by Chile is totally inequitable as it accords Chile a full 200-nautical-mile maritime extension,
whereas Peru, in contrast, suffers a severe cut-off effect. Peru states that it is extraordinary for
Chile to seek to characterize a boundary line, which accords Chile more than twice as much
maritime area as it would Peru, as a stable frontier which is beneficial to Peru. Mercator Projection (18° 20' S)
BOLIVIA
PERU
Ilo
Arica
200 nautical miles
from Peru's coast
The maritime boundary lines
Tacna
Maritime boundary along parallel
Sketch-map No. 2:
OCEAN
as claimed by Chile
for illustrative purposes only.
This sketch-map has been prepared
claimed by Peru and Chile respectively
as c
al
mi
ed b y P eru
Marit mi
e b oundary a ol
ng e qu di
is
at
nce l ni
e
PACIFIC
CHILE
WGS 84
200 nautical miles
from Chile's coast
- 16 -- 17 -
IV. WHETHER THERE IS AN AGREED MARITIME BOUNDARY
24. In order to settle the dispute before it, the Court must first ascertain whether an agreed
maritime boundary exists, as Chile claims. In addressing this question, the Parties considered the
significance of the 1947 Proclamations, the 1952 Santiago Declaration and various agreements
concluded in 1952 and 1954. They also referred to the practice of the Parties subsequent to the
1952 Santiago Declaration. The Court will deal with each of these matters in turn.
1. The 1947 Proclamations of Chile and Peru
25. As noted above (see paragraph 19), in their 1947 Proclamations, Chile and Peru
unilaterally proclaimed certain maritime rights extending 200 nautical miles from their respective
coasts.
26. The Parties agree that the relevant historical background to these Proclamations involves
a number of comparable proclamations by other States, namely the United States of America’s two
Proclamations of its policy with respect to both the natural resources of the subsoil and sea-bed of
the continental shelf, and coastal fisheries in certain areas of the high seas, both dated
28 September 1945, the Mexican Declaration with Respect to Continental Shelf dated
29 October 1945 and the Argentinean Declaration Proclaiming Sovereignty over the Epicontinental
Sea and the Continental Shelf dated 11 October 1946. Both Parties agree on the importance of fish
and whale resources to their economies, submitting that the above-mentioned Proclamations by the
United States of America placed increased pressure on the commercial exploitation of fisheries off
the coast of the Pacific States of Latin America, thus motivating their 1947 Proclamations.
27. Beyond this background, the Parties present differing interpretations of both the content
and legal significance of the 1947 Proclamations.
28. According to Peru, Chile’s 1947 Declaration was an initial and innovative step, whereby
it asserted an alterable claim to jurisdiction, dependent on the adoption of further measures;
nothing in this Declaration indicated any intention, on the part of Chile, to address the question of
lateral maritime boundaries with neighbouring States. Peru argues that its own 1947 Decree is
similarly provisional, representing an initial step and not purporting to fix definitive limits of
Peruvian jurisdiction.
Peru contends that although its 1947 Decree refers to the Peruvian zone of control and
protection as “the area covered between the coast and an imaginary parallel line to it at a distance
of two hundred (200) nautical miles measured following the line of the geographical parallels”,
such reference simply described the manner in which the seaward limits of the maritime zone
would be drawn, with there being no intention to set any lateral boundaries with neighbouring
States. Peru further considers that, according to terminology at the relevant time, the language of
“sovereignty” in its 1947 Decree referred simply to rights over resources.
- 18 -
29. By contrast, Chile understands the Parties’ 1947 Proclamations as more relevant,
considering them to be “concordant unilateral proclamations, each claiming sovereignty to a
distance of 200 nautical miles”, being “substantially similar in form, content and effect”. Chile
observes that each of the Parties proclaims national sovereignty over its adjacent continental shelf,
as well as in respect of the water column, indicating also a right to extend the outer limit of its
respective maritime zone.
30. Peru contests Chile’s description of the 1947 Proclamations as “concordant”,
emphasizing that, although Chile’s 1947 Declaration and Peru’s 1947 Decree were closely related
in time and object, they were not co-ordinated or agreed between the Parties.
31. Chile further argues that the 1947 Proclamations set clear boundaries of the maritime
zones referred to therein. Chile contends that the method in Peru’s 1947 Decree of using a
geographical parallel to measure the outward limit of the maritime zone also necessarily determines
the northern and southern lateral limits of such zone along such line of geographical parallel.
According to Chile, its own references to a “perimeter” and to the “mathematical parallel” in its
1947 Declaration could be similarly understood as indicating that a tracé parallèle method was
used to indicate the perimeter of the claimed Chilean zone.
32. Chile adds that parallels of latitude were also used in the practice of American States.
Peru responds that the use of parallels of latitude by other American States described by Chile are
not instances of the use of parallels of latitude as international maritime boundaries.
33. For Chile, the primary significance of the 1947 Proclamations is as antecedents to the
1952 Santiago Declaration. Chile also refers to the 1947 Proclamations as circumstances of the
conclusion of the 1952 Santiago Declaration and the 1954 Special Maritime Frontier Zone
Agreement, in accordance with Article 32 of the Vienna Convention on the Law of Treaties. Chile
maintains that the 1947 Proclamations, in particular Peru’s use of a “line of the geographic
parallels” to measure its maritime projection, rendered the boundary delimitation uncontroversial in
1952, as there could be no less controversial boundary delimitation than when the claimed
maritime zones of two adjacent States abut perfectly but do not overlap. However, Chile further
clarifies that it does not consider that the 1947 Proclamations themselves established a maritime
boundary between the Parties.
34. Peru questions the Chilean claim that the adjacent maritime zones abut perfectly by
pointing out that the 1947 Proclamations do not stipulate co-ordinates or refer to international
boundaries. Peru’s view on the connection between the 1947 Proclamations and the 1952 Santiago
Declaration is that the 1947 Proclamations cannot constitute circumstances of the 1952 Santiago
- 19 -
Declaration’s conclusion in the sense of Article 32 of the Vienna Convention on the Law of
Treaties as they pre-date the conclusion of the 1952 Santiago Declaration by five years. Peru also
questions Chile’s assertion that the 1947 Proclamations constitute circumstances of the conclusion
of the 1954 Special Maritime Frontier Zone Agreement.
35. The Parties further disagree on the legal nature of the 1947 Proclamations, particularly
Chile’s 1947 Declaration. Chile contends that the 1947 Proclamations each had immediate effect,
without the need for further formality or enacting legislation. Peru denies this, contending rather
that Chile’s 1947 Declaration did not have the nature of a legal act. It points to the fact that the
1947 Declaration was published only in a daily newspaper and not in the Official Gazette of Chile.
36. Chile’s response to these arguments is that the status of its 1947 Declaration under
domestic law is not determinative of its status under international law, emphasizing that it was an
international claim made by the President of Chile and addressed to the international community.
Chile points out that the Parties exchanged formal notifications of their 1947 Proclamations,
arguing that the lack of protest thereto demonstrates acceptance of the validity of the other’s claim
to sovereignty, including in relation to the perimeter. This was challenged by Peru.
*
37. The relevant paragraphs of Chile’s 1947 Declaration provide as follows:
“Considering:
1. That the Governments of the United States of America, of Mexico and of the
Argentine Republic, by presidential declarations made on 28 September 1945,
29 October 1945, and 11 October 1946, respectively,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. That they have explicitly proclaimed the rights of their States to protect, preserve,
control and inspect fishing enterprises, with the object of preventing illicit
activities threatening to damage or destroy the considerable natural riches of this
kind contained in the seas adjacent to their coasts, and which are indispensable to
the welfare and progress of their respective peoples; and that the justice of such
claims is indisputable;
3. That it is manifestly convenient, in the case of the Chilean Republic, to issue a
similar proclamation of sovereignty, not only by the fact of possessing and having
already under exploitation natural riches essential to the life of the nation and
- 20 -
contained in the continental shelf, such as the coal-mines, which are exploited both
on the mainland and under the sea, but further because, in view of its topography
and the narrowness of its boundaries, the life of the country is linked to the sea and
to all present and future natural riches contained within it, more so than in the case
of any other country;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The Government of Chile confirms and proclaims its national sovereignty over all
the continental shelf adjacent to the continental and island coasts of its national
territory, whatever may be their depth below the sea, and claims by consequence
all the natural riches which exist on the said shelf, both in and under it, known or
to be discovered.
(2) The Government of Chile confirms and proclaims its national sovereignty over the
seas adjacent to its coasts whatever may be their depths, and within those limits
necessary in order to reserve, protect, preserve and exploit the natural resources of
whatever nature found on, within and below the said seas, placing within the
control of the government especially all fisheries and whaling activities with the
object of preventing the exploitation of natural riches of this kind to the detriment
of the inhabitants of Chile and to prevent the spoiling or destruction of the said
riches to the detriment of the country and the American continent.
(3) The demarcation of the protection zones for whaling and deep sea fishery in the
continental and island seas under the control of the Government of Chile will be
made in accordance with this declaration of sovereignty at any moment which the
Government may consider convenient, such demarcation to be ratified, amplified,
or modified in any way to conform with the knowledge, discoveries, studies and
interests of Chile as required in the future. Protection and control is hereby
declared immediately over all the seas contained within the perimeter formed by
the coast and the mathematical parallel projected into the sea at a distance of
200 nautical miles from the coasts of Chilean territory. This demarcation will be
calculated to include the Chilean islands, indicating a maritime zone contiguous to
the coasts of the said islands, projected parallel to these islands at a distance of
200 nautical miles around their coasts.
(4) The present declaration of sovereignty does not disregard the similar legitimate
rights of other States on a basis of reciprocity, nor does it affect the rights of free
navigation on the high seas.”
38. The relevant paragraphs of Peru’s 1947 Decree provide as follows:
“The President of the Republic
Considering:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
That the shelf contains certain natural resources which must be proclaimed as
our national heritage; - 21 -
That it is deemed equally necessary that the State protect, maintain and establish
a control of fisheries and other natural resources found in the continental waters which
cover the submerged shelf and the adjacent continental seas in order that these
resources which are so essential to our national life may continue to be exploited now
and in the future in such a way as to cause no detriment to the country’s economy or to
its food production;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
That the right to proclaim sovereignty and national jurisdiction over the entire
extension of the submerged shelf as well as over the continental waters which cover it
and the adjacent seas in the area required for the maintenance and vigilance of the
resources therein contained, has been claimed by other countries and practically
admitted in international law (Declaration of the President of the United States of
28 September 1945; Declaration of the President of Mexico of 29 October 1945;
Decree of the President of the Argentine Nation of 11 October 1946; Declaration of
the President of Chile of 23 June 1947);
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
With the advisory vote of the Cabinet:
Decrees:
1. To declare that national sovereignty and jurisdiction are extended to the
submerged continental or insular shelf adjacent to the continental or insular shores
of national territory, whatever the depth and extension of this shelf may be.
2. National sovereignty and jurisdiction are exercised as well over the sea adjoining
the shores of national territory whatever its depth and in the extension necessary to
reserve, protect, maintain and utilize natural resources and wealth of any kind
which may be found in or below those waters.
3. As a result of previous declarations the State reserves the right to establish the
limits of the zones of control and protection of natural resources in continental or
insular seas which are controlled by the Peruvian Government and to modify such
limits in accordance with supervening circumstances which may originate as a
result of further discoveries, studies or national interests which may become
apparent in the future and at the same time declares that it will exercise the same
control and protection on the seas adjacent to the Peruvian coast over the area
covered between the coast and an imaginary parallel line to it at a distance of two
hundred (200) nautical miles measured following the line of the geographical
parallels. As regards islands pertaining to the Nation, this demarcation will be
traced to include the sea area adjacent to the shores of these islands to a distance of
two hundred (200) nautical miles, measured from all points on the contour of these
islands. - 22 -
4. The present declaration does not affect the right to free navigation of ships of all
nations according to international law.”
39. The Court notes that the Parties are in agreement that the 1947 Proclamations do not
themselves establish an international maritime boundary. The Court therefore will consider the
1947 Proclamations only for the purpose of ascertaining whether the texts evidence the Parties’
understanding as far as the establishment of a future maritime boundary between them is
concerned.
40. The Court observes that paragraph 3 of Chile’s 1947 Declaration referred to a
“mathematical parallel” projected into the sea to a distance of 200 nautical miles from the Chilean
coast. Such a mathematical parallel limited the seaward extent of the projection, but did not fix its
lateral limits. The 1947 Declaration nonetheless stated that it concerned the continental shelf and
the seas “adjacent” to the Chilean coasts. It implied the need to fix, in the future, the lateral limits
of the jurisdiction that it was seeking to establish within a specified perimeter. The Court further
notes that Peru’s 1947 Decree, in paragraph 3, referred to “geographical parallels” in identifying its
maritime zone. The description of the relevant maritime zones in the 1947 Proclamations appears
to use a tracé parallèle method. However, the utilization of such method is not sufficient to
evidence a clear intention of the Parties that their eventual maritime boundary would be a parallel.
41. The Court recalls that paragraph 3 of Chile’s 1947 Declaration provides for the
establishment of protective zones for whaling and deep sea fishery, considering that these may be
modified in any way “to conform with the knowledge, discoveries, studies and interests of Chile as
required in the future”. This conditional language cannot be seen as committing Chile to a
particular method of delimiting a future lateral boundary with its neighbouring States; rather,
Chile’s concern relates to the establishment of a zone of protection and control so as to ensure the
exploitation and preservation of natural resources.
42. The language of Peru’s 1947 Decree is equally conditional. In paragraph 3, Peru
reserves the right to modify its “zones of control and protection” as a result of “national interests
which may become apparent in the future”.
43. In view of the above, the language of the 1947 Proclamations, as well as their provisional
nature, precludes an interpretation of them as reflecting a shared understanding of the Parties
concerning maritime delimitation. At the same time, the Court observes that the Parties’
1947 Proclamations contain similar claims concerning their rights and jurisdiction in the maritime
zones, giving rise to the necessity of establishing the lateral limits of these zones in the future. - 23 -
44. Having reached this conclusion, the Court does not need to address Chile’s argument
concerning the relevance of the communication of the 1947 Proclamations inter se and Peru’s
response to that argument. The Court notes, however, that both Peru and Chile simply