Chile v. Peru: the ICJ’s future in Latin America

Renzo Forastiero
23 February 2014

Last month the International Court of Justice (ICJ) in The Hague ruled to shift the maritime border between Peru and Chile, awarding around 20000 km2 of territorial waters to Peru. While Peru had a strong case, many overlook the emerging threat to peace and stability posed by such rulings.

Image credit: The United Nations Organisation

Image credit: The United Nations Organisation

 

The dispute between Chile and Peru can be traced back to the Pacific War, when severe Economic depression on both sides led to a dispute over nitrate mining rights escalating to war. Chile thus occupied Bolivia’s seacoast and Peru’s southernmost province. Following years of mediation, in 1929 US President Herbert Hoover brokered a deal whereby the border would be set somewhere between the Peruvian city of Tacna and the (now) Chilean city of Arica.  A bi-national commission thereby set the border at parallel 18º21’00″ South, but was (at least in Peru’s view) never ratified by Peru. The Peruvian government always intended the border to be a bisector, equidistant from both coasts—starting at the land border, 200 nautical miles into the sea.

In 2008, following a surge in rhetoric from the Peruvian government on the issue, Peru formally introduced its case to the ICJ. In January 2014 the court finally ruled that the maritime border would be kept as it was for 80 nautical miles, and from then on, the Peruvian bisector proposition would be applied. Consequently, Chile lost a substantial amount of territorial waters and large parts of a lucrative fishing industry in the area. The decision was not well received on the streets of Santiago.

Following the ICJ’s ruling, Chile’s President requested a report on the advantages of Chile recognising the ICJ’s jurisdiction for settling border disputes.

Whether the ruling was fair or not is currently irrelevant. The real threat to stability is the fact that many countries that are unsuccessful at the ICJ are considering withdrawal. Colombia has already done so, and the case against arbitration is compelling. Chile has already lost the 530 km2 Laguna del Desierto area to Argentina and fears loosing the disputed Southern Patagonian Ice Fields—one of the largest reserves of fresh water on the planet. Additionally, Bolivia recently presented a case at the ICJ in the hopes that the court will force Chile to grant Bolivia an area of land with access to the sea. The area it lost during the Pacific War. No matter what the court decides,the Chilean government would not be willing to do this.

Several unfavourable rulings for one country can have the following implications. First, such country will begin to distrust the—supposedly impartial—tribunal. Secondly, countries with claims on territory feel rulings give them an added right over their claims. Finally, the shifting of a border by a foreign force (the ICJ) has severe effects on a nation’s pride, leading to politicians being able to score political points by disobeying them. Many Chileans feel the ruling has damaged their national image and pride, and therefore the country should stand up to the ICJ to stop Peruvian expansionism.

While a war between Chile and its neighbours is unlikely (disputes between Chile and Peru or Argentina are, for the most part, solved and Bolivia lacks the resources to fund a war) in other parts of South America, the idea is not far-fetched. Colombia withdrew from the American Treaty on Pacific Settlement (ICJ jurisdiction) and it retains several border disputes with Venezuela.

There are several lessons to be learnt from this ruling. While mediation is the most peaceful way to resolve dispute, it is not always adequate for today’s reality. The reason for this is the fact that the ICJ lacks political legitimacy amongst people from? The countries it is meant to provide justice for. Its judges are not elected or approved by democratic bodies; its rulings cannot be appealed and most importantly, it is seen as a source of foreign intervention.

While it would not be ethically right to withdraw from mediation when the result is adverse, in reality/honesty, no country is willing to give up territory only because some court, thousands of miles away, says they must.

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