                      INTERNATIONAL COURT OF JUSTICE

                        REPORTS OF JUDGMENTS,
                     ADVISORY OPINIONS AND ORDERS

                        CASE CONCERNING
                        MARITIME DISPUTE
                             (PERU v. CHILE)

                      JUDGMENT OF 27 JANUARY 2014

                             2014
                      COUR INTERNATIONALE DE JUSTICE

                          RECUEIL DES ARRÊTS,
                   AVIS CONSULTATIFS ET ORDONNANCES

                           AFFAIRE
                    DU DIFFÉREND MARITIME
                            (PÉROU c. CHILI)

                        ARRÊT DU 27 JANVIER 2014

5 CIJ1057.indb 1                                       1/12/14 08:59

                                              Official citation :
                                 Maritime Dispute (Peru v. Chile), Judgment,
                                          I.C.J. Reports 2014, p. 3

                                            Mode officiel de citation :
                                  Différend maritime (Pérou c. Chili), arrêt,
                                           C.I.J. Recueil 2014, p. 3

                                                                                1057
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-071173-9

5 CIJ1057.indb 2                                                                       1/12/14 08:59

                                        27 JANUARY 2014

                                          JUDGMENT

                    MARITIME DISPUTE
                      (PERU v. CHILE)

                   DIFFÉREND MARITIME
                     (PÉROU c. CHILI)

                                        27 JANVIER 2014

                                            ARRÊT

5 CIJ1057.indb 3                                          1/12/14 08:59

                   3

                                             TABLE OF CONTENTS

                                                                                Paragraphs

                   Chronology of the Procedure                                                 1-15
                       I. Geography                                                              16
                       II. Historical Background                                              17-21
                   III. Positions of the Parties                                              22-23
                    IV. Whether There Is an Agreed Maritime Boundary                         24-151
                          1. The 1947 Proclamations of Chile and Peru                         25-44
                          2. The 1952 Santiago Declaration                                    45-70
                          3. The various 1954 Agreements                                      71-95
                             A. The Complementary Convention to the 1952 Santiago
                                Declaration74-77
                             B. The Agreement relating to Measures of Supervision
                                and Control of the Maritime Zones of the Signatory
                                Countries78-79
                             C. The Agreement relating to a Special Maritime Frontier
                                Zone                                                 80-95
                          4. The 1968-1969 lighthouse arrangements                            96-99
                          5. The nature of the agreed maritime boundary                     100-102
                          6. The extent of the agreed maritime boundary                     103-151
                             A. Fishing potential and activity                              104-111
                             B. Contemporaneous developments in the law of the sea          112-118
                             C. Legislative practice                                        119-122
                             D. The 1955 Protocol of Accession                              123-125
                             E. Enforcement activities                                      126-129
                             F. The 1968-1969 lighthouse arrangements                           130
                             G. Negotiations with Bolivia (1975-1976)                       131-133
                             H. Positions of the Parties at the Third United Nations
                                 Conference on the Law of the Sea                           134-135
                              I. The 1986 Bákula Memorandum                                 136-142
                             J. Practice after 1986                                         143-148
                             K. The extent of the agreed maritime boundary : conclusion     149-151
                       V. The Starting-Point of the Agreed Maritime Boundary                152-176
                    VI. The Course of the Maritime Boundary from Point A                    177-195
                   VII. Conclusion                                                          196-197
                   Operative Clause                                                             198

                   4

5 CIJ1057.indb 4                                                                                1/12/14 08:59

                    4

                                   INTERNATIONAL COURT OF JUSTICE

        2014
                                                     YEAR 2014
     27 January
     General List                                  27 January 2014
      No. 137

                                          MARITIME DISPUTE
                                                  (PERU v. CHILE)

                       Geography — Historical background — 1929 Treaty of Lima between Chile
                    and Peru — 1947 Proclamations of Chile and Peru — Twelve instruments negoti
                    ated by Chile, Ecuador and Peru.

                                                           *
                       No international maritime boundary established by 1947 Proclamations — No
                    shared understanding of the Parties concerning maritime delimitation — Necessity
                    of establishing the lateral limits of their maritime zones in the future.

                       1952 Santiago Declaration is an international treaty — Rules of interpreta
                    tion — No express reference to delimitation of maritime boundaries — Certain
                    elements relevant however to maritime delimitation — Ordinary meaning of para
                    graph IV — Maritime zones of island territories — Scope of 1952 Santiago Dec
                    laration restricted to agreement on limits between certain insular maritime zones
                    and zones generated by continental coasts — Object and purpose — Supplemen
                    tary means of interpretation confirm that no general maritime delimitation was
                    effected by 1952 Santiago Declaration — Suggestion of existence of some sort of
                    a shared understanding of a more general nature concerning maritime boundar
                    ies — 1952 Santiago Declaration did not establish a lateral maritime boundary
                    between Chile and Peru along the parallel.

                        1954 Agreements — Complementary Convention to 1952 Santiago Declara
                    tion — Primary purpose to assert signatory States’ claims to sovereignty
                    and jurisdiction made in 1952 — Agreement relating to Measures of Super
                    vision and  Control of Maritime Zones — No indication as to location or
                    nature of maritime boundaries — Special Maritime Frontier Zone Agreement —
                    Not limited to the Ecuador‑Peru maritime boundary — Delay in ratifi
                    cation without bearing on scope and effect of Agreement — Acknowledgment
                    of existence of an agreed maritime boundary — Tacit agreement — Tacit
                    agreement cemented by 1954 Special Maritime Frontier Zone Agreement — No
                     indication of nature and extent of    maritime boundary — 1964 Bazán

                    5

5 CIJ1057.indb 6                                                                                1/12/14 08:59

                   5 	                     maritime dispute (judgment)

                    pinion — Conclusion of the Court as to the existence of an agreed maritime
                   O
                   boundary not altered.

                      1968‑1969 lighthouse arrangements — Limited purpose and geographical
                   scope — No reference to a pre‑existent delimitation agreement — Arrangements
                   based on presumed existence of a maritime boundary extending along parallel
                   beyond 12 nautical miles — No indication of extent and nature of maritime bound
                   ary.
                      Nature of agreed maritime boundary — All‑purpose maritime boundary.

                      Extent of agreed maritime boundary — Assessment of relevant practice of the
                   Parties pre‑1954 — Fishing potential and activity — Species taken in the early
                   1950s were generally to be found within a range of 60 nautical miles from the coast
                   — Orientation of the coast — Location of main ports in the region — Zone of
                   tolerance along the parallel for small fishing boats — Principal fishing activity
                   carried out by small boats — Fisheries activity, in itself, not determinative of
                   extent of the boundary — Parties however unlikely to have considered the agreed
                   maritime boundary to extend to 200‑nautical‑mile limit — Contemporaneous
                   developments in the law of the sea — State practice — Work of the International
                   Law Commission — Claim made in 1952 Santiago Declaration did not correspond
                   to the international law of that time — No evidence to conclude that the agreed
                   maritime boundary along parallel extended beyond 80 nautical miles.

                      Assessment of relevant practice of the Parties post‑1954 — Legislative practice
                   of the Parties — 1955 Protocol of Accession to 1952 Santiago Declaration —
                   Enforcement activities — 1968‑1969 lighthouse arrangements — Negotiations
                   with Bolivia (1975‑1976) — Positions of the Parties at Third United Nations
                   Conference on the Law of the Sea — 1986 Bákula Memorandum — Practice after
                   1986 — No basis to put into question the Court’s earlier conclusion.

                     In view of entirety of relevant evidence presented to the Court, agreed maritime
                   boundary between the Parties extends to a distance of 80 nautical miles along the
                   parallel.

                                                           *
                      Starting-point of the agreed maritime boundary — 1929 Treaty of Lima — The
                   Court not asked to determine location of starting‑point of land boundary identified
                   as “Concordia” — Boundary Marker No. 1 — 1968‑1969 lighthouse arrange
                   ments serve as compelling evidence that the agreed maritime boundary follows the
                   parallel that passes through Boundary Marker No. 1 — Point Concordia may not
                   coincide with starting‑point of maritime boundary — Starting‑point of maritime
                   boundary identified as the intersection of the parallel of latitude passing through
                   Boundary Marker No. 1 with the low‑water line.

                                                           *
                     Delimitation to be effected beginning at endpoint of agreed maritime boundary
                   (Point A) — Method of delimitation — Three-stage procedure.

                   6

5 CIJ1057.indb 8                                                                                1/12/14 08:59

                    6 	                     maritime dispute (judgment)

                       First stage — Construction of a provisional equidistance line starting at
                    Point A — Determination of base points — Provisional equidistance line runs until
                    intersection with the 200‑nautical‑mile limit measured from Chilean baselines
                    (Point B).
                       Peru’s second final submission moot — No need for the Court to rule thereon.

                       Course of the maritime boundary from Point B — Boundary runs along the
                    200‑nautical‑mile limit measured from the Chilean baselines until intersection of
                    the 200‑nautical‑mile limits of the Parties (Point C).
                       Second stage — Relevant circumstances calling for an adjustment of the provi
                    sional equidistance line — No basis for adjusting the provisional equidistance line.

                       Third stage — Disproportionality test — Calculation does not purport to be
                    precise — No evidence of significant disproportion calling into question equitable
                    nature of provisional equidistance line.

                                                             *
                      Course of the maritime boundary — Geographical co-ordinates to be deter
                    mined by the Parties in accordance with the Judgment.

                                                     JUDGMENT

                              President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges Owada,
                    Present :
                              Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                              Yusuf, Xue, Donoghue, Gaja, Sebutinde, Bhandari ; Judges ad hoc
                              Guillaume, Orrego Vicuña ; Registrar Couvreur.

                        In the case concerning the maritime dispute,
                        between
                    the Republic of Peru,
                    represented by
                      H.E. Mr. Allan Wagner, Ambassador of Peru to the Kingdom of the Nether-
                         lands, former Minister for Foreign Affairs, former Minister of Defence,
                         former Secretary‑General of the Andean Community,
                      as Agent ;
                      H.E. Mr. Rafael Roncagliolo, Minister for Foreign Affairs,
                      as Special Envoy ;
                      H.E. Mr. José Antonio García Belaunde, Ambassador, former Minister for
                         Foreign Affairs,
                      H.E. Mr. Jorge Chávez Soto, Ambassador, member of the Peruvian Delega-
                         tion to the Third United Nations Conference on the Law of the Sea, for-
                         mer Adviser of the Minister for Foreign Affairs on Law of the Sea Matters,

                    7

5 CIJ1057.indb 10                                                                                1/12/14 08:59

                    7 	                     maritime dispute (judgment)

                        as Co‑Agents ;
                        Mr. Rodman Bundy, avocat à la Cour d’appel de Paris, member of the New
                           York Bar, Eversheds LLP, Paris,
                        Mr. Vaughan Lowe, Q.C., member of the English Bar, Emeritus Professor of
                           International Law, Oxford University, associate member of the Institut de
                           droit international,
                        Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre‑La
                           Défense, former Member and former Chairman of the International Law
                           Commission, associate member of the Institut de droit international,
                        Mr. Tullio Treves, Professor at the Faculty of Law, State University of Milan,
                           former judge of the International Tribunal for the Law of the Sea, Senior
                           Consultant, Curtis, Mallet‑Prevost, Colt and Mosle, Milan, member of the
                           Institut de droit international,
                        Sir Michael Wood, K.C.M.G., member of the English Bar, Member of the
                           International Law Commission,
                        as Counsel and Advocates ;
                        Mr. Eduardo Ferrero, Member of the Permanent Court of Arbitration, for-
                           mer Minister for Foreign Affairs, member of the Peruvian Delegation to
                           the Third United Nations Conference on the Law of the Sea,
                        Mr. Vicente Ugarte del Pino, former President of the Supreme Court of Jus-
                           tice, former President of the Court of Justice of the Andean Community,
                           former Dean of the Lima Bar Association,
                        Mr. Roberto MacLean, former judge of the Supreme Court of Justice, former
                           Member of the Permanent Court of Arbitration,
                        H.E. Mr. Manuel Rodríguez Cuadros, Ambassador of Peru to UNESCO,
                           former Minister for Foreign Affairs,
                        as State Advocates ;
                        Ms Marisol Agüero Colunga, Minister‑Counsellor, LL.M., former Adviser of
                           the Minister for Foreign Affairs on Law of the Sea Matters, Co‑ordinator
                           of the Peruvian Delegation,
                        H.E. Mr. Gustavo Meza‑Cuadra, MIPP, Ambassador, Adviser of the Minis-
                           try of Foreign Affairs on Law of the Sea Matters,
                        Mr. Juan José Ruda, Member of the Permanent Court of Arbitration, Legal
                           Adviser of the Ministry of Foreign Affairs,
                        as Counsel ;
                        Mr. Benjamin Samson, Researcher, Centre de droit international de Nanterre
                           (CEDIN), University of Paris Ouest, Nanterre‑La Défense,
                        Mr. Eran Sthoeger, LL.M., New York University School of Law,
                        as Assistant Counsel ;
                        Mr. Carlos Enrique Gamarra, Vice Admiral (retired), Hydrographer, Adviser
                           to the Office for Law of the Sea of the Ministry of Foreign Affairs,
                        as Special Adviser ;
                        Mr. Ramón Bahamonde, M.A., Advisory Office for the Law of the Sea of the
                           Ministry of Foreign Affairs,
                        Mr. Alejandro Deustua, M.A., Advisory Office for the Law of the Sea of the
                           Ministry of Foreign Affairs,
                        Mr. Pablo Moscoso de la Cuba, LL.M., Advisory Office for the Law of the
                           Sea of the Ministry of Foreign Affairs,

                    8

5 CIJ1057.indb 12                                                                                1/12/14 08:59

                    8 	                    maritime dispute (judgment)

                        as Legal Advisers ;
                        Mr. Scott Edmonds, Cartographer, International Mapping,
                        Mr. Jaime Valdez, Lieutenant Commander (retired), National Cartographer
                           of the Peruvian Delegation,
                        Mr. Aquiles Carcovich, Captain (retired), Cartographer,
                        Mr. Thomas Frogh, Cartographer, International Mapping,
                        as Technical Advisers ;
                        Mr. Paul Duclos, Minister‑Counsellor, LL.M., M.A., Advisory Office for the
                           Law of the Sea of the Ministry of Foreign Affairs,
                        Mr. Alfredo Fortes, Counsellor, LL.M., Embassy of Peru in the Kingdom of
                           the Netherlands,
                        Mr. José Antonio Torrico, Counsellor, M.A., Embassy of Peru in the King-
                           dom of the Netherlands,
                        Mr. César Talavera, First Secretary, M.Sc., Embassy of Peru in the Kingdom
                           of the Netherlands,
                        as Advisers ;
                        Ms Evelyn Campos Sánchez, Embassy of Peru in the Kingdom of the Neth-
                           erlands, Ph.D. candidate, Amsterdam Center for International Law, Uni-
                           versity of Amsterdam,
                        Ms Charis Tan, Advocate and Solicitor, Singapore, member of the New York
                           Bar, Solicitor, England and Wales, Eversheds LLP,
                        Mr. Raymundo Tullio Treves, Ph.D. candidate, Max Planck Research School
                           for Successful Disputes Settlement, Heidelberg,

                        as Assistants,
                        and
                    the Republic of Chile,
                    represented by
                      H.E. Mr. Albert van Klaveren Stork, Ambassador, former Vice‑Minister for
                         Foreign Affairs, Professor at the University of Chile,
                      as Agent ;
                      H.E. Mr. Alfredo Moreno Charme, Minister for Foreign Affairs of Chile,
                      as National Authority ;
                      H.E. Mr. Juan Martabit Scaff, Ambassador of Chile to the Kingdom of the
                         Netherlands,
                      H.E. Ms María Teresa Infante Caffi, National Director of Frontiers and
                         Limits, Ministry of Foreign Affairs, Professor at the University of Chile,
                          member of the Institut de droit international,
                      as Co‑Agents ;
                      Mr. Pierre‑Marie Dupuy, Professor at the Graduate Institute of International
                          Studies and Development, Geneva, and at the University of Paris II (Pan-
                         théon‑Assas), associate member of the Institut de droit international,
                      Mr. James R. Crawford, S.C., LL.D., F.B.A., Whewell Professor of Interna-
                         tional Law, University of Cambridge, member of the Institut de droit inter-
                         national, Barrister, Matrix Chambers,

                    9

5 CIJ1057.indb 14                                                                                1/12/14 08:59

                    9 	                  maritime dispute (judgment)

                     Mr. Jan Paulsson, President of the International Council for Commercial
                        Arbitration, President of the Administrative Tribunal of the OECD, Fresh-
                        fields Bruckhaus Deringer LLP,
                     Mr. David A. Colson, Attorney‑at‑Law, Patton Boggs LLP, Washington
                        D.C., member of the Bars of California and the District of Columbia,
                     Mr. Luigi Condorelli, Professor of International Law, University of Florence,

                     Mr. Georgios Petrochilos, Avocat à la Cour and Advocate at the Greek
                        Supreme Court, Freshfields Bruckhaus Deringer LLP,
                     Mr. Samuel Wordsworth, Q.C., member of the English Bar, member of the
                        Paris Bar, Essex Court Chambers,
                     Mr. Claudio Grossman, Dean, R. Geraldson Professor of International Law,
                        American University, Washington College of Law,
                     as Counsel and Advocates ;
                     H.E. Mr. Hernan Salinas, Ambassador, Legal Adviser, Ministry of Foreign
                        Affairs, Professor, Catholic University of Chile,
                     H.E. Mr. Luis Winter, Ambassador, Ministry of Foreign Affairs,
                     Mr. Enrique Barros Bourie, Professor, University of Chile,
                     Mr. Julio Faúndez, Professor, University of Warwick,
                     Ms Ximena Fuentes Torrijo, Professor, University of Chile,
                     Mr. Claudio Troncoso Repetto, Professor, University of Chile,
                     Mr. Andres Jana, Professor, University of Chile,
                     Ms Mariana Durney, Legal Officer, Ministry of Foreign Affairs,
                     Mr. John Ranson, Legal Officer, Professor of International Law, Chilean
                        Navy,
                     Mr. Ben Juratowitch, Solicitor admitted in England and Wales, Freshfields
                        Bruckhaus Deringer LLP,
                     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 Queens-
                        land, Australia,
                     Ms Nienke Grossman, Assistant Professor, University of Baltimore, Mary-
                        land, 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,

                    10

5 CIJ1057.indb 16                                                                                1/12/14 08:59

                    10 	                    maritime dispute (judgment)

                      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 Repub-
                    lic 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 Concor-
                    dia . . . 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 Arti-
                    cle 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 noti-
                    fications 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 (here-
                    inafter 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 Arti-
                    cle 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 Dec-
                    laration and to the 1954 Special Maritime Frontier Zone Agreement, the notifi-
                    cation provided for in Article 63, paragraph 1, of the Statute of the Court.

                    11

5 CIJ1057.indb 18                                                                                1/12/14 08:59

                    11 	                    maritime dispute (judgment)

                       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.
                       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 Govern-
                    ments 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.
                      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 . . .

                    12

5 CIJ1057.indb 20                                                                                1/12/14 08:59

                    12 	                    maritime dispute (judgment)

                         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.”
                    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 sea-
                                   ward 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.

                                                               *
                                                           *       *

                    13

5 CIJ1057.indb 22                                                                                1/12/14 08:59

                    13 	                  maritime dispute (judgment)

                                                  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 Par-
                    ties on the Pacific coast and Chile’s generally follows a north‑south orien-
                    tation. 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 con-
                    text, p. 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 neighbour-
                    ing 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 his-
                    torically 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 bound-
                    ary 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 Commis-
                    sion 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 con-
                    cerning his country’s claim on 23 June 1947 (hereinafter the “1947 Declar

                    14

5 CIJ1057.indb 24                                                                                1/12/14 08:59

                                                                - 14 -

                    14 	                       maritime dispute (judgment)

                                                                            QUITO
                                                                                COLOMBIA
                                                                         ECUADOR
                               Sketch-map No. 1:
                            Geographical context
                           This sketch-map has been prepared
                              for illustrative purposes only.                                      BRAZIL
                             Mercator Projection (20° S)
                                      WGS 84                                   PERU

                                                                                LIMA

                                                                                BOLIVIA

                                                                                Ilo Tacna

                                                                                Arica

                                                                                Iquique

                                                                                CHILE
                                       PACIFIC

                                       OCEAN

                                                                                SANTIAGO

                                                                                ARGENTINA

                    15

5 CIJ1057.indb 26                                                                                1/12/14 08:59

                    15 	                  maritime dispute (judgment)

                    ation” 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 relat-
                    ing 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 Conven-
                    tion 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 agree-
                    ments relating to the functioning of the CPPS were signed in Quito in
                    May 1967.
                       21. On 3 December 1973, the very day the Third United Nations Con-
                    ference on the Law of the Sea began, the twelve instruments were submit-
                    ted 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 agree-
                    ments, 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

                    16

5 CIJ1057.indb 28                                                                                1/12/14 08:59

                    16 	                   maritime dispute (judgment)

                    to the United Nations for registration along with the other twelve instru-
                    ments 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 con-
                    tends 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 mini-
                    mum 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 mari
                    time boundary lines claimed by Peru and Chile respectively, p. 17.)

                       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 base-
                    lines. (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 mari-
                    time 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 by Chile is totally inequitable as it accords
                    Chile a full 200‑nautical‑mile maritime extension, whereas Peru, in con-
                    trast, suffers a severe cut‑off effect. Peru states that it is extraordinary for
                    Chile to seek to characterize a boundary line, which accords Chile more
                    than twice as much maritime area as it would Peru, as a stable frontier
                    which is beneficial to Peru.

                                             IV. Whether There Is
                                         an Agreed Maritime Boundary

                       24. In order to settle the dispute before it, the Court must first ascer-
                    tain whether an agreed maritime boundary exists, as Chile claims. In
                    addressing this question, the Parties considered the significance of the
                    1947 Proclamations, the 1952 Santiago Declaration and various agree-
                    ments concluded in 1952 and 1954. They also referred to the practice of

                    17

5 CIJ1057.indb 30                                                                                1/12/14 08:59

5 CIJ1057.indb 32
                    18
                                    Sketch-map No. 2:
                                                                                17

                              The maritime boundary lines
                         claimed by Peru and Chile respectively                                                           PERU
                                 This sketch-map has been prepared
                                    for illustrative purposes only.
                                 Mercator Projection (18° 20' S)
                                           WGS 84                                                                                BOLIVIA
                                                                                Ilo

                                                                                Tacna
                                                                      Maritime boundary along parallel
                                                                             as claimed by Chile

                                                                                Arica

                                                                                e
                                                                                lin
                                                                                ce
                                                                                tan
                                                                                di s
                                                                                i
                                                                                qu
                           200 nautical miles                                                           ge
                                                                                a lon Peru
                           from Peru's coast                                                    ary d by
                                                                                nd    e
                                                                                b ou laim
                                                                                e sc
                                                                                ti m     a
                                                                               ri
                                                                          Ma
                                                                                maritime dispute (judgment)

                                    PACIFIC                                                                                CHILE

                                     OCEAN

                                             200 nautical miles
                                             from Chile's coast

1/12/14 08:59

                    18 	                  maritime dispute (judgment)

                    the Parties subsequent to the 1952 Santiago Declaration. The Court will
                    deal with each of these matters in turn.

                                  1. The 1947 Proclamations of Chile and Peru
                      25. As noted above (see paragraph 19), in their 1947 Proclamations,
                    Chile and Peru unilaterally proclaimed certain maritime rights extending
                    200 nautical miles from their respective coasts.

                       26. The Parties agree that the relevant historical background to these
                    Proclamations involves a number of comparable proclamations by other
                    States, namely the United States of America’s two Proclamations of its
                    policy with respect to both the natural resources of the subsoil and
                    sea‑bed of the continental shelf, and coastal fisheries in certain areas of
                    the high seas, both dated 28 September 1945, the Mexican Declaration
                    with Respect to Continental Shelf dated 29 October 1945 and the Argen-
                    tinean Declaration Proclaiming Sovereignty over the Epicontinental Sea
                    and the Continental Shelf dated 11 October 1946. Both Parties agree on
                    the importance of fish and whale resources to their economies, submitting
                    that the above‑mentioned Proclamations by the United States of America
                    placed increased pressure on the commercial exploitation of fisheries off
                    the coast of the Pacific States of Latin America, thus motivating their
                    1947 Proclamations.

                       27. Beyond this background, the Parties present differing interpreta-
                    tions of both the content and legal significance of the 1947 Proclama-
                    tions.
                       28. According to Peru, Chile’s 1947 Declaration was an initial and
                    innovative step, whereby it asserted an alterable claim to jurisdiction,
                    dependent on the adoption of further measures ; nothing in this Declara-
                    tion indicated any intention, on the part of Chile, to address the question
                    of lateral maritime boundaries with neighbouring States. Peru argues that
                    its own 1947 Decree is similarly provisional, representing an initial step
                    and not purporting to fix definitive limits of Peruvian jurisdiction.

                       Peru contends that although its 1947 Decree refers to the Peruvian
                    zone of control and protection as “the area covered between the coast
                    and an imaginary parallel line to it at a distance of two hundred (200) naut
                    ical miles measured following the line of the geographical parallels”,
                    such reference simply described the manner in which the seaward limits of
                    the maritime zone would be drawn, with there being no intention to set
                    any lateral boundaries with neighbouring States. Peru further considers
                    that, according to terminology at the relevant time, the language of “sov-
                    ereignty” in its 1947 Decree referred simply to rights over resources.
                       29. By contrast, Chile understands the Parties’ 1947 Proclamations as
                    more relevant, considering them to be “concordant unilateral proclama-

                    19

5 CIJ1057.indb 34                                                                                1/12/14 08:59

                    19 	                  maritime dispute (judgment)

                    tions, each claiming sovereignty to a distance of 200 nautical miles”,
                    being “substantially similar in form, content and effect”. Chile observes
                    that each of the Parties proclaims national sovereignty over its adjacent
                    continental shelf, as well as in respect of the water column, indicating also
                    a right to extend the outer limit of its respective maritime zone.

                      30. Peru contests Chile’s description of the 1947 Proclamations as
                    “concordant”, emphasizing that, although Chile’s 1947 Declaration and
                    Peru’s 1947 Decree were closely related in time and object, they were not
                    co‑ordinated or agreed between the Parties.

                       31. Chile further argues that the 1947 Proclamations set clear bound-
                    aries of the maritime zones referred to therein. Chile contends that the
                    method in Peru’s 1947 Decree of using a geographical parallel to measure
                    the outward limit of the maritime zone also necessarily determines the
                    northern and southern lateral limits of such zone along such line of geo-
                    graphical parallel. According to Chile, its own references to a “perimeter”
                    and to the “mathematical parallel” in its 1947 Declaration could be simi-
                    larly understood as indicating that a tracé parallèle method was used to
                    indicate the perimeter of the claimed Chilean zone.

                      32. Chile adds that parallels of latitude were also used in the practice
                    of American States. Peru responds that the use of parallels of latitude by
                    other American States described by Chile are not instances of the use of
                    parallels of latitude as international maritime boundaries.

                       33. For Chile, the primary significance of the 1947 Proclamations is as
                    antecedents to the 1952 Santiago Declaration. Chile also refers to the
                    1947 Proclamations as circumstances of the conclusion of the 1952 San-
                    tiago Declaration and the 1954 Special Maritime Frontier Zone Agree-
                    ment, in accordance with Article 32 of the Vienna Convention on the
                    Law of Treaties. Chile maintains that the 1947 Proclamations, in particu-
                    lar Peru’s use of a “line of the geographic parallels” to measure its mari-
                    time projection, rendered the boundary delimitation uncontroversial in
                    1952, as there could be no less controversial boundary delimitation than
                    when the claimed maritime zones of two adjacent States abut perfectly
                    but do not overlap. However, Chile further clarifies that it does not con-
                    sider that the 1947 Proclamations themselves established a maritime
                    boundary between the Parties.

                       34. Peru questions the Chilean claim that the adjacent maritime zones
                    abut perfectly by pointing out that the 1947 Proclamations do not stipu-
                    late co-ordinates or refer to international boundaries. Peru’s view on the
                    connection between the 1947 Proclamations and the 1952 Santiago Dec-
                    laration is that the 1947 Proclamations cannot constitute circumstances
                    of the 1952 Santiago Declaration’s conclusion in the sense of Article 32

                    20

5 CIJ1057.indb 36                                                                                1/12/14 08:59

                    20 	                            maritime dispute (judgment)

                    of the Vienna Convention on the Law of Treaties as they pre‑date the
                    conclusion of the 1952 Santiago Declaration by five years. Peru also
                    questions Chile’s assertion that the 1947 Proclamations constitute

                    circumstances of the conclusion of the 1954 Special Maritime Frontier
                     Zone Agreement.
                        35. The Parties further disagree on the legal nature of the 1947 Procla-
                     mations, particularly Chile’s 1947 Declaration. Chile contends that the
                     1947 Proclamations each had immediate effect, without the need for fur-
                     ther formality or enacting legislation. Peru denies this, contending rather
                     that Chile’s 1947 Declaration did not have the nature of a legal act. It
                     points to the fact that the 1947 Declaration was published only in a daily
                     newspaper and not in the Official Gazette of Chile.

                      36. Chile’s response to these arguments is that the status of its
                    1947 Declaration under domestic law is not determinative of its status
                    under international law, emphasizing that it was an international claim
                    made by the President of Chile and addressed to the international com-
                    munity. Chile points out that the Parties exchanged formal notifications
                    of their 1947 Proclamations, arguing that the lack of protest thereto dem-
                    onstrates acceptance of the validity of the other’s claim to sovereignty,
                    including in relation to the perimeter. This was challenged by Peru.

                                                                             *
                      37. The relevant paragraphs of Chile’s 1947 Declaration provide as
                    follows :
                             “Considering :
                         1. That the Governments of the United States of America, of Mex-
                               ico and of the Argentine Republic, by presidential declarations
                               made on 28 September 1945, 29 October 1945, and 11 Octo-
                               ber 1946, respectively,
                         �����������������������������������������������������������������������������������������������������������������
                         2. That they have explicitly proclaimed the rights of their States to
                               protect, preserve, control and inspect fishing enterprises, with the
                               object of preventing illicit activities threatening to damage or
                               destroy the considerable natural riches of this kind contained in
                               the seas adjacent to their coasts, and which are indispensable to
                               the welfare and progress of their respective peoples ; and that the
                               justice of such claims is indisputable ;
                         3. That it is manifestly convenient, in the case of the Chilean Republic,
                               to issue a similar proclamation of sovereignty, not only by the fact
                               of possessing and having already under exploitation natural riches
                               essential to the life of the nation and contained in the continental
                               shelf, such as the coal‑mines, which are exploited both on the main-
                               land and under the sea, but further because, in view of its topogra-

                    21

5 CIJ1057.indb 38                                                                                1/12/14 08:59

                    21 	                             maritime dispute (judgment)

                                phy and the narrowness of its boundaries, the life of the country is
                                linked to the sea and to all present and future natural riches con-
                                tained within it, more so than in the case of any other country ;
                          �����������������������������������������������������������������������������������������������������������������
                          (1) The Government of Chile confirms and proclaims its national
                                sovereignty over all the continental shelf adjacent to the continen-
                                tal and island coasts of its national territory, whatever may be
                                their depth below the sea, and claims by consequence all the nat-
                                ural riches which exist on the said shelf, both in and under it,
                                known or to be discovered.
                          (2) The Government of Chile confirms and proclaims its national
                                sovereignty over the seas adjacent to its coasts whatever may be
                                their depths, and within those limits necessary in order to reserve,
                                protect, preserve and exploit the natural resources of whatever
                                nature found on, within and below the said seas, placing within
                                the control of the Government especially all fisheries and whaling
                                activities with the object of preventing the exploitation of natural
                                riches of this kind to the detriment of the inhabitants of Chile and
                                to prevent the spoiling or destruction of the said riches to the
                                detriment of the country and the American continent.
                          (3) The demarcation of the protection zones for whaling and deep
                                sea fishery in the continental and island seas under the control of
                                the Government of Chile will be made in accordance with this
                                declaration of sovereignty at any moment which the Government
                                may consider convenient, such demarcation to be ratified, ampli-
                                fied, or modified in any way to conform with the knowledge, dis-
                                coveries, studies and interests of Chile as required in the future.
                                Protection and control is hereby declared immediately over all the
                                seas contained within the perimeter formed by the coast and the
                                mathematical parallel projected into the sea at a distance of
                                200 nautical miles from the coasts of Chilean territory. This
                                demarcation will be calculated to include the Chilean islands,
                                indicating a maritime zone contiguous to the coasts of the said
                                islands, projected parallel to these islands at a distance of 200 naut
                                ical miles around their coasts.
                          (4) The present declaration of sovereignty does not disregard the
                                similar legitimate rights of other States on a basis of reciprocity,
                                 nor does it affect the rights of free navigation on the high seas.”
                        38. The relevant paragraphs of Peru’s 1947 Decree provide as follows :

                              “The President of the Republic,
                              Considering :
                          �����������������������������������������������������������������������������������������������������������������
                              That the shelf contains certain natural resources which must be
                          proclaimed as our national heritage ;

                    22

5 CIJ1057.indb 40                                                                                1/12/14 08:59

                    22 	                            maritime dispute (judgment)

                             That it is deemed equally necessary that the State protect, maintain
                         and establish a control of fisheries and other natural resources found
                         in the continental waters which cover the submerged shelf and the
                         adjacent continental seas in order that these resources which are so
                         essential to our national life may continue to be exploited now and
                         in the future in such a way as to cause no detriment to the country’s
                         economy or to its food production ;
                         �����������������������������������������������������������������������������������������������������������������
                             That the right to proclaim sovereignty and national jurisdiction
                         over the entire extension of the submerged shelf as well as over the
                         continental waters which cover it and the adjacent seas in the area
                         required for the maintenance and vigilance of the resources therein
                         contained, has been claimed by other countries and practically admit-
                         ted in international law (Declaration of the President of the United
                         States of 28 September 1945 ; Declaration of the President of Mexico
                         of 29 October 1945 ; Decree of the President of the Argentine
                         Nation of 11 October 1946 ; Declaration of the President of Chile
                         of 23 June 1947) ;
                         �����������������������������������������������������������������������������������������������������������������
                            With the advisory vote of the Cabinet,
                            Decrees :
                         1. To declare that national sovereignty and jurisdiction are extended
                            to the submerged continental or insular shelf adjacent to the con-
                            tinental or insular shores of national territory, whatever the depth
                            and extension of this shelf may be.
                         2. National sovereignty and jurisdiction are exercised as well over
                            the sea adjoining the shores of national territory whatever its
                            depth and in the extension necessary to reserve, protect, maintain
                            and utilize natural resources and wealth of any kind which may
                            be found in or below those waters.
                         3. As a result of previous declarations the State reserves the right to
                            establish the limits of the zones of control and protection of nat-
                            ural resources in continental or insular seas which are controlled
                            by the Peruvian Government and to modify such limits in accord-
                            ance with supervening circumstances which may originate as a
                            result of further discoveries, studies or national interests which may
                            become apparent in the future and at the same time declares that
                            it will exercise the same control and protection on the seas adjacent
                            to the Peruvian coast over the area covered between the coast and
                            an imaginary parallel line to it at a distance of two hundred (200)
                            nautical miles measured following the line of the geographical par-
                            allels. As regards islands pertaining to the nation, this demarcation
                            will be traced to include the sea area adjacent to the shores of these
                            islands to a distance of two hundred (200) nautical miles, measured
                            from all points on the contour of these islands.

                    23

5 CIJ1057.indb 42                                                                                1/12/14 08:59

                    23 	                  maritime dispute (judgment)

                         4. The present declaration does not affect the right to free navigation
                            of ships of all nations according to international law.”

                       39. The Court notes that the Parties are in agreement that the
                    1947 Proclamations do not themselves establish an international mari-
                    time boundary. The Court therefore will consider the 1947 Proclamations
                    only for the purpose of ascertaining whether the texts evidence the Par-
                    ties’ understanding as far as the establishment of a future maritime
                    boundary between them is concerned.
                       40. The Court observes that paragraph 3 of Chile’s 1947 Declaration
                    referred to a “mathematical parallel” projected into the sea to a distance
                    of 200 nautical miles from the Chilean coast. Such a mathematical paral-
                    lel limited the seaward extent of the projection, but did not fix its lateral
                    limits. The 1947 Declaration nonetheless stated that it concerned the con-
                    tinental shelf and the seas “adjacent” to the Chilean coasts. It implied the
                    need to fix, in the future, the lateral limits of the jurisdiction that it was
                    seeking to establish within a specified perimeter. The Court further notes
                    that Peru’s 1947 Decree, in paragraph 3, referred to “geographical paral-
                    lels” in identifying its maritime zone. The description of the relevant mar-
                    itime zones in the 1947 Proclamations appears to use a tracé parallèle
                    method. However, the utilization of such method is not sufficient to evi-
                    dence a clear intention of the Parties that their eventual maritime bound-
                    ary would be a parallel.

                       41. The Court recalls that paragraph 3 of Chile’s 1947 Declaration
                    provides for the establishment of protective zones for whaling and deep
                    sea fishery, considering that these may be modified in any way “to con-
                    form with the knowledge, discoveries, studies and interests of Chile as
                    required in the future”. This conditional language cannot be seen as com-
                    mitting Chile to a particular method of delimiting a future lateral bound-
                    ary with its neighbouring States ; rather, Chile’s concern relates to the
                    establishment of a zone of protection and control so as to ensure the
                    exploitation and preservation of natural resources.

                       42. The language of Peru’s 1947 Decree is equally conditional. In para-
                    graph 3, Peru reserves the right to modify its “zones of control and pro-
                    tection” as a result of “national interests which may become apparent in
                    the future”.
                       43. In view of the above, the language of the 1947 Proclamations, as
                    well as their provisional nature, precludes an interpretation of them as
                    reflecting a shared understanding of the Parties concerning maritime
                    delimitation. At the same time, the Court observes that the Parties’
                    1947 Proclamations contain similar claims concerning their rights and
                    jurisdiction in the maritime zones, giving rise to the necessity of establish-
                    ing the lateral limits of these zones in the future.

                    24

5 CIJ1057.indb 44                                                                                1/12/14 08:59

                    24 	                   maritime dispute (judgment)

                       44. Having reached this conclusion, the Court does not need to address
                    Chile’s argument concerning the relevance of the communication of the
                    1947 Proclamations inter se and Peru’s response to that argument. The
                    Court notes, however, that both Peru and Chile simply acknowledged
                    receipt of each other’s notification without making any reference to the pos-
                    sible 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 sig-
                    nature 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 con-
                    ceived as a treaty, but rather as a proclamation of the international mari-
                    time 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 con-
                    tested that the 1952 Santiago Declaration is an international treaty. The
                    Court’s task now is to ascertain whether it established a maritime bound-
                    ary 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 pro-
                             tection 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.
                          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

                    25

5 CIJ1057.indb 46                                                                                1/12/14 08:59

                    25 	                   maritime dispute (judgment)

                              detriment of the peoples who, because of their geographical situ-
                              ation, possess irreplaceable means of subsistence and vital eco-
                              nomic 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 adja-
                         cent to their coasts, formulate the following Declaration :
                           I. The geological and biological factors which determine the exist-
                              ence, conservation and development of marine fauna and flora in
                              the waters along the coasts of the countries making the Declar
                              ation are such that the former extension of the territorial sea and
                              the contiguous zone are inadequate for the purposes of the con-
                              servation, 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 mari
                              time policy that they each possess exclusive sovereignty and juris-
                              diction 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 sea-bed 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 mak-
                              ing the declaration is situated less than 200 nautical miles from
                              the general maritime zone belonging to another of those coun-
                              tries, 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 limi-
                              tations 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 Declar
                             ation, 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 regu-
                             late 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.”

                                                           *

                    26

5 CIJ1057.indb 48                                                                                1/12/14 08:59

                    26 	                  maritime dispute (judgment)

                       50. Peru asserts that the 1952 Santiago Declaration lacks characteris-
                    tics which might be expected of a boundary agreement, namely, an appro-
                    priate 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, point-
                    ing out that a treaty effecting a boundary delimitation can take any form.

                       51. According to Chile, it follows from paragraph IV of the 1952 San-
                    tiago 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 geograph-
                    ical circumstances. In support of this claim, Chile relies upon the minutes
                    of the 1952 Conference dated 11 August 1952, asserting that the Ecuador-
                    ean delegate requested clarification that the boundary line of the jurisdic-
                    tional 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 Conven-
                    tion 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 delimita-
                    tion of insular zones along a line of parallel is only coherent and effective
                    if there is also a general maritime delimitation along such parallel. Fur-
                    ther, 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 gen-
                    eral 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, para-
                    graph IV of the 1952 Santiago Declaration refers only to the entitlement
                    generated by certain islands and not to the entitlement generated by con-
                    tinental 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 con-
                    cern during the 1952 Conference.

                    27

5 CIJ1057.indb 50                                                                                1/12/14 08:59

                    27 	                  maritime dispute (judgment)

                       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 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 pro-
                    tective 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 gener-
                    ally 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 claim-
                    ing 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 Decla-
                    ration 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 function-
                    ing “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 stipula-
                    tion as to how the States parties’ maritime zones are delimited from each
                    other.

                                                         *
                    28

5 CIJ1057.indb 52                                                                                1/12/14 08:59

                    28 	                  maritime dispute (judgment)

                       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 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 Naviga
                    tional 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 com-
                    pounded by the lack of such information which might be expected in an
                    agreement determining maritime boundaries, namely, specific co‑ordi-
                    nates or cartographic material. Nevertheless, the 1952 Santiago Declara-
                    tion 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 mar-
                    itime 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 sea-bed and the subsoil
                    thereof”. Such a reference to jurisdiction and sovereignty does not neces-
                    sarily 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 para-
                    graph 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 sover-
                    eignty.

                    29

5 CIJ1057.indb 54                                                                                1/12/14 08:59

                    29 	                  maritime dispute (judgment)

                       60. The Court turns now to paragraph IV of the 1952 Santiago Dec
                    laration. The first sentence of paragraph IV specifies that the proclaimed
                    200‑nautical‑mile maritime zones apply also in the case of island territo-
                    ries. 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 San-
                    tiago 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.

                       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 estab-
                    lishing the Parties’ agreement concerning the limits between certain insu-
                    lar 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 con-
                    cerned 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

                    30

5 CIJ1057.indb 56                                                                                1/12/14 08:59

                    30 	                  maritime dispute (judgment)

                    them was mentioned in the negotiating record related to the 1952 San
                    tiago Declaration . . . The only islands that were mentioned in the con-
                    text 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, para-
                    graph 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 con-
                    clusion 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 interpre-
                    tation within the meaning of Article 32 of the Vienna Convention on the
                    Law of Treaties.
                       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 pro-
                    vided 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.”
                    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.

                    31

5 CIJ1057.indb 58                                                                                1/12/14 08:59

                    31 	                  maritime dispute (judgment)

                      68. Further, the minutes of the 1952 Conference indicate that the dele
                    gate for Ecuador :
                         “observed that it would be advisable to provide more clarity to Arti-
                         cle 3 [which became paragraph IV of the final text of the 1952 San
                         tiago 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 juris-
                         dictional 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.
                       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 delimita-
                    tion.
                       69. Nevertheless, various factors mentioned in the preceding para-
                    graphs, 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 con-
                    cerning 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 ter-
                    minus 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 par-
                    ticular, 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 San-
                    tiago Declaration in the period running from August to late October 1954
                    and of the planned whale hunting by a fleet operating under the Panama-
                    nian flag.

                    32

5 CIJ1057.indb 60                                                                                1/12/14 08:59

                    32 	                  maritime dispute (judgment)

                       72. The meeting of the CPPS, preparatory to the Inter‑State confer-
                    ence of December 1954, was held between 4 and 8 October 1954. The pro-
                    visional agenda items correspond to five of the six agreements which were
                    drafted and adopted at the December Inter‑State Conference : the Com-
                    plementary Convention to the 1952 Santiago Declaration, the Conven-
                    tion on the System of Sanctions, the Agreement on the Annual Meeting
                    of the CPPS, the Convention on Supervision and Control, and the Con-
                    vention 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 Ecua-
                    dor 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 pro-
                    posal unanimously “and, consequently, entrusted its 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 pro-
                    posal to establish a “neutral zone” along the parallel was then amended in
                    certain respects. The term “neutral zone” was replaced with the term “spe-
                    cial 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 Conven-
                    tion (see paragraph 78 below). The Court notes that the 1954 Special Mari-
                    time 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

                    33

5 CIJ1057.indb 62                                                                                1/12/14 08:59

                    33 	                            maritime dispute (judgment)

                    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, what-
                         ever the cost, this sovereignty and to exercise it in accordance with
                         the high national interests of the signatory countries to the Declara-
                         tion.
                         �����������������������������������������������������������������������������������������������������������������
                             We strongly believe that, little by little, the legal statement that has
                         been formulated by our countries into the 1952 Agreement [the San-
                         tiago 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 exer-
                         cise of exploitative activities that pursue diminished individual inter-
                         ests and not collective needs.”
                       75. Peru similarly contends that the purpose of the 1954 Complemen-
                    tary Convention was to reinforce regional solidarity in the face of opposi-
                    tion 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 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 solidar-
                    ity vis‑à‑vis third States and that they were essentially an integral part of
                    the agreements and resolutions adopted in 1952. The Inter‑State Confer-
                    ence 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 Com
                    plementary 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 Conven-

                    34

5 CIJ1057.indb 64                                                                                1/12/14 08:59

                    34 	                   maritime dispute (judgment)

                    tion 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 Confer-
                    ence. 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 Mari-
                    time Zones of the Signatory Countries. It quotes the first and second
                    articles :
                             “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 exer-
                          cised 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

                    35

5 CIJ1057.indb 66                                                                                1/12/14 08:59

                    35 	                  maritime dispute (judgment)

                    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 Supervi-
                    sion 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 Agree-
                    ment 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 insuffi-
                         cient 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 infringe-
                         ments, the consequences of which affect principally the fishermen.”

                      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 con-
                         strued 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 Agree-
                    ments, deeming it to be “an integral and supplementary part” of the
                    1952 instruments which it was not in any way to abrogate (see para-
                    graph 73 above).

                    36

5 CIJ1057.indb 68                                                                                1/12/14 08:59

                    36 	                  maritime dispute (judgment)

                      82. According to Chile, the 1954 Special Maritime Frontier Zone
                    Agreement was “the most relevant instrument adopted at the Decem-
                    ber 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 Mari-
                    time 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 of
                    major importance in 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 plead-
                    ings, 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.

                       84. With regard to Peru’s first argument, Chile in reply points out that
                    the 1954 Special Maritime Frontier Zone Agreement has three States par-
                    ties 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 ves-
                    sels 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 par-
                    ticularly 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

                    37

5 CIJ1057.indb 70                                                                                1/12/14 08:59

                    37 	                  maritime dispute (judgment)

                    only to the Ecuador‑Peru maritime boundary. Moreover Peru did not in
                    practice accord it that limited meaning which would preclude its applica-
                    tion to Peru’s southern maritime boundary with Chile. The Court further
                    notes that the 1954 Special Maritime Frontier Zone Agreement was nego-
                    tiated and signed by the representatives of all three States, both in the
                    Commission and at the Inter‑State Conference. All three States then pro-
                    ceeded 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 point-
                    ing 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 regis-
                    tration of an Agreement is delayed is of no relevance.

                       87. The Court is of the view that Chile’s delay in ratifying the 1954 Spe-
                    cial Maritime Frontier Zone Agreement and submitting it for registration
                    does not support Peru’s argument that Chile considered that the Agree-
                    ment lacked major importance. In any event, this delay has no bearing on
                    the scope and effect of the Agreement. Once ratified by Chile the Agree-
                    ment 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 sub-
                    mitted all of them for registration (see paragraphs 20 to 21 above).

                       88. With regard to Peru’s third argument that the 1954 Special Mari-
                    time 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 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 con-
                    cerned, 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 pri-

                    38

5 CIJ1057.indb 72                                                                                1/12/14 08:59

                    38 	                  maritime dispute (judgment)

                    mary 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 Agree-
                    ment is not considered a “violation” of the adjacent State’s maritime
                    zone. Chile claims that although its ratification of the 1954 Special Mari-
                    time Frontier Zone Agreement came some time after its signature, the
                    boundary whose existence was acknowledged and acted upon was already
                    in place throughout the period leading to its ratification.

                       89. According to Peru, the aim of the 1954 Special Maritime Frontier
                    Zone Agreement “was narrow and specific”, establishing a “zone of toler-
                    ance” for small and ill‑equipped fishing vessels. Defining that zone by
                    reference to a parallel of latitude was a practical approach for the crew of
                    such vessels. The 1954 Special Maritime Frontier Zone Agreement did
                    not have a larger purpose, such as establishing a comprehensive régime
                    for the exploitation of fisheries or adding to the content of the 200‑nauti-
                    cal‑mile zones or setting out their limits and borders. Peru also maintains
                    that “the 1954 Agreement was a practical arrangement, of a technical
                    nature, and of limited geographical scope, not one dealing in any sense
                    with political matters”.

                      90. In the view of the Court, the operative terms and purpose of the
                    1954 Special Maritime Frontier Zone Agreement are indeed narrow and
                    specific. That is not however the matter under consideration by the Court
                    at this stage. Rather, its focus is on one central issue, namely, the exis-
                    tence of a maritime boundary. On that issue the terms of the 1954 Special
                    Maritime Frontier Zone Agreement, especially Article 1 read with the
                    preambular paragraphs, are clear. They acknowledge in a binding inter-
                    national agreement that a maritime boundary already exists. The Parties
                    did not see any difference in this context between the expression “límite
                    marítimo” in Article 1 and the expression “frontera marítima” in the Pre-
                    amble, nor does the Court.

                       91. The 1954 Special Maritime Frontier Zone Agreement does not
                    indicate when and by what means that boundary was agreed upon. The
                    Parties’ express acknowledgment of its existence can only reflect a tacit
                    agreement which they had reached earlier. In this connection, the Court
                    has already mentioned that certain elements of the 1947 Proclamations
                    and the 1952 Santiago Declaration suggested an evolving understanding
                    between the Parties concerning their maritime boundary (see para-
                    graphs 43 and 69 above). In an earlier case, the Court, recognizing that
                    “[t]he establishment of a permanent maritime boundary is a matter of
                    grave importance”, underlined that “[e]vidence of a tacit legal agreement
                    must be compelling” (Territorial and Maritime Dispute between Nicaragua
                    and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,

                    39

5 CIJ1057.indb 74                                                                                1/12/14 08:59

                    39 	                 maritime dispute (judgment)

                    I.C.J. Reports 2007 (II), p. 735, para. 253). In this case, the Court has
                    before it an Agreement which makes clear that the maritime boundary
                    along a parallel already existed between the Parties. The 1954 Agreement
                    is decisive in this respect. That Agreement cements the tacit agreement.

                       92. The 1954 Special Maritime Frontier Zone Agreement gives no
                    indication of the nature of the maritime boundary. Nor does it indicate
                    its extent, except that its provisions make it clear that the maritime
                    boundary extends beyond 12 nautical miles from the coast.

                                                        *
                       93. In this context, the Parties referred to an opinion prepared in 1964
                    by Mr. Raúl Bazán Dávila, Head of the Legal Advisory Office of the
                    Chilean Ministry of Foreign Affairs, in response to a request from the
                    Chilean Boundaries Directorate regarding “the delimitation of the fron-
                    tier between the Chilean and Peruvian territorial seas”. Having recalled
                    the relevant rules of international law, Mr. Bazán examined the question
                    whether some specific agreement on maritime delimitation existed between
                    the two States. He believed that it did, but was not able to determine
                    “when and how this agreement was reached”. Paragraph IV of the
                    1952 Santiago Declaration was not “an express pact” on the boundary,
                    but it “assum[ed] that this boundary coincides with the parallel
                    that passes through the point at which the land frontier reaches the sea”.
                    It was possible to presume, he continued, that the agreement on the
                    boundary preceded and conditioned the signing of the 1952 Santiago
                    Declaration.
                       94. According to Peru, the fact that such a request was addressed to
                    the Head of the Legal Advisory Office illustrates that the Chilean Gov-
                    ernment was unsure about whether there was a pre‑existing boundary.
                    Chile emphasizes Mr. Bazán’s conclusion that the maritime boundary
                    between the Parties is the parallel which passes through the point where
                    the land boundary reaches the sea. Chile also notes that this was a pub-
                    licly available document and that Peru would have responded if it had
                    disagreed with the conclusion the document stated, but did not do so.
                       95. Nothing in the opinion prepared by Mr. Bazán, or the fact that
                    such an opinion was requested in the first place, leads the Court to alter
                    the conclusion it reached above (see paragraphs 90 to 91), namely, that by
                    1954 the Parties acknowledged that there existed an agreed maritime
                    boundary.

                                   4. The 1968‑1969 Lighthouse Arrangements
                       96. In 1968‑1969, the Parties entered into arrangements to build one
                    lighthouse each, “at the point at which the common border reaches the
                    sea, near boundary marker number one”. At this point, the Court

                    40

5 CIJ1057.indb 76                                                                                1/12/14 08:59

                    40 	                   maritime dispute (judgment)

                    observes that on 26 April 1968, following communication between the
                    Peruvian Ministry of Foreign Affairs and the Chilean chargé d’affaires
                    earlier that year, delegates of both Parties signed a document whereby
                    they undertook the task of carrying out “an on‑site study for the installa-
                    tion of leading marks visible from the sea to materialise the parallel of the
                    maritime frontier originating at Boundary Marker number one (No. 1)”.

                      That document concluded as follows :
                            “Finally, given that the parallel which it is intended to materialise is
                         that which corresponds to the geographical location indicated in the Act
                         signed in Lima on 1 August 1930 for Boundary Marker No. 1, the Rep-
                         resentatives suggest that the positions of this pyramid be verified by a
                         Joint Commission before the execution of the recommended works.”
                       97. Chile sees the Parties, in taking this action, as explicitly recording
                    their understanding that there was a “maritime frontier” between the two
                    States and that it followed the line of latitude passing through Boundary
                    Marker No. 1 (referred to in Spanish as “Hito No. 1”). Chile states that
                    the Parties’ delegates “recorded their joint understanding that their task
                    was to signal the existing maritime boundary”. Chile quotes the terms of
                    the approval in August 1968 by the Secretary‑General of the Peruvian
                    Ministry of Foreign Affairs of the minutes of an earlier meeting that the
                    signalling marks were to materialize (materializar) the parallel of the mar-
                    itime frontier. Chile further relies on an August 1969 Peruvian Note,
                    according to which the Mixed Commission entrusted with demarcation
                    was to verify the position of Boundary Marker No. 1 and to “fix the
                    definitive location of the two alignment towers that were to signal the
                    maritime boundary”. The Joint Report of the Commission recorded its
                    task in the same terms.
                       98. In Peru’s view, the beacons erected under these arrangements were
                    evidently a pragmatic device intended to address the practical problems
                    arising from the coastal fishing incidents in the 1960s. It calls attention to
                    the beacons’ limited range — not more than 15 nautical miles offshore.
                    Peru argues that they were plainly not intended to establish a maritime
                    boundary. Throughout the process, according to Peru, there is no indica-
                    tion whatsoever that the two States were engaged in the drawing of a
                    definitive and permanent international boundary, nor did any of the cor-
                    respondence refer to any pre‑existent delimitation agreement. The focus
                    was consistently, and exclusively, upon the practical task of keeping Peru-
                    vian and Chilean fishermen apart and solving a very specific problem
                    within the 15‑nautical‑mile range of the lights.

                                                           *
                      99. The Court is of the opinion that the purpose and geographical
                    scope of the arrangements were limited, as indeed the Parties recognize.

                    41

5 CIJ1057.indb 78                                                                                1/12/14 08:59

                    41 	                  maritime dispute (judgment)

                    The Court also observes that the record of the process leading to the
                    arrangements and the building of the lighthouses does not refer to any
                    pre‑existent delimitation agreement. What is important in the Court’s
                    view, however, is that the arrangements proceed on the basis that a mari-
                    time boundary extending along the parallel beyond 12 nautical miles
                    already exists. Along with the 1954 Special Maritime Frontier Zone Agree-
                    ment, the arrangements acknowledge that fact. Also, like that Agreement,
                    they do not indicate the extent and nature of that maritime boundary. The
                    arrangements seek to give effect to it for a specific purpose.

                                5. The Nature of the Agreed Maritime Boundary
                       100. As the Court has just said, it is the case that the 1954 Special
                    Maritime Frontier Zone Agreement refers to the existing boundary for a
                    particular purpose ; that is also true of the 1968‑1969 arrangements for
                    the lighthouses. The Court must now determine the nature of the mari-
                    time boundary, the existence of which was acknowledged in the
                    1954 Agreement, that is, whether it is a single maritime boundary appli-
                    cable to the water column, the sea-bed and its subsoil, or a boundary
                    applicable only to the water column.
                       101. Chile contends that the boundary is an all‑purpose one, applying
                    to the sea‑bed and subsoil as well as to the waters above them with rights
                    to their resources in accordance with customary law as reflected in the
                    United Nations Convention on the Law of the Sea (UNCLOS). Peru sub-
                    mits that the line to which the 1954 Special Maritime Frontier Zone
                    Agreement refers is related only to aspects of the policing of coastal fish-
                    eries and facilitating safe shipping and fishing in near-shore areas.

                      102. The Court is concerned at this stage with the 1954 Special Mari-
                    time Frontier Zone Agreement only to the extent that it acknowledged
                    the existence of a maritime boundary. The tacit agreement, acknowledged
                    in the 1954 Agreement, must be understood in the context of the
                    1947 Proclamations and the 1952 Santiago Declaration. These instru-
                    ments expressed claims to the sea‑bed and to waters above the sea‑bed
                    and their resources. In this regard the Parties drew no distinction, at that
                    time or subsequently, between these spaces. The Court concludes that the
                    boundary is an all-purpose one.

                                 6. The Extent of the Agreed Maritime Boundary
                       103. The Court now turns to consider the extent of the agreed mari-
                    time boundary. It recalls that the purpose of the 1954 Agreement was
                    narrow and specific (see paragraph 90 above) : it refers to the existing
                    maritime boundary for a particular purpose, namely to establish a zone
                    of tolerance for fishing activity operated by small vessels. Consequently,
                    it must be considered that the maritime boundary whose existence it rec-

                    42

5 CIJ1057.indb 80                                                                                1/12/14 08:59

                    42 	                  maritime dispute (judgment)

                    ognizes, along a parallel, necessarily extends at least to the distance up to
                    which, at the time considered, such activity took place. That activity is
                    one element of the Parties’ relevant practice which the Court will con-
                    sider, but it is not the only element warranting consideration. The Court
                    will examine other relevant practice of the Parties in the early and
                    mid‑1950s, as well as the wider context including developments in the law
                    of the sea at that time. It will also assess the practice of the two Parties
                    subsequent to 1954. This analysis could contribute to the determination
                    of the content of the tacit agreement which the Parties reached concern-
                    ing the extent of their maritime boundary.

                    A. Fishing potential and activity
                      104. The Court will begin with the geography and biology in the area
                    of the maritime boundary. Peru described Ilo as its principal port along
                    this part of the coast. It is about 120 km north‑west of the land bound-
                    ary. On the Chilean side, the port city of Arica lies 15 km to the south
                    of the land boundary and Iquique about 200 km further south (see
                    sketch‑map No. 1 : Geographical context, p. 14).

                       105. Peru, in submissions not challenged by Chile, emphasizes that the
                    areas lying off the coasts of Peru and Chile are rich in marine resources,
                    pointing out that the area in dispute is located in the Humboldt Current
                    Large Maritime Ecosystem. That current, according to Peru, supports an
                    abundance of marine life, with approximately 18 to 20 per cent of the
                    world’s fish catch coming from this ecosystem. The Peruvian representa-
                    tive at the 1958 United Nations Conference on the Law of the Sea (para-
                    graph 106 below) referred to the opinion of a Peruvian expert (writing
                    in a book published in 1947), according to which the “biological limit” of
                    the current was to be found at a distance of 80 to 100 nautical miles from
                    the shore in the summer, and 200 to 250 nautical miles in the winter.
                       Peru recalls that it was the “enormous whaling and fishing potential”
                    of the areas situated off their coasts which led the three States to proclaim
                    200‑nautical‑mile zones in 1952. Industrial fishing is carried out now
                    adays at significant levels in southern areas of Peru, notably from the
                    ports of Ilo and Matarani : the former is “one of Peru’s main fishing ports
                    and the most important fishing centre in southern Peru”.

                       106. Chilean and Peruvian representatives emphasized the richness and
                    value of the fish stocks as preparations were being made for the first
                    United Nations Conference on the Law of the Sea and at that Conference
                    itself. In 1956 the Chilean delegate in the Sixth (Legal) Committee of the
                    United Nations General Assembly, declaring that it was tragic to see
                    large foreign fishing fleets exhausting resources necessary for the liveli-
                    hood of coastal populations and expressing the hope that the rules estab-
                    lished by the three States, including Ecuador, would be endorsed by

                    43

5 CIJ1057.indb 82                                                                                1/12/14 08:59

                    43 	                  maritime dispute (judgment)

                    international law, observed that “[t]he distance of 200 miles was explained
                    by the need to protect all the marine flora and fauna living in the Hum-
                    boldt Current, as all the various species depended on one another for their
                    existence and have constituted a biological unit which had to be pre-
                    served”. At the 1958 Conference, the Peruvian representative (who was
                    the foreign minister at the time of the 1947 Declaration), in supporting
                    the 200‑nautical‑mile limit, stated that what the countries had proclaimed
                    was a biological limit :

                           “Species such as tunny and barrilete were mostly caught 20 to
                         80 miles from the coast ; the same anchovetas of the coastal waters
                         sometimes went 60 or more miles away ; and the cachalot and whales
                         were usually to be found more than 100 miles off.”

                    He then continued :
                           “The requests formulated by Peru met the conditions necessary for
                         their recognition as legally binding and applicable since first, they
                         were the expression of principles recognized by law ; secondly, they
                         had a scientific basis ; and thirdly, they responded to national vital
                         necessities.”
                       107. Chile referred the Court to statistics produced by the Food and
                    Agricultural Organization of the United Nations (FAO) to demonstrate
                    the extent of the fishery activities of Chile and Peru in the early 1950s and
                    later years for the purpose of showing, as Chile saw the matter, the bene
                    fits of the 1952 Santiago Declaration to Peru. Those statistics reveal two
                    facts which the Court sees as helpful in identifying the maritime areas
                    with which the Parties were concerned in the period when they acknow
                    ledged the existence of their maritime boundary. The first is the relatively
                    limited fishing activity by both Chile and Peru in the early 1950s. In 1950,
                    Chile’s catch at about 90,000 tonnes was slightly larger than Peru’s at
                    74,000 tonnes. In the early 1950s, the Parties’ catches of anchovy were
                    exceeded by the catch of other species. In 1950, for instance, Peru’s take
                    of anchovy was 500 tonnes, while its catch of tuna and bonito was
                    44,600 tonnes ; Chile caught 600 tonnes of anchovy that year, and
                    3,300 tonnes of tuna and bonito.

                       Second, in the years leading up to 1954, the Parties’ respective catches
                    in the Pacific Ocean included large amounts of bonito/barrilete and tuna.
                    While it is true that through the 1950s the take of anchovy, especially by
                    Peru, increased very rapidly, the catch of the other species continued at a
                    high and increasing level. In 1954 the Peruvian catch of tuna and bonito
                    was 65,900 tonnes and of anchovy 43,100 tonnes while Chile caught 5,200
                    and 1,300 tonnes of those species, respectively.

                    44

5 CIJ1057.indb 84                                                                                1/12/14 08:59

                    44 	                  maritime dispute (judgment)

                      The Parties also referred to the hunting of whales by their fleets and by
                    foreign fleets as one of the factors leading to the adoption of the 1947 and
                    1952 instruments. The FAO statistics provide some information about
                    the extent of whale catches by the Parties ; there is no indication of where
                    those catches occurred.

                       108. The above information shows that the species which were being
                    taken in the early 1950s were generally to be found within a range of
                    60 nautical miles from the coast. In that context, the Court takes note of
                    the orientation of the coast in this region, and the location of the most
                    important relevant ports of the Parties at the time. Ilo, situated about
                    120 km north‑west of the seaward terminus of the land boundary, is
                    described by Peru as “one of [its] main fishing ports and the most impor-
                    tant fishing centre in Southern Peru”. On the Chilean side, the port of
                    Arica lies just 15 km to the south of the seaward terminus of the land
                    boundary. According to Chile, “[a] significant proportion of the country’s
                    small and medium‑sized fishing vessels, of crucial importance to the econ-
                    omy of the region, are registered at Arica”, while the next significant port
                    is at Iquique, 200 km further south.

                       The purpose of the 1954 Special Maritime Frontier Zone Agreement
                    was to establish a zone of tolerance along the parallel for small fishing
                    boats, which were not sufficiently equipped (see paragraphs 88 to 90 and
                    103). Boats departing from Arica to catch the above-mentioned species,
                    in a west-north-west direction, in the range of 60 nautical miles from the
                    coast, which runs essentially from north to south at this point, would not
                    cross the parallel beyond a point approximately 57 nautical miles from
                    the starting-point of the maritime boundary. The orientation of the coast
                    turns sharply to the north‑west in this region (see sketch-maps Nos. 1
                    and 2, pp. 14 and 17), such that, on the Peruvian side, fishing boats
                    departing seaward from Ilo, in a south-west direction, to the range of
                    those same species would cross the parallel of latitude at a point up to
                    approximately 100 nautical miles from the starting-point of the maritime
                    boundary.

                       109. The Court, in assessing the extent of the lateral maritime bound-
                    ary which the Parties acknowledged existed in 1954, is aware of the
                    importance that fishing has had for the coastal populations of both Par-
                    ties. It does not see as of great significance their knowledge of the likely
                    or possible extent of the resources out to 200 nautical miles nor the extent
                    of their fishing in later years. The catch figures indicate that the principal
                    maritime activity in the early 1950s was fishing undertaken by small ves-
                    sels, such as those specifically mentioned in the 1954 Special Maritime
                    Frontier Zone Agreement and which were also to benefit from the
                    1968‑1969 arrangements relating to the lighthouses.

                    45

5 CIJ1057.indb 86                                                                                1/12/14 08:59

                    45 	                  maritime dispute (judgment)

                       110. A central concern of the three States in the early 1950s was with
                    long‑distance foreign fishing, which they wanted to bring to an end. That
                    concern, and the Parties’ growing understanding of the extent of the fish
                    stocks in the Humboldt Current off their coasts, were major factors in the
                    decisions made by Chile and Peru to declare, unilaterally, their 200‑nau-
                    tical‑mile zones in 1947, and, with Ecuador, to adopt the 1952 Santiago
                    Declaration and other texts in 1952 and to take the further measures in
                    1954 and 1955. To repeat, the emphasis in this period, especially in respect
                    of the more distant waters, was, as Chile asserts, on “[t]he exclusion of
                    unauthorized foreign fleets . . . to facilitate the development of the fishing
                    industries of [the three States]”.

                       111. The Court recalls that the all-purpose nature of the maritime
                    boundary (see paragraph 102 above) means that evidence concerning fish-
                    eries activity, in itself, cannot be determinative of the extent of that
                    boundary. Nevertheless, the fisheries activity provides some support for
                    the view that the Parties, at the time when they acknowledged the exis-
                    tence of an agreed maritime boundary between them, were unlikely to
                    have considered that it extended all the way to the 200‑nautical‑mile limit.

                    B. Contemporaneous developments in the law of the sea
                       112. The Court now moves from the specific, regional context to the
                    broader context as it existed in the 1950s, at the time of the acknowledg-
                    ment by the Parties of the existence of the maritime boundary. That con-
                    text is provided by the State practice and related studies in, and proposals
                    coming from, the International Law Commission and reactions by States
                    or groups of States to those proposals concerning the establishment of
                    maritime zones beyond the territorial sea and the delimitation of those
                    zones. By the 1950s that practice included several unilateral State declara-
                    tions.
                       113. Those declarations, all adopted between 1945 and 1956, may be
                    divided into two categories. The first category is limited to claims in
                    respect of the sea‑bed and its subsoil, the continental shelf, and their
                    resources. They include declarations made by the United States (28 Sep-
                    tember 1945), Mexico (29 October 1945), Argentina (11 October 1946),
                    Saudi Arabia (28 May 1949), Philippines (18 June 1949), Pakistan
                    (9 March 1950), Brazil (8 November 1950), Israel (3 August 1952), Aus-
                    tralia (11 September 1953), India (30 August 1955), Portugal
                    (21 March 1956) and those made in respect of several territories then
                    under United Kingdom authority : Jamaica (26 November 1948), Baha-
                    mas (26 November 1948), British Honduras (9 October 1950), North Bor-
                    neo (1953), British Guiana (1954), Brunei (1954) and Sarawak (1954), as
                    well as nine Arab States then under the protection of the United King-
                    dom (Abu Dhabi (10 June 1949), Ajman (20 June 1949), Bahrain

                    46

5 CIJ1057.indb 88                                                                                1/12/14 08:59

                    46 	                  maritime dispute (judgment)

                    (5 June 1949), Dubai (14 June 1949), Kuwait (12 June 1949), Qatar
                    (8 June 1949), Ras al Khaimah (17 June 1949), Sharjah (16 June 1949),
                    and Umm al Qaiwain (20 June 1949)). Other declarations, the second cat-
                    egory, also claim the waters above the shelf or sea‑bed or make claims in
                    respect of the resources of those waters. In addition to the three claims in
                    issue in this case, those claims include those made by the United States of
                    America (28 September 1945), Panama (17 December 1946), Iceland
                    (5 April 1948), Costa Rica (5 November 1949), Honduras (7 March 1950),
                    El Salvador (7 September 1950) and Nicaragua (1 November 1950). The
                    above‑mentioned acts are reproduced in the United Nations collection,
                    Laws and Regulations on the High Seas, Vol. I, 1951, Part 1, Chap. 1, and
                    Supplement, 1959, Part 1, Chap. 1, and in the Parties’ Pleadings.

                       114. Some of the declarations did address the issue of establishing
                    maritime boundaries. The first was the continental shelf declaration of
                    the United States, which provided that, whenever the continental shelf
                    extends to the shores of another State, or is shared with an adjacent State,
                    the boundary shall be determined by the United States and the State con-
                    cerned in accordance with equitable principles. Those of Mexico and
                    Costa Rica (like that of Chile, see paragraph 37 above) stated that the
                    particular declaration each had made did not mean that that Government
                    sought to disregard the lawful rights of other States, based on reciprocity.
                    The wording in the Argentinean decree accorded conditional recognition
                    to the right of each nation to the same entitlements as it claimed. Procla-
                    mations made by the Arab States then under United Kingdom protection
                    all provided in similar terms that their exclusive jurisdiction and control
                    of the sea‑bed and subsoil extended to boundaries to be determined more
                    precisely, as occasion arises, on equitable or, in one case, just principles,
                    after consultation with the neighbouring States.

                       115. Those declarations were part of the background against which the
                    International Law Commission worked in preparing its 1956 draft arti-
                    cles for the United Nations Conference on the Law of the Sea, held in
                    1958. On the basis, among other things, of the material summarized
                    above, the report of a committee of experts, and comments by a signifi-
                    cant range of States, the Commission proposed that, in the absence of an
                    agreement or special circumstances, an equidistance line be used for
                    delimitation of both the territorial sea and the continental shelf. The
                    Commission in particular rejected, in the absence of an agreement, as a
                    basis for the line the geographical parallel passing through the point at
                    which the land frontier meets the coast. Chile and Ecuador in their obser-
                    vations submitted to the Commission contended that the rights of the
                    coastal State over its continental shelf went beyond just “control” and

                    47

5 CIJ1057.indb 90                                                                                1/12/14 08:59

                    47 	                  maritime dispute (judgment)

                    “jurisdiction” ; Chile, in addition, called for “sovereignty” over both the
                    continental shelf and superjacent waters. However, neither State made
                    any comment on the matter of delimitation. Peru made no comment of
                    any kind. This further supports the view that the chief concern of the
                    three States in this period was defending their 200‑nautical‑mile claims as
                    against third States. The Commission’s proposals were adopted by the
                    1958 Conference and incorporated, with drafting amendments, in the
                    Convention on the Territorial Sea and Contiguous Zone (Art. 12) and the
                    Convention on the Continental Shelf (Art. 6). The territorial sea was not
                    seen by the International Law Commission, and would not have been
                    seen at that time by most nations, as extending beyond 6 nautical miles
                    and the continental shelf line was for the sea‑bed and subsoil, extending
                    to a 200‑metre depth or beyond to the limit of exploitability, and not for
                    the resources of the water above the shelf.

                       116. The Court observes that, during the period under consideration,
                    the proposal in respect of the rights of a State over its waters which came
                    nearest to general international acceptance was for a 6‑nautical‑mile ter-
                    ritorial sea with a further fishing zone of 6 nautical miles and some reser-
                    vation of established fishing rights. As the Court has noted previously, in
                    this period the concept of an exclusive economic zone of 200 nautical
                    miles was “still some long years away” (Maritime Delimitation in the
                    Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 87,
                    para. 70), while its general acceptance in practice and in the 1982 United
                    Nations Convention on the Law of the Sea was about 30 years into the
                    future. In answering a question from a Member of the Court, both Par-
                    ties 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.

                                                         *
                      118. In light of this tentative conclusion, the Court now considers fur-
                    ther 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.

                    48

5 CIJ1057.indb 92                                                                                1/12/14 08:59

                    48 	                  maritime dispute (judgment)

                    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 naut
                    ical 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 correspond-
                         ing 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 interpre-
                    tation 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 bound-
                    ary 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 Resolu-
                    tion. 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

                    49

5 CIJ1057.indb 94                                                                                1/12/14 08:59

                    49 	                  maritime dispute (judgment)

                    Decree on Permits for Fishing by Foreign Vessels in Chilean Territorial
                    Waters ; and a 4 June 1963 Decree on the Appointment of the Authority
                    which Grants Fishing Permits to Foreign Flag Vessels in Chilean Juris-
                    dictional Waters. In response, Chile contends that the 1952 Santiago Dec-
                    laration 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 Declara-
                    tion 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
                            “[T]he 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 mari-
                         time 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 “deter-
                    mined by the geographic and biological similarity of the coastal maritime

                    50

5 CIJ1057.indb 96                                                                                1/12/14 08:59

                    50 	                  maritime dispute (judgment)

                    zones of the signatory countries” to the Declaration. It is common ground
                    that no State in fact ever took advantage of the 1955 Protocol.
                      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 para-
                    graph 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 wish-
                    ing 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 bound-
                    ary 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 fig-
                    ure 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

                    51

5 CIJ1057.indb 98                                                                                1/12/14 08:59

                     51 	                  maritime dispute (judgment)

                     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.

                        128. Until the mid‑1980s, all the practice involving incidents between
                     the two Parties was within about 60 nautical miles of the coasts and usu-
                     ally 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 Peru-
                     vian 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 naut
                     ical 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 con-
                     temporaneous 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 naut

                     52

5 CIJ1057.indb 100                                                                                1/12/14 08:59

                     52 	                  maritime dispute (judgment)

                     ical 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 informa-
                     tion 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 regard-
                     ing 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 discus-
                     sions between the Parties in July 1976 and Peru’s counter‑proposal of
                     November 1976. Chile’s proposal of December 1975 stated that the ces-
                     sion 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, eco-
                     nomic 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 for-
                     mally consulted on these negotiations. In January 1976, Peru acknow
                     ledged 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 assur-
                     ances 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 corri-
                     dor 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 latitu

                     53

5 CIJ1057.indb 102                                                                                1/12/14 08:59

                     53 	                  maritime dispute (judgment)

                     dinal 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 “acknow
                     ledged 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 unreli-
                     able 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 acknowledg-
                     ment did not mention any existing maritime boundary between the Par-
                     ties, 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.
                     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

                     54

5 CIJ1057.indb 104                                                                                1/12/14 08:59

                     54 	                  maritime dispute (judgment)

                          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 con-
                     sider 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 arrange-
                     ments 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 Minis-
                     ter 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 Memoran-
                     dum was an attempt to renegotiate the existing maritime boundary.
                        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 construc-
                          tive 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 aggra-
                          vating circumstance that an extensive interpretation could generate a
                          notorious situation of inequity and risk, to the detriment of the legit-
                          imate 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,

                     55

5 CIJ1057.indb 106                                                                                1/12/14 08:59

                     55 	                  maritime dispute (judgment)

                          without doubt, a space which is different from any of the abovemen-
                          tioned 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 imagin
                          ary line drawn seaward at a constant distance of 200 miles’. This law
                          is in force and it should be noted that it 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 appro-
                          priate 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 Gov-
                          ernment 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 stat-
                          ing that studies on this matter shall be carried out in due time.”
                        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 “stud-
                     ies . . . 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

                     56

5 CIJ1057.indb 108                                                                                1/12/14 08:59

                     56 	                  maritime dispute (judgment)

                     “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, with-
                     out 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 Memo
                     randum 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.

                     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 lati-
                     tude), that is not the case for those limits abutting international bound
                     aries 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

                     57

5 CIJ1057.indb 110                                                                                1/12/14 08:59

                     57 	                  maritime dispute (judgment)

                     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 “ter-
                     ritorial seas”. The Court does not see this Decree as significant for pres-
                     ent 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 naut
                     ical 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.

                        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 commer-
                     cial 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 start-
                     ing‑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 consider-
                     ation 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.

                     58

5 CIJ1057.indb 112                                                                                1/12/14 08:59

                     58 	                  maritime dispute (judgment)

                        150. Broader considerations relating to the positions of the three States
                     parties to the 1954 Special Maritime Frontier Zone Agreement, particu-
                     larly 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 Declara-
                     tion (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 rele-
                     vant evidence presented to it, the Court concludes that the agreed mari-
                     time boundary between the Parties extended to a distance of
                     80 nautical miles along the parallel from its starting‑point.

                            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 set-
                     tled 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 fron-
                     tier 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 stipu-
                     lates that the frontier is subject to demarcation by a Mixed Commission
                     consisting of one member appointed by each Party.

                     59

5 CIJ1057.indb 114                                                                                1/12/14 08:59

                     59 	                  maritime dispute (judgment)

                        154. According to Peru, the delegates of the Parties to the Mixed Com-
                     mission 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 (herein
                     after the “Joint Instructions”), specifying to the delegates that Point Con-
                     cordia 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 Con-
                     taining 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 north-west 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 more-
                     over 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 Bound-
                     ary 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 rea-
                     sons, an explanation with which Chile agrees.
                        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

                     60

5 CIJ1057.indb 116                                                                                1/12/14 08:59

                     60 	                  maritime dispute (judgment)

                     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 prob-
                     lems. 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 delim-
                     ited, 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 inter-
                     pretation 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 Santi-
                     ago 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 mari-
                     time 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.

                     61

5 CIJ1057.indb 118                                                                                1/12/14 08:59

                     61 	                   maritime dispute (judgment)

                        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 dimen-
                     sions 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 surveil-
                     lance booth between Boundary Marker No. 1 and the seashore, an action
                     which elicited an immediate protest from Peru, with this booth being sub-
                     sequently 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 Con-
                     cordia. Chile considers that its failure to pass the relevant legislation in its
                     originally proposed form was not connected to the substance of the afore-
                     mentioned reference.

                                                            *
                       162. The Court notes that on 20 October 2000, Peru communicated to
                     Chile that the Parties disagreed concerning the status of the parallel pass-
                     ing through Boundary Marker No. 1 as a maritime boundary. On 9 Janu-
                     ary 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,

                     62

5 CIJ1057.indb 120                                                                                1/12/14 08:59

                     62 	                   maritime dispute (judgment)

                     Peru described the situation as being one in which exchanges between the
                     Parties had revealed “totally dissenting and opposed juridical 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 involv-
                     ing a surveillance booth in 2001, the Peruvian Maritime Domain Base-
                     lines 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 light-
                     house arrangements in April 1968 (discussed at paragraph 96 above)
                     delegates of both Parties understood that they were preparing for the
                      materialization of the parallel running through Boundary Marker No. 1,
                      which the delegates understood to be the maritime frontier, and that the
                      delegates communicated such understanding to their respective Govern-
                      ments.
                        165. The Governments of both Parties then confirmed this understand-
                      ing. The Note of 5 August 1968 from the Secretary‑General of Foreign
                      Affairs of Peru to the chargé d’affaires of Chile states :

                             “I am pleased to inform Your Honour that the Government of Peru
                          approves in their entirety the terms of the document signed on the
                          Peruvian‑Chilean border on 26 April 1968 by the representatives
                          of both countries in relation to the installation of leading marks to
                          materialise the parallel of the maritime frontier.
                             As soon as Your Honour informs me that the Government of Chile
                          is in agreement, we will be pleased to enter into the necessary discus-
                          sions in order to determine the date on which the Joint Commission
                          may meet in order to verify the position of Boundary Marker No. 1
                          and indicate the definitive location of the towers or leading marks . . . .”
                     The Court notes Peru’s approval of the entirety of the document dated
                     26 April 1968.
                        166. The Chilean response of 29 August 1968 from the Embassy
                     of Chile to the Ministry of Foreign Affairs of Peru is in the following
                     terms :

                     63

5 CIJ1057.indb 122                                                                                1/12/14 08:59

                     63 	                  maritime dispute (judgment)

                             “The Embassy of Chile presents its compliments to the Honourable
                          Ministry of Foreign Affairs and has the honour to refer to the Meet-
                          ing of the Joint Chilean‑Peruvian Commission held on 25 and 26 April
                          1968 in relation to the study of the installation of the leading marks
                          visible from the sea to materialise the parallel of the maritime frontier
                          originating at Boundary Marker No. 1.
                             On this point, the Embassy of Chile is pleased to accept on behalf
                          of the Government of Chile the proposals which the technical repre-
                          sentatives of both countries included in the Act which they signed on
                          28 [sic] April 1968 with a view to taking the measures for the above-
                          mentioned signalling in order to act as a warning to fishing vessels
                          that normally navigate in the maritime frontier zone.
                             Given that the parallel which it is intended to materialise is the one
                          which corresponds to the geographical situation indicated by Bound-
                          ary Marker No. 1 as referred to in the Act signed in Lima on
                          1 August 1930, the Chilean Government agrees that an ad hoc Joint
                          Commission should be constituted as soon as possible for the purpose
                          of verifying the position of this pyramid and that, in addition, the said
                          Commission should determine the position of the sites where the lead-
                          ing marks are to be installed.”
                        167. The Act of the Chile‑Peru Mixed Commission in Charge of Veri-
                     fying the Location of Boundary Marker No. 1 and Signalling the Mari-
                     time Boundary of 22 August 1969 (hereinafter the “1969 Act”), signed by
                     the delegates of both Parties, introduces its task using the following lan-
                     guage :
                            “The undersigned Representatives of Chile and of Peru, appointed
                          by their respective Governments for the purposes of verifying the
                          original geographical position of the concrete‑made Boundary Marker
                          number one (No. 1) of the common frontier and for determining the
                          points of location of the Alignment Marks that both countries have
                          agreed to install in order to signal the maritime boundary and physically
                          to give effect to the parallel that passes through the aforementioned
                          Boundary Marker number one . . . .” (Emphasis added.)
                       168. The 1969 Act recommends the rebuilding of the damaged Bound-
                     ary Marker No. 1 on its original location, which remained visible. The
                     1969 Act also includes a section entitled Joint Report signed by the Heads
                     of each Party’s Delegation, describing their task as follows :

                             “The undersigned Heads of Delegations of Chile and of Peru sub-
                          mit to their respective Governments the present Report on the state
                          of repair of the boundary markers in the section of the Chile‑Peru
                          frontier which they have had the opportunity to inspect on the occa-
                          sion of the works which they have been instructed to conduct in order
                          to verify the location of Boundary Marker number one and to signal
                          the maritime boundary.”

                     64

5 CIJ1057.indb 124                                                                                1/12/14 08:59

                     64 	                  maritime dispute (judgment)

                        169. The Court observes that both Parties thus clearly refer to their
                     understanding that the task which they are jointly undertaking involves
                     the materialization of the parallel of the existing maritime frontier, with
                     such parallel understood to run through Boundary Marker No. 1.
                        170. In order to determine the starting‑point of the maritime bound-
                     ary, the Court has considered certain cartographic evidence presented by
                     the Parties. The Court observes that Peru presents a number of official
                     maps of Arica, dated 1965 and 1966, and of Chile, dated 1955, 1961 and
                     1963, published by the Instituto Geográfico Militar de Chile, as well as an
                     excerpt from Chilean Nautical Chart 101 of 1989. However, these mater
                     ials largely focus on the location of the point “Concordia” on the coast
                     and do not purport to depict any maritime boundary.

                       171. The Court similarly notes that a number of instances of Peruvian
                     practice subsequent to 1968 relied upon by Chile are not relevant as they
                     address the issue of the location of the Peru‑Chile land boundary.

                        172. The only Chilean map referred to by Peru which appears to depict
                     the maritime boundary along a parallel passing through Boundary
                     Marker No. 1 is an excerpt from Chilean Nautical Chart 1111 of 1998.
                     This map, however, confirms the agreement between the Parties of
                     1968‑1969. The Court considers that it is unable to draw any inference
                     from the 30‑year delay in such cartographic depiction by Chile.
                        173. The evidence presented in relation to fishing and other maritime
                     practice in the region does not contain sufficient detail to be useful in the
                     present circumstances where the starting‑points of the maritime boundary
                     claimed by each of the Parties are separated by a mere eight seconds of
                     latitude, nor is this evidence legally significant.

                        174. The Court considers that the maritime boundary which the Parties
                     intended to signal with the lighthouse arrangements was constituted by the
                     parallel passing through Boundary Marker No. 1. Both Parties subse-
                     quently implemented the recommendations of the 1969 Act by building
                     the lighthouses as agreed, thus signalling the parallel passing through
                     Boundary Marker No. 1. The 1968‑1969 lighthouse arrangements there-
                     fore serve as compelling evidence that the agreed maritime boundary fol-
                     lows the parallel that passes through Boundary Marker No. 1.

                        175. The Court is not called upon to take a position as to the location
                     of Point Concordia, where the land frontier between the Parties starts. It
                     notes that it could be possible for the aforementioned point not to coin-
                     cide with the starting‑point of the maritime boundary, as it was just
                     defined. The Court observes, however, that such a situation would be the
                     consequence of the agreements reached between the Parties.
                        176. The Court thus concludes that the starting‑point of the maritime
                     boundary between the Parties is the intersection of the parallel of latitude
                     passing through Boundary Marker No. 1 with the low‑water line.

                     65

5 CIJ1057.indb 126                                                                                1/12/14 08:59

                     65 	                  maritime dispute (judgment)

                            VI. The Course of the Maritime Boundary from Point A

                         177. Having concluded that an agreed single maritime boundary exists
                     between the Parties, and that that boundary starts at the intersection of the
                     parallel of latitude passing through Boundary Marker No. 1 with the low‑
                     water line, and continues for 80 nautical miles along that parallel, the Court
                     will now determine the course of the maritime boundary from that point on.
                         178. While Chile has signed and ratified UNCLOS, Peru is not a party
                     to this instrument. Both Parties claim 200‑nautical‑mile maritime entitle-
                     ments. Neither Party claims an extended continental shelf in the area with
                     which this case is concerned. Chile’s claim consists of a 12‑nautical‑mile
                     territorial sea and an exclusive economic zone and continental shelf
                     extending to 200 nautical miles from the coast. Peru claims a 200‑nautical-
                      mile “maritime domain”. Peru’s Agent formally declared on behalf of
                      his Government that “[t]he term ‘maritime domain’ used in [Peru’s] Con-
                      stitution is applied in a manner consistent with the maritime zones set out
                      in the 1982 Convention”. The Court takes note of this declaration which
                      expresses a formal undertaking by Peru.

                       179. The Court proceeds on the basis of the provisions of Articles 74,
                     paragraph 1, and 83, paragraph 1, of UNCLOS which, as the Court has
                     recognized, reflect customary international law (Maritime Delimitation
                     and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain),
                     Merits, Judgment, I.C.J. Reports 2001, p. 91, para. 167 ; Territorial and
                     Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports
                     2012 (II), p. 674, para. 139). The texts of these provisions are identical,
                     the only difference being that Article 74 refers to the exclusive economic
                     zone and Article 83 to the continental shelf. They read as follows :
                             “The delimitation of the exclusive economic zone [continental shelf]
                          between States with opposite or adjacent coasts shall be effected by
                          agreement on the basis of international law, as referred to in Arti-
                          cle 38 of the Statute of the International Court of Justice, in order to
                          achieve an equitable solution.”
                        180. The methodology which the Court usually employs in seeking an
                     equitable solution involves three stages. In the first, it constructs a provi-
                     sional equidistance line unless there are compelling reasons preventing that.
                     At the second stage, it considers whether there are relevant circumstances
                     which may call for an adjustment of that line to achieve an equitable result.
                     At the third stage, the Court conducts a disproportionality test in which it
                     assesses whether the effect of the line, as adjusted, is such that the Parties’
                     respective shares of the relevant area are markedly disproportionate to the
                     lengths of their relevant coasts (Maritime Delimitation in the Black Sea
                     (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, pp. 101‑103,
                     paras. 115‑122 ; Territorial and Maritime Dispute (Nicaragua v. Colombia),
                     Judgment, I.C.J. Reports 2012 (II), pp. 695‑696, paras. 190-193).
                        181. In the present case, Peru proposed that the three‑step approach be
                     followed in the delimitation of the maritime boundary between the two

                     66

5 CIJ1057.indb 128                                                                                1/12/14 08:59

                     66 	                  maritime dispute (judgment)

                     States. Peru makes the three following points. First, the relevant coasts
                     and the relevant area within which the delimitation is to be effected are
                     circumscribed by the coasts of each Party lying within 200 nautical miles
                     of the starting-point of their land boundary. The construction of a provi-
                     sional equidistance line within that area is a straightforward exercise. Sec-
                     ondly, there are no special circumstances calling for an adjustment of the
                     provisional equidistance line and it therefore represents an equitable mari-
                     time delimitation : the resulting line effects an equal division of the Par-
                     ties’ overlapping maritime entitlements and does not result in any undue
                     encroachment on the projections of their respective coasts or any cut‑off
                     effect. Thirdly, the application of the element of proportionality as an ex
                     post facto test confirms the equitable nature of the equidistance line.

                       182. Chile advanced no arguments on this matter. Its position through-
                     out the proceedings was that the Parties had already delimited the whole
                     maritime area in dispute, by agreement, in 1952, and that, accordingly, no
                     maritime delimitation should be performed by the Court.

                        183. In the present case, the delimitation of the maritime area must
                     begin at the endpoint of the agreed maritime boundary which the Court
                     has determined is 80 nautical miles long (Point A). In practice, a number
                     of delimitations begin not at the low‑water line but at a point further sea-
                     ward, as a result of a pre‑existing agreement between the parties (Delimita
                     tion of the Maritime Boundary in the Gulf of Maine Area (Canada/United
                     States of America), Judgment, I.C.J. Reports 1984, pp. 332‑333, para. 212 ;
                     Land and Maritime Boundary between Cameroon and Nigeria (Camer
                     oon v. Nigeria : Equatorial Guinea intervening), Judgment, I.C.J. Reports
                     2002, pp. 431‑432, paras. 268‑269 ; Maritime Delimitation in the Black Sea
                     (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 130, para. 218).
                     The situation the Court faces is, however, unusual in that the starting‑point
                     for the delimitation in this case is much further from the coast : 80 nautical
                     miles from the closest point on the Chilean coast and about 45 nautical
                     miles from the closest point on the Peruvian coast.
                        184. The usual methodology applied by the Court has the aim of
                     achieving an equitable solution. In terms of that methodology, the Court
                     now proceeds to the construction of a provisional equidistance line which
                     starts at the endpoint of the existing maritime boundary (Point A).
                        185. In order to construct such a line, the Court first selects appropriate
                     base points. In view of the location of Point A at a distance of 80 nautical
                     miles from the coast along the parallel, the nearest initial base point on the
                     Chilean coast will be situated near the starting‑point of the maritime
                     boundary between Chile and Peru, and on the Peruvian coast at a point
                     where the arc of a circle with an 80‑nautical‑mile radius from Point A
                     intersects with the Peruvian coast. For the purpose of constructing a pro-
                     visional equidistance line, only those points on the Peruvian coast which
                     are more than 80 nautical miles from Point A can be matched with points
                     at an equivalent distance on the Chilean coast. The arc of a circle indicated

                     67

5 CIJ1057.indb 130                                                                                1/12/14 08:59

                     67 	                  maritime dispute (judgment)

                     on sketch‑map No. 3 is used to identify the first Peruvian base point. Fur-
                     ther base points for the construction of the provisional equidistance line
                     have been selected as the most seaward coastal points “situated nearest to
                     the area to be delimited” (Maritime Delimitation in the Black Sea (Roma
                     nia v. Ukraine), Judgment, I.C.J. Reports 2009, p. 101, para. 117). These
                     base points are situated to the north‑west of the initial base point on the
                     Peruvian coast and south of the initial base point on the Chilean coast. No
                     points on the Peruvian coast which lie to the south‑east of that initial point
                     on that coast can be matched with points on the Chilean coast, as they are
                     all situated less than 80 nautical miles from Point A (see sketch‑map
                     No. 3 : Construction of the provisional equidistance line, p. 68).
                        186. The provisional equidistance line thus constructed runs in a gen-
                     eral south‑west direction, almost in a straight line, reflecting the smooth
                     character of the two coasts, until it reaches the 200‑nautical‑mile limit
                     measured from the Chilean baselines (Point B). Seaward of this point the
                     200‑nautical‑mile projections of the Parties’ coasts no longer overlap.
                        187. Before continuing the application of the usual methodology, the
                     Court recalls that, in its second submission, Peru requested the Court to
                     adjudge and declare that, beyond the point where the common maritime
                     boundary ends, Peru is entitled to exercise sovereign rights over a mari-
                     time area lying out to a distance of 200 nautical miles from its baselines
                     (see paragraphs 14 to 15 above). This claim is in relation to the area in a
                     darker shade of blue in sketch‑map No. 2 (see paragraph 22 above).
                        188. Peru contends that, in the maritime area beyond 200 nautical
                     miles from the Chilean coast but within 200 nautical miles of its own
                     coast, it has the rights which are accorded to a coastal State by general
                     international law and that Chile has no such rights.

                        Chile in response contends that the 1952 Santiago Declaration estab-
                     lishes a single lateral limit for all maritime areas of its States parties
                     whether actual or prospective, invoking the reference in paragraph II of
                     the Declaration to “a minimum distance of 200 nautical miles”.
                        189. Since the Court has already concluded that the agreed boundary
                     line along the parallel of latitude ends at 80 nautical miles from the coast,
                     the foundation for the Chilean argument does not exist. Moreover, since
                     the Court has decided that it will proceed with the delimitation of the
                     overlapping maritime entitlements of the Parties by drawing an equidis-
                     tance line, Peru’s second submission has become moot and the Court need
                     not rule on it.
                        190. After Point B (see paragraph 186 above), the 200‑nautical‑mile
                     limits of the Parties’ maritime entitlements delimited on the basis of equi-
                     distance no longer overlap. The Court observes that, from Point B, the
                     200‑nautical‑mile limit of Chile’s maritime entitlement runs in a generally
                     southward direction. The final segment of the maritime boundary there-
                     fore proceeds from Point B to Point C, where the 200‑nautical‑mile limits
                     of the Parties’ maritime entitlements intersect.

                     68

5 CIJ1057.indb 132                                                                                1/12/14 08:59

5 CIJ1057.indb 134
                     69
                                Sketch-map No. 3:
                                                                                68

                               Construction of the
                          provisional equidistance line                                    PERU
                            This sketch-map has been prepared
                               for illustrative purposes only.
                            Mercator Projection (18° 20' S)
                                      WGS 84
                                                                                Ilo
                                                                                BOLIVIA

                                                                                Tacna

                                                                                A
                                                                                Arica

                             200 nautical miles
                             from Peru's coast
                                                                             B
                                                                                maritime dispute (judgment)

                                        PACIFIC                              C                              CHILE

                                        OCEAN
                                                        200 nautical miles
                                                        from Chile's coast

                                       Arc of a circle with a radius of
                                       80 nautical miles from Point A
                                       Agreed maritime boundary

1/12/14 08:59

                     69 	                   maritime dispute (judgment)

                        191. The Court must now determine whether there are any relevant
                     circumstances calling for an adjustment of the provisional equidistance
                     line, with the purpose, it must always be recalled, of achieving an equita-
                     ble result. In this case, the equidistance line avoids any excessive amputa-
                     tion of either State’s maritime projections. No relevant circumstances
                     appear in the record before the Court. There is accordingly no basis for
                     adjusting the provisional equidistance line.
                        192. The next step is to determine whether the provisional equidistance
                     line drawn from Point A produces a result which is significantly dispropor-
                     tionate in terms of the lengths of the relevant coasts and the division of the
                     relevant area. The purpose is to assess the equitable nature of the result.
                        193. As the Court has already noted (see paragraph 183 above), the exis-
                     tence of an agreed line running for 80 nautical miles along the parallel of
                     latitude presents it with an unusual situation. The existence of that line
                     would make difficult, if not impossible, the calculation of the length of the
                     relevant coasts and of the extent of the relevant area, were the usual math-
                     ematical calculation of the proportions to be undertaken. The Court recalls
                     that in some instances in the past, because of the practical difficulties aris-
                     ing from the particular circumstances of the case, it has not undertaken
                     that calculation. Having made that point in the case concerning the Conti
                     nental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment, I.C.J. Reports
                     1985, p. 53, para. 74), it continued in these terms :

                          “if the Court turns its attention to the extent of the areas of shelf lying
                          on each side of the line, it is possible for it to make a broad assessment
                          of the equitableness of the result, without seeking to define the equities
                          in arithmetical terms” (ibid., p. 55, para. 75).
                     More recently, the Court observed that, in this final phase of the delimita-
                     tion process, the calculation does not purport to be precise and is approxi
                     mate ; “[t]he object of delimitation is to achieve a delimitation that
                     is equitable, not an equal apportionment of maritime areas” (Maritime
                     Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J.
                     Reports 2009, p. 100, para. 111 ; see similarly Maritime Delimitation in the
                     Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment,
                     I.C.J. Reports 1993, pp. 66‑67, para. 64, and p. 68, para. 67, referring to
                     difficulties, as in the Continental Shelf (Libyan Arab Jamahiriya/Malta)
                     case, in defining with sufficient precision which coasts and which areas
                     were to be treated as relevant ; and Land and Maritime Boundary between
                     Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea interven
                     ing), Judgment, I.C.J. Reports 2002, pp. 433‑448, paras. 272‑307, where
                     although the Court referred to the relevant coastlines and the relevant
                     area, it made no precise calculation of them). In such cases, the Court
                     engages in a broad assessment of disproportionality.

                       194. Given the unusual circumstances of this case, the Court follows
                     the same approach here and concludes that no significant disproportion is

                     70

5 CIJ1057.indb 136                                                                                1/12/14 08:59

5 CIJ1057.indb 138
                     71
                                    Sketch-map No. 4:
                                                                                70

                          Course of the maritime boundary
                               This sketch-map has been prepared
                                  for illustrative purposes only.                                 PERU
                               Mercator Projection (18° 20' S)
                                         WGS 84

                                                                                Ilo
                                                                                BOLIVIA

                                                                                Tacna

                                                                                A
                                                                                Arica

                             200 nautical miles
                             from Peru's coast
                                                                                B
                                         PACIFIC
                                                                                maritime dispute (judgment)

                                                                                C                              CHILE
                                          OCEAN

                                                         200 nautical miles
                                                         from Chile's coast
                            A: endpoint of the agreed maritime boundary
                            B: endpoint of the maritime boundary along
                               the equidistance line
                            C: endpoint of the maritime boundary (intersection of
                               the 200-nautical-mile limits of the Parties)

1/12/14 08:59

                     71 	                  maritime dispute (judgment)

                     evident, such as would call into question the equitable nature of the pro-
                     visional equidistance line.
                        195. The Court accordingly concludes that the maritime boundary
                     between the two Parties from Point A runs along the equidistance line to
                     Point B, and then along the 200‑nautical‑mile limit measured from the
                     Chilean baselines to Point C (see sketch‑map No. 4 : Course of the mari-
                     time boundary, p. 70).

                                                  VII. Conclusion

                        196. The Court concludes that the maritime boundary between the
                      arties starts at the intersection of the parallel of latitude passing through
                     P
                     Boundary Marker No. 1 with the low‑water line, and extends for 80 nautical
                     miles along that parallel of latitude to Point A. From this point, the maritime
                     boundary runs along the equidistance line to Point B, and then along the
                     200‑nautical‑mile limit measured from the Chilean baselines to Point C.

                                                             *
                       197. In view of the circumstances of the present case, the Court has
                     defined the course of the maritime boundary between the Parties without
                     determining the precise geographical co‑ordinates. Moreover, the Court
                     has not been asked to do so in the Parties’ final submissions. The Court
                     expects that the Parties will determine these co‑ordinates in accordance
                     with the present Judgment, in the spirit of good neighbourliness.

                                                             *
                                                         *       *
                       198. For these reasons,
                       The Court,
                       (1) By fifteen votes to one,
                       Decides that the starting‑point of the single maritime boundary delimit-
                     ing the respective maritime areas between the Republic of Peru and the
                     Republic of Chile is the intersection of the parallel of latitude passing
                     through Boundary Marker No. 1 with the low‑water line ;
                       in favour : President Tomka ; Vice-President Sepúlveda-Amor ; Judges
                         Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                         Yusuf, Xue, Donoghue, Sebutinde, Bhandari ; Judges ad hoc Guillaume,
                         Orrego Vicuña ;
                       against : Judge Gaja ;
                       (2) By fifteen votes to one,
                       Decides that the initial segment of the single maritime boundary fol-
                     lows the parallel of latitude passing through Boundary Marker No. 1
                     westward ;

                     72

5 CIJ1057.indb 140                                                                                1/12/14 08:59

                     72 	                  maritime dispute (judgment)

                       in favour : President Tomka ; Vice-President Sepúlveda-Amor ; Judges
                         Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                         Yusuf, Xue, Donoghue, Gaja, Bhandari ; Judges ad hoc Guillaume, Orrego
                         Vicuña ;
                       against : Judge Sebutinde ;
                       (3) By ten votes to six,
                       Decides that this initial segment runs up to a point (Point A) situated at
                     a distance of 80 nautical miles from the starting‑point of the single mari-
                     time boundary ;
                       in favour : Vice-President Sepúlveda-Amor ; Judges Owada, Abraham,
                         Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Donoghue ; Judge
                         ad hoc Guillaume ;
                       against : President Tomka ; Judges Xue, Gaja, Sebutinde, Bhandari ; Judge
                         ad hoc Orrego Vicuña ;
                       (4) By ten votes to six,
                        Decides that from Point A, the single maritime boundary shall continue
                     south‑westward along the line equidistant from the coasts of the Republic
                     of Peru and the Republic of Chile, as measured from that point, until its
                     intersection (at Point B) with the 200‑nautical‑mile limit measured from
                     the baselines from which the territorial sea of the Republic of Chile is
                     measured. From Point B, the single maritime boundary shall continue
                     southward along that limit until it reaches the point of intersection
                     (Point C) of the 200‑nautical‑mile limits measured from the
                     baselines from which the territorial seas of the Republic of Peru and the
                     Republic of Chile, respectively, are measured ;

                       in favour : Vice-President Sepúlveda-Amor ; Judges Owada, Abraham,
                         Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Donoghue ; Judge
                         ad hoc Guillaume ;
                       against : President Tomka ; Judges Xue, Gaja, Sebutinde, Bhandari ; Judge
                         ad hoc Orrego Vicuña ;
                       (5) By fifteen votes to one,
                       Decides that, for the reasons given in paragraph 189 above, it does not
                     need to rule on the second final submission of the Republic of Peru.

                       in favour : President Tomka ; Vice-President Sepúlveda-Amor ; Judges
                         Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade,
                         Yusuf, Xue, Donoghue, Gaja, Sebutinde, Bhandari ; Judge ad hoc
                         Guillaume ;
                       against : Judge ad hoc Orrego Vicuña.
                       Done in English and in French, the English text being authoritative, at
                     the Peace Palace, The Hague, this twenty-seventh day of January, two
                     thousand and fourteen, in three copies, one of which will be placed in the

                     73

5 CIJ1057.indb 142                                                                                1/12/14 08:59

                     73 	                maritime dispute (judgment)

                     archives of the Court and the others transmitted to the Government of
                     the Republic of Peru and the Government of the Republic of Chile,
                     respectively.

                                                                (Signed) Peter Tomka,
                                                                          President.
                                                             (Signed) Philippe Couvreur,
                                                                           Registrar.

                        President Tomka and Vice-President Sepúlveda-Amor append declar
                     ations to the Judgment of the Court ; Judge Owada appends a separate
                     opinion to the Judgment of the Court ; Judge Skotnikov appends a dec-
                     laration to the Judgment of the Court ; Judges Xue, Gaja, Bhandari and
                     Judge ad hoc Orrego Vicuña append a joint dissenting opinion to the
                     Judgment of the Court ; Judges Donoghue and Gaja append declar
                     ations to the Judgment of the Court ; Judge Sebutinde appends a dissent-
                     ing opinion to the Judgment of the Court ; Judge ad hoc Guillaume
                     appends a declaration to the Judgment of the Court ; Judge ad hoc
                     Orrego Vicuña appends a separate, partly concurring and partly dis-
                     senting, opinion to the Judgment of the Court.

                                                                          (Initialled) P.T.
                                                                         (Initialled) Ph.C.

                     74

5 CIJ1057.indb 144                                                                              1/12/14 08:59