Case Brief: Bolivia v. Chile

Obligation to negotiate access to the Pacific Ocean (Bolivia v. Chile)

(2018) I.CJ. reports 2015, p.592

Brief of Facts of Bolivia v. Chile

On 24 April 2013, the plurinational state of Bolivia instituted proceedings against the Republic of the Chile before the court ,  on the subject dispute in relation to “ Chile’s 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 .” According to Bolivia , “ Chile act in accordance with this obligation and ….denies in the concrete of its obligation .”

In its application , as the basis for the jurisdiction of the court , Bolivia invoked article XXXI of the American Treaty on pacific settlement ( Pact of Bogota ) of 30 April 1948 .

On 15 July 2014, Chile filed a preliminary objection to the jurisdiction of the court, and the proceedings on the merits were then suspended. After Bolivia filed its written statement on the preliminary objection, public hearings were held in May 2015. In the judgement , on 24 September 2015, the court repudiated the preliminary objection raised by Chile and found that it had jurdisction to entertain the application by Bolivia.

Initial decision of court

Approaching the submission of Chile’s counter-memorial the court authorized the submission of a reply by Bolivia and rejoinder by Chile and fixed 21 march and 21 September 2017 as the respective time- limits for pleadings. Public Hearings were held in march 2018 , and court carried out its judgement on the merits on 1 October 2018.  In its Judgment, the Court contemplate various legal bases invoked by Bolivia in support of Chile’s alleged obligation to negotiate Bolivia’s sovereign access to the Pacific Ocean.

The Court come to an end that none of those bases established an obligation for Chile to negotiate Bolivia’s sovereign access to the Pacific Ocean. Further it was add on that its finding should not be understood “as precluding the Parties from continuing their dialogue and exchanges, in a spirit of good neighbourliness, to address the issues relating to the landlocked situation of Bolivia, the solution to which both had acknowledged to be a matter of bilateral interest. With the readiness of both the parties , negotiation can be taken into considered .

Issues/ Issues Raised in Bolivia v. Chile

1st issue - Chile’s 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.

2nd issue - beyond its general obligations under international law , Chile has portrayed itself, more particularly through agreements ,diplomatic practice and a series of declarations attributable to its highest level representatives , to negotiate a sovereign access to the sea for Bolivia.

3rd issue - Bolivia invoked article XXXI of the American Treaty on pacific settlement (Pact of Bogota) of 30 April 1948.

JUGEMENTS

In its Application instituting proceedings and in its Memorial, Bolivia requests the Court to adjudge and declare that “(a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean; 

(b) Chile has breached the said obligation; 

(c) Chile must perform the said obligation in good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean.”

 In order to substantiate the existence of the alleged obligation to negotiate and the breach thereof, Bolivia relies on “agreements, diplomatic practice and a series of declarations attributable to [Chile’s] highest-level representatives”.

According to Bolivia most of these events took place between the conclusion of the 1904 Peace Treaty and 2012. In its Application, Bolivia seeks to found the jurisdiction of the Court on Article XXXI of the Pact of Bogotá, which reads as follows: “In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, 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.” 

Both Bolivia and Chile are parties to the Pact of Bogotá, which was adopted on 30 April 1948. In its preliminary objection, Chile claims that the Court lacks jurisdiction under Article XXXI of the Pact of Bogotá to decide the dispute submitted by Bolivia.

Citing Article VI of the Pact, it maintains that the matters at issue in the present case, namely territorial sovereignty and the character of Bolivia’s access to the Pacific Ocean, were settled by arrangement in the 1904 Peace Treaty and that they remain governed by that Treaty, which was in force on the date of the conclusion of the Pact. In effect, Article VI provides that “[t]he procedures [laid down in the Pact of Bogotá] . . . may not be applied to matters already settled by arrangement between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty”.

Bolivia responds that Chile’s preliminary objection is “manifestly unfounded”, as it “misconstrues the subject-matter of the dispute”. Bolivia maintains that the subject-matter of the dispute concerns the existence and breach of an obligation on the part of Chile to negotiate in good faith Bolivia’s sovereign access to the Pacific Ocean. It states that this obligation exists independently of the 1904 Peace Treaty.

Accordingly, Bolivia asserts that the matters in dispute in the present case are not matters settled or governed by the 1904 Peace Treaty, within the meaning of Article VI of the Pact of Bogotá, and that the Court has jurisdiction under Article XXXI thereof.

The Court observes that Article 38, paragraph 2, of the Rules of Court provides that an application shall specify the facts and grounds on which the claim is based. In support of its contention that an obligation exists to negotiate sovereign access to the sea, Bolivia refers in its Application to “agreements, diplomatic practice and series of declarations attributable to [Chile’s]  highest-level representatives”. It further contends that Chile ⎯ contrary to the position that it had itself adopted ⎯ later rejected and denied the existence of the alleged obligation to negotiate in 2011 and 2012, and that it has breached this obligation.

On its face, therefore, the Application presents a dispute about the existence of an obligation to negotiate sovereign access to the sea, and the alleged breach thereof. According to Chile, however, the true subject-matter of Bolivia’s claim is territorial sovereignty and the character of Bolivia’s access to the Pacific Ocean.

The Court considers that, 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.

In its Application, Bolivia does not ask the Court to adjudge and declare that it has a right to such access. In light of the foregoing, the Court concludes that the subject-matter of the dispute is whether Chile is obligated to negotiate in good faith Bolivia’s sovereign access to the Pacific Ocean and, if so, whether Chile has breached that obligation.

Interpretation

 Chile argued that the 1904 Treaty of Peace and Friendship settled all issues regarding the border, and that, while Bolivia had a right to non-sovereign access through Chilean territory, it had no right to sovereign access. Bolivia contended that the issue was an obligation independent of the treaty. 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.

In its Application, Bolivia does not ask the Court to adjudge and declare that it has a right to such access. In light of the foregoing,  subject-matter of the dispute is whether Chile is obligated to negotiate in good faith Bolivia’s sovereign access to the Pacific Ocean and, if so, whether Chile has breached that obligation.

Conclusion 

This came to an end that none of those bases established an obligation for Chile to negotiate Bolivia’s sovereign access to the Pacific Ocean. Further the court add on that its finding should not be understood “as precluding the Parties from continuing their dialogue and exchanges, in a spirit of good neighbourliness, to address the issues relating to the landlocked situation of Bolivia, the solution to which both had acknowledged to be a matter of bilateral interest. With the readiness of both the parties , negotiation can be taken into considered .