These consequences will also find support in Chile’s acknowledgement that all the Atlantic basins belong to Argentina. In this case the claim and the acknowledgement have the same consequences; and they are moreover joined at the root, because Chile would have accorded recognition to land which it did not claim. A determination of what Chile’s claim was at that time will also determine, implicitly, which areas Chile recognized as being under Argentine sovereignty.
It is further necessary to determine Chile’s present territorial claim, compare it with the claim of 1898-1902 and decide whether it subtracts anything from what was recognized as belonging to Argentina at the time of the arbitration, and therefore whether Chile is today asking for more than it sought at that time, with the consequent collapse of its entire present claim.
In concrete terms, would the upper las Vueltas basin, situated to the north and west of what at the time of the arbitration was regarded as the continental water-divide and today is known for certain, as a result of surveys carried out since then, to belong to the Atlantic slope, have fallen outside the competence of the Arbitrator in 1898-1902 because it was not in dispute? If the answer is in the affirmative, the upper las Vueltas basin would lie outside the competence of the present Court as well.
There is nothing better than the language of the Parties for siting this question within the context of the causes and the circumstances of the present dispute. First, the problem will be stated by means of quotations culled from the many written and oral submissions of the Parties. Then an attempt will be made to render things clearer and more precise by reference to primary and secondary sources and the relevant developments at the time and to assess their influence on the interpretation and application of the 1902 Award.
It was not a question of tacit recognition, which may always give rise to difficult problems of interpretation concerning the conduct of a State. Using the language frequently cited in the legal literature, it is a question of "the adoption of a positive acknowledgement on the part of the State".... in 1902 Chile’s attitude was not one of silence or mere acquiescence but a positive one, for it recognized that the Atlantic hydrographic basins belonged to Argentina (MA, p. 337, 8).
Furthermore, "subsequent developments, from 1902 up to the present dispute, show that Chile’s conduct has been invariable in this respect; it has never claimed basins of rivers or lakes which discharge into the Atlantic, throughout the lengthy process of demarcation which has taken place since that time". "If in its interpretation of the 1881 Treaty submitted to the British Arbitrator Chile recognized the Atlantic basins as belonging to Argentina, it may not now discuss such sovereignty." (MA, p. 341, 12, and p. 343, 14)
Argentina reiterated the same argument in its counter-memorial. The following is one example of many relevant passages: "The line which Chile is requesting in these arbitration proceedings, based on a supposed "interpretation" of the 1902 Award", disregards Chile’s extreme claim for the sector in 1898-1902. By this sole fact, not to mention others, this line cannot correspond to the boundary decided upon by the 1902 Award. At no point did Chile seek from the British Arbitrator a line which would award to Chile basins or parts of basins on the Atlantic slope, and it did not do so, therefore, with regard to the basin of the River de las Vueltas. What Chile requested was all of the basins which discharge into the Pacific Ocean and only those basins." (Argentine counter-memorial, p. 27, para. 22). (Hereinafter this counter-memorial will be referred to by the abbreviation CA and the paragraph numbers will follow the page numbers.)
The importance of Chile’s extreme claim in 1898-1902 for the purposes of an interpretation of the 1902 Award lies in the fact that the las Vueltas basin was not claimed by Chile (CA, p. 27, 21).
In the oral submissions Argentina presented this point as the most important of its arguments to prove that the entire las Vueltas basin, as it is known today, was excluded from the competence of the Arbitrator in 1898-1902. It stated two grounds: Chile did not claim the basin and recognized that it belonged entirely to Argentina.
If a State recognizes that a territory belongs to another State, such recognition precludes the first State from subsequently claiming what it had previously recognized as belonging to the other State (record No. 12 of 28 April 1994, p. 55).... the said continental divortium aquarum was also to the south of Lake San Martin, as in the other areas, and was the "true" one on the ground, i.e., the natural and effective water-parting of the South American continent (record No. 10 of 26 April 1994, p. 33).
Accordingly, despite Chile’s claims in the present arbitration the 1902 Award could not have assigned to Chile, in the sector between boundary post 62 and Mount Fitzroy, either Lake del Desierto or the valley of the River Diablo or any other part of the Atlantic basin of the River de las Vueltas, which is, in turn, part of the lacustrine basin of Lake Viedma. Both Atlantic basins had been excluded from the territorial competence assigned by the Parties to the British Arbitrator (record No. 10 of 26 April 1994, p. 24).
In 1958 Chile, in contradiction with its earlier acts contemporaneous with and subsequent to the 1898-1902 arbitration, began to cla im a part of the Atlantic basin of Lake Viedma, which included inter alia the valley of the River Diablo and Lake del Desierto (record No. 19 of 16 May 1994, pp. 39-40).
Many more such passages can be cited:
In Argentina’s opinion, Chile contradicts its earlier position because in 1992-1994 it is claiming territory which it recognized as Argentine before and during the 1898-1902 arbitration. Chile recognized as Argentine the territory to the east of the natural and effective continental water-divide (record No. 12 of 28 April 1994, pp. 48 and 54).
Chile’s argument must be dismissed in the light of its own position and the competence ratione loci of the Tribunal in the 1898-1902 arbitration... Chile’s claim is located beyond and outside its extreme claim during the 1902 arbitration (record No. 14 of 2 May 1994, p. 9). The effects of Chile’s territorial claim and the recognition that went with it have four consequences for the present dispute: (1) application of the principle of estoppel; (2) determination of the territorial competence of the 1902 Arbitrator so as to exclude from the competence of the present Court the entire de las Vueltas basin as it is known today; (3) application of the principle that it is impossible to award more than what has been requested in the case; and (4) the res judicata (record No. 19 of 16 May 1994, pp. 86-87).
Chile has also stated on this question: "For the moment it is sufficient to stress that the claims of the Parties were both submitted to the Tribunal in the form of lines drawn on maps and that, without adhering to those lines, the Tribunal made its decision, also shown as a line drawn on a map" (CCH, p. 46,4.4).
Chile is obliged to reject the conclusion drawn by Argentina that "both Governments... recognized that the whole hydrographic basin of Lake Viedma belonged to Argentina". The arbitration proceedings in relation to this area were conducted on the basis of lines drawn on maps. Any speculation about the position which Chile might have taken if the true geographical facts had been known cannot affect the scope of the claim actually made by Chile or the interpretation of the words actually used or the identification of the claimed result by the Tribunal on the basis of the terms used (CCH, pp. 47-48, 4.5 (iii)).
Chile transcribes the following passage from the Argentine memorial: "Consistent with its position, Argentina requested the Arbitrator in its petition to accept as the boundary the points proposed by its expert and indicated by the numbers 1,2,267-274, 282-302 and 306, and to reject the points proposed by the Chilean expert and indicated by the numbers 1-9,257-262,271-330 and 333-348".
Chile comments: "From Chile’s standpoint the form in which the Argentine memorial records Argentina’s position offers the most effective support of Chile’s assertion that, ultimately, what mattered in the 1902 arbitration was not the general and doctrinal principles stated by the two Parties as their respective interpretations of the 1881 Boundary Treaty but the graphic expression of these interpretations, represented as lines which actually passed through definite points specifically identified and numbered by the Parties" (CCH, p. 51,4.11 and 4.12).
Nor does Chile deny having said that the application of the principle of the continental divide would not require at that time maps providing an accurate picture of the area, for the subsequent application of this principle would be sufficient to identify the boundary. But this does not mean that Chile had accepted, as a consequence, that the identification of the boundary on the ground could be postponed for an indefinite period after the Award or that, whatever proved to be the boundary which the Parties had regarded as such in the meantime, this boundary could be altered by the subsequent discovery of the true geographical facts (CCH, p. 52, 4.14).
Chile drew on a map the line which it claimed. The Tribunal, like Argentina, regarded that line as representing the Chilean claim, and the Award was made on the basis of its depiction on the Arbitrator’s map (CCH, p. 54, 4.17).
Chile mentions map X submitted to the Arbitrator by Argentina, which contains the legend "showing...the frontier line proposed by Chile for the whole length of the continental water-parting". On the same map we read: "The continental water-parting, where the Chilean expert places his line, as shown on maps ii, iv, v, vii, x and xi, is not mentioned in the Treaties or in the documents on the boundaries question up to 1898..." Chile comments: "This map and its accompanying legend make it clear that Argentina accepted that the line claimed by Chile was depicted on the map and was not a line to which a verbal or geographical definition could not be attached". "This applies equally to the following map, No. XII in the Argentine memorial" (Chilean memorial (hereinafter MCH), p. 55,4.18 (1) and (2), and footnote 29; MA, maps, p. 11).
Similar comments may be made about the two other maps in the Argentine collection, i.e., maps XIII and XIX. The main map described by Argentina in this section is map XVIII. This map confirms everything stated above about the acceptance and reproduction by Argentina of the two lines claimed by the Parties, which are shown on the map as representing the extent of their claims (CCH, p. 56, 4.19 (4), and p. 58, 4.23).
Between latitudes 41°S and 51°S the geography changed: the high peaks, running north-south, were now cut by valleys and rivers running east-west, and the continental water-divide lay a considerable distance away and sometimes deep within the Pampas on extremely low ground. The high mountain peaks no longer separated the waters, so that they no longer obeyed the general rule on boundaries, and the approach taken in the northern and central parts of the common frontier was no longer possible. The principle of the high peaks which separate the waters could no longer be applied.
Four regions of disagreement were identified: the First Region, known as San Francisco Pass, which began at the point where a boundary mark had been erected by agreement between the Parties; the Second, called Lake Lacar; the Third, known as Pérez Rosales Pass-Lake Viedma; and the Fourth, identified as Ensenada de la Ultima Esperanza [Last Hope Inlet]. The present dispute concerns territory in the southern part of the Third Region.
The geography which separated the high peaks and the continental waterparting was the cause of the difficulty of applying the delimitation principle which associated peaks with water-parting. In these four regions, where the high peaks and the continental divide were separated by large distances, it was impossible to apply the delimitation principle on the agreed terms. The original principle was thus undermined by the geography.
The principle which associated high peaks with continental divide produced two further principles, that of the high Andean peaks advocated by Argentina and that of the continental water-parting advocated by Chile, head-to-head and in determined competition to secure the assent of the other Party throughout the work of the commissions established for implementation of the boundary treaties and, later, to obtain the backing of the Arbitrator. Each Party, on the basis of the treaties whose application had been thrown awry by the unforeseen geography of the Andes, chose the principle which best fitted with its territorial claims.
Thus, Argentina made the high Andean peaks the centre of its claim, and Chile opted for the continental water-parting. The British Arbitrator, called upon to apply the treaties, could not satisfy these competing principles, given his agreed terms of reference, and he devised and implemented a compromise solution, which was previously accepted by the Parties; he thus decided upon an intermediate line, in the tracing of which he took into consideration, in addition to the geography, the value of the land, including its development potential, and its population and the strategic interests (MA, Annex of Documents, vol. I, document No. 35, Holdich, "Considerations Other than Geographical Which Must Affect the Decision of the Tribunal", pp. 385-392).
Argentina says that Chile began with a position of principle, which it advocated with tenacity and did not alter throughout the arbitration, and that to assert the contrary is to deny the obvious. It then adds that all the quotations show very clearly that Chile maintained that a natural and effective continental water-parting was the general boundary criterion which should be followed for the whole length of its frontier with Argentina, in accordance with the provisions of the boundary treaties of 1881 and 1893. Finally, Chile recognized as Argentine the territory to the east of the natural and effective waterparting. Completing its presentation, Argentina argues that Chile’s statement of its claim was not, however, structured in terms of lines on a map (MA, pp. 75-76, 21 and 22, pp. 99-104, 39, and pp. 119-121, 50; CA, pp. 26-27, 20, pp. 29-30, 28, and pp. 31-33, 28-30).
Argentina states that "a simple comparison of these three maps shows clearly that the depiction of Chile’s position in 1898-1902 was not a line fixed on a map, as Chile claims today, but rather a dynamic representation which was adapted as geographical knowledge evolved (record No. 9 of 25 April 1994, p. 7). "In short, Chile claimed that the Arbitrator had ruled on the applicable principle of delimitation and that he had accepted that this principle was the continental water-parting" (MA, p. 115, 47).
Other quotations from the oral submissions support the Argentine thesis. "The eastern limit of the area falling within the competence of the British Arbitrator was...a natural limit, the natural and effective water-parting of the South American continent, and not the cartographic representations of this natural limit on any map or plan, whatever its origin" (record No. 20 of 17 May 1994, p. 7). "It is important to bear in mind that the Tribunal realised that the "extreme claims" of the two Parties were not the lines as drawn on the maps" (record No. 12 of 28 April 1994, p. 74).
Chile’s claim "was not a line fixed on a map, as Chile asserts today, but rather a dynamic representation which was adapted as geographic knowledge evolved, for it represented the course on the ground of the natural and effective continental water-parting" (record No. 9 of 25 April 1994, p. 7).
The succession of geographical descriptions and cartographical representations of the continental divide submitted during the British arbitration had for Chile no more than a merely tentative and illustrative value, always subject to revision depending on the true line of the natural continental water-parting on the ground. During the British arbitration the geographical descriptions and cartographical representations of the "continental divide" in the area to the south of Lake San Martin were evolving in step with improvements in the knowledge of the geography and topography. However, at no point did Chile adopt any of these successive cartographical representations as the "specific" line of its extreme claim, which remained throughout the arbitral proceedings the "natural and effective water-parting" wherever it was located on the ground (CA, pp. 29-30, 25).
Against the background of this interpretation, Argentina comments that it is not for nothing that paragraph 10 of the report of the Arbitral Tribunal "does not mention the claims as being depicted on maps", and Argentina goes on to say that "for the Tribunal Chile’s line was the natural and effective continental water-parting, regardless of the maps, and could not be anything else when Chile itself kept telling the Tribunal that any deficiency of geographical information on the Chilean maps was of no importance" (record No. 12 of 28 April 1994, pp. 75-76).
Chile, in contrast, argues that "the claims of the Parties were established as specific lines described with some precision and represented visually on maps", and that "for each Party the demarcation of its claim in the form of a line on its map running from one numbered point to another brought the dispute between the Parties to a head in 1898" (CCH, p. 134, 8.4). Accordingly, in opposition to the Argentine thesis that Chile claimed solely a concept or principle, Chile argues that it claimed a concrete line marked on maps.
In order to determine one’s position on this issue it is necessary to examine directly the documents which constituted the 1898 Arbitral Compromis, i.e., the records of the experts and the agreement of the representatives of Argentina and Chile to submit the points of dissent to the British Arbitrator.
These are records of the meetings which the experts held on 29 August and 1 and 2 September 1898 and of the meeting in Santiago between Chile’s Minister for Foreign Affairs and Argentina’s Minister Plenipotentiary on 22 September of that year with the experts in attendance. At these meetings the points of agreement and disagreement were established, and the two countries, having exhausted the possibilities of reaching a direct understanding, finally decided to submit the points of disagreement to the British Arbitrator for adjudication.
"The Argentine expert, that it would be four days before he could submit a general map, similar to the one submitted by the Chilean expert, of the part of the Cordillera de los Andes lying between parallels 38° and 52°... but that he would be happy to make available to his colleague, at the office of the Argentine Commission, the partial sheets of a 1:200,000 map, in the expectation that he would in turn be able to examine, at the Chilean office, the partial sheets which had been used in the preparation of the full map", (para. 82)
At the same meeting the Argentine expert stated:
"8. He regards it as essential and so proposes to the Chilean expert that the experts should exchange photographic reproductions, or reproductions of any other kind, of the partial maps used in determining the general line proposed by each of them, and that these reproductions should contain indications of the points and sections of such lines" (para. 88).
"9. They should also exchange reproductions of the same maps showing clearly the points or sections of the general frontier line" (para. 89).
The same record contains other references to maps. The Argentine expert added:
"10. Having made the comparison referred to in proposal 4, they should enter on reproductions of the same maps the changes made in the course of the general line by the two experts on their respective maps" (para. 91).
"11. Once proposal 5 has been carried out, they should enter [in the record] reproductions of the same maps" (para. 92).
"12.... including the proposed lines, the lines rejected and accepted for the whole or part of the extent [of the frontier], accompanied by reproductions of the same maps containing specific depictions of the various lines" (para. 93).
There are further references to maps in the record of 29 August. The Argentine expert again:
"13. They should at the same time exchange reproductions of the maps on which they had drawn the dividing lines proposed for adoption, in the event of the case provided for in the said protocol and agreement" (para. 94).
"14.... and of the various reproductions of the maps which they have taken into account in the formulation of decisions..." (para. 95).
"16. The reproductions of all the maps referred to in this general record shall show the area of the demarcation, on a scale of not less than 1:400,000, and they shall be signed by the two experts" (para. 96).
"17. When all this has been done, the two Parties will have completed the representation of the general frontier line between the Argentine Republic and the Republic of Chile" (para. 97).
"18.... the experts shall deliver to their assistants copies of the maps on which the approved points or sections of the dividing line have been entered" (para. 98).
It seems that at the meeting of the experts on 1 September 1898 (MA, Annex of Documents, vol. I, Document No. 15, pp. 137-138) the Chilean expert "proposed that the part concerning the exchange of copies of maps should be amended as follows: both experts shall in future deliver to his colleague at his office all the individual maps or sets of maps available from the ones which have been used in formulating the proposal of his general line, so that each expert may consult, copy or reproduce them as he sees fit. They shall also undertake to certify with their signatures all duly verified copies or reproductions" (para. 3). The Argentine expert replied that "he would have no difficulty in accepting the amendment proposed by the Chilean expert concerning the exchange of maps" (para. 5).
These quotations demonstrate the importance of the maps in the determination of the points of agreement and disagreement on the frontier line between Argentina and Chile. The experts made their partial maps available to each other and resolved to certify the reproductions with their signatures and exchange maps without restriction; and they mentioned the exchange of partial maps representing clearly the points or sections of the general frontier line.
In addition, the experts agreed to enter on the maps any changes in the course of the general line and to depict the differing dividing lines which they sought to have adopted. Lastly, there is the reference to "the maps which have been taken into account in the formulation of decisions". These abundant references to maps, evidence of their widespread use, mean that the Parties used maps to determine their points of agreement and disagreement concerning the common frontier.
It is worth mentioning the statement of the Chilean expert on 29 August 1898 that "he has established a general line of the Andean frontier between Chile and Argentina", which "he submits to his colleague on a map and as a numerical list of points included below" (para. 2). "The description of the dividing line proposed by the Chilean expert" (para. 18) does in fact appear later in the same record. It is followed by a description of the proposed line by means of toponyms and numbered points (paras. 19-75). Here it is stated that Chile presented "the general line of the Argentina-Chile frontier... on a map and as a numerical list of points and sections".
Here are the words of the Chilean expert:
(1) "that he has established a general line of the frontier..." (para. 2);
(2) "the delineation of this line has been based solely and exclusively on the demarcation principle established in the first clause of the 1881 Treaty..." (para. 3);
(3) "that accordingly the frontier line which he proposes passes..." (para. 4);
(4) "that the same line leaves..." (para. 5);
(5) "... to conclude... the deliberations of the experts concerning the general line" (para. 7);
(6) "the description of the dividing line proposed by the Chilean expert which, at his request, is to be inserted in the record is as follows:..." (para. 18);
(7) "... would have no problem in stating that the course of the general line which he has proposed is in conformity with the provisions of the articles of the Treaties and Agreements cited by the Argentine expert" (para. 80).
The record repeats, then, that the Chilean line was depicted on maps. A depiction is a drawing or other portrayal of a person or thing. What is depicted by a line can be, for example, "the course or direction of a road, canal, railway line, highway, etc.". In the language of the records what is depicted as a line is the course of the frontier.
Elsewhere the Chilean expert says "that although in its most extensive and important parts the ground across which the dividing line runs is sufficiently well-known and even extensively surveyed,... it must nevertheless be pointed out that the topographical location of the proposed line is entirely independent of the accuracy of the maps and that, for this reason, he states that this line is none other than the natural and effective water-parting of the South American continent" (para. 6).
The Chilean expert adds "that the Argentine expert has submitted his general line with a numerical list of points and sections accompanied by fairly concrete and precise indications for identifying them on the ground by any natural feature" (para. 8).
The record of 22 December (MA, Annex of Documents, vol. I, document No. 17) contains the following statements: "the said officials have entered the line which each of them believes should separate the Argentine Republic from the Republic of Chile"; "the line of the Chilean expert begins..."; "the lines of the two experts coincide..."; "the line of the Chilean expert diverges from the line of the Argentine expert at the points and sections..." (paras. 1, 2, 3 and 4).
The record of 22 September repeats that the proposed lines are the ones which the experts consider to separate Argentine and Chilean territory; and it is stated that the lines coincide or diverge at this or that point. The points of coincidence and divergence were established by reference to lines; and the records tell us that the lines were described by means of toponyms and points and sections numbered and depicted on maps.
These quotations show that in formulating their proposals both Parties translated the underlying principles into concrete points and that these points were marked on maps. The references to lines are continual—unlike the references to principles, except Chile’s statement that its line is in conformity with the principle established in the 1881 Treaty and the reiteration of Chile’s interpretation of that Treaty to the effect that it accorded preference to the continental waterparting. From this material we can infer the interrelationship between the chosen principle and its descriptive and graphic representations.
The Chilean expert then added: "4. Once the two lists have been compared, each of the experts will have an opportunity to offer any clarifications or comments or any amendments which he wishes to make to his original proposal in the light of the geographical data contained on the maps submitted by his colleague, which shall be entered in the record" (record of 29 August, paras. 86-88).
Thus, the points of agreement and disagreement were determined by comparing the experts’ lists. List means an enumeration of items. In this case the relevant items were the toponyms and points and sections in the experts’ proposals. A comparison of the lists of toponyms and points and sections produced the concrete versions of the respective territorial claims.
The experts also envisaged the possibility of making changes in their respective lines in the light of the maps submitted to each other: "in the light of the geographical data contained in the maps submitted by his colleague".
According to the record of 22 September 1898, on that date Chile’s Minister for Foreign Affairs and Argentina’s Minister Plenipotentiary agreed to submit to the British Arbitrator the points of disagreement identified in the experts’ records. Accordingly, they sent to the British Arbitrator a copy of the record of 22 September and "[copies] of the records of the experts and of the international treaties and agreements in force in order that, in accordance with the second clause of the Compromis of 17 April 1896, he may resolve the differences noted above" (para. 7). (MA, Annex of Documents, vol. I, document No. 17, pp. 149-152)
The fact that the record of 22 September did not mention any plans or maps among the documents sent to the Arbitrator has been interpreted as confirming that the concrete expression of the claims of the Parties did not take the form of plans or maps.
This fact does not vitiate or devalue the use of maps at the meetings of the experts or their use to identify the points of agreement and disagreement. Argentina submitted its first map on 17 January 1899, and Chile its in February of that year. From that date the filing of maps and their description in written submissions was a keynote of the arbitral proceedings.
The points and sections of disagreement were specified as follows: "That the line of the Chilean expert diverges from the line of the Argentine expert at the points and sections designated... by the numbers...271-330 by the Chilean expert and 282-303 by the Argentine expert..." The current dispute concerns points of divergence 330 (Chile) and 303 (Argentina), to the north, and points of coincidence 331 (Chile) and 304 (Argentina), to the south. Points of coincidence 331 (Chile) and 304 (Argentina) mark Mount Fitzroy.
The points coincided with respect to Mount Fitzroy because, owing to their lack of geographical knowledge, the Parties believed during the deliberations of the experts in 1898 that Mount Fitzroy was a high Andean peak situated on the continental water-divide. This meant that it satisfied the requirements of the 1881 Treaty and the 1893 Protocol for designation as a point of the frontier. Later, in the course of the arbitration, although it was known that this mountain was not situated on the continental water-divide, the Parties left their agreement untouched.
The record of 1 October 1898 (MA, Annex of Documents, vol. I, document No. 18, pp. 153-155) clearly repeated the points of agreement with a view to entrusting their demarcation to four mixed commissions. This record reads as follows: "1. That, as a result of the comparison of the general frontier lines submitted by the Argentine expert as contained in the record of 3 September last and by the Chilean expert as contained in the record of 29 August, the points and sections of the Argentine expert numbered 3-266, 275-281 and 304-305 coincide with the points and sections of the Chilean expert numbered 10-256, 263-270 and 331-332, they resolve to accept them as forming part of the dividing line in the Cordillera de los Andes between the Argentine Republic and the Republic of Chile" (para. 2).
This record refers to "points and sections", so that, the description beginning from the north, the numbers refer first to the points and then to the sections, i.e., to the lines running southwards. The numbers correspond both to the points and to the sections. This is stated in the records: "The points and sections designated by the numbers..." (record of 22 September, para. 3)
The sequence is established between points and sections, not between sections and points. When the number of a point is given, the section identified by the same number is the line running southwards as far as the next point; and each section is identified by the same number as the point at which it begins.
When there is a discrepancy between points on the two lines it is understood that this discrepancy also exists with respect to the sections running southwards. Accordingly, the discrepancy between points 303 (Argentina) and 330 (Chile) continues southwards until the line reaches the next point, which in this case is Mount Fitzroy, numbered 304 (Argentina) and 331 (Chile).
It will be noted that with respect to the points and sections relevant to the present dispute the coincidence of point 331/304 continues throughout the section running southwards as far as the next point, 332/305. The discrepancy between points 330 and 303 continues with respect to the section running southwards and coinciding on Mount Fitzroy (point 331/304). The points coincided from Mount Fitzroy onwards. The Arbitrator had no doubt that the points and sections of disagreement numbered 303 and 330 fell within his competence. The preparatory work and the outcome of the Award confirm this.
An examination of these materials can be boiled down to the determination of the number corresponding to the section between points 330 and 331, because if it turns out that this is not section 331 but 330, the stated consequences can be disregarded, because once the cause has been eliminated, the effect disappears.
The record of 22 September lists the points and sections of agreement. It states that the lines of the two experts coincide "at the points and sections designated by the numbers...; and finally at those numbered 331 and 332 by the Chilean expert and 304 and 305 by the Argentine expert" (para. 3).
The records make specific mention of the points and sections of agreement and disagreement. They indicate the number and whether there is agreement or disagreement and they refer both to the point and to the section running southwards from it. Agreement was not reached on Chilean point 330 but there was agreement on Chilean point 331. The failure to agree on point 330 extended to the section also bearing the number 330 and running southwards as far as the point and section numbered 331.
Since the lines ran parallel to each other, there was agreement and disagreement as to whether some of the points and sections of both Parties corresponded in the descriptions and depictions of the lines on maps. Even if the sections ran from south to north, which was not the case according to the description of the general frontier line contained in the records of the experts, the same attitude would have to be taken to section 331 as to section 304. Section 330 could not have been disputed, even if it was assigned number 331, without the dispute also covering section 303, to which had been assigned number 304; and if there had been agreement on section 330 there would also have been agreement on section 303. The sections between Lake San Martin and Mount Fitzroy were within the competence of the 1898-1902 Arbitrator, regardless of their numbers, and the Arbitrator ruled on them. Here the ex post facto argument seems solid.
The statement of the Chilean expert that his line followed solely and exclusively the continental water-parting of the South American continent is preceded by another statement: the Chilean expert "has established a general line of the Andean frontier between Chile and Argentina specified in the 1881 Treaty, which he submits to his colleague on a map and as a numerical list of points included below". This general statement precedes and provides the context for the series of subsequent statements and indicates that this is a line based on the 1881 Treaty and represented on a map and by a numerical list of points.
A key element of the proposal appears at this point: the numerical list of points transposed onto a map. Further on in the same record of 29 August are found details of the points and sections and a description of the line with its toponyms. The importance of the maps is thus confirmed, not as secondary materials but as materials essential to the claims of the Parties.
It must be pointed out that the claims of the Parties would have been unintelligible if they had not been expressed as lines drawn on maps. If even the most learned person were given the records of the experts without the maps, he would be hard put to understand the point of the dispute. And if he sought guidance from the toponyms, he would have to use maps to see where each river or peak was located. And it must be noted that the descriptions did not include the identification of geographical features in terms of degrees, minutes and seconds.
In a submission to the Arbitrator Chile associated its line with its map, which it called official: "That the information in the Chilean proposal about a frontier line contained in the records, in 1898, is sufficient for the identification and demarcation of the line throughout its total extent and that the depiction of this line on Chile’s official map submitted with the records agrees with the description and is substantially correct" (Chilean Statement, ch. XXVIII; MA, ibid., document No. 6, p. 273).
Still on the use of maps, the Chilean statement added: "The examination of the ground covered by the Treaties will be undertaken with the aid of the maps annexed to the present statement of evidence" (ibid., p. 274).
An examination of the lines and maps mentioned in the records of the experts shows that the Parties were arguing about two principles, in the sense that each of them endeavoured to secure victory for the principle which suited it best: Argentina the high Andean peaks, and Chile the continental waterparting.
Each of these principles was manifested in terms of toponyms and numbered points and sections. The common source of the two positions was the 1881 Treaty and the 1893 Protocol. The respective principles were the guideline, foundation and legal justification of the toponyms, points, sections and lines of the competing claims.
The experts compared materials of the same kind to determine the general line of the frontier and identify the points and sections of agreement and disagreement. Reduced to a confrontation between a principle and a concrete line, the dispute would have introduced an internal imbalance both in the petitions and in the proceedings. Furthermore, the results could not be permanent for one of the Parties and variable and dependent on subsequent geographical discoveries for the other.
During the arbitration Chile moved the pecked line shown on plate IX further to the north from the position which it had occupied on its 1899 map. The parties to an international dispute can alter their claims during the judicial or arbitral proceedings, and the final submission determines the plea in question. The Argentine line was also altered between points 302 and 303: from its south-south-east direction in the records of the experts, on the basis of which the Parties agreed to submit the dispute to the British Arbitrator, it was shifted through a right-angle to a south-west direction in the statement and maps submitted to the Arbitrator (MA, Annex of Documents, document No. 27, "Chilean Statement", ch. XL, p. 284).
Although Chile’s pecked line now occupied a different position on plate IX, this last depiction constituted its final location. The Arbitrator ruled on the basis of this final representation of the continental water-parting. Following his decision the situation was consolidated by the res judicata and consequently the variability referred to above ceased.
Both at the meetings of the experts and in its submissions to the Arbitrator Chile reiterated the advantage of the adoption of the continental water-parting—that it could generally be identified by surveying the ground. According to this argument, if anyone is told to trace a line by following this water-parting, all he has to do is to go to the spot and observe the flow of the waters.
Chile’s second submission to the Arbitrator clarifies the role of the maps with respect to the continental water-parting. Chile said that "it had never proposed subordinating the demarcation to the maps since they were not necessary, either for establishing that there existed a true and single line separating the waters between Chilean and Argentine territory or for finding and identifying that line on the ground". One can agree with the statement that maps are not necessary for establishing that a continental divide exists on the South American continent or for identifying that divide on the ground, for it can be found by means of exploration.
Part of the grey area enveloping this problem can be clarified by distinguishing between the guiding principles—the high Andean peaks and the continental water-parting—and the lines which represent them. This distinction is implicit throughout the arbitral proceedings. The claims could not be reduced to principles nor could they lack parallelism and balance, because they necessarily had to be claims of the same kind, i.e., claims represented as lines on maps.
Thus, the principles came on the scene as the basis, foundation and legal justification of concrete lines which were manifested in terms of points and sections designated by numbers and described by toponyms, as can be seen from the records of the experts.
The Parties were not in dispute merely about principles, nor was one arguing about a principle and the other about a concrete line. Both were arguing about lines based on principles. And there can be no other possibility in the light of the records of the experts and the circumstances of the proceedings themselves. The Parties argued in reference to a continental water-parting in full knowledge of the uncertainty attaching to some of its sectors.
In this context, the point is not that the maps were unofficial but that their accuracy was not an essential condition without which the Arbitrator could not have adopted a line based on the continental divide. Generally speaking, the maps of the time were by no means renowned for their accuracy and technical quality, according to Holdich (MA, Annex of Documents, vol. I, document No. 32, "Narrative Report of the Chile-Argentine Boundary Commission", pp. 300-334).
The Chilean expert’s statements were not enough to convince the Arbitrator, who opted for an intermediate line between the extreme claims of the Parties, i.e., between the high Andean peaks and the continental water-parting as known at the time. The documents of the preparatory work of the Award contain abundant references to a compromise line and they specify how and when the Parties gave their consent thereto.
Inaccuracy is not the same thing as non-existence. Inaccuracy means a lack of precision and finish and, accordingly, the possibility of subsequent changes and additions. Something regarded as inaccurate does exist but it exists subject to possible correction. Chile changed the line of the continental water-parting during the arbitration, including the line in this sector, by means of two documents which have a unity of meaning: the Chilean Statement, the relevant chapter of which is No. XL, and the map known as plate IX.
The possibility of changing the line was closed by the final Chilean presentation and then sealed by the Award, which crystallised the claims of the Parties in their final expression and determined definitively the territorial competence of the Arbitrator. That moment marked the end of the possibility of changing, for better or for worse, the lines claimed by the two Parties, for that was now precluded by the res judicata.
Maps are not isolated documents but integral parts of submissions, either of claims or of arguments. For example, plate IX cannot be considered in isolation from the corresponding Chilean Statement; on the contrary, the two documents are bound together by a unity of exposition and meaning. All the maps submitted to the Arbitrator by the Parties contained a graphic representation of the Argentine and Chilean claims, and the Argentine maps made a graphic distinction between explored and unexplored zones. One cannot really see the reason for discounting the message contained in the plans and maps.
(1) The representatives of the two countries which decided to submit the territorial dispute to adjudication by the British Arbitrator (record of 22 September 1898) mentioned the submission to the British Arbitrator of the records and international treaties and agreements in force, but there was no mention of the maps.
(2) Argentina states that paragraph 2 of the arbitration report indicates that an examination was made of copies of the treaties, agreements, protocols and documents provided by the Parties, but it makes no mention in this context of maps or of lines drawn on maps.
(3) The Tribunal was aware that the "extreme claims" of the two Parties were not the lines drawn on the maps; and in paragraph 10 of the arbitration report there is no mention at all of the claims as depicted the maps.
Some comments may be offered on these points. The record of 22 September did not mention the submission of maps. The reason for this silence was not explained, but, since the abnormal has to be explained, it would have been strange if the maps had been deliberately removed without any statement of the reason. If the Parties had thought the maps of little value, they would have said so, for such an attitude would have been unusual in a territorial dispute. In principle there is no need to explain a normal action because it goes without saying that it is part of a regular procedure.
A review of the circumstances of the request submitted to the British Arbitrator prompts the conclusion that the maps did not accompany the notes requesting intervention in the dispute which the Parties sent to the Foreign Office on 23 November 1898. Argentina stated in its note that it was not forwarding the minutes of the meetings of the experts because the Government had not finished preparing them. The Chilean note referred to the annex consisting of the minutes concerning the points of disagreement. Neither of the notes referred to maps (MA, ibid., documents Nos. 19 and 20, pp. 157-162).
Both Argentina and Chile submitted their maps to the Foreign Office. Argentina appended a map to its note of 17 January 1899, and Chile delivered a map in February of that year (MA, maps, maps Nos. 1 and 2; MCH, Atlas, maps Nos. 1 and 2). Both these maps showed the continental water-parting as a line corresponding to the numbered points and sections and to the toponyms mentioned in the records of the experts. The Argentine map depicted the continental water-parting as known at the time with no difference indicated between explored and unexplored zones. The Chilean map depicted the continental divide as a pecked line in the unexplored sector.
The arbitration report mentioned documents but not maps. A restrictive interpretation of the term "documents" is not consistent with other passages of the same arbitration report or with the preparatory work of the 1902 Award. Later in the arbitration report paragraph 4 states that the Tribunal "invited the representatives of the two Governments to provide it with the fullest possible information about their respective positions, accompanied by maps and topographical details of the disputed territory, and it acknowledged that the Parties had provided it with lengthy and exhaustive statements and arguments in several printed volumes illustrated with maps and drawings and with a large number of photographs which provided a graphic and topographic picture of the characteristics of the terrain". The Tribunal states clearly that it requested maps from the Parties and that the maps illustrated the corresponding statements and arguments.
With regard to the preparatory work, the report of Sir Thomas Holdich (ibid., document No. 32, T.H. Holdich, "Narrative Report of the Chile-Argentine Boundary Commission", p. 332) noted that the inspection of the area should be carried out sufficiently quickly to ensure that it was concluded before the harsh Patagonian winter, and it added that this was only rendered possible because the Technical Commission had maps of the country and that, provided that these maps were complete and accurate and that the rival experts on either side were satisfied of their accuracy and could raise no argument on this point subsequently, the field would at once be open for the Tribunal to discuss or decide on the map basis. If they proved insufficient or inaccurate, the investigation would certainly be prolonged.
In the same report Holdich went on to say that he was confident "that we may take the Argentina maps as they stand and depend on them (so far as they are officially complete) as the basis of any decision the Tribunal may advance" (ibid., p. 333).
Holdich’s report shows that the Technical Commission could quickly explore the region and would not require a second visit in the following southern summer because it had maps provided by the Parties; that unless the experts of the two countries disagreed, the Tribunal could begin discussing or deciding on the map basis', and that the Argentine maps were reliable enough to constitute the basis for such a discussion and subsequent decision. The Argentine maps showed, without exception, the lines of the territorial claims both of Argentina and of Chile. And there was no mention of any disagreement concerning the maps, for in that case the Technical Commission would have undertaken other exploration work, and the Arbitrator would have delayed his final decision.
Furthermore, the Arbitrator’s map is one of the three instruments constituting the 1902 Award and its immediate antecedent is Argentina’s map No. XVIII. Attention must be drawn to the role which the Award itself accorded to the maps: a more detailed definition of the frontier line was to be found in the arbitration report and on the maps received from the Republics of Argentina and Chile, on the basis of which the Arbitrator approved the frontier proposed to him by the Arbitral Tribunal (art. V, para. 1).
Here are some passages on this point: (1) "Accordingly, all the land irrigated in that region by waters which flow to the Atlantic were Argentine, and land irrigated by waters flowing to the Pacific were Chilean" (first Chilean submission); (2) "All the orographic, topographic and hydrographic features which may occur on either side of the line belong in perpetuity and will remain under the absolute rule of the respective country" (second Chilean submission).
It immediately strikes one that the Spanish verb tenses in the quoted passages are not categorical. Those in the first passage are in the imperfect indicative and imperfect subjunctive; the ones in the second passage are in the future indicative.
Reading the submissions as a whole, these seem to be arguments in favour of the adoption of the continental water-parting, for the term is not used in association with the line of the high Andean peaks, as stated in the boundary treaties, but in an exclusive manner. Chile stated that "in short, Chile’s positions on the Andean frontiers can be condensed into two introductory paragraphs: 1. That the sole principle of demarcation which the Treaties order to be followed is the water-parting; and 2. That the Chilean expert has followed this principle in drawing his line" (MA, Annex of Documents, document No. 26, "Chilean Statement", ch. XVIII, pp. 279-280).
There is no need to refer to the submissions to the Arbitrator to verify that Chile recognized that the territory located in Atlantic basins was Argentine. The matter had been settled by the 1881 Treaty and more particularly so by the 1893 Protocol: "the frontier line shall run along the most lofty peaks of the said Cordillera that may divide the waters"; and "consequently all lands and all waters... situated to the east of the line of the most elevated crests of the Cordillera of the Andes that may divide the waters, shall be held in perpetuity to be the property and under the absolute dominion of the Argentine Republic;... and all land and all waters... situated to the west of the line of the most elevated crests of the Cordillera of the Andes to be the property and under the absolute dominion of Chile" (MA, Annex of Documents, document No. 6, "Additional and Explanatory Protocol to the Boundary Treaty of 1881, signed on 10 May 1893", para. 2).
The real issue relates not to Chile’s acknowledgement that the Atlantic basins belonged to Argentina but rather to the territory which first the Parties and then the Arbitrator understood and recognized, in the case of the River de las Vueltas, as constituting and confining the Atlantic basins at the time. It is a question of knowing whether the geographical knowledge of the time is to be upheld or disregarded and what effect was given to such knowledge in the 1898-1902 arbitration.
The description of the continental water-parting continued as follows: "On the summit of 2,095 metres the divortium aquarum turns to the N.N.W. to enter a region still very little-known, bordering on the north the basin of the River Gatica (Rio de la Vuelta of the Argentine maps), which in the lower part of its course attains 80 metres in breadth, and the sources of which, judging by the great volume of their waters, are probably situated far above the point to which it has been explored" (Annex of Documents, document No. 27, "Chilean Statement", p. 292).
This description corresponds to what at the time was known as the continental water-parting which, running north-south at a considerable distance from the high Andean peaks, turned westwards and followed an east-west course for the whole length of the peaks whose altitudes are given above, and then from the peak at altitude 2,095 metres turned north-north-west and ran along the edge of the basin of the River de las Vueltas before turning south-southwest to reach point 331 (Mount Fitzroy). This description corresponds fully with the map labelled plate IX, the pecked line on which has been the subject of much controversy.
The description follows explored land for the whole extent of the measured elevations, which run east-west not north-south, and then, now in little-known or unknown terrain, it passes along the edge of the las Vueltas basin, following a curve which ascends northwards, i.e., borders what at the time was known as the las Vueltas basin. The references are to the periphery of the las Vueltas basin as it was thought to be at the time, i.e., the maximum extent attributed to it.
An important point in this scenario is the significance of the pecked line on plate IX. From the peak at altitude 2,095 metres and all along the periphery of the las Vueltas basin as it was known at the time the line is not solid but pecked to indicate unexplored terrain. This pecked line has blank spaces to take account of the possible prolongation of the las Vueltas basin that might be established by exploration work during the arbitration proceedings.
Exploration work in the 1920s, which led to the discovery of Lake del Desierto, proved that the basin extended much further to the north than had been assumed at the time of the arbitration. No use has been made of this pecked line, which is tantamount to declaring it non-existent for practical purposes, with the consequence that the true course of the line would have depended on geographical discoveries, regardless of when they occurred.
The pecked section of the continental water-parting indicates little-known or unknown terrain but was based on two known facts: the continental divide which ran east-west to the peak at altitude 2,095 metres, of which the geographers of the time were certain; and the mapped part of the las Vueltas basin, which showed that the basin began further to the north of the mainly horizontal line which carried the continental divide east-west to the peak at 2,095 metres. The pecked line had been drawn, then, not as a mere hypothesis but as an inference from known facts: the explored part of the continental divide and the mapped part of the las Vueltas basin. It can thus be seen why at the time there was no other line to compete with the pecked section of the continental divide.
The final graphic representation of the continental divide described above appeared on plate IX. The two documents, Chilean Statement (ch. XL) and the map, correspond in all respects. Neither the description of the periphery of the las Vueltas basin nor plate IX showed the whole extent of the Rivers Canadon de los Toros, Milodôn, Diablo and Eléctrico, Lake del Desierto and Lake Larga, i.e., they did not include the upper las Vueltas basin as it is known today, because it was situated to the north and west of the continental divide, i.e., in a disputed area which was regarded as a Pacific basin and fell within the competence of the 1898-1902 Arbitrator.
The River de las Vueltas, in view of the volume of its waters in its lower part—it is 80 metres wide—was shown extended on plate IX with a dotted line, and the continental water-parting was moved a little to the north, beyond a blank space indicating an unexplored area between the mapped zone and the continental water-parting.
Furthermore, plate IX and its pecked line cannot and should not be considered in isolation but in conjunction with the statement describing the periphery of the las Vueltas basin, i.e., the area which at the time was regarded as the entire basin of this river. The description and the map refer to the las Vueltas basin in similar terms; and since they have the same purpose and complement each other they cannot be interpreted separately. On the contrary, they form a unity of exposition and meaning.
The essence of the problem is to clarify what the Chilean statement was referring to—whether to the las Vueltas basin and the continental water-parting as they were known at the time or whether, in view of the pecked section of the continental water-parting, the space was left open to later correction, including correction subsequent to the 1902 decision.
The final written and graphic expression of the continental water-parting as it was known at the time was crystallized in the claim submitted to the Arbitrator and in the consensus of the Parties, indicated both by their silence and failure to protest and by their reproduction of this final line, without any reservations, on Argentina’s map No. XVIII, sheet 8, which the Arbitrator used when he drew his own line. The continental water-parting shown on this sheet 8 was more advantageous to Chile than the plate-IX map. But the Arbitrator’s line respected the plate-IX continental water-parting in its entirety. With these acts the arbitration proceedings were brought to a close, the territorial competence of the Arbitrator was established, and the 1902 Award was pronounced.
It is necessary to decide whether the variability of the Chilean claim could be prolonged in time or would be rendered fixed by the effect of the final form of the claim and then by the effect of the Award. It can be argued that the res judicata consolidated the territorial claims in their final expression and fixed the space concerning which the Arbitrator made his Award. From that moment the claimed line could move no more.
On 19 January 1899 Argentina delivered to the Foreign Office a three-sheet map prepared by the expert Francisco P. Moreno, on which its claim was marked with a solid line and Chile’s with a pecked line throughout their extent. Both lines are continuous and do not distinguish between unexplored and explored areas.
Coming from east to west, the continental parting ascended northwards to run along the periphery of what was known as the las Vueltas basin. This basin was situated to the south of the area formed by the continental water-parting. The River de las Vueltas was shown as extending northwards by a pecked line, with two sources at its headwaters separated from the continental water-parting by a blank space. This map was submitted a few days before the Chilean map.
On 16 January 1901 Argentina delivered map X to the Arbitral Tribunal. This map showed the numbered points and sections which the experts had described in the records and delineated on their maps. It has the following title, a very interesting one to be sure: "map of the Region between 47° 0' & 49°30' Lat. Showing the Proposed Argentine Boundary Lines (Landmarks Nos. 301-305) and the Proposed Chilean Boundary Lines (Landmarks Nos. 322331). Argentine Evidence—map X. Scale 1:500,000" (MA, maps, p. 11).
The copy of map X furnished to the present Court, a reduced and partial reproduction of the one submitted to the British Arbitrator, covers the entire area of the present dispute. The Chilean line contains the points numbered 329, 330 and 331 (Mount Fitzroy). The las Vueltas basin is shown, as was customary at the time, by a pecked line in its still unexplored sector, with its sources shown as two rivers which do not touch the continental water-parting. The prolongation as a pecked line is the same as on the earlier map, and the las Vueltas basin lies to the south and within the continental water-parting of the time, as on the Chilean map of 1899.
Map X depicts the line of Argentina’s claim with crosses and dashes throughout its length and the line of Chile’s claim with dots and dashes throughout its length. Both lines are continuous and do not distinguish between unexplored and explored areas.
In April 1901 Argentina delivered to the Tribunal maps XII, XIII and XIV, which include the area between the south shore of Lake San Martin and Mount Fitzroy. map XII marks the Argentine line with crosses and dashes and the Chilean line with dots and dashes, both continuous and with no distinction between unexplored and explored areas. Maps XIII and XIV reproduce the graphic representations described above (MA, maps, pp. 12, 13 and 14).
On 22 September 1902 Argentina submitted to the Tribunal its "Short Reply to the Chilean Statement", to which were appended several maps, including No. XVIII, sheet 8 of which describes the area between Lake San Martin and Mount Fitzroy. As already stated, this map was used by the Arbitrator when he drew his boundary line between the two countries. Sheet 8 showed the las Vueltas basin as it was known at the time and included Cerro Gorra Blanca, in accordance with Von Platen’s map. As had become customary, the Argentine line was marked with crosses and dashes and the Chilean line with dots and dashes, both continuous and without distinction between unexplored and explored areas.
In his report on the southern section of the frontier of Chile and Argentina Captain Robertson wrote: "Section B—from Mount Fitzroy, the northernmost agreed point on the frontier in the vicinity of Lakes Argentino and Viedma (if this point were not in the las Vueltas basin) the line will run direct to the nearest point in this basin. It will then follow an easterly direction round the watershed till it reaches a point in the neighbourhood of longitude 73°00’ WG" (Chilean Skeleton map, scale 1:200,000, Season 1900, map 3).
With regard to this proposal, known as the alternative proposal, Robertson commented: "This line has the advantage over the line described earlier which, while assigning the larger part of the fertile land to Argentina, divides the disputed zone in this part of the territory in such a way that the larger portion remains Chilean. However, it has the disadvantage that it does not constitute a good barrier between the two countries, unlike the earlier proposal. I have been unable to visit the southern part of this line, from Mount Fitzroy to the point mentioned on meridian 72°33’WG, but I have seen from a distance that it consists at this time of the year (mid-April) of valleys and high snow-covered and mud-streaked hills" (MCH, Annexes, vol. I, annex No. 14).
This description and the accompanying map, the 1900 map of Riso Patron, on which Robertson drew the alternative line, demonstrate that the alternative proposal ran along the continental water-divide of the time, as it appeared on the maps furnished to the Arbitrator.
Robertson states expressly that this line should pass direct to the nearest point of the watershed of that river, the River de las Vueltas, and then continue round the watershed, or periphery of the las Vueltas basin, to the neighbourhood of longitude 73°00', or more accurately to longitude 72°32'.
This "watershed" of the River de las Vueltas was the continental waterparting of the time. From Mount Fitzroy the continental watershed runs east, not north or north-east. It is sufficient to identify the place which longitude 73° runs through to realise that this was the continental water-parting as depicted on the maps. If the alternative proposal had been accepted by the Arbitrator, it would have assigned to Chile the entire area which is the subject of the present dispute and therefore the upper part of the las Vueltas basin.
Confirming his description of his two proposals, Robertson added the course of his two lines on Riso Patron’s map. Nobody objected to Robertson’s second proposal for allegedly entering an area which had been excluded from the territorial competence of the 1898-1902 Arbitrator.
The language used by Holdich to refer to his own boundary proposal confirms that the Tribunal believed that the continental watershed came from the north, far to the east of the las Vueltas basin: "The real continental waterdivide followed a line of comparatively low level to the east of the main or more elevated peaks of the Andes".
Holdich was referring, then, to the watershed as a fairly low-level chain in comparison with the lofty peaks of the main chain of the Andes. Its location some distance to the east made it an unsuitable candidate for the compromise boundary which he was seeking. The reference to its following a line of comparatively low level corresponds to the continental divide as described and depicted on maps of the time.
Holdich was categorical in stating that the maps were key elements in the preparatory work of the 1902 Award. For example, the following passages from his "Narrative Report" (MA, Annex of Documents, document No. 32, pp. 330, 331 and 333):
1. "In the first place I considered it essential that the examination should be conducted with sufficient rapidity to ensure its completion before the rigorous Patagonian winter put an end to further work in the field."
2. "The field would at once be open for the Tribunal to discuss or decide upon a boundary of compromise on the map basis."
3. "It is necessary to say a few words as to the nature of the respective maps and surveys"; and Holdich went into details about the methods of preparing the Argentine and Chilean maps and their relationship with the topography and triangulation."
4. "There was a most satisfactory general agreement between the values of most of the important points fixed when the two sets of maps were critically examined."
5. "We may take the Argentine maps as they stand...as the basis for any decision the Tribunal may advance."
Holdich referred to two series of maps, of Argentina and of Chile, and saw fit to use the Argentine maps as they stood as the basis for the Tribunal’s decision. He also explained that the Tribunal would "decide.. .on the map basis".
Argentina showed on its maps the continental water-parting of the time, and the Arbitrator carried out his preparatory work and pronounced his decision on the basis of the continental water-parting of the time, i.e., the northern part bordered by the pecked line on the Chilean maps. The Arbitrator’s map, regardless of the merit or demerit attached to his pecked line, is decisive for the reconstruction of the Arbitrator’s territorial competence because he drew his pecked line in the area which later became known to be the upper part of the las Vueltas basin. The Arbitrator’s map, considered in the light of current geographical knowledge, shows that the Arbitrator made his Award with respect to the upper part of the las Vueltas basin as it is known today on the understanding that it was a Pacific basin.
This statement by the Arbitrator makes the Award map an essential element for determining the details of the frontier. This map depicts an unbroken line from the southern shore of Lake San Martin to the termination of the Cordon Martinez de Rozas, continuing with a pecked line as far as Mount Fitzroy, touching Cerro Gorra Blanca on the way.
The Arbitrator’s map superimposes this line on Argentine map No. XVIII, sheet 8 of which covers the area of the present dispute. This map was better than the Chilean maps, in Holdich’s view. However, sheet 8 was not as good as Chile’s plate IX, but the Arbitrator could not insert plate IX on the Argentine map because that would have destroyed the topographical unity of the presentation. He was thus compelled to use map XVIII in its entirety.
It is not a question, at this time, of considering this line as a possible frontier decided upon by the Arbitrator but of assessing it in relation to the space which determined the territorial competence of the 1898-1902 Arbitrator.
To this end it must be pointed out that the Arbitrator took care not to place his line to the south of the continental water-parting shown on plate IX, except at one point at which, by agreement of the Parties, the line had to reach Mount Fitzroy. Accordingly, the Arbitrator’s line respected the continental water-parting marked on plate IX although he worked on Argentine sheet 8. The continental divide shown on sheet 8 runs further to the south than the water-parting on plate IX, but the Arbitrator traced his line as if he had worked on the basis of the continental water-parting on this latter map.
Thus, the line on the Arbitrator’s map lies within the space which, according to the geographical knowledge of the time, lay between Lake San Martin to the north and the continental water-parting to the south, i.e., in the upper part of the las Vueltas basin as it is known today.
The pecked section of the line on the Arbitrator’s map, even if it is regarded as tentative for the purposes of determining the frontier, shows that the Arbitrator believed that, tentative or definitive, his line was drawn within the area of his territorial competence. An arbitrator cannot and should not trace a line, even a tentative one, in an area outside his competence. And he may not do so, because what is tentative has the capacity of becoming definitive. Thus, the Arbitrator knew that his line on his map was within his competence, or otherwise he would not have marked it where he did, not even with a pecked line. The Parties did not enter any objection or reservation during the next several decades.
The Demarcator of this region, Captain Crosthwait, depicted his frontier line on map XVIII, sheet 8, the same one as was used by the Arbitrator. In the British archives there are two maps signed by Crosthwait, on 7 and 8 June 1903. Both these maps show an almost straight line between boundary post 62 and the vicinity of Mount Fitzroy. The lines on these maps do not touch Mount Fitzroy nor do they make an inflection to Cerro Gorra Blanca.
The line of the map signed on 7 June is superimposed on the continental water-parting of the time from the point at which the water-parting turns south. The line on the map of 8 June lies much closer to and parallel to the full length of the continental divide in this same sector and it touches the divide at only one point. Both lines are pecked in the unexplored part. Both maps show the continental divide of the time as a continuous line (MA, pp. 188-190, plates XXIII and XXIV).
The two lines on Crosthwait’s maps lie entirely within the zone which, according to the geographical knowledge of the time, lay to the north and west of the continental divide and was regarded as a Pacific basin, i.e., outside the basin of the River de las Vueltas as it was known in those years.
Neither of the Parties expressed any disagreement, objection or doubt about Crosthwait’s work. Many years later there was some discussion as to whether he had been authorized to establish his own line, but it was never argued that he had located his line outside the area of competence of the 1898-1902 Arbitrator. Chile on its first two maps and Argentina on many maps depicted frontier lines which, more or less, followed the Demarcator’s line or lay close to it.
The common characteristics of the maps published by the Parties over more than 50 years is that they delineated the frontier without stating any reservation about matters of territorial competence, i.e., they sited their lines to the north and west of what was regarded as the continental water-divide at the time of the arbitration. In order to confirm the Arbitrator’s territorial competence there is no need to engage in a detailed examination of the maps, whose common characteristics have been pointed out above. The consistent behaviour of the Parties endorses the position that the dispute arose and was settled on the basis of the geographical knowledge of the time.
For the purposes of determining the understanding which the Parties had of the Arbitrator’s competence it does not matter that at some times they adopted the Arbitrator’s line and at others the Demarcator’s line, that they made one or two mistakes, or that the map reproductions, for lack of reliable technical equipment, varied slightly from one case to another. The Demarcator’s line, similar to the line on the Argentine maps, sometimes touched and sometimes did not touch Mount Fitzroy. Now, for our present purposes, it does not matter that the line on the two Argentine maps, as was actually the case, sometimes touched and sometimes did not touch Mount Fitzroy.
The common characteristic of all the maps, Argentine and Chilean, is that they depicted boundary lines within the area now in dispute and that they therefore considered this area to be within the competence of the 18981902 Arbitrator.
This legend begins with the title of the map: "General map of the Southern Region of the Argentine Republic and Chile showing the Argentine and Chilean Projects [i.e., proposals] and the Boundary Line settled by the Arbitrator".
The contents of the map are then given: (1) "The Boundary Line Settled by the Arbitrator", marked with continuous red crosses; (2) "International Boundary Line Agreed upon—Record of October 1st 1898", depicted with black crosses—the frontier agreed without recourse to arbitration; (3) "Proposed Argentine Line Along the Cordillera de los Andes—Records of 1st and 3rd September 1898", marked with continuous dots and dashes; and (4) "Proposed Chilean Line Along the Continental Divide—Record of 29th August 1898", marked with continuous dashes.
A box contains the statement: "Partial reproduction of legend on the same scale as the original deposited with the Ministry Foreign Relations and Worship of the Argentine Republic".
The explanatory note "Proposed Chilean Line Along the Continental Divide—Record of 29th August 1898" helps to elucidate this matter. According to this text, the Chilean proposal consisted of a line which followed the continental water-parting in accordance with the record of 29 August 1898. The Chilean line marked on this map does not distinguish between explored and unexplored areas. What is more, there is no indication at all that this factor, so important at the time, had been taken into account in the drafting of the explanatory notes.
This map was filed with the present Court without any reservation or additional explanation and it shows that, according to the understanding of events at the time, the line proposed by Chile (its claim) had been marked along the whole length of the continental water-parting and in accordance with the record of 29 August 1898. If this water-parting is compared with the one shown on the maps submitted during the arbitration proceedings, the full concordance of the two are immediately obvious. The area circumscribed by the two lines of the claims, each based on the country’s respective principles and expressed concretely on maps, as the 1902 Argentine map confirms, determined the territorial competence of the 1898-1902 Arbitrator.
The Argentine expert stated that Mount Fitzroy bore the number 304 on his general frontier line: "It will pass along this crest (the snow-covered chain which overlooks Lake San Martin from the west and cuts across this lake’s outlet), passing across Mount Fitzroy (304) and the lofty snowy peaks of the Cordillera..." (MA, Annex of Documents, vol. I, record of 3 September 1898, p. 147).
The Chilean expert indicated the Cordillera del Chaltén as point 331 on his general frontier line: "No. 331, Cordillera del Chaltén, which divides the hydrographic basin of Lake Viedma or Quicharre, which flows to the Atlantic via the River Santa Cruz, from the Chilean sources which discharge in the Pacific inlets" (ibid., record of 29 August 1898, p. 124).
The Chilean description says that point 331, Cordillera del Chaltén, of which Mount Fitzroy is one of the highest peaks, separates the waters flowing to the Atlantic from the waters flowing to the Pacific. The two experts identified Mount Fitzroy as the point of conjunction of the Argentine and Chilean lines and stated this in the record of 22 September, which recognized that Argentine point 304 and Chilean point 331 were the same: "2. That the lines of the two experts coincide... at the points numbered 331 and 332 by the Chilean expert and 304 and 305 by the Argentine expert" (ibid., pp. 149-150).
Through its expert Barros Arana Chile had reiterated that the points which it was proposing were all on the continental water-parting. Now, by accepting that Mount Fitzroy was an agreed point on the boundary the Parties also accepted implicitly that it was an Andean peak situated on the continental water-parting.
The record of 22 September stated that, since Argentine point 304 and Chilean point 331 coincided, they were considered to be situated on the common frontier. This agreement could not have been reached unless Mount Fitzroy had been considered to be located on the continental divide, because if it had been known to be a peak in an Atlantic basin it would have been in Argentine territory according to the provisions of the 1881 Treaty and the 1893 Protocol. Accordingly, the Parties reached agreement on Mount Fitzroy as a point on the common frontier on the basis of the continental water-parting of the time, the very water-parting which was carried as far as Mount Fitzroy (No. 331) on the Chilean map by a pecked line.
Later, when it was discovered during the arbitration proceedings that Mount Fitzroy was not situated on the continental divide but to the east thereof and in fact entirely within an Atlantic basin, the agreement between the Parties was left untouched. The continental water-divide discovered in 1945 passes by Mount Fitzroy at a distance of no less than 17 kilometres. The continental water-divide of the time was used for determining that Mount Fitzroy was a point on the frontier and then as a point of reference for deciding that this mountain was located a little further to the east than had originally been supposed. The accord on Mount Fitzroy was made possible by a lack of geographical knowledge, and years later it was maintained even in the light of improved geographical knowledge.
Argentina pointed out the differing weight attached to the subsequent conduct of the parties depending on whether such conduct relates to the interpretation of a treaty, in which case it has enormous force, or of an award and, more concretely, when it relates to the conduct of local authorities or individual nationals or foreigners (record No. 9 of 25 April 1994, p. 31).
Chile has repeatedly stressed the importance of the subsequent conduct of the Parties in this case and has assigned multiple effects to it; Argentina has attached less relevance to it and, although it has referred at times to subsequent conduct in some of its statements, it has done so with frequent reservations.
Chile has argued that "the conduct of the Parties is a very important factor for demonstrating the way in which they interpreted the content and intention of the text" (MCH, p. 154, 14.14). In one of its submissions Argentina frames the problem thus: "Such subsequent conduct shows how the Parties have interpreted the 1902 Award in practice" (CA, p. 215, 9).
It is in fact a question of determining how the Parties interpreted the Award in practice, i.e., in implementing it. This exercise is of particular importance for the question of the 1898-1902 Arbitrator’s territorial competence, for it helps to determine how the Parties understood that competence and provides evidence supporting conclusions reached by other means and on the basis of other sources.
The Parties have furnished the present Court with ample documentation and painstaking analysis on this point. The relevant materials can be divided into four categories: maps, activities of settlers, administrative acts in general, including the prosecution of criminals, and administrative acts relating to land grants. The subsequent conduct of the Parties manifests itself in a pertinent manner in their production of maps, but since this topic has been extensively studied, it is better to concentrate on other aspects.
The activities of settlers are not conclusive because contradictory accounts are provided by the authorities of each country. They reflect instead the common attitude of settlers in frontier regions, especially in regions remote from the centres of political power, i.e., the propensity of settlers to move about according to their immediate needs.
Chile performed acts of administration in the area which illustrate its interpretation of what the Arbitrator accorded to each country in his Award. Such administrative acts include the report and map prepared by Engineer Fernandez Correa, who visited the area of the present dispute in 1933 and marked out the plots of Percival Knight, Ismael Sepulveda and Evangelista Gômez in Chilean territory. Chile granted titles of ownership in the area to Ismael Sepùlveda (1937) and Evangelista Gômez (1934).
Something more precise emerges from the land grants made by Chile and Argentina after the arbitration. In 1904 Chile made the so-called Freudenburg Concession. Although this concession failed, since it did not become established in the area, the grant and the accompanying plan illustrate the fact that one of the Parties believed that the land in question had been covered by the arbitral decision. This grant, the eastern boundary of which extended up to the line on the Arbitrator’s map, received widespread publicity.
The titles of ownership which Chile granted in 1935 to Evangelista Gomez and Ismael Sepulveda related to the area today in dispute. For the present purposes there is no need to verify the exact boundaries of the plots. Furthermore, there was overlapping between Chilean and Argentine grants, but this does not vitiate the conclusion that the area had been covered by the 1902 Award.
Argentina’s land grants generally stopped first at the Demarcator’s line and later at the Arbitrator’s line, without that preventing them from overlapping in some cases with Chilean grants or the same recipient from seeking to obtain titles or protection from both countries.
The abundant documentation submitted to this Court shows that the Parties tried to respect the arbitral decision in the area, despite difficulties stemming partly from its remoteness, ruggedness and harsh climate but mainly from the lack of boundary posts on a line on which two undisputed fixed points might be located about 50 kilometres apart.
In the years following the arbitration several Argentine maps offered land in the area today in dispute, but none of these offers infringed on the Demarcator’s line. The series of maps showing land offered on leases began in 1911 and continued in 1916 and 1919 with maps produced by private individuals which marked the boundary line within the area today in dispute. There is a map of the Land Department of the Ministry of Agriculture which offers land bounded in the west by the Demarcator’s line, depicted by a series of crosses. Another 1918 map produced by the same Department depicts the frontier line in the same way.
The plans and maps, which were given widespread publicity with a view to the award of land grants or leases, indicate the areas which the Parties considered to be within the Arbitrator’s competence and concerning which he had made his Award. The land grants and offers of leases illustrate the projects for the development of available areas and the territory in which each country believed that it could exercise this kind of act of sovereignty with the knowledge and acquiescence of the other Party.
Everything continued just as before, despite the discovery of the main source of the River de las Vueltas and of the fact that its basin extended beyond the continental water-divide as known at the time of the arbitration. In the case of Chile this silence continued until 1953 when it adopted, indicating that it was "a preliminary map" and "a boundary under study", the continental water-parting discovered by means of the aero-photogrammetric surveys carried out by United States technical personnel in 1945. On a 1969 map Argentina reproduced the continental water-parting discovered in 1945, labelling the map "provisional".
The acquiescent silence on the two sides following the simultaneous publication of maps based on the 1898-1902 arbitration lasted for some 31 and 45 years from the discovery that the las Vueltas basin extended beyond the continental divide known at the time of the arbitration, and for some eight and 21 years after the discovery, in 1945, of the true continental water-parting.
Thus, for a very long time consensus prevailed concerning the continental water-parting of the time of the arbitration and indeed concerning the fact that the work and the decision of the British Arbitrator had applied to an area within his competence. For some time, indeed, even after the consensus on this continental water-parting had been disrupted by the discovery of the main source of the River de las Vueltas in Lake del Desierto and the subsequent discovery of the natural and effective continental water-parting on the ground, the Arbitrator’s decision, as depicted on his map, was preserved out of respect for the res judicata.
It was in this context that the Arbitrator’s competence was established, the Arbitrator pronounced his Award, and the Parties demonstrated by their acts their interpretation of the Award. The preparatory work of the Award (Robertson and Holdich), the Award with its three components, and the subsequent demarcation work (Crosthwait) applied to an area which was regarded as a Pacific basin situated to the north of the continental divide known and acknowledged at the time. Years later, as a result of new exploration work, it became known that this area was in fact an Atlantic basin.
The fact that the continental divide lay further to the north than had been realised at the time of the arbitration became known for certain with the discovery of Lake del Desierto in about 1923. Even this did not make it possible to identify the true continental divide. The continental divide was hidden from human eyes, following a line which starts from the Cordon Martinez de Rozas, from the summit at altitude 1,767 metres, runs north-west and continues northwards, then westwards and finally southwards, without touching Mount Fitzroy. This complicated course—unexpectedly complicated—diverges considerably from the assumed or known course of the continental divide at the time of the arbitration.
The key point, which Argentina has called Portezuelo de la Divisoria, was discovered by means of aero-photogrammetric surveys in 1945. In 1966 the Mixed Boundary Commission identified it on the ground and for ease of reference constructed a mound 10 metres in diameter and three metres thick (MA, pp. 257-258, 53; CCH, pp. 39-40, 3.24, 3.25 and 3.26; MCH, volume of Annexes, annex No. 7).
This mound stands in a marsh where the direction taken by the water or, more accurately, whether the water flows in any direction, cannot be established by examination of the ground, where one’s feet sink in the mud and standing water, or by climbing the neighbouring heights. If it had not been for the technical work and the mound, it would not be known or even suspected that the continental water-parting is situated here.
The geographical features of the place explain the delay in identifying this section of the continental water-parting. Here the idea that this waterparting can be determined by visual examination of the ground was once again overturned. This place is one of the series of instances, and it even outdoes the others, which Holdich noted on his tour of inspection, in which it is very difficult to locate the continental water-parting.
The members of the present Court were able to verify with their own eyes during their tour of the area in February 1994 the physical impossibility of identifying the continental divide without the help of sophisticated techniques.
The interpretation developed here with respect to the significance of the facts, documents and arguments is supported by the records of the experts, the vital role of maps during the arbitral proceedings, the preparatory work of the Award, the Award with its three components, and the subsequent conduct of the Parties, including their presentation of their positions by means of maps. All these facts form a unity of meaning, the consistency of which is confirmed by analysis of Chile’s territorial claim of 1898-1902.
The facts of action, inaction, silence and acquiescence show that for a long time a consensus about the territorial competence of the Arbitrator prevailed, that this consensus survived the discovery of the main source of the River de las Vueltas, and that it began to waver following the discovery of the true continental divide in 1945. The only significant incident in the area of the cunent dispute occurred in 1965,62 years after the pronouncement of the Award. The time factor is not to be underestimated in cases in which an initial situation continues undisturbed.
The strands of the interpretation of the available factual and legal materials merge at the point where these materials are united by the principle of consistency: Chile’s territorial claim of 1898-1902 had its basis, foundation and legal justification in the principle of the continental water-parting and was manifested in a line consisting of numbered points and sections and of toponyms which are interwoven with the graphic language of the plans and maps. This line was the continental water-parting as known and acknowledged, without reservation, dissent or counter-proposal at the time of the arbitration, fixed by the final presentations to the Arbitrator and protected by the Award as res judicata.
Once the competence of the 1898-1902 Arbitrator has been determined and verified in this way, it cannot be asserted that the zone lying to the north and west of the continental divide of the time, along which the line on the Arbitrator’s map ran throughout its extent, fell outside the Arbitrator’s competence and therefore outside the competence of the present Court. Nor can it be asserted that a decision concerning this area would mean that the 1898-1902 Arbitrator had exceeded his authority or that such a decision would itself suffer the defect of ultra vires. The principle non ultra petita partium is not subject to any reservations in its application, nor is the principle of estoppel. The Arbitrator himself marked out his area of competence on his map, and this was corroborated by the preparatory work, the demarcation and the maps produced by the Parties themselves over several decades. Argentina indeed stated: "The official maps are of special relevance to an assessment of the conduct of the Parties subsequent to the 1902 Award, for they show how the delineation rule of the Award has been interpreted and applied by the Parties" (CA, p. 133, 1).
The issue turns on what Chile claimed or did not claim in the 1898-1902 arbitration and on what it is claiming and not claiming today. The first issue has already been clarified. It is now necessary to consider the cunent Chilean petition. A comparison of the two claims helps to clarify and close the circle on some of the topics which have been examined. It can be argued that, within the conceptual approach which has been taken, the earlier Chilean claim could vitiate partially, if not wholly, its cunent claim.
This cunent claim has to be examined in relation to the nature of the dispute submitted to this Court. According to the 1991 Compromis, this Court has to decide on the course of the frontier line between boundary post 62 and Mount Fitzroy by interpreting and applying the 1902 Award in accordance with international law. Thus, the Award is left untouched, and its content cannot be reopened. The language of the Compromis framed the dispute as a dispute about a line—the course of the frontier line. In the end, the claims of the Parties, given the acknowledged validity of the 1902 Award, can only have the significance of interpretations thereof.
Chile has stated that this is a dispute about a zone or area, whereas Argentina has emphasized that it is about a line and not an area and that "the delimitation of the sector was decided by the Award and confirmed by the 1991 Compromis, which govern these arbitral proceedings". Argentina maintains that "Chile’s current claim is a new territorial claim" (CA, p. 171,1, p. 3,7, and p. 113; MA, pp. 358-359, 23, and p. 336, 7), and it adds: "There is no more territory to be adjudicated to the south of Lake San Martin" and that there is no "area in dispute" in this region.
Going back to the time and bearing in mind the events and geographical knowledge of that time, it can be asserted that Chile’s interpretation of the line, by the fact that it enters spaces which were clearly outside the competence of the Arbitrator and the Chilean claim of 1898-1902, is defective in its southern part. This problem is not eliminated by the fact that, in some way and at some point, the line had to cut across the continental water-parting of the time in order to arrive at Mount Fitzroy, the point in the Atlantic basin declared obligatory by the Parties. This mandatory point would have to be reached by cutting across the smallest possible area of Atlantic basin, as the Arbitrator did on his map, in contrast with the sizeable cut entailed by the Chilean line. The need to cut across the old continental divide ought not to lead to a deep incursion into land which was not disputed.
It is not a question here of applying the principle of estoppel, which presupposes contradiction, qualified by several conditions, between claims of the same specific nature and relating to the same object, but of the essential characteristics which defined the dispute at that time, in particular with regard to the territorial competence of the 1898-1902 Arbitrator.
It could be argued that, since the dispute is not over an area but over a line, Chile’s current petition could not be understood to relate to a zone or area. There would then not be a zone comparable to the zone claimed in 1898-1902, and it would be said that it would be impossible to compare the current Chilean claim, concerning its interpretation of the line, with the 1898-1902 claim unless the latter claim had related to a line and not a zone.
As a counter-argument reference may be made to the fact that, in this case, there is no clear separation of line and zone, because two competing lines create space and even a single line representing a claim includes a space which it circumscribes and limits, so that it implicitly entails a claim to the space marked by the line. The delimitation was of course settled in 1902, and now the problem is to identify the course of the boundary line on the basis of that delimitation.
In any event, the decisive factors are the continental water-parting of which the Arbitrator took account in pronouncing his Award and the area which the Parties disputed in 1898-1902. From these bases it can be concluded that only the southern part of Chile’s current interpretation of the line is affected by its 1898-1902 claim.
The big question has been and remains the determination of the actual area covered by the Chilean claim in 1898-1902. Depending on the framing and resolution of this question, the arbitration will follow different paths and lines of reasoning and will reach opposite conclusions. Given such a radical disagreement no type of conciliation seems possible.
Acceptance of the Argentine thesis would produce the following consequences:
1. In accordance with the principle of estoppel Chile cannot claim today what it did not claim in 1898-1902;
2. The entire basin of the River de las Vueltas as known today would lie outside the competence of the present Court because it had been outside the competence of the 1898-1902 Arbitrator;
3. The present Court would be precluded from according to Chile, pursuant to the interpretation which it might adopt, the least part of the las Vueltas basin as known today, for that would be to decide ultra vires, except of course with respect to the part of the Atlantic basin bordering Mount Fitzroy;
4. Chile’s version of the line would be rejected ipso facto by application of the principle of estoppel, by Chile’s admission that the whole of the las Vueltas basin as known today is Argentine, and by the territorial competence of the 18981902 Arbitrator, which had placed this entire basin outside the dispute;
5. Argentina’s version of the line, consisting partly of continental and partly of local water-parting, would automatically be validated, for it would follow the whole length of the line of Chile’s extreme territorial claim at the time of the arbitration, which in turn was the limit of the territorial competence of the 1898-1902 Tribunal and indeed of the present Court.
As a direct effect of the Chilean claims of 1898-1902 Argentina has argued that the territorial competence of that Tribunal, and therefore of this Court, was circumscribed in its eastern part by the continental water-parting as known today, dissociating the entire las Vueltas basin from any dispute about or interpretation of the course of the frontier line. The only line which would be consistent with the competence of the present Court would be the one situated on the periphery of the Viedma-Vueltas basin as known today, i.e., Argentina’s line. If the decision of this Court were to affect any other part of this basin, it would inevitably incur the defects of ultra petita and ultra vires.
Given such results there would be no need to examine the Argentine and Chilean lines on their merits and demerits, for the Chilean line would be dismissed and the Argentine line validated. A detailed study of these lines would not be essential but merely confirmatory, offering some subsidiary grounds for adoption of one line and rejection of the other. Given these results the discussion of the decision of the present Court would follow a necessary path leading to equally necessary conclusions.
But an examination of the documents produced by the Parties in that arbitration in the form of pleadings, commentaries and maps and of the three components of the Award—the Award itself, the report of the Arbitral Tribunal and the Arbitrator’s map—shows that the 1898-1902 dispute was resolved not on the basis of the entire basin of the River de las Vueltas as it is known today but as it was known at the time of that arbitration.
Argentina calls for the application of the principle of estoppel on the basis of the scope of the territorial competence of the 1898-1902 Arbitrator, Chile’s extreme claim during that arbitration, and Chile’s acknowledgement that the basin of the River de las Vueltas is Argentine in its entirety, with the exception of the small section bordering Mount Fitzroy, an obligatory point on the frontier (CA, p. 18, 13, p. 22, 11, and p. 39, 37). Application of this principle presupposes that Chile is claiming in the present arbitration more territory than it claimed in that arbitration and is contradicting or denying its earlier recognition that the entire las Vueltas basin belongs to Argentina.
Argentina repeatedly requested application of the principle of estoppel to the present dispute, both in its memorial and counter-memorial and in its oral submissions. During these submissions considerable importance has been attached to Chile’s admission that the Atlantic basins belong to Argentina, so that they lay outside the competence of the 1898-1902 Arbitrator.
Both these arguments, of estoppel and territorial competence, have the same origin in Chile’s territorial claim during that arbitration and they lead to the same conclusion, i.e., divorce of the entire las Vueltas basin from any decision which the present Court may take on the course of the frontier line.
Chile argued that the principle of estoppel was irrelevant to the present dispute and that "the Award makes law and must be interpreted as it is, on the basis of its own content". Chile also stated that its claim of 1898-1902 was not relevant now because neither Argentina nor the Arbitrator had accepted it, and therefore it had, legally speaking, disappeared (record No. 3 of 13 April 1994, p. 34).
"Estoppel or preclusion cannot apply when the conduct cited is immediate, forcefill and completely rejected by the other Party." "Argentina did not rely on the Chilean argument in such a way as would cause Argentina to suffer harm or detriment as a result of relying on that argument" (record No. 3 of 13 April 1994, pp. 84-85). Argentina replied that the territorial claim in question was a unilateral act and therefore the exclusive responsibility of its author, requiring no counterpart participation (record No. 12 of 28 April 1994, p. 59).
"Argentina attaches fundamental importance to this question, that is to say, with respect to the Atlantic basins recognized by Chile as Argentine in the 1898-1902 arbitration. As Argentina has stated already in its memorial, this is a basic issue which the Court must necessarily resolve as a first and preliminary step" (CA, pp. 385-386, 1).
But Argentina did not raise this issue as a special plea in bar; instead it emerged as the first matter on the Court’s agenda. The Court accepted this opinion in view of the internal logic of the procedure of deliberation and decision.
Argentina referred to the authority of Judge Ricardo J. Alfaro with respect to estoppel. According to his definition, this principle establishes that "a State which is a party to an international dispute is bound by its previous acts when these contradict its claims in the dispute". Dr. Alfaro explains that this principle, based on good faith, penalizes any contradiction between the current position of the State and its previous acts, opinions and conduct which may cause harm to another State. (Cuaderno de la Facultad de Derechoy Ciencias Politicas, No. 4, University of Panama, Panama, 1966).
Application of the principle of estoppel, also known as preclusion, still gives rise to much controversy and the principle is far from having achieved a consistent formulation and general acceptance. Dr. Alfaro’s definition has been cited many times during the oral and written submissions. But it must be said, with all respect for the academic and legal authority of this eminent jurist, that his conception of this principle is very broad in scope, for it omits conditions and nuances well-established in Anglo-Saxon law, the principle’s immediate source.
If these original conditions and nuances are eliminated, the principle becomes simple and easy to apply, but it will then address many different kinds of conduct, and if estoppel is applied to them it would limit the freedom of action of States. If the original conditions are eliminated, the scope of the principle is expanded, for it loses in decisive specificity and gains in scope as much as it loses in content (the fundamental conditions for its application in Anglo-Saxon law).
It is then so broad that it could be applied even to opinions. Since the law accords individuals freedom of opinion, which includes both the statement and the correction and amendment of opinions, international law cannot punish the exercise by States of their freedom of opinion.
Although the essence of estoppel is the contradiction of earlier positions to the detriment of the other State, care must be taken not to reduce it to mere contradiction, for mere contradiction could not be objected to and even less punished: the law must not act as a master in the classroom. Mere contradiction could be a matter of policy but not of law. The contradiction has to be accompanied by detriment and, moreover, the fact of having relied on the first position of the other State and having used it in support of the assertion of one’s own right.
As we advance along this rock-strewn path we can see that when the Statute of the International Court of Justice (art. 38, 1.c) authorizes the application of the general principles of law recognized by civilised nations, it is referring to principles of law in general, including principles of internal law. It may be hoped that such principles of internal law are fully consistent with the principle of legal certainty and indeed adhere fully to its original terms.
If it eliminates the original conditions a court is creating a new rule. Generally speaking, courts apply pre-established rules and they create new rules, or partly new ones, only by way of exception to resolve a specific case by clarifying pre-existing rules, in the light of very particular and even totally new circumstances when the solution is to be based on equity alone.
In any event, in the present case the conditions for application of the principle of estoppel do not obtain, either in the restrictive sense just described or in the very broad sense of Dr. Alfaro. The 1898-1902 dispute was framed, developed and decided on the basis of the geography of the time. The present geography cannot prevail over the res judicata.
Nor do the conditions obtain which would allow the argument that the area located to the north and west of the continental divide of the time lay outside the competence of the Tribunal and therefore is not within the competence of the present Court. Accordingly, no decision which the Court may take on the area where the 1898-1902 Arbitrator drew his line would imply the assertion that he had acted ultra vires.
Starting from the south shore of Lake San Martin, at boundary post 62, the line runs along the Cordon Martinez de Rozas for about 12 kilometres of local water-parting to reach the summit at altitude 1,767 metres, at which point, now following the continental water-parting, it turns north-west and descends to Portezuelo de la Divisoria.
There is no disagreement between the Parties concerning the 12 kilometres of local water-parting, since both regard this sector as the undisputed boundary between the two countries. The disagreement begins at the 1,767-metre summit, with the Argentine line turning north-west along the continental divide and the Chilean line continuing southwards, also along the continental divide.
From Portezuelo de la Divisoria the Argentine line changes direction several times (west-south-west, north-west, west, south-south-west, west-south-west, and south) and passes across Cerro Sin Nombre, Cerro Trueno, Cerro Demetrio, Portezuelo El Tambo, Cerro Gorra Blanca, Marconi Pass, Cerro Marconi Norte and Cerro Rincon to reach Mount Fitzroy. The line abandons the continental divide when the divide turns westwards. From this point it follows the local water-parting which leads to Mount Fitzroy (MA, pp. 589-599).
From this summary description it is clear that the Argentine line combines local water-parting, continental water-parting and again local water-parting. The question arises as to whether the language of the arbitration report, according to which the frontier shall be delineated along the local water-parting from the point at longitude 72°45’30", is compatible with a line which combines continental and local water-partings.
The report states "... whence the boundary shall be drawn to the foot of this spur and ascend the local water-parting to (usually translated "hasta") Mount Fitzroy and thence to the continental water-parting to the northwest of Largo Viedma". "Here the boundary is already determined between the two Republics" (MA, Annex of Documents, vol I, document No. 40-B, p. 460, section 22, last paragraph).
Argentina made lengthy written and oral submissions to demonstrate that, since the continental and local water-partings function in the same way, in that they separate waters running in opposite directions, there is no difference between them. Therefore, the key point is to determine whether Argentina’s line is in conformity with the report and for this purpose to assess the meaning of the terms continental water-parting and local water-parting as used in the instruments which constitute the 1902 Award.
"The important thing is not the epithet, for the nature of a "water-parting" and its modus operandi in a delimitation are the same. The important thing is the extreme points which define the water-parting in question. These extreme points will determine whether the "course" of a "water-parting" is local or continental and whether it coincides wholly or partly with a section of the "continental water-parting", but the characteristics and modus operandi of the "water-parting" do not change. They are always the same" (CA, pp. 124-125, 22).
"... the qualifier which in exceptional cases is attached to the established delimitation criterion has no practical or legal consequences for the drawing of the boundary" (MA, p. 553, 37, and pp. 561-562, 44). "The essential thing is the condition of being a water-parting, and its qualification is incidental. The incidental cannot be compared with the essential. The incidental cannot alter the essential" (MA, p. 530, 17). "The important thing is the fact that in the Award all the "water-partings", regardless of how they are qualified, have the same inherent characteristics and the same effects" (CA, p. 124, 22).
"... nothing in the 1902 Award precludes the possibility that a local water-parting between two specified points may also be a continental water-parting for part of its course..." "... for the drafters of the Award the qualifiers sometimes attached to the term "water-parting" are secondary and merely descriptive; for them the main thing is the affirmation of the criterion of waterparting and its actual use in a delimitation." "There is only one local waterparting between boundary post 62 and Mount Fitzroy, and this is the line advocated by Argentina in this arbitration" (CA, pp. 126-127, 28).
Argentina adduces several reasons in support of its argument that continental and local water-partings, since they function in the same way, are the same thing: (1) the meaning of the adjective "local"; (2) the discounting of the adjectives "continental" and "local"; (3) the fact that all water-partings function in a similar way; (4) the failure of the Award to define a term to which special significance had been attached in the case of "local water-parting"; and (5) the language of the 1902 Award.
This argument maintains that such a crossing, at a specific point, made this point part of the continental divide and part of the local water-parting. It thus undermines the separation of the two water-partings. And if that happens at one point, it would not be surprising for it also to happen in the case of a line combining continental and local water-partings. If a point can be both local and continental, the line can also be local and continental.
On the assumption that the crossing point combines the local and continental water-partings, it must be pointed out that, although it is the same point, it is a point which performs two different functions, one as part of the local and the other as part of the continental water-parting. It is not a question of whether it is both continental and local in one given situation, but whether in each different situation it is continental or local.
Furthermore, what applies to a point may not necessarily apply to a line, just as what applies to a line may not necessarily apply to a point. Even if it is conceded that a point may be at the same time both continental and local, this would not be a sufficient reason for attributing equal versatility to the corresponding line.
In any event, this is moreover a phenomenon which does not and cannot occur on the ground but only in depictions on maps. A map may show the continental divide cut at some point by another line which may have the character of local water-parting, but this is a question of a continental divide being crossed not by a local water-parting but by a frontier line drawn at the behest of the parties or court. It is a situation similar to the one which occurs when the intention of the court or arbitration body links two local water-partings by drawing a line across a river, for in this case too the same intention results in a line drawn on a map without the crossing of the river actually being effected by the local water-parting as such and as defined.
A local water-parting may run close to the continental water-parting on a slope, but it cannot cross it. On the slope on the other a local water-parting (a different one) may begin very close to the continental divide. These two water-partings, even when they run in the same linear direction and extremely close together, cannot cross the continental divide. This is precluded by the very nature of the continental divide, the continuity of which cannot be interrupted by any other geographical feature.
Theoretically adjectives distinguish between objects of the same kind. They are never redundant either in ordinary or in technical language. Adjectives perform a function, indeed a very valuable function, in rendering communication intelligible and precise. To discount different adjectives qualifying the same noun, in this case the adjectives continental and local qualifying the noun water-parting, is tantamount to waiving in advance the precision which the adjectives bring to the communication of the ideas in question.
An adjective indicates an attribute of a person, an object, an idea or an action; and the attribute distinguishes person from person, object from object, idea from idea and action from action. Persons differentiated by attributes are still persons and ideas differentiated by attributes are still ideas, just as water-partings differentiated by the qualifiers continental and local are still water-partings.
The theory of meaning and communication cannot dispense with adjectives. They are normally used for a purpose and every effort must be made to discover the meaning of the communication in the light of this purpose. That a word is redundant, is used erroneously or constitutes a mere repetition would be a conclusion reached only in the light of exceptional and somewhat extraordinary circumstances.
When the same adjectives are repeated in a legal document the assumption, for the purposes of determining its meaning, is necessarily that they have a significance which must be identified. Therefore, in the circumstances of the present case the assumption is that the adjectives have a useful meaning. That they should have a meaning is normal and usual; that they should not have a meaning is abnormal and unusual.
One of the most delicate aspects of the formulation of legal rules is the separation and exploration of distinctions between ideas and between their corresponding expressions in language. Generally speaking, when there is a possibility of confusion or at least a degree of obscurity or uncertainty, this legal technique recommends the use of different nouns or distinguishing qualifiers of the same nouns. In the present case the qualifiers continental and local bring clarity and precision to the text of the report.
Qualifiers usually make distinctions between ideas and they consequently help to regulate and fix the use of the ideas. Since this is the normal situation, one must start from the assumption that such qualifiers perform a useful function, i.e., have a purpose and a meaning which convey a message.
In exceptional cases, when they clearly cause confusion and lack a logical application or usefulness, adjectives can be discounted. Such cases would be atypical and therefore would have to be carefully justified. The atypical, since it is not part of the usual processes of formulation and interpretation of legal rules, cannot be the premise but only the result of a proof. Furthermore, the mere reiterated use of the terms in question, in the case of the 1902 Tribunal, excludes any possibility of a blunder, error or slip attributable to the copyist or author.
Here a distinction must be made between the general function common to all water-partings and the specific functions proper to each member of the class. A continental water-parting, as its name suggests, divides waters of continents; a local water-parting is one which, not being a continental water-parting, can be identified by means of its function of dividing waters and which, owing to its special location, also performs a special function within the framework of the continental water-parting. It differs from a continental water-parting by virtue of its specific function and not of its general function and it can be designated in several ways, for example secondary or subsidiary, but in the 1902 arbitration report it is frequently referred to as local. A continental waterparting, also called real or principle, has a familiar and generally accepted function. A local water-parting, defined in relation to the continental, is any water-parting which does not function specifically as a continental one.
Use is also made of the term "water-parting", without qualification, to denote the concept of what all water-partings have in common, regardless of their specific functions and therefore of their qualifiers. As to the specific nature of the functions of continental and local water-partings, the continental serves as a point of reference and differentiation, since its function is unambiguous and in this case has been accepted by the Parties—separation of the waters of a continent.
It is a characteristic common to all water-partings that they separate waters flowing in different directions. The qualifiers refer to specific functions which are added to the general function. In some geographical situations water-partings separate the waters of the continental land mass and in others they separate waters which flow to different basins, without involving separation of the waters of the continent. When a text wishes to refer to both types of divide without distinguishing between their specific functions it simply says "water-parting", a term applicable without distinction both to continental and to local partings, as well to partings qualified in any other way.
The qualifier "local" is understood, in its usual meaning, to be something relating to an area, region or country. It is also used to indicate municipal or provincial as opposed to general or national. This second usage means that the local is distinct from the general. The problem here cannot be solved by reference to the usual use of one of the terms which form part of the problem. The question of the terminology of water-divides is not one of ordinary language but of technical language. The authors of the Award, well-versed in geography, must have used the terms of their speciality in their technical sense; and it is the technical sense of these terms which must be clarified. A continental water-parting is the big, principle or general divide, sometimes called real, which separates the waters of the continent. A local water-parting lacks this distinguishing characteristic and therefore relates to an area, region or country lying within the areas separated by the continental divide.
In other words, all water-partings have the common and equal function of dividing waters which run in different directions. This general function is expressed by the term water-parting. Then there are the specific functions, which qualify the general function, without of course destroying it, and which consist sometimes of the separation of the waters of continents and sometimes of the separation of waters which are not of continents taken as a whole but of smaller, partial and dependent or secondary areas.
The Arbitral Tribunal did not define the meaning of the term local waterparting. It did not need to do so, unless it wanted to attach to it a special meaning different from the one which might be attached to it in accordance with the text and context of the report. The definition of terms is not indispensable in a legal text, and the use of definitions to make ideas clearer is left to the discretion of whoever drafts the text.
The mere absence of definition does not imply any particular message. When the author of a legal text decides not to define the terms used in it—and the Award contains no definition of the terms used—their meaning must be determined in the light of their common or their technical interpretation and in conformity with the text and context of the relevant provisions, as well as with their practical effect, all of this within the linguistic structure which ensures the communication of the ideas.
To conclude, according to the theory of meaning, including its implications for legal instruments and in this case arbitral awards, "local water-parting" is different from "continental water-parting", and both terms are encompassed by "water-parting".
"The innumerable water-partings in a specific region are not absolutely equivalent and they can be ranked in their significance, which is determined by the destination of the separated waters flowing together in the watercourses of the valleys on both sides of the water-parting." "In other words, the more independent and divergent the separated drainage flows or systems are, and the greater their extent, the more significant is the water-parting." "In every large land mass are found principal divides, as opposed to the water-partings between the drainage systems of the same regions, which have only a local significance."
The following conclusions may be drawn from the quoted passages and they may help to settle the problem under discussion: (1) the water-partings in a specific region are not absolutely equivalent; (2) water-partings can be ranked in their significance, and when so ranked they display differences; (3) the ranking of water-partings depends on the destination of the waters; and (4) in each big land mass are found principle water-partings "as opposed to" water-partings of only local significance.
In another preparatory work Holdich continued to reveal how he used terms relating to water-partings: "continental water-divide" (pp. 350, 366 and 381), "continental divide" (pp. 370, 372 and 376), "main water-divide" (p. 363), "a lofty sierra which carries the continental divide" (p. 365), "watershed" (p. 372), "mountain watershed" (p. 372), "very low divide" (p. 379), "a well defined East West sierra carries the continental divide" (p. 380), "division of the waters", "divortium aquarum" (p. 361), and "local divide" (p. 358) (MA, ibid., document No. 33, "Geographical Conditions of Patagonia").
Holdich states: "From the point at which it touches the north shore of the lake [San Martin] the frontier line will continue along the local water-parting to its conjunction with the continental water-parting to the north-west of Lake Viedma. Here the frontier has already been determined between the two Republics" (MA, ibid., document No. 37, p. 403).
He says here that the local and continental water-partings enter into conjunction to the north-west of Lake Viedma. Conjunction means the union or joining of things having separate identities. Here conjunction refers to two lines, one local and the other continental. A single line cannot conjoin with itself but only continue or be extended.
A memorandum by Holdich which the Tribunal received during the oral submissions contains a distinction between continental and local water-partings ("Hearing Book", document No. D-I). Here, referring to a specific situation, Holdich writes: "The water-divide in such a case would be "local" and not "continental", but it would all the same furnish the most effective natural boundary that could be found" (Sir T. Holdich, "Notes on the Boundary", April 1899). Here the same passage contains three terms relating to this geographical feature: water-parting, continental water-parting, and local waterparting.
In these notes Holdich asks why the qualifier "continental" or "between the Atlantic and Pacific", which is "so obviously necessary" had been omitted from the boundary treaties, for its inclusion would have defined beyond the reach of further argument the nature of the water-divide; and he adds that reference to the local water-parting has also been omitted. "The terms of the treaty are not therefore contradictory but defective; whilst the terms of the protocol leave no doubt on my mind that whether we accept the "divortium aquarum" as being continental (which is not stated) or as being local (which is not provided for) we are to look for the boundary within the Andine system, and not beyond it." (Sir. T. Holdich, ibid., April 1899).
Holdich says that qualification of the water-parting was obviously necessary in the boundary treaties. And he adds that this would have defined the nature of the water-parting. This means that the qualifier denotes the specific nature of the water-parting. And the qualifier was "obviously necessary" in this case, because it would have indicated the specific nature of the water-parting and placed the water-parting so qualified beyond the reach of further argument. This result could have been obtained by using the qualifiers "continental" or "local", which were not used in the treaty in question. "As regards the Chile contention that by the terms of the treaty the boundary should follow the continental water-divide between the Atlantic and Pacific, it is difficult to understand, if this were really the intention and meaning of the Chile Government, why so obviously necessary a qualification as the word "continental" or "between the Atlantic and Pacific", or some similar qualification which would define beyond the reach of further argument the nature of the water-divide which the boundary should follow, has been omitted from the treaty." (ibid.)
Holdich also refers to the failure to qualify the water-parting in another of his preparatory works, saying that if the words "continuous" or "continental" had been used in the treaties Chile’s position on the continental water-parting would have been unassailable (MCH, Annexes, vol. I, annex No. 22, "Holdich Introduction", para. 1).
The arbitration report uses the term water-parting 17 times and local water-parting seven times. It also uses equivalent expressions. For example, it says that the frontier line follows a high mountain water-parting and local waterparting before reaching the continental water-parting. The passages in question make it clear that these are different things. The distinction is clear, and the continental water-parting emerges as an entity with its own essential character, distinct from other water-partings (MA, ibid., document No. 40-B, pp. 458, 460 and 461).
The arbitration report frequently uses the term water-parting (without qualifiers) and adds a description of the basins which it separates, and in some cases it uses qualifiers which do not modify in any way the generic nature of this term, qualifiers such as snow-covered, high-mountain, elevated or lofty. Exceptionally, in three instances referring to two short sections separated by the crossing of the waters of Lake Pueyrredôn there is no mention of the basins separated by the water-parting (MA, ibid., pp. 455-459).
The term water-parting, unqualified, can refer both to continental and to local water-partings, as well as to terms equivalent to these two terms, such as principle water-divide and secondary or subsidiary divide. In the report the term is used to denote both types of parting; and then the subsequent determination of its principle or secondary function has to be made on the basis of the topography of the ground.
Without any inconsistency with the arguments set out above, when a water-parting (unqualified) is mentioned and its terminal points are indicated, reference can be made to a section of the continental divide which runs along a section of the local divide and vice-versa, linking the terminal points. This occurs in the passage of the arbitration report which establishes the frontier line as the water-parting between Pérez Rosales Pass and Mount Tronador, which on the ground begins as a continental divide and continues as a local divide (document No. 40-B, p. 456).
Examining this delimitation rule for the section between the southern shore of Lake San Martin (today boundary post 62) and Mount Fitzroy one is struck by the use of the terms local water-parting and continental water-parting in the same passage, separated by eight words of the same semantic unit. The boundary shall ascend the local water-parting to Mount Fitzroy, i.e., towards Mount Fitzroy, and thence to the continental water-parting. The two terms are quite clearly distinguished: between Lake San Martin and Fitzroy there is a local water-parting, and from Fitzroy the continental water-parting. It is impossible to see how these two terms could be interchangeable in this passage or how the qualifiers could be omitted.
If the Tribunal had wanted the frontier in this section to follow a waterparting without any qualification whatsoever, i.e., that it did not care whether it was a continental or local water-parting or a combination of the two, it could simply have said "water-parting". But that is not what it did, and the Arbitrator distinguished clearly, in the same prescriptive clause, between the use of local and continental water-parting.
The arbitration report consistently adheres to the standard usage with respect to water-partings. This text is of decisive importance to the solution of the problem of interpretation. It could even be asserted, if necessary, that this terminological distinction in the principal legal text could not be altered by the context, since the situation is so clearly established in the prescriptive clause of the arbitration report. Furthermore, the context, as we have seen, consistently takes the same approach.
Moreover, the Arbitrator could not have proceeded in any other way with regard to this sector, for he knew for certain, from the consensus of the Parties about the position of the continental divide of the time, that this divide lay much further to the east of the zone through which he wished to draw his compromise line, a line situated between the high peaks which Argentina advocated and the continental divide advocated by Chile. There was no continental divide available for a compromise solution. It may be noted that, given the geographical conditions as they were known during the arbitration, a single local water-parting could not run from Lake San Martin to Mount Fitzroy because the continental water-divide of the time stood in the way, as is made clear by the graphic language of the Arbitrator’s map.
Given the many references to continental and local water-partings and bearing in mind the use of these two terms in the same prescriptive clause of the arbitration report concerning the zone between Lake San Martin and Mount Fitzroy, it cannot be assumed that these terms were used in such a way as to lack determinative effect. On the contrary, everything points to the fact that they served to identify particular geographic situations and helped to distinguish between different segments of the boundary line.
In addition, it may be noted that the Argentine line does not conform to the line of the Arbitrator’s map. This latter line, even though in the disputed sector it is shown as pecked, cannot be disregarded in all its possible effects. The Arbitrator’s map has the authority invested in it by the Award itself when it indicated this line as the source of details of the delimitation of the frontier (Award, art. V), and the direction of the line is of course an important point.
Leaving for later an examination of the significance of the pecked line on the Arbitrator’s map, the minimum value which can and should be assigned to it is that it indicates the direction of the line which interprets the meaning of the arbitral decision correctly. The Argentine line deviates completely from the direction followed by the line on the Arbitrator’s map. In fact, this Argentine line moves in directions inconsistent with the general direction indicated on the Arbitrator’s map as the continuation of the frontier line, which generally runs north-south. Therefore, it is inconsistent with another requirement, that of interpreting the three arbitral instruments as a single semantic unit in accordance with the principle of integration.
Chile emphasizes the dominant position of the three ranges which it designates as a whole the Cordon Oriental. In the case of the Cordon Oriental the water-parting has the additional function of making the definition of the line running along its crest more precise. "The identification of the dividing range is the main element in the determination of Chile’s line. The addition of the local water-parting is both a reference to the hydrographic function of the range and another way of designating the range, as well as a means of determining the precise line for the whole extent of the summit-line of the range along which the boundary should run" (CCH, pp. 62-63, 4.30).
The backbone of Chile’s argument is the text of the Award itself, which states: "The further continuation of the boundary is determined by lines which We have fixed across Lake Buenos Aires, Lake Pueyrredon (or Cochrane), and Lake San Martin, the effect of which is to assign the western portions of the basins of these lakes to Chile, and the eastern portions to Argentina, the dividing ranges carrying the lofty peaks known as Mounts San Lorenzo and Fitzroy". "From Mount Fitzroy to Mount Stokes the line of frontier has been already determined" (Award, art. III, 3rd and 4th paras.).
Chile states its understanding of this provision of the Award: "It describes the line which assigns the eastern part to Argentina as being "the dividing ranges" in which Mounts San Lorenzo and Fitzroy are located". Chile then acknowledges that this provision is insufficient in itself for determining the exact course of the boundary in the disputed region (MCH, p. 135, 12.1112.12). Chile finds the beginning of the correct course of the line in the arbitration report in the reference to "spur".
From this provision of the Award itself Chile infers that it was not prescribed, at least for this section of the line, that the boundary should necessarily follow a local water-parting and that "the truth is that the Award speaks of dividing ranges and not of water-partings" (MCH, p. 136, 12.14). Chile considers that, by referring to the spur from which the boundary runs in the direction of Mount Fitzroy the arbitration report identified the range which the line should follow, interpreting spur to mean a very long feature and even the mountain range itself. Thus, the course of the line is based on the Award, supplemented by the report, for the whole length of the three successive ranges.
At the point at which the Cordon del Bosque moves away from Mount Fitzroy the Chilean line abandons this range and descends to the valley along a local water-parting, crosses the River de las Vueltas and the River Eléctrico and ascends to Mount Fitzroy along another local water-parting. On the Cordon Oriental the Chilean line coincides first with the local water-parting for 12 kilometres from the initial spur, then runs for 27 kilometres along the continental water-parting, before moving to the local water-parting along the flanks of the Cordon del Bosque and crossing the Rivers de las Vueltas and Eléctrico.
With regard to the crossing of these two rivers, Chile relies on what the 1966 Court called "the general practice of the 1902 Award" which was "to follow the boundary, either along the continental divide or along local surface water-partings, crossing tributary rivers when necessary" (MCH, p. 147,13.18, and pp. A/266-A/267).
A particular topic of debate in the arbitral proceedings was whether Chile maintained that a local water-parting, as such, can cross rivers. Argentina argued that the language used by Chile had that meaning; it constantly criticized this position and declared that it was a serious defect in the Chilean line that it crossed rivers as a prolongation of local water-partings.
That Chile took this position can be seen from some passages in its written submissions. "Argentina is therefore wrong when it asserts that the Arbitrator recognized a concept of "water-parting" consisting of "a continuous and single line which, between its extreme points and throughout its extent or course, separates two opposite directions of water-flow, which cannot be interrupted or crossed by any water-course...". Referring to the course of the line between Cerro Très Hermanos and the north shore of Lake San Martin, Chile argued that "the Tribunal indicated that a water-parting should be used. This meant crossing two rivers" (CCH, p. 60, 4.27). Attention is drawn here to the sequence of the references to water-parting and the crossing of two rivers.
In its counter-memorial Chile made statements in which the crossing of rivers was not attributed to an intrinsic quality of local water-partings but to the intention of the Arbitrator, who wanted to link two local water-partings.
Whether its justification is derived from the nature of a water-parting as such, which in fact is impossible, or from the Arbitrator’s decision to link two water-partings, the Chilean line crosses two rivers and connects the local water-parting descending from the summit of the Cordon del Bosque to the local water-parting ascending from the valley by the slopes of Mount Fitzroy.
The second part continues "the dividing ranges carrying the lofty peaks known as Mounts San Lorenzo and Fitzroy". In this text the second part stands in apposition to the first, but it is more of an independent than a subordinate clause. Sir John Ardagh, a member of the Tribunal, added this clause after the first part had been written.
When the two parts are read together, the first is prescriptive and the second descriptive or explanatory. Being explanatory, the second part lacks any prescriptive or mandatory meaning and simply states that Mounts San Lorenzo and Fitzroy are located in the dividing ranges. It does not say that the dividing ranges extend between the two peaks or that the line should follow ranges between these peaks.
Neither the prescriptive clause, concerning the division of the three lakes between the Parties, nor the explanatory clause, stating that Mounts San Lorenzo and Fitzroy are located in the dividing ranges, says that the ranges function as the dividing line between the summits of San Lorenzo and Fitzroy. The prescriptive clause contains the Arbitrator’s decision that the line divides the three lakes and assigns the western portions of their basins to Chile and the eastern to Argentina. The descriptive or explanatory clause simply states that Mounts San Lorenzo and Fitzroy are located in the dividing ranges.
The second clause determines the position of Mounts San Lorenzo and Fitzroy, stating that they are located in dividing ranges. It says nothing more about dividing ranges. The verb "located" is not prescriptive but merely indicative of situation. Nor is the verb "carry" prescriptive and the most appropriate Spanish translation in the present case is "encontrarse".
In the English text the subject of the sentence is "the dividing ranges", the verb is "carrying", which here, as is common usage in English to indicate a stable situation, is in the gerundive form; and the complement is "the lofty peaks known as Mounts San Lorenzo and Fitzroy".
The Award could have said more but it did not. The arbitration report established the rule for determining the line in this sector: the local waterparting which ascends to Mount Fitzroy. This is a prescription or a mandate and not an explanation.
The late addition of "the dividing ranges" to the arbitration text could not be more eloquent, for the line was being determined in the extensive zone lying between Mount San Lorenzo and Mount Fitzroy, some 190 kilometres long, in which the Arbitrator had decided to cross the River Mayer and Lake San Martin, delimiting large zones without reference to dividing ranges, either because they did not seem appropriate or because they did not exist, as in the area of the three lakes and the surrounding terrain.
Chile considers that this provision of the report is consistent with the more general rule contained in article III of the Award, for the rule uses a dividing range to carry the boundary. The report adds a reference to the local water-parting as the tool which defines with greatest detail or precision the course of the boundary along the chosen dividing range. In several statements Chile argues that "spur" is equivalent to "dividing range", for example in the reference to "the foot of this spur" (record No. 1 of 11 April 1994, p. 44).
Here is another example of this identification of spur with range: "An examination of the 1902 arbitration report shows that its use of "spur" corresponds in all cases to "dividing range", i.e., to one of the ranges chosen by the Arbitrator as the geographical feature constituting the international boundary". "This is precisely the case of the Cordon Oriental, i.e., it constitutes one of the dividing ranges." Chile then explains that immediately after the arbitration Chile’s official documents translated "spur" as "contrafuerté", but that today it prefers "'estribacion" as being a noun which, while meaning the same, is now in wider use (record No. 7 of 19 April 1994, pp. 47-53).
The meaning of "spur" provoked much debate during these arbitral proceedings. Argentina argued against the thesis that "spur" identifies the dividing range, the basis for Chile’s position that spur and range are equivalent terms. This approach corresponds to the Chilean position according to the passages quoted above.
The dictionaries of the time cited by the Parties and today’s dictionaries agree that "spur" is a salient issuing from a mountain mass, but it is not the mass itself; in other words, a spur issues from a range or mountain but it is not the range or mountain itself. The term does not include the range, peak or mountain from which the spur issues. Thus, the report indicates only the start of the line from the crossing of Lake San Martin and says nothing to the effect that it runs along dividing ranges. Having indicated its starting point, the reports states that the line is determined by the local water-parting. The Parties agree on the first 12 kilometres of the local water-parting on the Cordon Martinez de Rozas.
The report stipulates the local water-parting as mandatory. A local waterparting may run along ranges or along such a low relief that its identification of the ground is difficult. If the report had made the dividing ranges the delimitation rule, it would not have mattered whether the continental or local waterparting ran along them. But since this is not the case, the only applicable criterion, from the point identified as "spur", is the local water-parting.
Chile would have fallen into contradiction with its thesis of the clear distinction between continental and local water-partings if it had relied of the arbitration report, which makes the local water parting mandatory, because the Chilean line combines local and continental partings. Since Chile relied on the dividing ranges, the continental or local character of the water-parting became a secondary consideration. However, as it has been determined that dividing ranges do not play the role assigned to them in this sector, local and continental water-partings remain set in contradiction with each other, and the combination of local and continental partings is not without relevance to the resolution of this contradiction.
Since Chile accords precedence to the dividing ranges, it would be possible to avoid the problem of this distinction if such precedence was a prescription of the Award, for the successive ranges could carry the line to the point from which it descends to the valley along which flow the Rivers de las Vueltas and Eléctrico. If the local water-parting played a subsidiary role, and moreover there was no continuous and single water-parting between the supposed terminal points, it would not matter whether the dividing ranges carried along their summit-line a continental or a local parting. These hypotheses, however, do not fit with the terms of the Award and the arbitration report.
Based as it is on the distinction between continental and local water-partings and on the fact that the applicable rule for determining the boundary in this section is the local water-parting alone, the Chilean interpretation of the boundary line, like the Argentine version, suffers the defect of combining continental and local water-partings. The report speaks of a local water-parting not of a water-parting without qualification. If the report had referred to a water-parting without qualification, it would have been admissible to combine continental and local partings.
The waters of a river flow in only one direction, while a water-parting separates waters which flow in different directions. Thus, a water-parting as such cannot cross a river, because in that section it would not part the waters. Accordingly, it is not a question of the local water-parting crossing rivers, which would contradict its definition, but of the intention of the Arbitrator to the effect that at the end of one local water-parting the line should cross a river to reach another water-parting or some other geographical feature.
The 1902 Award was able to accept the crossing of rivers as the Arbitrator’s intention, not as a prolongation of the local water-parting. The language of the arbitration report indicates that the crossing of rivers is a result of the decision of the Tribunal and not of the prolongation of local water-partings.
The statement of the 1966 Court quoted above indicates that the general practice of the 1902 Award associates the crossing of tributary rivers with the line of the frontier but not with the local water-parting. This general practice to which the 1966 Court refers means that the frontier line, not the local water-parting, can cross rivers when necessary; and the frontier line represents the arbitral decision.
The crossing of rivers in the present case of interpretation and application of the 1902 Award could be effected by decision of the Court, if that was absolutely indispensable for giving effect to the intention of the 1898-1902 Arbitrator and in view of the incomplete geographical knowledge of the region at the time of the arbitration. But since objections have been raised against the earlier sections of Chile’s version of the line, it would be wrong to consider the possibility of having it cross rivers at the behest of the Arbitrator.
This incursion into a zone which was not disputed is grounded on a reason similar to the one by which the Arbitrator justified entering the Atlantic basin of Lake Viedma, i.e., that Mount Fitzroy, an obligatory point of the boundary, was located in the geography of the time on the Atlantic slope and was bordered to the north and west by the continental divide. Any line coming from Lake San Martin had necessarily to cross the continental divide of the time in order to reach Mount Fitzroy, but the Arbitrator opted for the minimum incursion into this basin, as his map demonstrates, while the Chilean line makes a relatively large incursion into territory which was not disputed in 1898-1902.
The 1898-1902 Tribunal would not have been able to carry its intention of seeking an intermediate line between the extreme claims of the Parties as far as dividing land which was clearly not in dispute. The Tribunal could not direct that the boundary should penetrate far into land which was not disputed and therefore lay outside its competence. By sticking to their agreement on Mount Fitzroy as a point on the frontier the Parties accepted that the line should enter the Atlantic basin as known at the time, but the Arbitrator understood that, although the incursion into the Atlantic basin was meant to meet a need, it must be kept to a minimum, precisely because it was an exception. The Arbitrator’s map proves this.
On 26 May 1902 the Governments of Argentina and Chile signed an agreement on demarcation of the boundary line between Chile and Argentina, in which they requested the British Government to appoint a commission to fix on the ground the boundaries which it had ordered in its Award (MCH, Annexes, vol. I, annex 17). On 29 December 1902 Sir Thomas Holdich informed Argentina’s Minister for Foreign Affairs, Mr. Luis Drago, that he had reached an agreement with the experts of the two countries on the terms under which the mixed commission would operate, with British officers acting as arbitrators (MCH, Annexes, vol. I, annex 29).
The note mentioned above contains the terms of reference of the demarcation commissioners, to the effect that the British officer in charge will have absolute command of the group and will be the final judge in the event of disagreement. He was also responsible for the accuracy of the final records of the frontier, which should include: (1) the final map; (2) a summary or list of boundary marks indicating the coordinates of their location on this map in latitude and longitude correct to 10 seconds and their relation to adjacent boundary posts and surrounding points fixed by triangulation (CCH, Annexes, vol. I, annex 29). This is the most important part of the agreement reached by Holdich and the experts, because it refers to the powers conferred on the members of the Demarcation Commission, and of course on the British officers as arbitrators.
Given the absolute authority conferred on the British officers to resolve definitively any problems connected with the boundary marks, it may be concluded that they were the real demarcators of the delimitation ordered by the Arbitrator. The determination of the powers invested in the Demarcator for the zone in question, Captain I.H. Crosthwait, is a matter of great importance for the assessment of the value of his map. The main point to be settled is the meaning of the words "final map".
Crosthwait made some changes in the line which he drew on his map: (1) he changed the direction of the line on the Arbitrator’s map, depicting it as an almost straight line running north-south between boundary post 62 and the continental water-parting of the time in the neighbourhood of Mount Fitzroy, and deleting the westward inflection of the line on the Arbitrator’s map; (2) his line did not touch Cerro Gorra Blanca, and this represented a substantial change from the Arbitrator’s map; and (3) nor did it touch Mount Fitzroy, an obligatory point on the boundary, again diverging from the Arbitrator’s map.
Captain Crosthwait did not explain these changes, so that it is impossible to indicate, except as hypotheses, his reasons for acting in this way. One possible reason for the omission of Cerro Gorra Blanca might be that, although the Arbitrator’s map touched this peak with its boundary line, the arbitration report did not mention it. The fact that the line did not pass over Mount Fitzroy, when the Arbitrator’s map touched it by crossing the continental divide of the time and then left it by crossing the same continental divide again, does not seem to point to a reason but rather to an act of will.
Captain Crosthwait erected boundary post 62 on a prominent rock about 50 metres above the level of the lake in line with the spur which descends from the peak described in the Award (marked "D" on the map), about 750 metres to the west of a river which flows into the lake (MCH, Annexes, vol. I, annex No. 31, "Tabular Statement of Boundary Pillars Erected on the Chile-Argentina Boundary by the British Delimitation Commission", pp. 7-8).
Chile, in contrast, assigns to the Demarcator’s map a dominant role in the determination of the line of the frontier in accordance with the 1902 Award. "This is the line, which, in its general characteristics and principally by reason of its almost direct path to Mount Fitzroy, represents in Chile’s view the clearest indication of the intention of the 1902 Award and report." "Both for Chile and for Argentina the demarcation settles definitively any omissions or uncertainties in the frontier defined by the Award." (MCH, p. 139, 12.31)
"It was clear to the Tribunal that the acts and decisions of the Demarcator were to resolve any points remaining in doubt." Chile also refers to the practice of implementing the Demarcator’s line by correcting the Arbitrator’s map, which occurred on many occasions involving hundreds of kilometres of frontier (CCH, p. 23, 3.1, p. 139, 12.31, and p. 71, 7.47 and 7.48). These corrections were made possible by an agreement between the Parties.
Chile accords precedence to the acts of the Demarcator, for it says that "the 1903 demarcation must be regarded as an integral part of the 1902 Award and report, and it was accepted as such by the Palena Court". In this connection it believes that "the demarcation settles definitively any omissions or uncertainties in the frontier defined by the Award". "The authority and mandatory nature of the demarcation cannot now be called into question." (MCH, p. 139, 12.31)
It must be pointed out that the 1902 Award consists of three instruments: the Award itself, the arbitration report and the Award map. The binding authority of the Demarcator’s map and report stems from the agreement concluded by the Parties on 28 May 1902. Here the question under discussion is not so much the binding nature of the demarcation as the authority of the Demarcator to produce a map different from the one produced by the Arbitrator.
It must be noted that the delimitation had already been concluded in 1903 and that Crosthwait was not appointed to amend the delimitation but to carry out the demarcation in accordance therewith. His powers, defined by their purpose, were limited to demarcation, and therefore he had no authority to diverge from the Arbitrator’s delimitation.
The demarcation agreement signed by the two countries spelled out the terms of reference of the Mixed Commission as follows: "It shall fix on the ground the boundaries prescribed in [the Arbitrator’s] Award". The distinction between demarcation and delimitation means that demarcation is a technical activity concerned only and exclusively with the implementation of the delimitation. To accept that the Demarcator could make changes to the Arbitrator’s map would also mean accepting instability and uncertainty in the delimitation decision.
The agreement between Holdich and the experts states the task entrusted to the Demarcator: to erect boundary marks in the appropriate places and to do so in accordance with specific instructions. In order to facilitate this task the Demarcator was authorized to use certain discretionary powers. Within this context the final map for which he was responsible was to consist of a graphic description of the places where the boundary marks were erected. In any event, the use of the words "final map" provoked debate during the present arbitration proceedings.
Sir Thomas used different language, this time unambiguous, in the instructions which he gave to his four demarcation officers. He directed them to supervise the alignment of the boundary posts or frontier markers in the places indicated by the Tribunal and to decide, in the event of any doubt, where they should be erected. He then stated the criteria for erection of the primary and secondary boundary marks and the information about each post which should be included in the mission report.
These instructions no longer refer to a "final map" but to a "fair map". "A short narrative report will be required of each Officer’s work together with a fair map of the boundary in his section." The qualifier "final" was used in the report: "A final statement, or synopsis, of the boundary pillars will be drawn up..." (CCH, Annexes, vol. I, annex 30, "General Directions Given by Sir Thomas Holdich to Officers in Charge of Demarcation 1902", paras. 9 and 10).
Even though the Demarcator’s map, examined in the light of the powers conferred on its author, could not be interpreted as binding on the Parties, except with respect to the erection of boundary post 62, it was used by Argentina, beginning with the 1907 map published by the Office of International Boundaries. For several decades Argentina consistently, except on two maps which reproduced the line of the Arbitrator’s map, depicted a line similar to the one on the Demarcator’s map. On some of these maps the line touched Mount Fitzroy and on others it did not. The first Argentine map showing a line similar to its version of the line in the present arbitration appeared in 1962.
An examination of this long series of maps shows that the Argentine line on them was drawn in the same direction, in the same area and through the same points as the line of the Demarcator’s map, no matter whether it did not touch Mount Fitzroy, following in this respect the Demarcator’s map, or did touch it, thus adding to the Demarcator’s map. This assertion is not based on deduction but on direct and objective visual examination.
Two maps produced by Chilean experts, Riso Patron (1905) and Donoso Grille (1906), also adopted the Demarcator’s line. This was repeated on maps up to 1953. Chile’s 1953 map, labelled "preliminary map" and "boundary under study", used the line advocated today by Argentina, i.e., the continental divide discovered in 1945. In 1955 Chile published a map showing its current version of the line of the 1902 Award.
Although the maps of Riso Patron and Donoso Grille were published on their authors’ responsibility in their private capacity, Chile did not dissociate itself from these maps but referred to them as its own. It states in this connection: "(1) in 1905 and 1906 two Chilean maps used the line indicated on the Demarcator’s 1903 map, i.e., the line running directly between boundary post 62 and Mount Fitzroy. Cerro Gorra Blanca was thus in Chilean territory" (MCH, p. 101, 9.3). On this basis it can be asserted that Chile first adopted the Demarcator’s line and that from 1906 and for many years it preferred the line of the Arbitrator’s map.
The maps produced by the Parties subsequent to the 1902 Award confirm that the area on which the lines of the Arbitrator’s map and the Demarcator’s map were shown fell within the competence of the 1898-1902 Arbitrator. The maps of the Parties up to 1953 reproduced those two lines, and reproduced them without any reservation concerning the area which later wound be known as the upper part of the basin of the River de las Vueltas. The lines on the maps of the Parties coincided, notwithstanding their differences in other respects, in the path which they took in the upper las Vueltas basin. The Parties were stating in graphic language that the two original lines had been drawn in an area concerning which the Arbitrator had been given authority to rule.
It emerges from the foregoing arguments that the Parties’ assessments of the value of the Demarcator’s map and line did not agree. Notwithstanding its original defect, if the Parties had agreed to invest the Demarcator’s line with the status of dividing line throughout several decades, the question would have arisen of determining the implications of that agreement.
The official maps took different approaches to identification of the boundary line. Argentina inclined towards the Demarcator’s line and Chile towards the Arbitrator’s. In consequence there remained an intermediate space concerning which, for several decades, neither Party made any attribution or claim by means of the graphic language of their maps. Actual activities, private and official, were carried out in this intermediate area. But no agreement could be reached on the Demarcator’s line, nor could its original defects be corrected by the subsequent conduct of the Parties.
In conclusion, the Demarcator’s map could not take the place of the Arbitrator’s map owing to the Demarcator’s lack of authority, and the subsequent and divergent conduct of the Parties could not correct its original defects. The line on his map does not meet the necessary requirements for being considered as the authentic interpretation of the 1902 Award, even though it did confirm that the area through which this line ran between boundary post 62 and Mount Fitzroy had been within the competence of the 1898-1902 Arbitrator.
Argentina says that the two divides function in the same way and denominate the same geographical situation and that therefore the qualifiers do not alter their essential shared character. Chile maintains that the terms mean two different things and that a water-parting is either continental or local but not both at once.
In its interpretation of the arbitration report’s rule which stipulates following the local water-parting, Argentina presents a divide combining continental and local features, interpreting local in accordance with the approach taken by the Award. Chile relies on the dividing ranges for part of the course of its line and then takes up the local water-parting. The elucidation of what is understood by continental and local water-parting becomes a decisive factor in the assessment of the two lines and establishing the correct interpretation of the 1902 Award.
Argentina argues that, in the boundary post 62-Mount Fitzroy sector, there is no incompatibility between the Award itself and the arbitration report, in contrast to what happened in the 1966 arbitration when the Court set aside the report by reason of its faulty geography and applied the Award itself. Thus, Argentina considers that in the present case there is total consistency between Award and report and that they can be applied on the ground.
Argentina maintains that, when these two instruments are read in the context of the geographical situation as it is known today, the frontier line should be drawn on the ground for the whole length of the water-parting running without interruption between boundary post 62 and Mount Fitzroy, notwithstanding the fact that this water-parting is a continental one in part of its course. In Argentina’s opinion, this is the water-parting which the 1898-1902 Tribunal called local water-parting.
Argentina considers that the local water-parting can be used between boundary post 62 and Mount Fitzroy on the understanding that there is no difference between continental and local divides since both function in the same way, i.e., they separate waters flowing in different directions.
The task of the present Court, Argentina concludes, is to identify the line corresponding to the local water-parting in accordance with the 1902 Award and report and to determine its course, for which purpose it does not matter that part of this course corresponds to a continental divide, since the adjectives local and continental add nothing to and subtract nothing from the nature of the divide.
This line of argument would confirm the conclusions drawn from application of the principle of estoppel and from the territorial competence of the 1898-1902 Arbitrator. Thus, estoppel, territorial competence of the Arbitrator and thesis of water-parting concur in validating the Argentine line.
Chile considers that there is a clear distinction between continental and local water-parting, since the one separates waters flowing to the Atlantic and Pacific Oceans and the other waters flowing to one same ocean. Chile says that a divide is either continental or local but not both at once; and it hopes to overcome the obstacle inherent in this distinction for its version of the line by recourse to dividing ranges and the interpretation that in the stretch where the dividing range prevails it is immaterial whether the water-parting is continental or local.
Chile maintains that there is a geographical error in the present case and that, just as in the 1966 arbitration it was determined that the River Encuentro does not have its sources on Cerro de la Virgen, the local water-parting does not run without interruption between boundary post 62 and Mount Fitzroy and that, therefore, the arbitration report’s rule cannot be applied.
Chile refers to the authority of the 1966 Award in support of two points: (1) reliance on the Award itself with respect to the dividing ranges mentioned in its article III, since the report had made a geographical error; and (2) the possibility that the local water-parting may cross rivers, in accordance with what the 1966 Court called "the general practice of the 1902 Award".
On the assumption that the arbitration report’s rule cannot be applied because there is no single water-parting which is actually local throughout its length between boundary post 62 and Mount Fitzroy, Chile relies, as did the 1966 Court, on the Award itself in order to draw a line which runs along the ranges Martinez de Rozas, Innominado and del Bosque, descends to the valley along a local water-parting, crosses the River de las Vueltas and the River Eléctrico, and then ascends along a local water-parting to Mount Fitzroy. Along these ranges the Chilean line is in some parts a continental divide.
If a distinction is made between continental and local water-partings, on the basis of their respective qualifiers and moreover on the understanding that they are technical terms, it can be said that the Argentine line combines continental and local water-partings and that the Chilean line does likewise. The question, with respect to both lines, is to decide whether this combination is consistent with the rule of the arbitration report’s instruction that the local water-parting should be followed in this sector.
Reasons have been adduced, some theoretical and others taken from the texts of the 1898-1902 arbitration and its preparatory work, to prove that continental water-parting and local water-parting were specific terms at the time and that they cannot be used interchangeably in the language of the Award. Reference to the preparatory work is necessary in this case because the texts in question prefigure the language of the Award and state clearly that the authors make a distinction between continental and local water-parting. Thus, the solution to this dispute must be sought elsewhere than in the understandings or claims of the Parties with respect to their lines.
My dissent from the Award begins in the chapter containing an examination of the competence of the present Court, moves on to the territorial competence of the 1898-1902 Arbitrator, including its consequences, citing the history and application of the principle non ultra petita partium, and concludes with the meaning of the terms for water-parting.
Thus, I do not endorse the grounds, conclusions or decision of this Award with respect to the interpretation and application of the 1902 Award. This dissenting opinion, taken as a whole and in each of its elements, explains the reasons why I voted against the Award.
Therefore, having thus exhausted the material used for the successive exclusion of possible answers to the question put in the 1991 Compromis, I will now offer some thoughts with which I bring to an end and close the circle on this dissenting line of reasoning.
The three components of the 1902 Award must be considered as a whole, because in isolation none of them resolves the problem. The decision itself, the report and the map constitute a semantic unity and complement each other. It must be remembered that the 1902 Award contains language of two kinds, the written language of the decision itself and the arbitration report and the graphic language of the map. If the principle of integration is to be applied to its interpretation, this technique based on a legal principle and backed by logic must be applied to the whole interpretation and to all the problems which arise.
The Award itself contains two fundamental clauses concerning the sector currently in dispute. The first states: "The further continuation of the boundary is determined by lines which we have fixed across Lake Buenos Aires, Lake Pueyrredôn (or Cochrane), and Lake San Martin, the effect of which is to assign the western portions of these lakes to Chile and the eastern portions to Argentina" (Award, art. III, para. 3).
The second fundamental clause states: "A more detailed definition of the line of frontier will be found in the Report submitted to Us by Our Tribunal, and upon the maps furnished by the experts of the Republics of Argentina and Chile, upon which the boundary which We have decided upon has been delineated by the members of Our Tribunal, and approved by Us" (Award, art. V, para. 1). Thus, the frontier approved by the Arbitrator is delineated on the maps.
The arbitration report contains the following prescription: "... [the frontier line] shall follow the median line of the Lake (San Martin) southwards as far as a point opposite the spur which terminates on the southern shore of the Lake in longitude 72_47’W., whence the boundary shall be drawn to the foot of this spur and ascend the local water-parting to Mount Fitzroy and thence to the continental water-parting to the northwest of Lake Viedma" (Arbitration Report, section 22, last paragraph).
The Arbitrator’s map contains details of the arbitral decision, in accordance with the provision of the Award itself (art. V, para. 1). The Award does not allude to any order of priority between the report and the map but uses both of them to set out the details of its decision.
In other words, the Award itself formulates the general rule concerning the line, which, coming down from the north crosses Lake San Martin and then continues to Mount Fitzroy, the effect of which is to assign the eastern portions of the lacustrine basins to Argentina and the western portions to Chile, thus implementing the compromise solution which the Arbitrator regarded as appropriate in the light of positions which were incompatible with the provisions of the boundary treaties interpreted in their strict sense.
As this was a very general formulation, the Arbitrator supplemented it with the report and the map, adding the details which were lacking in the general rule. As a result, not only for reasons of interpretative logic but also at the express direction of the Arbitrator, the report and the map represent and clarify the Arbitrator’s intention. The structure of these instruments is such that neither of them, in itself and in isolation, can solve the problem of the identification of the course of the frontier line between boundary post 62 and Mount Fitzroy.
The arbitration report read in conjunction with the Arbitrator’s map provides the details of the line prescribed in very general terms in the decision itself. The way in which this general rule is to be applied in the sector of the present dispute is specified in the arbitration report and on the Arbitrator’s map. Thus, the key to a solution is to be found in the examination and interpretation of the report and the map considered as a single semantic unit consisting of written and graphic language.
And at the end of the day, if all the paths of interpretation encounter insuperable obstacles, there will remain, as a first hypothesis, an abominable silence, a symbol of the bewilderment of the logicians. But since silence is not a solution and is inadmissible in legal matters, even though legal history does record some cases, the Court would have the power to adopt its own decision, not one devised totally by the Court but one consistent with the factual and legal background and the context in which the Arbitrator conducted the proceedings and adopted his decision, as well as with the written and graphic language of the components of the Award, in particular the report and the map.
For the details of the content and significance of the maps which the Parties produced subsequent to the 1902 Award reference must be made to the sections of this exposition dealing with the question of the territorial competence of the 1898-1902 Arbitrator. Here I will limit myself to a summary of the reasons why it can be asserted that such concordance did not materialise.
The first Argentine map, produced in 1902 immediately after the pronouncement of the Award, was apparently an internal document which was not made public and was not discussed during the arbitral proceedings. This map depicted the line of the Arbitrator’s map, recognizing that this was the boundary adopted by the Arbitrator. This map came to the attention of the present Court because a copy of it was included in the volume of annexes in the Argentine memorial.
The first two Chilean maps, produced by Riso Patron and Donoso Grillé, depicted the Demarcator’s line, and then for many years the official Chilean maps showed the line of the Arbitrator’s map. Chile continued to use this line consistently until in 1953, eight years after the discovery of the true continental divide, it published a map showing a line similar to the one which would subsequently become the current Argentine line. This map was labelled "boundary under study" and "preliminary map", so that it cannot be regarded as acknowledging Argentina’s present version of the line, for acknowledgement must be categorical and unambiguous. In 1955 this map was replaced by one showing the cunent version of Chile’s line.
Argentina’s official maps tended to follow the Demarcator’s line, with a few exceptions. Since Chile chose the line of the Arbitrator’s map and Argentina the Demarcator’s line, there was no concordance between the two countries on the interpretation of the Award.
What is more, for many years there remained between these two lines a space not encompassed by either of them. With the passage of time concrete activities were carried out in this space. These activities, although they show that the Parties never intentionally went beyond the line of the Arbitrator’s map, allowed some uncertainty as to boundaries, and the present task is to identify and define a line which does not give rise to any uncertainty.
Argentina comments on the joint interpretation of the components of the Award, including the Arbitrator’s map. For example: "And the Award maps constitute the graphic representation of the criteria established and defined in the other two documents. Consequently, the two documents referred to in article V are in fact complementary to and explanatory of the Award itself’ (MA, pp. 441-444, 5).
On the basis of the validity which it accords to the Arbitrator’s map, Argentina believes that there are three obligatory points on the line between boundary post 62 and Mount Fitzroy: the two extreme points—post 62 and Mount Fitzroy—indicated in the arbitration report, and a third intermediate point indicated on the Arbitrator’s map. The arbitration report does not mention Cerro Gorra Blanca but the Arbitrator’s map shows it as a point on the pecked line which sets out from the Cordon Martinez de Rozas and reaches Cerro Gorra Blanca by means of a westward inflection.
"... Cerro Gorra Blanca is a point which must necessarily be taken into account by the present Court in determining the boundary..." "Even if the Award and the report do not mention it expressly, the Award map shows Cerro Gorra Blanca without any ambiguity, highlighting it and even mentioning its altitude of 2,770 metres." "It must be added that the official Chilean maps from 1903 up to 1958 always showed the international boundary as passing across Cerro Gorra Blanca." (MA, pp. 589-591, 36, pp. 305-306, 19, and p. 308,21).
Chile takes a different position. "The Arbitrator’s map introduces, for the first time in the case, a reference to Cerro Gorra Blanca, which is not mentioned in the report or the Award. There is nothing in the topography depicted on the map itself to suggest that Cerro Gorra Blanca was situated on "the local water-parting" (to which the arbitration report alludes) between the place where boundary post 62 would be erected and Mount Fitzroy."
Chile comments on the fact that Captain Crosthwait did not have his line pass over Cerro Gorra Blanca: "He (Crosthwait) was also authorized to take the view that Cerro Gorra Blanca was not situated on the spur ascending to Mount Fitzroy from boundary post 62 and, therefore, he could eliminate this peak from the boundary line". "Cerro Gorra Blanca had not been named in the Award or in the report and was not, therefore, an obligatory point on the frontier" (MCH, p. 59, 6.11, and p. 69, 7.29).
Furthermore, Argentina acknowledges that the line on the Arbitrator’s map is drawn within the space falling within his territorial competence. "The Award map provides a perfect illustration of how the Arbitrator understood that [the line] should reach the obligatory point of Mount Fitzroy in accordance with his terms of reference, i.e., without exceeding the limits of his territorial competence over the basins." "... by indicating on the Award map that the boundary line passed over Cerro Gorra Blanca the Arbitrator complied fully with the terms of reference given him by the Parties..." "Argentina refers further... to the text of the 1902 Award as a whole, and to the text of the rule contained therein applicable to the boundary post 62-Mount Fitzroy sector, and to the Award map both as a whole and in the part concerning this sector..." (record No. 10, pp. 27-28 and 39-39).
These statements acknowledge that the Arbitrator made his Award within his competence and, this being the case, he acted within his competence when he drew the pecked line in areas which subsequently were revealed to be in the Atlantic basin. Moreover, the map is acknowledged as a whole, without distinction or reservation of any kind, probably because, constituting a unity, it does not admit of partial acceptance.
The Arbitrator used the pecked line 17 times and he used it whenever his line crossed blank areas, i.e., unsurveyed areas, or separated explored and unexplored areas. He used it so many times that it would have been essential for him to have stated, if such had been his intention, that the pecked line had a special value somewhat different from the value of the solid line.
As an example of the use made of the pecked line on the ground we may refer to the details of the complicated section between Cerro de la Virgen and Lake General Paz. When the Mixed Boundary Commission traced the pecked line of the Arbitrator’s map on the ground, the demarcated frontier followed a much more twisting course than Arbitrator’s line. By following the local water-parting on the ground the demarcation line deviated from the line on the map but did respect its direction. Respect for the direction of the line on the map, solid or pecked, is an important factor in a proper reconstruction of the Arbitrator’s intention.
On the Arbitrator’s map Cerro Gorra Blanca is touched by the pecked line; and before inferring from the depiction of this peak on the map that it is an obligatory point of the frontier line, it must be remembered the map cannot be used piecemeal, for it constitutes an indivisible whole. It is either accepted in toto or rejected in toto, but it cannot be accepted with regard to the obligatory status of Cerro Gorra Blanca, touched by the pecked line, when it is rejected with regard to the rest of the pecked section.
It may be agreed that Cerro Gorra Blanca is an obligatory point on the frontier, but at the same time it must be acknowledged that this is the case by virtue of the pecked line on the Arbitrator’s map and that this line arrives at Gorra Blanca by following a specific direction. Since the unity of the documentary evidence cannot be disturbed, if Cerro Gorra Blanca is obligatory by virtue of the pecked line, so will be the other elements of this line, such as the direction and route which produce the sole appearance of this peak in the Award.
It can be seen from an examination of the Arbitrator’s map that the pecked line crosses the continental divide of the time, as depicted on the map. This crossing means that the local water-parting coming from Lake San Martin and the one which proceeds to Fitzroy after the crossing are not the same. The watershed in the first section flows to the Pacific Ocean, and the one in the second to the Atlantic Ocean. According to this map, Mount Fitzroy cannot be the other terminal point of a local water-parting running from Lake San Martin.
In fact, just as it is the case that a local water-parting cannot itself cross a watercourse, but that the frontier line running along the water-parting can cross rivers at the behest of the Arbitrator, so is it impossible for a local water-parting as such to cross the continental divide, and if it does so on the map it is because the Arbitrator has decided that the line should continue from the continental divide along another water-parting on the slope on the other side of the divide.
According to the Award map, Mount Fitzroy was not and could not be the other terminal point of the local water-parting running from the southern shore of Lake San Martin, but it could be the terminal point of another local waterparting originating from a summit on the continental divide of the time. This assertion is in conformity with the geography as it was then known, as can be seen from the Arbitrator’s map. Thus, a distinction must be made between Mount Fitzroy as an obligatory point on the frontier line and Mount Fitzroy as the supposed terminal point of a single local water-parting running between two extreme points, boundary post 62 and Mount Fitzroy.
If the Arbitrator’s map is interpreted in this way, it would be possible for at least two local water-partings to run between Lake San Martin and Mount Fitzroy.
The direction and path of the line, solid or pecked, were determined by the compromise decision which the Arbitrator took after obtaining the consent of the Parties, and they must therefore be preserved. In fact, the compromise which determined the Arbitrator’s line is one of the several grounds which concur in supporting the interpretation that the line marked on the Arbitrator’s map must be followed in as close conformity as possible with the provisions of the instruments which make up the Award; in other words, unnecessary liberties or distortions of the Award’s message must be avoided.
The geography of the time allows the assertion that people knew about the geographical feature which could be found in the zone and about the feature which was not sought and could not be found there. The pecked line indicates that there is here a geographical feature whose existence is known but whose details are not known, and the report says that this feature is the local waterparting.
The report states what must be looked for and identified in order to demarcate the line decided upon by the Arbitrator, thus transforming the pecked line into a precise line. Furthermore, the Arbitrator’s map says that this search must not be carried out just anywhere but in the direction and along the path marked by the pecked line. The significance of the pecked line must be that it represents, on the basis of the geographical knowledge of the time, the local water-parting, the only one mentioned in the report, and not the continental water-parting, which was situated some considerable distance away.
The report and map have the same authority and neither takes precedence over the other. This consideration dispels any doubt which may have arisen with regard to the value of the Arbitrator’s map. The line drawn on the map represents the Arbitrator’s intention and, in conjunction with the report, it helps to identify the frontier line between boundary post 62 and Mount Fitzroy. Greater accuracy than was provided by these two instruments lay beyond the Arbitrator’s grasp because he lacked adequate maps of the area. It is this additional accuracy which the present Court has to supply.
The arbitration report states that the frontier line, from the spur at longitude 72°47’W, shall "ascend the local water-parting to Mount Fitzroy". The Spanish translation of the phrase "shall ascend to Mount Fitzroy" is "ascenderà hasta el Monte Fitz Roy" [shall ascend as far as Mount Fitzroy], so that Mount Fitzroy is indicated as the terminus of the ascent and there is even a suggestion of the idea of continuous ascent as far as this terminus by means of the same single local water-parting.
This translation is not consistent with the geography known at the time and reproduced on the Arbitrator’s map. In fact, this map showed Mount Fitzroy as located on the far side of the continental divide, so that it was physically impossible for a single local water-parting to run without interruption from the southern shore of Lake San Martin as far as Mount Fitzroy. A local waterparting with these characteristics cannot be found today, nor could it be found at the time, as the Arbitrator’s map shows.
The English preposition "to" has several meanings in Spanish; for example: "hasta", as it was translated in this case, as well as "hacia", "a" and "en direction a". Since Mount Fitzroy cannot be the terminus of a local water-parting which would be consistent with the translation of "to" by "hasta", the English preposition should be translated by "hacia", "a" or "en direction a". If the Arbitrator had wished to indicate a local water-parting which ran from Lake San Martin all the way to Mount Fitzroy, he could have said "as far as", which is beyond doubt equivalent to "hasta", but that would not have been consistent with the known geography of this sector as it is shown on the Arbitrator’s map. In order to render report and map compatible, "to" must be translated by "en direction a" ["towards" or "in the direction of’]. It will immediately be noted that this translation is compatible with the possibility of several successive local water-partings all running in the direction of Mount Fitzroy.
If boundary post 62 and Mount Fitzroy are regarded as the terminal points of the local water-parting, then there is no local water-parting running between them as a single and unbroken line, i.e., in accordance with the definition of water-parting. There is certainly a water-parting consisting of continental and local stretches, but this circumstance is not consistent with the language of the arbitration report, which uses the term "local water-parting".
These stretches of continental water-parting did not become known until 1945. On the basis of the geography of the time the Arbitrator neither expected nor could expect that some section of the continental divide would be found in this zone, because this continental divide was depicted as situated far from that zone, and there cannot be, in a single area, two lines having the status of continental divide.
The pecked line indicates a geographical feature which is known to exist but has not yet been identified. The Arbitrator could not know that a continental divide existed here, because the geography of the time, represented on many maps produced and consistently accepted by the Parties, placed this divide to the east and south of the main block of the area subject to the present arbitration. The only features which the Arbitrator knew to exist in this area, a conclusion arrived at by a process of elimination, were local water-partings.
It does not seem appropriate to diverge from the language of the arbitration report to opt for a line which is not the local water-parting but to some extent local and to a great extent continental, both because that would amount to disregarding the clear language of the report and because one would be choosing a geographical feature which, although unknown in that location at the time of the report, was known to be found some distance away. If the line has to follow a single local water-parting running between two supposedly extreme points, boundary post 62 and Mount Fitzroy, the report’s rule could not be applied on the ground, simply because such a line does not exist as such, nor, according to the Arbitrator’s map, could it exist.
To conclude, the translation of "to" by "hastaf which suggests a single and unbroken local water-parting between the two extreme points, is not consistent with the language of the report supplemented and illustrated by the Arbitrator’s map. In contrast, the translation of "to" by "en direction a" is consistent with the message of these documents read in conjunction. Thus, such a reading points the interpretation in a different direction.
The arbitral decision does not distinguish between the value of the pecked line and the value of the solid line. The Award itself refers only to the line drawn on the maps provided by the Argentine and Chilean experts. One of the criteria of interpretation states that when the author of a decision does not offer an interpretation of a point, it should not be interpreted. Of course, this criterion cannot be absolute or apply invariably in all interpretation exercises, but the distinctions produced by the interpretation must be well-founded and carefully developed, for the interpretation is subject to the limiting factor of the mandatory content of the interpreted rule.
If a judge makes distinctions in a rule when its author has not done so, he is using a technical device to adapt the rule to the special features of the actual case and thus to comply with the true intention underlying the rule. The result is a specific rule better adapted to the object and purpose of the adjudication. But one should not be led astray by this device, because basically, although it is regarded as a use of implicit or discretional powers, it is a rule which the judge has created in order to dispense better and fuller justice.
This practice, by its nature, and especially in the case of interpretation of a decision which has the status of res judicata, as in the present case, must be based on a careful evaluation of the circumstances and implications in order to ensure that it is truly consistent with the interpreted text. In the present case there is no apparent need to make any fundamental distinction between the pecked and solid lines, mainly because that would distort the Arbitrator’s intention. The report and the map, in conjunction, identify the pecked line accurately and preserve the Arbitrator’s intention.
Nothing has been said, either by the cartographers or by the 1966 Court of Arbitration, about a possible discounting of the value of the pecked line. This line is a technical means of describing a particular situation—the total or partial lack of topographic surveys. The pecked line must therefore be followed but also adjusted in the light of improved geographical knowledge. The interpretation must be consistent with the known geography of the time at which the Award was pronounced, and the interpretation must be put into effect in conformity with the known geography of the time when it is made.
Such adjustments are necessary with respect both to the pecked line and to the solid line, as is confirmed by the experience of the Argentina-Chile Mixed Boundary Commission. This experience teaches that compliance with the direction of a line shown on a map, either pecked or solid, is an essential criterion in the adjustment of the line.
Any adjustment of the map’s pecked line must respect these details. Accordingly, it should touch Cerro Gorra Blanca and reach Mount Fitzroy by way of the minimum possible incursion into the area lying to the east and south of what was the line of the continental divide at the time.
Thus, all the possibilities include a stretch of continental water-parting. This circumstance might prompt thoughts of an entirely arbitrary line which would divide the zone as if in implementation of a second Compromis or on the basis of a solution of equity. However, such an extreme recourse is unnecessary and unjustified, for the interpretation of the Award can in fact be applied on the ground.
The inclusion of a section of the continental divide would not be a result of the interpretation of the 1902 Award but a necessity of the application of the appropriate interpretation. There is no other way of acting on the combined instructions of the report and the Arbitrator’s map. The interpretation is made in conformity with the geography of the time; it has to be applied in conformity with the geography of today. With regard to such application, as has been pointed out during the Arbitral proceedings, "the ground gives the orders".
But there is another reason, and a very important one, for including a certain section of the continental divide: the section which is required to ensure that these lines correspond exactly with the pecked line on the Arbitrator’s map.
From the many possibilities available the expert has found that three lines are consistent with the features described in the decision. They start from the summit at altitude 1,767 metres, to the south of the Cordon Martinez de Rozas, and touch Cerro Vespigniani. The first line consists of seven small local waterpartings and crosses Lake del Desierto, two small glacial lakes and five rivers.
The second line lies fairly close to the pecked line of the Arbitrator’s map and therefore is more consistent than the first line with the combined instructions of the map and the report. It consists of two local water-partings and touches Cerro Milanesio before arriving at Cerro Gorra Blanca. The line of the Arbitrator’s map headed towards Cerro Gorra Blanca not towards Cerro Milanesio, and therefore this second line is not fully consistent with the line which has to be identified.
The third line, which fits best and closest with the line on the Arbitrator’s map, touches Cerro Vespigniani, crosses the Rivers Canadon de los Toros and Milodon, passes across Cerro Cagliero to Cerro Gorra Blanca and terminates on Mount Fitzroy, having followed a water-parting which is partly local and partly continental. This line, which reaches Cerro Gorra Blanca by way of four successive local water-partings, complies fairly well with the combined instructions of the graphic language of the Arbitrator’s map and the provision in the report concerning the local water-parting.
Since there is no single local water-parting in this area and since the Arbitrator could not have believed one to exist, as his map shows with its crossing of the continental divide of the time, the adoption of successive local waterpartings was a necessity from the outset. And even on this basis two or four successive water-partings can be chosen, even though the advantage lies with the one lying closest to the line on the Arbitrator’s map because the purpose of the exercise is to identify that line. There are therefore grounds for giving preference to the line consisting of successive local water-partings which fits best and closest with the line of the Arbitrator’s map.
It must be pointed out that the possibilities described here involve crossing Lake del Desierto, which was not taken into account in the arbitral proceedings because each Party maintained that it lay entirely within its territory. Now, when the experts draw the pecked line of the Arbitrator’s map on a map of today, it emerges that the pecked line, once identified on the ground, crosses Lake del Desierto at an angle, leaving about a third of the volume of its water to the north and two-thirds to the south. Thus, Lake del Desierto would be crossed even when the line of the Arbitrator’s map is followed exactly.
Since this exposition is not concerned with the drafting of an award, it can close without going into the details of the line which is most consistent with the combined requirements of the Arbitrator’s map and the arbitration report. Furthermore, on the basis of the summary description given here the cartography experts would be able to identify it, in an idle moment, to satisfy their curiosity.
And thus I bring to an end this protracted discourse, whose length may be excused, I hope, by the subtle and delicate nature of this dissenting opinion.