Bolivia’s Ridiculously Weak ICJ Case Against Chile

by Julian Ku

Last week, the government of Bolivia filed an application in the International Court of Justice against Chile arguing that Chile has breached its “obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean.”

Is it just me, or is this the weakest case ever filed at the ICJ?   I am baffled as to how there could be compulsory jurisdiction under the Bogota Treaty, whose relevant provision reads:

“…the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto, without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation”.

According to Bolivia, the legal dispute exists because “Chile denies its obligation to enter into negotiations regarding Bolivia’s fully sovereign access to the Pacific Ocean.”  Ergo, there is a dispute over whether Chile has an international obligation to negotiate and whether it has breached this obligation that it denies having.

But this is circular.  Bolivia is the one claiming there is an obligation, and the mere fact that Chile denies the existence of the obligation can’t by itself create the basis for jurisdiction.  Bolivia needs to point to some source which imposes a legal obligation  on Chile an obligation to negotiate in good faith on this issue.  The following appears to be Bolivia’s best effort to find such an obligation:

17. The Bolivian note of 1 June 1950, invoking the different declarations and commitments formulated by Chile, proposed: “for the Governments of Bolivia and Chile to formally enter into a direct negotiation to satisfy Bolivia’s fundamental need for obtaining an own and sovereign access to the Pacific Ocean, thus resolving the problem of Bolivia’s confinement, on the basis of natural conveniences and the true interests of both countries”

18. The Chilean note in response, dated 20 June 1950, states that: “( … ) my Government ( … )it 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”

Apparently, those negotiations never worked out.  But there is an even more fundamental point. The 1950 Chilean note states that the government “is willing to formally enter into a direct negotiation”.  It doesn’t say that the Chilean government obligates itself to negotiate (whatever that would mean anyway).   The same non-obligatory language is true of a 1975 statement that Chile “would be prepared to negotiate with Bolivia the cession of a strip of land north of Arica up to the Linea de la Concordia” (emphasis added).  Even if there was a treaty provision that explicitly obligated the parties to negotiate in good faith, I would be skeptical.  But there isn’t even that.

Maybe I’m missing something, but 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.  I admit I am not an expert on the relevant treaties here, or on this dispute, but if Bolivia’s application reflects its best arguments, then I can’t see how the ICJ could possibly allow this application to proceed.  How would they ever avoid future cases where one party asks another party to negotiate, and then complains when that party doesn’t agree to do so.  This should be a slam-dunk unanimous admissibility dismissal for the ICJ. I just hope they don’t need more than a year to figure this out. (If someone out there has a good defense of Bolivia’s case for jurisdiction, would love to hear about it.)

http://opiniojuris.org/2013/04/29/bolivias-ridiculously-weak-icj-case-against-chile/

6 Responses

  1. With respect, I don’t see your point on the jurisdiction of the Court. There seems to be a dispute on the existence (or not) of an obligation “to negotiate in good faith and effectively with Bolivia in order to  reach an agreement  granting  Bolivia a fully sovereign access to the Pacific Ocean”. To adjudicate on the existence (or not) of such an obligation is a “question of international law” (art. XXXI b) Pact of Bogotá). As to the merits of the case, I won’t pretend that I have enough knowledge  neither on the case nor on the law applicable to unilateral acts of States (estoppel, acquiescence etc.) to express myself.

  2. Certainly, Bolivia has a very weak case. I agree with E.H. that the Court might find jurisdiction under point (b) “any question of international law” of the Bogota Treaty. But even if the Court finds that Chile has a duty to negotiate Bolivia’s access to sea, the Court cannot oblige Chile to grant such access. Therefore, the application does not have much sense at all. Rather, I think it is the worst strategy anyone could think of, since what possibilities of success has a negotiation when one of the parties has been forced to seat at the table? If you are interested in a background of the case and some legal comments, please feel free to check the post (in Spanish, though) in my blog: 
    http://bit.ly/ZQ4qa9

  3. A very narrow literal reading of the Pact of Bogota may create a basis for jurisdiction. However, an interpretation which would create jurisdiction in such a weak case (as demonstrated by Julian) would surely not be considered one done in good faith and in accordance with the object and purpose of the Pact, in accordance with Article 31(1) of the VCLT.
    Furthermore, as the Court recently reiterated, an agreement between parties granting the Court jurisdiction cannot “alter the limits of the Court’s judicial function: those limits, because they are defined by the Statute, are not at the disposal of the parties, even by agreement between them, and are mandatory for the parties just as for the Court itself”. An application which hardly has a basis in law would appear to fall outside the “judicial function” of the Court.

  4. Julian, what you just said doesn’t make any sense. That there’s disagreement as to whether an obligation exists or to its extent constitutes the legal dispute. The Court’s jurisdiction over this dispute is a different matter.
    Follow me on twitter @not_abi_saab

  5. To add to the confusion:
    so Bolivia’s dragging Chile to ICJ just to adjudicate on whether Chile has an obligation to negotiate? 

  6. Julian, thanks for drawing attention to this issue. I agree with E.H. and Abi Saab that the existence of a legal dispute is on good footing. The Court’s jurisprudence, dating back to the PCIJ’s Mavrommatis case, sets a quite low threshold. All that is required is “positive opposition” of the parties as to a point of fact or law. Whether the claim is in fact “plausible” is required for the indication of provisional measures (and of course, for success on the merits), but it is not relevant to the existence of a dispute for the purposes of jurisdiction.
    But there is likely to be another jurisdictional issue at play in this case. As discussed in the Court’s 2007 Judgment on Preliminary Objections in Nicaragua v. Colombia (paras. 53-59; see also para. 39), the Pact, in Article VI, also contains an explicit exception to its optional clause declaration: 
    “The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty [i.e,. 1948].”
    It will be noted that instruments and declarations dating from both before and after 1948 are relied upon in the Application. The 2007 Judgment’s consideration of the application of Article VI in the face of such intertemporal issues will certainly shed some light here, but I’m sure that we will see further arguments on this point in the present case.
    Mariano and Basil: The Application suggests that not only the existence of the obligation to negotiate, but also its nature, will be at dispute. Paragraph 30 refers to “formal negotiation regarding the agreement to perform its [Chile’s] obligation of effectively ensuring a fully sovereign access to the sea for Bolivia”. To me, this seems like Bolivia is claiming that the relevant instruments create an obligation of result, and not merely an obligation of conduct, as your comments seem to imply. Whether they in fact create an obligation of that nature is an issue left to the merits of the dispute.
     

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