sg for judges
DESCRIPTION
model cj 2012TRANSCRIPT
STUDY GUIDE FOR JUDGES
CASE CONCERNING MARITIME DELIMITATION
BETWEEN
THE REPUBLIC OF PERU AND THE REPUBLIC OF CHILE
1
LETTER FROM THE SECRETARY GENERAL
Dear Judges,
It is my sincere honor to welcome you all to the first annual session of the Model CJ
Conference.
I am a senior at the Ankara University, Faculty of Law. I have been participating in
simulation conferences for almost three years now and today, I stand humble as the Secretary
General of this prestigious conference.
During the preparation process of the conference, I believe, determination of the case
was the most challenging decision that we have made. The Academic Team has put lots of
thought, considered many elements regarding the academic aspect of the conference as much
as the sake of the committee and finally reached a decision on “The Case Concerning
Maritime Delimitation Between The Republic of Peru and The Republic of Chile”
The reason underlying this very decision is that; as a maritime delimitation case, the
dispute between Chile and Peru covers almost all concepts and rules of the law of the sea.
However, it is also very much related with the general principles and rules of international
law; therefore, while trying to render a judgment, since one of the dispute parties argues that
the relevant boundary has been delimitated with international agreements, judges will need to
invoke their knowledge of international law rules regarding international agreements,
furthermore judges also need to review and enhance their
knowledge with regard to how the ICJ proceeds and renders its decisions in order to feel
familiar while simulating the Court.
2
In this regard, this document has been prepared to help you comprehend the
fundamentals of the case and provide the necessary information that you will need while you
are evaluating the arguments of the parties and rendering your judgment. However, we highly
recommend you to go beyond this document, further research the dispute.
I lastly would like to present my thanks to my hard-working academic team, namely,
to my beloved Deputy Secretary General Betül Bodur and to my Academic Staff: Arzum
Koca, Gökberk Ekinci, Hasan Yücel, Naz Topaloğlu and Yeşim Yargıcı for their tremendous
effort and contribution during the process of preparation of this document.
We all look forward to having the opportunity to meet you.
Best regards,
On behalf of the Academic Team of Model CJ 2012
Secretary General
Şeyma OLĞUN
3
INTERNATIONAL COURT OF JUSTICE
The International Court of Justice, also known as the World Court, is the chief judicial
organ of the United Nations which was established in June 1945 by the Charter of the United
Nations and began work in April 1946 as the successor to the Permanent Court of
International Justice. Its seat is at the Peace Palace in The Hague, Netherlands.
According to Article 92 of the UN Charter, a Statute formed annexed to the Charter in
order to specify the organization and the judicial function of the Court; from that day till now,
“The Statute of the International Court of Justice” is the main constitutional document
constituting and regulating the Court.
As its Statute suggests, The ICJ has two main functions: First one is to give advisory
opinions upon request of the UN General Assembly and the UN Security Council on any legal
question or other UN bodies and specialized agencies on legal questions arising within the
scope of their activities; second one is to settle, in accordance with international law,
contentious disputes of a legal nature that are brought before the Court by State parties of the
4
dispute. The Court’s decision on the dispute is final and has a binding character that State
parties to the dispute are required to comply with. Mostly because of its decision’s binding
force, the ICJ can be seen as the most competent body to resolve international legal disputes;
therefore the willingness of the States to apply to the Court in order to settle so-called
unsolvable disputes increases day by day.
COMPOSITION OF THE ICJ
As it is provided by the Statute of the ICJ, the Court is composed of fifteen judges
elected by the UN General Assembly and the UN Security Council to serve for nine years
term. Elections take place in every three years and with one election only one-third of the
Chamber retires and is replaced by new judges, so as to ensure continuity within the Court. A
judge may be re-elected.
As it set out in Article 2 of its Statute,
judges are “elected regardless of their nationality
among persons of high moral character”, who
either possess the qualification for the highest
judicial office in their home states or are known
as lawyers with sufficient competence in
international law. Although it stated that judges are elected and perform their duties regardless
of their nationality (in other words, independently), the Statute sets forth a restriction
regarding judges nationality by its Article 3, stating that two judges of the Court cannot be
nationals of the same state, at the same period. At this point, it should also be stated that
although there is no provision in the Statute of ICJ indicating that, the rule on
a geopolitical composition of the bench de facto exist.
5
Judicial independence is dealt with in Article 16-18 of the Statute and in order to
guarantee independence of judges, dismissal of a judge is aggravated by laid down a rule as;
“no member of the Court can be dismissed unless, in the unanimous opinion of the other
members, (s)he has ceased to fulfill the required conditions.”
Judges may render joint judgments or their own separate opinions. Decisions and
Advisory Opinions are given by the majority; if votes are equally divided, the President’s vote
becomes decisive. Judges may also deliver dissenting opinions.
JURISDICTION OF THE ICJ
As previously mentioned the Court has a dual jurisdiction as giving advisory opinions
on legal questions or settling a dispute of a legal nature, which involves international
character and is brought before the Court by State parties, according to international law.
Rules that should be followed in proceedings of the Court differentiate depending on the
function that the Court performs.
A. Jurisdiction on Advisory Proceedings
As it set forth in Article 96 of the UN Charter, Advisory opinions may be requested by
the UN General Assembly or the UN Security Council on “any legal question”. On the other
hand, other organs of the UN or special agencies should be authorized by the UN General
Assembly beforehand and those organs or organizations may only request an advisory opinion
on “legal questions arising within the scope of their activities”.
After receiving such a request, the Court may hold written and oral proceedings, in
order to render its opinion with a full knowledge on facts.
6
Advisory opinions of the Court are only consultative in character and do not have a
binding effect, in other words, the requesting organ or organization is free to act either
accordingly or against the advisory opinion. Despite the fact that they are not binding in
principle, they carry great legal weight and, in a way, they contribute to the development of
international law. It derives its authority from the fact that it is a pronouncement of the chief
judicial organ of the UN.
A. Jurisdiction on Contentious Cases
According to Article 34 of the Statute of ICJ, only
States may apply to and appear before the Court, in other
words, international organizations, individuals, organs of
the UN, corporations, parts of a federal state, NGOs,
and self-determination groups are not allowed to apply;
however, the Court may ask for or receive information
from such groups if they are related to the case in question.
It is provided for that the Court is open to the states parties of its Statute in paragraph 1
of Article 35 of the Statute. By virtue of Article 93 of the UN Charter all Member States of
the United Nations are ipso facto parties to the Court’s Statute, so with abovementioned
paragraph, the Court is open itself to the application of the Member States. However, States
other than the Member States of the UN also may apply to the Court by complying
requirements that stated in paragraph 2 of Article 35 of the Statue.
Court’s jurisdiction on contentious disputes is subject to the principle of consent; in
other words, to obtain jurisdiction over a case, the Court should be authorized of the parties of
7
the dispute. Such consent can be given by four ways;
a. Jurisdiction may be founded by a special agreement (compromis) which is concluded
specially for the purpose of authorizing the ICJ. States usually apply this method after the
dispute arises,
b. Jurisdiction over a case may given by providing for a clause in an international
agreement suggests that state parties of the agreement may apply to the Court in case of a
dispute arising related to the matters set forth in the agreement. Taking such a clause as a
ground, a party of the agreement may apply to the Court with a unilateral written application.
c. Forum prorogatum: If a State has not recognized the jurisdiction of the Court at the
time when an application instituting proceedings is filed against it, that State has the
possibility of accepting such jurisdiction subsequently to enable the Court to entertain the
case: the Court thus has jurisdiction as of the date of acceptance in virtue of the rule of forum
prorogatum.
d. Compulsory jurisdiction in legal disputes: The Statute provides that a State may
recognize as compulsory jurisdiction of the Court in legal disputes in relation to any other
State accepting the same obligation. These cases are brought before the Court by means of
written applications. The conditions on which such compulsory jurisdiction may be
recognized are stated in paragraphs 2-5 of Article 36 of the Statute, which read as follows:
"2. The States parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to any other
State accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
(a) the interpretation of a treaty;
8
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an
international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international
obligation.
3. The declarations referred to above may be made unconditionally or on condition
of reciprocity on the part of several or certain States, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United
Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of
the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of
International Justice and which are still in force shall be deemed, as between the parties to the
present Statute, to be acceptances of the compulsory jurisdiction of the International Court of
Justice for the period which they still have to run and in accordance with their terms."
In any case brought before the Court by an application, respondent party may make
preliminary objections on the Court’s jurisdiction. The respondent state may argue that
declaration of acceptance or treaty is no longer in force or the reservation in the treaty
excludes the dispute which is brought before the Court. Where a preliminary objection is
made, it is up to the Court to decide whether or not the Court has jurisdiction.
As to the binding force of the Courts decision, it can be said that: Once the parties of
the case authorized the Court to entertain the case, parties are obliged to comply with the
decisions of the Court; which means that a verdict does not have a binding force on other
states which are not parties to the dispute.
9
SOURCES OF INTERNATIONAL LAW
In accordance with Article 38 of the Statute of the International Court of Justice,
sources of international law are generally accepted as;
A. Custom
In any primitive society certain rules of behavior emerge and prescribe what is
permitted and what is not. Such rules develop almost subconsciously within the group and are
maintained by the members of the group by social pressures with the aid of various other
more tangible implements. They are not, at least in early stages, written down or codified, and
survive ultimately because of what can be called an aura of historical legitimacy. (…) Custom
within contemporary legal systems, particularly in developed world, is relatively
cumbersome, unimportant and often of only nostalgic value. In international law on the other
hand it is a dynamic source of law in the light of the nature of the international system and its
lack of centralized government organs (Shawn, 2008).
There are doctrinal debates in the legal literature regarding the value of custom in the
international relations. However, since it is mentioned as a definite source in the Statue of the
ICJ, for the case of Peru v. Chile, these debates are not important. Therefore rather than
focusing on the elements and the material of custom as a source of international law; its role
in State practices will be analyzed.
Custom does mirror the characteristics of the decentralized international system. It is
democratic in that all states may share in the formulation of new rules, though the precept that
some are more equal than others in this process is not without its grain of truth. Its
imprecision means flexibility as well as ambiguity. Indeed, the creation of the concept of the
exclusive economic zone in the law of the sea may be cited as an example of this process. The
10
essence of custom according to article 38 is that it should constitute ‘evidence of a general
practice accepted as law’.
Once one has established the existence of a specified usage, it becomes necessary to
consider how the state views its own behavior. Is it to be regarded as a moral or political or
legal act or statement? The opinio juris, or belief that a state activity is legally obligatory, is
the factor which turns the usage into a custom and renders it part of the rules of international
law. To put it slightly differently, states will behave a certain way because they are convinced
it is binding upon them to do so. The Permanent Court of International Justice expressed this
point of view when it dealt with the North Sea Continental Shelf cases.
A wealth of state practice does not usually carry with it a presumption that opinio juris
exists. “Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it.”
The International Court of Justice has in a number of cases utilized General Assembly
resolutions as confirming the existence of the opinio juris, focusing on the content of the
resolution or resolutions in question and the conditions of their adoption. The key, however, is
the attitude taken by the states concerned, whether as parties to a particular treaty or as
participants in the adoption of a UN resolution. The Court has also referred to major
codification conventions for the same purpose, and to the work of the International Law
Commission. Although the ICJ has frequently referred to opinio juris as being an equal
footing with state practice, the role of the psychological element in the creation of customary
law is uncertain.
11
B. International Agreements: Law of Treaties
International law is more limited as far as the mechanisms for the creation of new rules
are concerned. Custom relies upon a measure of state practice supported by opinio juris and is
usually, although not invariably, an evolving and timely process. Treaties, on the other hand,
are a more direct and formal method of international law creation.
A treaty is basically an agreement between parties on the international scene. Although
treaties may be concluded, or made, between States and international organizations, they are
primarily concerned with relations between States (Shaw, 2008).
The Vienna Convention 1969 defines a treaty as “an international agreement concluded
between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its particular
designation”.
The fundamental essence of the treaties is that, they are binding upon the parties to them
and must be performed in good faith. This rule is termed as pacta sunt servanda and is argued
to be oldest principle of the international law. It is also referred to in Article 26 of the 1969
Vienna Convention.
There are not any specific requirements of form in international law for the existence of
a treaty; although is essential that the parties intend to create legal relations between
themselves. It is logical, since many agreements are statements of commonly held principles.
For instance, a declaration by a number of states in support of a particular political aim may
in many cases be without legal (though not political) significance, as the states may regard it
as a policy matter not as setting up juridical relations between themselves (Shaw, 2008). To
12
see whether a particular agreement is intended to create legal relations, all the facts of the
situation have to be examined carefully (Shawn, 2008).
Parties that do not sign and ratify the particular treaty in question are not bound by its
terms. This is a general rule and was illustrated in the North Sea Continental Shelf cases
where West Germany had not ratified the relevant Convention and was therefore under no
obligation to heed its terms. However, where treaties reflect customary law then non-parties
are bound, not because it is a treaty provision but because it reaffirms a rule or rules of
customary international law. Similarly, non-parties may come to accept that provisions in a
particular treaty can generate customary law, depending always upon the nature of the
agreement, the number of participants and other relevant factors.
It is now established that even where a treaty rule comes into being covering the same
ground as a customary rule, the latter will not be simply absorbed within the former but will
maintain its separate existence.
In addition, a treaty may contain a variety of provisions, not all of which constitute legal
obligations.
C. General Principles of Law
In any system of law, a situation may very well arise where the court in considering a
case before it realizes that there is no law covering exactly that point, neither parliamentary
statute nor judicial precedent. In such instances the judge will proceed to deduce a rule that
will be relevant, by analogy from already existing rules or directly from the general principles
that guide the legal system, whether they be referred to as emanating from justice, equity or
considerations of public policy.
13
There are fewer decided cases in international law than in a municipal system and no
method of legislating to provide rules to govern new situations. It is for such a reason that the
provision of ‘the general principles of law recognized by civilized nations’ was inserted into
Article 38 as a source of law.
It is important to appreciate that while there may not always be an immediate and
obvious rule applicable to every international situation, ‘every international situation is
capable of being determined as a matter of law’. There are various opinions as to what the
general principles of law concept are intended to refer. Some writers regard it as an
affirmation of Natural Law concepts, which are deemed to underlie the system of
international law and constitute the method for testing the validity of the positive (i.e. man-
made) rules. Other writers, particularly positivists, treat it as a sub-heading under treaty and
customary law and incapable of adding anything new to international law unless it reflects the
consent o states. Soviet writers like Tunkin subscribed to this approach and regarded the
‘general principles of law’ as reiterating the fundamental precepts of international law, for
example, the law of peaceful co-existence, which has already been set out in treaty and
custom law.
Between these approaches, most writers are prepared to accept that the general
principles do constitute a separate source of law but of fairly limited scope, and this is
reflected in the decisions of the Permanent Court of International Justice and the International
Court of Justice. It is not clear, however, in all cases, whether what is involved is a general
principle of law appearing in municipal systems or a general principle of international law.
But perhaps this is not a terribly serious problem since both municipal legal concepts and
14
those derived from existing international practice can be defined as falling within the
recognized catchment area.
Thus it follows that it is the Court which has the discretion as to which principles of law
to apply in the circumstances of the particular case under consideration, and it will do this
upon the basis of the inability of customary and treaty law to provide the required solution.
However, international law did not refer to the municipal law of a particular state, but
rather to the rules generally accepted by municipal legal systems which, in this case,
recognize the idea of the limited company.
Perhaps the most important general principle, underpinning many international legal
rules, is that of good faith. The principle of good faith, therefore, is a background principle
informing and shaping the observance of existing rules of international law and in addition
constraining the manner in which those rules may legitimately be exercised
One crucial general principle of international law is that of pacta sunt servanda, or the
idea that international agreements are binding. The law of treaties rests inexorably upon this
principle since the whole concept of binding international agreements can only rest upon the
presupposition that such instruments are commonly accepted as possessing that quality.
D. Judicial Decisions
Although these are, in the words of article 38, to be utilized as a subsidiary means for
the determination of rules of law rather than as an actual source of law, judicial decisions can
be of immense importance. Of course, it does not follow that a decision of the Court will be
invariably accepted in later discussions and formulations of the law.
While by virtue of Article 59 of the Statute of the International Court of Justice the
decisions of the Court have no binding force except as between the parties and in respect of
15
the case under consideration, the Court has striven to follow its previous judgments and insert
a measure of certainty within the process: so that while the doctrine of precedent as it is
known in the common law, whereby the rulings of certain courts must be followed by other
courts, does not exist in international law, one still finds that states in disputes and textbook
writers quote judgments of the Permanent Court and the International Court of Justice as
authoritative decisions.
In addition to the Permanent Court and the International Court of Justice, the phrase
‘judicial decisions’ also encompasses international arbitral awards and the rulings of national
courts. It is not rare for international courts of one type or another to cite each other’s
decisions, sometimes as support and sometimes to disagree.
The decisions of municipal courts may provide evidence of the existence of a customary
rule. They may also constitute evidence of the actual practice of states which, while not a
description of the law as it has been held to apply, nevertheless affords examples of how
states actually behave, in other words the essence of the material act which is so necessary in
establishing a rule of customary law.
One may, finally, also point to decisions by the highest courts of federal states, like
Switzerland and the United States, in their resolution of conflicts between the component
units of such countries, as relevant to the development of international law rules in such fields
as boundary disputes.
E. Writers
Article 38 includes as a subsidiary means for the determination of rules of law, ‘the
teachings of the most highly qualified publicists of the various nations’.
16
Historically, of course, the influence of academic writers on the development of
international law has been marked. In the heyday of Natural Law it was analyses and juristic
opinions that were crucial, while the role of state practice and court decisions was of less
value. Writers such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel were the supreme
authorities of the sixteenth to eighteenth centuries and determined the scope, form and content
of international law.
With the rise of positivism and the consequent emphasis upon state sovereignty, treaties
and custom assumed the dominant position in the exposition of the rules of the international
system, and the importance of legalistic writings began to decline.
Nevertheless, books are important as a way of arranging and putting into focus the
structure and form of international law and of elucidating the nature, history and practice of
the rules of law. Academic writings also have a useful role to play in stimulating thought
about the values and aims of international law as well as pointing out the defects that exist
within the system, and making suggestions as to the future.
States in their presentation of claims, national law officials in their opinions to their
governments, the various international judicial and arbitral bodies in considering their
decisions, and the judges of municipal courts when the need arises, all consult and quote the
writings of the leading juristic authorities.
Of course, the claim can be made, and often is, that textbook writers merely reflect and
reinforce national prejudices, but it is an allegation which has been exaggerated. It should not
lead us to dismiss the value of writers, but rather to assess correctly the writer within his
particular environment.
17
F.OTHER POSSIBLE SOURCES
In the discussion of the various sources of law prescribed by the Statute of the
International Court of Justice, it might have been noted that there is a distinction between, on
the one hand, actual sources of rules, that is those devices capable of instituting new rules
such as law-making treaties, customary law and many decisions of the International Court of
Justice since they cannot be confined to the category of merely determining or elucidating the
law, and on the other hand those practices and devices which afford evidence of the existence
of rules, such as juristic writings, many treaty-contracts and some judicial decisions both at
the international and municipal level. In fact, each source is capable, to some extent, of both
developing new law and identifying existing law.
It is sometimes argued more generally that particular non-binding instruments or
documents or non-binding provisions in treaties form a special category that may be termed
‘soft law’. This terminology is meant to indicate that the instrument or provision in question is
not of itself ‘law’, but its importance within the general framework of international legal
development is such that particular attention requires to be paid to it. ‘Soft law’ is not law.
That needs to be emphasized, but a document, for example, does not need to constitute a
binding treaty before it can exercise an influence in international politics.
Certain areas of international law have generated more ‘soft law’, in the sense of the
production of important but non-binding instruments, than others. Here one may cite
particularly international economic law and international environmental law. The use of such
documents, whether termed, for example, recommendations, guidelines, codes of practice or
standards, is significant in signaling the evolution and establishment of guidelines, which may
18
ultimately be converted into legally binding rules. This may be accomplished either by
formalization into a binding treaty or by acceptance as a customary rule, provided that the
necessary conditions have been fulfilled.
HIERARCHY OF SOURCES
The question of the hierarchy of sources is more complex than appears at first sight.
Judicial decisions and writings clearly have a subordinate function within the hierarchy in
view of their description as subsidiary means of law determination in Article 38(1) of the
Statute of the ICJ, while the role of general principles of law as a way of complementing
custom and treaty law places that category fairly firmly in third place. The question of priority
as between custom and treaty law is more complex. As a general rule, that which is later in
time will have priority. Treaties are usually formulated to replace or codify existing custom,
while treaties in turn may themselves fall out of use and be replaced by new customary rules.
However, where the same rule appears in both a treaty and a custom, there is no presumption
that the latter is subsumed by the former. The two may co-exist. There is in addition a
principle to the effect that a special rule prevails over a general rule (lex specialis derogat legi
generali), so that, for example, treaty rules between states as lex specialis would have priority
as against general rules of treaty or customary law between the same states, although not if the
general rule in question was one of jus cogens.
19
PRINCIPLES OF THE LAW OF THE SEA
Approximately three-quarters of the world’s surface are covered by water, much of it in
oceans and seas. As use of the seas intensifies and as it becomes easier to extract oil and
minerals from the seabed, the laws for channeling these burgeoning activities become
increasingly important.
The law of the sea is the law by which states regulate their relations in respect of the
marine territory subject to coastal state jurisdiction and those areas of the sea and seabed
beyond any national jurisdiction. Much of it is concerned with the rights enjoyed by States in
particular maritime zones.
HISTORICAL DEVELOPMENT OF LAW OF THE SEA
For hundreds of years, the marine environment was free from regulation of fishing,
shipping, and resource exploitation. Since 17th
century, the main concept of “the freedom of
seas” restricted national rights and limited nations’ coastlines to three nautical miles,
according to the 'cannon shot' rule developed by the Dutch jurist Cornelius van Bynkershoek.
As stated by Grotius’ the Mare Liberum principle all the waters beyond national boundaries
were considered international waters.
Over time, coastal States had an increased interest in national security and the
enforcement of law to protect its commerce and marine resources. The importance of the
non-living resources of the high seas (especially in terms of sustaining economic
development) had been begun to be comprehended by States. As a result, oceans were
20
transformed into an arena of conflict and instability. The result of States’ growing claims and
competing demands for lucrative fish stocks lead to the development of more comprehensive
regulations about sea law, especially after the Second World War.
Under the auspices of the League of Nations, Hague Conference for the Codification
of International Law held in 1930, as the name suggest, to fulfill the need to systemize and
to clarify the international customary law through a process of codification. In terms of law
of the sea, the Conference concentrated on territorial waters and on its delimitation between
opposite States. Although there was no agreement either on the breath of the territorial sea or
on delimitation principles and methods, it achieved to present a number of articles which
would become the basis of the further work.
Between 1949 and 1956, the codification of international law accelerated with the
efforts had been made by the UN General Assembly and under its auspices International
Law Commission. ILC dealt with the regime of high seas, continental shelf, territorial sea
and the delimitation methods among other aspect of the law of sea. At the end of its work, in
1956 ILC submitted a final report on the law of the sea which included all draft articles in a
single systematic body as to constitute a final draft. This final report was suggesting to
convene a conference, within the resolution of General Assembly which followed this very
suggestion, the aim of the conference stated as “to examine the law of sea, taking into
account not only of the legal but also of the technical, biological, economic and political
aspects of the problem and to embody the results of its work in one or more international
conventions”. In compliance of this particular provision of the resolution; a conference was
convened under the name of;
21
A. First United Nations Conference on Law of the Sea of 1958
United Nations through the International Law Commission assembled United
Nations Conference on Law of the Sea with the participation of 86 States, in Geneva
Switzerland, in 1958,
First Conference resulted in four treaties concluded in 1958:
- Convention on the Territorial Sea and Contiguous Zone (entry into force: 10
September 1964):
States reached a consensus on the definition of territorial sea and set it forth in Article
1, and the use and control of the contiguous zone stipulated in Article 24. The negotiations
focused on baselines, bays, delimitation between States whose coasts are adjacent or face each
other, innocent passage and the contiguous zone. Although it had not been explicitly stated,
since the provisions of the convention were the result of a codification process, the provisions
were generally seen as corresponding to customary law.
- Convention on the Continental Shelf (entry into force: 10 June 1964):
Rules on the notion, limits and regime of the continental shelf were established in
compliance with its emerging in State practice. The treaty set out the rights of a sovereign
state over the continental shelf surrounding it, by stating such a right is ipso facto exist, in that
sense granting rights over the shelf does not require express proclamation or occupation.
Furthermore, it was emphasized that the Convention “crystallizes” a relatively quick
development of formation of a customary rule; in the light of this remarks, provisions of this
agreement are commonly interpreted as corresponding the customary law.
22
The importance of this convention is the attempt to formulate an agreed legal definition
of the continental shelf, which was adopted as the Article 1. It has since been replaced by a
new agreement which was reached in 1982 at UNCLOS III.
- Convention on the High Seas (entry into force: 30 September 1962):
It was formed to codify the rules of international law relating to the international
waters. The Convention describes the high seas as the entire surface of the ocean, not
including territorial sea and internal waters. It centers upon the freedoms of the high seas; the
right of a State to have ships flying its flag under special conditions, stating the controversial
requirement of the existence a “genuine link”; the rights and obligations of the flag State;
piracy; the right of visit; hot pursuit; and the laying of submarine cables and pipelines. It also
contains two early and pioneering provisions on pollution by the discharge of oil and of radio-
active wastes. In its preamble, the purpose of the convention explicitly specified as “to codify
the rules of international law relating to high seas.” ,in that sense, it can be said that the
provisions of the agreement were corresponding to customary law.
- Convention on Fishing and Conservation of Living Resources of the High Seas (Entry
into force: 20 March 1966):
Its purpose was to solve the problems involved in the conservation of living resources in
the high seas through international cooperation. The development of modern technology thus
leading to resources being in danger of overexploitation was discussed in detail.
It set out principles and mechanisms for the rational management of fisheries in the high
seas, insisted on cooperation between States engaged in the same fisheries, recognized the
23
special interest of the coastal State when the fisheries are in the high seas adjacent to its
territorial sea and provided for compulsory settlement of disputes concerning all the key rules.
However the Convention on Fishing was ratified by only 35 states. This was due to the
main principles provided by the convention were already being practiced by fishing
commissions which had been established in various regions
A Second Conference on the Law of Sea was also held in Geneva to settle unresolved
issues from the previous Conference, especially issues concerning breadth of territorial waters
and sovereign fishing rights. However it did not result with any new agreements.
Upon the recognition of the fact that existing framework did not sufficiently regulate the use
of seabed and the ocean floor, the General Assembly decided to convene a third conference
on the law of the sea;
B. Third United Nation Conference on the Law of the Sea
Third Conference was not only important for the development of the international law
of the sea, it can also be considered as a landmark in the history of the political-diplomatic
negotiating system, and was the most innovative international law-making project ever
undertaken. With the participation of 160 nations it is one of the largest, and likely one of the
most important, legal agreements in history.
The conference ended with the conclusion of the United Nations Convention on the
Law of the Sea (hereinafter referred as UNCLOS) which aimed the revision of the traditional
law of sea in accordance with a new approach as to the creation of a more equitable
international order.
24
- United Nations Convention on the Law of the Sea (UNCLOS)
The Treaty contains 320 articles and 9 annexes. It synthesizes and builds upon the
agreements that were developed at the first two conferences. Although UNCLOS was first
signed in December of 1982, the agreement did not come into force until November of 1994 a
period of nearly 12 years.
The convention introduced a number of provisions. The most significant issues covered
were setting limits, navigation, archipelagic status and transit regimes, exclusive economic
zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime,
protection of the marine environment, scientific research, and settlement of disputes.
Aside from its provisions defining ocean boundaries, the convention establishes general
obligations for safeguarding the marine environment and protecting freedom of scientific
research on the high seas, and also creates an innovative legal regime for controlling mineral
resource exploitation in deep seabed areas beyond national jurisdiction, through an
International Seabed Authority and the Common heritage of mankind principle.
25
DIVISIONS OF OCEAN AREAS
Many concepts regarding maritime areas have been emerged in time as a result of
factors raised during the process and States concluded number of agreements related to these
areas. As the last one of these agreements, UNCLOS is widely accepted as the one codifies
almost all law of the sea rules, so that States recognizes five maritime areas pursuant to its
relevant articles;
Internal Waters
Territorial Waters
Contiguous Zone
Exclusive Economic Zone
Continental Shelf
These all maritime areas are measured from a carefully defined baseline of the coastal
state, in this regard, before starting to analyze these areas an over view related to the methods
of its determination would be fruitful;
Baseline
“Except where otherwise provided in this
Convention, the normal baseline for measuring the
breadth of the territorial sea is the low-water line
along the coast as marked on large-scale charts
officially recognized by the coastal State” (Article
5, UNCLOS)
26
The baseline can be determined by applying the technical provisions of the Convention
in three steps:
1. The normal baseline is the low-water line along the coast or in the case of an island
or atoll, the seaward low-water line of any reef. For delimiting the territorial sea, the
outermost permanent harbor works which form an integral part of the harbor system are
regarded as forming part of the coast.
2. Certain appropriate outmost points and marks such as;
Low-tide elevations no further than twelve nautical miles from the mainland
Low-tide elevations upon which installations which are permanently above Sea-
level (e.g., lighthouses) have been built, even where the installations are more than twelve
nautical miles from the mainland,
Mouths of rivers
Low-water marks of the natural entrance points of bays if the distance between
such marks does not exceed twenty-four nautical miles (except in cases of so-called historic
bays) and
Appropriate points along a deeply indented coastline or a fringe of islands close to
the coast can be used for establishing the baseline.
3. The following significant circumstances must be taken into account:
Roadsteads used for shipping and which would otherwise be wholly or partly
outside the territorial sea are part of the same;
Low-water elevations without permanent installations beyond the breadth of the
territorial sea have no territorial sea of their own;
27
Islands have their own territorial sea
Off-shore installations and artificial islands do not possess the status of islands and
do not have any effect on the establishment of the baseline.
A. Internal Waters
“… waters on the landward side of the baseline of the territorial sea form part of the
internal waters of the State.”(Article 8, UNCLOS)
Internal waters are those on the landward side of the baseline of the territorial sea (the
waters of lakes, rivers, and bays). Basically internal waters have the same legal character as
the land itself, thus the state is free to set laws, regulate any use, and use any resource.
Foreign vessels have no right of passage within internal waters, and this lack of right to
innocent passage is the key difference between internal waters and territorial waters.
B. Territorial Waters
The term “territorial sea”(territorio mari in Latin) can be traced back to 1357 when it
was used to describe a 100-mile reach out into the ocean in for jurisdiction over issues
relating to defense, customs and criminals.
Territorial sea notion developed as the “open sea/closed sea” controversy continued
throughout the history. Some states supported the idea of having open seas for everyone while
some others pursued the idea of closed sea. However by the time they all agreed to recognize
a limited sovereignty over bays, straits and the like. Even Hugo Grotius, author of the article
Mare Liberum (1609) which initiated the most efficient debate over “open sea/closed sea”,
admitted that States could possess limited sovereignty as long as it didn’t interfere with free
28
passage on the oceans. Hence the basis of the discussion was not relating to the existence of
closed sea, it was mainly about the width of the territorial sea.
In 17th
and 18th
centuries, the cannon-shot rule which gained wide acceptance in Europe
provided controlled coastal zones. Coastal States were to exercise dominion over their
territorial seas as far as projectiles could be fired from cannon based on the shore. According
to some scholars, in the eighteenth century the range of land-based cannons was
approximately one marine league, or three nautical miles. The 'cannon shot rule' prevailed
until about the mid nineteenth century when it gradually gave way to the traditional three
nautical mile limit which in turn has since been extended and modified.
Although some writers considered the 3-mile limit to be established as the customary
law, this opinion has not unanimously in favor of 3-mile distance. Spain continually claimed a
6-mile territorial limit; the three major Scandinavian countries claimed 4 miles; Russia
claimed 19 or 30(depending in the coast); Portugal claimed beyond 3 miles. In accordance
with such diversity, some authors insisted on a view which recognized the breadth of
territorial sea unsettled.
Attempts to establish uniformity of breadth in 1930 League of Nations Conference
failed due to twenty of the 47 nations attending the conference favored the 3-mile width, 12
favored the 6-mile breadth, the 4 Scandinavian countries supported 4-mile belt.
Between 1946 and 1950, Argentina, Chile, Peru, and Ecuador extended their territorial
rights to a distance of 200 nautical miles to cover their Humboldt Current fishing grounds.
Although some other nations such as Egypt, Ethiopia, Saudi Arabia, Libya, Venezuela and
some Eastern European countries laid claim to a 12-mile territorial sea therefore clearly
29
departing from the traditional three-mile limit, the majority of countries remained observant to
the traditional limit.
The next major international effort to clarify sea boundaries occurred in 1958 Geneva
Conference under United Nations’ framework. Although countries managed to form the
Convention on the Territorial Sea and the Contiguous Zone, they couldn’t agree on the exact
limit of territorial breadth even though the majority favored the 3-mile width.
By the late 1960s many nations recognized a 12-mile limit to the territorial sea. At the
start of the UNCLOS, only twenty-five nations maintained the traditional claim of 3 nautical
miles. Sixty-six nations were claiming 12 nautical miles, fifteen nations claimed between 4
and 10 nautical miles, and eight nations were claiming an astounding 200 nautical miles.
Nations without large navies or merchant fleets favored a larger territorial sea in order to
protect their coastal waters from infringements by more powerful nations. The world's major
naval and maritime powers, however, pressed for the 3-mile rule because the 12-mile rule
would have placed over 100 straits used for international navigation under the exclusive
sovereignty of other nations.
A noteworthy development had occurred in 1970 by the conclusion of Montevideo
Declaration. Argentina, Chile, Peru, Brazil, El Salvador, Panama, Uruguay, Ecuador, and
Nicaragua held a meeting, upon the request of the UN Secretary General at time, which aims
to present their view regarding the convening a new UN Conference on Law of the sea. In
this Declaration, it is stipulated that signatory states “extended their sovereignty or exclusive
rights of jurisdiction over the maritime area adjacent to their coasts, its soil and its subsoil to a
distance of 200 nautical miles from the baseline of the territorial sea.” The type of the
maritime area established with the Declaration was explicitly named neither as a territorial sea
30
nor as a continental shelf, although the Declaration is seen as a concrete step of the
development of the continental shelf notion. Some jurists claimed that the Declaration laid
down a new regional customary international law rule regarding territorial sea. Although most
of the signatory states modified and defined their maritime areas under the relevant articles of
UNCLOS upon its ratification by these states, Peru Ecuador and El Salvador insist on their
200 nm territorial sea claims on grounds of Montevideo Declaration and its interpretations by
the jurists’ as a regional customary law rule laid down by the Declaration.
Today, an overwhelming majority of nations claim 12 nautical miles pursuant to the
relevant articles of 1982 United Nations Convention on Law of the Sea in which is provided
for the definition of the territorial sea as:
“Every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines determined in accordance with this
Convention.”(Article 3, UNCLOS)
Territorial seas are waters that form a belt around the land that is up to 12 nautical miles
wide. They adjoin to internal seawaters, directly to the coast (where there are no internal
waters) or to archipelagic waters depending on the circumstances. The breadth of the
territorial sea is measured from baselines and being part of a state’s territory is under its
sovereignty. Foreign vessels are granted the right of innocent passage through this zone.
Passage is innocent as long as a ship refrains from engaging in certain prohibited activities,
including weapons testing, spying, smuggling, serious pollution, fishing, or scientific
research. Where territorial waters comprise straits used for international navigation, the
navigational rights of foreign shipping are strengthened by the replacement of the regime of
31
innocent passage by one of transit passage, which places fewer restrictions on foreign ships. A
similar regime exists in major sea-lanes through the waters of archipelagos.
UNCLOS adopted the basic concepts of the territorial sea and the right of innocent
passage that had been codified in the Convention on the Territorial Sea and the Contiguous
Zone, but the new treaty went a step further by establishing the limits of a nation's territorial
sea.
Remembering that the Cold War was still ongoing during the Convention, smaller
nations were particularly concerned about the possibility of threats to their national security
posed by warships of foreign nations or even the possibility of becoming embroiled in the
conflicts of foreign powers. In an attempted compromise, the small nations offered the larger
maritime powers the right of innocent passage; however the maritime powers were not
satisfied with this offer. The problem, in the view of the great powers, was that restrictions to
innocent passage would prohibit covert movements of vessels (such as submarines) and did
not guarantee over flight rights, thereby creating a security risk.
In the end, the parties came together to form a compromise known as "innocent
passage”.
“Passage is innocent so long as it is not prejudicial to the peace, good order or security
of the coastal State. Such passage shall take place in conformity with this Convention and
with other rules of international law.”(Article 19, UNCLOS)
In the course of this historical development, it became settled that the belt of territorial
waters, together with the seabed and subsoil beneath it and the airspace above, is under the
sovereignty of the coastal state. The only exception being the right of innocent passage—that
is, peaceful transit not prejudicial to the good order or security of the coastal state—for
32
merchant vessels of other nations. The right of innocent passage does not apply to submerged
submarines or to aircraft, nor does it include a right to fish.
C. Contiguous Zone
“In a zone contiguous to its territorial sea, described as the contiguous zone, the
coastal State may exercise the control necessary to:
(a) Prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea;
(b) Punish infringement of the above laws and regulations committed within its territory
or territorial sea.” (Article 33/1, UNCLOS)
“The contiguous zone may not extend beyond 24 nautical miles from the baselines from
which the breadth of the territorial sea is measured.”
(Article 33/2, UNCLOS)
A coastal state may establish a zone contiguous to the territorial sea and extending a
maximum of twenty-four nautical miles from the baseline. Within this region, a nation may
exercise the control necessary to prevent the infringement of its customs, fiscal, immigration
or sanitary laws and regulations within its territory or territorial sea, and punish infringement
of those laws and regulations committed within its territory or territorial sea.
The rights derived from this provision are of two types: “prevention” and "extended
power”. Rights of “prevention” mean that the coastal state exercises police force limited to
"control" necessary to prevent infringements of customs, fiscal, immigration, or sanitary
laws in the territorial sea or territory of the coastal state, including boarding and searching
and even prohibiting the foreign vessel from entering the territorial sea. If there is no such
infringement, the coastal state has no further rights. "Extended power" to apply national
33
criminal law goes into effect if there has been an infringement of the laws listed above within
the territory or territorial sea of the coastal state. In many instances of such infringements,
coastal states would also be able to exercise the right of hot pursuit. Finally, it is worthy of
mention that the Convention unexpectedly and rather curiously grants' special status to the
contiguous zone in one other area: in order to control traffic in historical and archeological
objects, the coastal state may presume that the removal of any such objects from the
contiguous zone without the state's approval would violate the laws mentioned in Article 33,
and the state may act accordingly.
D. Exclusive Economic Zone
The Convention grants coastal states the right to establish an exclusive economic zone
by a proclamation beyond and adjacent to the territorial sea. ,
“1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard
to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research; (iii) the protection and preservation of the marine
environment;
(c) other rights and duties provided for in this Convention.
34
2. In exercising its rights and performing its duties under this Convention in the
exclusive economic zone, the coastal State shall have due regard to the rights and duties of
other States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be
exercised in accordance with Part VI.”(Article 56, UNCLOS)
The greatest impact comes from the sovereign rights of the coastal state to explore and
exploit all living and non-living resources, from the subsoil to the wind. However, the
interests of other states are of no lesser significance, particularly with regard to navigation.
Part V therefore includes provisions for the freedom of navigation and over flight, for the
laying of submarine cables and pipelines, and other lawful uses of the sea related to these
freedoms.
These freedoms can basically be exercised as on the high seas but always in a manner
compatible with applicable provisions of the Convention and states must respect the coastal
state's rights and duties when acting in its exclusive economic zone. Consequently, the
exclusive economic zone has to be treated as an ocean area which "shall be reserved for
peaceful purposes.” The coastal state has the exclusive right to construct and to authorize and
regulate the construction, operation, and use of artificial islands, installations, and structures
including jurisdiction in respect to customs, fiscal, health, safety, and immigration laws.
“The exclusive economic zone shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured.”(Article 57, UNCLOS)
The coastal state is to publish charts showing the zone and deposit a copy with the UN
Secretary-General. The greatest impact comes from the sovereign rights of the coastal state to
explore and exploit all living and non-living resources, from the subsoil to the wind.
35
E. Continental Shelf
The term “continental shelf” was used for the first time by Hugh Robert Mill in 1877.
However the first pronunciation of the term “continental shelf” in law of sea emerged after the
Second World War.
The first document which dealt with the issue of continental shelf was “The Treaty of
Gulf of Paria (1942)” between the United Kingdom and Venezuela which delimitated the
continental shelf before the legal concept of the continental shelf itself was established.
However the first important legal instrument dealing with the subject was Truman
Proclamation of 28 September 1945 on the continental shelf.
The Proclamation made by United States of America was the first claim in history for
exclusive jurisdiction over marine resources beyond the territorial sea. It stated that "having
concern for the urgency of conserving and prudently utilizing its natural resources, the
Government of the United States regards the natural resources of the subsoil and sea-bed of
the continental shelf beneath the high seas but contiguous to the coasts of the United States as
appertaining to the United States, subject to its jurisdiction and control". The Proclamation
also noted "...The character as high seas of the waters above the continental shelf and the right
to their free and unimpeded navigation are in no way thus affected."
The Truman Proclamation was the primal instrument in the development of the legal
concept of continental shelf, as it provided a model for similar claims by other nations. A
wide range of unilateral acts were declared by other states to take advantage of this new
practice initiated by the US government.
On October 11, 1946, Argentina claimed not only the seabed and subsoil of the
continental shelf but the waters above, styled the Epicontinental Sea. This act was followed
36
by the acts passed by both Chilean and Peruvian Governments in 1947, relating the issue of
establishing maritime zones of 200 miles. Chile’s “Presidential Declaration Concerning
Continental Shelf” on 23 June 1947 proclaimed national "sovereignty over submarine areas,
regardless of their size or depth, as well as over the adjacent seas extending as far as
necessary to preserve, protect, maintain, and utilize natural resources and wealth". It further
established the demarcation of "protection zones for whaling and deep sea fishery" to extend
to 200 nautical miles from the coasts of Chilean territory. The Presidential Decree 781 of 1
August by the Government of Peru implicated the maritime zone; however the area was
identified neither as a territorial sea nor as a continental shelf.
The Truman Proclamation had an effect not only in Latin America, but also among
certain Arab states. A succession of unilateral declarations was adopted by ten Arab States
and emirates within a two-month period in 1949. Sovereignty, particularly, over the petroleum
resources on the continental shelf was proclaimed in the declarations while the use of the
expression "submerged lands" rather than "continental shelf" was common in all declarations.
In the mid-1950s the International Law Commission made a number of attempts to
define the "continental shelf" and coastal State jurisdiction over its resources.
In 1958, the first United Nations Conference on the Law of the Sea accepted a
definition adopted by the International Law Commission, which defined the continental shelf
to include "the seabed and subsoil of the submarine areas adjacent to the coast but outside the
area of the territorial sea, to a depth of 200 meters, or, beyond that limit, to where the depth of
the superjacent waters admits of the exploitation of the natural resources of the said areas".
The 1958 Convention on the Continental Shelf failed to specify a definitive seaward limit for
the coastal state’s sovereign rights over seabed resources beyond the territorial sea.
37
The world community convened a new ocean regime via the 1982 United Nations
Convention on the Law of the Sea (UNCLOS) in which is stipulated continental shelf as;
“The continental shelf of a coastal State comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural prolongation of
its land territory to the outer edge of the continental margin, or to a distance of 200 nautical
miles from the baselines from which the breadth of the territorial sea is measured where the
outer edge of the continental margin does not extend up to that distance.”(Article 76,
UNCLOS)
The continental shelf concept emerged primarily in 1958. Provisions derived from the
concept expressly state that the coastal state has sovereign rights to the non-living resources
of the sea-bed and its subsoil within the area of the zones. The continental shelf concept can
basically be applied only up to a certain depth of the sea-bed. In addition to these, continental
shelf rights exist for the coastal state independent of any proclamation or occupation.
States may secure their legal entitlement to the seabed by submitting information on the
continental shelf beyond 200 nautical miles. This is profoundly significant in that it will
enable many developing coastal States and small island nations to access valuable natural
resources, such as oil, gas and minerals, as well as sedentary organisms. Article 76 does not
affect the legal status of the water column or the airspace above the continental shelf.
The Article 76 provides two constraint lines beyond which a country cannot claim
extended continental shelf; these constraint lines ensure that a common heritage area under
the high seas (also defined in the Convention) is not carved up into nations’ continental
shelves. The first constraint line is 350 nm from the nation’s shore, and the second constraint
line is 100 nm seaward of the 2,500-m isobaths. A country can use any combination of those
constraint lines to maximize the extent of its continental shelf.
38
F. High Seas
The origin of the high seas concept can be derived from the controversy of “open
sea/closed sea”. Open sea notion considers the oceans available to all users while closed sea
notion refers those oceans as controlled in some way by a nation or people.
The doctrine of the “freedom of the seas” is often credited to the Dutch jurist Hugo
Grotius. In his article of “Mare Liberum(1609)”Grotius asserted that the sea could not be
owned, and that no country could deny another country's ships innocent passage right up to
the shoreline. Grotius’s notion of free seas relied on Roman law and the maritime customs of
Asian and African countries dating back to "before history was ever recorded". The doctrine
did not become an accepted principle of international law until the 19th century.
By the second half of the 20th century (1949), under the auspices of the United Nations,
the International Law Commission (ILC) indicated the regime of the high seas and of the
territorial sea among the topics ripe for codification. In Geneva Conference, countries
intended to lay down principles for regulations relating to the high seas in the Convention on
High Seas of 1958.
High seas are regulated by UNCLOS as;
“The provisions of this Part apply to all parts of the sea that are not included in
the exclusive economic zone, in the territorial sea or in the internal waters of a State,
or in the archipelagic waters of an archipelagic State…”(Article 86,UNCLOS)
The term “high seas” means all parts of the sea that are not included in the territorial sea
or in the internal waters of a state. The high seas being open to all nations, no state may
validly subject any part of them to its sovereignty. In this area, all States can undertake
activities such as navigation, over flight, fishing, marine scientific research, construction of
39
artificial islands and lying of cables and pipelines. However, the Convention stipulates that
States shall exercise their freedoms on the high seas with due regard for the interests of other
States.
DELIMITATION OF THE MARITIME ZONES
States are free to determine their maritime zones by a proclamation as long as they
follow the rules of international law related with the breadth of the relevant type of maritime
zones, unless their rights overlaps with another State’s over such maritime areas. In such
situations States are required to agree on a maritime delimitation.
The maritime delimitation methods and the law of sea have developed collaterally;
accordingly, history of the development of maritime delimitation may be analyzed in three
phases as following;
First Phase: Prior to 1958
While the Hague Conference of 1930 convened to codify the law of the sea rules,
delimitation rules and methods also had been an issue to deal with. In a draft proposal it was
suggested to accept the median line as the general rule that would be applied under normal
40
circumstances, a deviation from this general rule might only be caused by already justified
historical, geographical or other circumstances. With regard to the lateral boundaries, the
principle of division by lines perpendicular to the general configuration of the coastline was
suggested, however this suggestion had not been agreed on, in the end, excluded from draft
proposal.
With the establishment of the UN, codification of international law efforts acquired
currency; International Law Commission had been authorized to work on the regime of the
high seas, territorial waters, continental shelf and rules regarding delimitation of such areas.
The ILC established a committee of experts on technical questions regarding the delimitation
of territorial seas, and this committee recommended that the median line should be used in
cases that opposite States are involved additionally indicating that, special reasons might call
for the use of another method and favored the use of equidistance line in delimitation of a
lateral boundary.
The ILC accepted the Committee’s recommendation as a method was being used for
both territorial sea and continental shelf, but also it further accepted a numerous exception of
the general median/equidistance line rule by including in its draft report that later presented to
the UN General Assembly the formula “unless special circumstances justify another
boundary.”
Second Phase: From 1958 to the Third Conference on the Law of the Sea
Upon the ILC recommendation stated in its report, the General Assembly convened a
conference under the name of “the First United Nations Conference on the Law of the Sea”
The Conference adopted several conventions pursuant to draft articles that the ILC
presented beforehand, however there had been slide modifications regarding the delimitation
41
rule of territorial sea: Article 12 of the Convention on the Territorial Sea and the Contiguous
Zone stipulated as “In the absence of agreement and unless another boundary line is justified
by special circumstances, the boundary shall be determined by application of the principle of
equidistance/median line from the nearest point of the baselines from which the breadth of the
territorial sea of the each State is measured.” In that sense, equidistance line and special
circumstances designed as one rule which combines these two substantive elements and this
rule later called as combined equidistance- special circumstances rule.
The same article was repeated in the Convention on the Continental Shelf as Article 6 of
the convention in terms of the delimitation of this ocean area.
Third Phase: Conclusion of the UNCLOS
The delimitation rule regarding continental shelf hampered the negotiations the Third
United Nations Conference on the Law of the Sea owing to the fact that disagreement
between the States that in favor of equidistance line as a standard of delimitation and the
States favoring the concept of equity. Supporters of the equidistance line based their
arguments on Article 6 of the Convention on the Continental Shelf stating that it was the
principle of international law governing the delimitation cases, while the proponents of the
concept of equity objected to the equidistance line by elevating the equity as a basic principle
of law. These two groups could not reach an agreement, however incorporated a substantive
provision on delimitation in 1982 UNCLOS as its Article 83 in which provided for “the
delimitation of the continental shelf zone between States with opposite or adjacent coastal
shall be effected by agreement on the basis of international law, as referred to in Article 38 of
the Statute of the International Court of Justice, in order to achieve an equitable solution.”
42
During the Conference, the breadth of the territorial sea finally has been agreed upon
and stipulated in UNCLOS as a distance which does not exceed 12 miles, however the rule set
forth in 1958 Geneva Convention regarding the delimitation of territorial seas remained the
same (as failing agreement and in the absence of historical titles or other special
circumstances, the boundary is equidistance line) and provided for in Article 15 of the
UNCLOS. This article considered as a customary law rule by the ICJ in one of its judgments,
however that was the only decision of the ICJ that refers the article as customary law rule , so
that opposing argument also stands, some of the jurists still claim that the article is not
corresponding to customary law.
METHODS OF THE DELIMITATION OF THE MARITIME AREAS
A. Pre- Existing Agreement
It is generally accepted and also envisaged in UNCLOS that States should first negotiate
and attempt to agree on maritime delimitation prior to appear before the International Court of
Justice or any international tribunal. During the course of negotiations, States are free to take
any circumstances into consideration, to delimitate the boundary and to stipulate the
provisions of the agreement as they wish. However, once they conclude an agreement, they
bound with its provision in compliance with Vienna Convention on the Law of the Treaties
and relevant customary international law rules related to the international agreements.
Where a case regarding maritime delimitation is brought before the ICJ or States agree
on going to arbitration, the first issue to consider is if there is an existing agreement, explicit
or implied, sets forth the delimitation of the maritime boundary or areas in concern or the
method to be applied to draw the delimitation line. If there is an explicit agreement, since the
43
parties of agreement are bound with it, arbitrational tribunals or the ICJ dismisses the case,
unless there is an ambiguity on the applicability of the agreement. Where the applicability of
the agreement in concern disputed, the ICJ usually is called upon to interpret the maritime
delimitation agreement in question and render its judgment as to the applicability.
However, in cases that there is a partial agreement (as to the starting or end point of a
delimitation or base points or baselines etc.) the ICJ takes that agreement as the basis of the
delimitation having regard to the fact that agreements are the results of the States parties’
declaration of intent which they are bound with, so that such an agreement should be applied
to the dispute.
Besides that, with an overview the precedents of the ICJ, it may be seen that the Court
considers whether there is any tacit agreement or acquiescence and estoppel which indicates a
State practice evidencing a particular maritime delimitation or delimitation method that may
apply to territorial sea, continental shelf and/or EEZ. In that case, a State’s knowledge of the
public conduct or assertion of rights of the opposing State regarding its maritime boundary
and failure to protest such an assertion or conduct , may involve a tacit acceptance of the legal
position represented by the opposing party’s conduct or assertion of rights. However, the
Court stated that such a conduct must be compelling and of long standing and the
requirements for the invocation of the doctrine of acquiescence and estoppels needs to be
satisfied; otherwise it may not be applicable.
B. Equidistance Line
The equidistance line is defined in the 1958 Territorial Sea Convention as “the line
every point of which is equidistant from the nearest point if the baselines from which the
breadth of the territorial sea of each of the two States is measured.” A similar definition is
44
stipulated in 1958 Continental Shelf Convention. The use of equidistance method was
obligatory in absence of agreement, historical title or special circumstances according to these
two Conventions and this rule later called as equidistance- special circumstances rule.
Although equidistance line was set forth the main method in abovementioned articles,
the ICJ and international tribunals refused the privileged status of the method and in majority
of cases it was declared that equidistance line was a method solely among others but not a
mandatory legal principle which also was not corresponding the customary international law.
In spite of its abovementioned opinion, the ICJ generally uses the equidistance line as a
starting point in the delimitation process, if it is deemed convenient; however if it seen that
application of the method produces an inequitable result (especially in cases the coastlines in
concern are not comparable, the strict application of the equidistance line method results in an
inequitable delimitation) then the Court takes into consideration the special circumstances and
modifies the line in a way that may lead to an equitable result.
So far, the equidistance method, even if it is not obligatory, seems the most popular
delimitation method. The reasons for this relate to its lack of ambiguity, mathematic precision
and equitable results where the coastlines of the disputed States are comparable.
C. Equity and Equitable Principles
Since the rule of the delimitation of territorial seas set forth in UNCLOS in compliance
with the equidistance- special circumstances rule, this method is not applicable to territorial
seas, however it may be said that the notion of equity plays an important role in continental
shelf and/or exclusive economic zone delimitation process.
45
The notion entered into the processes of delimitation with the 1945 proclamation of
President Truman. It is stipulated in the Proclamation that the boundary of the continental
shelf between the US and adjacent states “shall be determined by the United States and the
State concerned in accordance with equitable principles.”
In 1969 North Sea case, the ICJ reiterated the point of view of President Truman by
stating that “delimitation is to be effected by agreement in accordance with equitable
principles, and taking into account all relevant circumstances.”
The ICJ tried to determine the concept of equity as “Equity as a legal concept is a direct
emanation of the idea if Justice. The Court is bound to apply equitable equity as a part of
general international law. When applying positive international law, a court may choose
among several possible interpretations of the law the one which appears, in the light of the
circumstances of the case, to be the closest to the requirements of justice.” and further stated
that “It is not a question of applying equity simply as a meter of abstract justice, but of
applying a rule of law.” In that sense, it may be said that, regarding the delimitation of a
continental shelf, the Courts considers equity a sole aim that should be borne in mind in
effecting the delimitation rather than accepting that as a method of delimitation.
Although the Court tried to define equitable principles several times, the concept is still
vague; a great number of jurists believe that since the geographical features of each
delimitation case varied so greatly that it is almost impossible to define equitable principles
applicable for the establishment of the maritime boundaries between States. The ICJ
expressed the same stance in its judgment regarding the Gulf of Maine case as “…that each
specific case, in final analysis, different from all the others, that is monotypic…most
46
appropriate criteria can only be determined in relation each particular case.” In that sense, it
may be said that, rather than citing and defining equitable principles, the Court is seeking an
equitable result for each case in accordance with the articles of UNCLOS regarding the
delimitation of continental shelf and/or exclusive economic zone.
The idea that reiterates the “difficulties of defining an equitable principle applicable to
all maritime delimitation cases, therefore rather than defining the principle, accept the concept
as the sole aim that needs to be pursuant in order to apply the rule of law in delimitation
cases” raises some worries by stating that it may opt the Court a wide power of judicial
discretion and a lack of normativity is worrisome since there is a possibility that a decision
rendered by the Courts using this wide judicial discretion may constitute inequitable results
too. On the other hand, it may also be argued that the international community itself opted
such a discretion to the Court and international tribunals by avoiding lie down a general rule
that applicable to all delimitation cases and, contrary to abovementioned idea, the judgments
and awards may refine principles and refinements in the application of law may improve
normative situation.
D. Proportionality
The concept of proportionality is an important criterion that taken into account by the
ICJ in various cases; in its every judgment related to maritime delimitation, the Court applied
this method.
The proportionality have been seen as one of the factors ensuring delimitation by
virtue of equitable principles, considered as a corrective element as if it is an ex post facto
test of equity, rather than seen it as distinct principle of delimitation. After the Court attributes
maritime areas to parties of the case, use the proportionality in order to check the
47
equitableness of the delimitation line or whether the attribution of the relevant areas are
reasonable equitable.
It should be noted that proportionality does not require a precise attribution of the areas,
one of the States may be given more maritime areas than other if the length of its coastline is
longer. It is the logical conclusion that a State with longer coastline is normally has an area of
maritime jurisdiction greater than if it had a short coastline or than the one which has a shorter
coastline. The Court takes into account the ration between maritime areas attributed to each
party and the length of coastlines. After estimating roughly but calculating exactly the length
of the relevant coastlines and comparing the ratios of the provisionally delimited relevant
areas, if the proportion of the relevant maritime zones does not roughly corresponds with the
relative length of the coastlines, the Courts considers further adjustments.
While “measuring” the proportion of the attributed areas, the ICJ also takes into
account other factors, considers especially the relevant circumstances such as geographic
configuration or socio-economic impacts of the delimitation.
In its judgment regarding the Gulf of Marine case, the Court outlined the economic
importance of the disputed area and stated that if overall outcome is widely inequitable, it is
most likely presumed that such a delimitation may cause a repercussion for economic well-
being of the population, so that if there is such a radical result, the delimitation line should be
drawn by means of applying this method not only ensuring quantitatively but also
qualitatively attribution of the disputed maritime areas.
In North Sea case, the Court stated that while drowning the delimitation line and
attributing maritime areas to each State, the general direction of the coast should be followed
and proportionality should be considered accordingly. On the other hand, in Tunisia/Libya
case, the Court highlighted the proportionality as a “fundamental principle” implying that it is
48
a general rule regardless of geographical conditions by making no references to the geography
of the area.
E. Perpendicular Line Method
As a delimitation method, the perpendicular line to general direction of the coast is
frequently used to delimitate maritime boundary between adjacent States both in State
practice and in judgments and awards of the ICJ and international tribunals and it is
commonly seen more suitable rather any other methods due to the fact that it products more
desired result in terms of equal division of the area of the overlap.
Especially in case which the general direction of the coastline rather easy to determine
and where the coastal the point of termination of the land frontier is relatively straight, a
lateral delimitation based on a perpendicular line is most likely to lead to a mutually
acceptable result. On the other hand, in the case of a coastal which is not altogether straight,
when conceive or convex coastlines are at issue or the islands are situated in front of the coast
of the States, such a method will be difficult to conceive.
F. Relevant (Special) Circumstances
Special circumstances are the circumstances which might modify the result produced by
an unqualified application of equidistance line regarding a delimitation process of territorial
sea; however, the Courts and international tribunals also take into account those
circumstances where it is appropriate and when they asked to determine a continental shelf.
Special circumstances are commonly named as relevant circumstances under the
international law; in fact the distinction arises from difference of wording between the Article
15 of UNCLOS (regarding delimitation of territorial sea, which refers to special
49
circumstances) and the Article 6 of the 1958 Convention (regarding the delimitation of
continental shelf, which refers to relevant circumstances). It can be said that there is no strict
distinction between those terms. Indeed, in the Greenland/Jan Mayen case, the ICJ recognized
that these are the same.
Geographical Circumstances
a. Coastal Configuration
The International Court of Justice frequently takes the coastal configuration into
account when a case of delimitation of maritime zones is brought before the Court. In the
1969 North Sea case, the Court explained the reason why coastal configuration should be
considered as “It is necessary to examine closely the geographical configuration of the
coastline of the countries…since the land is the legal source of power which may exercise
over territorial extensions to seaward, it must first clearly established what features do in fact
constitute such extension.”
Although the ICJ has a tendency to apply equidistance line not only to the delimitation
of the territorial sea but also of the continental shelf and exclusive economic zone, when it is
pertinent, where equidistant line leads to delimitation that may not achieve an equitable
solution as required by the international law, the Court may also depends on the length and
the shape of the respectful coastlines of the States in dispute.
b. Islands
The Islands that will be taken into account while delimitating a maritime boundary or
maritime area are the dependent islands: the island under sovereignty one or the other State in
50
dispute. In cases of island States, the delimitation processes is held between opposite State
and this respective island state under the general rules of international law regarding the
maritime delimitation. In that sense, its Statehood gives the island State the same right for
generating maritime projection pursuant to the conditions laid down by international law.
The presence of a dependent island or islands in the area in dispute may be having a
distortion effect on the delimitation line. In such cases, the ICJ may consider the island as a
relevant circumstance and it may be taken into account fully, partly or be ignored.
The ICJ accepts that if an island appears to be integral part of the coastal configuration,
it is considered to have the same effect with the mainland and it is given full effect. In that
sense, the island may be given its own maritime area around its coasts and the delimitation of
the disputed maritime area is carried out as if there is no island exists. However, if the island
appears to be an insignificant or an abnormal feature in relation with the general
configuration, the island may be given partial effect or ignored completely.
Besides that; the size, economy and/or population of the island may be considered as
important factors where the island is taken into account regarding the delimitation process as
well as its position with regard to equidistance/median line.
Non-Geographical Circumstances
a. Socio-Economic Circumstances
Although socio- economic circumstances play an important role in maritime
negotiations between States and as the ICJ noted in one of its judgments that “there is no legal
limits to the considerations which States may take account for the purpose of making sure that
51
they apply equitable procedures.”, the ICJ and international tribunals are reluctant to take
these factors into consideration. The underlying reasons of this reluctance are actually quite
simple and reasonable: Any delimitation which was based on socio-economic circumstances,
such as fishery resource or oil deposit, may jeopardize the principle of the permanence and
stability of the maritime boundaries due to the fact that such a delimitation implies if these
circumstances changed, the boundary drown in accordance with the previous circumstances
would need to be reconsidered. Furthermore, one cannot argue that Courts should not have
concerned with the duty of establishing regime of equitable allocation of resources, since
legislative power may be associated with distributive justice rather than a judicial authority.
Only exception to this point of view is noted by ICJ in its judgment regarding the Gulf
of Maine case by stating that socio-economic factors may only be taken into consideration if
the applied criteria or the delimitation methods will “be revealed as radically inequitable, that
is to say, as likely to entail catastrophic repercussions for the livelihood and economic well-
being of the population of the countries concerned.”
b. Historic Title
This method is only applicable to the territorial sea, as it is provided for in Article 15 of
the UNCLOS which was also considered as a customary international law rule by the ICJ.
Historical maritime title depends upon;
a. exercise of authority for a long period and in compliance with the maritime title that
is being claiming
b. notoriety and continuity of such display of authority
c. acquiescence of the great majority of States.
52
If it fulfills these requirements, historical title may allow States to claim sovereignty
over areas that lie beyond the limits of what would be normal maximum territorial sea
entitlement. Such a sovereignty claim only can be granted provided that there is a proof of its
existence; if such a proof exists and the respective title meets with the requirements of its
acquiescence, they exclude the existence of any other title, no other State may entitle to
exercise powers over the area to which the title is referred; otherwise any claim regarding the
sovereignty over an area may not be accepted. In that sense, it may be said that historical titles
are opposable erga omnes. However, historical rights, which includes historic rights of
passage and historic fishing rights in terms of maritime zones, are commonly advanced as the
ones which have a non-exclusive nature that such rights may not be a ground to claim
sovereignty over an area, their scope falls short for sovereignty.
53
CASE CONCERNING MARITIME DELIMITATION
BETWEEN
THE REPUBLIC OF PERU AND THE REPUBLIC OF CHILE
THE ICJ’S JURISDICTION ON THE CASE
In its application to the Hague, Peru invokes the relevant article of the American Treaty
on Pacific Settlement (also known as Pact of Bogotá), since both States are parties of
abovementioned treaty without any reservations. The relevant article provides that:
“In conformity with Article 36, paragraph 2, of the Statute of the International
Court of Justice, the High Contracting Parties declare that they recognize, in relation to any
other American State, the jurisdiction of the Court as compulsory ipso facto, without the
necessity of any special agreement so long as the present Treaty is in force, in all disputes of a
judicial nature that arise among them concerning:
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established, would constitute the breach
of an international obligation;
(d) The nature or extent of the reparation to be made for the breach of an
international obligation.”
54
DEFINITION OF THE DISPUTE
Official controversy between those two states arises from the parties’ different
interpretations on the status of their maritime boundary: Peru claims that the maritime
boundary between those two States has
never been delimitated and declares its
maritime zone by enacting “Maritime
Domain Baselines Law”(2005), which
is approved with Supreme Decree No.
047-2007-RE (2007) and unilaterally
established “the bisecting line perpendicular to the coast” as its boundary with Chile; while
Chile claims that agreements of 1952, 1954 and 1968 establishes the boundary which is the
latitude that passes by point on which the land frontier of those states reaches the sea.
As it seen, both states formed their maritime zones differently, as a result, their
sovereignty overlaps on an area which can be defined as a trapezoid shaped area of 67,139.4
square kilometers between
the geographical parallel that crosses the
end point of their land border (according
to Chile, "Hito N º 1" and to Peru "Punto
Concordia") and the bisecting line
perpendicular to the coast in Chile and
Peru. About 38,000 square kilometers
(11,090 n.m.²) of the area are considered
55
sovereign by Chile, on the other hand, Peru request an equitable division of this area;
secondly, 28,471.86 square kilometers (8,308 n.m.²) of the abovementioned area is considered
as high seas by Chile, while Peru distinguishes the area as a part of its maritime zone.
OFFICIAL POSITIONS OF THE PARTIES
a. Official Position of Peru
Since 1986, Peruvian official position is expressed in abovementioned official
documents and statements as “Chile and Peru have not concluded, pursuant to the appropriate
rules of international law, a treaty specifically for the purpose of maritime delimitation, as a
result, the maritime boundary between Peru and Chile never been delimitated.”
From the viewpoint of Peru, the treaties mentioned by Chile have purposes other than
setting the maritime boundary, however, a maritime boundary agreement should be formed
with negotiations and aim of the agreement should explicitly specified as delimitation,
additionally such an agreement should contain a certain level of specification related to the
exact boundary.
States have neither negotiated nor signed any treaty about the delimitation of the
maritime boundary, despite the fact that Peru repeatedly emphasized the necessity of the
definitive and formal delimitation of the maritime spaces between both countries and called
Chile to proceed with the negotiations.
56
Peru’s application presented to the ICJ on 16 January 2008 stresses that the beginning of
both countries’ land border is Concordia, not Landmark (Hito) N º1 and the maritime
boundary should be delimitated by means of an equidistance line, the delimitation according
to a geographical parallel as Chile sustains is an inequitable solution and lacks of legal basis.
Nevertheless, Peru determined its baseline by enacting a few laws as a bisector line
perpendicular to the coast which starts from Punto Concordia.
In addition, Peru proclaims that the outer triangle which is accepted as high seas by
Chile is part of the Peruvian sea, not international waters.
a. Official Position of Chile
Chile consistently defends that the maritime boundary between both countries is “the
geographical parallel that crosses the end point of the land border between Chile and Peru”
which is indicated as “the parallel 18 º 21'03”S” in the charts that Chile had deposited with
the Secretary-General on 21 September 2000.
Contrary to Peru’s position, Chile views that maritime boundary between two states has
been subscribed in diverse documents such as “Declaration on the Maritime Zone”(1952)”,
“Agreement relating to a Special Maritime Frontier Zone”(1954) and “the Act of the
Landmark N º1”(1969) and those documents indicates that geographical parallel, which starts
from Landmark (Hito) N º1, is the baseline that delimitates the maritime boundary of those
states and the outer triangle is a part of international waters, not a part of the Peruvian sea,
therefore there is not a matter of pending negotiations, the geographical parallel was always
the maritime boundary.
57
HISTORY OF THE DISPUTE
Dispute in question dates back to the War of Pacific (1879-1883), in which Peru and
Bolivia lost substantial territory to Chile, however the actual controversy was not officially
raised until the mid-1980s. In 1986, Peru formally pointed the controversy out via a
diplomatic note which is dispatched to the officials of the Republic of Chile and since then, a
wide range of agreements have been concluded, numerous statements and lots of discussion
have been made, but controversy could not have been settled. Finally, the Republic of Peru
filed an application to the ICJ in order to resolve the dispute entirely having regard to the fact
that the Court’s decisions are final and parties of the case brought before the Court is bound
with its judgments on the dispute.
In order to interpret the dispute more accurately, reviewing its history may be
beneficial;
a. War of Pacific, Treaty of Lima and the Final Act of the Boundary Demarcation
At the end of the War of Pacific, Chile acquired the disputed Bolivian department of
Litoral (correspondingly Bolivia is cut out from the sea) and the Peruvian territory
of Tarapacá, as well as temporary control over the Peruvian provinces of Tacna and Arica.
Peace agreements (the Treaty of Ancón between Peru and Chile and the "Treaty of Peace
and Friendship" between Chile and Bolivia) were signed in order to determine the new
borders of those three states, however, the statutes of Tacna and Arica remained controversial
until the Treaty of Lima was signed on June 3rd
of 1929.Treaty of Lima delimitated the
definite land border of Peru and Chile; according to Article 2 of this treaty: “The territory of
58
Tacna and Arica shall be divided into two portions of which Tacna shall be allotted to Peru
and Arica to Chile” and “the dividing line between two portions, and consequently the frontier
between the territories of Chile and Peru, shall start from a point on the coast to be named
‘Concordia’…”
Demarcation was finalized in a year and a protocol (the Final Act of the Boundary
Commission between Peru and Chile, also known as "Final Act of the Boundary
Demarcation”) was signed by the representatives of the parties on August 5th
of 1930. The
Commission marked points which determines the land frontier, including the starting point of
the border by virtue of the provisions of the Treaty of Lima which indicates that the frontier
starts from the intersection in the Pacific Ocean of an arc with a radius of 10 kilometers and
these points, including the intersection of this border arc with the Pacific Ocean, were drawn
up in some maps by state’s representatives to the Mixed Commission.
Under the aforementioned Act and the Acts which made in 1968 and 1969, Chile
proclaims that the land frontier begins at a point which is Landmark (Hito) N º 1, latitude 18’
21’ 03” S, longitude 70’ 22’ 56” W. On the other hand, Peru claims that starting point of the
line delimitates their maritime boundary was determined by Treaty of Lima as “Punto
Concordia”.
b. The Declaration on the Maritime Zone, Agreement relating to A Special Maritime
Frontier Zone and Acts of Representatives of Chile and Peru
When Truman Proclamation regarding the United State’s continental shelf was issued,
many countries were influenced by the idea of claiming jurisdiction over the areas which are
59
beyond the traditional three mile territorial sea. In 1947, Chile issued a presidential
declaration indicating its assertion of sovereignty over the sea adjacent to its coasts to a
distance of 200 miles by reserving its right to modify its maritime zone and to justify its claim
to 200 miles zone on a need to “prevent the exploitation of natural resources”. In the same
year, with “Supreme Decree No. 781”, Peru also proclaimed its sovereignty and jurisdiction
over the sea adjacent to its coasts and an imaginary line parallel to them and traced on the sea
at a distance of 200 nautical miles measured following line of the geographical parallels by
reserving “the right to establish the limits of the zones of control and protection of natural
resources in continental or insular seas which are controlled by the Peruvian Government and
to modify such limits in accordance with supervening circumstances which may originate as a
result of further discoveries, studies or national interests which may become apparent in the
future…” Thus, both states exceed their maritime area unilaterally with abovementioned legal
instruments.
Chile, via a diplomatic note dated 10 July of 1952, invited Peru and Ecuador to convene
a conference which was mainly aiming to limit the access of distant-water fishing fleets and to
control the consumption of fish stocks in their adjacent seas, as a consequence, to determine
an area to control and to provide legal instruments with international element to govern the
territorial waters of these nations, in order to accomplish abovementioned aim. Consequently
the First Conference on the Exploitation and Conservation of the Maritime Resources of the
South Pacific took place in 1952 and ended with a declaration which is the Declaration on the
Maritime Zone (also known as the Declaration of Santiago) dated 18 August 1952. Article II
of the Declaration states that as a “principle of their international maritime policy”, each state
“possess exclusive sovereignty and jurisdiction over the sea along the coasts of their
respective countries to a minimum distance of 200 nautical miles” from their coasts. To
60
justify their ocean claims, in other words, their proclamation of sovereignty and jurisdiction
over the area of 200 nautical miles, it was stated in the preface of the declaration that the
purpose of establishing the zone was to “ensure the conservation and protection of its natural
resources…” The 200 nautical miles area was not directly identified with the declaration,
thus, it’s not clear that whether or not the area constitutes a territorial sea or continental shelf;
in this regard, nature of the area remained controversial for many years, some Jurist interpret
the relevant article as a proclamation referring to their territorial seas having regard to the
usage of “exclusive” might be intentional, while some others considers the Declaration within
the circumstances that those States effected and in company with the other legal instruments
that are based on and concluded afterwards of the Declaration of Santiago (such as
Montevideo and Lima Declarations of 1970 which also prefer the formula “maritime
sovereignty and jurisdiction” rather than explicitly referring to “territorial sea”) and come to a
conclusion that the area refers to the “continental shelf.” In addition, the Declaration of
Santiago is commonly considered as an important step of the historical development of the
continental shelf notion. In the light of the second argument, Peru’s unilateral assertion on
200 nautical miles of territorial sea is seen as unique and controversial. Nevertheless, Peru
prolongs its excessive territorial sea claim by the legislations of 1956 and 1965 and by its
constitutions of 1979 and 1993, while Chile declares the nature of its maritime zone and
regulates its 12 nm of territorial sea and 200 nm of EEZ by amending its Civil Code in 1986.
Article IV of the Declaration reads as: “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, 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” Chile interprets “parallel line rule” stipulated in this very
61
article as a general rule of maritime delimitation that the parties of the agreement have agreed
upon regarding their maritime boundary. By Dictum No.138 of 1960, Chilean authorities
interpreted Article IV teleologically and came to a conclusion that said article “would confirm
the interpretation with respect to the geographical parallel” and “although there is not an
expressed pact about the lateral delimitation of the territorial seas, it represents the
understanding that maritime boundary is the geographical parallel at the point at which the
land frontier of the states concern reaches the sea” On the other hand, Peru argues that this
article is only applicable if there is an island involved to the issue, the geographical parallel
only establishes the criterion of delimitation the maritime zone corresponding the island or
group of islands. Since there are no islands in or around the dispute area, application of this
article to maritime boundary between these states would not be in accordance of Law and
would be shortened Peru’s south zone inequitably. Furthermore, having regard to the reasons
why this declaration concluded and aim of the abovementioned article was only delimitating
the island territories, Peruvian party proclaims that the Declaration on the Maritime Zone
does not constitutes any agreement on a general rule regarding delimitation of signatory
states’ maritime zones.
The Declaration on the Maritime Zone has been ratified by Chile on September 1954
and by Peru on February 1955.
The Second Conference on the Exploitation and Conservation of the Maritime
Resources of the South Pacific had held in 1954 which laid Chile, Ecuador and Peru to
conclude an agreement under the name of “Agreement relating to A Special Maritime Frontier
Zone” on 4th
of December, 1954 , was ratified by all of the parties afterwards.
62
By Article I of this agreement, a special zone “at a distance of 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 between the two countries” established in order to avoid
imposition of sanctions to fishermen (especially the ones whose vessels are not equipped with
necessary instruments to determine their position on the high seas accurately ore whose crews
are sufficient enough regarding the knowledge of navigation) due to their innocent and
accidental passage to adjacent states’ maritime zone. Peru proclaims that underlined
expression “cannot and should not be interpreted but in function of a convened line with the
exclusive purpose of orienting the artisan fishing vessels.”, so that “the effects of the
agreement are limited to the scope of artisan fishing” However, with its Dictum No. 138,
Chile indicated that this agreement “…reaffirms in emphatic manner a pre-existing fact, in
which Chile, Ecuador and Peru agree: that between their territorial seas, the delimitation is
the geographical parallel.”
In 1968 a commission was formed and signed two acts one of which is “Act of the Joint
Chilien- Peruvian Commission designated for verifying the original geographical position of
Landmark ( Hito) No. 1 and to signal the Maritime Limit” . Two towers has been established,
one of which has been placed 1,843.8 meters east of Landmark No.1 in Chilean territory
while other has been placed 6 meters west of Landmark No.1 in Peruvian territory, by the
Joint Chilean- Peruvian Boundary Commission in order to assist mariners to establish their
positions with regard to the maritime boundary.
Chile proclaims that the Landmark No. 1 (also known as Hito No.1 and Pillar No. 1)
which was materialized as to Acts of Representatives of Chile and Peru in 1968 and 1969 by
the establishment of aforementioned towers, in accordance with the Act of 1930 the parties
agreed upon that Landmark No. 1 is the coastal point, so that the line which delimitates their
63
maritime boundary begins at that point too. However, Peru emphasizes that towers built to
lead the mariners who carries out activities near the coast, the actions in order to verify
Landmark No.1 does not indicate that it is the land terminus. Land terminus, in other word,
pursuant to Article II of the Treaty of Lima, the end point at which the land boundary reaches
the sea is called Concordia and it is located to the south-west of Landmark No.1.
c. 1985 to the Case
Controversy was firstly addressed by Peruvian Foreign Minister at time, to Chilean
Foreign Minister in an official meeting in 1985; Peruvian side pointed out the non-existence
of an agreement on maritime boundary between Peru and Chile. In the following year; Peru
issued a diplomatic note which indicated the need of a maritime boundary treaty, signed in
accordance with the rules of international law, for the purpose of establishing the formal and
definitive maritime boundary between those States with accurate geographical proximity. By
aforementioned note, it is referred that the purpose of the establishment of the maritime zone
Agreement relating to A Special Maritime Frontier Zone was avoid the imposition of
sanctions on small vessels and the parallel line set forth in this agreement “should be
considered as a formula which, despite having fulfilled the express objective of avoiding
incidents with seafarers with scant knowledge of navigation” rather than a line which
delimitated the maritime boundary.
Although Chile was one of the States which have highly contributed to the preparation
of the United Nations Convention on Law of the Sea (UNCLOS) and signed the agreement
immediately, it had not ratified it until 1997. In compliance with the related provisions of the
64
UNCLOS, Republic of Chile deposited its charts related with its maritime zone to the UN on
21st of September 2000, which indicates parallel 18º21’00” as the maritime boundary between
Chile and Peru. As a response, Government of Peru dispatched a communication dated 9
January 2001 to the Secretary General of the UN regarding its opposition to Chile’s
depositary notification by stating that the Government of Peru does not accept
abovementioned parallel as their maritime boundary and the parties never have been
concluded an agreement on the issue. Chile reiterated its arguments also by replying Peru’s
statement with a communication sent to the Secretary General of the UN on 25 March 2002,
stating that the Declaration on the Maritime Zone and Agreement on the Special Maritime
Zone are duly ratified and pursuant to aforementioned legal instruments and Act of Landmark
N º 1, parallel 18°21’00” “constitutes a dividing line which has been abided by in the
sovereign and jurisdictional acts of the two countries and incorporated into their domestic
legal order.”
In 2004, Peru took another step and formally propounded to start a negotiation process
regarding delimitation of the definitive and formal maritime boundary in order to resolve the
issue. Notwithstanding, Chile declined the offer on grounds of the maritime boundary has
already been constituted with agreements concluded in 1952 and 1954.
In 2006, Chile’s Congress enacted a law that created a new Arica-Parinacota
administrative region near Chile’s northern border with Peru, it was also provided for in the
law that Landmark (Hito) N º 1 is the starting point of their land border (as well as the end
point, of course) As a result, Chile faced with Peruvian objection that the law constitutes a
violation of the Treaty of Lima. The law was struck down by the Chilean Constitutional Court
in 2007, and this decision was recognized by the Chilean Government.
65
Current Peruvian Constitution enacted on December 31, 1993 and superseded previous
constitution of 1979; however, Article 98 of the previous constitution is preserved as Article
54 in the constitution of 1993. Article in concern stresses Peru’s 200 nautical miles of
territorial sea proclamation which is called “maritime dominion” that is stipulated as: “The
nation's maritime dominion includes the sea adjacent to its coast, the ocean floor, and the
subsoil extending out to a distance of 200 maritime miles measured from base lines
established by law. The nation enjoys sovereignty and jurisdiction over its maritime
dominion, without prejudice to the freedom of international communication, in accordance
with the law and treaties ratified by the government. The nation exercises sovereignty and
jurisdiction over the air space above its territory and adjacent sea extending out to a distance
of 200 miles, without prejudice to the freedom of international communication, in accordance
with the law and treaties ratified by the government.”
Until enacting such a law, Peru was only proclaiming its sovereignty and jurisdiction
over 200 nm2 areas in compliance with Supreme Decree No. 781, but the limits of its
maritime zone was measured following the geographical parallel. By enacting “Peruvian
Maritime Domain Baselines Law” on 3rd
of November 2005, in order to fulfill the mandate of
Article 54 of its constitution, the Republic of Peru point out at where its territorial sea ends by
using a bisecting line and delimitate its maritime zone. It is set forth in this very law that outer
limit of its maritime domain is “traced in such a manner that every point of the mentioned
outer limit is at a distance of two hundred nautical miles from the nearest baselines point”.
This Article indirectly forms the boundary between Peru and Chile as the bisector line
perpendicular to its coast and it shapes the dispute area as it can be seen in the following map
which published by Peru;
66
By the time the Peruvian Maritime Domain Baselines Law is enacted and Supreme
Decree No.047-2007-RE is approved this law, controversy between Peru and Chile heated up.
Notes regarding the issue between these States exchanged via the United Nations. Within
these notes, both States re-emphasized and consolidated their position on the dispute, more
importantly, the controversy regarding the starting point of the maritime boundary is revealed
by means of those documents, by referring to the stipulation in the relevant law. Chile pointed
out that Point Nr. 266, which established pursuant to Treaty of Lima, demarcated in 1930 by
Joint Commission and approved by its Act and referred in the law as “sea terminus” and
defined with its coordinates, does not coincide with the agreements concluded between those
two States, so that the law is not applicable in terms of international law, neither is acceptable
for Chile. Correspondingly, Peru responded Chilean arguments by stating that Point Nr.266
refers to ‘Concordia’ and by evidencing the Official Chilean maps published starting from
1998 that identifies Boundary marker (Hito) No.1 as the starting point of these states land
67
frontier, Peru argued that Chile failed to fulfill its obligation to act in compliance with Treaty
of Lima. Another statement made by Chile afterwards which emphasizes that the map that
issued by the Government of Peru within an instrument which the United Nations published
in its website, does not reflect the facts and have any legal effect.
On 16 January 2008, Peru brought the case before the International Court of Justice by
filling an application which includes Peru’s prayers as: “to determine the course of the
boundary between the maritime zones of the two States in accordance with international law .
. . 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.” Currently, the parties of the dispute finalized and
submitted their written pleadings; oral proceedings are expected to start on February, 2012.
REFERENCES AND FURTHER READİNGS
Organization of American States Department of International Law. (n.d). “American Treaty
on Pacific Settlement (Pact of Bogota)”, Retrieved from
http://www.oas.org/juridico/english/treaties/a-42.html
United Nations, the. (n.d). “Declaration on the Maritime Zone (Declaration of Santiago)”,
Retrieved from
http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/CHL-
ECU-PER1952MZ.PDF
68
International Court of Justice, the.(n.d.). “Statute of the International Court of Justice”
Retrieved from http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0
International Court of Justice, the.(n.d.). “Charter of the United Nations”, Retrieved from
http://www.icj-cij.org/documents/index.php?p1=4&p2=1&p3=0
International Court of Justice, the. (16 January 2008). “Application Instituting Proceedings”,
Retrieved from http://www.icj-cij.org/docket/files/137/14385.pdf
United States Department of State- Bureau of Intelligence and Research. (2 July 1979).
“Limits in the Sea No.86 Maritime Boundary Chile- Peru”, Retrieved from
http://www.state.gov/documents/organization/58820.pdf
Embassy of Peru, Canberra, Australia. (n.d.). “Maritime Dispute between Peru and Chile”,
Retrieved from
http://www.embaperu.org.au/embassy/pdfs/Maritime%20Delimitation%20Peru%20Chile.pdf
U.S. Navy Judge Advocate General’s Corps.(n.d). “Peru”, Retrieved from
http://www.dtic.mil/whs/directives/corres/20051m_062305/peru.doc
U.S. Navy Judge Advocate General’s Corps.(n.d). “Chile”, Retrieved from
http://www.jag.navy.mil/organization/documents/mcrm/chile.pdf
BBC.(17 January 2008). “Chile-Peru Spat over Sea Border”, Retrieved from
http://news.bbc.co.uk/2/hi/americas/7194854.stm
United Nations, the. (n.d.). Legislations, Communications, Statements and Treaties of the
Republic of Chile regarding Law of the Sea, Retrieved from
http://www.un.org/depts/los/LEGISLATIONANDTREATIES/STATEFILES/CHL.
69
United Nations, the. (n.d.). Legislations, Communications, Statements and Treaties of the
Republic of Peru regarding Law of the Sea, Retrieved from
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/PER.htm
United Nations, the. (March 2001). “Law of the Sea Information Circular :Communications
received by the Secretary-General: Statement by Peru”, Retrieved from
http://www.un.org/depts/los/LEGISLATIONANDTREATIES/losic/losic13e.pdf
United Nations, the. (March 2002). “Law of the Sea Information Circular: Communications
received by the Secretary-General: Statement by Chile”, Retrieved from
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/losic/losic15e.pdf
Scovazzi, Tullio. (n.d.). “The Importance of Coastal Configuration in Maritime
Delimitations”, Retrieved from
http://www.iladir.org/revista/pdf/THE%20IMPORTANCE%20OF%20THE%20COASTAL%
20CONFIGURATION.pdf