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Maritime Dispute (Peru v. Chile) (I.C.J.)

Published online by Cambridge University Press:  20 January 2017

David P. Riesenberg
David P. Riesenberg*
Affiliation:
United States Court of Appeals for the Fifth Circuit
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Extract

In 2014, the International Court of Justice (ICJ) rendered judgment in a maritime boundary dispute between Peru and Chile (Judgment). The subject of the dispute was an area of maritime space in the Pacific Ocean comprising nearly seventy thousand square kilometers, or roughly “an area the size of Sri Lanka or Georgia.”

Type
International Legal Materials
Information
International Legal Materials , Volume 53 , Issue 3 , June 2014 , pp. 425 - 476
Copyright
Copyright © American Society of International Law 2014

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References

* This text was reproduced and reformatted from the text available at the International Court of Justice website (visited June 18, 2014), http://www.icj-cij.org/docket/files/137/17930.pdf

1 Maritime Dispute (Peru v. Chile), Judgment (Jan. 27, 2014), available at http://www.icj-cij.org/docket/files/137/17930.pdf [hereinafter Judgment]. The separate opinions, verbatim records, and written pleadings produced during the case are available on the ICJ’s website. See Maritime Dispute (Peru v. Chile), ICJ, http://www.icj-cij.org/docket/index.php?p1= 3&p2=3&code=pch&case=137&k=88&p3=0 (last visited June 5, 2014).

2 See Maritime Dispute (Peru v. Chile), Verbatim Record, 29 ¶ 11 (Dec. 3, 2012, 3 p.m.) (referring to the disputed area as “67 000 kilomètres carrés d’espaces marins (autant que la superficie du Sri Lanka ou de la Géorgie)”).

3 American Treaty on Pacific Settlement (Bogotá Pact), Apr. 30, 1948, 30 U.N.T.S. 84. The Bogotá Pact has been invoked as the basis for the ICJ’s jurisdiction in numerous recent disputes between Latin American states. See, e.g., Territorial and Maritime Dispute (Nicar. v. Colom.) 2012 I.C.J. 624, 630-31 ¶ 1 (Nov. 19).

4 Judgment, supra note 1, ¶¶ 13-14, 22. See also United Nations Convention on the Law of the Sea (UNCLOS) arts. 74, 83, Dec. 10, 1982, 1833 U.N.T.S. 397, 21 I.L.M. 1261 (1982).

5 Judgment, supra note 1, ¶¶ 14, 22-23. See also Declaration on the Maritime Zone (Santiago Declaration), Aug. 18, 1952, 1006 U.N.T.S. 326.

6 David J. Bederman, The Sea, in The Oxford Handbook of the History of International Law 359, 366-78 (Bardo Fassbender & Anne Peters eds., 2012).

7 Id. at 373-77; Yoshifumi Tanaka, The International Law of the Sea 83-85 (2012); Robin Rolf Churchill & Alan Vaughan Lowe, The Law of the Sea 59-68 (1988).

8 Proclamation No. 2667, 10 Fed. Reg. 12303 (Sept. 28, 1945); Proclamation No. 2668, 10 Fed. Reg. 12304 (Sept. 28, 1945).

9 Judgment, supra note 1, ¶¶ 26, 113.

10 Id. ¶¶ 19, 26.

11 See id. ¶¶ 48-49, 59.

12 Churchill & Lowe, supra note 7, at 133-34.

13 Id.

14 See Tanaka, supra note 7, at 124-25.

15 See id.; Churchill & Lowe, supra note 7, at 144-46; Continental Shelf (Libya/Malta), 1985 I.C.J. 13, 33 ¶ 34 (June 3) (“[T]he institution of the exclusive economic zone, with its rule on entitlement by reason of distance, is shown by the practice of States to have become a part of customary law. . . .”).

16 See Argument of Professor Oda, Counsel for the Federal Republic of Germany, North Sea Continental Shelf (F.R.G./Neth.; F.R.G./Den.), 1968 I.C.J. Pleadings, vol. 2, at 58 (Oct. 25, 1968) (“[I]n South America we have the example of simultaneously executed bilateral agreements between Chile, Peru and Ecuador. . . . The three countries delimited their maritime zones by drawing boundaries extending 200 miles from the actual coastline. These lines were constructed by drawing them along the parallels of latitude which continue the parallel of geographical latitude from the final point of land frontier.”); Rejoinder of Sir Humphrey Waldock, Counsel for the Governments of Denmark and the Netherlands, North Sea Continental Shelf (F.R.G./Neth.; F.R.G./Den.), 1968 I.C.J. Pleadings, vol. 2, at 258 (Nov. 8, 1968) (“The Chile-Peru and Ecuador boundaries were established on the basis of the parallels of latitude of the land boundaries, a somewhat rough-and-ready solution in which it is not easy to see any clear or conscious application of the alleged principle of the just and equitable share.”).

17 U.S. Dep’t of State, Maritime Boundary: Chile-Peru, Limits in the Sea, No. 86 (July 2, 1979).

18 Judge Eduardo Jimenéz de Aréchaga, Chile-Peru: Report No. 3-5, in 1 International Maritime Boundaries 793, 793 (Jonathan I. Charney & Lewis M. Alexander eds., 1993). 19 Although the topic is largely absent from the Judgment, much of the pleadings were devoted to Chile’s theory as to why Peru would have agreed to a boundary that deviated so far from equidistance and thereby favored Chile to such a degree. In Chile’s view, the parties in 1952 had understood “that their 1947 Proclamations gave them abutting 200-mile maritime projections, with no overlap,” because the modern method of “using arcs of circles to measure the projection of their maritime claims” would not have been intuitive to the parties. See Maritime Dispute (Peru v. Chile), Verbatim Record, 13-19 ¶¶ 2.6, 3.23 (Dec. 14, 2012, 10 a.m.). According to Chile, the geometric method of projection known to the parties at the time—the tracé parallèle method—would not have revealed any inequity arising from a boundary drawn along a line of latitude extending to the outer edge of the 200-M zone. Id. at 13 ¶ 2.3. The ICJ’s analysis, however, does not address whether such a boundary would or would not have been perceived as inequitable in the 1950s.

20 Judgment, supra note 1, ¶¶ 57-68.

21 Id. ¶ 69.

22 Id. ¶¶ 73, 81.

23 Id. ¶¶ 90-91.

24 Id. ¶¶ 93-99.

25 Id. ¶ 91 (quoting Territorial and Maritime Dispute (Nicar. v. Hond.) 2007 I.C.J. 659, 735 ¶ 253 (Oct. 8). Unlike the majority, Judge Sebutinde concluded that the evidence of a tacit agreement did not satisfy “the stringent and well-established standard of proof which the Court itself has set for establishing a permanent maritime boundary in international law on the basis of a tacit agreement.” Id. ¶ 6 (dissenting opinion of Sebutinde, J.). Similarly, Vice President Sepúlveda-Amor cautioned that “the 1954 Agreement alone” was insufficient to establish the existence of a tacit agreement, although Judge Sepúlveda-Amor did agree that “through the scrutiny of years of relevant State practice. . . it is possible to discern the existence of an agreed maritime boundary of a specific nature and extent between the Parties.” Id. ¶¶ 5, 16 (declaration of Sepúlveda-Amor, J.). Judge Owada, for his part, also expressed “serious reservation” about the evidence on which the ICJ based its finding of a tacit agreement, while agreeing nonetheless that a tacit agreement had emerged “in the form of a gradual development through the practice of the States concerned. . . .” Id. ¶¶ 3, 26 (separate opinion of Owada, J.).

26 Judgment, supra note 1, ¶ 102.

27 Id. ¶¶ 162-76. The single judge dissenting on this point, Judge Gaja, would have held that the agreed boundary’s starting point was not the marker, but the point of intersection where the Pacific Ocean met with an arc drawn from “the bridge over the river Lluta” with a radius of 10 km. Id. ¶ 3 (declaration of Gaja, J.).

28 Judgment, supra note 1, ¶ 111.

29 See id. ¶¶ 104-51.

30 Id. ¶¶ 2, 9 (dissenting opinion of Xue, Gaja, Bhandari, JJ., and Orrego Vicuña, J. ad hoc) (“While the majority labours to argue in favour of the idea that the agreement between Peru and Chile covers a distance of 80 nautical miles from the continental coast, the Santiago Declaration clearly indicates that the seaward end of the boundary extends to 200 nautical miles.”).

31 Id. ¶ 4 (declaration of Tomka, J.). Judge Skotnikov also did not find the ICJ’s “logic to be convincing” on this point, although he joined with the majority because “the Parties’ treatment of the extent of the agreed maritime boundary lack[ed] the clarity” necessary to decide the issue with greater certainty. Id. ¶¶ 3-4, 7 (declaration of Skotnikov, J.). In this regard, Judge Donoghue also appended a declaration observing that “the Court did not have the benefit of the Parties’ views on this issue,” and suggested that the ICJ should exercise “the option of asking the parties for additional legal briefing or evidence” when presented with similar circumstances in future cases. Id. ¶¶ 1-5 (declaration of Donoghue, J.).

32 Judgment, supra note 1, ¶¶ 177, 184.

33 Id. ¶ 180.

34 As the ICJ explained, “[i]n view of the location of Point A at a distance of 80 nautical miles from the coast along the parallel. . . 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.” Id. ¶¶ 184-86. 35 Id. ¶ 186.

36 Id. ¶¶ 191-94.

37 Id. ¶ 197.

38 Press Release, Ministry of Foreign Relations for Peru, Perú y Chile suscriben acta de trabajos conjuntos para delimitación de frontera marítima (March 25, 2014), available at http://www.rree.gob.pe/Noticias/Paginas/NP-0029-14.aspx (last visited June 5, 2014).

39 Judgment, supra note 1, ¶¶ 183-86, 190, 195-96.

40 Id. ¶ 189. See also Maritime Dispute (Peru v. Chile), Verbatim Record, 32 ¶ 19 (Dec. 3, 2012, 3 p.m.).

41 See Judgment, supra note 1, ¶¶ 14, 22. As a function of geometry, such “gray areas” occur wherever a boundary that deviates from equidistance is extended beyond 200 M. See David A. Colson, The Delimitation of the Outer Continental Shelf Between Neighboring States, 97 Am. J. Int’l L. 91, 104 (2003); Alex G. Oude Elferink, Does Undisputed Title to a Maritime Zone Always Exclude Its Delimitation: The Grey Area Issue, 13 Int’l J. Marine & Coastal L. 143, 143-44 (1998).

42 See Judgment, supra note 1, ¶ 26 (declaration of Tomka, J.); id. ¶ 35 (dissenting opinion of Xue, Gaja, Bhandari, JJ., and Orrego Vicuña, J. ad hoc).

43 See Judgment, supra note 1, ¶ 91 (quoting Nicaragua v. Honduras, supra note 25, ¶ 253).