The 1881 Treaty and the Strait of Magellan

La Tercera, February 23, 2023

Among the aspects of the so-called “Chancellery audio,” a “gesture” offered to Argentina regarding “an English ship” is mentioned, to which restrictions would have been imposed in the Strait of Magellan.

The legal regime governing this strait largely relies on the Boundary Treaty with Argentina (1881), which neutralized its waters in perpetuity and ensured free navigation for the flags of all nations. It is also worth noting that this treaty defined the boundary along more than 5,000 kilometers, revealing its significance as a central axis in the consolidation of the country.

From the leaked audio, it is unclear whether Chile prohibited port services in Punta Arenas to a British vessel, under the argument of a political commitment to the so-called “Malvinas cause,” assumed by Chile within the framework of UNASUR and/or MERCOSUR.

In this regard, Dr. Jorge G. Guzmán, an academic at the Autonomous University of Chile, has asserted that such restrictions or prohibitions are detrimental to Chile’s permanent obligation regarding the “neutralization” of the Strait of Magellan, as established in the aforementioned treaty. He also maintains that Chile is obliged to adopt an impartial conduct in the Strait of Magellan, distinct and simultaneous to its obligation to respect free navigation and to the prohibition of fortifying this interoceanic passage. Furthermore, he argues that with this obligation, Chile must provide equal treatment to all parties in the Strait of Magellan and simultaneously adopt all kinds of measures to prevent acts of hostility against any State.

This expert in maritime and Antarctic issues argues, in other words, that according to the spirit and letter of the 1881 Boundary Treaty, Chile cannot (nor should it) instrumentalize the Strait of Magellan to take sides in a dispute between two or more countries, for example, that involving Argentina and the United Kingdom. This would constitute a failure to comply with the obligation of the “permanent instrumentalization of the strait.”

It is therefore obvious that a legal obligation arising from the 1881 Treaty cannot be affected by a political commitment made more than 130 years after the “neutralization of the strait” was declared.

What is complex is that the non-observance of this potential legal obligation could have consequences for the implementation of the correct boundary doctrine on which the boundary treaties that Chile has signed with its neighbors are based.

Two senators have already raised their voices and expressed their concern in this regard. Therefore, it is urgently necessary to clarify and specify the tenor and scope of the passage that arises from the leaked audio and to delve into the nature of the obligations derived from the 1881 Treaty regarding the Strait of Magellan. What cannot happen is that precedents are set that could compromise treaties vital to the security and permanent interests of Chile.

Teodoro Ribera Neumann
Former Minister of Foreign Affairs
Rector of the Autonomous University of Chile
Advisor at AthenaLab

Source: La Tercera