Historic decision of the International Court of Justice, no obligation to negotiate

The Hague October 2, 2018. The International Court of Justice presented its final judgment on a case filed by the government of the Plurinational State of Bolivia against the Republic of Chile. The case, filed by Bolivia in April 2013, concerned a dispute over the alleged obligation for Chile to negotiate with Bolivia over the latter’s fully sovereign access to the Pacific Ocean.

With a majority of twelve votes out of fifteen, the International Court of Justice found that Chile did not have any legal obligation to negotiate a sovereign access to the sea for Bolivia. ICJ President Yusuf, Vice-President Xue, as well as judges Tomka, Abraham, Bennouna, Cancado Trindade, Donoghue, Gaja, Sebutinde, Bhandari, Gevorgian, and McRae voted in favour of the Court’s resolution, while judges Robinson, Salam, and Daudet voted against.

Many Ambassadors, notably from Latin American countries, attended the deliberations at the Great Salon of the Peace Palace. The President of Bolivia, Mr. Evo Morales, and delegations from both the countries involved also attended the lecture by the jury’s president. International media were present to cover the event, while a group of Bolivians, dressed in national costumes and accompanied by traditional music, staged a peaceful demonstration in front of the Palace.

Since then, the two countries signed a series of treaties, which not always entered into force, due to lack of approval from the two countries’ Congresses. By means of continuous efforts, Chile and Bolivia finally managed to  officially sign the peace in 1904, through the Treaty of Peace and Friendship, after ending the war in 1884, by the Truce Treaty. The Treaty of 1904, recognized “absolutely and in perpetuity” Chile’s sovereignty over the occupied territories, including Bolivia’s former coastal area. In exchange, the Treaty recognized to Bolivia “the amplest and freest right of commercial transit” through Chilean ports and the “rights to establish custom agencies in the ports” to facilitate its commerce. Chile also built at its own expenses a railroad between the port of Arica and the Bolivian capital La Paz.

Since the 1920, the League of Nations became the arena of a series of exchanges on Bolivia’s access to the sea, including requests to revise the 1904 Peace Treaty. Major efforts also came from US Secretary of State Mr. Frank Kellog, who proposed that Chile and Peru would cede the Tacna and Arica provinces to Bolivia. While Bolivia accepted the proposal, Chile and Peru refused to relinquish these portions of national territory.

The issue of Tacna and Arica was later solved bilaterally in the Treaty of Lima. According to such Treaty, Peru would enjoy sovereignty over Tacna and Chile over Arica. Moreover, the two countries agreed not to cede power to any third country or build any international railway without the other’s consent.

New discussions emerged in the late 1940s, and in 1950 Chilean President Mr. Gabriel Gonzalez Videla accepted to engage in negotiations. However, no major progress were made, and in the 1950s the exchanges between the parties focused mostly on the implementation of Bolivia’s access to the ocean. After a row over the use of waters of the River Lauca, in 1962 Bolivia severed diplomatic relations with Chile, and Chile halted all discussions involving territorial concessions.

In the 1970s the dialogue opened once again, with the so-called Charaña process. New negotiations were also launched in 1986, but ended with Chile’s refusal of two Bolivian proposals for access to the Pacific. Since the 1990’s the parties resumed conversations aimed to consider means to improve mutual trust and seed formulas such as the creation of a special economic zone for Bolivia or others to export gas through Chile with enhanced coastal facilities. However, Bolivia did not accept to continue considering these proposals.

Exchanges between the two parties continued throughout the 2000s, this time focusing on the creation of a Bolivian enclave on the Chilean coast. However, the President of Chile set three clear conditions for any agreement: compliance with the 1904 Peace Treaty, absence of sovereignty transfer, and abandonment of Bolivia’s right to access to the Pacific as enshrined in the country’s Constitution. Once more, the discussions ended due to the divergent positions.

This is the backdrop against which in 2013 Bolivia filed its case to the ICJ, arguing that Chile should be obliged to negotiate an agreement to solve the issue. Indeed, while states are usually free to engage in negotiations, there are cases in which, on account of previous agreements, international law can require states to enter into negotiations over a dispute.

After a careful analysis of the case and an evaluation of the long history of exchanges between the two countries, the International Court of Justice ruled that in this situation “the Republic of Chile did not undertake a legal obligation to negotiate” with Bolivia over the country’s sovereign access to the Ocean.  The Court also noted that its decision did not restrain the two countries from continuing their dialogue, exchanges, and negotiations, in order to address issues of mutual interest.   Both countries were represented by highly respected agents and co-agents and the atmosphere of good neighbourliness  is expected to prevail after 1 October.

After such declarations, the delegations started to quietly leave the Great Salon of the Peace Palace.