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.)