22 Sep Here Comes the ICJ’s Chile-Bolivia Ruling
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.