STUDY GUIDE FOR JUDGES

CASE CONCERNING MARITIME DELIMITATION

BETWEEN

THE REPUBLIC OF PERU AND THE REPUBLIC OF CHILE

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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.

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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

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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

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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.

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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.

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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

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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;

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(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.

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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

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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.

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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

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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.

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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

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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

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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’.

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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.

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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

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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.

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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

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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;

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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.

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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

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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.

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- 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.

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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)

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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;

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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

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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

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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.

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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.

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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.

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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.

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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.

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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

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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

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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

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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

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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

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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

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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.

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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.

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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.”

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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

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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.

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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.

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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

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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

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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

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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

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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.

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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

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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

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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.

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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.

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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