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Jeux Sans Frontières

The World Court’s new role: real estate broker.

10:01 AM, Jan 28, 2014 • By JOHN LONDREGAN
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The World Court resolution of Peru’s petition to change its border with Chile didn’t catch much attention beyond the Pacific coast of South America, but it matters, a lot. A century and a half ago la Guerra del Pacifico, in which Chile opposed both Bolivia and Peru, left Chile holding several hundred miles of coastal plane previously claimed by its opponents. Subsequently, in the 1929 Treaty of Lima, Peru conceded Arica to Chile, but got Tacna back. The marine border between the two countries, settled the following year, began at the coast, and extended due west at 18˚21′03′′, and there it stayed until this week.

In the meantime, conventions for setting maritime borders changed, and the current vogue amongst arbiters is to have frontiers radiate into the sea perpendicularly to the coastline. As it happens, the coast makes a sharp turn to the West just where the land borders of Chile and Peru meet. The line perpendicular to the coast veers off to the southwest, slicing off a considerable wedge of ocean, teeming with fish.

The Peruvians noticed that if their 1929 negotiation with Chile had been conducted under the auspices of a 2014 arbiter, they would have gotten a better deal—and so they filed suit in the World Court to do just that! To be sure, this is like a currency trader who bought British Sterling for dollars in 1929 at $4.86 per pound coming back today and demanding “back” his $3.19—the difference between the quondam price and today’s exchange rate of approximately $1.67 per pound. Well, you might point out, if the trader was any good at currency speculation he wouldn’t much mind the loss of $3.19, and Chile, having recently joined the OECD, is surely sufficiently successful that it’s prosperity will not crumble with the partial loss, for that is what has occurred, of its territorial waters. Yes, that is probably right, but currency markets would collapse in a hurry if it became generally known that past transactions could be revisited when prices change against one of the parties, which is to say, when prices change.

Yesterday the World Court “split the difference” between Chile and Peru, the Chileans got to keep their maritime border radiating due westward, for eighty nautical miles, after which time the court announced that it will now jink off in a southwesterly direction, perpendicular to a coastline eighty miles away. Peru enforces a two hundred mile fishing limit, and in return for their litigious challenge to the existing frontiers, its lawyers are returning from the Hague with title to quite a swathe of ocean that used to belong to the Chileans. It is worth noting that the resolution of the World Court applies neither the principle, such as it is, that the border should run perpendicular to the coast line, nor the common sense notion that settled frontiers should be left alone.

If you are a lawyer on retainer to the World Court, this is a fabulous precedent—every frontier in the world is now potentially subject to being re-litigated in the court, no boundary line on the planet is now exempt from a new roll of the judicial dice, all that’s needed are two litigants willing to accept the jurisdiction of the court rather than fight another battle. And if your neighbors have just bought a new battalion or two of tanks, who wouldn’t at least consider accepting jurisdiction? This creates a potential bonanza of litigation for experts on the abstruse subfield of international law that deals with the delineation of frontiers. This will be especially profitable if they can occasionally change the conventions about how to redraw borders—not too often mind you, once or twice a century should be enough to keep a full docket. The court’s decision also issues an invitation to reanimate international conflict over frontiers, and the countries involved may not always make the same calculation about whether to resort to the bar or the barrel of a gun.

Whatever minor extra efficiency may spring from rearranging borders using the latest legal theory, which to say the least was strangely applied in the latest settlement, the World Court didn’t simply transfer some fish from Chile to Peru—it marked a new role for the World Court: real estate broker. Peru has set the example, if you want to expand, you need only hire some clever lawyers to rehash the bloodsoaked history of territorial wars with your neighbors. Expect many more to follow suit.

John Londregan, a professor of politics and international affairs at Princeton, is the author of Legislative Institutions and Ideology in Chile.

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