Mr. Ben Juratowitch, Solicitor admitted in England and Wales, Freshfields Bruckhaus
Deringer LLP, - 8 -
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
- 9 -
Concordia . . . the terminal point of the land boundary established pursuant to the Treaty . . . of
3 June 1929” and, on the other, the recognition in favour of Peru of a “maritime zone lying within
200 nautical miles of Peru’s coast” and which should thus appertain to it, “but which Chile
considers to be part of the high seas”.
In its Application, Peru seeks to found the jurisdiction of the Court on Article XXXI of the
American Treaty on Pacific Settlement signed on 30 April 1948, officially designated, according to
Article LX thereof, as the “Pact of Bogotá” (hereinafter referred to as such).
2. In accordance with Article 40, paragraph 2, of the Statute of the Court, the Registrar
immediately communicated the Application to the Government of Chile; and, under paragraph 3 of
that Article, all other States entitled to appear before the Court were notified of the Application.
3. Pursuant to the instructions of the Court under Article 43 of the Rules of Court, the
Registrar addressed to States parties to the Pact of Bogotá the notifications provided for in
Article 63, paragraph 1, of the Statute of the Court. In accordance with the provisions of
Article 69, paragraph 3, of the Rules of Court, the Registrar moreover addressed to the
Organization of American States (hereinafter the “OAS”) the notification provided for in
Article 34, paragraph 3, of the Statute of the Court. As provided for in Article 69, paragraph 3, of
the Rules of Court, the Registry transmitted the written pleadings to the OAS and asked that
organization whether or not it intended to furnish observations in writing within the meaning of
that article; the OAS indicated that it did not intend to submit any such observations.
4. On the instructions of the Court, in accordance with the provisions of Article 69,
paragraph 3, of the Rules of Court, the Registrar addressed to the Permanent Commission for the
South Pacific (hereinafter the “CPPS”, from the Spanish acronym for “Comisión Permanente del
Pacífico Sur”) the notification provided for in Article 34, paragraph 3, of the Statute of the Court
with regard to the Declaration on the Maritime Zone, signed by Chile, Ecuador and Peru, in
Santiago on 18 August 1952 (hereinafter the “1952 Santiago Declaration”), and to the Agreement
relating to a Special Maritime Frontier Zone, signed by the same three States in Lima on
4 December 1954 (hereinafter the “1954 Special Maritime Frontier Zone Agreement”). In
response, the CPPS indicated that it did not intend to submit any observations in writing within the
meaning of Article 69, paragraph 3, of the Rules of Court.
5. On the instructions of the Court under Article 43 of the Rules of Court, the Registrar
addressed to Ecuador, as a State party to the 1952 Santiago Declaration and to the 1954 Special
Maritime Frontier Zone Agreement, the notification provided for in Article 63, paragraph 1, of the
Statute of the Court.
6. Since the Court included upon the Bench no judge of the nationality of either of the
Parties, each Party proceeded to exercise the right conferred upon it by Article 31, paragraph 3, of
the Statute to choose a judge ad hoc to sit in the case. Peru chose Mr. Gilbert Guillaume and Chile
Mr. Francisco Orrego Vicuña. - 10 -
7. By an Order dated 31 March 2008, the Court fixed 20 March 2009 as the time-limit for the
filing of the Memorial of Peru and 9 March 2010 as the time-limit for the filing of the
Counter-Memorial of Chile. Those pleadings were duly filed within the time-limits so prescribed.
8. By an Order of 27 April 2010, the Court authorized the submission of a Reply by Peru and
a Rejoinder by Chile, and fixed 9 November 2010 and 11 July 2011 as the respective time-limits
for the filing of those pleadings. The Reply and the Rejoinder were duly filed within the
time-limits thus fixed.
9. Referring to Article 53, paragraph 1, of the Rules of Court, the Governments of Colombia,
Ecuador and Bolivia asked to be furnished with copies of the pleadings and documents annexed in
the case. Having ascertained the views of the Parties pursuant to that same provision, the Court
decided to grant each of these requests. The Registrar duly communicated these decisions to the
said Governments and to the Parties.
10. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court, after having
ascertained the views of the Parties, decided that copies of the pleadings and documents annexed
would be made accessible to the public on the opening of the oral proceedings.
11. Public hearings were held between 3 and 14 December 2012, at which the Court heard
the oral arguments and replies of:
For Peru: H.E. Mr. Allan Wagner,
Mr. Alain Pellet,
Mr. Rodman Bundy,
Mr. Tullio Treves,
Sir Michael Wood,
Mr. Vaughan Lowe.
For Chile: H.E. Mr. Albert van Klaveren Stork,
Mr. Pierre-Marie Dupuy,
Mr. David Colson,
Mr. James Crawford,
Mr. Jan Paulsson,
Mr. Georgios Petrochilos,
Mr. Luigi Condorelli,
Mr. Samuel Wordsworth. - 11 -
12. At the hearings, a Member of the Court put a question to the Parties, to which replies
were given orally in accordance with Article 61, paragraph 4, of the Rules of Court.
*
13. In its Application, the following requests were made by Peru:
“Peru requests the Court to determine the course of the boundary between the
maritime zones of the two States in accordance with international law . . . and to
adjudge and declare that Peru possesses exclusive sovereign rights in the maritime
area situated within the limit of 200 nautical miles from its coast but outside Chile’s
exclusive economic zone or continental shelf.
The Government of Peru, further, reserves its right to supplement, amend or
modify the present Application in the course of the proceedings.”
14. In the written proceedings, the following submissions were presented by the Parties:
On behalf of the Government of Peru,
in the Memorial and in the Reply:
“For the reasons set out [in Peru’s Memorial and Reply], the Republic of Peru
requests the Court to adjudge and declare that:
(1) The delimitation between the respective maritime zones between the Republic of
Peru and the Republic of Chile, is a line starting at ‘Point Concordia’ (defined as
the intersection with the low-water mark of a 10-kilometre radius arc, having as its
centre the first bridge over the River Lluta of the Arica-La Paz railway) and
equidistant from the baselines of both Parties, up to a point situated at a distance of
200 nautical miles from those baselines, and
(2) Beyond the point where the common maritime border ends, Peru is entitled to
exercise exclusive sovereign rights over a maritime area lying out to a distance of
200 nautical miles from its baselines.
The Republic of Peru reserves its right to amend these submissions as the case
may be in the course of the present proceedings.” - 12 -
On behalf of the Government of Chile,
in the Counter-Memorial and in the Rejoinder:
“Chile respectfully requests the Court to:
(a) dismiss Peru’s claims in their entirety;
(b) adjudge and declare that:
(i) the respective maritime zone entitlements of Chile and Peru have been fully
delimited by agreement;
(ii) those maritime zone entitlements are delimited by a boundary following the
parallel of latitude passing through the most seaward boundary marker of the
land boundary between Chile and Peru, known as Hito No. 1, having a
latitude of 18° 21' 00" S under WGS 84 Datum; and
(iii) Peru has no entitlement to any maritime zone extending to the south of that
parallel.”
15. At the oral proceedings, the Parties presented the same submissions as those contained in
their written pleadings.
*
* *
I. GEOGRAPHY
16. Peru and Chile are situated in the western part of South America; their mainland coasts
face the Pacific Ocean. Peru shares a land boundary with Ecuador to its north and with Chile to its
south. In the area with which these proceedings are concerned, Peru’s coast runs in a north-west
direction from the starting-point of the land boundary between the Parties on the Pacific coast and
Chile’s generally follows a north-south orientation. The coasts of both Peru and Chile in that area
are mostly uncomplicated and relatively smooth, with no distinct promontories or other
distinguishing features. (See sketch-map No. 1: Geographical context.) Iquique
CHILE
Arica
Tacna
LIMA
Ilo
COLOMBIA ECUADOR
QUITO
OCEAN
PACIFIC
BOLIVIA
Sketch-map No. 1:
PERU
for illustrative purposes only. BRAZIL
WGS 84
Mercator Projection (20° S)
This sketch-map has been prepared
Geographical context
SANTIAGO
ARGENTINA
- 13 -- 14 -
II. HISTORICAL BACKGROUND
17. Chile gained its independence from Spain in 1818 and Peru did so in 1821. At the time
of independence, Peru and Chile were not neighbouring States. Situated between the two countries
was the Spanish colonial territory of Charcas which, as from 1825, became the Republic of Bolivia.
In 1879 Chile declared war on Peru and Bolivia, in what is known historically as the War of the
Pacific. In 1883 hostilities between Chile and Peru formally came to an end under the Treaty of
Ancón. Under its terms, Peru ceded to Chile the coastal province of Tarapacá; in addition, Chile
gained possession of the Peruvian provinces of Tacna and Arica for a period of ten years on the
basis of an agreement that after that period of time there would be a plebiscite to determine
sovereignty over these provinces. After the signing of the truce between Bolivia and Chile in 1884
and of the 1904 Treaty of Peace and Friendship between them, the entire Bolivian coast became
Chilean.
18. Chile and Peru failed to agree on the terms of the above-mentioned plebiscite. Finally,
on 3 June 1929, following mediation attempts by the President of the United States of America, the
two countries signed the Treaty for the Settlement of the Dispute regarding Tacna and Arica
(hereinafter the “1929 Treaty of Lima”) and its Additional Protocol, whereby they agreed that
Tacna would be returned to Peru while Chile would retain Arica. The 1929 Treaty of Lima also
fixed the land boundary between the two countries. Under Article 3 of that Treaty, the Parties
agreed that a Mixed Commission of Limits should be constituted in order to determine and mark
the agreed boundary using a series of markers (“hitos” in Spanish). In its 1930 Final Act, the
1929-1930 Mixed Commission recorded the precise locations of the 80 markers that it had placed
on the ground to demarcate the land boundary.
19. In 1947 both Parties unilaterally proclaimed certain maritime rights extending
200 nautical miles from their coasts (hereinafter collectively the “1947 Proclamations”). The
President of Chile issued a Declaration concerning his country’s claim on 23 June 1947 (hereinafter
the “1947 Declaration” or “Chile’s 1947 Declaration”, reproduced at paragraph 37 below). The
President of Peru issued Supreme Decree No. 781, claiming the rights of his country, on
1 August 1947 (hereinafter the “1947 Decree” or “Peru’s 1947 Decree”, reproduced at
paragraph 38 below).
20. In 1952, 1954 and 1967, Chile, Ecuador and Peru negotiated twelve instruments to which
the Parties in this case make reference. Four were adopted in Santiago in August 1952 during the
Conference on the Exploitation and Conservation of the Marine Resources of the South Pacific (the
Regulations for Maritime Hunting Operations in the Waters of the South Pacific; the Joint
Declaration concerning Fishing Problems in the South Pacific; the Santiago Declaration; and the
Agreement Relating to the Organization of the Permanent Commission of the Conference on the
Exploitation and Conservation of the Marine Resources of the South Pacific). Six others were
adopted in Lima in December 1954 (the Complementary Convention to the Declaration of
Sovereignty on the Two-Hundred-Mile Maritime Zone; the Convention on the System of
Sanctions; the Agreement relating to Measures of Supervision and Control in the Maritime Zones
of the Signatory Countries; the Convention on the Granting of Permits for the Exploitation of the
Resources of the South Pacific; the Convention on the Ordinary Annual Meeting of the Permanent
Commission for the South Pacific; and the Agreement Relating to a Special Maritime Frontier
Zone). And, finally, two agreements relating to the functioning of the CPPS were signed in Quito
in May 1967. - 15 -
21. On 3 December 1973, the very day the Third United Nations Conference on the Law of
the Sea began, the twelve instruments were submitted by the three signatory States to the United
Nations Secretariat for registration under Article 102 of the Charter. The four 1952 instruments
(including the Santiago Declaration) were registered on 12 May 1976 (United Nations, Treaty
Series (UNTS), Vol. 1006, pp. 301, 315, 323 and 331, Registration Nos. I-14756 to I-14759). The
United Nations Treaty Series specifies that the four 1952 treaties came into force on
18 August 1952 upon signature. The 1954 Special Maritime Frontier Zone Agreement was
registered with the United Nations Secretariat on 24 August 2004 (UNTS, Vol. 2274, p. 527,
Registration No. I-40521). The United Nations Treaty Series indicates that the 1954 Special
Maritime Frontier Zone Agreement entered into force on 21 September 1967 by the exchange of
instruments of ratification. With regard to the two 1967 agreements, the Secretariat was informed
in 1976 that the signatory States had agreed not to insist upon the registration of these instruments,
as they related to matters of purely internal organization.
Representatives of the three States also signed in 1955 and later ratified the Agreement for
the Regulation of Permits for the Exploitation of the Resources of the South Pacific. That treaty
was not, however, submitted to the United Nations for registration along with the other
twelve instruments in 1973 or at any other time.
III. POSITIONS OF THE PARTIES
22. Peru and Chile have adopted fundamentally different positions in this case. Peru argues
that no agreed maritime boundary exists between the two countries and asks the Court to plot a
boundary line using the equidistance method in order to achieve an equitable result. Chile contends
that the 1952 Santiago Declaration established an international maritime boundary along the
parallel of latitude passing through the starting-point of the Peru-Chile land boundary and
extending to a minimum of 200 nautical miles. It further relies on several agreements and
subsequent practice as evidence of that boundary. Chile asks the Court to confirm the boundary
line accordingly. (See sketch-map No. 2: The maritime boundary lines claimed by Peru and Chile
respectively.)
Peru also argues that, beyond the point where the common maritime boundary ends, it is
entitled to exercise exclusive sovereign rights over a maritime area lying out to a distance of
200 nautical miles from its baselines. (This maritime area is depicted on sketch-map No. 2 in a
darker shade of blue.) Chile responds that Peru has no entitlement to any maritime zone extending
to the south of the parallel of latitude along which, as Chile maintains, the international maritime
boundary runs.
23. Chile contends that the principle of pacta sunt servanda and the principle of stability of
boundaries prevent any attempt to invite the Court to redraw a boundary that has already been
agreed. Chile adds that there have been significant benefits to both Parties as a result of the
stability of their long-standing maritime boundary. Peru argues that the delimitation line advocated