was issued five months prior to the Declaration of Santiago.
There is no need to underline the convenience of preventing the difficulties
which would arise in the absence of an express and appropriate maritime demarcation,
or as the result of some deficiency therein which could affect the amicable conduct of
relations between Chile and Peru.”
138. On 13 June 1986, in an official communiqué, the Chilean Foreign Ministry said that:
“Ambassador Bákula expressed the interest of the Peruvian Government to start
future conversations between the two countries on their points of view regarding
maritime delimitation.
The Minister of Foreign Affairs, taking into consideration the good relations
existing between both countries, took note of the above stating that studies on this
matter shall be carried out in due time.” - 52 -
139. Peru contends that the Bákula Memorandum is perfectly clear. In it Peru spelled out the
need for “the formal and definitive delimitation” of their maritime spaces, distinguishing it from
the ad hoc arrangements for specific purposes, such as the 1954 fisheries policing tolerance zone.
It called for negotiations, not “renegotiations”. And, Peru continues, Chile did not respond by
saying that there was no need for such a delimitation because there was already such a boundary in
existence. Rather “studies . . . are to be carried out”. Peru, based on the Memorandum and this
response, also contends that the practice after that date which Chile invokes cannot be significant.
140. Chile, in addition to submitting that the Bákula Memorandum called for a renegotiation
of an existing boundary, said that it did that on the (wrong) assumption that the maritime zones
newly recognized in UNCLOS called for the existing delimitation to be revisited. As well, Peru
did not renew its request to negotiate. Chile submits that the fact that Peru was seeking a
renegotiation was reflected in contemporaneous comments by the Peruvian Foreign Minister,
reported in the Chilean and Peruvian press.
*
141. The Court does not read the Bákula Memorandum as a request for a renegotiation of an
existing maritime boundary. Rather, it calls for “the formal and definitive delimitation of the
marine spaces”. While Peru does recognize the existence of the special zone, in its view that zone
did not satisfy the requirements of safety nor did it allow an appropriate administration of marine
resources; further, an extensive interpretation of the Special Maritime Frontier Zone Agreement
would negatively affect Peru’s legitimate interests. In the Court’s view, the terms used in that
Memorandum do acknowledge that there is a maritime boundary, without giving precise
information about its extent. The Court does not see the newspaper accounts as helpful. They do
not purport to report the speech of the Peruvian Minister in full.
142. There is force in the Chilean contention about Peru’s failure to follow up on the issues
raised in the Bákula Memorandum in a timely manner: according to the record before the Court,
Peru did not take the matter up with Chile at the diplomatic level again until 20 October 2000,
before repeating its position in a Note to the United Nations Secretary-General in January 2001 and
to Chile again in July 2004. However, the Court considers that the visit by Ambassador Bákula
and his Memorandum do reduce in a major way the significance of the practice of the Parties after
that date. The Court recalls as well that its primary concern is with the practice of an earlier time,
that of the 1950s, as indicating the extent of the maritime boundary at the time the Parties
acknowledged that it existed. - 53 -
J. Practice after 1986
143. The Court has already considered the Parties’ legislative practice from the 1950s and
1960s (see paragraphs 119 to 122 above). Chile also relies on two pieces of legislation from 1987:
a Peruvian Supreme Decree adopted on 11 June 1987 and a Chilean Supreme Decree adopted on
26 October of that year. Chile sees these instruments as evidence that, in defining the areas of
sovereign control by their navies, the Parties respected the maritime boundary.
144. The Court notes that these Decrees define the limits of the Parties’ internal maritime
districts. However, as Peru points out in respect of its own Decree, while these instruments define
the northern and southern limits of districts with some specificity (by reference to parallels of
latitude), that is not the case for those limits abutting international boundaries between Ecuador and
Peru, Peru and Chile, or Chile and Argentina. These Decrees define the internal limits of the
jurisdiction of certain domestic authorities within Chile and within Peru; they do not purport to
define the international limits of either State. In view also of the temporal considerations
mentioned above, the Court does not see these Decrees as significant.
145. Peru in addition referred the Court to a Chilean Decree of 1998 defining benthonic
areas of the Chilean coast; the northern limit ran to the south-west. But, as Chile says, the Decree
was concerned only with the harvesting of living resources on and under the sea-bed within its
“territorial seas”. The Court does not see this Decree as significant for present purposes.
146. The Court returns to evidence of enforcement measures between the Parties. The next
capture recorded in the case file after May 1986 is from 1989: the Peruvian interception and
capture of two Chilean fishing vessels within Peruvian waters, 9.5 nautical miles from land and
1.5 nautical miles north of the parallel.
147. Chile also provided information, plotted on a chart, of Peruvian vessels captured in
1984 and from 1994 in the waters which, in Chile’s view, are on its side of the maritime boundary.
The information relating to 1984 records 14 vessels but all were captured within 20 nautical miles
of the coast; in 1994 and 1995, 15, all within 40 nautical miles; and it is only starting in 1996 that
arrests frequently occurred beyond 60 nautical miles. Those incidents all occurred long after the
1950s and even after 1986. The Court notes, however, that Chile’s arrests of Peruvian vessels
south of the parallel, whether they took place within the special zone or further south, provide some
support to Chile’s position, although only to the extent that such arrests were met without protest
by Peru. This is the case even with respect to arrests taking place after 1986. - 54 -
148. Given its date, the Court does not consider as significant a sketch-map said to be part of
the Chilean Navy’s Rules of Engagement in the early 1990s and which depicts a Special Maritime
Frontier Zone stretching out to the 200-nautical-mile limit, or information provided by Chile in
respect of reports to the Peruvian authorities by foreign commercial vessels between 2005 and 2010
and to the Chilean authorities by Peruvian fishing vessels across the parallel.
K. The extent of the agreed maritime boundary: conclusion
149. The tentative conclusion that the Court reached above was that the evidence at its
disposal does not allow it to conclude that the maritime boundary, the existence of which the
Parties acknowledged at that time, extended beyond 80 nautical miles along the parallel from its
starting-point. The later practice which it has reviewed does not lead the Court to change that
position. The Court has also had regard to the consideration that the acknowledgment, without
more, in 1954 that a “maritime boundary” exists is too weak a basis for holding that it extended far
beyond the Parties’ extractive and enforcement capacity at that time.
150. Broader considerations relating to the positions of the three States parties to the
1954 Special Maritime Frontier Zone Agreement, particularly the two Parties in this case, in the
early 1950s demonstrates that the primary concern of the States parties regarding the more distant
waters, demonstrated in 1947, in 1952, in 1954 (in their enforcement activities at sea as well as in
their own negotiations), in 1955 and throughout the United Nations process which led to the
1958 Conventions on the Law of the Sea, was with presenting a position of solidarity, in particular,
in respect of the major third countries involved in long distance fisheries. The States parties were
concerned, as they greatly increased their fishing capacity, that the stock was not depleted by those
foreign fleets.
The seizure of the Onassis whaling fleet, undertaken by Peru in defence of the claims made
by the three signatories to the 1952 Santiago Declaration (see paragraph 75 above), was indicative
of these concerns. This action occurred 126 nautical miles off of the Peruvian coast. Prior to its
seizure, the fleet unsuccessfully sought permission from Peru that it be allowed to hunt between 15
and 100 nautical miles from the Peruvian coast.
151. The material before the Court concerning the Parties’ focus on solidarity in respect of
long distance fisheries does not provide it with precise information as to the exact extent of the
maritime boundary which existed between the Parties. This issue could be expected to have been
resolved by the Parties in the context of their tacit agreement and reflected in the treaty which
acknowledges that tacit agreement, namely the 1954 Special Maritime Frontier Zone Agreement.
This did not happen. This left some uncertainty as to the precise length of the agreed maritime
boundary. However, based on an assessment of the entirety of the relevant evidence presented to
it, the Court concludes that the agreed maritime boundary between the Parties extended to a
distance of 80 nautical miles along the parallel from its starting-point. - 55 -
V. THE STARTING-POINT OF THE AGREED MARITIME BOUNDARY
152. Having concluded that there exists a maritime boundary between the Parties, the Court
must now identify the location of the starting-point of that boundary.
153. Both Parties agree that the land boundary between them was settled and delimited more
than 80 years ago in accordance with Article 2 of the 1929 Treaty of Lima (see paragraph 18)
which specifies that “the frontier between the territories of Chile and Peru . . . shall start from a
point on the coast to be named ‘Concordia’, ten kilometres to the north of the bridge over the river
Lluta”. Article 3 of the 1929 Treaty of Lima stipulates that the frontier is subject to demarcation by
a Mixed Commission consisting of one member appointed by each Party.
154. According to Peru, the delegates of the Parties to the Mixed Commission could not
agree on the exact location of Point Concordia. Peru recalls that this was resolved through
instructions issued by the Ministers of Foreign Affairs of each State to their delegates in April 1930
(hereinafter the “Joint Instructions”), specifying to the delegates that Point Concordia was to be the
point of intersection between the Pacific Ocean and an arc with a radius of 10 km having its centre
on the bridge over the River Lluta, with the land frontier thus approaching the sea as an arc tending
southward. Peru notes that the Joint Instructions also provided that “[a] boundary marker shall be
placed at any point of the arc, as close to the sea as allows preventing it from being destroyed by
the ocean waters”.
155. Peru recalls that the Final Act of the Commission of Limits Containing the Description
of Placed Boundary Markers dated 21 July 1930 (hereinafter the “Final Act”), agreed by the
Parties, records that “[t]he demarcated boundary line starts from the Pacific Ocean at a point on the
seashore ten kilometres northwest from the first bridge over the River Lluta of the Arica-La Paz
railway” (emphasis added). Peru argues that the Final Act then indicates that the first marker along
the physical demarcation of the land boundary is Boundary Marker No. 1 (Hito No. 1), located
some distance from the low-water line so as to prevent its destruction by ocean waters at
18° 21' 03'' S, 70° 22' 56'' W. Peru thus considers that the Final Act distinguishes between a
“point” as an abstract concept representing the geographical location of the starting-point of the
land boundary (i.e., Point Concordia) and “markers” which are actual physical structures along the
land boundary. In Peru’s view, as the Final Act refers to both the point derived from Article 2 of
the 1929 Treaty of Lima and Boundary Marker No. 1, these two locations must be distinct. Thus,
relying on both the Joint Instructions and the Final Act, Peru maintains that Boundary Marker
No. 1 was not intended to mark the start of the agreed land boundary but was simply intended to
mark, in a practical way, a point on the arc constituting such boundary. Peru moreover refers to
contemporaneous sketch-maps which are said to clearly demonstrate that the land boundary does
not start at Boundary Marker No. 1. Peru further contends that the reference in the Final Act to
Boundary Marker No. 1 as being located on the “seashore” is a mere general description, with this
being consistent with the general manner in which other boundary markers are described in the
same document. Finally, Peru clarifies that the Final Act agrees to give Boundary Marker No. 9,
located near the railway line, the name of “Concordia” for symbolic reasons, an explanation with
which Chile agrees. - 56 -
156. In Chile’s view, the outcome of the 1929 Treaty of Lima and 1930 demarcation process
was that the Parties agreed that Boundary Marker No. 1 was placed on the seashore with
astronomical co-ordinates 18° 21' 03'' S, 70° 22' 56'' W and that the land boundary started from this
Marker. Chile characterizes the Joint Instructions as indicating that there would be a starting-point
on the coast of the land boundary, instructing the delegates to ensure the placement of a marker to
indicate such starting-point. Chile relies on an Act of Plenipotentiaries dated 5 August 1930 signed
by the Ambassador of Chile to Peru and the Minister of Foreign Affairs of Peru, claiming that it
records the “definitive location and characteristics” of each boundary marker and acknowledges
that the boundary markers, beginning in order from the Pacific Ocean, demarcate the
Peruvian-Chilean land boundary.
157. Peru considers that Chile’s claim that Boundary Marker No. 1 is the starting-point of
the land boundary faces two insurmountable problems. For Peru, the first such problem is that it
means that an area of the land boundary of approximately 200 metres in length has not been
delimited, which is not the intention of the 1929 Treaty of Lima and the Final Act. The second
problem, according to Peru, is that a maritime boundary cannot start on dry land some 200 metres
inland from the coast, referring to what it claims to be a “cardinal principle” of maritime
entitlement that the “land dominates the sea”. Alternatively, Peru notes that Chile’s interpretation
requires that the maritime boundary starts where the parallel passing through Boundary Marker
No. 1 reaches the sea, with this being inconsistent with the 1929 Treaty of Lima and the Joint
Instructions which clearly refer to the land boundary as following an arc southward from Boundary
Marker No. 1. Peru argues that, at least until the 1990s, Chile’s own cartographic and other
practice clearly acknowledges the starting-point of the land boundary as being Point Concordia, a
point recognized as distinct from Boundary Marker No. 1.
158. Chile argues that the lighthouse arrangements of 1968-1969 are also relevant in that
they involved a joint verification of the exact physical location of Boundary Marker No. 1.
According to Chile, the 1952 Santiago Declaration did not identify the parallel running through the
point where the land frontier reaches the sea. The observance and identification of such parallel by
mariners gave rise to practical difficulties between the Parties, as a result of which they agreed to
signal such parallel with two lighthouses aligned through Boundary Marker No. 1. Chile refers to a
document dated 26 April 1968, signed by both Parties, which it claims represents an agreement that
it is the parallel of the maritime frontier which would be marked by the lighthouses. Thus, Chile
claims that “[t]he 1968-1969 arrangements and the signalling process as a whole confirmed Hito
No. 1 as the reference point for the parallel of latitude constituting the maritime boundary between
the Parties”, further contending that the Parties have also used the parallel passing through this
point as the maritime boundary for the capture and prosecution of foreign vessels. Chile further
argues that there is corresponding Peruvian practice between 1982 and 2001 treating the parallel
running through Boundary Marker No. 1 as the southernmost point of Peruvian territory. - 57 -
159. Peru recalls that when it proposed to Chile, in 1968, to conclude the lighthouse
arrangements, it suggested that it could be “convenient, for both countries, to proceed to build posts
or signs of considerable dimensions and visible at a great distance, at the point at which the
common border reaches the sea, near boundary marker number one”, with Peru submitting that the
language of “near Boundary Marker No. 1” clearly indicates that this point was distinct from the
seaward terminus of the land boundary at Point Concordia. Peru then continues to explain that the
placement of the Peruvian lighthouse at Boundary Marker No. 1 was motivated by practical
purposes, arguing that as the purpose of the arrangement was to provide general orientation to
artisanal fishermen operating near the coast, not to delimit a maritime boundary, aligning the lights
along Boundary Marker No. 1 proved sufficient.
160. The Peruvian Maritime Domain Baselines Law, Law No. 28621 dated
3 November 2005, identifies the co-ordinates of Point Concordia as 18° 21' 08'' S, 70° 22' 39'' W,
as measured on the WGS 84 datum. The Law sets out 266 geographical co-ordinates used to
measure Peru’s baselines, culminating in so-called “Point 266”, which Peru claims coincides with
Point Concordia.
161. Peru contends that Chile has sought, in recent years, to unsettle what it claims to be the
Parties’ previous agreement that the starting-point of the land boundary is Point Concordia,
referring in this regard to an incident in early 2001 in which Chile is alleged to have placed a
surveillance booth between Boundary Marker No. 1 and the seashore, an action which elicited an
immediate protest from Peru, with this booth being subsequently removed. Chile claims that its
decision to remove this booth was motivated by the proposals of the armies of both Parties that no
surveillance patrols occur within 100 metres of the international land boundary, with Chile
claiming that it duly reserved its position regarding the course of the land boundary. Peru refers
also in this regard to Chilean attempts to pass internal legislation in 2006-2007 referring to the
starting-point of the land boundary as the intersection with the seashore of the parallel passing
through Boundary Marker No. 1, rather than Point Concordia. Chile considers that its failure to
pass the relevant legislation in its originally proposed form was not connected to the substance of
the aforementioned reference.
*
162. The Court notes that on 20 October 2000, Peru communicated to Chile that the Parties
disagreed concerning the status of the parallel passing through Boundary Marker No. 1 as a
maritime boundary. On 9 January 2001, Peru informed the Secretary-General of the United
Nations that it did not agree with Chile’s understanding that a parallel constituted the maritime
boundary between them at 18° 21' 00'' S. On 19 July 2004, Peru described the situation as being
one in which exchanges between the Parties had revealed “totally dissenting and opposed juridical
- 58 -
positions about the maritime delimitation which, in accordance with International Law, evidence a
juridical dispute”. In such circumstances, the Court will not consider the arguments of the Parties
concerning an incident involving a surveillance booth in 2001, the Peruvian Maritime Domain
Baselines Law dated 3 November 2005 or the Chilean legislative initiatives in 2006-2007, as such
events occurred after it had become evident that a dispute concerning this issue had arisen and thus
these actions could be perceived as motivated by the Parties’ positions in relation thereto.
163. The Court observes that a considerable number of the arguments presented by the
Parties concern an issue which is clearly not before it, namely, the location of the starting-point of
the land boundary identified as “Concordia” in Article 2 of the 1929 Treaty of Lima. The Court’s
task is to ascertain whether the Parties have agreed to any starting-point of their maritime
boundary. The jurisdiction of the Court to deal with the issue of the maritime boundary is not
contested.
164. The Court notes that during the early preparations for the lighthouse arrangements in
April 1968 (discussed at paragraph 96 above) delegates of both Parties understood that they were