Current Legal Developments International Court of Justice

THE INTERNATIONAL JOURNAL OF MARINE The International Journal of AND COASTAL Marine and Coastal Law 30 (2015) 361–370 LAW brill.com/estu

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Ocean Order in South America: The Maritime Dispute between Peru and Chile

On 27 January 2014, the International Court of Justice (ICJ) delivered its judgment in the Maritime Dispute (Peru v. Chile) case.1 This judgment addresses a number of important issues in relation to the delimitation of maritime boundaries, including the treatment of existing maritime boundaries, the use of the three-stage methodology and the procedure of the ICJ. This contribution out- lines the background to the dispute and aims to analyse the main issues arising from the judgment.

Background to the Dispute

The maritime dispute between Peru and Chile can be traced back to the time the countries obtained independence from Spain. However, it was the discov- ery of guano along the coastline of the Atacama Desert and the subsequent inland exploration for nitrate that contributed to the territorial tensions in the region, and which ultimately changed the political map of South America. The War of the Pacific (1879–1883) between Chile and the joint forces of Peru and Bolivia2 resulted in a redrawing of the boundaries, with Peru and Chile emerging as new neighbours.3 The Treaty of Peace and Friendship (‘Treaty of

1 Maritime Dispute (Peru v Chile) Judgment of 27 January 2014, available at: (hereafter Peru/Chile). 2 Bolivia withdrew from the war in November 1879. 3 Peru and Chile previously shared a border with Bolivia. For a background to the dispute, see: R B St John, ‘The Bolivia-Chile-Peru Dispute in the Atacama Desert’ (1994) 1(6) Boundary &

Ancón’), adopted by Chile and Peru in 1883,4 set out the permanent annexation of the present day Tarapacá region to triumphant Chile, whereas the Provinces of Tacna and Arica were to be administered by Chile for a period of 10 years, after which their fate would be decided by plebiscite through popular vote.5 However, both nations disputed the terms of the plebiscite.6 The negotiation of an agreement to resort to arbitration,7 and resultant arbitration between 1923–1924 had little effect as the award issued by US President Calvin Coolidge was never adopted.8 In 1929, Chile and Peru resorted to mediation with the United States, and eventually a settlement was reached through the Treaty for the Settlement of the Dispute regarding Tacna and Arica (‘Treaty of Lima’).9 According to this treaty, Chile maintained sovereignty over Arica and Peru reacquired sovereignty over Tacna.10 Both the Treaty of Ancón and the Treaty of Lima aimed to establish post-war territorial boundaries and put aside all issues between the two States. However, neither agreement aimed to establish a maritime boundary.11 Between 1986 and 2003 diplomatic exchanges and attempts at negotiation occurred between Peru and Chile with regard to the maritime issue. In 2004, negotiations came to a formal close.12 Peru filed an application before the ICJ on 16 January 2008.13 As Peru is not a party to the United Nations Convention on the Law of the Sea (LOSC),14 the jurisdiction of the Court was based on

Territorial Briefing 1–38 at 32; A V Horna, ‘Maritime Dispute (Peru v. Chile): Background and Preliminary Thoughts’ (2009) 23 Ocean Yearbook 193–229; D A McCray, ‘Eternal Ramifications of the War of the Pacific’ (Master’s Thesis, University of Florida, 2005) at 99. 4 Treaty of Peace and Friendship between Chile and Peru (signed Lima 20 October 1883, Ratifications Exchanged 28 March 1884), British and Foreign State Papers 74 (1882–3) 349–352. 5 Ibid., Article III at 350. 6 Horna (n 3) at 197. 7 Protocol of Arbitration between Chile and Peru, with Supplementary Act (Washington, 20 July 1922) LNTS 21, 1923–4, 141–146. 8 Tacna-Arica Question (Chile, Peru), RIAA, Vol. II, 4 March 1925, pp. 921–958. 9 Treaty for the Settlement of the Dispute regarding Tacna and Arica, with Additional Protocol, between Chile and Peru (Lima, 3 June 1929) 1929 LNTS 94, 401–411. 10 Detailed in: R B St John, ‘Chile, Peru and the Treaty of 1929: The Final Settlement’ (2000) 8(1), Boundary and Security Bulletin 91–100 at 92. 11 Horna (n 3) at 198. 12 Comunicado Oficial RE/22-04 del Ministerio de Relaciones Exteriores del Perú (Official Communication RE/22-04 from the Ministry of Foreign Affairs of Peru), (Lima, 11 September 2004) 1. 13 Horna (n 3) at 204–206. 14 United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 396.

The International Journal of Marine and Coastal Law 30 (2015) 361–370