So Long, and Thanks for All the Fish: Understanding the ICJ ruling on the Chile-Peru border dispute

On January 27, the International Court of Justice (ICJ) in The Hague ended a six-year legal dispute over the maritime boundary between Chile and Peru. The ruling questions the applicability of older international treaties to present disputes and highlights an interesting trend towards fairness within the ICJ.

Ruling largely in favor of Peru, the ICJ invalidated Chile’s claim to approximately eight thousand square miles of the Pacific Ocean off the coast of the northern border that had previously been a part of that country’s exclusive economic zone. In addition, Peru was awarded nearly eleven thousand square miles, considered to be international waters until now. The decision to limit Chile’s claim has already been met with wide criticism from Chilean politicians, some of whom have called for the country’s withdrawal from The Hague. The full text of the ruling can be found here.

First of all, let’s be clear about the verdict. Despite a rash of headlines, the ICJ spent half a decade determining a “fair” partitioning of the disputed territory. While Peru may seem to have come out ahead after the ruling, this is only because the disputed territory was previously considered to be wholly under the control of the Chilean government. Anything less than a 100 percent affirmation of Chile’s favored line would be perceived as a loss.

Why Peru was able to lay claim to the disputed waters is complex. Maritime boundaries are notoriously tricky and their demarcation was largely ignored until the latter part of the twentieth century. The dispute at hand was born of the nineteenth century War of the Pacific, in which Chile conquered a sizeable portion of Peruvian territory as well as the former Bolivian coastline. While Peru and Chile established a land boundary soon after, they never determined ownership of the surrounding waters beyond vague claims to certain maritime rights two hundred nautical miles from their respective coasts.

How one draws a line from the coast is up for some debate, so maritime disputes naturally arise. The previously held boundary, favored by Chile throughout the current dispute, was a parallel boundary extending from the end of the recognized territorial border. Peru, on the other hand, believed that the maritime boundary should reflect an equidistant line that would run perpendicular to the natural slope of the South American coast.

In an outcome confusing to the uninitiated, the boundary that results from the ICJ’s Monday ruling, which can no longer be contested, differs from both of these claims. So what’s the logic behind the Court’s line?

The ICJ ruled that Chile and Peru had previously recognized an all-purpose maritime boundary in a series of treaties at the beginning of the 1950s, most crucially the 1954 Special Maritime Frontier Zone Agreement. The 1954 agreement recognizes a boundary along the parallel line favored by Chile in order to conduct small-scale fishing between the two countries. In the Court’s opinion, acknowledgement of the boundary extends only up to the point that such activity was common at the time it was signed. With boats incapable of travelling much further than 60 nautical miles it is unlikely that at the time of the agreement it was seen as extending out to 200 nautical miles. Past this point (extended to 80 miles in the ruling) the boundary should default to an equidistance line to ensure equitable division of resources to both countries.

The logical back-bending is best explained by recent trends in the ICJ. Over the last few years, the ICJ is perceived to have placed a greater weight on the fairness of divisions, undercutting the role of treaties and historical possession of territory. In 2012 for instance, Nicaragua was awarded nearly 30,000 square miles of the Caribbean Sea that had belonged to Colombia for over two hundred years in the face of an explicit treaty agreement because it was perceived that the treaty was signed by Nicaragua partially under duress of U.S. occupying forces. The Peru-Chile ruling should be seen as a continuation of this fairness doctrine, guaranteeing a roughly equal share to both parties while deftly avoiding upending the status quo.

What’s at stake? Fish, mostly. To be more precise, one of the richest fishing zones in the world. The disputed area is part of the Humboldt Current Large Maritime Ecosystem that supports roughly 20% of the world’s fishing. The Peruvian fishing industry estimates the catch in the disputed area to be worth around $200 million annually. The majority of these valuable waters are a 250,000 ton annual anchovy catch retained by Chile after the court’s ruling.  However, local fishermen are still concerned that the change will affect their livelihood as Peruvian fishermen cut in on their former deep Pacific waters, waters that are worth up to $40 million annually. In Arica, a Chilean fishing town near the northern border, hundreds of such fishermen took to the streets following the ruling and waving black and Chilean flags to protest the lost waters. The Chilean government has already pledged to assist any fisherman who is negatively affected by the verdict.

The ruling by the ICJ illustrates a continuation of their recent policy toward fair division of disputed waters. While not wholly unexpected, the ruling does call into question the value of international treaties when such disputes arise.

[caption id="attachment_849" align="alignnone" width="300"] (A) Disputed Lines[/caption]

[caption id="attachment_850" align="alignleft" width="300"] (B) New Boundary[/caption]