Chile's claim to rich fishing grounds in the Pacific Ocean, disputed by Peru,
From The New York Times
A six-year maritime dispute between Chile and Peru was settled on Monday when the
International Court of Justice in The Hague ruled largely in favor of Peru, stripping Chile of economic rights over a swath of the Pacific Ocean.
Off the coast of Arica, a city on the border with Peru, the court set the boundary at 80 miles.
Beyond that, it drew a diagonal line southwest, slicing about 8,000 square miles of ocean from Chile’s “exclusive economic zone.”
Maritime boundaries in Southamerican western coast,
showing Peruvian and Chilean claims to the ICJ.
The International Court of Justice (ICJ) issued its much-anticipated decision on the maritime dispute brought by Peru against Chile.
In its claim, Peru argued that no agreed maritime boundary existed between Peru and Chile, and asked the Court to "plot a boundary line using the equidistance method in order to achieve an equitable result."
Given the shape of the respective coastlines up to their land border, application of the equidistance method would have given Peru a maritime zone that essentially ran at a southwest diagonal from the land boundary.
News reports suggest that the fishing rights impacted by the decision constitute a $200 million dollar industry, including some of the richest anchoveta (anchovy) fisheries in the world.
For Peru and Chile, the case implicated a history of bad feelings on both sides dating to a war in the 19th century and various treaties and agreements since that time.
It stood the chance of destabilizing the ever-closer partnership developing between the two countries, and political leaders on both sides were summoning the highest level meetings and taking other steps in preparing for public reactions to the case, which has been headline news in both countries for weeks.
Although the decision, which cannot be appealed, was considered more likely to affect industrial fishing, hundreds of Arica fishermen and residents marched through the city waving black flags and Chilean flags, complaining about the loss of access to resources beyond the 80-mile point.
Local fishing associations had already said they would seek compensation from the Chilean government if the ruling deprived them of their livelihood.
The Hague-based International Court of Justice awarded more than half the disputed 38,000-square-kilometer patch of ocean to Peru, but Chile got the bulk of the valuable coastal fishing grounds.
A Peruvian fishing association had estimated the value of fishing in the entire disputed area at $200 million a year.
Chile lost special rights to marine resources in about 8,000 square miles of ocean near its northern border, but retained control over its 12-mile territorial waters, where most small-scale fishing activity takes place.
The president of Peru, Ollanta Humala, said the ruling granted Peru most of what it had wanted.
In August 2010, the Ecuadorian government issued a nautical chart in which fixed its maritime boundary with Peru based on treaties 1952 and 1954 that Peru considered insufficient fisheries treaty to define the borders with Chile, so he sued this country before the International Court of Justice in the Hague.
In a televised address, Chile’s president, Sebastián Piñera, whose term ends in March, said Chile disagreed with the court’s reducing the boundary to 80 miles off Arica but would respect the ruling. He added that it would have to be “implemented gradually,” and that giving up part of the economic zone was “an unfortunate loss for the country.”
Peru-Bolivia Boundary in Atacama Desert
according to Mapa del antiguo Departamento de Moquegua, hacia 1865.
Paz Soldan. Geografia del Peru.
The dispute was a legacy of the
War of the Pacific, which lasted from 1879 to 1883.
Chile won, conquering Peruvian territory and depriving Bolivia of a coastline.
A treaty between Peru and Chile in 1929 granted Chile control of Arica, and the countries later fixed a land boundary.
The maritime boundary, however, was never fully defined.
In 2008, Peru, under President Alan García, took Chile to the World Court. (
doc)
Peru’s proposal would have allowed it to project a 200-mile maritime zone across waters that Chile considered high seas, giving Peru an additional 15,000 square miles.
From the ICJ.
Chile argued that the border had been clearly established by fishing treaties signed by Chile, Peru and Ecuador in 1952 and 1954; by subsequent agreements; and by customary practice and the unilateral actions of Peru.
The new maritime border between Chile and Peru as declared by the ICJ.
From the ICJ.
The court settled on a compromise, recognizing that while the treaties had not expressly established the maritime boundary, the 1954 document had “cemented” a “tacit agreement.”
Through fishing activities, enforcement and other practices based on those treaties and subsequent agreements, the court said, both countries had acknowledged a maritime border running 80 miles from the coast along a line of latitude.
A map juxtaposing Peruvian and Chilean claims, with the new ICJ border shown in black.
The Court first had to determine whether there was an agreed maritime boundary between Chile and Peru. It concluded, based on the 1947 Proclamations of Chile and Peru, the 1952 Santiago Declaration and various 1954 Agreements, that the parties had agreed to an all-purpose maritime boundary.
In terms of the extent of that boundary, the Court relied primarily on the historical practice of the parties, which largely involved the exercise of fishing rights by "small fishing boats" of each nation.
The Court concluded that the agreed boundary extended to 80 nautical miles from the agreed land boundary, along a parallel.
This point was marked as "Point A" by the Court.
To determine the boundary from Point A seaward, the Court proceeded on the basis of the Articles 74 and 83 of the UN Law of the Sea Convention ("UNCLOS") to apply its usual three-stage methodology: (1) "to construct a provisional equidistance line unless there are compelling reasons preventing that"; (2) to "consider whether there are relevant circumstances which may call for an adjustment of that line to achieve an equitable result"; and (3) "to conduct a proportionality test to assess 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."
The Court, consistent with practice and UNCLOS, then drew a diagonal from Point A heading in a south-westerly direction a further 120 nautical miles until it reached "the 200-nautical mile limit measured from the Chilean baselines (Point B)."
At that point, there was a short, further extension of the boundary to a Point C, to where the 200-nautical mile limits of both parties intersected.
Still, Chilean officials said they were confused by the court’s reasoning in setting the boundary at 80 miles off Arica.
“We still don’t understand the arguments of the court for reducing the extension of the parallel,” said Mario Artaza, a former Foreign Ministry official and diplomat.
“However, Chile lost relatively little compared to what Peru was demanding.”
The ruling, Mr. Artaza added, “offers the opportunity to begin a new stage in our relationship.”
Map showing Peru's territory gains, highlighted in yellow.
Peru had sought a sea border perpendicular to the coast, heading roughly southwest.
Chile insisted the border extend parallel to the equator.
The court, whose rulings cannot be appealed, compromised by saying a border already existed parallel to the equator extending 80 nautical miles from the coast.
From there, it drew a line southwest to where the countries' 200-mile territorial waters end.
Note : the area remaining in Chilean hands "is where the Chilean boats fish the most."
In sum, the decision gave both parties something, and by doing so, calmed a potentially incendiary situation.
The Court sided with Chile in enforcing the first 80 miles of the boundary on a line parallel to the equator.
Thus, Chile preserves some of the most productive fishing grounds it might otherwise have lost. However, the Court agreed with Peru in setting a maritime boundary that extends from the 80-nautical mile point along a line that is equidistant from both countries' coasts.
This opens a considerable portion of formerly Chilean fishing waters to Peru.
As a general matter, pragmatism won the day.
What is significant here is the Court's reliance on the practice of the parties in the "pre-200 nautical" mile era, and its willingness to reach an overall pragmatic conclusion by extending the boundary invoking more recent custom as well as UNCLOS (i.e., use of an equidistant line based on the shape of coastlines rather than running along a parallel).
Other international disputes, particularly between Chile and Bolivia, remain unsolved and pending before the ICJ, and this decision suggests that the current members of the Court will continue to look carefully at actual treaties, agreements, and practices between the parties and may be expected to reach decisions that are not significantly disruptive of that history and practice.
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