The Chilean Mar Presencial: A Harmless Concept or a Dangerous Precedent?

International Journal of Marine and Coastal Law

Volumn 8, Issue 3, 1993, Pages 397-418

  Dalton, Jane Gilliland ^a  

^a Space and Naval Warfare Systems Center Pacific   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84966088066     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180893X00134     Document Type: Article

References (44)

1. Unless otherwise specified, information in this paper about the Mar Presencial. and information in Section I about Chile’s economic and strategic concerns, is taken from three sources: Admiral Jorge Martinez Busch. “Vision Estrategica de la Armada de Chile” (1991) 6 Revista de Marina: Admiral Jorge Martinez Busch. “El Mar Presencial: Actualidad. Desafios y Futuro” (1991) 3 Revista de Marina 231: and Captain Miguel A. Vergara Villalobos and Captain Fernando Thauby Garcia. “El Factor Naval en la Proyeccion de Chile en el Oceano Pacifico” (1990) 6 Revista de Marina 568. All quotations from these and other Spanish language sources in this paper are the author’s translations.
2. Martinez. “El Mar Presencial”. 231. See also Chilean Law No. 19,080, Amending Law No. 18.892 on Fisheries and Agriculture. Copy on file with author.
3. “Patrimonial waters” or “Patrimonial Sea” began as a phrase referring to an undefined expanse of ocean over which the coastal state maintained some form of jurisdiction: “[T]he patrimonial sea includes both the territorial sea as well as a zone beyond it the extension of which is determined unilaterally—but not arbitrarily—by the coastal state. The jurisdiction of the coastal state to regulate the exploration, conservation, and exploitation of the marine resources contained within the patrimonial sea is extended over the adjacent waters, the seabed and subsoil thereof.” Edmundo Vargas Carreno, quoted in Francisco Orrego Vicuna. The Exclusive Economic Zone (1989). p. 11. The Patrimonial Sea concept figured importantly in the law of the sea discussions and negotiations. Today, since the conclusion of the 1982 Convention, the Patrimonial Sea generally refers to the 200 n.m. EEZ.
4. “Estar y mirar”, literally, “to be and to look”, Vergara and Thauby, “El Factor Naval”, p. 574.
5. e.g. in March 1983 President Reagan announced that the Convention contained provisions “with respect to traditional uses of the oceans which generally confirm existing maritime law and practice …”. He said the United States would accept and act consistently with the provisions of the Convention dealing with navigation, overflight, high seas freedoms and the EEZ. Proclamation No. 5030. 46 Fed. Reg. 10. 601.16 U.S.C.A. § 1453n (1983). See also Restatement (Third) of Foreign Relations Law, Part V. introd. note (1987).
6. Admiral Martinez, “El Mar Presencial” p. 232
7. Admiral Martinez, “El Mar Presencial” p. 232
8. Reynaldo Galindo Pohl. “The Exclusive Economic Zone in the Light of Negotiations on the Third United Nations Conference on the Law of the Sea”, in Francisco Orrego Vicuno (ed.). The Exclusive Economic Zone: A Latin American Perspective (1984), pp. 49-50. See also. Barbara Kwiatkowska. The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989), p. 25 (all co-operative obligations of the Convention, where express or implied, have to be interpreted as legally binding obligations to act).
9. Francisco Orrego Vicuna. The Exclusive Economic Zone (1989). p. 61.
10. With reference to the “shall co-operate” language. Professor William T. Burke opines that coastal states’ rights over highly migratory species cannot be exercised in the same way as those over coastal species. Co-operation, as required by Article 64. signifies that the parties communicate data and information as well as concrete suggestions for action on specific issues. The parties arc required to seek concrete and specific agreement on the contents of the management regime. Unilateral decisions or regulatory action by any state prior to a “full and timely exchange of views and proposals” would be inconsistent with the Convention. The proposals must be designed to lead to or to establish agreed measures to be implemented by coastal states within the EFZ and by fishing states beyond the EEZ. The U.N. Convention on the Law of the Sea: Impacts on Tuna Regulation 5-6 (Legislative Study No. 26. Food and Agriculture Organization of the United Nations, 1982). In addition. Professor Burke contends that the traditional law regarding the freedom to fish on the high seas has also been altered. Even though the Convention is not perfectly clear about what happens when the parties cannot reach agreement after good-faith efforts to do so. “it is clear that unregulated foreign fishing [of highly migratory species on the high seas] cannot occur without infringing coastal rights”. this topic generally, see also id.. “Fisheries Regulations Under Extended Jurisdiction and International Law” (FAO Fisheries Technical Paper. 1982). p. 223.
11. Francisco Orrego Vicuna. The Exclusive Economic Zone (1989). p. 64. Professor Orrego is the former Chilean Ambassador to Great Britain. Vice Chairman of the Chilean Delegation to (he Third Law of the Sea Conference. Professor of International Law at the University of Chile, and a prolific author and editor on Law of the Sea issues.
12. Francisco Orrego Vicuna. The Exclusive Economic Zone (1989). p. 172-173. Professor Orrego is the former Chilean Ambassador to Great Britain. Vice Chairman of the Chilean Delegation to (he Third Law of the Sea Conference. Professor of International Law at the University of Chile, and a prolific author and editor on Law of the Sea issues.
13. Francisco Orrego Vicuna. The Exclusive Economic Zone (1989). 62. Professor Orrego is the former Chilean Ambassador to Great Britain. Vice Chairman of the Chilean Delegation to (he Third Law of the Sea Conference. Professor of International Law at the University of Chile, and a prolific author and editor on Law of the Sea issues.
14. Vicuna. The Exclusive Economic Zone. pp. 173-174: see also William O. McLean and Sompong Sucharitkul. “Fisheries Management and Development in the EEZ: The North. South and Southwest Pacific Experience” (1988) 63 Noire Dame L. Rev. 492.
15. Victor A. Gallardo. Chile’s National Interest in the Oceans (1976). p. 72.
16. “Chile: Symposium on Pacific Fisheries”. BBC broadcast (24 May 1988). available in LEXIS. Nexis Library. BBCSWB File.
17. “Pacific Rim Nations to Discuss Establishment of Cooperative Committee. Xinhua Gen. Overseas News Service (16 June 1990). available in LEXIS Nexis Library. XINHUA File.
18. “Pacific Rim Nations to Discuss Establishment of Cooperative Committee. Xinhua Gen. Overseas News Service (16 June 1990). available in LEXIS Nexis Library. XINHUA File.
19. Hugo Caminos. “The Regime of Fisheries in the Exclusive Economic Zone”, in Vienna. The Exclusive Economic Zone, pp. 143-146.
20. Caminos. “The Regime of Fisheries”, p. 157.
21. For an excellent analysis of the pollution prevention and control regime created under the 1982 Convention, see the articles by Louis B. Sohn. Clifton E. Curtis and Douglas M. Johnson in (1985) 18 L. Sea Inst. Proe. 103. 117. 133.
22. Michael A. Morris. The Strait of Magellan (1989). p. 44. This program was developed through the Permanent Commission of the South Pacific, which has been taking a role in environmental issues for many years now. “Resolution on Preventing Marine Contamination in South-east Pacific Adopted. Xinhua Gen. Overseas News Service (13 November 1979). available in LEXIS. Nexis Library. Xinhua File. The Commission was also involved in protesting at French nuclear testing in the South Pacific in 1985. “Chile to Protest French Nuclear Test”. Inter Press Service (15 October 1985). available in LEXIS. Nexis Library. Inpres File; “International News”. Reuters (30 October 1985). available in LEXIS. Nexis Library. Reuter File.
23. Victor A. Gallardo. Chile’s National Interest in the Oceans (1976), p. 54.
24. Gallardo. Chile’s National Interest in the Oceans, p. 54.
25. Vergara and Thauby, “El Factor Naval”, p. 574: “Siguen las 12 millas de mar territorial, en las que esta permitido el paso inocente de buques mcrcantes.”
26. Supreme Decree No. 1.385 of 18 October 1951. as modified by Supreme Decree No. 2.623 of 16 September 1955. reprinted in Francisco Orrego Vicuna. Chile y El Derecho del Mar (1972). pp. 195-200.
27. Vicuna. “International Ocean Law Developments in the Southeast Pacific: The Case ot Chile” (1989) 21 I.. Sea Inst. Proc. 217. 219-220.
28. Articles 19 and 21 do not specifically forbid a coastal state from requiring advance notification from foreign warships. The assumption that notification is not an appropriate requirement for innocent passage is well-grounded in customary law. however. For example, the Annex to Part B— Territorial Seas—of the Final Act of the Conference for the Codification of International Law. March-April 1930. to which Chile is a signatory, recommended the following provision: Article 12: “As a general rule, a Coastal State will not forbid the passage of foreign warships in its territorial sea and will not require a previous authorisation or notification” (1930) 24 Am.I. Int’l. L. Supp. 187.
29. Law No. 18.565 Amending the Civil Code with Regard to Maritime Space. 13 October 1986. reprinted in United Nations, Law of the Sea Bulletin. 1-2 (April 1987). Chile considered enacting legislation, as have several states, claiming jurisdiction related to security in the Contiguous Zone, but determined it was not pertinent to include such a clause. Vicuna. The Exclusive Economic Zone. p. 151.
30. Robert D. Talbott, A History of the Chilean Boundaries (1974), pp. 92-99.
31. Vicuna, “La Proyeccion Extracontinental de Chile”, in Francisco Orrego Vicuna. Maria Teresa Infante Caffi, Pilar Armanet (eds.). Politico Antarctica de Chile (1984), pp. 18-19.
32. Michael A. Morris.The Strait of Magellan (1989). p. 105. The one provision which potentially could deal with Antarctica. Article 234. is entitled “ice-covered areas”. Informai discussions with individuals involved in the negotiations reveal that Article 234 was intended to address certain Canadian concerns and is not necessarily applicable to the Antarctic. The language of the Convention, however, does not limit the application of Article 234 to any particular ice-covered area.
33. The Protocol banned any activity related to mineral resources (including mining and oil exploration) except for scientific research for 50 years. The agreement was signed by 24 of the 26 Consultative treaty members, including Chile and the United States, and seven non-consultative treaty countries. The Protocol must be ratified by signatory nations. “31 Nations Sign Pact to Protect Antarctica”. Los Angeles Times (5 October 1991), available in LEXIS. Nexis Library. LAT File.
34. Vicuna. “The Application of the Law of the Sea and the Exclusive Economic Zone to the Antarctic Continent”. in id. (cd.). Antarctic Resources Policy pp. 245-246.
35. See e.g. Orrego. “La Proyeccion F.xtracontinental”. pp. 26-27 (Chile’s Antarctic policy conforms her national requirements with the needs and perspectives of other nations thus achieving an equilibrium between national sovereignty and international co-operation. If the equilibrium is broken, the Antarctic system will come rapidly to an end.)
36. ” ‘[T] he interests of all mankind in Antarctica’ must not be prejudiced, but to this it should also be added that this policy must not be allowed to bccome an instrument for undermining the Antarctic system, the essence of which demands that the fundamental role of the Consultative parties be preserved.” Orrego, “The Application of the Law of the Sea”, p. 250.
37. e.g. it has been asserted that claimant states’ (including Chile’s) machinations in the negotiations for the Antarctic Living Resources Convention resulted in an ambiguous regime that could result in endangerment of the ecosystem. James N. Barnes. “The Emerging Antarctic Living Resources Convention” (1979) 73 Proc. Am. Soc. Intl. L. 272.
38. In 1979 and 1980 Chile presented an informal proposal to the Law of the Sea negotiations that the common heritage be recognized as jus cogens. FC/14. 20 August 1979 and GP/9. 5 August 1980. reprinted in Renate Platzoder. Third United Nations Convention on the Law of the Sea: Documents. Vol. XII (1987). pp. 302. 390. Although the proposal was not accepted, when Chile signed the 1982 Convention she made a Declaration thereto identifying the common heritage as jus cogens, and reiterating the legal concept of the common heritage “which the present Convention defines as jus cogens. Any action taken in contravention of this principle outside the framework of the seabed regime would … be totally invalid and illegal”. Reprinted in UN Law of the Sea Bulletin. 9 (1985).
39. See n. 53. below. Additionally, the current Civil Code contains a provision, dating from the Bello Code of December 14. 1855 which states: “The things that nature has made common for all mankind. such as the high seas, are not liable to ownership, and no nation, enterprise or individual has the right to appropriate them. Their use and enjoyment are determined among individuals of a nation by its laws, and among different nations by international law”. (Civil Code. Article 585. quoted in F. V. Garcia-Amador. Latin America and the Law of the Sea (1972). p. 12. That nature has provided resources which are common to all mankind does not necessarily preclude their exploitation for the benefit of mankind. This law clearly did not prevent Chile’s pioneering role in the movement to exert coastal state jurisdiction and sovereignty over the resources of the water, sea-bed and ocean floor out to 200 n.m. Perhaps Chile’s position is best explained by her statement at the Law of the Sea negotiations that the common heritage of mankind is an “indivisible property with fruits that can be divided”. Said Mahmoudi. The Law of Deep Seu-Bed Mining (1987). p. 129 (A/C. 1 P/V.775. par. 13).
40. Orrego. “International Ocean Law Developments”. pp. 221-223.
41. Edmundo Vargas Carrcno. America Latina y Los Problemas Contemporaneos del Derecho deI Mar (1973) pp.74-75.
42. Satya Nandan. “Prospects lor the Future: The UN and Peaceful uses of the Oceans” (1985) 18 I.. Sea Inst. Proc. 259. 261.
43. Satya Nandan. “Prospects lor the Future: The UN and Peaceful uses of the Oceans” (1985) 18 I.. Sea Inst. Proc. 259. 261.
44. Victor A. Gallardo. Chile’s National Interest in the Oceans (1976), pp. 7, 90-91.