Maritime Boundary Chile Peru Dissertation

ROYAL COLLEGE OF DEFENCE STUDIES KING´S COLLEGE LONDON

DISSERTATION THE CHILE – PERU MARITIME BOUNDARY CONTROVERSY: PROSPECTS FOR A SOLUTION

By Jorge Moreno León Captain (retired), Peruvian Navy Master of Arts in International Studies – King’s College London Master in Finances, Universidad del Pacífico Master in Business Administration, Universidad del Pacífico

LONDON, 09 JULIO 2004

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ROYAL COLLEGE OF DEFENCE STUDIES KING’S COLLEGE LONDON

DISSERTATION THE CHILE – PERU MARITIME BOUNDARY CONTROVERSY: PROSPECTS FOR A SOLUTION

By Jorge Moreno León Captain, Peruvian Navy

LONDON, 09 JULY 2004 1

ABSTRACT

Boundary disputes have harmed security, stability and prosperity in Latin America for nearly two hundred years. Actually, Chile and Peru maintain an official controversy about their maritime boundary delimitation; Chile claims a boundary along the geographical parallel that passes by the point on which the land border between both countries reaches the sea, while Peru argues that no maritime boundary has ever been agreed. The focus of this dissertation is the official position of both countries detailed in public documents, the analysis of the international documents signed by Chile and Peru, the relationships between the rules of international law applicable to the delimitation of the maritime boundaries, state practice and jurisprudence, the evaluation of the considerations for settling the maritime boundary between Chile and Peru, and a proposal of actions for the solution. The premise behind this dissertation is that policymakers in Chile and Peru must be more inclined to take steps to solve this old controversy, and prevent the tensions and the outbreak of violent conflict.

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CONTENTS TITLE PAGE ABSTRACT CONTENTS INTRODUCTION CHAPTER ONE:

01 02 03 05 THE

CHILE-PERU

MARITIME

BOUNDARY

CONTROVERSY I.- THE CONTROVERSY a.- Official position of the Chilean State b.- Official position of the Peruvian State II.- ANALYSIS OF THE INTERNATIONAL INSTRUMENTS SIGNED

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BY CHILE AND PERU a.- Declaration on the Maritime Zone b.- Agreement relating to a Special Maritime Frontier Zone c.- Act of the Landmark No. 1 CHAPTER TWO: MARITIME BOUNDARY MAKING I.- THE LAW OF THE SEA II.- STATE PRACTICE IN MARITIME DELIMITATION III.- JURISPRUDENCE OF MARITIME DELIMITATION CHAPTER THREE: THE MARITIME DELIMITATION CHILE – PERU I.- NORMS OF UNCLOS FOR THE MARITIME DELIMITATION II.- ANALYSIS OF THE SPECIAL CIRCUMSTANCES a.- Geographic Considerations b.- Islands, Reef, and Low Tide Elevations Considerations. c.- Baseline Considerations d.- Geological and Geomorphological Considerations e.- Technical Considerations f.- Method of Delimitation Considerations g.- Legal Considerations h.- Economic and Environmental Considerations i.- Political, Strategic and Historical Considerations CHAPTER FOUR: PROSPECTS FOR A SOLUTION OF THE

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CONTROVERSY I.- THE SETTLEMENT OF DISPUTES BY PEACEFUL MEANS a.- Diplomatic Procedures b.- Adjudication Procedures II.- PROPOSAL OF ACTIONS FOR THE MARITIME DELIMITATION

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CHILE – PERU a.- Concept of the Solution b.- Basis for the Negotiations c.- Basis for the Intervention of Third Parties d.- Actions for the Negotiations III.- SOLVING THE BLOCKADE OF NEGOTIATIONS 3

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CONCLUSIONS BIBLIOGRAPHY ANNEX ONE: DECLARATION ON MARITIME ZONE, 18 AUGUST 1952 ANNEX TWO: AGREEMENT RELATING TO A SPECIAL MARITIME

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FRONTIER ZONE, 04 DECEMBER 1954 ANNEX THREE: STATE PRACTICE IN MARITIME DELIMITATION

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INTRODUCTION

Maritime boundary delimitation is an important matter for the security of the world. In the year 2000 there were around 270 maritime boundary settlements pending worldwide1; the United States Department of Defence has identified maritime resource conflicts as one of the five threats to world order in the post Cold-War era2. Chile and Peru have a controversy over the delimitation of their maritime boundary; the misunderstanding is a consequence of the imprecision, ambiguity and inconsistency in international instruments signed by them, and the absence, for decades, of a clear political decision in the governments of both states to solve the problem. One scholar has researched this controversy, Patricia Vargas, in “The maritime limit between Peru and Chile, antecedents, problem, and solution on the basis of the new Law of the Sea”, of 2002, has taken only the legal point of view and concludes that the maritime delimitation between Chile and Peru must be the equidistance line and not the geographical parallel currently claimed by Chile. However, consistent with the international law, fair and logical such a solution appears to be, it cannot be effected unilaterally. It must be effected by means of agreement, following negotiations conducted in good faith and with the genuine intention of obtaining positive results. If the agreement cannot be achieved in this way, the delimitation should be effected by recourse to a third party.

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Blake, Gerald, “State Limits in the Early Twenty-first Century: Observations on Form and Function”,

Geopolitics, Vol. 5, No. 1, 2000, p. 5: “There are currently estimated 430 potential maritime boundaries

worldwide”. “To date there are some 160 agreed maritime boundaries, 37% of the potential”. 2 Zackrison, James, and Meason, James, “Chile, Mar Presencial and the Law of the Sea”, Newport Papers, Naval War College Review, 1997, p. 1.

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The position of the Chilean State is that there is not a controversy, but it is wrong. Neither state nor the international community can ignore the existence of that controversy, and they have to recognize the necessity to resolve it using international law, peaceful means, and by taking in consideration diverse factors that affect the boundary making. The aim of this dissertation is to provide a complete evaluation of this controversy and to determinate the basis for the solution. In addition, the dissertation seeks to establish an analytical model that can be used in other cases of maritime boundaries disputes in the world.

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CHAPTER ONE THE CHILE - PERU MARITIME BOUNDARY CONTROVERSY I.- THE CONTROVERSY: Chile and Peru, adjacent coastal states, maintain divergent positions about the delimitation of their maritime boundary. The area concern is at least 10,280 nautical miles² (35,280 Km²) of maritime waters, soil and subsoil, located in one of the richest seas of fishery.

Many of the details of the controversy are published on the web page of the United Nations, as part of the Information of the General Secretary of the United Nations in the 56th period of sessions3.

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Web Page www.un.org/Depts/los; document 6 0156618s A/56/58/Add.1

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a.- Official position of the Chilean State The Chilean official position is that the maritime boundary between both countries is "the geographical parallel that passes by the point on which the land border between both countries reaches the sea". In accordance with published official documents4, of the years 1960 to 2000, the Chilean State sustains its position in the following aspects: -

Foundations of right: The geographical parallel has been recognized as the maritime boundary in diverse documents subscribed by both countries, such as the “Declaration on the Maritime Zone” (1952), “Agreement relating to a Special Maritime Frontier Zone” (1954), and the “Act of the Landmark Nº1” (1969).

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Foundations of fact: There is not a matter pending negotiation because the geographical parallel was always the maritime boundary.

b.- Official position of the Peruvian State The Peruvian official position, expressed in the published official documents5, of the years 2000 and 2001, is that "Chile and Peru have not subscribed, in conformity with the pertinent rules of international law, a specific treaty of maritime delimitation". The Peruvian State sustains its position fundamentally in two points: -

Foundations of right: Neither country has negotiated nor signed any treaty about the delimitation of the maritime boundary. The treaties mentioned by Chile have purposes other than settling the maritime boundary.

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Foundations of fact: Since 1986, Peru has officially communicated to Chile, the necessity to proceed to the formal and definitive delimitation of the marine spaces between both countries. The delimitation by means of the geographical parallel, as Chile considers unilaterally, is an inequitable solution, in which the Peruvian sea in the front of some of its coasts would have a breadth of between 0 and 40 nautical miles. Meanwhile, the whole coast of Chile would have a breadth of 200 nautical miles.

Dictum Nº138 Chilean Foreign Ministry, September 1960, published in the book “Chile and the Right of the Sea”, written by Francisco Orrego Vicuna, edit. Beautiful A., 1972, pp 90-93. And Diplomatic Note No. 411 Embassy of Chile in Peru, 22 November 2000, published by Daily “Correo”, Lima, 17 August 2002, p. 5. 5 Diplomatic Note RE (GAB) No. 6.4/113 Peruvian Foreign Ministry, dated 20 October 2000, published by Daily “Correo”, Lima, 17 August 2002, p. 5. And Peruvian Diplomatic Note No. 7-1-SG/005, “Declaration of the Government of Peru to the General Assemble of the United Nations”, dated 09 January 2001, published by Circular Information on Law of the Sea No. 13, United Nations, 2001. 4

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II.- ANALYSIS OF THE INTERNATIONAL INSTRUMENTS SIGNED BY CHILE AND PERU a.- Declaration on the Maritime Zone In a Diplomatic Note dated 10 July 1952, the Chilean State invited Peru to participate in a conference whose objective was to adopt agreements over the problems originated by the hunting of whales in waters of the Southern Pacific and the industrialization of its products. The Chilean State also invited Ecuador. The Conference was denominated the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific, and one of the four documents resulting from this Conference was the Declaration on the Maritime Zone, known as the Declaration of Santiago (annex 1), which was signed on 18 August 1952 by the three countries and opportunely ratified by them. The preface to the Declaration indicates that the purpose for establishing that zone is to ensure the conservation and protection of its natural resources. Article II of the Declaration establishes that the countries 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 misunderstanding began with article IV, which establishes that “If an island or group of islands belonging to another of those countries, the maritime zone of the islands or group of islands shall be limited by the parallel at the point at which the land frontier of the States concern reaches the sea”. That article is specific to islands and there are no islands in the area of the frontier between Chile and Peru; thus that article cannot be applied to their maritime boundary.

Dictum No. 138 of the Foreign Ministry of Chile of 1960 said that article IV "would 9

confirm the interpretation with respect to the geographical parallel" and “although there is not an expressed pact about the lateral delimitation of the territorial seas, it represents the understanding that the maritime boundary is the geographical parallel at the point at which the land frontier of the states concern reaches the sea”. Jurists dislike such opinions, because in the delimitation of boundaries between states it is not possible to suppose understanding; the limits must be fixed with an explicit treaty, which specifies clearly that the objective is the boundary delimitation, indicates the delimited areas, and remarks the exact location of the lines of the limit. None of these elements is present in the Declaration on the Maritime Zone. b.- Agreement relating to a Special Maritime Frontier Zone In Santiago, from 04 to 08 October 1954, there was a meeting of the Permanent Commission of the Conference on Exploitation and Conservation of the Maritime Resources of the South Pacific, in that meeting the "Agreement relating to a Special Maritime Frontier Zone” (Annex 2) was arranged. On 04 December 1954 the Agreement was signed by Chile, Ecuador and Peru, and quickly ratified by them. The first article of the agreement established a special fixed zone, “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 marine boundary between the two countries”. Although in practice this established a working fishing boundary, it cannot be read as a legal delimitation. The origin of the agreement relating to a Special Maritime Frontier Zone is clearly expressed in the whereas clauses. That is the problem of continuous sanctions to fishermen who in an innocent and accidental way had intruded to fish in waters of other countries. In the opinion of jurists, the only objective of that agreement was to establish a special zone of fishing tolerance.

The buffer zone fixed by the Agreement begins at mile 12. Moreover, the Agreement does 10

not establish anything about other maritime spaces between the countries: the first twelve miles (measured from the coast), the west side, and the Continental Shelf. Dictum No. 138 of the Foreign Ministry of Chile indicated that this agreement “… reaffirms in emphatic manner a pre-existing fact, in which Chile, Ecuador and Peru agree: that between their territorial seas, the demarcation is the geographical parallel". Clearly, however, this interpretation of the Agreement relating to a Special Maritime Frontier Zone takes into consideration only a part of the text. The Vienna Convention on the Law of Treaties declares in article 31.1 that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. In accordance with articles 31 to 33, “any true interpretation of a treaty in international law will have to take into account all aspects of the agreement, from the words employed to the intention of the parties, and the aims of the particular document. It is not possible to exclude completely any one of these components”6. In accordance with that approach to treaty interpretation, the following must be considered: -

The preparatory actions, as a means to discover the intention of the parties. Memorandum 144 of the Chilean Foreign Ministry, which proposed the meeting of the Permanent Commission of the Conference on Exploitation and Conservation of the Maritime Resources of the South Pacific, did not mention the intention to delimitate the maritime boundary. Also there were not preparatory actions for setting the maritime boundary, such as the coordination, negotiation, and commission for the demarcation.

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Good faith, as the just and honest procedure that governs a state in its actions. It is clear that the Agreement was celebrated exclusively for fishing purpose; the states acted with good faith subscribing the agreement for that objective and not as a treaty of a maritime boundary.

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The context. It is necessary to evaluate the link between all the elements of a treaty (preamble, main body, annexes). A part of the text cannot be taken in isolation,

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Shaw, Malcom, “International Law”, (Cambridge: Cambridge University Press, 2003), p. 839.

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because in context it can have a different meaning. In accordance with the whereas clauses and articles of the Agreement its objective was to avoid the incidents taking place for fishing vessels and was not to settle the maritime boundary. -

The utilitarian End, that is the interpretation of the terms of a treaty cannot conclude in an absurdity or in a contrary sense of the concept for that treaty to be subscribed. If the intention of the parts had been the delimitation of the maritime boundary, they would have considered this purpose in the whereas clauses of the Agreement.

c.- Act of the Landmark Nº1 On 22 August 1969, Chile and Peru signed the “Act of the Joint Chilean-Peruvian Commission designated for verifying the original geographical position of the Landmark Nº1 and to signal the Maritime Limit”7. That Act is the last element on which the Chilean State sustains its position8. The aforementioned Act remarks that the purpose was “verifying the original geographical position of the Landmark of concrete number one (Nº 1) of the common border, and fixing the points of location of the Marks of Alignment, that both countries have agreed to point out the maritime limit and to materialize the parallel that passes through the mentioned landmark number one, located on the sea shore”. The two Conclusions of the Act were: “the Joint Commission suggests that the Landmark of concrete number one will be reconstructed in the place where it was erected initially in the year 1930”, and “the Joint Commission judges that all the necessary conditions for the erection of the Alignment Towers have been completed, and in consequence it is possible to execute the respective works immediately”.

In accordance with this Act, two towers were placed on the 18º23’03” parallel of south latitude; one was placed 6 meters west of Landmark No. 1 in Peruvian territory, while the Published in the book “Maritime International Law”, written by Jaime Harris Fernandez, Santiago, 1999, pages 153-157. 8 Diplomatic Note 411 Embassy of Chile in the Peru, 22 November 2000. 7

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other tower was placed 1,843.8 meters east of that landmark in Chilean territory. Legally, the act is not a treaty and was never ratified as such by either country. It was only a territorial instrument to permit the execution of the "Agreement relating to a Special Maritime Frontier Zone”. Moreover, it contains a serious mistake, the landmark does not actually coincide with the point where the land border reaches the sea and in this way is not even in accordance with the agreement. In other side, by means of diplomatic notes of the years 1986 and 2000, the Peruvian State communicated to the Chilean State the necessity of delimitating the marine spaces between both countries.

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CHAPTER TWO MARITIME BOUNDARY MAKING I.- THE LAW OF THE SEA: The “United Nations Convention on the Law of the Sea” (UNCLOS) comprises 320 articles and nine annexes, governing such subjects as delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology and the settlement of disputes relating to ocean matters. It includes legislation about navigational rights, territorial sea limits, economic jurisdiction, legal status of resources on the seabed beyond the limits of national jurisdiction, passage of ships through narrow straits, conservation and management of living marine resources, protection of the marine environment, a marine research regime and, a more unique feature, a binding procedure for settlement of disputes between states. The UNCLOS was opened for signature on 10 December 1982 in Montego Bay, Jamaica, and came into force on 16 November 1994. Today, 145 states have ratified it, and those that have adhered to it are members of the Convention. The UNCLOS contains detailed and complex provisions regarding the resolution of disputes about the law of the sea. There is the fundamental obligation to settle disputes peacefully, but parties are able to choose methods other than those specified in the Convention9. Where no settlement is reached by means freely chosen by the parties, the compulsory procedures laid down in Part XV section 2 of the UNCLOS become operative. Upon signing, ratifying or acceding to the UNCLOS, or any time thereafter a state may choose one of the following means of dispute settlement: The International Tribunal for the Law of the Sea, the International Court of Justice, an Arbitral tribunal under Annex VII, or a Special Arbitral Tribunal under annex VIII for specific disputes.

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UNCLOS, Law of the Sea, 1982, articles 286, 287.

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II.- STATE PRACTICE IN MARITIME DELIMITATION State practice in maritime delimitation is a subject of interest, but its importance is relative, because “while the international community has sought to identify the norms applicable to maritime boundary delimitations, courts and tribunals charged with addressing specific disputes have not given much attention to the state practice. This is despite the fact that the settlements of maritime boundaries by agreement may contribute to the evolution of the relevant positive norm of international law”10. The table of annex 3 shows the detail about the method of delimitation used in cases of maritime boundary in the world, it does not include the cases that were resolved by the International Court of Justice, those will be mentioned in item III below. The evidence is clear; in the majority of the cases the states have adopted the equidistance line (simple or modified) for their maritime delimitation. The modified equidistance line was adopted to take account of particular local issues such islands and geographical aspects. Also, in some cases a negotiated line was adopted as agreement for the states. III.- JURISPRUDENCE OF MARITIME DELIMITATION: It is necessary to consider an analysis of cases of maritime delimitation, which were decided by the International Court of Justice and Arbitral Tribunals. Those tend to take into consideration more than just the principle of equidistance. The International Court of Justice, in “Qatar v. Bahrain” case noted that article 15 of UNCLOS, about the delimitation on the territorial sea, was to be regarded as having a customary law character; that Court went to declare that “The most logical and widely practised approach is first to draw provisionally an equitable line and then to consider whether that line must be adjusted in the light of existence of special circumstances”11, “the question whether there are special circumstances which make it necessary to adjust the equidistance line as provisionally drawn in order to obtain an equitable result in relation to 10 11

Blake, Gerald “Maritime Boundaries” (London: Routledge, 1994), p. 2. ICJ Reports, 2001, case Qatar-Bahrain, paragraph 176.

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this part of the single maritime boundary to be fixed”12. In addition, the Court emphasised the close relationship between continental shelf and economic exclusive zone delimitations13. In the “North Sea Continental Shelf” cases, between the Federal Republic of Germany on the one side and Holland and Denmark on the other side, the Federal Republic of Germany has not ratified the Continental Shelf Convention; the Court held that the principles enumerated in the Article 6 of the Continental Shelf Convention did not constitute rules of international customary law and therefore Germany was not bound by them. The International Court of Justice declared that the relevant rule was that “delimitation is to be effected by agreement in accordance with equitable principles and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the others” 14. The Court, therefore, took the view that delimitation was based upon a consideration and weighing of relevant factors in order to produce an equitable result. Included amongst the range of factors was the element of a reasonable degree of proportionality between the lengths of the coastline and the extent of the continental shelf15. In the “Anglo-French Continental Shelf” case, both states were parties to the Continental Shelf Convention. The International Court of Justice held that article 6 contained one overall rule, “a combined equidistance-special circumstances rule”, which in effect “gives particular expression to a general norm that, failing agreement, the boundary between states abutting on the same continental shelf is to be determined on equitable principles”16. In the “Tunisia/Libya Continental Shelf” case, the International Court of Justice deciding Ibid. paragraph 217. Ibid. paragraph 226. 14 ICJ, Reports, 1969, pp. 3, 53. 15 Ibid. pp. 3, 52. 16 Shaw, Malcom, Op Cit, p. 529. 12 13

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on the basis of custom, as neither state was party to the 1958 Convention, emphasised that “the satisfaction of equitable principles is, in the delimitation process, of cardinal importance”17. In the “Gulf of Maine” case, which dealt with the delimitation of the Continental Shelf and fisheries zones of Canada and the United States, the Chamber of the International Justice Court held that “In either case delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result”18. Also, the Chamber of the Court considers that the criteria must be basically founded upon geography and be as suitable for the delimitation of the sea-bed and subsoil as to that of the superajacent waters and their living resources19. Argentina and Chile resorted to a tribunal appointed by Her Majesty Queen Elizabeth II to settle ambiguities in the description of the boundary of 1881. In making its judgements, the tribunal also announced a maritime division of adjacent sea areas; unfortunately the arbitral award did not solve the problem. Argentina refused to accept the judgement, and the question of settling the boundary dispute passed under the good offices of the Holy See, after that was signed a treaty of peace and limits20. The Court took as its starting point the criterion of the equal division of the areas of convergence and overlapping of the maritime projections of the coastlines of the states concerned, a criterion regarded as intrinsically equitable. This, however, had to be combined with the appropriate auxiliary criteria in the light of the relevant circumstances of the area itself21.

The Tribunal Arbitral in the “Guinea/Guinea-Bissau Maritime Delimitation” case emphasised that the aim of any delimitation process was to achieve an equitable solution ICJ Reports, 1982, p. 18. Ibid. 1984, case Gulf of Maine, paragraph 112. 19 Ibid. paragraph 190-229. 20 Prescott, “The Maritime Political Boundaries of the world” (London: Methuen, 1985), pp 85, 205, 207. 21 Shaw, Malcom, Op Cit., p. 531. 17 18

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having regard to the relevant circumstances22, and the Tribunal was called upon to draw a single line dividing the territorial sea, economic exclusive zone and continental shelf of the two states concerned23. In the “Libya/Malta Continental Shelf” case, the International Court of Justice decided the case according to customary law since Libya was not party to the Continental Shelf Convention. The Court used the disparity of coastal length of the parties as a reason for adjusting the median line so as to attribute a larger shelf area to Libya24. In the “St. Pierre and Miquelon” case (Canada/France), the Court of Arbitration emphasised that the delimitation process commenced with the identification of the geographical context of the dispute in question and indeed pointed out that geographical features were at the heart of delimitation25. In the “Jan Mayen (Denmark v. Norway)” case, the International Court of Justice took in consideration as “special circumstances” the equitable access to fish stocks (the principal resource in the area was capelin, which was centred on the southern part of the area of overlapping claims) and the presence of ice in the area, then the maritime boundary was built adjusting the median line. In “Eritrea/Yemen” case (phase two: maritime delimitation), the Arbitral Tribunal noted that it was a generally accepted view that “the median line or equidistance line normally provided an equitable boundary in accordance with the requirements of the UNCLOS”26. In “Cameroon/Nigeria” case, the International Court of Justice noted that “first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an “equitable result””27. The International Court of Justice judgement that, “equity is not a method of delimitation, but solely an aim that Ibid. p. 532. Ibid. p. 537. 24 ICJ Reports, 1985, case Libyan Arab Janahiriya/Malta, paragraph 48-54. 25 Shaw, Malcom, Op Cit., p. 533. 26 Ibid., p. 538. 27 ICJ Reports, 2002, p. 288. 22 23

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should be borne in mind effecting the delimitation”28. In conclusion, although the equidistance line has been applied to a great number of boundary delimitations effected by judicial decisions, the jurisprudence clearly recognises that special circumstances often apply and must be taken into account.

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Ibid., p. 294.

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CHAPTER THREE THE MARITIME DELIMITATION CHILE - PERU I.- NORMS OF UNCLOS FOR THE MARITIME DELIMITATION Delimitation of territorial seas is ruled by article 15 of UNCLOS, which establishes that “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith”. The norms of the delimitation of the Continental Shelf and the Economic Exclusive Zone are contained in articles 83 and 74 of UNCLOS; those articles establish that “the delimitation between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution”. Article 38 of that Statute does not provide much help; it enjoins the Court to reach decisions by applying international conventions expressly recognized by the contesting states, by international custom, by general principles of law recognized by civilized nations, and by judicial decisions. II.- ANALYSIS OF THE SPECIAL CIRCUMSTANCES As the specific meaning of the terms “special circumstances” and “equitable solutions” was not defined by UNCLOS, the International Court of Justice, in the operative provisions of its judgement about maritime boundaries, has indicated the following circumstances and factors that need to be taken into account in each case of maritime delimitation:

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“The general configuration of the coasts to the parties, their oppositeness, and the relationship to each other within the general context;

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The disparity in the lengths of the relevant coasts of the parties and the distance between them;

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The need to avoid in the delimitation any excessive disproportion between the extent of the continental shelf areas appertaining to the coastal state and the length of the relevant part of its coast, measured in the general direction of the coastlines.”29.

Legal scholars have pointed out that “the configuration of the relevant respective coastlines, length of relevant coastlines, existence of islands, security considerations and the prior conduct of parties may all be pertinent factors in the particular circumstances of the case”30. The American Society of the International Law Maritime Boundary Project has established nine categories of considerations that might have played a role in the delimitations31. Those considerations will be analysed in turn and applied to the case of Chile - Peru. a.- Geographic Considerations: As legal experts have mentioned: “In all situations of maritime delimitation coastal geography is (the) primary (criterion)”32; “It is clear that primary attention will be placed upon the geography of the coastline” 33; “The limits are primarily a function of the coastal geography, the size and location of islands, and the waters of the areas in question”34. The direction of the Chilean coast is close to North-South, and the Peruvian coast runs from the northwest to the southeast. The coast of each country has a different inclination, and the land border between them reaches the sea in the place in which the coast changes the inclination.

ICJ Reports, 1985, pp. 56-58. Shaw, Malcom, Op Cit., p. 540. 31 Blake, Gerald, Op Cit., p. 3. 32 Ibid. p. 7. 33 Ibid. p.11. 34 Ibid. p. 12. 29 30

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The geographical considerations are referred to concavities, convexities, longitude of the coast, and location of the land boundary. In the case of the maritime boundary Chile – Peru there is no special circumstance in geographical considerations; that is, there is not any special geographical consideration that affects the delimitation by the equidistance line. b.- Islands, Reef and Low Tide Elevation Considerations: In the case of the maritime boundary Chile – Peru there are no islands, reef, and low tide elevation in the area, as mentioned on page 9. c.- Baseline Considerations: The baselines are important because the position of the maritime spaces is defined from the baselines of the coast of the states. The International Court of Justice direct one to “first determine the relevant coast of the parties, from which will be determined the location of the baselines and the pertinent base points which enable the equidistance line to be measured”35. There are two kinds of baselines: normal and straight, defined in the articles 5 and 7 UNCLOS. Through the Presidential Decree No. 416 dated 14 July 1977, Chile defined its straight baseline system, which comprises 75 geographical points from the parallel 41º S to the south; that is in the area of the chain of islands in the vicinity of the coast, far to the frontier with Peru. In the coast of the area between Chile and Peru, there are not the conditions established by UNCLOS for drawing straight baselines. Only normal baselines can exist. Then, there is no special circumstance in baseline considerations. d.- Geological and Geomorphological Considerations: The Republics of Peru and Chile share, from the geological point of view, the same 35

ICJ Reports 2001, case Qatar – Bahrain, paragraph 178.

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continental shelf. That continental shelf is situated very close to the coast, around 15 to 20 nautical miles. There are no other factors of geology and geomorphology, which can affect the location and extent of the maritime boundary. Thus, there is no special circumstance of this kind. e.- Technical Considerations: This refers to aspects relating to map projections, simplifications, measurement of areas, distances, water datums, whether the boundary and the coordinates of the boundary were computed or determined by geographical means. In the case of the maritime boundary Chile – Peru there is no such special circumstance. f.- Method of Delimitation Considerations: The different possible methods of delimitation are: the equidistance line, a line drawn perpendicular to the coast, or the prolongation of the land border. The equidistance line is the line every point of which is equidistant from the nearest points on the baselines from which the breath of the territorial sea of the two states is measured 36. The method of the perpendicular line to the coast is out of use in the world because it has not foundation of any kind. The method of delimitation by the prolongation of the land border was rejected in the year 1958 during the first United Nation Convention of the Law of the Sea. “The projection of the land boundary between two adjacent states fell from favour, since it was conceded that land boundaries have no relationship, in theory or practice to ocean related purposes”37. The UNCLOS maintains the distinction between types of maritime spaces, giving different guidelines for delimitation purposes. The applicable principle for the territorial sea is the equidistance line; in the Exclusive Economic Zone and Continental Shelf the boundary shall be effected by agreement in order to achieve an equitable solution. Ibid, paragraph 177. Johnston Douglas, “The theory and history of ocean boundary-making” (Montreal: McGill Queen University Press, 1988), p. 131. 36 37

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As Vargas concluded in her thesis, in accordance with the legislation of the delimitation of the Territorial Sea, Continental Shelf and Economic Exclusive Zone, the maritime boundary between Peru and Chile should be the equidistance line. g.- Legal Considerations: In addition to the diverse legal aspects previously mentioned in this dissertation, the following aspects are relevant and can affect the application of the legal norms. (1).- Ratification of the Republic of Chile to UNCLOS: On the 25 August 1997, the Chilean State issued its Declaration of ratification to the United Nations Convention of the Law of the Sea 38. Chile accepts, in order of preference, the following means for the settlement of disputes concerning the interpretation or application of the UNCLOS: The International Tribunal for the Law of the Sea (established in accordance with the annex VI UNCLOS), and the Special Arbitral Tribunal (established in accordance with annex VIII UNCLOS) for the categories of disputes specified therein relating to fisheries, protection and preservation of the marine environment, and marine scientific research and navigation, including pollution from vessels and by dumping. Chile does not accept any of the procedures provided for in part XV, section 2 with respect to the disputes referred to in article 298, paragraphs 1 (a), (b) and (c) UNCLOS: -

Disputes concerning the interpretation or application of articles 15, 74 and 83 of UNCLOS, relating to maritime boundary delimitations in territorial sea, continental shelf and economic exclusive zone.

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Disputes concerning military activities.

-

Disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.

Those reserves of Chile are only of procedural character; Chile cannot deny the application Web page United Nations – Law of the Sea: www.un.org/Depts/los/conventions-agreements/conventiondeclaration.htm 38

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of the UNCLOS. (2).- Peruvian access to the UNCLOS: Peru still has not ratified the UNCLOS; despite that, Peru cannot deny the application of the UNCLOS as customary law. During the early 1980s, there was an important, impassioned and strident debate about adhesion to the UNCLOS, between two ways of thinking about the Peruvian Maritime Dominion. The first group wanted to claim a territorial sea of 200 nautical miles, and the second group propounded a more conventional 12 nautical miles of territorial sea and 188 nautical miles of economic exclusive zone, as is in the UNCLOS. Today, in a more reasoned political environment, after the modification of the Peruvian Constitution 1993 for permits the adhesion of Peru to the UNCLOS, and with the passage of time, it is very clear that Peru needs the accession to the UNCLOS in the best interest of the nation politically, economically and strategically in all matters relating to the sea. h.- Economic and Environmental Considerations: The maritime area concerned is rich in fishing, and as such it has an important economic impact; according to the statistics of the FAO, at the world level, Peru occupies the second place and Chile the sixth place in the extraction of hydrobiological products. A large number of factors, interrelated in a complex way, influence the location of any particular fish stock at any time. The basic food source for fish is phytoplankton, which consists of microscopic plants; in the area concerned the density is more than 250 mg. of carbon per square metre per day, which is one of the richest phytoplankton pastures of the world. The importance of the area is not only as a source of income for fisheries. The relevance is as source of food of high nutritional value, in a context of the demographic explosion in our 25

planet and lack of fishing: “the world’s fishing fleets nearly doubling in size in the last quarter-century and the annual marine catch holding steady around eight million tons, the United Nations’ Food and Agriculture Organization considers almost 70 percent of the oceans “fully fished” or worse”39. There is not evidence of mineral deposits or oil in the area, but the existence of polymetallic nodules could be supposed because the place is not far from important mining deposits in the land. Today the exploitation of polymetallic nodules is not profitable. The unsolved controversy affects the economic integration and occasions direct and opportunity costs, which are lost business and investments in local and joint projects. If the area as a whole is perceived as unstable, capital might cost more and loans might become more difficult to obtain; the existence of border problems affects the potential investments in both countries and the economic results of productive activities, because it elevates the financial costs as a consequence of the “risk of the country”. Chile and Peru have important expenses in equipping and maintaining their military forces in the frontier area, spending resources that could be redirected to development. Both countries have acquired naval military equipment in the last two years and increased their military spending. There is an important cost of the additional troop deployments in the border area that is the comparison between the troops actually deployed and the troops that could be deployed in a normal situation. i.- Political, Strategic and Historical Considerations: (1).- Political The controversy of the maritime boundary between Chile and Peru is mainly a political matter. The critical factor for settling that boundary is the relations between both governments; if the relations are cordial and both governments are determined to reach a fair solution, then the chances of an agreement are excellent. 39

Zackrison, James and Meason, James, Op Cit, p. 3.

26

The decisions of the policymakers in both countries are influenced by social conditions and public opinion. If one of the governments is obsessed with domestic problems, it may feel unable to conduct negotiations about maritime limits. Also if the dispute is perceived to be one affecting vital interests, both states would be less willing to submit the matter to binding third-party settlement. In Peru, there is a permanent claim of the fishermen; they argue that it is not possible that the Peruvian Sea has such a short breadth, 5 nautical miles in the front of Santa Rosa Port (Tacna Department) and 40 nautical miles in the front of Ilo Port (Moquegua Department), while Chile has 200 nautical miles in the front of its whole coast. Fishermen from the Peruvian south ports must fish toward the north, where they have competition and conflicts with fisherman of other Peruvian ports. A deep nationalist feeling exists in the south of Peru, an effect of the so called “War of the Pacific” (1879-1893) and the captivity of two Peruvian Provinces by Chile until 1929. The political decision of both Governments is the key for the solution of the controversy of the Maritime Boundary Chile – Peru. Only with that decision, can the States negotiate the settlement and allow third-party settlement in order to avoid an escalation of the problem and the outbreak of violent conflict. (2).- Strategic The behaviour of Chile and Peru about the sea is a clear example of the geopolitics theory. As Alfred Thayer Mahan pointed out in “The Influence of Sea Power in History” the location, topography, size, and economic conditions are determinants of the maritime character of the nation; Peru with big extensions of territory and many riches, was once less interested in the sea than Chile as a state with only coast and desert lands. In the field of the integration, the relationships between both countries are asymmetric. The commercial interchange is favourable to Chile by a thousand million dollars per annum; in 27

the investments Chile has presence in Peru in mining, trade, finances and industries. Peru only has in Chile an airline and restaurants. During the years 1980s and 1990s, Chile, with a strong and growing economy, acquired important military equipment that only can be used in the border with Peru (coast), and cannot used in the border with Argentina or Bolivia (highlands), as example 450 tanks Leopard and AMX-30. On the opposite side, Peru, with a weak economy and its Armed Forces in internal operations against terrorist groups, could not renovate its military equipment. As consequence of the growing of the military equipment of Chile, in the year 2000 both countries initiated a process of Confidence and Security Building Measures (CSBM), with the objective of reducing the uncertainties that often drive arms races and of promoting transparency. In 2003 Chile acquired a British guided missile frigate. In 2004 it obtained four Dutch guided missile frigates, and it is close to receiving two modern submarines that are being constructed in French-Spanish shipyards. In 2004 Peru got two Italian guided missile frigates, after 25 years without acquisitions, during that period of time the Peruvian Navy was suffering a severe reduction in size as a consequence of the decommissioning without replacement of three cruisers, nine destroyers, six submarines, and ten auxiliary vessels. The stability in the region is precarious, this year Chile has rejected strongly the centuryold demand of Bolivia for a sovereign outlet to the Pacific Ocean coast. Also there was a suddenly strong disagreement in relation of the cutting of the supply of gas from Argentina to Chile. If violent conflict broke out, people would surely flee across international borders towards others countries in large numbers; that kind of refugee problem could create heavy economic burdens and domestic political problems for neighbouring states: Bolivia, Paraguay and Argentina.

28

(3).- Historical Confrontations between Chile and Peru date from the pre-Hispanic time, in which the Peruvian Incas dominated half of the actual Chilean territory. During the age of the Colony, the prevalence of the Viceroyalty of Peru over Santiago's Captaincy General generated poverty, hatred and resentment in Santiago. During the 19th Century, after the independence of both countries, Chile attacked Peru disembarking troops to the north of Lima, in the denominated “Campaign of Intermissions”, dedicated to impede the consolidation of the Peruvian-Bolivian Confederation that had been formed. The Chilean victory in the battles achieved the objective of disintegrating the Confederation. In 1879, Peru and Bolivia were again attacked by Chile, in the “War of the Pacific”. Chile won the war and duplicated the extension of its territory. In 1929, after a plebiscite, the Peruvian Province of Tacna returned to Peru after 36 years of captivity by Chile and both countries subscribed to the Treaty of Ancon, which established the definitive land border between both countries. For the full implementation of this treaty, in 1997, were necessary 68 years. In the year 2001, in a clear violation to the Treaty of Ancon which fixed the land border between both states, Chile invaded Peruvian territory through the installation of a Military Vigilance Control on the beach at the north of the point where the land border reaches the sea. Peru made the diplomatic claim to Chile, and after many weeks the Military Vigilance Control was removed by Chile, without recognizing the violation of the Peruvian sovereignty. In conclusion, by most criteria, equidistance clearly must be the guiding principle in any resolution. However, this cannot simply be imposed given the legal and historical circumstances of this case, it should be negotiated. A lasting resolution which is in the interest of both countries, the whole region and indeed of the international community can only be achieved by forcing negotiations between Chile and Peru, based on the principles 29

inherent in UNCLOS and the intervention by the authority of the International Court of Justice. For the delimitation by the geographic parallel, as Chile unilaterally proposes, the key question is: What fundamental reasons or special circumstances exist to justify Chile’s possession of 200 nautical miles of sea in front of its entire coast, while Peru only possesses from 0 to 40 nautical miles in front of part of its coast?.

30

CHAPTER FOUR PROSPECTS FOR A SOLUTION OF THE CONTROVERSY I.- THE SETTLEMENT OF DISPUTES BY PEACEFUL MEANS: The United Nations Charter establishes that “all members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered”40. The United Nations Charter establishes that “states shall according seek early and just settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their choice”41. a.- Diplomatic Procedures: The simplest and most utilised procedure is negotiation; it consists basically “of discussions between the interested parties with a view to reconciling divergent opinions, or at least understanding the different position maintained”42. The employment of the procedures of “Good Offices” and “Mediation” involves the use of a third party, whether an individual or individuals, a state or group of states or an international organization, to encourage the contending parties to come to a settlement. “Good offices are involved where a third party attempts to influence the opposing sides to enter into negotiations, whereas mediations imply the active participation in the negotiating process of the third party itself”43. The mediation of the Pope was employed by Argentina and Chile for example with regard to their dispute over the southern region and their maritime boundary44. 40 41 42 43 44

United Nations Charter, article 2(3). Ibid. article 33 (1). Shaw, Malcom, Op Cit. , p. 918. Ibid., p. 921. Act of Montevideo, 8 January 1979.

31

Where differences persist, the logical solution is often to institute a Commission of Inquiry “to be conducted by reputable observers to ascertain precisely the facts of contention” 45. That method was used by Chile and the US in the “Letelier” case, in order to determine the amount of compensation that would be paid by Chile in respect of an assassination alleged to have been carried out in Washington46. The process of Conciliation involves a third party investigation of the basis of the dispute and the submission of a report embodying suggestions for a settlement. Conciliation reports are only a proposal and as such do not constitute binding decisions. b.- Adjudication Procedures: Arbitration is held to be the most effective and equitable manner of dispute settlement where diplomacy has failed; an agreement to arbitrate under article 18 of the Hague Conventions (1907) “implied the legal obligation to accept the terms of the award” 47. Arbitration tribunals may be composed in different ways. There may be a single arbitrator or a collegiate body. Judicial Settlement comprises the activities of all international and regional courts deciding disputes between subjects of international law, in accordance with the rules and principles of international law. II.- PROPOSAL OF ACTIONS FOR THE MARITIME DELIMITATION CHILE - PERU: The States of Chile and Peru must establish the process of negotiations for the delimitation of their maritime boundary. Both States have the inescapable duty to give expression to the aspirations of peace of their peoples, and have the obligation to solve the controversy by peaceful means.

Shaw, Malcom, Op Cit., p. 923. Chile denied liability but agreed to make an ex - gratia payment. 47 Shaw, Malcom, Op Cit., p. 953. 45 46

32

Negotiations, of course, do not always succeed, since they depend to a certain degree on mutual goodwill, flexibility and sensitivity. Hostile public opinion in one state may prevent the concession of certain points and mutual distrust may fatally complicate the process, while opposing political attitudes may be such as to preclude any acceptable negotiated agreement. a.- Concept of the Solution As the International Court of Justice noted in the Gulf of Maine case, “no maritime delimitation between states with opposite or adjacent coasts may be effected unilaterally by one of those states. Such delimitation must be sought and effected by means of agreement; following negotiations conducted in good faith and with the genuine intention of achieving positive result. Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence”48. b.- Basis for the Negotiations As legal scholars have noted, “the settlement of any maritime boundary faces the basic problem that there are no precise rules governing the manner in which negotiations should be conducted, and no definitive principles to guide the parties49. The International Court of Justice has enunciated, that in the course of the negotiations of maritime boundaries “the factors to be taken into account are to include: -

The general configuration of the coast of the Parties, as well as the presence of any special or unusual features;

-

So far as is know or readily ascertainable, the physical and geological structure, and natural resources, of the areas involved;

-

The element of a reasonable degree of proportionality, which the delimitation carried out in accordance with equitable principles ought to bring”50.

ICJ Reports, 1984, case Gulf of Maine. Prescott, Op Cit., p. 88. 50 Johnston, Op Cit., p. 141. 48 49

33

The “delimitation has to be in accord with the international law, and should be based on equitable principles, using the median (equidistance) line where appropriate and taking account of all prevailing circumstances”51. The process of negotiations has to attend the principles of maritime delimitation established by international legislation. It is necessary to consider that: -

Although the Peruvian State has not ratified the United Nations Convention on the Law of the Sea (UNCLOS), the international norms about the delimitation of the maritime spaces cannot be ignored by Peru.

-

Although the Chilean State, in its declaration of ratification of the United Nations Convention on the Law of the Sea, established that it does not accept any of the procedures with respect to the disputes about the delimitation of the marine spaces (Territorial Sea, Economic Exclusive Zone and Continental Shelf), the international norms about the delimitation of the maritime spaces cannot be ignored by Chile.

c.- Basis for the Intervention of Third Parties: The articles 36, 52, and 54 of the Charter of the United Nations provide the effort to settle local disputes peacefully through regional arrangements or by regional agencies, before referring them to the Security Council. Article 23 of the Charter of the Organisation of American States (1948), signed in Bogotá in 1948 and as amended by the Protocol of Cartagena de Indias (1985), provides that international disputes between member states must be submitted to the Organisation for peaceful settlement, although this is not to be interpreted as an impairment of the rights and obligations of member states under articles 34 and 35 of the UN Charter. The American Treaty of Pacific Settlement (1948), called the Pact of Bogotá, sets out the procedures in detail, ranging from good offices, mediation and conciliation to arbitration and judicial settlement by the International Court of Justice. The Organisation of American States also uses the Inter-American Committee on Peaceful Settlement, a subsidiary organ 51

Prescott, Op Cit., p. 90.

34

of the Council, created in 1970. The third party can participate as Good Offices, Mediation, Inquiry or Conciliation, as was mentioned. In those cases, the process aims at persuading the parties to reach satisfactory terms for the termination of the dispute by themselves. Also, the intervention of interstate courts and tribunals in adjudication procedures is possible, as arbitration and judicial settlement, which will issue the decision in accordance with law and equity, that means that the general principles of justice common to legal system should be taken into account as well as the provisions of international law. The most important body, by prestige and jurisdiction, is the International Court of Justice, principal judicial organ of the United Nations52, especially for “its capacity to decide disputes between states and it capacity to give advisory opinions when requested so to do by particular qualified entities”53. The International Court of Justice requires that a matter brought before it should be a legal dispute54. In accordance with the Court, a dispute could be regarded as a disagreement over a point of law or fact, a conflict of legal views or of interests between two parties 55, but a mere assertion is not sufficient, it must be shown that the claim of one party is positively opposed by the other56. The exhaustion of diplomatic negotiations is not a prerequisite to going to the Court57. The International Tribunal for the Law of the Sea was established by the UNCLOS as a mean of settling disputes; its jurisdiction comprises “all disputes and all applications submitted to it in accordance with the Convention of the Law of the Sea and all matters specifically provided for any other agreement which confers jurisdiction on the Tribunal”58.

UN Charter, article 92 Shaw, Malcom Op Cit., p. 972. 54 ICJ Statute, article 36(2). 55 Shaw, Malcom, Op Cit., p. 969. 56 ICJ, the Interpretation of Peace Treaties case. 57 Shaw, Malcom, Op Cit. , p. 971, 58 UNCLOS, Annex six, Article 21 - Statute of the Tribunal. 52 53

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d.- Actions for the Negotiations (1)

Revision of the claims of each country: The process for the formation of the maritime boundary should begin with the revision of the claims of both countries specifying the exact limits of the claimed zone by each country. That will permit the determination of the area overlapped. The construction of the maritime boundary claim of each country involves three processes. First, it is necessary to establish the baseline to be used by the state; the selection of this line will fix the outer edge of the state’s internal waters. Second, the determination of the outer edge of the continental shelf. And finally, the drawing of their maritime limits with the high sea and with the adjacent state, some of which would overlap.

(2)

Preliminary contact: Chile and Peru would engage in preliminary correspondence and informal contacts in order to reduce misperceptions and to make an estimate of the difficulties concerned.

(3)

Work of delegations: When issues have been clarified delegations of Chile and Peru would then engage in discussions to discover whether grounds exist for an agreement. At this stage, it would help to have technical persons with skills in oceanography, geology, fishing, and law to be in attendance. If an agreement is reached, then a boundary is likely to result. Of course, the Foreign Minister of each country must always reach the final arrangement.

(4)

Intervention of third parties: If Chile and Peru are unable to reach an agreement, then, the governments might decide the intervention of third parties, mainly representatives of the Organization of American States, that facilitate the agreement, by means of good offices, mediation, commission of inquiry, or conciliation. If necessary, both countries have to resort to arbitration or to refer the matter for settlement to a tribunal. Such a tribunal would be the International Court of Justice or 36

the International Tribunal for the Law of the Sea. It is essential that both countries have confidence in the objectivity of the tribunal, and confidence that the presentation of their case will result in a satisfactory line. III.- SOLVING THE BLOCKADE OF NEGOTIATIONS Peru, since 1986, has urged Chile to establish negotiations to define the maritime boundary, and the answer of Chile has been to ignore the problem adducing that there is nothing to define, because that matter was solved in the international instruments signed in 1952 and 1954. In this moment, it is clear that the Chilean State does not consider negotiating; evidently the status quo favours it, because the fishing vessels of Peru do not have presence in the area. In this context, the resort to the International Court of Justice appears as the only alternative able to introduce a new dynamic to the controversy; its jurisprudence in maritime boundary disputes shows aspects of essential importance for the equitable solution. The jurisdiction of the Court exists by virtue of Article XXXI of the American Treaty on Pacific Settlement (the Pact of Bogotá) of 30 April 1948, which states that for the parties of the Treaty, the jurisdiction of the International Court of Justice is compulsory ipso facto without the necessity of any special agreement in all disputes of a juridical nature concerning (amongst other) any question of International Law. That means that, this case can be referred to the International Court of Justice only by Peru, without the necessity of any special agreement or acceptance of Chile. That procedure was followed in 1999 by Nicaragua facing the negative of Honduras to negotiate the maritime boundary. The text of the requirement to the Court could be: to determine the course of the single maritime boundary between areas of territorial sea, continental shelf and exclusive economic zone appertaining respectively to Chile and Peru, in accordance with equitable principles and relevant circumstances recognized by general international law as applicable to such a delimitation of a single maritime boundary.

37

Without the capacity of effective pressure to induce the Chilean State to negotiate, the only thing that Peru has is the justice of its juridical position. This makes it the only thing that can solve the absence of negotiations. The jurisdictional proposal does not exclude the possibility of negotiation; on the contrary, it seeks to activate it and to make Chile abandon its attitude of ignoring the controversy. This is the main possibility that can open the way to direct and serious negotiations. In the maritime boundary between Chile and Peru there is no other option; during more than 18 years Peru has attempted without success all the peaceful means for starting negotiations. Time does not play in favour of the peace. Leaving the controversy to future generations is irresponsible and can produce tensions and the outbreak of violent conflict. Posing the jurisdictional resource is the only concrete and positive alternative, apart from the actions already realized, and it is necessary to solve the controversy and prevent the outbreak of violent conflict.

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CONCLUSIONS

There is an official controversy, registered by the United Nations, between Chile and Peru about the delimitation of their maritime boundary. The misunderstanding is a consequence of the imprecision, ambiguity and inconsistency in international instruments signed by them. There is not, and never has been, any treaty or agreement fixing the maritime boundary between Chile and Peru. The Law of the Sea establishes that, the delimitation on the Territorial Sea is accomplished on the basis of the “equidistance and special circumstances” rule, and the delimitation of the Continental Shelf and Economic Exclusive Zone is in terms of an “equitable solution”. In accordance with the legislation of maritime spaces, consistent with the jurisprudence of maritime delimitation worldwide and taking in consideration the special circumstances of this case, the maritime boundary between Chile and Peru should be the equidistant line. However, the delimitation cannot be imposed unilaterally. It must be sought and effected by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving positive result. Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence, specially the International Court of Justice. Chile and Peru must initiate negotiations for settling their maritime boundary, in the interests of fairness and regional security, stability and prosperity.

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BIBLIOGRAPHY Books: Blake, Gerald H., “Maritime Boundaries and Ocean Resources”. London: Croom Helm, first edition, 1987. Blake, Gerald H., “Maritime Boundaries”. London: Routledge, first edition, 1994. Burgess, Heidi and Burgess Guy, “Encyclopedia of Conflict Resolution”, Santa Barbara: BC-CLIO, first edition, 1997. Ira Glassner, Martin, “Neptune’s Domain”. Boston: Unwin Hyman Inc., first edition, , 1990. Johnston, Douglas M., “The Theory and History of Ocean Boundary-Making”. Montreal: McGill Queen University Press, first edition, 1988. Malanczuk, Peter, “Modern introduction to International Law”. London: Routledge, seventh edition, , 1994. Prescott, J.R.V., “The Maritime Political Boundaries of the World”. London: Methuen, first edition, , 1985. Shaw, Malcom N. “International Law”. Cambridge: Cambridge University Press, fifth edition, 2003. United Nations, “United Nations Convention of the Law of the Sea, 1982”. United Nations, “United Nations Charter”.

40

Williamson, Edwin. “History of Latin America”. London: The Penguin Press – Wallen Lane, first edition, 1992. Yearbooks: International Court of Justice, “Annual Reports”, years 1969, 1984, 1985, 2000, 2001. Le Hague, published in the web page of the ICJ. Article in Journals or Magazines: Blake, Gerald, “State Limits in the Early Twenty-first Century: Observations on Form and Function”. Geopolitics, Vol. 5, No. 1 (summer 2000), pp 1-18. Galdorisi, George, “The United Sates and the Law of the Sea: Changing Interest and New Imperatives”. Newport Papers, Naval War College Review, (Autumn 1996). Mahdi Zaharaa “Prospective Anglo-Scottish Maritime Boundary Revisited”. EIJL, Vol. 12, (2001), pp 77-108. Nichols, Sue and Monahan, David, “Fuzzy Boundaries in a Sea of Uncertainly”. The Coastal Cadastre – Onland, Offshore – Proceedings of the New Zealand Institute of Surveyors annual meeting, New Zealand (October 1999), pp 33-43. Pegg, Scott, “Globalization and Natural-Resource Conflicts”. Newport Papers, Naval War College Review, (Autumn 2003). Pratt, Martin, “The Maritime Boundary dispute between Honduras and Nicaragua in the Caribean Sea”. IBRU’s Boundary and Security Bulletin, volume 9 No. 2 (Summer 2001). United States Department of State - Bureau of Intelligence and Research, “Limits in the Seas No. 86 Maritime Boundary Chile – Peru”.– July 2, 1979.

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Zackrison, James L. and Meason, James E., “Chile, Mar Presencial, and the Law of the Sea”. Newport Papers, Naval War College Review, (Summer 1997). Unpublished Material: Vargas, Patricia, “The maritime boundary between Peru and Chile, antecedents, problem, and solution on the basis of the new Law of the Sea”, Thesis for the title of lawyer, Catholic University, Lima, 2002.

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ANNEX ONE DECLARATION ON MARITIME ZONE OR DECLARATION OF SANTIAGO, 18 AUGUST 1952, BY ECUADOR, PERU AND CHILE 1.-

Governments have the obligation to ensure for their peoples the necessary conditions of subsistence, and to provide them with the resources for their economic development.

2.-

Consequently, they are responsible for the conservation and protection of their natural resources and for the regulation of the development of these resources in order to secure the best possible advantages for their respective countries.

3.-

Thus, it is also their duty to prevent any exploitation of the resources, beyond the scope of their jurisdiction, which endangers the existence, integrity and conservation of these resources to detriment of peoples who, because of their geographical situation, posses irreplaceable means of subsistence and vital economic resources in their seas.

In view of the foregoing considerations, the governments of Chile, Ecuador, and Peru, determined to conserve and safeguard for their respective peoples the natural resources of the marine zones adjacent to their coasts, formulate the following declaration: (I)

The geological and biological factors which determine the existence, conservation and development of marine fauna and flora in the waters along the coast of the countries making the Declaration are such that the former extension of the territorial sea and the contiguous zone are inadequate for the purposes of the conservation, development and exploitation of these resources, to which the coastal countries are entitled.

(II)

In the light of these circumstances, the Governments of Chile, Ecuador and Peru proclaim as a norm of their international maritime policy that they each 43

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. (III) The exclusive jurisdiction and sovereignty over this maritime zone shall also encompass exclusive sovereignty and jurisdiction over the seabed and the subsoil thereof. (IV) 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 another of those countries, the maritime zone of the islands or group of islands shall be limited by the parallel at the point at which the land frontier of the States concern reaches the sea. (V) 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 though the area indicated for ships of all nations. (VI)

For the application of the principles contained in this Declaration, the Governments of Chile, Ecuador and Peru hereby announce their intention to sign agreements or conventions which shall establish general norms to regulate and protect hunting and fishing with 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.

SOURCE: Literal transcription from the Web Page of the United Nations - Law of the Sea www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/CHLECU-PER1952MZ.PDF

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ANNEX TWO AGREEMENT RELATING TO A SPECIAL MARITIME FRONTIER ZONE (04 DECEMBER 1954) The Governments of the Republics of Chile, Ecuador and Peru, in accordance with the agreement known as Resolution Nº X, signed in Santiago, Chile, on 8th October 1954 by the Permanent Commission of the Conference on Exploitation and Conservation of the Maritime Resources of the South Pacific. After seeing the proposals and recommendations approved in October of the present year by the said Permanent Commission, Have designated to the following plenipotentiaries: His Excellency the President of the Republic of Chile has nominated H.E. Mister Alfonso Bulnes Calvo, Ambassador Extraordinary and Chilean Plenipotentiary in the Peru; His Excellency the President of the Republic of Ecuador has nominated H.E. Mister Jorge Salvador Lara, Charge d’Affaires of Ecuador in Peru; and His Excellency the President of the Republic of Peru has nominated H.E. Mister David Aguilar Cornejo, Minister of Foreign Affairs of Peru, Who; AND WHEREAS: Experience has shown that innocent and inadvertent violations of the maritime frontier between adjacent states occur frequently because small vessels manned by crews with insufficient knowledge of navigation or not equipped with the necessary instruments have difficulty in determining accurately their position on the high sea; 45

The application of penalties in such cases always produces ill-feeling in the fishermen and friction between the countries concerned, which may affect adversely the spirit of cooperation and unity which should at all times prevail among the countries signatories of the instruments signed in Santiago; and It is desirable to avoid the occurrence of such unintentioned infringements, the consequences of which affect principally the fishermen; AGREE: FIRST: A Special zone is hereby established, at a distance of 12 nautical miles from the coast, extending to breath of 10 nautical miles on either side of the parallel which constitutes the marine boundary between the two countries. SECOND: The accidental presence in the said zone of vessels of either of the adjacent countries, which is a vessel of the nature described in the paragraph beginning with the words “Experience has shown” in the preamble hereto, shall not be considered to be a violation of the waters of the maritime zone, though this provision shall not be construed as recognizing any right to engage, with deliberate intent, is hunting or fishing in the said special zone. THIRD: The fishing or hunting within the zone of 12 nautical miles from the coast should be reserved exclusively to the nationals of each country. FOURTH: All the provisions of this Agreement shall be deemed to be an integral and supplementary part of, and not in any way to abrogate, the resolutions and decisions adopted at the Conference of the Exploitation and Conservation of the Maritime Resources of the South Pacific, held at Santiago de Chile, in August 1952.

46

IN TESTIMONY OF WHICH, the respective plenipotentiary representatives of the Governments of Chile, Ecuador and Peru sign three copies of this document in Lima on the fourth day of the month of December in the year one thousand nine hundred and fifty four. FOR THE CHILEAN GOVERNMENT: Alfonso Bulnes Calvo. FOR THE ECUADOREAN GOVERNMENT: Jorge Salvador Lara FOR THE PERUVIAN GOVERNMENT: David Aguilar Cornejo

SOURCE: Literal transcription from “LIMITS IN THE SEAS” No. 86 – “MARITIME BOUNDARY CHILE – PERU”. US DEPARTMENT OF STATE - BUREAU OF INTELLIGENCE AND RESEARCH

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ANNEX THREE STATE PRACTICE IN MARITIME DELIMITATION The following table shows the state practice in maritime delimitation, the information has been taken from the article “Prospective Anglo-Scottish Maritime Boundary Revisited”, written by Mahdi Zaharaa, and published in EIJL, Vol. 12, 2001, pages 106-108 Equidistance

Simple

Denmark – Netherlands, Denmark – Norway, Denmark –

line

equidistance

UK, Norway – UK, Norway – Sweden, US – Cook

line

Islands, US – New Zealand, US – Mexico, Dominican Republic – Colombia, Finland – URSS, Haiti – Cuba, India – Sri Lanka, Sri Lanka – Maldives, Italy – Spain, India – Maldives, Panama – Colombia, Poland – URSS, Sweden – Norway, URSS – Finland, URSS – Poland, URSS – Turkey, France – St. Lucia, France – UK, France

Modified

– Venezuela, Netherlands – UK. Denmark – Canada, Denmark – Sweden, Norway – URSS,

equidistance

US – Cuba, Dominican Republic – Venezuela, Finland –

line

Sweden, Haiti – Colombia, India – Indonesia, Italy – Greece, Italy – Yugoslavia, Italy – Tunisia, Mexico – Cuba, Panama – Costa Rica, Poland – German Democratic

Negotiated line

Republic, Saudi Arabia – Sudan, Uruguay – Argentina. Denmark – Federal Republic of Germany, Norway – Iceland, US – Venezuela, Colombia – Costa Rica, Colombia – Ecuador, France – Spain, France – Brazil, Netherlands – Federal Republic of Germany, Netherlands – Venezuela, UK – Federal Republic of Germany, UKIreland, Indonesia – Thailand, Indonesia – Malaysia, Uruguay – Brazil, France – Venezuela,

48