acknowledged receipt of each other’s notification without making any reference to the possible
establishment of an international maritime boundary between them.
2. The 1952 Santiago Declaration
45. As noted above (see paragraph 20), the Santiago Declaration was signed by Chile,
Ecuador and Peru during the 1952 Conference held in Santiago de Chile on the Exploitation and
Conservation of the Marine Resources of the South Pacific.
46. According to Chile, the 1952 Santiago Declaration has been a treaty from its inception
and was always intended by its signatories to be legally binding. Chile further notes that the United
Nations Treaty Series indicates that the 1952 Santiago Declaration entered into force upon
signature on 18 August 1952, with there being no record of any objection by Peru to such
indication.
47. Peru considers that the 1952 Santiago Declaration was not conceived as a treaty, but
rather as a proclamation of the international maritime policy of the three States. Peru claims that it
was thus “declarative” in character, but accepts that it later acquired the status of a treaty after
being ratified by each signatory (Chile in 1954, Ecuador and Peru in 1955) and registered as such
with the United Nations Secretariat on 12 May 1976, pursuant to Article 102, paragraph 1, of the
Charter of the United Nations.
*
48. In view of the above, the Court observes that it is no longer contested that the
1952 Santiago Declaration is an international treaty. The Court’s task now is to ascertain whether
it established a maritime boundary between the Parties.
49. The 1952 Santiago Declaration provides as follows:
“1. Governments have the obligation to ensure for their peoples the necessary
conditions of subsistence, and to provide them with the resources for their
economic development.
2. Consequently, they are responsible for the conservation and protection of their
natural resources and for the regulation of the development of these resources in
order to secure the best possible advantages for their respective countries. - 24 -
3. Thus, it is also their duty to prevent any exploitation of these resources, beyond
the scope of their jurisdiction, which endangers the existence, integrity and
conservation of these resources to the detriment of the peoples who, because of
their geographical situation, possess irreplaceable means of subsistence and vital
economic resources in their seas.
In view of the foregoing considerations, the Governments of Chile, Ecuador and
Peru, determined to conserve and safeguard for their respective peoples the natural
resources of the maritime zones adjacent to their coasts, formulate the following
Declaration:
I. The geological and biological factors which determine the existence,
conservation and development of marine fauna and flora in the waters along
the coasts of the countries making the Declaration are such that the former
extension of the territorial sea and the contiguous zone are inadequate for the
purposes of the conservation, development and exploitation of these
resources, to which the coastal countries are entitled.
II. In the light of these circumstances, the Governments of Chile, Ecuador and
Peru proclaim as a norm of their international maritime policy that they each
possess exclusive sovereignty and jurisdiction over the sea along the coasts
of their respective countries to a minimum distance of 200 nautical miles
from these coasts.
III. The exclusive jurisdiction and sovereignty over this maritime zone shall also
encompass exclusive sovereignty and jurisdiction over the seabed and the
subsoil thereof.
IV. 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 situated
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.
V. This declaration shall be without prejudice to the necessary limitations to the
exercise of sovereignty and jurisdiction established under international law to
allow innocent and inoffensive passage through the area indicated for ships
of all nations.
VI. For the application of the principles contained in this Declaration, the
Governments of Chile, Ecuador and Peru hereby announce their intention to
sign agreements or conventions which shall establish general norms to
regulate and protect hunting and fishing within the maritime zone belonging
to them, and to regulate and co-ordinate the exploitation and development of
all other kinds of products or natural resources existing in these waters which
are of common interest.”
* - 25 -
50. Peru asserts that the 1952 Santiago Declaration lacks characteristics which might be
expected of a boundary agreement, namely, an appropriate format, a definition or description of a
boundary, cartographic material and a requirement for ratification. Chile disagrees with Peru’s
arguments concerning the characteristics of boundary agreements, pointing out that a treaty
effecting a boundary delimitation can take any form.
51. According to Chile, it follows from paragraph IV of the 1952 Santiago Declaration that
the maritime boundary between neighbouring States parties is the parallel of latitude passing
through the point at which the land boundary between them reaches the sea. Chile contends that
paragraph IV delimits both the general and insular maritime zones of the States parties, arguing that
the reference to islands in this provision is a specific application of a generally agreed rule, the
specification of which is explained by the particular importance of islands to Ecuador’s
geographical circumstances. In support of this claim, Chile relies upon the Minutes of the
1952 Conference dated 11 August 1952, asserting that the Ecuadorean delegate requested
clarification that the boundary line of the jurisdictional zone of each country be the respective
parallel from the point at which the border of the countries touches or reaches the sea and that all
States expressed their mutual consent to such an understanding. Chile argues that such an
understanding, as recorded in the Minutes, constitutes an agreement relating to the conclusion of
the 1952 Santiago Declaration, within the meaning of Article 31, paragraph 2 (a) of the Vienna
Convention on the Law of Treaties. Although Chile recognizes that the issue of islands was of
particular concern to Ecuador, it also stresses that there are relevant islands in the vicinity of the
Peru-Chile border.
52. Chile maintains that the relationship between general and insular maritime zones must be
understood in light of the fact that the delimitation of insular zones along a line of parallel is only
coherent and effective if there is also a general maritime delimitation along such parallel. Further,
Chile points out that, in order to determine if an island is situated less than 200 nautical miles from
the general maritime zone of another State party to the 1952 Santiago Declaration, the perimeter of
such general maritime zone must have already been defined.
53. Peru argues that in so far as the continental coasts of the States parties are concerned, the
1952 Santiago Declaration simply claims a maritime zone extending to a minimum distance of
200 nautical miles, addressing only seaward and not lateral boundaries. In Peru’s view,
paragraph IV of the 1952 Santiago Declaration refers only to the entitlement generated by certain
islands and not to the entitlement generated by continental coasts, with the issue of islands being
relevant only between Ecuador and Peru, not between Peru and Chile. Peru contends that even if
some very small islands exist in the vicinity of the Peru-Chile border these are immediately
adjacent to the coast and do not have any effect on maritime entitlements distinct from the coast
itself, nor were they of concern during the 1952 Conference.
54. Peru rejects Chile’s argument that a general maritime delimitation must be assumed in
paragraph IV so as to make the reference to insular delimitation effective. It also questions that a
- 26 -
maritime boundary could result from an alleged practice implying or presupposing its existence.
Peru argues that, if it were true that parallels had been established as international maritime
boundaries prior to 1952, there would have been no need to include paragraph IV as such
boundaries would have already settled the question of the extent of the maritime entitlements of
islands. Peru further claims that the purpose of paragraph IV is to provide a protective zone for
insular maritime entitlements so that even if an eventual maritime delimitation occurred in a
manner otherwise detrimental to such insular entitlements, it could only do so as far as the line of
parallel referred to therein. Finally, Peru contests Chile’s interpretation of the Minutes of the
1952 Conference, arguing also that these do not constitute any form of “recorded agreement” but
could only amount to travaux préparatoires.
55. According to Chile, the object and purpose of the 1952 Santiago Declaration can be
stated at varying levels of specificity. Its most generally stated object and purpose is “to conserve
and safeguard for their respective peoples the natural resources of the maritime zones adjacent to
[the parties’] coasts”. It also has a more specific object and purpose, namely to set forth zones of
“exclusive sovereignty and jurisdiction”. This object and purpose is naturally concerned with
identifying the physical perimeter of each State’s maritime zone within which such sovereignty and
jurisdiction would be exercised. Chile further emphasizes that, although the 1952 Santiago
Declaration constitutes a joint proclamation of sovereignty, it is made by each of the three States
parties, each claiming sovereignty over a maritime zone which is distinct from that claimed by the
other two.
56. Peru agrees with Chile to the extent that the 1952 Santiago Declaration involves joint
action to declare the maritime rights of States parties to a minimum distance of 200 nautical miles
from their coasts so as to protect and preserve the natural resources adjacent to their territories.
Yet, Peru focuses on the 1952 Conference’s purpose as being to address collectively the problem of
whaling in South Pacific waters, arguing that, in order to do so, it was necessary that “between
them” the States parties police the 200-nautical-mile zone effectively. According to Peru, the
object and purpose of the 1952 Santiago Declaration was not the division of fishing grounds
between its States parties, but to create a zone functioning “as a single biological unit” an
exercise of regional solidarity designed to address the threat posed by foreign whaling. Thus,
Peru stresses that the 1952 Santiago Declaration does not include any stipulation as to how the
States parties’ maritime zones are delimited from each other.
*
57. The Court is required to analyse the terms of the 1952 Santiago Declaration in
accordance with the customary international law of treaty interpretation, as reflected in Articles 31
and 32 of the Vienna Convention on the Law of Treaties (see Oil Platforms (Islamic Republic of
Iran v. United States of America), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
p. 812, para. 23; Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports
- 27 -
1994, pp. 21-22, para. 41). The Court applied these rules to the interpretation of treaties which
pre-date the Vienna Convention on the Law of Treaties (Dispute regarding Navigational and
Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 237, para. 47;
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J.
Reports 2002, pp. 645-646, paras. 37-38; Kasikili/Sedudu Island (Botswana/Namibia), Judgment,
I.C.J. Reports 1999 (II), p. 1059, para. 18).
58. The Court commences by considering the ordinary meaning to be given to the terms of
the 1952 Santiago Declaration in their context, in accordance with Article 31, paragraph 1, of the
Vienna Convention on the Law of Treaties. The 1952 Santiago Declaration does not make express
reference to the delimitation of maritime boundaries of the zones generated by the continental
coasts of its States parties. This is compounded by the lack of such information which might be
expected in an agreement determining maritime boundaries, namely, specific co-ordinates or
cartographic material. Nevertheless, the 1952 Santiago Declaration contains certain elements (in
its paragraph IV) which are relevant to the issue of maritime delimitation (see paragraph 60 below).
59. The Court notes that in paragraph II, the States parties “proclaim as a norm of their
international maritime policy that they each possess exclusive sovereignty and jurisdiction over the
sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from
these coasts”. This provision establishes only a seaward claim and makes no reference to the need
to distinguish the lateral limits of the maritime zones of each State party. Paragraph III states that
“[t]he exclusive jurisdiction and sovereignty over this maritime zone shall also encompass
exclusive sovereignty and jurisdiction over the seabed and the subsoil thereof”. Such a reference to
jurisdiction and sovereignty does not necessarily require any delimitation to have already occurred.
Paragraph VI expresses the intention of the States parties to establish by agreement in the future
general norms of regulation and protection to be applied in their respective maritime zones.
Accordingly, although a description of the distance of maritime zones and reference to the exercise
of jurisdiction and sovereignty might indicate that the States parties were not unaware of issues of
general delimitation, the Court concludes that neither paragraph II nor paragraph III refers
explicitly to any lateral boundaries of the proclaimed 200-nautical-mile maritime zones, nor can the
need for such boundaries be implied by the references to jurisdiction and sovereignty.
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. - 28 -
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 States parties intended to
resolve a specific issue which could obviously create possible future tension between them by
agreeing that the parallel would limit insular zones.
62. In light of the foregoing, the Court concludes that the ordinary meaning of paragraph IV,
read in its context, goes no further than establishing the Parties’ agreement concerning the limits
between certain insular maritime zones and those zones generated by the continental coasts which
abut such insular maritime zones.
63. The Court now turns to consider the object and purpose of the 1952 Santiago
Declaration. It recalls that both Parties state such object and purpose narrowly: Peru argues that
the Declaration is primarily concerned with addressing issues of large-scale whaling, whereas Chile
argues that it can be most specifically understood as concerned with identifying the perimeters of
the maritime zone of each State party. The Court observes that the Preamble of the 1952 Santiago
Declaration focuses on the conservation and protection of the necessary natural resources for the
subsistence and economic development of the peoples of Chile, Ecuador and Peru, through the
extension of the maritime zones adjacent to their coasts.
64. The Court further considers that it is not necessary for it to address the existence of small
islands located close to the coast in the region of the Peru-Chile land boundary. The case file
demonstrates that the issue of insular zones in the context of the 1952 Santiago Declaration arose
from a concern expressed by Ecuador. It is equally clear from the case file that the small islands do
not appear to have been of concern to the Parties. As stated by Chile in its Rejoinder, referring to
these small islands, “[n]one of them was mentioned in the negotiating record related to the
1952 Santiago Declaration . . . The only islands that were mentioned in the context of the Santiago
Declaration were Ecuador’s Galápagos Islands.” Peru did not contest this.
65. The Court recalls Chile’s argument, based on Article 31, paragraph 2 (a), of the Vienna
Convention on the Law of Treaties, that the Minutes of the 1952 Conference constitute an
“agreement relating to the treaty which was made between all the parties in connection with the
conclusion of the treaty”. The Court considers that the Minutes of the 1952 Conference summarize
the discussions leading to the adoption of the 1952 Santiago Declaration, rather than record an
agreement of the negotiating States. Thus, they are more appropriately characterized as travaux
préparatoires which constitute supplementary means of interpretation within the meaning of
Article 32 of the Vienna Convention on the Law of Treaties. - 29 -
66. In light of the above, the Court does not need, in principle, to resort to supplementary
means of interpretation, such as the travaux préparatoires of the 1952 Santiago Declaration and the
circumstances of its conclusion, to determine the meaning of that Declaration. However, as in
other cases (see, for example, Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, p. 653, para. 53; Maritime Delimitation and
Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1995, p. 21, para. 40; Territorial Dispute (Libyan Arab
Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 27, para. 55), the Court has considered the
relevant material, which confirms the above interpretation of the 1952 Santiago Declaration.
67. Chile’s original proposal presented to the 1952 Conference provided as follows:
“The zone indicated comprises all waters within the perimeter formed by the
coasts of each country and a mathematical parallel projected into the sea to
200 nautical miles away from the mainland, along the coastal fringe.
In the case of island territories, the zone of 200 nautical miles will apply all
around the island or island group.
If an island or group of islands belonging to one of the countries making the
declaration is situated less than 200 nautical miles from the general maritime zone
belonging to another of those countries, according to what has been established in the
first paragraph of this article, the maritime zone of the said island or group of islands
shall be limited, in the corresponding part, to the distance that separates it from the
maritime zone of the other State or country.”