INTERNATIONAL JOURNAL OF LAW ... - Ejournal2 Undiksha

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63 Available online at https://ejournal2.undiksha.ac.id/index.php/IJLTC/issue/archive

SETTLEMENT OF SEA BORDER DISPUTES BETWEEN PERU AND CHILI IN INTERNATIONAL LAW PERSPECTIVE

Adelaide Patricia Kahumbu

Fakultas Hukum dan Ilmu Sosial, Universitas Pendidikan Ganesha, Email: [email protected]

Info Artikel Abstract Masuk: 1 April 2022

Diterima: 23 Mei 2022 Terbit: 1 Juni 2022 Keywords:

position, international law, national law

Corresponding Author:

Karina Sukmaningrum email:karina.sukmaningrum

@undiksha.ac.id

A dispute is a disagreement about a matter of fact, law or policy where a claim or statement from one party is met with a denial, retaliation, or denial by the other. The dispute between Peru and Chile began when the two countries became neighbors after Bolivia ceded its coastal areas to Chile as a result of the defeat of the Pacific War. In this case, Peru chose a peaceful settlement of maritime border disputes with Chile through legal channels by submitting an application to the International Court of Justice. The International Court of Justice's rulings Peru and Chile both agree that Chile has a lateral limit to 80 nm and some of the richest fisheries in the claim area overlap and Peru has an equidistant boundary from that point to 200 nm which gives about 21,000 km2 of the disputed 38,000 km2

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Introduction

International law is a rule that regulates relations between countries that are cross-border. Each State is not obliged to be bound or subject to international law, but it is handed back to each country to comply or not to international law (Sugiadnyana, 2020). According to Mochtar Kusumaatmadja International law is the whole of the rules and principles governing relations or issues that cross state borders (international relations) that are not civil (Sefriani, 2016:2).

International law can be defined as a set of legal provisions that apply to countries in their relationship (Mangku, 2020: 5) According to John O'Brien, international law is a legal system that is primarily concerned with relations between countries (Sefriani, 2016: 2). International Law Terms (International Law) and the Law of Nations (Law of Nations) according to Oppenheim, he points out that the two terms are actually not exactly the same, each term has a different material scope. It is said that international law includes 2 parts, namely public international law and international civil law (Istanto, 2010: 3).

International maritime law is all the rules or legal rules which regulate the rights and authorities of a country over the marine area under the jurisdiction of its country (Sholikah, 2020). The agreement on international seas has been stated in the 1982 UNCLOS regulation which is divided into three parts, namely, first, the sea is the sovereign territory of a country, such as the territorial sea and the inland sea. The two seas which are not the sovereign territory of the State but the State has certain rights and jurisdiction over activities in the sea such as the EEZ Sea. The three seas are really not the territory of the State's sovereignty and are not rights and jurisdictions, however the Country have to importance in the sea, namely the free sea (Windari, 2009:18). Maritime zones that are included in full sovereignty are inland ships, archipelagic waters and the territorial sea.

View from perspective according to the law, a State territory determines the scope of the application of the national law of a country, but from a political point of view the territory of a State and the boundaries of the State is a power so that everything that is in the territory of the State must be protected and defended (Bangun, 2017). ). In this case, it is clear that a country's territory will coexist with another country's territory, this requires the state to live side by side with other countries in peace and mutual respect (Thantowi, 2002). The importance of territory for the existence of a country often

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causes several seizures of a country's territory by other countries, the claimed area is usually a land area, sea area, or even seizure of islands (Setiawati, 2019).

Discussions on international sea law cannot be separated discusses the history of the formation and the rule of law that regulates the International Law of the Sea, but includes disputes over the seizure of a territory, the boundaries of each country and discusses other matters relating to international law of the sea. In international law of the sea, there have been many disputes regarding the seizure of the territorial boundaries of a country with other countries. According to Merrlis, a dispute notis a understanding about something (Sefriani,

2016:297).

A dispute is a disagreement regarding a matter of fact, law or policy where a claim or statement from one party is met with a refusal, retaliation, or rejection by the other (Lantang, 2013). Territorial disputes in general can be caused by two things, namely in the form of claims against all parts of the territory of the State, or can also be in the form of claims against all parts of the territory of the State.bordering (Kusumaatmadja, 2003:164)

Settlement of a dispute according to international law in two ways, namely by peaceful dispute resolution and violent dispute resolution. The disputing parties in resolving disputes, in international law every country that has a dispute, is obliged to resolve the dispute through peaceful means first.

Peaceful dispute resolution can be divided into 2, namely the Political Path and the Legal Path (Sefriani, 2016: 297). The parties to the dispute if in resolving the dispute cannot resolve the dispute by peaceful means, then in international law para the party who disputants can resolve their disputes through violence. There are 2 ways to resolve disputes violently, namely through the War Path and the Non- War Path.

The dispute between Peru and Chile began when the two countries became neighbors after Bolivia deliver area coast to Chile as a result of the defeat of the Pacific War. In the Ancon treaty, 1883, Peru also had to cede ownership of the coastal Province of Tarapaca to Chile for 10 years, followed by a plebiscite to determine whether the province was permanently under Chilean rule or continued to be part of Peruvian territory.

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Discussion

The Beginning of the Dispute

The dispute between Peru and Chile began when the two countries became neighbors after Bolivia ceded its coastal areas to Chile as a result of the defeat of the Pacific War. Under the Ancon treaty, 1883, Peru also had to cede ownership of the coastal Province of Tarapaca to Chile for 10 years, followed by a plebiscite to determine whether the province was permanently under Chilean rule or continued to be part of Peruvian territory (Rosita, 2021).

After more than four decade difficult negotiations about Tacna and arica, representatives from Peru and Chile finally signed the Treaty of Lima and an additional protocol on June 3, 1929. This treaty settled on Tacnaz and Arica, whereby Tacna returned to Peru while Arica remained part of Chile. In addition, the Chilean government agreed to provide Peru with a wharf, customs office, and railway station in the Gulf of Arica and to pay Peru cash compensation.

While the dividing line between the two countries should start from the coastal point named Concordia, ten kilometers north of the Lluta river bridge and continue eastward parallel to the Chiliz section of Arica. Peru received back the Province of Tacna on August 28, 1929, before the demarcation process began. In 1947 the two countries unilaterally claimed maritime rights of 200 miles along their coast. This was triggered by the Proclamation of the President of the United States, Truman, on September 28, 1945, which issued a claim to the continental shelf and stated that The state controls the resources of the soil layer and the seabed below it. However, fisheries and water resources remain subject only to jurisdictional regulations. The President of Chile issued a Declaration on his country's claims on June 23, 1947, while Peru issued Supreme Decree No. 781 on August 1, 1947.

The two countries have also signed various agreements on the norms of their international maritime policy. In 1952 Peru and Chile, together with Ecuador, began a process of maritime cooperation with a view to protecting adjacent seas from predatory activities of foreign fleets. This Declaration on the Maritime Zone of August 18, 1952 (Declaration of Santiago). Three signatory countriesagreed that each country they have maritime zones not less than 200 miles wide along their coasts. This Special Maritime Boundary Zone Treaty was signed by Peru, Chile, and Ecuador in Lima on December 4, 1954. These three countries issued an agreement on border zones maritime special 10 miles, where the extent on each side of the parallel latitude forms the maritime boundary between the respective countries. The zone starts from 12 miles from the coast of each country, the purpose of which is to avoid unintentional infringement of maritime boundaries by national fishermen. In the 1954 Supplementary Convention of the Declaration of Sovereignty over the 200-mile maritime zone, there will be a general agreement in the legal defense of the principle of sovereignty over the maritime zone up to a minimum distance of 200 miles. Both Peru and Chile have passed laws regarding their waters.

In March 1966, There was an incident in the border sea area, namely when the Peruvian naval warship, Diez Canseco, responded to violations that occurred in the Chile-Peru maritime boundary by two Chilean fishing vessels (Mariette and Angamos) by firing 16shot warning from the canon.

In early 1968, at a meeting subregion in related to Deal Pacific South of Lima, Peruvian officials met with Chilean foreign ministry officials for informal discussions regarding friction arising from fishing boat activity on the coast. After the meeting Peru wrote to Chile on February 6, 1968, stating that it was good for the country to continue building outposts or dimensional and visible signs at a great distance, at the point where the common border reaches the sea, near Boundary Marker No.

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1. On March 8, 1968, Chile accepted this proposal and this was the agreement reached by the parties.

The aim is to address the problem of operating Peruvian and Chilean fishing vessels to shore by setting up beacons to identify the location of land boundaries near the coast. A meeting of the Peruvian and Chilean delegations was held on April 25, 1968 in Arica. The delegation inspected the relevant land locations and made a “view….from the sea”. On the following day a document signed by both parties recorded the approved proposals for their respective governments for the installation of two day and night signal markers, wherein the front sign is placed around the No. 1 boundary marker, in the Peruvian region; while the tail mark will be placed at about 1,800 meters from the front marking, towards the parallel maritime border, in Chilean territory.

Then on July 23, 1968, another Chilean fishing vessel, the Martin Pescador 2°, was attacked by the Peruvian patrol boat, Atico, in an area north of the parallel boundary. The ship owner was injured by gunfire. In its diplomatic note to Chile, Peru explained that the parallel line (in the process marked by the parallelism of the lighthouse) is the boundary of Chile's jurisdiction and the dividing line of the maritime zones of the two countries. The Atico as a patrol vessel had given warnings to 20 Chilean vessels carrying out activities in the region, a notice obeyed by all ships except the Martin Pescador 2°. So the patrol boats fired aimlessly for warning which resulted in the ship owner being injured unintentionally.

As is the practice carried out by Peru, Chile has also imposed maritime boundaries by capturing illegal Peruvian fishing vessels involved in fishing in waters south of international political boundaries.

Over the years, the Chilean government and navy have seized many Peruvian vessels and in some cases prosecuted for illegal fishing in Chilean waters. Following the agreement on licensing regulations for the exploitation of South Pacific resources under the auspices of the CPPS (South Pacific Permanent Commission), Chile arranged for the issuance of permits to foreign vessels fishing in Chilean territorial waters and provided that foreign vessels fishing without permits would be prosecuted. Under this regime, fishing activities in the Chilean territorial sea and EEZ require permits, and those who violate will be subject to fines. The crime not only violates the rules of traffic at sea, but also illegal activities in the Chilean territorial sea. Data available in 1984 and 1994-2009, showing the many ships found in Chilean waters.

Dispute resolution

Both Peru and Chile have different interpretations of the treaties that have been made so that there is often friction between the two countries. In 1982, Peru tried to negotiate a maritime boundary with Chile, but Chile refused on the grounds that the border between that two countries had been determined in the agreement in 1982. 1952 and 1954. In the perspective of International Law incomplete a dispute partiescan Complete dispute through Good Services. The participation of a third party in the Good Services line in this case the third party is only as a facilitator in the resolution of a dispute. However, the other party is not obliged to accept the request, in other words the request is not binding and should not be viewed as a hostile orUnfriendly Cat (Mangku, 2012)

Then on May 23, 1986, Peru officially declared its disapproval of Chile on the issue of maritime boundaries for the first time. Peru's Ambassador to Chile, Juan Miguel Bakula held a meeting with the Chancellor of Chile and explained Peru's position on maritime border issues by including a memorandum. This Bakula memorandum claims that the "formula" set out in the Special maritime boundary zone treaty is "no longer adequate to meet the security needs" of the signing and that its broad

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interpretation could result in an unfair and risky situation for Peru. On this topic there has been no official reaction from the Chilean government. Chile only responded with a press release in which Chile stated to carry out a study on the subject

On September 21, 2000, in accordance with article 16 paragraph 2; Article 75 paragraph 2; and Article 84 paragraph 2 of UNCLOS, the Chilean government submits to the SecretaryGeneral of the United Nations a graph showing a straight baseline and normal, sea territorial, zone exclusive, and continental shelf, as well as a list of geographical coordinates determined by datum geodetic15, and mentions 18°21‟00” South Latitude as the maritime boundary between Peru and Chile. Therefore, October 20, 2000, the date of the record addressed to the Chilean government, is considered the critical date of this maritime dispute, as this was the first conflicting claim over maritime boundaries between Peru and Chile. On January 9, 2001, Peru issued a statement regarding the chart submitted by Chile to the SecretaryGeneral of the United Nations, that Peru and Chile did not conclude a specific maritime boundary agreement in accordance with the relevant international law and Peru did not recognize parallels as maritime boundaries between the two countries.

Then re-negotiation efforts were carried out by Peru, in June 2004, through a diplomatic note, proposing the start of negotiations on a treaty establishing maritime boundaries under international law, namely by equidistant lines, with a period of sixty days for start negotiations. The Chilean government responded to the note on September 10, 2004, and claimed that, for Santiago, the border issue had been resolved by agreement international which concluded in the years previously between the two countries.

On November 1st 2005, The Peruvian government delivered a diplomatic note to the Chilean Ambassador in Peru, conveying a number of differences of opinion which from Chile's interpretation of the Santiago Declaration and the 1954 Treaty, alluded to Peru's persistent position where a maritime boundary exists between the two countries. On November 3, 2005, the Peruvian Parliament passed Law No. 28621 on the Peruvian Maritime Domain Baseline. The purposes of this Act are:

(1) to implement the provisions contained in Article 54 of the Peruvian Constitution;

(2) to establish accurately, for the first time, the extent of the Peruvian maritime domain; and

(3) for internal water character attributes for waters enclosed by straight baselines, where applicable.

The Chilean government stated that This law affected its sovereignty, and as a reaction, on 19 December 2006, Chile proposed the creation of a law Arica-Parinacota region‟ which aims to establish as a new territorial boundary with Peru. Responding to Chile's objection to this maritime domain law, on 29 May 2007, Peru declared that the Concordia point according to the 1929 Lima Treaty was the boundary between Peru and Chile, while the Boundary Marker No. 1 is not a boundary. Peru states that disputes between the two countries should be resolved in accordance with international law.

On July 28, 2007, the President of Peru, Alan Garcia announced the decision taken by the Government to seek an amicable settlement of this dispute by bringing the claim to the International Court of Justice. President Garcia also announced that the decision had been formally communicated to the highest authorities in Chile. On August 12 2007, in accordance with Articles 4 and 5 of Law No.

28621, Peru ratified the chart of the outer boundaries of the domain maritime sector (southern sector) by Supreme Decree No. 047-2007- RE, indicating the maritime space adjacent to Chile as an area in dispute (area en controversia). This shows that so far there is overlapping maritime zones between the

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two countries. It is also important to underline that this is the first time, after the Peruvian Supreme Decree of 1947 that claims 200 nautical miles of maritime domain.

Negotiations between the two The state has not succeeded in determining maritime boundaries, this is because both countries have an interest in the disputed area. This disputed maritime area is an area rich in fishery resources. This is supported by the Humbolt current flowing between the Chilean and Peruvian seas, Southeast Pacific Life in these Humbolt ocean currents is very productive in terms of biodiversity and overall biomass. About 18-20% of the world's fish catch comes from this Humbolt Current ecosystem, with certain species such as anchovies, sardines and whales also being important.

but now it's banned. Access to fish resources in this area is important to the Peruvian economy as a whole, and in particular to the economic wellbeing of Peruvians living in coastal areas, where fishing is a major segment of the economy in terms of both employment and food. Peru is the world's largest producer of anchovies, followed by Chile.20 In addition to the fishing industry, there is artisanal fishing operating mostly in Tacna and Moquegua. It is therefore very important for local people and the state to have access to the waters off the southern coast of Peru. However, this access has been hampered due to the absence of a maritime boundary with Chile and to avoid incidents and clashes between the two countries, International Court of Justice. It is stated in Article 38 of the Statute of the International Court of Justice, to decide in accordance with international law the disputes brought before it. The results of decisions issued by the International Court of Justice are binding on the parties to the dispute and are final and cannot be appealed. Since its establishment in 1946 in The Hague, the International Court of Justice has issued numerous decisions on various topics such as land borders, maritime boundaries, territorial sovereignty, and the use of nonviolence.

International dispute resolution is through the ICJ (International Court of Justice). In this case, the disputing countries have agreed to resolve the dispute to be referred to the International Court of Justice.

In this case, Peru chooses a peaceful settlement of maritime border disputes with Chile through legal channels by submitting an application to January 16, 2008 Peru filed application to Court International for demanding limit from zone maritime affairs with Chile in accordance with international law and to decide legally and declare Peru to have rights sovereign exclusive maritime area located within 200 nautical miles of the coast, but outside the Chilean exclusive economic zone or continental shelf. After the dispute submission process, the next stage is the defense stage where in the defense Peru and Chile have different interpretations of the agreement agreed by both parties in previous years.

According to the Peruvian Defense In the Santiago Declaration article IV it is written regarding the maritime boundaries between the Agreed on zones maritime not less than 200 miles. According to the article, the method that will be claimed exclusively to the maritime zone of the island is from the geographical parallel point where the land boundaries of each country reach the sea. Peru considers that Article IV does not apply to the situation Peru and Chile relations. As a result, the Santiago Declaration did not include an agreement on the boundaries between the zones common maritime law of the signatory countries.

According to Chile's

Defense In contrast to Chile, according to Chile, the Santiago Declaration establishes binding legal obligations. This is stated in Article II, namely: “The governments of Chile, Ecuador and Peru

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declare as policy norms maritime their international that each has exclusive sovereignty and jurisdiction over the sea along the coast so that each for to move 200 nautical miles from the coast”. This stipulation relates to the maintaining the state party's international maritime policy does not diminish its obligations.

Next Chapter III states that exclusive sovereignty and jurisdiction over maritime zones should also include sovereignty exclusive and jurisdiction over the seabed and land in it. This includes legal rights relating to maritime areas including the continental shelf.

The Santiago Declaration contains the principles and is considered further, a more specific agreement on the further implementation of those principles,as following (ICJ, 2011):

two instruments which signed on year 1954 and 1955 which relating to the issuance of permits for the exploitation of maritime resources (both living and non-living) in the maritime zones of Chile, Ecuador and Peru

Agreement related with size supervision and control maritime zone signatory countries in 1954 Treaty relating to the 1954

Special Maritime Boundary Zone creating zones tolerance on both sides of the maritime boundaries already separated in the Santiago Declaration

Decision Court International

Court International decide in accordance with Article 55 of the Statute which will be decided by a majority vote of the judges present. In the event that the judge's decision is final, without appeal and binding on the parties. The Court determines maritime boundaries between the parties without determining geographical coordinates.

It reminds that there has been no request to do so in the final delivery party. Therefore, the International Court of Justice hopes that the parties will determine this with the appropriate coordinates with the decision in the good faith of each party to make good neighbors.

The verdict is read on January 27, 2014 by Chief Justice Peter Tomka which was broadcast live on national television. Peru and Chile said they would abide by whatever the outcome of the International Court of Justice's ruling on their dispute. Peaceful resolution of boundaries This maritime dispute must be considered a good state relationship considering that the origin of this dispute is from hostility and overlapping powers. It is clear here that the International Court of Justice succeeded in reaching a reasonable compromise between the absolute positions desired by Peru and Chile.

As is decision the Peruvian and Chilean International Courts of Justice both agree Chile has a lateral limit to 80 nm and some of the richest fisheries in the area of overlapping claims. And Peru has an equidistant boundary from that point to 200 nm which gives about 21,000 km2 of the disputed 38,000 km2. Thus, both parties can claim victory to a certain extent that has been agreed according to territorial boundaries. Decisions generally stick to the proposition that maritime boundary delimitation is a fair solution. The court in its decision is proactive in achieving a result that has been requested and submitted. The parties are impartial and lean towards one of the parties.

Conclusion

From the explanation above, we can see that Peru is trying to resolve its maritime border dispute with Chile Through Court International. The reason is because the International Court of Justice decides the disputes submitted to it in accordance with international law, the results of the decisions

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issued by the International Court of Justice are binding on the parties to the dispute, the Court's decisions are final and cannot be appealed. After Peru's application was submitted, the Court provided an opportunity to present a defense to the disputing parties. The Court has determined the course of the maritime boundary between the parties without specifying the exact geographical coordinates because it has not been asked to do so. On 27 January 2014, the Court officially issued a ruling on this dispute.

Both parties stated that they would comply with the decision of the International Court of Justice. Based on the decision issued by the Court, both sides can claim victory until limit certain.Decision by general inherent in the proposition that maritime boundary delimitation is a just solution. The court in its decision is proactive in achieving the requested result without taking sides.

Here it can be concluded that the Court as a judicial body international could give guarantee in complete dispute intenationally and fairly and the results of the decision have legal force which binding.The verdict This Court is final and without appeal to the parties concerned, calmer and more rational in order to resolve this dispute.

Peru strive pefinish border dispute the sea with Chile through Court International is the International Court of Justice is more entitled and resolves problems in accordance with international law, because the results of the International Court of Justice are binding on the parties to the dispute in addition to binding the decisions of the International Court of Justice, which are final and cannot be appealed. In order to avoid disputes in the future between Peru and Chile, the parties must obey the decisions of the International Court of Justice so as not to cause conflicts in the future.

Suggestion

The suggestions that can be given to the two countries are for Peru and Chile to be able to leave selfishness each for could to resolve this dispute, Peru and Schili should sit down together again to be able to carry out negotiations with the same thoughts.

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Mangku, D. G. S. (2021). Pemenuhan Hak Asasi Manusia kepada Etnis Rohingya di Myanmar. Perspektif Hukum, 21(1), 1-15.

Mangku, D. G. S., & Itasari, E. R. (2015). Travel Warning in International Law Perspective. International Journal of Business, Economics and Law, 6(4).

Mangku, D. G. S., & Yuliartini, N. P. R. (2021). Fulfillment of Labor Rights for Persons with Disabilities in Indonesia. International Journal of Criminology and Sociology, 10, 272-280.

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Mangku, D. G. S., Yuliartini, N. P. R., Suastika, I. N., & Wirawan, I. G. M. A. S. (2021). The Personal Data Protection of Internet Users in Indonesia. Journal of Southwest Jiaotong University, 56(1).

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