Guest Post: Bolivia’s First Triumph in The Hague

[Andrés Guzmán Escobari is a former Bolivian diplomat, Master in Conflict Resolution and Governance of the University of Amsterdam and associate researcher for the German Foundation Friedrich-Ebert-Stiftung. The opinions expressed are strictly personal.]

The ICJ recently delivered its judgment on Chile’s preliminary objection to its jurisdiction in the case “Obligation to negotiate access to the Pacific Ocean”, initiated by Bolivia in 2013. The Court rejected the Chilean objection and declared that it has jurisdiction to hear the Bolivian case by 14 votes in favor to 2 against. This decision surprised almost everyone not because the Bolivian arguments lack legal basis, but because of the overwhelming rejection of the Chilean legal reasoning, primarily based in the existence of a boundary Treaty signed with Bolivia in 1904.

This astonishing and resounding first triumph for Bolivia has naturally caused stir in Chile, where some analysts spoke of “a spectacular failure” (CNN Chile, 24/09/2015) and others of “a strong and shameful defeat” (DiarioUchile, 25/09/2015). Nevertheless, and not surprisingly, President Michel Bachelet declared: “Bolivia has not won anything” (La Tercera, 24/09/2015). But concern among Chileans is strong and clear, as this judgement follows a bad experience in the case about the maritime delimitation with Peru (solved by the ICJ in 2014). Moreover, to face the further proceedings on the merits, Chile´s legal team has to change its strategy based in the 1904 Treaty, which was specifically excluded from the discussion by the Court. In this regard is worth asking what were the arguments of the parties? And does Bolivia really have a good case? In the following lines I will try to address these two questions.

In April 2013, Bolivia instituted proceedings asking the Court to adjudge and declare that Chile has the obligation to negotiate an agreement that grants Bolivia a fully sovereign access to the Pacific Ocean. The legal basis for Bolivia’s claim is rooted in the previous negotiations in which the government of Santiago pledged itself formally and through its highest-level representatives to give a sovereign access to the sea back to Bolivia. The Bolivian Application seeks to found the jurisdiction of the Court on Article XXXI of the Pact of Bogotá.

In contrast, Chile responded that, pursuant to Article VI of the Pact of Bogotá, the Court lacks jurisdiction under Article XXXI to decide the dispute submitted by Bolivia. This is because Article VI restricts the jurisdiction of the Court for matters already settled by treaties in force in 1948, when the Pact of Bogotá was signed. According to Chile, the various declarations made by its governments in the past about Bolivia´s landlocked status “concern in substance the same matter settled in and governed by [the 1904] Treaty”, which was in force in 1948.

Bolivia’s response was that its claim does not have any relation to the 1904 Treaty but to the ensuing compromises and promises made by Chile to negotiate a sovereign access to the sea for Bolivia, which were assumed and formulated by Chile “independently” of that Treaty and also after 1948. Therefore, Bolivia argued that the matters in dispute are not settled and governed by the 1904 Treaty, within the meaning of Article VI of Pact of Bogotá. Consequently the Court has jurisdiction under Article XXXI thereof.

In its judgment, the Court defined the subject matter of the dispute as follows:

while it may be assumed that sovereign access to the Pacific Ocean is, in the end, Bolivia’s goal, a distinction must be drawn between that goal and the related but distinct dispute presented by the Application, namely, whether Chile has an obligation to negotiate Bolivia’s sovereign access to the sea and, if such an obligation exists, whether Chile has breached it. The Application does not ask the Court to adjudge and declare that Bolivia has a right to sovereign access. (Judgment at Para. 32).

And then it clarifies: “Even assuming arguendo that the Court were to find the existence of such an obligation, it would not be for the Court to predetermine the outcome of any negotiation that would take place in consequence” (Para. 33).

This last assertion was used politically by Chilean authorities to say that the Court has “cut” the Bolivian claim because now it cannot oblige the government of Santiago to cede territories. According to their official position, this was Bolivia’s true goal. However, Bolivia did not ask the Court to determine the outcome of eventual negotiations. What the Bolivian legal team has asked is that the Court remind Chile that it has an obligation to negotiate Bolivia’s access to the sea, nothing more but nothing less. The form in which these negotiations will be celebrated is one of the matters to be discussed in the further proceedings on the merits. However, the negotiation as such, forgive the repetition, will be about the Bolivian sovereign access to the sea.

For these reasons, and especially because of the many times that Chile effectively offered negotiations to solve this issue in the past, I believe that Bolivia has everything necessary to obtain a positive result. While it is true that the Court’s decision will not return Bolivia’s sovereign access to sea, at least it will pave the way for a negotiation that this time, after so many attempts, will be initiated by a mandatory and binding decision of the principal judicial organ of the United Nations.