Peruano: Un Ambiente Natural – La
Conservación y Utilización de sus Recursos”, in E. Ferrero Costa
(ed.), El Perú, El Medio Ambiente y El Desarrollo, 1992, p. 151
Annex 186 A. Wagner de Reyna, Los Límites del Perú, 1961
Annex 187 C. H. M. Waldock, “The Anglo-Norwegian Fisheries Case”,
British Yearbook of International Law, Vol. 28, 1951, p. 133
Annex 188 S. Whittemore Boggs, “Delimitation of the Territorial Sea: The
Method of Delimitation Proposed by the Delegation of the United
States at the Hague Conference for the Codification of
International Law”, American Journal of International Law,
Vol. 24, 1930, p. 541
Annex 189 M. Zahraa, “Prospective Anglo-Scottish Maritime Boundary
Revisited”, European Journal of International Law, Vol. 12(1),
2001, p. 77
322 LIST OF DOCUMENTS DEPOSITED WITH THE REGISTRY
RECORDS OF INTERNATIONAL C ONFERENCES
Intervention by Dr. García Sayán of Peru in the general debate of
the Second Committee of the First United Nations Conference on
1. the Law of the Sea, 13 March 1958 reproduced in Revista Peruana
de Derecho Internacional, Vol. XVIII, January-June 1958, No. 53,
p. 50
Extract from the Final Act of the XIIIth Ordinary Meeting of the
2. Permanent Commission of the South Pacific in relation to the
registration of the Agreements of the South Pacific with the United
Nations, 9 January 1976
O FFICIAL TEXTS , FFICIAL STATEMENTS AND
INTERNAL DOCUMENTS : HILE
Decree with Force of Law No. 292 of 25 July 1953 approving the
3. Organic Law of the Directorate-General of the Maritime Territory
and Merchant Navy
4. Plan Convenio Tripartito of 12 May 1955 by the Office of Chief of
Staff of the First Naval Zone
Report No. 16 of May 1968 on the meeting at the Chile-Peru
5. frontier, by Alejandro Forch, Chief of the International Boundaries
Division
6. Record of the first Meeting of the second round of Chile-Peru
Discussions, 5 July 1976
Record of the fourth Meeting of the second round of Chile-Peru
7.
Discussions, 8 July 1976
8. Decree with Force of Law No. 2222 of 21 May 1978 substituting
the Navigation Law
323 Law No. 18,892 (as amended), General Law on Fisheries and
9. Aquaculture, consolidated text published in Decree No. 430 of
21 January 1992
Message from the President to the House of Deputies of the
10. Congress with draft agreement relating to UNCLOS and its
Annexes, Bulletin No. 1425-10, 28 October 1994
11. Supreme Decree No. 464 of 31 July 1995
Geographic Positions of Points of the Normal Baselines from which
the National Maritime Jurisdictions have been Drawn, printed on
12.
the reverse of SHOA, Chart No. 6, Rada de Arica a Caleta
Matanza, 1st edn, 2000
O FFICIAL TEXTS , FFICIAL STATEMENTS ,O FFICIALLY
AUTHORIZED TEXTS AND INTERNAL D OCUMENTS :PERU
Foreign Affairs Committee of Congress, Report of 4 May 1955
13. concerning the Agreements and Conventions signed by Peru, Chile
and Ecuador at Santiago, on 18 August 1952, and at Lima on
4 December 1954
Geographic Advisor’s Office of the National Institute of Planning in
14. the Office of the President, Atlas Histórico Geográfico de Paisajes
Peruanos, 1963-1970
15. Ministry of Navy, Lista de Faros 1971 – Costa del Perú, 1971
Directorate of Hydrography and Navigation of the Navy, Lista de
16. Faros y Señales Náuticas – Costa del Perú, 5th edn, 1976
Supreme Decree No. 002-87-MA of 11 June 1987 approving the
17. Regulation of Captaincies and Maritime, Fluvial and Lacustrine
Activities
Ministry of Foreign Affairs, El Perú en Gráficos, published in El
18. Comercio, 16 October 1988
19. Directorate of Hydrography and Navigation of the Navy, Derrotero
de la Costa del Perú, Vol. II, 3rd edn, 2001
324 Report of the Foreign Affairs Committee of the Congress of the
20. Republic concerning Draft Legislative Resolution No. 813/2001-
CR, 4 October 2004
Law No. 29687 of 19 May 2011, amending Law No. 28621 of
21. 3 November 2005: Baselines Law of the Maritime Dominion of
Peru
National Institute of Statistics and Information of Peru, Perú:
22. Compendio Estadístico 2008
D OCUMENTS OF INTERNATIONAL O RGANIZATIONS AND
O THER B ODIES
United Nations General Assembly, Report of the Committee on the
23. Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the
Limits of National Jurisdiction, Vol. V, 1973
J. M. Bákula, Secretary-General, Evaluación de los Convenios de la
24.
CPPS, May 1978
25. CPPS, Publicación de la Secretaría General 1999, 1999
O THER DOCUMENTS
The Grisbådarna Case (Norway v. Sweden), Memorial and Counter-
26. Memorial of Norway and Counter-Memorial of Sweden
27. Western Geophysical Company of America, Final Field Operation
Report, March-November 1977
Woods Hole Oceanographic Institution, Upper Oceans Processes,
Technical Report 04-01, “Stratus Ocean Reference Station (20°S,
28.
85°W), Mooring Recovery and Deployment Cruise, R/V Revelle
Cruise Dana 03, November 10-November 26, 2003”
Historia de las Negociaciones Chileno-Bolivianas: 1975-1978 by
29. the Ministry of Foreign Affairs of Chile, 1978
325 30. “Guidelines for Entering to Peruvian Waters published by Inchcape
Fishing Services”
W RITINGS OF PUBLICISTS
M. F. Agüero Colunga, Delimitación Marítima del Perú con
31. Ecuador y con Chile, 1990
32. M. F. Agüero Colunga, Consideraciones para la delimitación
marítima del Perú, 2001
A. Arias-Schreiber, “Fundamentos de la Soberanía Marítima del
33. Perú”, Revista de Derecho y Ciencias Políticas, XXXIVth year,
Nos I-II, 1970
A. Arias-Schreiber, “Delimitación de la frontera marítima entre
34. Perú y Chile”, Revista Peruana de Derecho Internacional, Vol. LI,
January-June 2001, No. 117
35. J. M. Bákula, El Dominio Marítimo del Perú, 1985
J. M. Bákula, Perú: Entre la Realidad y la Utopía – 180 Años de
36. Política Exterior, Vol. II, 2002
E. Collins Jr. and M. A. Rogoff, “The International Law of
37. Maritime Boundary Delimitation”, Maine Law Review, Vol. 34,
1982
38. G. Faura Gaig, El Mar Peruano y sus Límites, 1977
M. Flores Palomino, La Zona Costera del Perú: Un Ensayo de
39. Interpretación y Proposición de su Organización para su
Administración, 1989
D. N. Hutchinson, “The Significance of the Registration or Non-
Registration of an International Agreement in Determining Whether
40. or Not it is a Treaty”, in S. Davidson (ed.), The Law of Treaties,
2004
41. P. Martínez de Pinillos, Geografía Humana del Perú y del Mundo,
1952
32642. M. Pratt (ed.), Jane’s Exclusive Economic Zones 2002-2003, 4th
edn, 2002
43. M. Rodríguez Cuadros, La Soberanía Marítima del Perú – La
Controversia entre el Perú y Chile, 1st edn, 2010
44. M. Vegas, “El Mar Peruano: Un Ambiente Natural – La
Conservación y Utilización de sus Recursos”, in E. Ferrero Costa
(ed.), El Perú, El Medio Ambiente y El Desarrollo, 1992
45. A. Wagner de Reyna, Los Límites del Perú, 1961
327
Rejoinder of Chile