27 JANUARY 2014
JUDGMENT
MARITIME DISPUTE
(PERU v. CHILE)
___________
DIFFÉREND MARITIME
(PÉROU c. CHILI)
27 JANVIER 2014
ARRÊT
TABLE OF CONTENTS
Paragraphs
CHRONOLOGY OF THE PROCEDURE 1-15
I. GEOGRAPHY 16
II. HISTORICAL BACKGROUND 17-21
III. POSITIONS OF THE PARTIES 22-23
IV. WHETHER THERE IS AN AGREED MARITIME BOUNDARY 24-151
1. The 1947 Proclamations of Chile and Peru 25-44
2. The 1952 Santiago Declaration 45-70
3. The various 1954 Agreements 71-95
A. The Complementary Convention to the 1952 Santiago
Declaration 74-77
B. The Agreement relating to Measures of Supervision and
Control of the Maritime Zones of the Signatory Countries 78-79
C. The Agreement relating to a Special Maritime Frontier Zone 80-95
4. The 1968-1969 lighthouse arrangements 96-99
5. The nature of the agreed maritime boundary 100-102
6. The extent of the agreed maritime boundary 103-151
A. Fishing potential and activity 104-111
B. Contemporaneous developments in the law of the sea 112-118
C. Legislative practice 119-122
D. The 1955 Protocol of Accession 123-125
E. Enforcement activities 126-129
F. The 1968-1969 lighthouse arrangements 130
G. Negotiations with Bolivia (1975-1976) 131-133
H. Positions of the Parties at the Third United Nations
Conference on the Law of the Sea 134-135
I. The 1986 Bákula Memorandum 136-142
J. Practice after 1986 143-148
K. The extent of the agreed maritime boundary: conclusion 149-151
V. THE STARTING-POINT OF THE AGREED MARITIME BOUNDARY 152-176
VI. THE COURSE OF THE MARITIME BOUNDARY FROM POINT A 177-195
VII. CONCLUSION 196-197
OPERATIVE CLAUSE 198
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INTERNATIONAL COURT OF JUSTICE
YEAR 2014 2014 27 January General List No. 137
27 January 2014
MARITIME DISPUTE
(PERU v. CHILE)
Geography - Historical background - 1929 Treaty of Lima between Chile and Peru - 1947 Proclamations of Chile and Peru - Twelve instruments negotiated by Chile, Ecuador and Peru.
*
No international maritime boundary established by 1947 Proclamations - No shared understanding of the Parties concerning maritime delimitation - Necessity of establishing the lateral limits of their maritime zones in the future.
1952 Santiago Declaration is an international treaty - Rules of interpretation - No express reference to delimitation of maritime boundaries - Certain elements relevant however to maritime delimitation - Ordinary meaning of paragraph IV - Maritime zones of island territories - Scope of 1952 Santiago Declaration restricted to agreement on limits between certain insular maritime zones and zones generated by continental coasts - Object and purpose - Supplementary means of interpretation confirm that no general maritime delimitation was effected by 1952 Santiago Declaration - Suggestion of existence of some sort of a shared understanding of a more general nature concerning maritime boundaries - 1952 Santiago Declaration did not establish a lateral maritime boundary between Chile and Peru along the parallel.
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1954 Agreements - Complementary Convention to 1952 Santiago Declaration - Primary purpose to assert signatory States’ claims to sovereignty and jurisdiction made in 1952 - Agreement relating to Measures of Supervision and Control of Maritime Zones - No indication as to location or nature of maritime boundaries - Special Maritime Frontier Zone Agreement - Not limited to the Ecuador-Peru maritime boundary - Delay in ratification without bearing on scope and effect of Agreement - Acknowledgment of existence of an agreed maritime boundary - Tacit agreement - Tacit agreement cemented by 1954 Special Maritime Frontier Zone Agreement - No indication of nature and extent of maritime boundary - 1964 Bazán Opinion - Conclusion of the Court as to the existence of an agreed maritime boundary not altered.
1968-1969 lighthouse arrangements - Limited purpose and geographical scope - No reference to a pre-existent delimitation agreement - Arrangements based on presumed existence of a maritime boundary extending along parallel beyond 12 nautical miles - No indication of extent and nature of maritime boundary.
Nature of agreed maritime boundary - All-purpose maritime boundary.
Extent of agreed maritime boundary - Assessment of relevant practice of the Parties pre-1954 - Fishing potential and activity - Species taken in the early 1950s were generally to be found within a range of 60 nautical miles from the coast - Orientation of the coast - Location of main ports in the region - Zone of tolerance along the parallel for small fishing boats - Principal fishing activity carried out by small boats - Fisheries activity, in itself, not determinative of extent of the boundary - Parties however unlikely to have considered the agreed maritime boundary to extend to 200-nautical-mile limit - Contemporaneous developments in the law of the sea - State practice - Work of the International Law Commission - Claim made in 1952 Santiago Declaration did not correspond to the international law of that time - No evidence to conclude that the agreed maritime boundary along parallel extended beyond 80 nautical miles.
Assessment of relevant practice of the Parties post-1954 - Legislative practice of the Parties - 1955 Protocol of Accession to 1952 Santiago Declaration - Enforcement activities - 1968-1969 lighthouse arrangements - Negotiations with Bolivia (1975-1976) - Positions of the Parties at Third United Nations Conference on the Law of the Sea - 1986 Bákula Memorandum - Practice after 1986 - No basis to put into question the Court’s earlier conclusion.
In view of entirety of relevant evidence presented to the Court, agreed maritime boundary between the Parties extends to a distance of 80 nautical miles along the parallel.
*
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Starting-point of the agreed maritime boundary - 1929 Treaty of Lima - The Court not asked to determine location of starting-point of land boundary identified as “Concordia” - Boundary Marker No. 1 - 1968-1969 lighthouse arrangements serve as compelling evidence that the agreed maritime boundary follows the parallel that passes through Boundary Marker No. 1 - Point Concordia may not coincide with starting-point of maritime boundary - Starting-point of maritime boundary identified as the intersection of the parallel of latitude passing through Boundary Marker No. 1 with the low-water line.
*
Delimitation to be effected beginning at endpoint of agreed maritime boundary (Point A) - Method of delimitation - Three-stage procedure.
First stage - Construction of a provisional equidistance line starting at Point A - Determination of base points - Provisional equidistance line runs until intersection with the 200-nautical-mile limit measured from Chilean baselines (Point B).
Peru’s second final submission moot - No need for the Court to rule thereon.
Course of the maritime boundary from Point B - Boundary runs along the 200-nautical-mile limit measured from the Chilean baselines until intersection of the 200-nautical-mile limits of the Parties (Point C).
Second stage - Relevant circumstances calling for an adjustment of the provisional equidistance line - No basis for adjusting the provisional equidistance line.
Third stage - Disproportionality test - Calculation does not purport to be precise - No evidence of significant disproportion calling into question equitable nature of provisional equidistance line.
*
Course of the maritime boundary - Geographical co-ordinates to be determined by the Parties in accordance with the Judgment.
JUDGMENT
Present: President TOMKA; Vice-President SEPÚLVEDA-AMOR; Judges OWADA, ABRAHAM, KEITH, BENNOUNA, SKOTNIKOV, CANÇADO TRINDADE, YUSUF, XUE, DONOGHUE, GAJA, SEBUTINDE, BHANDARI; Judges ad hoc GUILLAUME, ORREGO VICUÑA; Registrar COUVREUR.
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In the case concerning the maritime dispute,
between
the Republic of Peru,
represented by
H.E. Mr. Allan Wagner, Ambassador of Peru to the Kingdom of the Netherlands, former Minister for Foreign Affairs, former Minister of Defence, former Secretary-General of the Andean Community,
as Agent;
H.E. Mr. Rafael Roncagliolo, Minister for Foreign Affairs,
as Special Envoy;
H.E. Mr. José Antonio García Belaunde, Ambassador, former Minister for Foreign Affairs,
H.E. Mr. Jorge Chávez Soto, Ambassador, member of the Peruvian Delegation to the Third United Nations Conference on the Law of the Sea, former Adviser of the Minister for Foreign Affairs on Law of the Sea Matters,
as Co-Agents;
Mr. Rodman Bundy, avocat à la Cour d’appel de Paris, member of the New York Bar,
Eversheds LLP, Paris,
Mr. Vaughan Lowe, Q.C., member of the English Bar, Emeritus Professor of International
Law, Oxford University, associate member of the Institut de droit international,
Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense, former Member and former Chairman of the International Law Commission, associate member of the Institut de droit international,
Mr. Tullio Treves, Professor at the Faculty of Law, State University of Milan, former judge of the International Tribunal for the Law of the Sea, Senior Consultant, Curtis, Mallet-Prevost, Colt and Mosle, Milan, member of the Institut de droit international,
Sir Michael Wood, K.C.M.G., member of the English Bar, Member of the International Law
Commission,
as Counsel and Advocates;
Mr. Eduardo Ferrero, Member of the Permanent Court of Arbitration, former Minister for Foreign Affairs, member of the Peruvian Delegation to the Third United Nations Conference on the Law of the Sea,
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Mr. Vicente Ugarte del Pino, former President of the Supreme Court of Justice, former President of the Court of Justice of the Andean Community, former Dean of the Lima Bar Association,
Mr. Roberto MacLean, former judge of the Supreme Court of Justice, former Member of the
Permanent Court of Arbitration,
H.E. Mr. Manuel Rodríguez Cuadros, Ambassador of Peru to UNESCO, former Minister for
Foreign Affairs,
as State Advocates;
Ms Marisol Agüero Colunga, Minister-Counsellor, LL.M., former Adviser of the Minister
for Foreign Affairs on Law of the Sea Matters, Co-ordinator of the Peruvian Delegation,
H.E. Mr. Gustavo Meza-Cuadra, MIPP, Ambassador, Adviser of the Ministry of Foreign
Affairs on Law of the Sea Matters,
Mr. Juan José Ruda, Member of the Permanent Court of Arbitration, Legal Adviser of the
Ministry of Foreign Affairs,
as Counsel;
Mr. Benjamin Samson, Researcher, Centre de droit international de Nanterre (CEDIN),
University of Paris Ouest, Nanterre-La Défense,
Mr. Eran Sthoeger, LL.M., New York University School of Law,
as Assistant Counsel;
Mr. Carlos Enrique Gamarra, Vice Admiral (retired), Hydrographer, Adviser to the Office
for Law of the Sea of the Ministry of Foreign Affairs,
as Special Adviser;
Mr. Ramón Bahamonde, M.A., Advisory Office for the Law of the Sea of the Ministry of
Foreign Affairs,
Mr. Alejandro Deustua, M.A., Advisory Office for the Law of the Sea of the Ministry of
Foreign Affairs,
Mr. Pablo Moscoso de la Cuba, LL.M., Advisory Office for the Law of the Sea of the
Ministry of Foreign Affairs,
as Legal Advisers;
Mr. Scott Edmonds, Cartographer, International Mapping,
Mr. Jaime Valdez, Lieutenant Commander (retired), National Cartographer of the Peruvian
Delegation,
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Mr. Aquiles Carcovich, Captain (retired), Cartographer,
Mr. Thomas Frogh, Cartographer, International Mapping,
as Technical Advisers;
Mr. Paul Duclos, Minister-Counsellor, LL.M., M.A., Advisory Office for the Law of the Sea
of the Ministry of Foreign Affairs,
Mr. Alfredo Fortes, Counsellor, LL.M., Embassy of Peru in the Kingdom of the Netherlands,
Mr. José Antonio Torrico, Counsellor, M.A., Embassy of Peru in the Kingdom of the
Netherlands,
Mr. César Talavera, First Secretary, M.Sc., Embassy of Peru in the Kingdom of the
Netherlands,
as Advisers;
Ms Evelyn Campos Sánchez, Embassy of Peru in the Kingdom of the Netherlands,
Ph.D. candidate, Amsterdam Center for International Law, University of Amsterdam,
Ms Charis Tan, Advocate and Solicitor, Singapore, member of the New York Bar, Solicitor,
England and Wales, Eversheds LLP,
Mr. Raymundo Tullio Treves, Ph.D. candidate, Max Planck Research School for Successful
Disputes Settlement, Heidelberg,
as Assistants,
and
the Republic of Chile,
represented by
H.E. Mr. Albert van Klaveren Stork, Ambassador, former Vice-Minister for Foreign Affairs,
Professor at the University of Chile,
as Agent;
H.E. Mr. Alfredo Moreno Charme, Minister for Foreign Affairs of Chile,
as National Authority;
H.E. Mr. Juan Martabit Scaff, Ambassador of Chile to the Kingdom of the Netherlands,
H.E. Ms María Teresa Infante Caffi, National Director of Frontiers and Limits, Ministry of Foreign Affairs, Professor at the University of Chile, member of the Institut de droit international,
as Co-Agents;
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Mr. Pierre-Marie Dupuy, Professor at the Graduate Institute of International Studies and Development, Geneva, and at the University of Paris II (Panthéon-Assas), associate member of the Institut de droit international,
Mr. James R. Crawford, S.C., LL.D., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the Institut de droit international, Barrister, Matrix Chambers,
Mr. Jan Paulsson, President of the International Council for Commercial Arbitration, President of the Administrative Tribunal of the OECD, Freshfields Bruckhaus Deringer LLP,
Mr. David A. Colson, Attorney-at-Law, Patton Boggs LLP, Washington D.C., member of
the Bars of California and the District of Columbia,
Mr. Luigi Condorelli, Professor of International Law, University of Florence,
Mr. Georgios Petrochilos, Avocat à la Cour and Advocate at the Greek Supreme Court,
Freshfields Bruckhaus Deringer LLP,
Mr. Samuel Wordsworth, Q.C., member of the English Bar, member of the Paris Bar, Essex
Court Chambers,
Mr. Claudio Grossman, Dean, R. Geraldson Professor of International Law, American
University, Washington College of Law,
as Counsel and Advocates;
H.E. Mr. Hernan Salinas, Ambassador, Legal Adviser, Ministry of Foreign Affairs,
Professor, Catholic University of Chile,
H.E. Mr. Luis Winter, Ambassador, Ministry of Foreign Affairs,
Mr. Enrique Barros Bourie, Professor, University of Chile,
Mr. Julio Faúndez, Professor, University of Warwick,
Ms Ximena Fuentes Torrijo, Professor, University of Chile,
Mr. Claudio Troncoso Repetto, Professor, University of Chile,
Mr. Andres Jana, Professor, University of Chile,
Ms Mariana Durney, Legal Officer, Ministry of Foreign Affairs,
Mr. John Ranson, Legal Officer, Professor of International Law, Chilean Navy,
Mr. Ben Juratowitch, Solicitor admitted in England and Wales, Freshfields Bruckhaus
Deringer LLP,
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Mr. Motohiro Maeda, Solicitor admitted in England and Wales, Freshfields Bruckhaus
Deringer LLP,
Mr. Coalter G. Lathrop, Special Adviser, Sovereign Geographic, member of the North
Carolina Bar,
H.E. Mr. Luis Goycoolea, Ministry of Foreign Affairs,
Mr. Antonio Correa Olbrich, Counsellor, Embassy of Chile in the Kingdom of the
Netherlands,
Mr. Javier Gorostegui Obanoz, Second Secretary, Embassy of Chile in the Kingdom of the
Netherlands,
Ms Kate Parlett, Solicitor admitted in England and Wales and in Queensland, Australia,
Ms Nienke Grossman, Assistant Professor, University of Baltimore, Maryland, member of
the Bars of Virginia and the District of Columbia,
Ms Alexandra van der Meulen, Avocat à la Cour and member of the Bar of the State of
New York,
Mr. Francisco Abriani, member of the Buenos Aires Bar,
Mr. Paolo Palchetti, Professor of International Law, University of Macerata,
as Advisers;
Mr. Julio Poblete, National Division of Frontiers and Limits, Ministry of Foreign Affairs,
Ms Fiona Bloor, United Kingdom Hydrographic Office,
Mr. Dick Gent, Marine Delimitation Ltd.,
as Technical Advisers,
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 16 January 2008, the Republic of Peru (hereinafter “Peru”) filed in the Registry of the Court an Application instituting proceedings against the Republic of Chile (hereinafter “Chile”) in respect of a dispute concerning, on the one hand, “the delimitation of the boundary between the maritime zones of the two States in the Pacific Ocean, beginning at a point on the coast called