The 310-mile-long Strait of Magellan connects the Atlantic and Pacific Oceans
at the southern tip of South America. Navigation through the Strait of Magellan
is governed by article V of the 1881 Boundary Treaty between Argentina
and Chile, which states that the Straits are neutralized forever, and free navigation
is assured to the flags of all nations. Article 10 of the 1984 Treaty of
Peace and Friendship between Argentina and Chile reaffirms that status: “the
delimitation agreed upon herein, in no way effects the provisions of the Boundary
Treaty of 1881, according to which the Straits of Magellan are perpetually
neutralized and freedom of navigation is assured to ships of all flags . . .” In concluding that the Strait of Magellan therefore falls under the article 35(c) exception of the LOS Convention, the Department of State advised American
Embassy Santiago, Chile, that:
This long.standing guarantee of free navigation for all vessels [in the 1881 Treaty]
has been amply reinforced by practice, including practice recognizing the right
of aircraft to overfly. . . . Essentially, the USG position would be that the 1881
Treaty and over a century of practice have imbued the Strait of Magellan with a
unique regime of free navigation, including a right of overflight. That regime has
been specifically recognized and reaffirmed by both Argentina and Chile in the
Beagle Channel Treaty. Hence, the United States and other States may continue
to exercise navigational and overflight rights and freedoms in accordance with this
long.standing practice.
In depositing its instrument of ratification of the LOS Convention on December
1, 1995, Argentina stated, inter alia:
(b) With regard to Part III of the Convention, the Argentine Government declares
that in the Treaty of Peace and Friendship signed with the Republic of Chile on
29 November 1984, which entered into force on 2 May 1985 and was registered
with the United Nations Secretariat in accordance with Article 102 of the Charter
of the United Nations, both States reaffirmed the validity of article V of the
Boundary Treaty of 1881 whereby the Strait of Magellan (Estrecho de Magallanes)
is neutralized forever with free navigation assured for the flags of all nations. The
aforementioned Treaty of Peace and friendship also contains specific provisions
and a special annex on navigation which includes regulations for vessels flying the
flags of third countries in the Beagle Channel and other straits and channels of
the Tierra del Fuego archipelago.
On September 6, 1996, Chile replied inter alia as follows:
In the view of the Chilean government, this declaration is inaccurate in its formulation
and does not reflect the wording of the relevant provision of the treaties
in question.
Article 10, paragraph 4, of the 1984 Treaty of Peace and Friendship does, in
fact, provide that the boundary agreed upon in respect of the eastern end of the
Strait of Magellan in no way alters the provisions of the 1881 Boundary Treaty,
whereby the Strait of Magellan is neutralized forever with free navigation assured
for the flags of all nations under the terms laid down in it article V.
However, as regard the reference to provisions on navigation, it should be noted
that article 13, paragraphs 1 and 2, of the 1984 Treaty of Peace and Friendship,
under the chapter Economic cooperation and physical integration, expressly
states that:
The Republic of Chile, in exercise of its sovereign rights, shall grant to the
Argentine Republic the navigation facilities specified in articles 1 to 9 of annex II.
The Republic of Chile declares that ships flying the flag of third countries may
navigate without obstacles over the routes indicted in articles 1 and 8 of annex II,
subject to the pertinent Chilean regulations.
Moreover, article 1, paragraphs 1 and 2, of annex II (concerning navigation) of
the 1984 Treaty of Peace and friendship adds:
For maritime traffic between the Strait of Magellan and Argentine ports in the
Beagle Channel and vice versa, through Chilean internal waters, Argentine vessels
shall enjoy navigation facilities exclusively along the following route:
Canal Magdalena, Canal Cockburn, Paso Brecknock or Canal Ocasión, Canal
Ballenero, Canal O’Brien, Paso Timbales, north-west arm of the Beagle Channel
and the Beagle Channel as far as the meridian of 68°36’38.5” West longitude and
vice versa.
The above-cited provision unmistakably demonstrate that the navigation facilities
which the Republic of Chile, in exercise of its sovereign rights, grants to the
Argentine Republic and to ships flying the flag of third countries are through
Chilean internal water, by a route described in the Treaty; together with the other
features and modalities laid down in annex II these are essential aspects of the
navigation regime established by the 1984 Treaty of Peace and Friendship and
the omission thereof from the Argentine declaration may be misleading as to the
nature of these waters.
For the same reason, it is inappropriate for the Argentine declaration to refer
to the above-mentioned navigation facilities in connection with Part III of the
Convention, “Straits used for international navigation,” since the area in question
has always consisted of Chilean internal waters and not international straits.
Lastly, nowhere does the 1881 Boundary Treaty or the 1984 Treaty of Peace
and Friendship make a generic reference to a so-called “Tierra del Fuego archipelago;”
it is therefore inappropriate for the Argentine declaration to mention in
the context of the above-named treaties.
In response to the UN Secretary-General’s February 21, 1996 request for copies
of any Argentine laws and regulations relating to international straits, Argentina
forwarded copies of the 1881 and 1984 treaties and added:
Article 5 of the 1881 Treaty and article 10 of the 1984 Treaty establish neutrality
and the freedom of ships of all flags to navigate through the Strait of Magellan.
Annex II to the 1984 Treaty establishes the navigation regime between the Strait
of Magellan and Argentine ports in the Beagle Channel and vice versa, as well as
the navigation regime along the Strait of Maire.
On September 6, 1996, Chile responded, as follows:
(a) Under article 35(c) of the Convention on the Law of the Sea, nothing in
Part III affects the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating
to such straits. As this is precisely the case of the Strait of Magellan, the
provisions of Part III do not apply to it;
(b) Argentina does not border the Strait of Magellan. Under the 1881 Boundary
Treaty, the whole of the Strait of Magellan – including, of course, the land
bordering it on both sides – is under Chilean sovereignty. Therefore, it is not
incumbent on Argentina to give publicity to laws and regulations on straits
which are not under its sovereignty;
(c) Lastly, with regard to annex II to the 1984 Treaty of Peace and Friendship,
which establishes the regime for navigation between the Strait of Magellan and
Argentine ports in the Beagle Channel and vice versa, the statements in the
foregoing paragraphs on the clear provisions regulating such navigation should
be borne in mind.
Unquestionably, the strait consists mainly of Chilean internal waters.
Therefore, it is not a strait used for international navigation, and it is inappropriate
for Argentina to invoke article 42(3) in referring to the provisions of the
1984 Treaty of Peace and Friendship in this regard.
Since the issues raised in the present communication must have a clear interpretation
both for the parties and for third countries, the Permanent Mission of
Chile to the United Nations hereby requests the Secretary-General, through the
Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, to give
due publicity to the present document . . .
On May 14, 1997, Argentina replied:
. . . it should be pointed out that, in ratifying that international convention, which,
as the Government of Chile is well aware, was done subsequent to the entry into
force of the Treaty of Peace and Friendship of 1984, the Argentine Republic
irrefutably expressed its desire to maintain the full validity of all the provisions of
the treaty of Peace and Friendship of 1984; thus, the application of the United
Nations Convention
on the Law of the Sea does not affect the legal regime of the
above-mentioned bilateral treaty between Argentina and Chile.
Accordingly, the fact that the reference to the Strait of Magellan is followed by
a reference to the existence of the navigation regime of the 1984 Treaty implies an
express reaffirmation of article V of the 1881 Boundary Treaty and, in addition, of
the full validity of the norms contained in annex 2 of the 1984 Treaty, including
the legal status of the waters used for navigation.
These treaties contain regulations which affect third States. The Argentine presentation
was for information purposes and did not put forward any interpretation
of the United Nations Convention on the Law of the Sea, the 1881 Boundary
Treaty, the 1984 Treaty of Peace and Friendship or any other aspects of the
issue.
As a party to the 1881 Boundary Treaty, the Argentine Republic has the power
to refer to it in any documents it deems relevant. In this case, such power is even
more obvious since that international instrument embodies a longstanding regime
as recognized by article 35(c) of the United Nations Convention on the Law of
the Sea. Therefore, it cannot be considered as being outside the legal framework
of the Convention.
Moreover, article V of the 1881 Boundary Treaty, whereby the Strait of Magellan
is neutralized forever with free navigation assured for the flags of all nations,
creates obligations and rights both of the Argentine Republic and the for the
Republic of Chile. Therefore, both parties should ensure effective compliance with
its provisions.
In addition, Article 10 of the 1984 Treaty of Peace and Friendship – which, as
noted above, replicates article V of the 1881 treaty – stipulates the obligation of the
Argentine Republic to maintain, at any time and in whatever circumstances, the
right of ships of all flags to navigate expeditiously and without obstacles through
its jurisdictional waters to and from the Strait of Magellan.
Consequently, Argentina, as a State Party, together with Chile, of the 1881
Boundary Treaty and the only one of the two which has become a party to the
United Nations Convention on the Law of the Sea, has the power to give due
publicity, in ratifying that Convention, to the legal regime for the area of the
Strait of Magellan.
In view of the foregoing, there can be no doubt about the juridical grounds supporting
the [Argentine] interpretative declaration and its note verbale of 15 April 1996 As mentioned above, a different scope and intention are being attributed to the instruments issued by the Argentine Republic than what is clearly evident in
their texts and legal context.
The Argentine Republic cannot agree with other statements made by the Government
of Chile in the above-mentioned notes. Among other things, it does
not agree that the waters in the south of the Strait of Magellan have always been
Chilean internal waters and not international straits. The Argentine Republic did
not consider them as such until the 1984 Treaty of Peace and Friendship, which,
as noted above, established a regime for navigation through the waters described
in its annex 2.
In relation to the foregoing, it must be stressed that the norms codified in paragraph
2, article 8; paragraph 1, article 3; and subparagraph
(a), article 35, of the
United Nations Convention on the Law of the Sea are also relevant aspects.
Moreover, the Argentine Republic does not share the interpretation concerning
the inapplicability of Part III of the United Nations Convention on the Law
of the Sea, since such interpretation does not follow from article 35(c) of the
Convention. That norm, in fact, establishes that the provisions of part III do not
affect the legal regime in straits in which passage is regulated in whole or in part
by long-standing international conventions in force.
Without prejudice to the above, it is not the purpose of the Argentine Republic
to embark on a discussion of abstract topics or situations. . . .