Current cases: Bolivia v. Chile

In order to stay on top of what’s going on in international law, and to fulfill an old wish, I hereby introduce yet another new series: Current Cases, presenting cases that are before the International Court of Justice (ICJ) at the moment. That also makes it easier to report on these cases when they are actually being decided. To mix things up, I will also discuss pending cases from the International Tribunal for the Law of the Sea (ITLOS). But let’s start now with the a case before the ICJ between Bolivia and Chile.

Bolivia, Chile and the Pacific

Not long after their independence in the early 19th century, Bolivia and Chile fought the War of the Pacific after which Chile occupied a swath of Bolivian territory, and cut Bolivia off from access to the Pacific Ocean. This occupation was formalized in the 1904 Treaty of Peace and Friendship, in which Bolivia was guaranteed a right of commercial transit to Chilean ports. Nevertheless, Bolivia argues that Chile has recognized over time that there needs to be a negotiation on ’granting Bolivia a fully sovereign access to the Pacific Ocean’. And Bolivia goes even further. It applied to the Court because of an alleged obligation to negotiate ’ in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean’. Chile is supposed to have breached that obligation. Needless to say, Chile doesn’t agree much.

Preliminary objections: jurisdiction and subject matter of the dispute

Jurisdiction is a matter that is dealt with separately from the merits of the case, that is, the actual question(s) at hand. The Court only as authority to decide case if states have signaled their consent in any shape or form. Bolivia brought the case under the ’American Treaty on Pacific Settlement‘, also called the ‘Pact of Bogota’, from 1948. As the name suggests, the treaty provides obligations to settle disputes among the American states peacefully. Article XXXI of said treaty provides for automatic recognition of the jurisdiction for the ICJ in case of a legal dispute. In the international law environment, that is quite a sweeping provision for sovereign states to agree to. However, Chile objected to the Court’s taking up of the case. As a preliminary objection, it argued that Article VI of the Pact of Bogota precluded the Court from taking up the case. The matter underlying Bolivia’s claim – territorial access to the Pacific – was already settled by the 1904 Treaty between Bolivia and Chile. So Bolivia’s case was not really about an obligation to negotiate. The Court, according to Chile, did not have jurisdiction because of the real subject matter, and because it was already settled.

The Court’s decision on jurisdiction

It is not unusual for the Court to take a narrow view of a case. In this case, the Court did not look at the underlying goal of Bolivia or even the 1904 treaty. Instead, it just focused on the first part of the question asked by Bolivia. Does there exist an obligation to negotiate, and if so, has Chile violated it? Bolivia had only offered ’agreements, diplomatic practice and…declarations’ between 1904 and 2012. But even that did not need to be investigated for the Court to assume jurisdiction. So in September 2015, it did conclude that the Court has jurisdiction, and the case can proceed to the next stage, the merits. In my humble opinion, this is what you get with such a broad provision as Article XXXI of the Pact of Bogota. No wonder that, for instance, the United States is not a part to the treaty.

In the course of 2017, the Court will receive the written arguments from Bolivia and Chile. Hearings will probably be scheduled in 2018, and a decision will not see the light of day until 2019. Welcome to peaceful international adjudication. It is better than war.

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