Here Comes the ICJ’s Chile-Bolivia Ruling

by Julian Ku

Latin  America is a trendy place for ICJ litigation these days with Colombia, Nicaragua, Costa Rica, Chile and Bolivia all currently embroiled in ICJ cases.  Indeed, it seems like Nicaragua alone is generating almost half of the ICJ’s current docket.  On Thursday (September 24), the ICJ will (finally) issue its ruling on Chile’s preliminary objections to its jurisdiction over Bolivia’s demand that Chile open negotiations to grant Bolivia sovereign access to the sea.

I have been harshly critical of Bolivia’s case calling it a slam dunk case for Chile on admissibility. To summarize briefly, Chile and Bolivia agreed in a 1904 treaty on a territorial settlement. Bolivia alleges that Chile has subsequently undertaken a legal obligation to “negotiate sovereign access to the sea” for Bolivia.  I found Bolivia’s evidence that Chile has undertaken such an obligation to negotiate extremely thin.

Having scanned the memorials, I am not very much more impressed by Bolivia’s arguments. On the other hand, I see that Chile has retained a pretty high-powered set of international lawyers including U.S-based law professors Claudio Grossman, Dean at American University, Harold Koh, former Dean at Yale Law and U.S. Legal Adviser, and Nienke Grossman, Professor, University of Baltimore.  And this list does not even mention well-known Europeans such as Sir Daniel Bethlehem, Q.C., Barrister, Bar of England and Wales, 20 Essex Street Chambers and Pierre-Marie Dupuy, Professor at the Graduate Institute of International Studies and Development, Geneva. And I haven’t even mentioned the dozen other high-powered folks on Chile’s legal team.   I totally agree with their arguments (even Harold Koh and I agree!).

Though I think Chile has very good arguments, the fact that Chile has retained (and presumably paid) so many top international lawyers suggests Chile is worried the Court will allow Bolivia’s claim to proceed.  So even though I think Bolivia’s claim is very weak, it is probably true that courts, international or domestic, hate giving up cases on jurisdiction if there is the thinnest basis for taking the case.  Given the ICJ is not all that busy these days, this could be tempting for the court, and that could be trouble for Chile.

http://opiniojuris.org/2015/09/22/here-comes-the-icjs-chile-bolivia-ruling/

4 Responses

  1. I am going to go out on a limb and say that I think it is a slam dunk that the court will find jurisdiction.

    The Bogota Treaty is quite broad about any dispute of international law. The court applies a low threshold over the existence of a dispute over international law. Bolivia submits that there is a dispute over international law, ie the existence of an obligation to negotiate based on various sources. Chile contests that and submits there is no obligation. Thus we have a dispute over a question of international law. I see Bolivia easily winning on this (and also on the merits by the way).

    While the motivations of the ICJ to retain cases and the staffing of litigation teams are interesting, I think that the controlling law is in Bolivia’s favor. Also we might consider that the outcome of the case is low stakes for the ICJ – all Bolivia can get in the end is a judgment that Chile must negotiate in good faith. It’s not like this is about nuclear weapons or delimitation.

  2. It would be nice to read the legal arguments on why you think Bolivia will win on the merits, Mr. Worster.

    Julian, add to your list a new possible case between Guyana and Venezuela over a territorial and maritime dispute (http://jamaica-gleaner.com/article/business/20150921/guyana-seek-court-intervention-border-dispute).

    Although I think Guyana will have a hard time bringing the case, since Venezuela is not part of the Bogota Treaty and only a very incompetent government would accept the ICJ’s jurisdiction over a dispute where Guyana has, in principle, solid legal arguments. But you never know…

  3. Julian, for a short post, there is a lot to take issue with here.

    First, do you genuinely believe that the ICJ’s approach to a preliminary objection on jurisdiction may turn on how “busy” the Court is at a given moment in time? This seems unlikely–and suggests a particularly cynical view of the Court’s work. Can you point to any example where you think the Court’s overall level of activity may have been a factor in a decision on jurisdiction?

    I am also not sure what to make of your comment that the Court will “finally” issue its ruling on Chile’s preliminary objection this month. The oral hearing on this matter was held in May. This hardly seems like an undue delay.

    It also seems quite odd to evaluate the strength of a party’s claim in international litigation based on the particular counsel that have been retained (and, moreover, to argue that retaining impressive counsel somehow suggests the weakness of one’s position). Couldn’t it also be that Chile’s arguments seem convincing to you because, at least in part, Chile has retained experienced international lawyers to develop and present its arguments? In addition, most states appearing before the ICJ include well-known international lawyers in their delegations, so this practice does not really tell us much about a party’s perceptions of the strengths or weaknesses of its position.

    Finally, it is not at all clear that an international court, or at least the ICJ, will affirm its jurisdiction “if there is the thinnest basis for taking the case”. One need only look at the jurisdictional decision in Georgia v. Russia, or the Court’s treatment of Italy’s counter-claim in the Jurisdictional Immunities case, to find recent examples that contradict your general assertion.

  4. So, the ICJ decided the Bolivian petition falls within its jurisdiction, and that it doesn’t attempt to challenge the 1904 Treaty. This is keeping in mind that according to paragraph 18 of the ruling, the Bolivian petition considered is:

    “18. In its Application instituting proceedings and in its Memorial, Bolivia requests the Court to adjudge and declare that

    “(a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean;

    (b) Chile has breached the said obligation;

    (c) Chile must perform the said obligation in good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean” (see paragraphs 11 and 12 above).”

    Isn’t this a fairly narrow interpretation of the case? I mean, the petition inherently affects the material provisions in the 1904 Treaty, as point (c) can be read as Chile must in fact transfer territory to Bolivia as an outcome of the negotiations, even if it doesn’t say which territories should be transferred and under which conditions.

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