of the Court, both Parties recognized that their claim made in the 1952 Santiago Declaration did not
correspond to the international law of that time and was not enforceable against third parties, at
least not initially.
117. On the basis of the fishing activities of the Parties at that time, which were conducted
up to a distance of some 60 nautical miles from the main ports in the area, the relevant practice of
other States and the work of the International Law Commission on the Law of the Sea, the Court
considers that the evidence at its disposal does not allow it to conclude that the agreed maritime
boundary along the parallel extended beyond 80 nautical miles from its starting-point.
* - 45 -
118. In light of this tentative conclusion, the Court now considers further elements of
practice, for the most part subsequent to 1954, which may be of relevance to the issue of the extent
of the agreed maritime boundary.
C. Legislative practice
119. In examining the legislative practice, the Court first turns to the adoption by Peru in
1955 of a Supreme Resolution on the Maritime Zone of 200 Miles. Its Preamble recites the need to
specify, in cartographic and geodesic work, the manner of determining the Peruvian maritime zone
of 200 nautical miles referred to in the 1947 Decree and the 1952 Santiago Declaration. Its first
article states that the line was to be limited at sea by a line parallel to the Peruvian coast and at a
constant distance of 200 nautical miles from it. Article 2 provides:
“In accordance with clause IV [‘el inciso IV’] of the Declaration of Santiago,
the said line may not extend beyond that of the corresponding parallel at the point
where the frontier of Peru [‘la frontera del Perú’] reaches the sea.”
Peru contends that Article 1 employs an arc of circles method, as, it says, was also the case with its
1952 Petroleum Law. Chile rejects that interpretation of both instruments and submits that both
use the tracé parallèle method, supporting the use of the parallel of latitude for the maritime
boundary. Chile also places considerable weight on the reference in the Resolution to paragraph IV
of the 1952 Santiago Declaration.
120. In this regard, the Court has already concluded that paragraph IV of the 1952 Santiago
Declaration does not determine the maritime boundary separating the general maritime zones of
Peru and Chile. It need not consider that matter further in the present context. The Court does not
see the requirement in Article 1 of the 1955 Supreme Resolution that the line be “at a constant
distance of 200 nautical miles from [the coast]” and parallel to it as using the tracé parallèle
method in the sense that Chile appears to understand it. Some points on a line drawn on that basis
(using the parallel lines of latitude) would in certain areas of Peruvian coastal waters, especially
near the land boundary of the two States, be barely 100 nautical miles from the closest point on the
coast. That would not be in conformity with the plain words of the 1955 Supreme Resolution.
Hence, the Peruvian 1955 Supreme Resolution is of no assistance when it comes to determining the
extent of the maritime frontier whose existence the Parties acknowledged in 1954.
121. In respect of Chilean legislation, Peru highlights the absence of references to a lateral
maritime boundary in five Chilean texts: a 25 July 1953 Decree which defined the maritime
jurisdiction of the Directorate General of Maritime Territory and Merchant Marine; a 26 July 1954
Message from the Chilean Executive to the Congress for the Approval of the 1952 Agreements; a
23 September 1954 Supreme Decree by which Chile approved the 1952 Santiago Declaration; an
11 February 1959 Decree on Permits for Fishing by Foreign Vessels in Chilean Territorial Waters;
- 46 -
and a 4 June 1963 Decree on the Appointment of the Authority which Grants Fishing Permits to
Foreign Flag Vessels in Chilean Jurisdictional Waters. In response, Chile contends that the
1952 Santiago Declaration became part of Chilean law upon ratification and so there was no need
to reaffirm the existence of the maritime boundary in subsequent legislation.
122. The Court finds that these five Chilean instruments are of no assistance as to the extent
of the maritime frontier whose existence the Parties acknowledged in 1954, for the following
reasons. The 1953 Decree relates to the territorial sea out to 12 nautical miles. The 1954 Message
recalls the 200-nautical-mile claim made by the three States in 1952 but makes no mention of
boundaries between those States. The 1954 Supreme Decree simply reproduces the text of the
instruments adopted at the Lima Conference without commenting on their effect. The 1959 Decree
refers repeatedly to “Chilean territorial waters” without defining the limits lateral or seaward
of these waters. Finally, the 1963 Decree speaks of the 200-nautical-mile zone established under
the 1952 Santiago Declaration but makes no reference to a lateral boundary within that zone.
D. The 1955 Protocol of Accession
123. In 1955 the three States adopted a Protocol of Accession to the 1952 Santiago
Declaration. In that Protocol they agree “to open the accession of Latin American States to [the
1952 Santiago Declaration] with regard to its fundamental principles” contained in the paragraphs
of the Preamble. The three States then reproduce substantive paragraphs I, II, III and V, but not
paragraph IV. On the matter of boundaries they declare that
“the adhesion to the principle stating that the coastal States have the right and duty to
protect, conserve and use the resources of the sea along their coasts, shall not be
constrained by the assertion of the right of every State to determine the extension and
boundaries of its Maritime Zone. Therefore, at the moment of accession, every State
shall be able to determine the extension and form of delimitation of its respective zone
whether opposite to one part or to the entirety of its coastline, according to the peculiar
geographic conditions, the extension of each sea and the geological and biological
factors that condition the existence, conservation and development of the maritime
fauna and flora in its waters.”
The only other provision of the 1952 Santiago Declaration which was the subject of an express
exclusion from the 1955 Protocol was paragraph VI which concerns the possibility of future
agreements in application of these principles. This provision was excluded on the basis that it was
“determined by the geographic and biological similarity of the coastal maritime zones of the
signatory countries” to the Declaration. It is common ground that no State in fact ever took
advantage of the 1955 Protocol. - 47 -
124. Peru sees the affirmation of the power of an acceding State to determine the extension
and limits of its zone as confirming that the 1952 Santiago Declaration had not settled the question
of the maritime boundaries between the States parties. Chile reads the positions of the two Parties
on paragraph IV in the contrary sense: by that exclusion they indicated their understanding that
their maritime boundary was already determined.
125. Given the conclusion that the Court has already reached on paragraph IV, its exclusion
from the text of the 1955 Protocol, and the fact that no State has taken advantage of the Protocol,
the Court does not see the Protocol as having any real significance. It may however be seen as
providing some support to Peru’s position that the use of lateral maritime boundaries depended on
the particular circumstances of the States wishing to accede to the 1952 Santiago Declaration.
More significantly, the 1955 Protocol may also be seen as an attempt to reinforce solidarity for the
reasons given by Peru, Chile and Ecuador in their own national legal measures and in the
1952 Santiago Declaration, and as manifested in their other actions in 1955, in response to the
protests of maritime powers (see paragraphs 76 to 77 above).
E. Enforcement activities
126. Much of the enforcement practice relevant to the maritime boundary can be divided
between that concerning vessels of third States and that involving Peru and Chile, and by reference
to time. In respect of the second distinction the Court recalls that its primary, but not exclusive,
interest is with practice in the early 1950s when the Parties acknowledged the existence of their
maritime boundary.
127. In respect of vessels of third States, Chile draws on a 1972 report of the CPPS
Secretary-General on Infractions in the Maritime Zone between 1951 and 1971. The data, the
report says, are incomplete for the first ten years. According to the report, in the course of the
20 years it covers, Peru arrested 53 vessels, Chile five and Ecuador 122, the final figure explained
by the fact that the interest of foreign fishing fleets had focused, especially in more recent years, on
tuna, the catch of which was greater in Ecuadorean waters. All but six of the 53 vessels arrested in
Peruvian waters carried the United States flag; five (in the Onassis fleet) carried the Panamanian;
and one the Japanese. In the case of 20 of the 53 arrests, the report records or indicates the place at
which the arrests took place and all of those places are far to the north of the parallel of latitude
extending from the land boundary between Peru and Chile, and closer to the boundary between
Peru and Ecuador. For 36, the distance from the coast is indicated. They include the Onassis fleet
which on one account was arrested 126 nautical miles offshore (see paragraph 75 above). Of the
other arrests, only one (in 1965) was beyond 60 nautical miles of the coast of Peru and only two
others (in 1965 and 1968) were beyond 35 nautical miles; all three of these arrests occurred more
than 500 nautical miles to the north of that latitudinal parallel. - 48 -
128. Until the mid-1980s, all the practice involving incidents between the two Parties was
within about 60 nautical miles of the coasts and usually much closer. In 1954 and 1961, Chile
proposed that fishing vessels of the Parties be permitted to fish in certain areas of the maritime
zone of the other State, up to 50 nautical miles north/south of the parallel, but the exchanges
between the Parties do not indicate how far seaward such arrangements would have operated; in
any event Chile’s proposals were not accepted by Peru. In December 1962, Peru complained about
“the frequency with which Chilean fishing vessels have trespassed into Peruvian waters, at times
up to 300 metres from the beach”. In March 1966, the Peruvian patrol ship Diez Canseco was
reported to have intercepted two Chilean fishing vessels and fired warning shots at them, but the
entire incident took place within 2 nautical miles of the coast. Two incidents in September 1967
the sighting by Peru of several Chilean trawlers “north of the jurisdictional boundary” and the
sighting by Chile of a Peruvian patrol boat “south of the Chile-Peru boundary parallel” both
occurred within 10 nautical miles of Point Concordia. Following a third incident that month, Peru
complained about a Chilean fishing net found 2 nautical miles west of Point Concordia. In respect
of these incidents, the Court recalls that the zone of tolerance established under the
1954 Agreement starts at a distance of 12 nautical miles from the coast along the parallel of
latitude.
129. The practice just reviewed does not provide any basis for putting into question the
tentative conclusion that the Court expressed earlier. That conclusion was based on the fishing
activity of the Parties and contemporaneous developments in the law of the sea in the early and
mid-1950s.
F. The 1968-1969 lighthouse arrangements
130. The Court recalls its discussion of the 1968-1969 lighthouse arrangements (see
paragraphs 96 to 99 above). The record before the Court indicates that the lights would have been
visible from a maximum distance of approximately 15 nautical miles; as Chile acknowledges, the
Parties were particularly concerned with visibility within the first 12 nautical miles from the coast,
up to the point where the zone of tolerance under the 1954 Special Maritime Frontier Zone
Agreement commenced, and where many of the incursions were reported. There are indications in
the case file that the towers had radar reflectors but there is no information at all of their effective
range or their use in practice. The Court does not see these arrangements as having any
significance for the issue of the extent of the maritime boundary.
G. Negotiations with Bolivia (1975-1976)
131. In 1975-1976, Chile entered into negotiations with Bolivia regarding a proposed
exchange of territory that would provide Bolivia with a “corridor to the sea” and an adjacent
maritime zone. The record before the Court comprises the Chilean proposal to Bolivia of
December 1975, Peru’s reply of January 1976, Chile’s record (but not Peru’s) of discussions
between the Parties in July 1976 and Peru’s counter-proposal of November 1976. Chile’s proposal
- 49 -
of December 1975 stated that the cession would include, in addition to a strip of land between
Arica and the Chile-Peru land boundary, “the maritime territory between the parallels of the
extreme points of the coast that will be ceded (territorial sea, economic zone and continental
shelf)”. This proposal was conditional, among other things, on Bolivia ceding to Chile an area of
territory as compensation. The record before the Court does not include the Bolivian-Chilean
exchanges of December 1975. As required under Article 1 of the Supplementary Protocol to the
1929 Treaty of Lima, Peru was formally consulted on these negotiations. In January 1976, Peru
acknowledged receipt of documents from Chile regarding the proposed cession. Peru’s response
was cautious, noting a number of “substantial elements” arising, including the consequences of
“the fundamental alteration of the legal status, the territorial distribution, and the socio-economic
structure of an entire region”. According to Chile’s record of discussions between the Parties, in
July 1976 Chile informed Peru that it would seek assurances from Bolivia that the latter would
comply with the 1954 Special Maritime Frontier Zone Agreement, while Peru confirmed that it had
not identified in Chile’s proposal any “major problems with respect to the sea”. On
18 November 1976, Peru made a counter-proposal to Chile which contemplated a different
territorial régime: cession by Chile to Bolivia of a sovereign corridor to the north of Arica; an area
of shared Chilean-Peruvian-Bolivian sovereignty over territory between that corridor and the sea;
and exclusive Bolivian sovereignty over the sea adjacent to the shared territory.
132. According to Chile, its negotiations with Bolivia proceeded on the explicit basis that the
existing maritime boundary, following the latitudinal parallel, would delimit the envisaged
maritime zone of Bolivia vis-à-vis Peru. Chile submits that Peru was specifically consulted on this
matter, and expressed no objection or reservation, but rather “acknowledged the existence and
course of the Chile-Peru maritime boundary” at one of the sessions between the Parties in 1976.
For its part, Peru stresses that neither its Note of January 1976 nor its alternative proposal of
November 1976 mentioned a parallel of latitude or suggested any method of maritime delimitation
for Bolivia’s prospective maritime zone. Peru further contends that Chile’s records of the
1976 discussions are unreliable and incomplete, and that its own position at the time was clearly
that the territorial divisions in the area were still to be negotiated.
133. The Court does not find these negotiations significant for the issue of the extent of the
maritime boundary between the Parties. While Chile’s proposal referred to the territorial sea,
economic zone and continental shelf, Peru did not accept this proposal. Peru’s January 1976
acknowledgment did not mention any existing maritime boundary between the Parties, while its
counter-proposal from November of that year did not indicate the extent or nature of the maritime
area proposed to be accorded to Bolivia. - 50 -
H. Positions of the Parties at the Third United Nations Conference on the Law of the Sea
134. The Parties also directed the Court to certain statements made by their representatives
during the Third United Nations Conference on the Law of the Sea. First, both referred to a joint
declaration on 28 April 1982 made by Chile, Ecuador and Peru, together with Colombia, which had
joined the CPPS in 1979, wherein those States pointed out 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 its basic objectives stated in the Santiago Declaration of
1952”.
The Court notes that this statement did not mention delimitation, nor refer to any existing maritime
boundaries between those States.
135. A second matter raised by the Parties is Peru’s involvement in the negotiations relating
to maritime delimitation of States with adjacent or opposite coasts. The Peruvian position on that
matter was expressed at various points during the negotiations; on 27 August 1980, the Head of the
Peruvian Delegation stated it as follows:
“Where a specific agreement on the delimitation of the territorial sea, exclusive
economic zone and continental shelf between States with opposite or adjacent coasts
did not exist or where there were no special circumstances or historic rights
recognized by the Parties, the median line should as a general rule be used . . . since it
was the most likely method of achieving an equitable solution.”
Peru contends that its “active participation” in the negotiations on this matter illustrates that it had
yet to resolve its own delimitation issues. Given the conclusions reached above, however, the
Court need not consider that matter. The statements by Peruvian representatives at the Third
United Nations Conference on the Law of the Sea relate to prospective maritime boundary
agreements between States (and provisional arrangements to be made pending such agreements);
they do not shed light on the extent of the existing maritime boundary between Peru and Chile.
I. The 1986 Bákula Memorandum
136. It is convenient to consider at this point a memorandum sent by Peruvian
Ambassador Bákula to the Chilean Ministry of Foreign Affairs on 23 May 1986, following his
audience with the Chilean Foreign Minister earlier that day (“the Bákula Memorandum”). Peru
contends that in that Memorandum it “invites Chile to agree an international maritime boundary”.
Chile, to the contrary, submits that the Bákula Memorandum was an attempt to renegotiate the
existing maritime boundary. - 51 -
137. According to the Memorandum, Ambassador Bákula had handed the Chilean Minister a
personal message from his Peruvian counterpart. The strengthening of the ties of friendship
between the two countries
“must be complemented by the timely and direct solution of problems which are the
result of new circumstances, with a view to enhancing the climate of reciprocal
confidence which underlies every constructive policy.
One of the cases that merits immediate attention is the formal and definitive
delimitation of the marine spaces, which complement the geographical vicinity of Peru
and Chile and have served as scenario of a long and fruitful joint action.”
At that time, the Memorandum continued, the special zone established by the 1954 Agreement
“is not adequate to satisfy the requirements of safety nor for the better attention to the
administration of marine resources, with the aggravating circumstance that an
extensive interpretation could generate a notorious situation of inequity and risk, to the
detriment of the legitimate interests of Peru, that would come forth as seriously
damaged”.
It referred to the various zones recognized in UNCLOS and said this:
“The current ‘200-mile maritime zone’ as defined at the Meeting of the
Permanent Commission for the South Pacific in 1954 is, without doubt, a space
which is different from any of the abovementioned ones in respect of which domestic
legislation is practically non-existent as regards international delimitation. The one
exception might be, in the case of Peru, the Petroleum Law (No. 11780 of
12 March 1952), which established as an external limit for the exercise of the
competences of the State over the continental shelf ‘an imaginary line drawn seaward
at a constant distance of 200 miles’. This law is in force and it should be noted that it