Bolivia´s Reasonably Strong ICJ Case against Chile

By: Andres Guzman Escobari

Publised by Opnio Juris

[Andrés Guzmán Escobari is a former Bolivian diplomat, a Professor at Universidad del Valle and Universidad de los Andes and an associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.]

A few days after Bolivia instituted proceedings against Chile before the International Court of Justice, Julian Ku wrote a post here on Opinio Juris entitled “Bolivia´s Ridiculously Weak ICJ Case against Chile”.  His main claim?  “This case looks like a sure loser on admissibility; it looks like it is going to be a major waste of time for the ICJ”.

In this post, I would like to offer a rebuttal to Mr Ku’s comments and to explain why Bolivia’s case is not only not a ‘sure loser’ but is reasonably strong.  The case concerns Bolivia’s request that the Court declare and adjudge that “Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean” because “Chile has breached the said obligation”. Specifically, for that reason, “Chile must perform the said obligation with good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean”.

Mr Ku develops two mains arguments to support his opinion: (1) that there is no compulsory ICJ jurisdiction under the Bogota Treaty; and (2) that there is no specific obligation on Chile to negotiate an agreement granting Bolivia an access to the Pacific Ocean because the language of the declarations made by Chilean authorities with the purpose of giving Bolivia back sovereign access to the sea were “non-obligatory”.

With regard to the first argument, it suffices to read the responses to his post here on Opinio Juris or just to note that the case has been already accepted by the Court.

As to the second argument, considering that Bolivian legal arguments are based on the Unilateral Acts of States, the language used by Chilean representatives is not the most important issue to analyse here, nor the intention behind those declarations. What really matters is the conduct of Chile towards this problem. Indeed, according to Aleš Weingerl (University of Oxford) the obligations created by unilateral acts “come into existence as a result of the conduct of one State” and that conduct “alone operates as the only relevant factor”. So language, from the Unilateral Acts theory perspective, is not as important as Chile’s historical behaviour, since it has recognized many times the existence of the problem and has offered Bolivia, no less than 10 times, a sovereign access to the sea. Let me highlight a few of the most important Chilean statements.

The official communication signed by the Chilean Minister of Foreign Affairs, Horacio Walker, on 20 June 1950, precisely states that the government of Santiago “is willing to formally enter into a direct negotiation aiming at finding the formula which would make it possible to grant Bolivia an own and sovereign access to the Pacific Ocean and for Chile to obtain compensations that are not of a territorial nature and that effectively take into account its interests”.

The same purpose to enter into negotiations to grant Bolivia a sovereign access to the sea was later reiterated by Chile through a Memorandum forwarded by its Ambassador in La Paz, Manuel Trucco, to the Bolivian Ministry of Foreign Affairs on 10 July 1961.

Moreover, on 8 February 1975, the President of Chile, Augusto Pinochet, signed a Declaration with his Bolivian peer, Hugo Banzer, in which both statesmen assumed a compromise “to find formulas to solve the vital issues which both countries faced, such as one relating to the landlocked situation that affects Bolivia”. With this compromise, both governments started a negotiation in which Chile, through an official note subscribed by its Minister of Foreign Affairs, Patricio Carvajal on 19 December 1975, expressed: “it would consider, as manifested by the President Banzer, the cession to Bolivia of a sovereign seacoast linked to the Bolivian territory by an equally sovereign territorial strip”. “Chile would be willing to negotiate with Bolivia the cession of a territorial strip at the northern part of Arica along the line of Concord (border between Chile and Peru)”. “Once the final agreement is produced, a solemn witness will be left declaring that the territorial cession allowing sovereign outlet to the sea, represents the full and final solution to the landlocked situation of Bolivia”.

With this last phrase, Chile did, undeniably, acknowledge that the full and final solution to the landlocked situation of Bolivia must be achieved by a territorial cession that allows Bolivia to recover its sovereign outlet to the sea.

Furthermore, Chile adopted some other pledges by accepting and signing multilateral agreements or resolutions that referred to the maritime problem of Bolivia, such as the Ayacucho Statement of 1974 and the Resolutions adopted by OAS in 1980, 1981 and 1983; with this last Resolution, Chile formally accepted “to find a formula for giving Bolivia a sovereign outlet to the Pacific Ocean, on a basis that takes into account mutual conveniences and the rights and interests of all parties involved”.

In recent years, the Chilean administration of Madame Michel Bachelet agreed to start negotiations about the maritime theme as part of a 13-point Agenda which, after four years of conversations without results, led to an another formal Chilean pledge, this time “to present and to achieve concrete, feasible and useful solutions” for the maritime issue, as written in the Act signed in La Paz by the  Vice Minister of Foreign Affairs of the President Sebastian Piñera, Fernando Schmidt on 14 July 2010. A few months later, however, Chile “lost” interest in continuing negotiations with Bolivia (just as it had done in all the aforementioned attempts).  Then, suddenly and without any explanation, Chile decided to cancel the meeting in which both countries had to fulfil the agreement just quoted. After that, the Bolivian President Evo Morales announced his decision to call Chile to account at the ICJ.

All of these unilateral Chilean acts form the legal basis for Bolivia’s claim, although they were preceded by some other pledges of Chile of similar or higher legal relevance made before 1948 (when the jurisdiction of the Court started according to the Bogota Treaty) such as the Treaty of Territorial Transfer of 1895, the Protocol Act of 1920, the Mathieu Circular Letter of 1926 and the Chilean note of acceptance to the U.S. Secretary of State Frank B. Kellogg Proposal of 1926. In addition, there are many others compromises adopted by Chilean authorities verbally since the beginning of the Pacific war in 1879 (in which Bolivia lost its unique coastline) until recently, enforcing the idea that Chile has the obligation to negotiate an agreement to restore the maritime condition of Bolivia.

In terms of the international legal precedents, it is important to mention that in 1962 the ICJ found that Siam (now Thailand) tacitly recognized the sovereignty of French Indo China (now Cambodia) over the Temple Preah Vihear because of the conduct of the State of Siam, expressed in different acts of its official representatives which clearly demonstrated such recognition. In the same way, in 1974, in the case instituted by New Zealand and Australia against France, the Court recognized that the public statements of the French official authorities in order to cease nuclear-testing were legally binding.  And, in the case between Denmark and Norway regarding to the sovereignty over eastern Greenland, the Permanent Court of International Justice determined that the verbal declaration of Mr Ilhem, the Norwegian Foreign Minister, was also legally binding.

These precedents suggest that so too much Chile be bound to its prior declarations and commitments to give Bolivia a fully sovereign access to the sea. Because all of this, we, the Bolivians, optimistically expect to achieve a favourable result in this process and think that the only ridiculous thing about this case, is the opinion of people who hastily and frivolously express their thoughts without full knowledge of the facts at issue.