ICJ Rules (14-2) It Has Jurisdiction to Hear Bolivia’s Claim Against Chile

by Julian Ku

So the ICJ ruled today (14-2) that the Court does have jurisdiction to hear Bolivia’s claim that Chile has violated its legal obligation to negotiate “sovereign access to the sea” despite a 1904 Treaty that had settled the borders between the two countries.  I have been super-critical of Bolivia’s claim, going so far as to suggest there was a slam-dunk case against admissibility and jurisdiction since the basis of jurisdiction, the Bogotá Treaty, excludes cases where dispute has been settled by “arrangement” between the parties.  I suggested on Tuesday that perhaps the Court would take the case after all, despite the weaknesses of Bolivia’s case, and I received some tough criticism from commenters suggesting Bolivia has a very strong case for jurisdiction.

I still think Bolivia (and the commenters) are wrong, but obviously 14 judges of the ICJ disagree with me.  I’ve said my piece, so I won’t beat a dead horse (for too much longer).  I will only excerpt below Professor Harold Koh’s pithy explanation (from his oral presentation) as to why granting jurisdiction here is going to lead to lots of bad consequences.

10. Under Bolivia’s novel theory, by clever pleading, applicants could manufacture jurisdiction in this Court regarding previously settled matters. And this Court can expect to hear many more preliminary objection sessions like the one yesterday, replete with snippets of speeches, ministerial statements, and diplomatic exchanges as reasons to avoid the jurisdictional bar of Article VI. Notwithstanding Mr. Akhavan’s effort to underplay, Bolivia’s theory would doubtless encourage unilateral attempts to re-litigate the continent’s history and borders. The careful limits established by the Pact of Bogotá would become increasingly meaningless.

11. Mr. President, Members of the Court, the stakes here are larger than the interests of just these two Parties. The two treaties relevant to jurisdiction are part of a larger treaty network that binds Bolivia and Chile. The Pact of Bogotá succeeded in barring existing territorial settlements and other settlement matters from being reopened at the sole initiative of one State. But as Sir Daniel recounted, during the nineteenth and twentieth centuries, at least 12 separate treaties Bolivia settled disputed boundaries not just with Chile, but also with all four of its other neighbours106. May Bolivia now come before this Court to seek an order directing renegotiation of all of those other borders as well? And even if Bolivia did not, could those other regional partners also come to the Court seeking an order directing renegotiation of their borders?

http://opiniojuris.org/2015/09/24/icj-rules-14-2-it-has-jurisdiction-to-hear-bolivias-claim-against-chile/

21 Responses

  1. I also wonder if this ruling would generate a fairly perverse incentive against States offering to negotiate to solve any issues peacefully.

    If the very offer to negotiate with another State to grant it a right (perhaps territorial, economic or any other) in exchange of something creates an obligation to do so (i.e. a) negotiate and b) reach an agreement that ends up with giving this right to the other State in exchange of this “something”), even if the said negotiations fail to achieve an agreement, why would any State offer to negotiate with other States at all and risk losing bargaining power as a result of legal precedent to that effect?

  2. On Dr. Koh’s statement, it would not be a unilateral attempt or a “sole initiative of one State” if there were in fact a pactum de negotiando or even a pactum de contrahendo.

    Bolivia’s position is that the declarations and actions of Chile for sixty years, with an intensification in the last two decades, are the basis for an obligation to negotiate.
    It is for the ICJ to determine if that is true, but if it were true it would hardly be a one-State initiative.

    In conclusion, Bolivia states that there is is at least a pactum de negotiando on the basis on the international conduct of Chile. Professor Koh’s position notwithstanding, other States would need actions and declarations from their counterparts or neighbors (or some other basis) to be able to establish jurisdiction, thus preventing the unilateral scenario.

  3. I agree that Koh way overstates the impact of the case (of course he was arguing for Chile as counsel). All Bolivia is asking for is for the ICJ to force Chile to show up, in good faith, at the negotiating table where it repeatedly promised it would. The 1904 treaty settled the border, but – strangely – Chile repeatedly promised (a la Nuclear Tests case, no?) that it would negotiate “sovereign access”. So now it must and Bolivia wants an order to that effect.

    The next question is what “sovereign access” means. Of course this question is not before the ICJ, but we should acknowledge (and the ICJ implicitly agrees?) that “sovereign access” could mean something other than territorial change. In my view it could mean any kind of access that Bolivia holds pertaining to its sovereignty (ie under international law, not the domestic law of Chile). So some possibilities, tho not the only ones, are a Guantanamo-type lease or some kind of innovative sovereign easement, or whatever. “Sovereign” is a pretty open and loose term.

    But anyway even if the decision somehow affects the 1904 treaty territorial arrangements, and I don’t believe it does, why did Chile promise and agree multiple times after the 1904 treaty to negotiate sovereign access? Either this is evidence that the 1904 treaty never did settle territory (unlikely) or this is a subsequent agreement/practice of the meaning of the 1904 treaty that sovereign access was an open issue (better but still unlikely). Or perhaps even Chile pledged or agreed to re-open the issue? In any event, I view the decision on the merits as much a slam dunk as the decision on the jurisdiction.

  4. Will,

    Since the end of the war, Chile wanted a Bolivian territory between Chile and a (then hostile) Peru and several alternatives were proposed until 1978, the last and most important failed attempt.

    This is really a trilateral problem.

    Chile cannot give the territory and coastline Bolivia wants without Peru’s permission (1929 treaty Chile/Peru), thats the reason of the 1978 failure. Another Peru negative was the use of Titikaka lake waters in the 1950 attempt, (The lake is shared between Bolivia and Peru).

    There are more attempts but mostly failed by a number of reasons like not accepting territory compensations, short lived bolivian goverments, etc.

    From 1978 onwards, in Chile the bolivian sovereign issue basically ends and other ideas are explored, like an enclave with no sovereign waters. (ie: no bolivian navy)

    Bolivia now wants sovereign land, and sea. Add to that the previous Peru/Chile case, which settled the waters in the exact same coastline Bolivia wants with now several km2 of peruvian sovereignty.

    Anyway, Bolivia now has to prove if multiple failed bilateral (and sometimes trilateral) negotiations, are in fact unilateral promises.

  5. Guest,

    Yes I agree. It really comes down to the issue of unilateral promises. (Altho there are possible other arguments on interpretation of the 1904 treaty.) I obviously simplified my comment for blog purposes, but one crucial observation you make is that this issue has been in on-and-off-again negotiations for 100 years and Chile has apparently pledged itself to good faith negotiations.

    The other crucial point you make is the trilateral nature of the problem and the territorial dimension. Clearly the ICJ cannot rule on Peru’s obligations in the matter. But anyway I still wonder if “sovereign access” necessarily means territory. Of course, it could, but does it necessarily mean that? I don’t think so. States have shown themselves to be remarkably creative in crafting solutions to these kinds of problems.

    This is what made the jurisdiction issue easy since there was a clear dispute. But I still think Bolivia will also prevail on the merits by arguing Nuclear Tests case. I could see an argument that the promise to negotiate was not made to Bolivia but rather to Bolivia on condition of Peru’s participation, but that seems unlikely given the texts I have seen in the case.

  6. Response…Julian, I find your article lacks the necessary depth to be considered an informed opinion. You can’t judge the problem between Bolivia and Chile in a superficial way.We are dealing with 180 years of history that are behind this dispute.
    I wrote about Christopher Greenwood, one of the judges of the ICJ, who may be a friend of Bethlehem who you admire, but again,but Bethlehem has bad reputation because he defended the wall built in Palestine, the massacre of Jenin, the acts of the government against its people in Bahrein. On the other hand, the other lawyer you admire, H. Koh, justified the invasion of Grenada and he is not liked in NY for his defense of drones.
    I called them club of invaders since the countries they represent have ivaded other countries, like Chile who invaded Bolivia in 1879, if you didn’t know.
    So, there’s lot of water under the bridge in the problem between Bolivia and Chile and any analysis of the problem should consider all the historical facts, which are complex. Behind the whole thing there is injustice since Bolivia lost to Chile territories the size f England.What would the English do if they lost al of their lands?
    To add insult to injury, Chile has a surplus every year mainly of the explotation of copper from the occupied bolivian territories, which means that all lawyers including Koh and Bethlehem, receive contaminated money from Chile, which is an affront to morality.
    Anyway, Bolivia still has a long way to go but it’s cause, sovereign access to the Pacific Ocean, is a noble one and it is just, and hopefully justice will prevail.

  7. I’d say that a lot will depend on what the nature of this supposed obligation to negotiate is.

    Bolivia’s claim that Chile has an obligation to negotiate to grant it sovereign access to the sea can mean that:

    a) Chile has to negotiate in good faith with Bolivia and that in doing so the negotiations must end with Chile granting a sovereign access to the sea even if it doesn’t like Bolivia’s offers on the matter because it has committed to grant it sovereign access to the sea and the nature of the negotiations only deals with the specifics of the matter, or

    b) That both sides should negotiate the issue but, if Chile doesn’t agree with Bolivia’s offers, it is under no obligation to agree to grant it such access because Chile’s offers to negotiate a sovereign access to the sea for Bolivia only commit it to enter negotiations to learn what can Bolivia offer which would be satisfactory to Chile [i]to accept such concession in principle[/i] and to determine the specifics and nature of any sovereign access to the Pacific for Bolivia.

    When the ICJ says that it cannot influence the outcome of the negotiations, does it mean that it cannot determine the specifics with regards to a sovereign access to the sea for Bolivia (as in letter a)), or that it also cannot determine that Chile must invariably grant Bolivia a sovereign access to the sea, even if Bolivia doesn’t make an offer that is satisfactory for Chile, because Chile has committed itself to grant it sovereign access to the sea and as such the only thing that needs to be negotiated is how such access should be carried out (as in letter b)).

    What’s the most likely interpretation of statements by Chilean authorities on the nature of the alleged obligation to negotiate to grant sovereign access to the sea to Bolivia when analyzed in good faith, considering not only if such commitments limit its own bargaining position when carrying out those negotiations but also its practice with regards to implementation of the Treaty of 1904 and its standing legal obligations to Perú?

    Furthermore, does the fact that both Chile and Bolivia have negotiated this issue for several decades mean that Chile has committed itself to keep doing so until there is an agreement that grants sovereign access to the sea to Bolivia or such obligation to negotiate was fulfilled in each and every instance of Chilean offers to negotiate and the corresponding failure to reach an agreement or, when an agreement between Chile and Bolivia was reached, Perú’s refusal to allow Chile to grant sovereign access to Bolivia in the terms of the agreement? What’s the most likely interpretation of Chilean acts?

  8. Bolivia’s claim is basically an imposition disguised as negotiation as I see it. Presenting a “chain of unilateral acts” driven by country C going towards a inevitable final outcome expected by country B, and country C has interrumpted that chain, country B says, clever proposition, doesn’t touch any previous treaty.

    Chile could argue that all past “acts” were all failed “good faith” negotiations, bilateral by nature. Bolivia must present that same acts as unilaterals acts of an state.

    Failure in negotiation is a valid outcome of two posibilities, I think the ICJ says cannot influence any of the two results.

    A negotiation with a predetermined outcome, only success for one part, doesn’t make sense, what kind of negotiation is that? none, its a obligation.

    If the ICJ doesn’t force a determined outcome, I think Bolivia will seek international support, including the Pope, to force Chile to arrive to that desired outcome.

  9. Guest,

    Yes, that’s how I also understand the Bolivian demand, but it is also possible to interpret it as simply saying Chile has an obligation to negotiate regardless of the outcome (though I highly doubt Bolivia would have approached the Court if this was their goal).

    In this regard, it is fair to say Bolivia has to explain the nature and scope of the alleged Chilean obligation to negotiate, and that is to be done when discussing the merits of the case.

  10. Harold Koh, in his statement published above tries to play with international fear when he indicates that if Bolivia’s position is accepted, other countries would follow. What he does not mention due to convenient omission (or simply because he doesn’t know history!!!) is that the case between Bolivia and Chile is special since there were serious and formal conversations (maps included) between Bolivia and Chile about sovereign access to the Pacific Ocean which happened like a dozen times in the last century and after the treaty of 1904, which is proof that there is a pending problem beyond this treaty. Similar situations are hard to find, I’d say they are non existent (let me know if you find another one). For this reason it is unlikely that any other country would try to use the same arguments.

  11. During the oral hearings in May the Bolivian delegation avoided answering the question when asked by the judge “when was the specific date an obligation was agreed upon”. If the Bolivians can’t answer this simple question, there is defiantly doubt on their case. Furthermore the Bolivian president requested the judge who asked the question to leave. You can make your own conclusions from that. In addition the fact the Bolivians refused to give their own definition of “sovereign access to the sea” casts further doubt to their case. Lastly how can the commentators who seemed to favor the Bolivian cause comment on the merits of the case when the Bolivian memorial hasn’t been realesed?

  12. I think the difficulty of arriving on a specific date on which the obligation was “agreed” is that the legal basis for the obligation is not merely a one-off agreement. It is really a binding unilateral statement, plus perhaps estoppel, plus maybe supplementary agreeement(s). Nelson gets it right: it was “like a dozen times in the last century”. It is sort of like asking when was the rule on treaty reservations “agreed upon”. We can point to certain moments when the obligation was reaffirmed or (re)articulated, or codified, but the precise moment that the obligation was created is not clear. But that is not a big problem in my view.

    As for the definition of “sovereign access”, yes, Bolivia wisely avoided that issue. Firstly, the issue is not before the court. The court is only hearing whether an obligation to negotiate exists. The content of the negotiation is immaterial. It could be about release of prisoners or payment on government bonds, or, in this case, some kind of access. We need to clearly distinguish between the existence of an obligation from its content.

    Secondly, had the Bolivian team explained what access meant, they would prejudice their position in negotiations. In fact, Chile might then even have an argument that Bolivia was now already not engaging in good faith negotiations by prematurely demanding a certain outcome without contemplating any change in their position. How would compromise be possible after? The definition of access is precisely the matter that needs to be negotiated.

  13. First of all, the case Bolivia vs Chile at the ICJ is not a simple one. You can’t fit the ocean into a hole made on a beach. The body of the Bolivian demand against Chile is complex as is the history between these two countries. And Will above shows an understanding of the Bolivian demand when he writes about the question from the British judge, Christopher Greenwood, to the Bolivian lawyers “when was the specific date an obligation was agreed upon”. As he points out, there is no specific answer for this question, if there was we wouldn’t have this case at the ICJ, at least not in the way that it is formulated at present. There is no “magic moment”, there were about a dozen formal conversations between Bolivia and Chile about Bolivian sovereignty on the Pacific Ocean (maps included), and Bolivia wants them considered as a whole.

    About Greenwood, he was part of fourteen judges that just voted in favor of Bolivia (Chile obtained two votes) to reject the preliminary objection raised by the Republic of Chile (September 24, 2015), which gave me second thoughts about him (positive ones). Previously, I had my reservations about this judge since he happened to be a consultant lawyer for Chile in a previous dispute between Chile and Peru which is clearly a “conflict of interest”. The Peru vs Chile case has the same roots and origins, the 1879 war of the Pacific, for this reason Greenwood was questioned by the Bolivian press and government. In the US, for instance, if you are a juror you can be disqualified by the single fact that you know any one of the litigants. The impartiality of judges is considered important, naturally, and the ICJ has rules about it.

    Greenwood may have voted for Bolivia now, but that does not guarantee he will be on Bolivia’s side again. We all want to believe in fairness and justice at the ICJ and there’s still a long road to go which hopefully will not be influenced by, in this particular case, Greenwood’s past

  14. I’m not convinced by the responses given to my post. The fact the Bolivians couldn’t answer a seemingly simple question about a specific date on obligations is no doubt a big hurdle and questioning the rationale behind the question doesn’t help.
    After reading the ICJ readings the only conclusion you can make is that the case was only allowed to continue based on a technicality rather than the weak substance provided by Bolivia. In fact if you read the report it very much limits the Bolivian claims especially on the treaty of 1904 which the judges concluded “settled the borders”.
    The Bolivians are just throwing random events to help their case. The question the Bolivians can’t answer is “what specific date is relevant?”.

  15. For some reason my name came as dibo instead of dino. Sorry for that. My android keyboard must be made in bolivia ( just joking). Either way as i was correcting the error i noticed nelsons post and he very much provided the same response to the obligation question as the bolivians provided. The bolivians can not answer this question. The question goes to the heart of the bolivian claim therefore not providing a specific date is a big mountain to overcome. The only date i think of is 1904. The year the borders were settled.

    At this stage the bolivians are not convincing.

  16. Dino, to understand the Bolivian demand you may read the case of “Nuclear Tests (Australia v. France)”, in which Australia used unilateral acts when a French president made statements which were legally binding. These are excerpts of the ICJ judgment

    “41. In view of the foregoing, the Court finds that France made public its intention to cease the conduct of atmospheric nuclear tests following the conclusion of the 1974 series of tests.

    43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligation.”

    Bolivia had shown that Presidents and foreign ministers of Chile made public their intention of agreeing that Bolivia should have access to the Pacific Ocean as I mentioned above, about a dozen times. These declarations even mention that the treaty of 1904 would not be an obstacle. And if you read the Bolivian demand it does not mention the treaty of 1904 as basis of its arguments.

    And I’m going to explain a second time, there was no “magic date” but many of them which together have the weight of consistency through the years.

    The case Bolivia v. Chile will enter into the merits phase in the next years where the history between these two countries will be exposed to the court. Briefly, I want to mention that the 1st Constitution of Bolivia includes as its territory the coasts on the Pacific Ocean up to almost the 26th parallel. Julio Verne, who I’m sure you all know describes a shipwreck that ended on the 25th parallel which he appropriately describes as the coasts of Bolivia (the book is Dick Sand). Chile does not mention any of those territories in its first constitutions.

  17. Indeed, Bolivia’s argument is that they aren’t questioning the 1904 Treaty, but that Chile did so by offering to negotiate a sovereign access to the sea.

    What I find hard to believe, however, is that Chile promised to provide such exit in the way the Bolivian team claims it did – best case is that Chile has offered to negotiate to see what can Bolivia offer in exchange for the said access to Chilean maritime territory. Since failure to reach an agreement is a legitimate result in any negotiation, I find it hard to deduce, in good faith, that Chile has promised Bolivia a sovereign access to the Pacific and that the negotiation is only about the details of such access.

    In fact, the acceptance of this interpretation of the Bolivian demand would reduce the incentives for States to negotiate: If the mere offer to negotiate to grant a right to a State creates an obligation not only to actually negotiate, but also to grant such right, then why would States offer to negotiate at all, unless they had no other choice but do so? This is a dangerous precedent.

    In the other hand, if the Bolivian demand should only be interpreted as saying Chile has committed itself to negotiate with Bolivia with absolutely no commitments with regards of the result of these negotiations (including that there may be no agreement and no change in the status quo), I think Chile may as well argue that it has fulfilled those promises to negotiate in each and every instance in which both countries did so, regardless of the result of those negotiations.

  18. All speculations about how Chile offered Bolivia a sovereign access to the Pacific Ocean will be discussed in the merits part of the ICJ proceedings but the basic documentation is already available in the ICJ website, hundreds of pages.

    But I can see fear of a “dangerous precedent”, if the mere offer to negotiate creates an obligation to gran a right. What I explained before about the Bolivian demand is that there was more than a “mere” offer and that is why the number of these offerings is important, then you can understand why Bolivia did not give a specific date.

    Also, what Chile offered was more than a “mere” exit to the sea. For instance, in 1975 there were conversations about not just a corridor from Bolivia to the sea but an enclave with 50 kilometers on the Pacific Ocean, ideas that had an evolution since the enclave was discarded later by Chile who later proposed to interchange territories. And here we have a factor that someone who does not know history would not understand.

    I”m referring to what is behind the treaty of 1904 which was not a solution for many reasons. The first one was that this treaty was signed after threat of force and the second is that what Bolivia lost after the war was an immense territory the size of England, bigger than any of 20 US states, bigger than Netherlands, Belgium and Denmark combined, 5 times the size of Israel. Not only that, but this territory was and is rich in minerals, like copper mines. I already mentioned that because of the exploitation of Bolivian occupied territories Chile is the first producer of copper in the world. Bolivia lost not just lands but, what is crucial in this demand, access to the sea since before the war Bolivia had 400 kilometers of coastline which would mean that Bolivia also lost the 200 miles into the Ocean and all its benefits.

    In this demand, Bolivia is not asking back all of its territories but a sovereign access which if you compare to what Bolivia lost is minimal for a country, Chile, that has almost 6,000 kilometers of coastline.

  19. We’re aware of the existence of Chilean statements offering Bolivia to negotiate, what I doubt is that they can be interpreted, in good faith, as a Chilean promise that these negotiations would necessarily end with granting Bolivia a sovereign access to the sea (whatever this may mean) regardless of Bolivia’s offers. I also very much doubt that the respective Bolivian governments ever interpreted these offers to negotiate in this way as well.

    I am also unconvinced by your aparent claim that this case would not set a negative precedent. If anything, the most complex and politically explosive controversies between States (and even between States and non-State actors) usually take several rounds of negotiations (and decades), in which agreements can sometimes be reached, before being solved peacefully (rather than militarily). I doubt States, particularly those who are in a position of relative strength, would be willing to negotiate if doing so could create legal obligations for them which could end up in Court.

    As for the historical context, I’m sure that it will be taken into account, including (of course) the legal status of the actions by all the relevant actors of the War of the Pacific at the time they took place. One should not forget that the legal justifications for the Chilean invasion was that Bolivia materially violated the 1874 boundary Treaty when it increased the taxes of a Chilean mining company, and then expropriated after it refuses to pay. Chile’s response would be illegal under contemporary international law but it wasn’t back in 1879, as far as I’m aware.

  20. Chile’s response, invasion of Bolivia in 1879, would be illegal not only under contemporary international law, but the laws of war of 1875 (Brussels Declaration). While the world was becoming civilized Chile was going in the opposite direction by attacking Bolivia without a declaration of war. What is interesting is that pamphlets with these laws of war were distributed among Chilean officers who, I’m sure didn’t even read them since they ignored the concepts and principles of these laws. All these implies premeditation which makes the crime of war worst. The Chilean purpose was to fight a “decent” war, which was a contradiction since Chile ignored and didn’t comply with these laws, mainly because of the destruction of property, the assault on civilians, bombardment without notice and at night killing women and children, raids requesting money, destruction of towns and even churches, seizure or destruction of, or willful damage to, institutions and historic monuments, works of art and science, raping women in other words barbarism and crimes against peace.

    Chile didn’t observe either the rights of prisoners of war which was part of the Geneva Convention of 1864 since they didn’t take prisoners, they just cut the throats (“a la” Isis)of the wounded in battle and also assaulted hospitals to kill any recovering soldier. Doesn’t all of these prove that the invasion of Bolivian and Peruvian territories by Chile was basically illegal? You may say that these ideas are anachronic but they are a precedent that can help understand the weight of the injustice that is behind the conflict between Chile and Bolivia.

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