The International Court of Justice in Maritime Disputes

The Case of Chile and Peru

Julio Faundez

• Publisher: Taylor & Francis
• Year: 2018
• Print ISBN: 9780367606879
• eBook ISBN: 9780429799310
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

The origins of the maritime dispute between Chile and Peru go back to 1952, when these countries, along with Ecuador, asserted sovereignty over 200 nautical miles from their coasts. This maritime claim is widely regarded as one of the most important contributions by a group of developing countries to the law of the sea. Peru then asked the Court of International Justice to delimit its lateral boundary with Chile in accordance with principles of international law. Chile asked the Court to dismiss the request. The question before the ICJ Justice was whether the treaty concluded by the parties when they made their claim had also delimited their lateral boundary.

This book provides a critical analysis of the approach to treaty interpretation by the International Court of Justice in Maritime Disputes. Focusing on the case of Chile and Peru, the book explores two main issues: the interpretation of the Santiago Declaration and its connected treaties; and the tacit agreement that established a lateral maritime boundary with a seaward extension of 80 nautical miles. Part I argues that the Court's finding that the Santiago Declaration did not delimit the lateral boundary is mistaken because it ignores its context, as well as its object and purpose. Part II argues that the finding that the parties had entered into a tacit agreement is an unjustified legal inference derived from a hasty interpretation of the Special Agreement of 1954. It questions that the reliability of the evidence used to determine the seaward extent of the lateral boundary and argues that the Court failed to demonstrate the bearing of contemporaneous developments in the law of the sea on the content of the tacit agreement.

Part I
The Santiago Declaration and connected treaties

This Part examines the Court’s approach to the interpretation of the Santiago Declaration and its connected treaties. It provides background information on the Declaration and the network of treaties that form part of its context. It identifies the main weaknesses in the Court’s reasoning and offers an account of the object and purpose of the Declaration and of the Agreements that are part of its context. It also includes a comprehensive account of the development of Paragraph IV of the Declaration and an examination of the relevant Minutes. This Part argues that a correct application of the international customary principles of treaty interpretation shows that the parties’ understanding was that they had delimited the entire lateral boundary when they concluded the Declaration. It also considers why neither the judges who disagreed with the Court’s finding nor Chile, which argued that the parties had delimited the entire lateral boundary, offered a persuasive alternative to the Court’s reasoning. The final remark raises concerns about the Court’s failure to respond to some of the arguments presented by the parties.

A Background

Between 1952 and 1954, Chile, Ecuador and Peru (hereafter ‘CEP countries’) held two Conferences on the Exploitation and Conservation of the Marine Resources of the South Pacific and concluded ten legal instruments: four in 1952 at the Conference in Santiago and six in 1954 at the Conference in Lima (Annex 4). The most important was the Santiago Declaration on the Maritime Zone (hitherto Santiago Declaration) (Annex 1), which proclaims the parties’ sovereignty and jurisdiction over 200 nautical miles (hitherto nm) from their coasts, including the sea floor and subsoil. Prior to the Declaration, Chile and Peru had issued separate, but concordant Unilateral Proclamations claiming sovereignty and jurisdiction over the adjacent sea up to a distance of 200 nm from the coast. The Proclamations were direct antecedents of the 1952 claim. Nevertheless, during the litigation the parties agreed that their Proclamations had not implicitly delimited their lateral boundary (#39).¹

The maritime claim of the CEP countries was comprehensive. It covered an area of the sea extending 200 nm from their coasts and included living and non-living marine resources in the continental shelf and the subsoil. The Declaration was careful to state that CEP countries would respect the rights of third parties, mainly free navigation, and would implement adequate conservation measures to protect the marine environment and its resources. This reassurance did not satisfy the leading maritime nations, in particular the United States and the United Kingdom, which regarded this vast area of the South Pacific as part of the high seas where their whale hunting and fishing fleets could operate without restriction (there were also protests from Denmark, Norway and Sweden, CCM Annexes 60, 62, 63, 64, 65, 68). They thus promptly issued diplomatic protests, setting the stage for a protracted political and diplomatic dispute between the CEP countries and the United States and other leading maritime nations (Bayitch 1956:499; Kunz 1956:10, 836; Loring 1971:401; Selak 1950:674; Waldock 1956:193; Weissberg 1967:715; Young 1951:2386).

The 200 nm claim, though novel and wide-ranging, was part of a broader process of change in the law of the sea, prompted by major advances in naval and merchant shipping and the emergence of new technologies in fishing and mineral exploitation. In response to these developments, numerous countries made claims that challenged established legal doctrine and international security. As Whittemore Boggs noted in 1951 (Boggs 1951:185):

Never have national claims in adjacent seas been so numerous, so varied, or so inconsistent. And never, for nations facing the high seas, has there been so great a need for universally accepted specific limits of the areas under their jurisdiction in the waters, the sea bed, and the air space adjacent to their coasts. Unless a resolute effort is made to master this situation, it can readily lead to increasing international friction.

The Truman Proclamations of 1945 were the trigger for the flood of claims seeking to enclose maritime areas within nation state jurisdiction (Borchard 1946:55; Francois 1955:81; Hollick 1978:80; Krueger and Nordquist 1979:326; Young 1949). President Truman claimed jurisdiction and control over the continental shelf and announced the establishment of conservation protection zones in areas where vessels from the United States had traditionally fished, regardless of the distance from its coast (Bishop 1962:1212–1213; Hollick 1977–1976; US Naval War College 1956:434). The Truman Proclamations prompted Chile and Peru in 1947 to issue separate proclamations claiming sovereignty and control over the sea adjacent to their coasts to a distance of 200 nm miles and over the continental shelf (Martens 1976:533). Although the US and the Chile/Peru claims were both unilateral acts of appropriation, they were met by markedly different responses. The United States’ claim to the continental shelf, which involved assuming sovereign control over 760,000 square miles of submerged land, carefully avoided using the word sovereignty. Yet, the scope of the claim was such that in 1945 the US Secretary of the Interior described it as equivalent to the opening of the American West or the acquisition of Alaska (US Naval War College 1959/60:34). Despite the enormous area covered by the US claim, other leading maritime powers raised no objections. Their response to the claim by the CEP countries was altogether different. Both the US and the UK Governments rejected it on the ground that it was in breach of the established rule that the territorial sea could not extend beyond 3 miles from the coast. At the time, however, the 3-mile rule was not universally accepted, a point that was strongly made by CEP countries and confirmed by leading contemporary publicists (Bingham 1938:6; Borchard 1946:57; Gidel 1934:171–176; Lauterpacht 1955:24–25; Oda 1955:417). An interesting perspective emerges when a comparison is made between President Truman’s justification and the CEP countries’ justification. President Truman argued that the appropriation of the continental shelf was justified because it was essential that a country was responsible for the conservation and prudent utilization of the resources in the continental shelf. The CEP countries made a similar point. They argued that their claim was justified in order to conserve, develop and exploit marine resources critical to their economic development. While leading maritime powers and their lawyers accepted the US justification without objections, they categorically rejected the CEP countries’ argument (US Naval War College 1959/60:46–50; but see Francois 1955:82). This difference was naturally prompted by different political and economic interests rather than by legal doctrine or principle (Bingham 1940). Indeed, those who agreed with the Truman argument that the search for oil and mineral resources by US companies would further the cause of humanity, did not agree with the CEP countries’ claim because they did not believe that they were honest or capable of making good use of the resources of the sea. (Goldie 1969:31; Kunz 1956:838).

The CEP countries argued that it was indispensable to consider both environmental and economic development factors in order to protect the maritime resources adjacent to their coasts. This point was eloquently made by Enrique García-Sayán, Foreign Minister and member of Peru’s delegation to the First Law of the Sea Conference. In his statement to the Conference, Mr. García-Sayán noted that the Humboldt Current, which has a mean width of 200 nm, was crucially important, accounting for a large concentration of fish, and so providing a valuable source of food for humans and, indirectly, fertilizers for agriculture. He also noted that the current has the effect of preventing cloud formation, thus making the area off the Peruvian coast extremely arid, thus underlying the connection between marine conditions and living organisms in adjoining lands. Thus, in his view, the 200 nm claim constituted a biological limit, essential to promoting well-balanced development (United Nations Conference on the Law of the Sea 1958, Volume IV:17–18; see also, García-Sayán 1974). In technical terms, the CEP countries argued that the extension of their sovereignty had the purpose of defending the ‘bioma’ (or biome), that the biological communities established as a consequence of common climate conditions (US Department of State 1955:1029; US Department of State (Mimeo) 1955:30–32). This argument was an early formulation of the ecosystem perspective reflected in the Rio Declaration (Principle 7) and in environmental treaties such as the Convention on Biological Diversity, which defines an ecosystem as ‘a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit’(See, Matz-Lück and Fuchs 2015:512–513). At the time, however, the CEP countries’ argument was swiftly dismissed by the United States and even ridiculed by some commentators (Goldie 1969). The prevailing view at the time was that the resources of the sea were inexhaustible and that any attempt to restrict distant fishing fleets from exploiting resources adjacent to the CEP countries’ coast was a breach of international law. As the materials in Part II of this book show, this negative response was not shared by most countries in the Latin American region or by smaller coastal countries in other parts of the world. The hostile response of the leading maritime powers did not, however, undermine the CEP countries’ resolve to pursue it. The three Law of the Sea Conferences of 1958, 1960 and 1974 provided them with an important platform to seek international support for their claim. Their efforts were rewarded when, in 1982, the Third Law of the Sea Conference established the Exclusive Economic Zone (EEZ) of no more than 200 nm as a recognised maritime zone. The CEP countries took credit and were given credit for their contribution to the development of the law of the sea (Fleischer 1988:124; Zacklin 1974:62). In a letter to the President of the Conference, dated 28 April 1982, they expressed their delight, noting that

the universal recognition of the rights of sovereignty and jurisdiction of the coastal State within the 200-mile limit provided for in the draft convention is a fundamental achievement of the countries members of the Permanent Commission of the South Pacific, in accordance with the basic objectives stated in the Santiago Declaration of 1952 issued by the Diplomatic Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific held by Chile, Ecuador, and Peru.

(A/CONF.62/L.143, Third United Nations Conference on the Law of the Sea, 1973–1982, Vol. XVI, Eleventh Session)

The international recognition of the EEZ was, however, a mixed blessing. It eroded the solidarity among CEP countries and encouraged Peru openly to question whether the Santiago Declaration had settled its maritime boundary with Chile. This was a surprising development since for nearly four decades the CEP countries seemed to agree that their lateral boundary was the geographic parallel starting from the land boundary terminus and extending seaward to a distance of 200 nm. This view was also reflected in numerous authoritative publications and statements by Government officials from third countries, international lawyers and international institutions (Jagota 1981:118; Oxman 1994:260–261; Prescott and Schoffield 2005:231; United Nations 2000:58; US State Department 1979; for additional references see CCM:155–173). The most authoritative acknowledgement of the delimitation is contained in a special report by Eduardo Jiménez de Aréchaga, a widely respected international lawyer and former member and President of the International Court of Justice (Jiménez de Aréchaga 1993). In 1986, however, Peru challenged this understanding. In a letter to the Chilean Foreign Minister, Peru requested a definitive and comprehensive delimitation of the lateral maritime boundaries. Although Chile’s response was strangely evasive, there were no immediate consequences, and Peru did not pursue this question until 2001. There then followed a series of unsuccessful diplomatic exchanges until 2008, when Peru formally requested the ICJ to delimit its lateral maritime boundary. Chile did not contest the Court’s jurisdiction, but claimed that the Santiago Declaration had delimited the lateral boundary between the two countries. The Court delivered its judgment in January 2014.

B Overview: approach to treaty interpretation

This Section highlights the four main weaknesses of the Court’s interpretation of the Santiago Declaration: its reliance on a literal approach to the interpretation of Paragraph IV; its inadequate analysis of the Declaration; its failure to take the context into account and its disregard of the practice of the parties.

1. Literal meaning

The Santiago Declaration of 1952 sets out the CEP countries’ maritime claim. Paragraph IV, its delimitation provision, reads as follow:

In the case of island territories, the zone of 200 nautical miles shall apply to the entire coast of the island or group of islands. If an island or group of islands belonging to one of the countries making the declaration is less than 200 nautical miles from the general maritime zone belonging to another of those countries, the maritime zone of the island or group of islands shall be limited by the parallel at the point at which the land frontier of the States concerned reaches the sea.

The parties had different views on the meaning of this provision. Peru, claiming that the lateral boundary between Chile and Peru had never been delimited, argued that the second sentence of Paragraph IV applied only to islands in the Ecuador-Peru border, as there were no islands in the vicinity of the land boundary between Chile and Peru (PM:130,132). Its objective was to limit an island’s 200 nm maritime zone in the event it overlapped with the maritime zones generated by the continental coast. Paragraph IV, according to Peru, could not have delimited the parties’ entire lateral boundary because, at the time, international law did not recognise the parties’ claim (PR:144–145,158). Peru also noted that the 200 nm claim did not require any form of delimitation because it was merely a functional device aimed at protecting the parties’ fishing resources (PM:98).

Chile argued that Paragraph IV had delimited the parties’ entire lateral boundary. According to Chile, the reference to the parallel in the second sentence presupposed that the lateral boundary had been delimited by the parallel. It argued that unless the entire lateral boundary had been delimited it would not be possible to determine whether an island is located less than 200 nm from the general maritime zone of a neighbouring state (CCM:83). Chile also argued that the text of the Special Agreement of 1954 and numerous exchanges between the parties recorded in the Minutes of the Declaration and its connected Agreements supported its interpretation. Chile did not concede that Paragraph IV was ambiguous.

The Court’s interpretation of Paragraph IV focused exclusively on the text’s literal meaning (#60):

The Court turns now to paragraph IV of the 1952 Santiago Declaration. The first sentence of paragraph IV specifies that the proclaimed 200-nautical-mile maritime zones apply also in the case of island territories. The second sentence of that paragraph addresses the situation where an island or group of islands of one State party is located less than 200 nautical miles from the general maritime zone of another State party. In this situation, the limit of the respective zones shall be the parallel at the point at which the land frontier of the State concerned reaches the sea. The Court observes that this provision, the only one in the 1952 Santiago Declaration making any reference to the limits of the States parties’ maritime zones, is silent regarding the lateral limits of the maritime zones which are not derived from island territories and which do not abut them.

The Court agreed with Peru’s main argument that Paragraph IV only applies to islands and that the lateral boundary had not been delimited. As a consequence, since there are no islands in the vicinity of the Chile/Peru boundary, Paragraph IV did not apply to Chile.

The Court unequivocally rejected Chile’s argument. Its reasoning was as follows (#61):

The Court is not convinced by Chile’s argument that paragraph IV can be understood solely if it is considered to delimit not only insular maritime zones but also the entirety of the general maritime zones of the States parties. The ordinary meaning of paragraph IV reveals a particular interest in the maritime zones of islands which may be relevant even if a general maritime zone has not yet been established. In effect, it appears that the ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• Abbreviations
• PART I The Santiago Declaration and connected treaties
• PART II The tacit agreement
• Conclusion
• References
• Index