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?