The Court notes that this original Chilean proposal appears intended to effect a general delimitation
of the maritime zones along lateral lines. However, this proposal was not adopted.
68. Further, the Minutes of the 1952 Conference indicate that the delegate for Ecuador:
“observed that it would be advisable to provide more clarity to article 3 [which
became paragraph IV of the final text of the 1952 Santiago Declaration], in order to
avoid any error in the interpretation of the interference zone in the case of islands, and
suggested that the declaration be drafted on the basis that the boundary line of the
jurisdictional zone of each country be the respective parallel from the point at which
the frontier of the countries touches or reaches the sea”.
According to the Minutes, this proposition met with the agreement of all of the delegates. - 30 -
Ecuador’s intervention, with which the Parties agreed, is limited in its concern to
clarification “in the case of islands”. Thus the Court is of the view that it can be understood as
saying no more than that which is already stated in the final text of paragraph IV. The Court
considers from the foregoing that the travaux préparatoires confirm its conclusion that the
1952 Santiago Declaration did not effect a general maritime delimitation.
69. Nevertheless, various factors mentioned in the preceding paragraphs, such as the original
Chilean proposal and the use of the parallel as the limit of the maritime zone of an island of one
State party located less than 200 nautical miles from the general maritime zone of another State
party, suggest that there might have been some sort of shared understanding among the States
parties of a more general nature concerning their maritime boundaries. The Court will return to
this matter later.
70. The Court has concluded, contrary to Chile’s submissions, that Chile and Peru did not,
by adopting the 1952 Santiago Declaration, agree to the establishment of a lateral maritime
boundary between them along the line of latitude running into the Pacific Ocean from the seaward
terminus of their land boundary. However, in support of its claim that that line constitutes the
maritime boundary, Chile also invokes agreements and arrangements which it signed later with
Ecuador and Peru, and with Peru alone.
3. The various 1954 Agreements
71. Among the agreements adopted in 1954, Chile emphasizes, in particular, the
Complementary Convention to the 1952 Santiago Declaration and the Special Maritime Frontier
Zone Agreement. It puts the meetings that led to those agreements and the agreements themselves
in the context of the challenges which six maritime powers had made to the 1952 Santiago
Declaration in the period running from August to late October 1954 and of the planned whale
hunting by a fleet operating under the Panamanian flag.
72. The meeting of the CPPS, preparatory to the Inter-State conference of December 1954,
was held between 4 and 8 October 1954. The provisional agenda items correspond to five of the
six agreements which were drafted and adopted at the December Inter-State Conference: the
Complementary Convention to the 1952 Santiago Declaration, the Convention on the System of
Sanctions, the Agreement on the Annual Meeting of the CPPS, the Convention on Supervision and
Control, and the Convention on the Granting of Permits for the Exploitation of the Resources of the
South Pacific.
73. The 1954 Special Maritime Frontier Zone Agreement also resulted from the meetings
that took place in 1954. In addition to considering the matters listed on the provisional agenda
described above, the October 1954 meeting of the CPPS also considered a proposal by the
Delegations of Ecuador and Peru to establish a “neutral zone . . . on either side of the parallel which
passes through the point of the coast that signals the boundary between the two countries”. The
Permanent Commission approved the proposal unanimously “and, consequently, entrusted its
- 31 -
Secretariat-General to transmit this recommendation to the signatory countries so that they put into
practice this norm of tolerance on fishing activities”. As a consequence, at the inaugural session of
“The Second Conference on the Exploitation and Conservation of the Marine Resources of the
South Pacific”, the proposed Agreement appeared in the agenda as the last of the six Agreements to
be considered and signed in December 1954. The draft text relating to the proposal to establish a
“neutral zone” along the parallel was then amended in certain respects. The term “neutral zone”
was replaced with the term “special maritime frontier zone” and the reference to “the parallel
which passes through the point of the coast that signals the boundary between the two countries”
was replaced with “the parallel which constitutes the maritime boundary between the two
countries”. This is the language that appears in the first paragraph of the final text of the
1954 Special Maritime Frontier Zone Agreement, which was adopted along with the other five
agreements referred to in the preceding paragraph. All of the agreements included a standard
clause, added late in the drafting process without any explanation recorded in the Minutes.
According to this clause, the provisions contained in the agreements were “deemed to be an
integral and supplementary part” of the resolutions and agreements adopted in 1952 and were “not
in any way to abrogate” them. Of these six Agreements only the 1954 Complementary Convention
and the 1954 Special Maritime Frontier Zone Agreement were given any real attention by the
Parties in the course of these proceedings, except for brief references by Chile to the Supervision
and Control Convention (see paragraph 78 below). The Court notes that the 1954 Special Maritime
Frontier Zone Agreement is still in force.
A. The Complementary Convention to the 1952 Santiago Declaration
74. According to Chile, “the main instrument” prepared at the 1954 Inter-State Conference
was the Complementary Convention, “[t]he primary purpose [of which] was to reassert the claim of
sovereignty and jurisdiction that had been made two years earlier in Santiago and to defend jointly
the claim against protests by third States”. It quotes its Foreign Minister speaking at the inaugural
session of the 1954 CPPS Meeting:
“The right to proclaim our sovereignty over the sea zone that extends to two
hundred miles from the coast is thus undeniable and inalienable. We gather now to
reaffirm our decision to defend, whatever the cost, this sovereignty and to exercise it
in accordance with the high national interests of the signatory countries to the
Declaration.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
We strongly believe that, little by little, the legal statement that has been
formulated by our countries into the 1952 Agreement [the Santiago Declaration] will
find its place in International Law until it is accepted by all Governments that wish to
preserve, for mankind, resources that today are ruthlessly destroyed by the unregulated
exercise of exploitative activities that pursue diminished individual interests and not
collective needs.”
75. Peru similarly contends that the purpose of the 1954 Complementary Convention was to
reinforce regional solidarity in the face of opposition from third States to the 200-nautical-mile
claim. It observes that in 1954, as in 1952, the primary focus of the three States was on
- 32 -
maintaining a united front towards third States, “rather than upon the development of an internal
legal régime defining their rights inter se”. It also contends that the 1954 instruments were adopted
in the context of regional solidarity vis-à-vis third States and that they were essentially an integral
part of the agreements and resolutions adopted in 1952. The Inter-State Conference was in fact
held less than a month after the Peruvian Navy, with the co-operation of its air force, had seized
vessels of the Onassis whaling fleet, under the Panamanian flag, more than 100 nautical miles off
shore (for extracts from the Peruvian Judgment imposing fines see American Journal of
International Law, 1955, Vol. 49, p. 575). Peru notes that when it rejected a United Kingdom
protest against the seizure of the Onassis vessels, the Chilean Foreign Minister sent a
congratulatory message to his Peruvian counterpart according to Peru this was “an indication of
the regional solidarity which the zone embodied”. In its Reply, Peru recalls Chile’s
characterization in its Counter-Memorial of the 1954 Complementary Convention as “the main
instrument” prepared at the 1954 Inter-State Conference.
76. The Parties also refer to the agreed responses which they made, after careful preparation
in the first part of 1955, to the protests made by maritime powers against the 1952 Santiago
Declaration. Those responses were made in accordance with the spirit of the Complementary
Convention even though Chile was not then or later a party to it. Similar co-ordinated action was
taken in May 1955 in response to related proposals made by the United States of America.
*
77. The Court observes that it is common ground that the proposed Complementary
Convention was the main instrument addressed by Chile, Ecuador and Peru as they prepared for the
CPPS meeting and the Inter-State Conference in Lima in the final months of 1954. Given the
challenges being made by several States to the 1952 Santiago Declaration, the primary purpose of
that Convention was to assert, particularly against the major maritime powers, their claim of
sovereignty and jurisdiction made jointly in 1952. It was also designed to help prepare their
common defence of the claim against the protests by those States, which was the subject-matter of
the second agenda item of the 1954 Inter-State Conference. It does not follow, however, that the
“primary purpose” was the sole purpose or even less that the primary purpose determined the sole
outcome of the 1954 meetings and the Inter-State Conference.
B. The Agreement relating to Measures of Supervision and Control of the Maritime Zones of
the Signatory Countries
78. Chile seeks support from another of the 1954 Agreements, the Agreement relating to
Measures of Supervision and Control of the Maritime Zones of the Signatory Countries. It quotes
the first and second articles: - 33 -
“First
It shall be the function of each signatory country to supervise and control the
exploitation of the resources in its Maritime Zone by the use of such organs and means
as it considers necessary.
Second
The supervision and control referred to in article one shall be exercised by each
country exclusively in the waters of its jurisdiction.” (Emphasis added by Chile.)
Chile contends that the second article proceeds on the basis that each State’s maritime zone had
been delimited. Peru made no reference to the substance of this Agreement. Chile also referred in
this context to the 1955 Agreement for the Regulation of Permits for Exploitation of the Resources
of the South Pacific (see paragraph 21 above) and to its 1959 Decree providing for that regulation.
79. The Court considers that at this early stage there were at least in practice distinct
maritime zones in which each of the three States might, in terms of the 1952 Santiago Declaration,
take action as indeed was exemplified by the action taken by Peru against the Onassis whaling fleet
shortly before the Lima Conference; other instances of enforcement by the two Parties are
discussed later. However the Agreements on Supervision and Control and on the Regulation of
Permits give no indication about the location or nature of boundaries of the zones. On the matter of
boundaries, the Court now turns to the 1954 Special Maritime Frontier Zone Agreement.
C. The Agreement relating to a Special Maritime Frontier Zone
80. The Preamble to the 1954 Special Maritime Frontier Zone Agreement reads as follows:
“Experience has shown that innocent and inadvertent violations of the maritime
frontier [‘la frontera marítima’] between adjacent States occur frequently because
small vessels manned by crews with insufficient knowledge of navigation or not
equipped with the necessary instruments have difficulty in determining accurately
their position on the high seas;
The application of penalties in such cases always produces ill-feeling in the
fishermen and friction between the countries concerned, which may affect adversely
the spirit of co-operation and unity which should at all times prevail among the
countries signatories to the instruments signed at Santiago; and
It is desirable to avoid the occurrence of such unintentional infringements, the
consequences of which affect principally the fishermen.” - 34 -
81. The substantive provisions of the Agreement read as follows:
“1. A special zone is hereby established, at a distance of [‘a partir de’]
12 nautical miles from the coast, extending to a breadth of 10 nautical miles on either
side of the parallel which constitutes the maritime boundary [‘el límite marítimo’]
between the two countries.
2. The accidental presence in the said zone of a vessel of either of the adjacent
countries, which is a vessel of the nature described in the paragraph beginning with
the words ‘Experience has shown’ in the preamble hereto, shall not be considered to
be a violation of the waters of the maritime zone, though this provision shall not be
construed as recognizing any right to engage, with deliberate intent, in hunting or
fishing in the said special zone.
3. Fishing or hunting within the zone of 12 nautical miles from the coast shall
be reserved exclusively to the nationals of each country.”
Article 4 is the standard provision, included in all six of the 1954 Agreements, deeming it to be “an
integral and supplementary part” of the 1952 instruments which it was not in any way to abrogate
(see paragraph 73 above).
82. According to Chile, the 1954 Special Maritime Frontier Zone Agreement was “the most
relevant instrument adopted at the December 1954 Conference”. Its “basic predicate” was that the
three States “already had lateral boundaries, or ‘frontiers’, in place between them”. Chile
continues, citing the Judgment in the case concerning Territorial Dispute (Libyan Arab
Jamahiriya/Chad), that in the 1954 Special Maritime Frontier Zone Agreement “the existence of a
determined frontier was accepted and acted upon” (I.C.J. Reports 1994, p. 35, para. 66). It points
out that Article 1 uses the present tense, referring to a maritime boundary already in existence, and
the first recital indicates that it was violations of that existing boundary that prompted the
Agreement.
83. Peru contends (1) that the Agreement was applicable only to Peru’s northern maritime
border, that is, with Ecuador, and not also to the southern one, with Chile; (2) that Chile’s delay in
ratifying (in 1967) and registering (in 2004) the Agreement shows that it did not regard it as of
major importance such as establishing a maritime boundary; and (3) that the Agreement had a very
special and temporary purpose and that the Parties were claiming a limited functional jurisdiction.
Peru in its written pleadings, in support of its contention that the 1954 Special Maritime Frontier
Zone Agreement applied only to its boundary with Ecuador and not to that with Chile, said that the
“rather opaque formula” the reference to the parallel in Article 1, introduced on the proposal of
Ecuador referred to only one parallel between two countries; it seems clear, Peru says, that the
focus was on the waters between Peru and Ecuador. - 35 -
84. With regard to Peru’s first argument, Chile in reply points out that the 1954 Special
Maritime Frontier Zone Agreement has three States parties and that the ordinary meaning of “the
two countries” in Article 1 is a reference to the States on either side of their shared maritime
boundary. Chile notes that there is no qualification of the “maritime frontier” (in the Preamble),
nor is there any suggestion that the term “adjacent States” refers only to Ecuador and Peru. Chile
also points out that in 1962 Peru complained to Chile about “the frequency with which Chilean
fishing vessels have trespassed into Peruvian waters”, stating that “the Government of Peru, taking
strongly into account the sense and provisions of ‘the Agreement’” wished that the Government of
Chile take certain steps particularly through the competent authorities at the port of Arica. As
Chile noted, Peru did not at that stage make any reference to the argument that the 1954 Special
Maritime Frontier Zone Agreement applied only to its northern maritime boundary.
85. In the view of the Court, there is nothing at all in the terms of the 1954 Special Maritime
Frontier Zone Agreement which would limit it only to the Ecuador-Peru maritime boundary.
Moreover Peru did not in practice accord it that limited meaning which would preclude its
application to Peru’s southern maritime boundary with Chile. The Court further notes that the
1954 Special Maritime Frontier Zone Agreement was negotiated and signed by the representatives
of all three States, both in the Commission and at the Inter-State Conference. All three States then
proceeded to ratify it. They included it among the twelve treaties which they jointly submitted to
the United Nations Secretariat for registration in 1973 (see paragraph 21 above).
*
86. With regard to Peru’s second argument, Chile responds by pointing out that delay in
ratification is common and contends that of itself the delay in ratification has no consequence for
the legal effect of a treaty once it has entered into force. Further, it submits that the fact that
registration of an Agreement is delayed is of no relevance.
87. The Court is of the view that Chile’s delay in ratifying the 1954 Special Maritime
Frontier Zone Agreement and submitting it for registration does not support Peru’s argument that
Chile considered that the Agreement lacked major importance. In any event, this delay has no
bearing on the scope and effect of the Agreement. Once ratified by Chile the Agreement became
binding on it. In terms of the argument about Chile’s delay in submitting the Agreement for
registration, the Court recalls that, in 1973, all three States signatory to the 1952 and 1954 treaties,
including the 1954 Special Maritime Frontier Zone Agreement, simultaneously submitted all of
them for registration (see paragraphs 20 to 21 above).
88. With regard to Peru’s third argument that the 1954 Special Maritime Frontier Zone
Agreement had a special and temporary purpose and that the Parties were claiming a limited
functional jurisdiction, Chile’s central contention is that the “basic predicate” of the Agreement
- 36 -
was that the three States “already had lateral boundaries, or ‘frontiers’, in place between them” (see
paragraph 82 above). The reference in the title of the Agreement to a Special Maritime Frontier
Zone and in the recitals to violations of the maritime frontier between adjacent States demonstrates,
Chile contends, that a maritime frontier or boundary already existed when the three States
concluded the Agreement in December 1954. The granting to small vessels of the benefit of a zone
of tolerance was, in terms of the Preamble, intended to avoid “friction between the countries
concerned, which may affect adversely the spirit of co-operation and unity which should at all
times prevail among the countries signatories to the instruments signed at Santiago”. According to
Chile, this was an inter-State problem and “not a problem relating to itinerant fishermen”. The
States wished to eliminate obstacles to their complete co-operation in defence of their maritime
claims. Chile emphasizes that Article 1, the primary substantive provision, is in the present tense:
the ten-nautical-mile zones are being created to the north and south of a maritime boundary which
already exists. Article 2, it says, also supports its position. The “accidental presence” in that zone
of the vessels referred to in the Agreement is not considered a “violation” of the adjacent State’s