Pragmatism Wins the Day in ICJ's Maritime Dispute Ruling Involving Peru and Chile
Earlier today, the International Court of Justice (ICJ) issued its much-anticipated decision on the maritime dispute brought by Peru against Chile. In its claim, Peru argued that no agreed maritime boundary existed between Peru and Chile, and asked the Court to “plot a boundary line using the equidistance method in order to achieve an equitable result.” Given the shape of the respective coastlines up to their land border, application of the equidistance method would have given Peru a maritime zone that essentially ran at a southwest diagonal from the land boundary.
News reports suggest that the fishing rights impacted by the decision constitute a $200 million dollar industry, including some of the richest anchoveta (anchovy) fisheries in the world. For Peru and Chile, the case implicated a history of bad feelings on both sides dating to a war in the 19th century and various treaties and agreements since that time. It stood the chance of destabilizing the ever-closer partnership developing between the two countries, and political leaders on both sides were summoning the highest level meetings and taking other steps in preparing for public reactions to the case, which has been headline news in both countries for weeks.
Chile argued that there was an agreed boundary, which ran seaward to the west on a parallel.
The decision was typically Solomonic for the Court’s resolution of a potentially incendiary dispute – the map below, which superimposes the parties boundary claims with the Court’s decision, shows just how closely it “split the baby.”
The Court first had to determine whether there was an agreed maritime boundary between Chile and Peru. It concluded, based on the 1947 Proclamations of Chile and Peru, the 1952 Santiago Declaration and various 1954 Agreements, that the parties had agreed to an all-purpose maritime boundary. In terms of the extent of that boundary, the Court relied primarily on the historical practice of the parties, which largely involved the exercise of fishing rights by “small fishing boats” of each nation. The Court concluded that the agreed boundary extended to 80 nautical miles from the agreed land boundary, along a parallel. This point was marked as “Point A” by the Court.
To determine the boundary from Point A seaward, the Court proceeded on the basis of the Articles 74 and 83 of the UN Law of the Sea Convention (“UNCLOS”) to apply its usual three-stage methodology: (1) “to construct a provisional equidistance line unless there are compelling reasons preventing that”; (2) to “consider whether there are relevant circumstances which may call for an adjustment of that line to achieve an equitable result”; and (3) “to conduct a proportionality test to assess whether the effect of the line, as adjusted, is such that the Parties respective shares of the relevant area are markedly disproportionate to the lengths of their relevant coasts.”
The Court, consistent with practice and UNCLOS, then drew a diagonal from Point A heading in a south-westerly direction a further 120 nautical miles until it reached “the 200-nautical mile limit measured from the Chilean baselines (Point B).” At that point, there was a short, further extension of the boundary to a Point C, to where the 200-nautical mile limits of both parties intersected.
In sum, the decision gave both parties something, and by doing so, calmed a potentially incendiary situation. The Court sided with Chile in enforcing the first 80 miles of the boundary on a line parallel to the equator. Thus, Chile preserves some of the most productive fishing grounds it might otherwise have lost. However, the Court agreed with Peru in setting a maritime boundary that extends from the 80-nautical mile point along a line that is equidistant from both countries’ coasts. This opens a considerable portion of formerly Chilean fishing waters to Peru.
As a general matter, pragmatism won the day. What is significant here is the Court’s reliance on the practice of the parties in the “pre-200 nautical” mile era, and its willingness to reach an overall pragmatic conclusion by extending the boundary invoking more recent custom as well as UNCLOS (i.e., use of an equidistant line based on the shape of coastlines rather than running along a parallel). Other international disputes, particularly between Chile and Bolivia, remain unsolved and pending before the ICJ, and this decision suggests that the current members of the Court will continue to look carefully at actual treaties, agreements, and practices between the parties and may be expected to reach decisions that are not significantly disruptive of that history and practice.