Beagle Channel Arbitration - Arguments

Arguments

In the border treaty of 1855 Chile and Argentina had agreed to retain the borders of the Spanish colonial administration. This principle, known in jurisprudence as Uti possidetis, served two purposes: the first was to divide the territory between the two countries, and the second to preclude the creation of Res nullius areas that could have been taken in possession by other powers (such as the United States of America, the UK or France – although the Beagle Channel had been unknown until 1830 and there had been no Spanish settlements south of Chiloé).

The boundary treaty of 1881 described, without any map, the course of the 5600 km border as follows:

• over the Andes mountains (from north to parallel 52°S: 'the highest peaks that divide the waters') (Article I),
• in the region north of and through the Strait of Magellan (mainly along the 52°S parallel) (Article II) and
• in the Tierra del Fuego-Beagle Channel region (Article III).

The controversial articles II and III of the 1881 treaty were:

Article II)

"In the southern part of the continent, and to the north of the Straits of Magellan, the boundary between the two countries shall be a line, which starting from Point Dungeness, shall be prolonged overland as far as Mount Dinero; thence it shall continue westward, following the highest elevations of the chain of hills existing there, until it strikes the height of Mount Aymont. From this point the line shall be prolonged up to the intersection of meridian 70° W., with parallel 52° S. and thence it shall continue westward coinciding with this latter parallel as far as the divortium aquarum of the Andes. The territories lying to the north of said line shall belong to the Argentine Republic, and to Chili those that extend to the south, without prejudice to the provisions of Art. 3d concerning Tierra del Fuego and the adjacent islands".

Article III)

"In Tierra del Fuego a line shall be drawn, which starting from the point called Cape Espiritu Santo in parallel 52°40, shall be prolonged to the south along the meridian 68°34 west of Greenwich until it touches Beagle Channel. Tierra del Fuego, divided in this manner, shall be Chilean on the western side and Argentine on the eastern. As for the islands, to the Argentine Republic shall belong Staten Island, the small islands next to it, and the other islands there may be on the Atlantic to the east of Tierra del Fuego and of the eastern coast of Patagonia; and to Chile shall belong all the islands to the south of Beagle Channel up to Cape Horn, and those there may be to the west of Tierra del Fuego".

Under the so-called oceanic principle Argentina believed that the uti possidetis doctrine operated such that, under the arrangements operated by the colonial administrations, Chile (then the Captaincy General of Chile) had no territorial waters in the Atlantic Ocean and the Argentine (then the Viceroyalty of the Río de la Plata) could not have territorial waters in the Pacific Ocean. The Argentine saw a reaffirmation of this principle in the Protocols of 1902, according to Rizzo Romano the first arms control pact in the world, under which both countries agreed that the Chilean navy should have enough ships to defend the interests of Chile in the Pacific, and the Argentine navy should have enough ships to defend the interests of Argentina in the Atlantic. Chile doesn't consider the 1902 protocol as a border treaty and the word Pacific doesn't appear in the Boundary treaty, and hence claimed that the boundary between the Pacific and the Atlantic had never been defined.

To resolve the conflicting interests of both countries, they decided in 1881 on an agreement; but nearly a century later there was still no mutual understanding of what that agreement had consisted of. Chile maintained it had only renounced rights to eastern Patagonia (today continental south Argentina) to obtain full possession of the Strait of Magellan, but Argentina believed Chile received the Strait of Magellan in return for renouncing all coasts bordering the Atlantic ocean.

About the course of the Beagle Channel there were discrepancies. The eastern end of the Channel can be seen as a delta with an east-west arm and a north-south arm (around Navarino Island). The channel specified in the border treaty of 1881 was seen by Chile as the east-west arm, but by Argentina as the north-south arm. Following this controversy, two clauses were in dispute: Chile argued the Channel clause (... to Chile shall belong all the islands to the south of Beagle Channel up to Cape Horn,...), while Argentina the Atlantic clause (... the other islands there may be on the Atlantic to the east of Tierra del Fuego ...). Some Chileans argued that the text "until it touches the Beagle Channel" in article III meant that Argentina had no navigable waters in the Beagle Channel, although this interpretation was not supported by the Chilean claim.