Rejoinder of the Government of Chile

INTERNATIONAL COURT OF JUSTICE MARITIME DISPUTE (PERU v. CHILE) REJOINDER OF THE GOVERNMENT OF CHILE VOLUME I 11 JULY 2011 TABLE OF CONTENTS page GLOSSARY OF PRINCIPAL DEFINED TERMS, ABBREVIATIONS AND ACRONYMS ix LIST OF FIGURES IN VOLUME I xiii CHAPTER I INTRODUCTION 1 Section 1. This Case concerns the Legal Source and Character of the Parties’ Agreed Maritime Boundary 1 Section 2. Major Problems in Peru’s Case 11 Section 3. Key Evidence of the Parties’ Acknowledgement, Implementation and Enforcement of their Agreed Maritime Boundary 18 A. AGREEMENT ON ARTICLE IV OF THE SANTIAGO DECLARATION WAS CONFIRMED AT THE 1954 INTER- STATE CONFERENCE 18 B. THE AGREEMENT RELATING TO A SPECIAL MARITIME FRONTIER ZONE 1954 20 C. PERU’S SUPREME RESOLUTION DEFINING THE LIMITS OF ITS MARITIME ZONE 21 D. THE DIEZ CANSECO INCIDENT 22 E. THE 1968 MINUTES 24 F. THE 1968 EXCHANGE OF NOTES 25 G. PERUVIAN NOTE OF 13 AUGUST 1969 26 H. THE 1969 ACT 27 I. CONSULTATION ON POTENTIAL BOLIVIAN MARITIME ZONE IN 1976 28 i J. RESOLUTIONS OF THE HARBOUR MASTER OF ILO IN 1989 29 K. CONCLUSION 30 CHAPTER II THE GOVERNING INSTRUMENTS 33 Section 1. The Unilateral Proclamations of 1947 33 Section 2. The Santiago Declaration of 1952 41 A. THE SANTIAGO DECLARATION HAS ALWAYS BEEN A TREATY 42 1. The Santiago Declaration is an Instrument of ‘Positive Law’ 45 2. The Santiago Declaration established Binding Legal Obligations 47 3. The Title and Form of the Santiago Declaration 52 4. Ratification of the Santiago Declaration under Domestic Law 54 5. Relevance of Registration of the Santiago Declaration by the United Nations 55 B. THE DELIMITATION ASPECT OF THE SANTIAGO DECLARATION 57 1. Peru’s Maritime Projection at the Time of the Santiago Declaration 59 2. Minutes of the 1952 Santiago Conference 63 3. The Text of Article IV of the Santiago Declaration 66 4. Acknowledgement of the Maritime Boundary by Peru’s Congress 73 5. Regional Discussion in 1952 of the Obligation to Establish Maritime Boundaries by Agreement 77 Section 3. The Agreements of 1954 Confirming the Maritime Boundary 79 ii A. THE 1954 MINUTES 79 B. THE 1954 AGREEMENT RELATING TO A SPECIAL MARITIME FRONTIER ZONE 84 1. The Title of the Agreement 84 2. The Purpose and Effect of the Agreement 85 3. “The maritime boundary between the two countries” 86 4. The Treatment of Existing Lateral Boundaries in 1954 90 5. The 1954 Agreement Relating to a Special Maritime Frontier Zone and the 1952 Santiago Declaration are to be Read Together 93 6. The Statement by Mr. Cristóbal Rosas 95 Section 4. The Parties’ Agreement in 1968-1969 to Signal their Maritime Boundary 98 A. THE LIGHTHOUSES WERE TO SIGNAL THE MARITIME BOUNDARY, NOT THE LAND BOUNDARY 99 B. THE LIGHTHOUSES WERE TO SIGNAL THE MARITIME BOUNDARY, NOT AN AD HOC FISHERIES POLICING LINE 105 Section 5. Hito No. 1 as the Agreed Reference Point for the Maritime Boundary Parallel 111 A. INTRODUCTION: PERU’S ATTEMPTS TO UNSETTLE THE MARITIME BOUNDARY 111 B. CHILE AND PERU CONSENSUALLY DETERMINED HITO NO. 1 AS THE REFERENCE POINT WITH FULL KNOWLEDGE OF ITS LOCATION 112 C. HITO NO. 1 WAS AGREED TO BE THE POINT WHERE THE “LAND FRONTIER REACHES THE SEA” UNDER THE SANTIAGO DECLARATION 115 D. INTERNATIONAL LAW PERMITS THE USE OF HITO NO. 1 AS THE REFERENCE POINT FOR THE CHILE-PERU MARITIME BOUNDARY 122 iii E. PERU UNILATERALLY DECLARED POINT 266 AS PART OF ITS CHALLENGE TO THE EXISTING MARITIME BOUNDARY 126 F. ABSENCE OF JURISDICTION OVER THE LAND BOUNDARY 129 CHAPTER III THE PRACTICE OF THE PARTIES 133 Section 1. Peru’s Supreme Resolution (1955): Implementation of the Boundaries Agreed in Article IV of the Santiago Declaration 134 Section 2. Protocol of Accession to the Santiago Declaration (1955) 138 Section 3. Peru’s Acknowledgement of the Maritime Boundary in the Context of a Possible Access to the Sea for Bolivia (1975-1976) 140 Section 4. The Parties’ Cartographic Depiction of the Maritime Boundary 146 A. PERU OFFICIALLY AUTHORIZED THE DEPICTION OF ITS “MARITIME DOMINION” BOUNDED BY PARALLELS TO THE NORTH AND SOUTH 149 B. IRRELEVANCE OF TWO MAPS RELIED UPON BY PERU 153 Section 5. Practice of Peru and Chile Confirming Chile’s Entitlement South of the Parallel of Hito No. 1 154 A. INTRODUCTION 154 B. ENFORCEMENT OF THE MARITIME BOUNDARY 157 1. Peru’s Enforcement of the Boundary Line 157 2. Chile’s Capture of Peruvian Fishing Vessels to the South of the Parallel 160 C. MONITORING OF ENTRY INTO, AND EXIT FROM, THE MARITIME ZONES OF PERU AND CHILE BY DOMESTIC AND FOREIGN VESSELS 162 iv 1. Peru 162 2. Chile 165 D. GEOGRAPHIC SCOPE OF THE JURISDICTION OF THE NAVAL AND MARITIME AUTHORITIES OF PERU AND CHILE 166 1. Peru 167 2. Chile 169 E. PERU’S AIRSPACE IS BOUNDED BY TWO PARALLELS, TO THE NORTH AND THE SOUTH 171 F. THE LINES DIVIDING VARIOUS ZONES UNDER THE IMO AND ICAO RÉGIMES HAVE BEEN ALIGNED WITH THE MARITIME BOUNDARY 173 1. Division of the FIRs of Chile and Peru 174 2. Division of the NAVAREAs of Chile and Peru 175 3. Division of the Maritime SAR Regions of Chile and Peru 177 G. CONTROL OF EXPLOITATION OF LIVING RESOURCES BY PERU AND CHILE IN THEIR RESPECTIVE MARITIME ZONES 177 1. Peru 178 2. Chile 179 H. SCIENTIFIC RESEARCH IN WATERS SOUTH OF THE MARITIME BOUNDARY 181 I. SUBMARINE CABLES ON PERU’S CONTINENTAL SHELF 184 Section 6. Chile’s Internal Note of 1964 and the Bákula Memorandum of 1986 confirm the existence of a maritime boundary 185 A. CONFIRMATION OF A MARITIME BOUNDARY BETWEEN CHILE AND PERU IN 1964 186 B. THE BÁKULA MEMORANDUM OF 1986 WAS AN ISOLATED PROPOSAL TO RENEGOTIATE THE EXISTING MARITIME BOUNDARY 187 v CHAPTER IV THE POSITION OF ECUADOR 194 Section 1. The Historical Record between Ecuador and Peru 195 Section 2. Diplomatic Events since Peru’s Initiation of these Proceedings 201 A. PERU’S JUNE 2010 LETTER TO ECUADOR 201 B. ECUADOR’S NAUTICAL CHART DEPICTING THE BOUNDARY PARALLEL WITH PERU 203 C. DISCUSSION OF THE ECUADOR BOUNDARY IN PERU’S PLEADINGS 206 CHAPTER V WIDESPREAD INTERNATIONAL ACKNOWLEDGEMENT OF THE PARTIES’ AGREED BOUNDARY 212 Section 1. Third States 213 Section 2. International Organizations 215 Section 3. Publicists 219 Section 4. Orthodox and Revisionist Peruvian Authors 221 Section 5. Acknowledgment of the Chile-Peru Maritime Boundary in the Limits in the Seas Series of the United States Department of State 230 A. LIMITS IN THE SEAS ACKNOWLEDGED THE EXISTENCE OF THE MARITIME BOUNDARY — 1979-2000 230 B. WIDESPREAD ACKNOWLEDGMENT BEFORE LIMITS IN THE SEAS NO. 86 (1979) 232 CHAPTER VI STABILITY OF BOUNDARIES AND THE SETTLED PRACTICE 234 vi Section 1. Bilateral Conduct Demonstrating the Parties’ Agreement that the Boundary had been Settled 236 Section 2. Peru’s Enforcement of the Agreed Boundary 239 Section 3. Peru’s Confirmation of the Agreed Boundary 242 Section 4. The Settled Practice Demonstrates the Existence of a Maritime Boundary, not a “Fisheries Policing Line” 245 CHAPTER VII THE ALTA MAR AREA: PERU’S ALTERNATIVE SUBMISSION 250 Section 1. The Parallel was agreed as a Lateral Limit regardless of the Seaward Extent of either State’s Maritime Zone 253 Section 2. Peru’s Unilateral Change in measuring its Seaward Projection cannot change the Agreed Southern Limit of its “Maritime Dominion” 258 Section 3. Ecuador’s Straight Baseline and an Alta Mar Area 260 Section 4. The Alta Mar Area is treated as High Seas 261 A. PERU’S CONTROL OF SHIPS ENTERING PERU’S “MARITIME DOMINION” ACKNOWLEDGES THAT THE ALTA MAR AREA IS HIGH SEAS 261 B. PERU’S CONTROL OF AIRCRAFT ENTERING ITS “MARITIME DOMINION” ACKNOWLEDGES THAT THE ALTA MAR AREA IS HIGH SEAS 264 C. PERUVIAN VESSELS TREAT THE ALTA MAR AREA AS HIGH SEAS 265 D. TREATMENT OF THE ALTA MAR AREA AS HIGH SEAS IN THE TRANSIT OF SCIENTIFIC VESSELS 266 vii Section 5. Peruvian Authors Acknowledge that the Alta Mar Area is High Seas 267 Section 6. Implications of Absorption of the Alta Mar Area into Peru’s “Maritime Dominion” 269 Section 7. Alta Mar Situations are Possible in Law and Occur in Practice 274 CHAPTER VIII SUMMARY 280 CHAPTER IX SUBMISSIONS 285 APPENDIX A: HISTORICAL DEVELOPMENT OF TECHNIQUES TO MEASURE THE OUTER LIMIT OF MARITIME ZONES 286 LIST OF ANNEXES (VOLUMES II - IV) 305 LIST OF DOCUMENTS DEPOSITED WITH THE REGISTRY 323 viii GLOSSARY OF PRINCIPAL DEFINED TERMS, ABBREVIATIONS AND ACRONYMS 1929-1930 Mixed Mixed boundary commission comprising delegates of Commission Chile and Peru, constituted in 1929 pursuant to Article 3 of the Treaty of Lima 1930 Final Act Final Act (Acta Final) signed on 21 July 1930 by the Chilean and Peruvian delegates to the 1929-1930 Mixed Boundary Commission 1947 Chilean Official Declaration by the President of Chile of Declaration 23 June 1947 1947 Peruvian Peruvian Supreme Decree No. 781 of 1 August 1947 Supreme Decree 1952 Conference Conference on Exploitation and Conservation of the Maritime Resources of the South Pacific, held in Santiago in August 1952 1952 Minutes Minutes of the meetings of the 1952 Conference 1954 CPPS Meeting Meeting of the Permanent Commission of the Conference on Exploitation and Conservation of the Maritime Resources of the South Pacific, held in Santiago, Chile in October 1954, in preparation for the 1954 Inter-State Conference 1954 Inter-State Second Conference on Exploitation and Conservation Conference of the Maritime Resources of the South Pacific, held in Lima in December 1954 1954 Minutes Minutes of the 1954 Inter-State Conference 1955 Supreme Peruvian Supreme Resolution No.

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