Arbitration court in the Beagle conflict

from Wikipedia, the free encyclopedia
Beagle conflict
South America southern tip pol.png
Main Products: Beagle conflict
1881–1970: Beagle cartography
1958: Snipe incident
1971–1977: Arbitration court in the Beagle conflict
1977–1978: Direct negotiations
1978: Operation Soberanía
1979-1984: Papal mediation
1984: Friendship treaty 1984

After decades of diplomatic efforts in the Beagle conflict , in 1971 the presidents of Chile and Argentina , Salvador Allende and General Alejandro Lanusse , agreed in an arbitration agreement , henceforth called a compromise , to leave a regulation on the course of the common border in the Beagle Channel to an international arbitration tribunal. In the course of the conflict-prone border demarcation, several contracts on border issues had been signed, which laid down obligations on procedural issues, deadlines and instances. Under it, the British crown was set as the authority in the event of a dispute.

Since at that time the clashes over the Falkland Islands had already led to problems between Argentina and Great Britain , measures were taken in particular to exclude any bias in the judgment from the outset: Among other things, the names of the five jointly appointed judges from the International Court of Justice are in the compromise of The Hague specified the functions of the arbitral tribunal and the legal framework in which justice should be pronounced. The British Crown could only accept or reject the judgment, but not change it.

The judgment, reached six years later, is the result of an in-depth analysis by the arbitral tribunal of the rights of both countries over the conflict zone within the framework of international law and the current treaties between Chile and Argentina. To this end, both parties have presented to the arbitral tribunal all arguments and documents which they believe justified their respective rights.

The verdict was passed unanimously and confirmed all important questions about the Chilean position. Chile recognized the judgment and had it converted into Chilean law. Argentina declared the verdict null and void and on December 22, 1978, Operation Soberanía began to occupy the islands militarily.

Procedure

The compromise was signed in London on June 22, 1971 by the representatives of the three countries involved: Joseph Godber (United Kingdom of Great Britain), Álvaro Bunster (Chile) and Gustavo Martínez Zuviría (Argentina).

The British Crown had already been asked to arbitrate the border in disputes in 1896 and 1960. Due to the growing tension between Argentina and the United Kingdom over the conflict over the Falkland Islands , new rules of procedure were set out in the compromise :

The Beagle Channel, from the Pacific to the Atlantic.

The legal framework was given by the following contracts, among others:

In this way, the UK had no influence on the development of the judgment. The procedure, the legal framework, the judges and the subject of the dispute were defined jointly by both countries. Even after the compromise was signed , any appearance of any particular British influence was avoided. The arbitral tribunal, which was allowed to choose its meeting location itself, chose Geneva in Switzerland for its work after prior consultation with both parties .

The parties could not agree on a common question to the tribunal and therefore each party made its own request to the tribunal.

Argentina petitioned the arbitral tribunal

“[…] To determine what is the boundary-line between the respective maritime jurisdictions of the Argentine Republic and of the Republic of Chile from meridian 68 ° 36" 38.5 "W., within the region referred to in paragraph (4) of this Article, and in consequence to declare that Picton, Nueva and Lennox Islands and adjacent islands and islets belong to the Argentine Republic. "

"[...] to determine what, within the area defined by paragraph (4) of this article, is the boundary line between the respective territories in the sea between the Republic of Argentina and the Republic of Chile from the meridian of 68 ° 36" 38.5 "W , and as a result to establish that the islands of Picton, Nueva and Lennox and neighboring islands and rocks belong to Argentina. "

- Article 1 (1) of the compromise

Chile applied to the arbitral tribunal

“[…] To decide, to the extent that they relate to the region referred to in paragraph (4) of this Article, the questions referred to in her Notes of 11th December 1967 to Her Britannic Majesty's Government and to the Government of the Argentine Republic and to declare that Picton, Lennox and Nueva Islands, the adjacent islands and islets, as well as the other islands and islets whose entire land surface is situated wholly within the region referred to in paragraph (4) of this Article, belong to the Republic of Chile. "

"[...] to decide the questions put in his note of December 11, 1967 to the Government of Her British Majesty and the Government of the Republic of Argentina, insofar as they concern the territory to which paragraph (4) of this article relates and declare that the islands of Picton, Nueva and Lennox, the neighboring islands and rocks, and all other islands and rocks whose entire land area lies entirely within the area defined by paragraph (4) of this Article, belong to the Republic of Chile. "

- Article 1 (2) of the compromise
The arbitral tribunal had to decide on the borderline in the ABCDEF polygon. Until 1971, only the islands that lie entirely within the polygon were disputed. From 1978 Argentina also made claims on the islands south of Navarino Island.

In Article 1 (4) of the compromise , a polygon ABCDEF in the shape of a hammer is defined as a conflict zone.

The process took place in four phases:

  • Memoria (from January 1, 1973) for the submission of maps and other documents.
  • Contramemoria (dated June 2, 1974) for the answers to the former.
  • Réplica (from June 1, 1975) for comments.
  • Alegatos (from November 7, 1975 to October 23, 1976) for the oral proceedings.

Chile gave 14 volumes and 213 maps to the arbitration board, Argentina 12 volumes and 195 maps. In March 1976 the Arbitral Tribunal visited the Beagle Channel, first as a guest of the Chilean government and then as a guest of the Argentine government.

Terms to understand the reasoning

In the border treaty of 1855 , Chile and Argentina agreed to maintain the borders of the Spanish colonial administration. This principle, known as uti possidetis in jurisprudence, served two purposes: the first was to divide the territory among themselves, and the second to not allow res nullius areas (areas that are not subject to a recognized state) owned by foreign powers could have taken.

In the border treaty of 1881 , the border was determined in the Andes region (the highest mountains and the watershed ), in the region north of the Strait of Magellan (mainly around the latitude 52 ° S) and in the Tierra del Fuego Beagle region.

Under the ocean principle , Argentina understood an interpretation of the uti possidetis , according to which during the colonial period Chile (the general captaincy of Chile ) was not allowed to have access to the Atlantic and Argentina (the viceroyalty of the Río de la Plata ) to have no access to the Pacific . According to the Argentine view, this principle was confirmed again in the Additional Protocols of 1902 . The world's first arms control treaty stated that the Chilean navy should have enough ships to defend Chile's interests in the Pacific and that the Argentine navy should have enough ships to defend Argentina's interests in the Atlantic.

In order to be able to overcome the contradicting interests of the two countries, a settlement was concluded in 1881 , through which Chile was awarded the entire Strait of Magellan. A century later, there was no longer any agreement about what Chile had renounced: Chile claimed to have renounced its areas north of the Strait of Magellan and east of the Andes (today southern continental Argentina). Argentina claimed that Chile had waived its right to the Atlantic coasts.

Chile saw Articles 2 and 3 as the description of a rule-exception solution : all areas south of the Strait of Magellan should belong to Chile with the exception of the eastern part of Tierra del Fuego Island, the Isla de los Estados and the islands that may be in the Atlantic. All other areas were assigned to Chile in the treaty.

The controversial Articles 2 and 3 of the Treaty of 1881 read:

Article 2:
“In the southern part of the continent and north of the Strait of Magellan, a line is to form the borders between the two countries, which begins at Punta Dungeness and goes overland to Monte Dinero ; from there it should run westwards, following the highest elevations of the existing hills until it reaches the top of Monte Aymont . From this point on, the line is to be extended to the intersection of the longitude 70 ° W and the parallel of 52 ° S and from then on it should run on this latitude to the west to the watershed of the Andes. The areas north of this line are said to belong to the Republic of Argentina; to Chile, those that extend south of it, subject to the provisions of Article 3, which concern Tierra del Fuego and the neighboring islands. "
Article 3:
“On Tierra del Fuego, a line is to be drawn south from the point called Cabo del Espíritu Santo from the parallel of 52 ° 40'S on the longitude 68 ° 34 'west of Greenwich until it meets the Beagle Channel. The so divided Tierra del Fuego is said to be Chilean on the western side and Argentine on the eastern side. With regard to the islands, the island de los Estados, the small islands in the immediate vicinity and the islands that may lie in the Atlantic east of Tierra del Fuego and off the east coast of Patagonia are said to belong to the Republic of Argentina; all islands south of the Beagle Channel as far as Cape Horn should belong to Chile, as well as those that may lie west of Tierra del Fuego. "

(The indication "68 ° 34 'W" in Article 3 replaces the original "68 ° 48' W" by mutual agreement.)

The two views on the Beagle Channel

In the controversy one could refer to two clauses within the treaty to determine the affiliation of the islands to one or the other country: The Chileans argued with the channel clause ("[...] Chile those that extend south of it, [...] "); on the other hand, the Argentines derived their affiliation from the Atlantic clause ("[...] which may be in the Atlantic east of Tierra del Fuego and off the east coast of Patagonia, [...]").

There were also disagreements about the course of the canal. The eastern end of the canal can be seen as a delta : You can make out (at least) two arms, an east-west arm and a north-south arm. Chile saw the channel named in the treaty in the east-west arm. Argentina saw this channel in the arm leading around the island of Navarino.

Arguments of Argentina

Argentina based its reasoning exclusively on the Atlantic clause in Article 3 of the 1881 Border Treaty between Chile and Argentina. The position of Argentina can be summarized as follows:

  1. Historically, Chile never had access to the Atlantic, the treaty of 1881 neither changed nor repealed the border treaty of 1855, but only made it more concrete. This means that the Uti possidetis of 1810, which was laid down in the treaty of 1855, continues to apply.
  2. In the treaty of 1881 they agreed on the comparison of the Strait of Magellan for Chile and the Atlantic coast for Argentina .
  3. There is no connection between the individual articles in the treaty of 1881. Chile's renunciation of eastern Patagonia (practically Article 1) in no way entitles it to own all of Tierra del Fuego with the exception of the areas that are explicitly assigned to Argentina (practically Article 3). Each article of the treaty must be interpreted separately, decoupled from the others, i.e. Article 1 for the Andes region, Article 2 for the Magallanes region and Article 3 for the Tierra del Fuego and Beagle regions.
  4. The ocean principle is also the basis for the Atlantic clause in Article 3: “[…] the Isla de los Estados, the small islands in the immediate vicinity and the islands in the Atlantic east of Tierra del Fuego and off the east coast of Patagonia should be like to belong to the Republic of Argentina; “. Except for the Isla de los Estados there are no islands east of Patagonia and Tierra del Fuego, so Article 3 can only refer to the islands of Lennox, Picton and Nueva and because the article explicitly awards other islands to Argentina, Argentina concluded. Tierra del Fuego mean the entire archipelago and Patagonia mean the region from Río Negro to Cape Horn . The term sobre el Atlántico does not mean “in the Atlantic”, but rather “facing the Atlantic”.
  5. Since all disputed islands fall under the Atlantic clause anyway, their location north or south of the channel is irrelevant. If one wanted to enforce this article, the position of Argentina would be confirmed: Article 3 gives Chile the islands "up to Cape Horn". This not only defines a southern border, but also a west-east border, beyond which Chile has no rights.
  6. The sovereign acts exercised by Chile on the islands were contrary to international law from the start. The demarcation line in this region provided for in the treaty of 1881 was never fixed jointly.

Reasoning of Chile

Chile put forward the following arguments:

  1. In contrast to the Argentine position, there is no ocean principle in the internationally binding relationship between the two countries, not even as a modern version of the uti possidetis. This doctrine had become meaningless with the border treaty of 1881, which completely reorganized the territorial relations between the two countries. Article 6 of the border treaty states: "The governments of the Republic of Argentina and Chile will for all time exercise full control over the respective territories that belong to them under this agreement."
  2. The comparison had taken place, but not in the form claimed by Argentina. For the Strait of Magellan, Chile renounced Eastern Patagonia, not the coasts on the Atlantic. That is why all articles of the treaty must be interpreted as one unit. Article 2 then applies to all areas south of the Strait of Magellan, with the exception of the Isla de los Estados and the eastern Tierra del Fuego (rule-exception solution).
  3. If Argentina claims the islands of Picton, Nueva and Lennox because they are the only ones east of Patagonia or Tierra del Fuego, then it must be emphasized that the treaty says “may lie” (the Spanish version of the treaty uses the subjunctive “ que haya "). In addition, the term Tierra del Fuego refers to the Isla Grande de Tierra del Fuego (large island of Tierra del Fuego) and not to the archipelago . This can be seen from the system of Article 3. The term Patagonia only refers to the mainland. Therefore it is impossible to see Picton, Nueva and Lennox as being east of Patagonia or Tierra del Fuego.
  4. For all these reasons, the channel clause in Article 3 is decisive for the membership of the three islands. Since a north-south border is defined in the text, the course of the west-east canal must be used as a basis for the correct interpretation.
  5. The Vienna Convention on the Law of Treaties is decisive for the sovereign acts that Chile has exercised on the islands since 1890 , because Argentina did not protest against these acts (until 1914).

The reasons for the judgment

The presentation so far follows the compromise and Part I: Report of the Report and Decision of the Court of Arbitration . Meanwhile, Part II: Decision is divided into five chapters and 176 consecutively numbered sections.

The work order

In Chapter I (Sections 1-8) the arbitral tribunal deals with the presentation of its work assignment and summarizes it as follows:

  1. The tribunal must comply with the applicable international law and must not make any considerations of equity.
  2. The Picton, Nueva and Lennox group is considered by both parties as a unit and the arbitral tribunal will take this view into account, provided that there are no legal arguments to contradict it.
  3. Despite their differences, both parties agree to the following:
    1. Your rights in the region are based solely on the marginal yield of 1881 and its interpretation in the light of Articles 31–33 of the Vienna Convention on the Law of Treaties of 1969.
    2. The purpose of the Border Treaty of 1881 was the "complete, definitive and concluding" settlement of all open border issues.
    3. The Treaty of 1881 replaces all previous territorial agreements between the parties, as well as all previous principles of territorial regulation from the colonial era.

Uti possidetis

In Chapter II (Sections 9-14) the arbitral tribunal makes preliminary historical considerations on the last sub-item. The principle uti possidetis is judged on the basis of examples from the period from 1855 to 1875 as in fact ineffective for the decision of the pending border issues, so that it can only be used to understand historical processes in the delimitation of areas. With regard to the specific demarcation of the boundaries, the negotiations of 1876–1881 and the border treaty of 1881 have taken this into account and the latter has been applied ever since.

The arbitral tribunal also sees the same implacability for the ocean principle derived from the principle uti possidetes and in later sections expressly limits it to the term "Atlantic principle" in order to discuss the claims made by Argentina under it.

The island clause

In accordance with this assessment, the longest Chapter III (sections 15–111) deals with the border treaty of 1881 and above all with its territorial provisions in Articles 1–3. After reproducing the contract and introducing general considerations, the arbitral tribunal will determine in Sections 18-22, based on the title and preamble of the Boundary Agreement, the parties' intention to use it to create a complete and definitive boundary. The controversial principle uti possidetes can therefore only later play a role in isolated contexts (section 23).

After presenting the general technical principles of demarcation in the next three sections, sections 26–31 deal with the nature of the comparison made in the boundary treaty. The arbitral tribunal considers it necessary to consider Articles 1–3 of the border treaty together and rejects Argentina's view that Patagonia was not part of the settlement, but has always been Argentine. Rather, the arbitral tribunal sees the settlement in the fact that Chile has waived claims in Patagonia in favor of sole control over the Strait of Magellan. Sections 32–49 meticulously analyze the provisions of the border treaty in the area of ​​the Strait of Magellan without arriving at a final conclusion about the contradicting positions of the parties. With a description of the demarcation on Tierra del Fuego in the next two sections, the introductory considerations end and the closer considerations on the area of ​​the Beagle Channel begin.

Sections 52-102 deal in great detail with the second half of Article 3 of the Frontier Treaty, the island clause. The main tasks of the discussion are described in the introductory three sections:

  • the assignments to Argentina and Chile in the border treaty must be considered in detail,
  • while the assignment of the islands of Picton, Nueva and Lennox is requested by the arbitral tribunal, it is not asked to rule on the true course of the eastern end of the Beagle Channel, but only on the demarcation in this area in the border treaty,
  • an investigation into whether the three islands must be assigned together or can be separated and
  • whether the Beagle Channel is viewed in the Border Treaty as ending in front of the islands, or running south or north of them.

Sections 52–63 examine various aspects of the attributions to Argentina under the island clause and the parties' allegations about it. Sections 64-66 summarize the Tribunal's view on this. The Atlantic principle is seen as too controversial to draw any conclusions from it. Sections 67–78 supplement the considerations by analyzing events before and after the signing of the border treaty. In section 79 the arbitral tribunal came to the conclusion that it could not be established from this that the three islands Picton, Nueva and Lennox were assigned to Argentina by the border treaty. Sections 80-98 similarly examine the issue of assignments to Chile by the border treaty. In section 99, the arbitral tribunal came to the conclusion that the border treaty included the three islands as being located south of the Beagle Channel. The consideration of the island clause is concluded with the islands possibly west of Tierra del Fuego, which in the opinion of the arbitral tribunal have no influence on its decision, which is limited to the hammer.

Sections 103-110 deal with the small islands in the Beagle Channel. The arbitral tribunal describes its main point of view as follows:

"[...] for the Court considers it as amounting to an overriding general principle of law that, in the absence of express provision to the contrary, an attribution of territory must ipso facto carry with it the waters appurtenant to the territory attributed;"

"[...] because the arbitral tribunal is of the opinion that it amounts to an overriding general legal principle that, in the absence of express contrary regulations, an allocation of sovereign territory ipso facto [inevitable] must include the water bodies legally belonging to the allocated sovereign territory;"

- Report and Decision of the Court of Arbitration, Part II, Section 107
Borderline drawn by the tribunal (red line) through the middle of the Beagle Channel in the area of ​​the "hammer" ABCDEF.

In order to determine the borderline within the canal, the arbitral tribunal was guided by the following points of view:

"[...] in particular by mixed factors of appurtenance, coastal configuration, equidistance, and also of convenience, navigability, and the desirability of enabling each party so far as possible to navigate in its own waters."

"[...] in particular from the mixed point of view of legal affiliation, the course of the coast, the same distance and also the expediency, navigability and the desirability of each party to be able to navigate their own waters as much as possible."

- Report and Decision of the Court of Arbitration, Part II, Section 110

The border drawn in this way runs roughly through the middle of the canal. A map is attached to the judgment showing the borderline from longitude 63 ° 48 "W to a point between the island of Nueva and Tierra del Fuego, where the eastern border of the hammer lies. The island of Whaits, the rocks of Snipe, Eugenia, Solitario , Hermanos, Gardiner y Reparo and the Banks Herradura are awarded to Chile. They are all located near the south bank of the Beagle Channel. Argentina was awarded within the hammer all islands and rocks near the north bank of the channel: Bridges, Eclaireurs, Gable , Becasses, Martillo and Yunque.

With the United Nations Convention on the Law of the Sea, which came into force in 1994, the 200-mile zone was recognized . As a result of the arbitration ruling, Chile received further rights in the Atlantic as far as the Antarctic .

Hardening processes and materials

Chapter IV (Sections 112–175) deals with events and materials occurring after the conclusion of the Border Treaty. From the oral and written statements of the Argentine Foreign Minister Irigoyen, the arbitral tribunal first inferred that there were no precise Argentine views south of the Isla de los Estados to Cape Horn and that Tierra del Fuego was always understood only as the main island, not as the entire archipelago. Serious contradictions between the Chilean and Argentine views of the border treaty on the region south of the Strait of Magellan did not arise in the period immediately after the contract was signed. However, from around 1889 onwards, the arbitral tribunal found a noticeable change of opinion on this in Argentina.

Sections 136–163 deal with aspects of Beagle cartography from 1881 onwards . In the last two sections of this block, the arbitration tribunal summarizes that it regards these maps as illustrative material only. His conclusions on the assignment of the islands of Picton, Nueva and Lennox as "south of the Beagle Channel" to Chile are based solely on the border treaty itself.

Similarly, in Sections 164–175, which conclude the grounds of the judgment, sovereign acts of Chile on the islands of Picton, Nueva and Lennox and the lack of official formal Argentine steps against them are examined. They are also not regarded as determining the task of the arbitral tribunal to determine the limit intended in the border treaty, but confirm the decision in favor of Chile.

The judgment

The Report and Decision of the Court of Arbitration was presented to Queen Elizabeth II on April 18, 1977 . The French judge André Gros gave a different opinion, but not with regard to the result, but the justification. The Queen announced the verdict to the governments of both countries on May 2, 1977.

The unanimous decision of the arbitral tribunal in Chapter V (Section 176) reads first:

"(I) that Picton, Nueva and Lennox Islands, together with their immediately appurtenant islets and rocks belong to the Republic of Chile;"

"(I) that the islands of Picton, Nueva and Lennox together with the islets and rocks immediately belonging to them belong to the Republic of Chile;"

“(Ii) that the red line drawn on the attached chart, entitled 'Boundary-Line Chart' - which forms an integral part of the present Decision (Compromiso of 22 July 1971, Article XII (1)) —constitutes the boundary between the territorial and maritime jurisdictions of the Republics of Argentina and Chile respectively, within the limits of the area bounded by the straight lines joining the co-ordinate points ABCDEF specified in Article I (4) of the said Compromiso, and known as the 'Hammer' (Decision, paragraph 1); "

“(Ii) that the red line on the attached map called 'Boundary-Line Chart' - which forms an integral part of this decision ( compromise of July 22, 1971 Article XII (1)) - the boundary between the competences of the republics Argentina and Chile, respectively, form by land and sea within the boundaries of the area bounded by the straight lines connecting the coordinate points ABCDEF, as defined in Article I (4) of the said compromise and here referred to as 'hammer' (decision , Part 1);"

“(Iii) that within this area the title to all islands, islets, reefs, banks and shoals, if situated on the northern side of the said red line, is vested in the Republic of Argentina; and if situated on the southern, in the Republic of Chile; "

“(Iii) that within this area control of all islands, islets, reefs, sandbanks and shoals, if they are on the north side of said red line, is transferred to the Republic of Argentina; and if they are on the south side of the Republic of Chile; "

- Report and Decision of the Court of Arbitration, Part II, Section 176, 1.

Second, the arbitral tribunal also determines

"[...] (Compromiso, Article XII (3)) - that in so far as any special steps are necessary to be taken for the execution of the present Decision, they shall be taken by the Parties, and the Decision shall be executed, within a period of 9 months from the date on which, after ratification by Her Britannic Majesty's Government, it is communicated by the latter to the Parties, together with the Declaration constituting it the Award specified in Article XIII (1) of the Compromiso; "

“[…] ( Compromise , Article XII (3)) - that to the extent that any special steps must be taken for the implementation of the present decision, these are to be taken by the parties, and that the decision within a period of nine months from the date on which, after ratification by Her British Majesty's Government, it was communicated by the latter together with the declaration to the parties that it constitutes the arbitral award defined in Article XIII (1) of the Compromise ; "

- Report and Decision of the Court of Arbitration, Part II, Section 176, 2.

Thirdly, the arbitral tribunal instructs the parties to inform it, through its senior judicial officer, Philippe Cahier, of the legal, administrative, technical or other steps they each or both sides consider necessary to implement the present decision. The arbitral tribunal should also be informed of the steps actually taken to implement the decision in good time and in any case within the above-mentioned period of nine months.

Fourthly, the Arbitral Tribunal declares, last, with regard to Article XV of the Compromise , that it will stand for these purposes until it has informed Her British Majesty's Government of its belief that the award has been substantially and fully implemented and that it will remain available to the parties for so long stand as necessary for the advice and instructions they need to properly enforce the award.

Argentine rejection of the award

Chile accepted the award and had it implemented into Chilean law on June 14, 1977 with decree n ° 416 on the baselines . Argentina, on the other hand, declared the arbitration award null and void in a note to the Chilean ambassador in Argentina on January 25, 1978 and did not feel obliged to comply with it. Chilean acts of sovereignty based on the arbitration award will not recognize it.

In the note, the Argentine government claims that the arbitration award contains "serious and numerous errors" and that it was "made against the norms of international law that the court had to adhere to". The reasons given for this were:

  1. The Argentine reasoning was presented in a distorted manner. In particular, the Argentine view of the location of the Beagle Channel at its eastern exit is mentioned, which according to the documents of the discoverers was set north of Lennox and between Picton and Navarino.
  2. Expressing opinions on subjects that were not the responsibility of the court. The arbitral tribunal's considerations are about islands south of the hammer or the eastern end of the Strait of Magellan.
  3. Conflicting conclusions of the arbitral tribunal. Argentina saw this in the division of the islands in the Beagle Channel or in the question of whether the whole archipelago or just the main island was meant by Tierra del Fuego.
  4. Interpretation error. Various formulation examples from the arbitration judgment are used here.
  5. Geographical and historical errors. Among other things, the card attached to the arbitration verdict is criticized as unreliable. Otherwise, Argentine points of view are cited which the arbitral tribunal did not agree with.
  6. Unbalanced weighting of the arguments and evidence of the parties.

The Investigation The Arbitration Award in the Beagle Channel Dispute assesses these Argentine allegations as poor and the criticism of the arbitral tribunal as unfounded. The Impact of International Law on International Cooperation: Theoretical Perspective judges:

"From a legal and juridical point of view, the Argentine rights over the Beagle Channel islands could not be sustained."

"From a legal and legal standpoint, the Argentine claims to the Beagle Channel could not be upheld."

- Eyal Benvenisti (Tel-Aviv University) and Moshe Hirsch (Hebrew University of Jerusalem) : The Impact of International Law on International Cooperation: Theoretical Perspectives, page 212

Dissolution of the tribunal

In the compromise , the General Treaty for Arbitration between Chile and Argentina of May 28, 1902 was provided as a contractual framework. Among other things, it regulated how to act after an arbitration award:

«Artículo 13) La sentencia es inapelable y su cumplimiento esta confiado al honor de las Naciones signatarias de este pacto. Sin embargo, se admitirá el recurso de revisión ante el mismo Arbitro que la pronunció, siempre que se deduzca antes de vencido el plazo senalado para su ejecución, y en los siguientes casos:

1 °. Si se ha dictado sentencia en virtud de un documento falso o adulterado;
2 °. Si la sentencia ha sido en todo o en parte la consecuencia de un error de hecho, que results de las actuaciones o documentos de la causa. "

“Article 13) The judgment is final and its fulfillment is entrusted to the honor of the treaty-signing nations. An application for an appeal before the same arbitral tribunal that delivered the judgment is admissible if this application is received within the prescribed time limit and in the following cases:

1 °. If the judgment was made on the basis of a false or falsified document.
2 °. When the judgment is, in whole or in part, the consequence of an actual mistake arising from the documents or actions of the process. "
- Chile and Argentina : General Treaty on Arbitration of 1902

However, the Argentine state did not go into revision. In a note, the arbitral tribunal informed both countries that the compromise did not allow unilateral termination of the award and that such attempts

“Must themselves be regarded as nullities, devoid of all legal force or effect. They are not capable of impairing the validity of the Award, which in consequence remains fully operational and obligatory in law ”

“Must be regarded as void, legally irrelevant and pointless. They do not affect the validity of the arbitral award, which accordingly remains mandatory and legally effective "

- International arbitration tribunal in the Beagle conflict : The reality of international law: essays in honor of Ian Brownlie

Despite the Argentine rejection, the arbitral tribunal considered its award to be fulfilled, because the islands awarded to Chile were all under Chilean sovereignty and all islands awarded to Argentina were under Argentine sovereignty. The arbitral tribunal declared itself functus officio (after the work was done) and disbanded, "as it would be extremely abnormal and unique if it were to persist indefinitely because of the lack of cooperation of one party, which would also be an injustice for the other, to the party complying with the award ”.

analysis

The award was a heavy defeat for Argentina's foreign policy, and its rejection initiated a disengagement from the international community that would lead the country into war three years later.

The rejection of the arbitration award in 1978 led both countries to escalate to the brink of war. On December 22, 1978, Argentina launched Operation Soberanía to occupy the islands militarily. Only the papal mediation could stop the outbreak of an armed conflict at the last minute.

Arbitration was not affected by the Falklands conflict, a fact that in Argentina is often disguised or openly denied. Attempts are often made to portray the award as a work of England or the Queen of England in order to suggest bias.

In Chile, the Argentine government's breach of contract remained in the memory.

The arbitration brought the military dictatorships on both sides of the border into a unique and paradoxical situation: in Chile the military celebrated the “wise” decision of Allende, the fallen enemy, and in Argentina the military criticized the “thoughtless” decision of their former colleague in power , General Lanusse.

The arbitration award was recognized by Argentina in the friendship and peace treaty of 1984 between Chile and Argentina and is now part of the set of rules that define the long Chilean-Argentine border.

See also

literature

  • Beagle Channel Arbitration between the Republic of Argentina and the Republic of Chile, Report and Decision of the Court of Arbitration (PDF; 4.9 MB), in English.
  • Mark Laudy: The Vatican Mediation of the Beagle Channel Dispute: Crisis Intervention and Forum Building ( Memento of May 29, 2008 in the Internet Archive ), in English.
  • Alejandro Luis Corbacho: Predicting the Probability of War During Brinkmanship Crises: The Beagle and the Malvinas Conflicts , Universidad del CEMA, Argentina, Documento de Trabajo No. 244, September 2003
  • Karin Oellers-Frahm: The arbitration award in the Beagle Channel dispute (PDF; 1.8 MB), reports and documents: Max Planck Institute for Comparative Public Law and International Law.
  • Ministerio de Relaciones Exteriores de Chile: Relaciones Chileno-Argentinas, La controversia del Beagle . Geneva 1979, in English and Spanish.
  • Rubén Madrid Murúa: "La Estrategia Nacional y Militar que planificó Argentina, en el marco de una estrategia total, para enfrentar el conflicto con Chile el año 1978" , Memorial del Ejército de Chile, Edición Nº 471, Santiago, Chile, 2003, in spanish language.
  • Andrea Wagner: The Argentine-Chilean conflict over the Beagle Channel. A contribution to the methods of peaceful dispute settlement . Publishing house Peter Lang, Frankfurt a. M. 1992, ISBN 3-631-43590-8 .
  • Karl Hernekamp: The Argentine-Chilean border dispute on the Beagle Channel . Institute for Ibero-American Customers, Hamburg 1980.
  • Annegret I. Haffa: Beagle Conflict and Falkland (Malwinen) War. On the Foreign Policy of the Argentine Military Government 1976-1983 . Weltforum Verlag, Munich / Cologne / London 1987, ISBN 3-8039-0348-3 .
  • Isaac F. Rojas and Arturo Medrano: Argentina en el Atlántico Chile en el Pacífico . Publishing house Nemont, B.As. Argentina 1979, in Spanish.
  • Isaac F. Rojas, La Argentina en el Beagle y Atlántico sur 1st party . Editorial Diagraf, Buenos Aires, Argentina, in Spanish.
  • Carlos Escudé and Andrés Cisneros: Historia general de las relaciones exteriores de la República Argentina (read here ), in Spanish.
  • Fabio Vio Valdivieso: La mediación de su SS el Papa Juan Pablo II , Editorial Aconcagua, Santiago de Chile, 1984, in Spanish.
  • Alberto Marín Madrid: El arbitraje del Beagle y la actitud argentina . 1984, Editorial Moisés Garrido Urrea, id = A-1374-84 XIII, in Spanish.
  • Luis Alberto Romero, Argentina in the twentieth Century . Pennsylvania State University Press, translated by James P. Brennan, 1994, ISBN 0-271-02191-8 , in English.
  • Divisional General (retired) Juan E. Gugliamelli: Cuestión del Beagle. Negociación directa o diálogo de armas , in Spanish. (The book is a compilation of several articles on the Beagle conflict that were published in the magazine "Estrategia", Buenos Aires No. 49/50, enero-febrero 1978. The title of the book is, in German, The Beagle Question, direct negotiations or dialogue of arms .
  • General Martín Antonio Balza and Mariano Grondona: Dejo Constancia: memorias de un general argentino . Editorial Planeta, Buenos Aires 2001, ISBN 9504908136 , in Spanish.
  • Francisco Bulnes Serrano and Patricia Arancibia Clavel: La Escuadra En Acción . Editorial Grijalbo, 2004, ISBN 9562582116 , in Spanish.

Individual evidence

  1. ↑ Arbitration Agreement ( Memento of April 10, 2008 in the Internet Archive ) (PDF; 4.9 MB)
  2. ↑ See Rizzo Romano, quoted in "Canal de Beagle: El Laudo arbitral de la corona británica" by José Enrique Greño Velasco in Universidad de La Rioja (page 70)
    La Convención sobre limitación de armamentos comprende cinco artículos, y tiene el privilegio de ser — de acuerdo a Rizzo Romano — the primer convenio en su tipo ajustado entre naciones.
  3. ↑ Report and Decision of the Court of Arbitration ( Memento of April 10, 2008 in the Internet Archive ) (PDF; 4.9 MB) in English.
  4. ↑ Decree n ° 416 ( English , PDF) UN. July 14, 1977. Retrieved October 21, 2019.
  5. ↑ The Argentine Ministry of Foreign Affairs used the word "insubsanablemente" in the communiqué, an adverb not known in the Spanish language that is supposed to express "uncorrectable".
  6. ↑ Karin Oellers-Frahm: The arbitration award in the Beagle Channel dispute. (pdf; 1.8 MB) In: REPORTS AND CERTIFICATES. Max Planck Institute for Comparative Public Law and International Law, 1979, p. 14 , accessed on August 30, 2010 (German).
  7. ^ Eyal Benvenisti: The Impact of International Law on International Cooperation . Cambridge University Press, 2004, ISBN 978-1-139-45606-7 ( limited preview in Google Book Search).
  8. ↑ a b Tratado General de Arbitraje entre Chile y Argentina de 1902 in the Spanish-language Wikisource
  9. ↑ The reality of international law: essays in honor of Ian Brownlie by Ian Brownlie, Guy S. Goodwin-Gill, Stefan Talmon, Oxford University Press, 1999, 592 pages, on page 309 ( limited preview in the Google book search)
  10. ↑ See "Argentina en el Atlántico, Chile en el Pacífico" by Isaac Francisco Rojas, page 45:
    SM Isabel II nombró un consejo para que la asesorase
    (Translation: "Queen Elizabeth II appointed an advisory staff").
    The “advisory staff”, actually the international tribunal, was jointly appointed in 1971 by Chile and Argentina. The book has been approved by the Argentine Ministry of Education for middle schools and universities (circular nr. 191/78 and Disposición nr. 961/78 de SNEP)
    In the domestic politics of Argentina at the time, there were other unusual reasons for rejecting the judgment:
    Because the mandate to the Tribunal was signed by a de facto government. General Lanusse, the President of Argentina in 1971, was actually not democratically elected.
    Or because the mandate had not been ratified by Parliament (see book “La Argentina en el Beagle y Atlántico sur 1. Parte” by Isaac F. Rojas, page 176.)
  11. ↑ See the Argentine newspaper Clarín of February 2, 2005: "... el laudo del 18 de abril de 1977 de un tribunal, que, en 1971, la dictadura de Alejandro A. Lanusse había aceptado que estuviera bajo el influjo de la corona británica ..."  : (Translation: "... the judgment of April 18, 1977 by a British-influenced tribunal that, in 1971, had accepted the dictatorship of Alejandro A. Lanusse ..." Legisladores argentinos y chilenos, rumbo al Beagle. In: clarin.com. May 2, 2005, accessed January 16, 2015 (Spanish).
  12. ↑ See opinion of "the most consistent advocate of rejection", the Argentine professor Rizzo Romano, quoted in "Canal de Beagle: El Laudo arbitral de la corona británica" by José Enrique Greño Velasco in Universidad de La Rioja (page 83)),
    3) Pretender que una nación cuyo Gobierno ocupa y coloniza ilegalmente parte de un distrito administrativo de otro Estado pueda determinar válidamente si otra porción del mismo distrito le corresponde a éste oa un tercer Estado que se encuentra en similar situation but result un motivo principal para que nuestro Parlamento no confirme dicho tattedado.
    4) En caso de aprobarse el Acuerdo Arbitral de 1971, nuestra Nación estaría indirectamente aprobando la invariable posición británica que niega la existencia de una disputa de soberanía sobre Las Malvinas y sus adyacencias con la República Argentina.
    Translation, in square brackets are assumptions made by the translator:
    3) It is absurd and abhorrent to demand that a nation [Great Britain] which illegally occupies and colonizes part [Falklands] of a district [Southern Argentina] of another state [Argentina] should lawfully decide whether to another part [Beagle -Canal], which is also under illegal [Chilean] occupation, is said to belong to the same district [Southern Argentina], to this country [Argentina] or to another [Chile], and that is the main reason why our Parliament should reject this treaty.
    4) Should the 1971 Compromise be adopted, our nation would then indirectly adopt the immovable British position which negates the existence of a controversy over sovereign rights over the Falkland Islands.)
  13. ↑ See statements by the Chilean Foreign Minister José Miguel Insulza , according to which the Argentine government withdrew a border treaty law ("poligonal") from the parliamentary debate in La Tercera  ( page no longer available , search in web archives )  Info: The link was automatically marked as broken . Please check the link according to the instructions and then remove this notice. de Santiago de Chile of July 13, 1998: “Enfatizó que, si bien la situación es diferente, lo que hoy está ocurriendo con el Tratado de Campo de Hielo Sur hace recordar a la opinión pública lo sucedido en 1977, durante la disputa territorial por el Canal de Beagle. "@1@ 2Template: Dead Link / www.latercera.cl  
  14. ↑ See opinion of the (not democratically elected) Senator Jorge Martínez Bush in La Tercera  ( page no longer available , search in web archives )  Info: The link was automatically marked as broken. Please check the link according to the instructions and then remove this notice. de Santiago de Chile of July 26, 1998: "El legislador expuso que los chilenos mantienen 'muy fresca' en la memoria la situación creada cuando Argentina declaró nulo el arbitraje sobre el canal del Beagle, en 1978."@1@ 2Template: Dead Link / www.latercera.cl  
  15. ↑ See statements by the Chilean Foreign Minister Ignacio Walker during the gas crisis with Argentina in the Clarin de BA of July 22, 2005: “Y está en la retina de los chilenos el laudo de Su Majestad Británica, en el Beagle, que fue declarado insanablemente nulo por la Argentina. Esa impresión todavía está instalada en la sociedad chilena. "
  16. ↑ See also “Reciprocidad en las Relaciones Chile - Argentina” by Andrés Fabio Oelckers Sainz in PDF ( memento of the original from July 2, 2007) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. : "También en Chile, todavía genera un gran rechazo el hecho que Argentina declarase nulo el fallo arbitral británico y además en una primera instancia postergara la firma del laudo papal por el diferendo del Beagle" @1@ 2Template: Webachiv / IABot / www.uvm.cl
  17. ↑ See the opinion of the Director académico de la Facultad Latinoamericana de Ciencias Sociales (Flacso), en Santiago, Chile, Francisco Rojas in La Nación ( memento of the original from October 3, 2008 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. de Buenos Aires of September 26, 1997: "Desde la Argentina, cuesta entender el nivel de desconfianza que hoy existe en Chile a propósito de la decisión que tomó en 1978 de declarar nulo el laudo arbitral" @1@ 2Template: Webachiv / IABot / www.ser2000.org.ar
  18. ↑ See also the remarks by the Chilean Defense Minister Edmundo Pérez Yoma in the “Centro Superior de Estudios de la Defensa Nacional del Reino de España” to justify Chile's defense spending. They appeared in the Argentine newspaper El Cronista Comercial ( Memento of October 3, 2008 in the Internet Archive ) on May 5, 1997: … Y que la Argentina estuvo a punto de llevar a cabo una invasión sobre territorio de Chile en 1978… . These explanations were later put into perspective by the Chilean government (see - ( Memento of October 3, 2008 in the Internet Archive )), but could no longer be removed from the world
  19. ↑ The treaty of 1984 says nothing about the affiliation of the islands, instead it refers in Article I to its subordination to the treaty of 1881 and ... sus instrumentos complementarios y declaratorios ... (translation: “... their supplementary and legally binding instruments ...) and in Article VII it defines the maritime border ... a partir del término de la delimitación existente en el Canal Beagle, esto es, el punto fijado por las coordenadas 55 ° 07 "3 de latitud Sur y 66 ° 25" 0 de longitud Oeste, ... , (Translation: ... from the end of the existing demarcation in the Beagle Channel, that is, the point defined by the coordinates 55 ° 07 "3 S and 66 ° 25" 0 W, ... “, that is the point determined by the Tribunal at the eastern end of the Beagle Channel). Thus, the islands remained under Chilean sovereignty, but the maritime border was moved west.