Bolivia v. Chile
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Introduction
Dating back to the war between Bolivia and Chile in 1879, Bolivia has been landlocked. The Bolivian government has attempted multiple times to negotiate with Chile to find common ground that would give Bolivia territorial access to the Pacific. After multiple attempts broke down, Bolivia sued Chile in the International Court of Justice (ICJ) in an attempt to force Chile to reenter into negotiations over the issue.
Facts
When Bolivia earned its independence from Spain in 1825, it had a coastline ranging over 400 km along the Pacific Ocean. In 1866, Chile and Bolivia signed the Treaty of Territorial Limits, creating a demarcation line that separated the oceanic territories of both nations. In 1879, Chile went to war with Bolivia. The war ended with the signing of the Truce Pact, which granted Bolivia’s coastal territory to Chile. This grant was further ratified in the Peace Treaty of 1904. Since then, Bolivia has attempted to regain control of coastal territory, seeing it as vital to its national interests. There have been a series of agreements, memoranda, and notes between the two countries illustrating their willingness to negotiate. Among these are the 1950 exchange of Notes,5 the 1961 Trucco Memorandum, the Charaña Process (1974-1978), and the 13-Point Agenda (2006). However, in 2011, negotiations between the two nations came to an end.
Legal Background
In an attempt to revive negotiations, Bolivia brought legal action before the ICJ on the grounds that, per international law, Chile had an obligation to negotiate the issue of coastal territory with Bolivia. Chile countered by stating that the court had no jurisdiction to force Chile to negotiate with Bolivia regarding their sovereign access to the sea. Chile also countered with Article VI of the Pact of Bogota. This stipulates that “Once any pacific procedure has been initiated, whether by agreement between the parties or in fulfillment of the present Treaty or a previous pact, no other procedure may be commenced until that procedure is concluded.” Chile claims that the Peace Treaty of 1904 peacefully decided the fate of the coastal territory, and as such, per Article VI of the Pact of Bogota, Bolivia was not entitled to force Chile to reenter into negotiations.
Holding & Reasoning
In a 12-3 majority opinion authored by President Yusuf (with Judges Robinson, Salam, and Daudet dissenting), the court found that Chile had no obligation to negotiate with Bolivia. Bolivia had presented multiple legal bases through which the Court could have found that Chile was obligated to negotiate. These included bilateral agreements, unilateral acts on the part of Chile, acquiescence, estoppel, legitimate expectations, and both the charter and individual resolutions of the Organization of American States (OAS). The Court found that none of these bases held merit.
The first and most substantial basis for obligation was the existence of bilateral agreements. Per international law, a nation can be required to negotiate either with an obligation to reach an agreement or with no obligation to reach an agreement. Additionally, in accordance with international law, in order for a bilateral agreement to force a country into negotiations, “the terms used by the parties, the subject-matter and the conditions of the negotiations must demonstrate an intention of the parties to be legally bound.” Additionally, per Article 3 of the Vienna Convention, non-written agreements can also have legal force. Due to the long history of the issue of Bolivian coastal territories, there exists a wide range of bilateral agreements between Bolivia and Chile. Among the most important are the Trucco Memorandum, the Charaña Process, the Algarve Declaration, and the 13-Point Agenda. The Trucco Memorandum was written by Manuel Trucco, the Chilean ambassador in Bolivia, and was delivered to the Bolivian Minister of Foreign Affairs. It expressed that Chile was “‘open formally to enter into a direct negotiation aimed at searching for a formula that would make it possible to give Bolivia its own sovereign access to the Pacific Ocean.’” Additionally, the Charaña was a statement that the countries would continue a dialogue on the issue of coastal territory. The exact wording was “‘to continue the dialogue, at different levels, in order to search for formulas to solve the vital issues that both countries face, such as the landlocked situation that affects Bolivia.’” Next, the Algarve Declaration was a joint statement by Bolivia and Chile outlining an agenda. Part of this agenda would include “‘the essential issues in the bilateral relationship.’” Finally, the 13-Point Agenda outlined topics the two nations would address. Point 6 was maritime issues. The Court found that there was no legally binding commitment to negotiate in any of these. For unilateral acts, the Court found that the divergence in wording among Chile’s different statements and acts illustrated a lack of legally binding commitment to negotiate. For the other categories, the Court found that none fit this particular scenario. Finally, the Court found that the OAS charter didn’t apply because there wasn’t an imminent threat of violence, and the OAS resolutions didn’t apply because none of them represented a Chilean obligation to negotiate.
Analysis
Although the ICJ found otherwise, based on the ample agreements, notes, and statements on behalf of both Bolivia and Chile, there appear to be sufficient legal grounds for the court to have compelled Chile to engage in negotiations. International law sets the standard that in order for the Court to be able to obligate a party to enter into negotiations, previous bilateral agreements must indicate an intent to be legally bound. Starting with the Trucco Memorandum and Charaña process, Chile illustrated its intention to negotiate with Bolivia and address the issue of Bolivia’s access to the Pacific. Moreover, the Algarve Declaration and 13-Point Agenda further demonstrated Chile’s willingness and commitment to negotiate. Based on these four agreements, it is clear that Chile officially manifested its intention to negotiate. The question then becomes whether these bilateral arrangements were legally binding, which the wording appears to confirm. Starting with the Trucco Memorandum, the word “consent” as well as the fact that there was an exchange indicates a legally binding agreement. Next, the Court correctly reasoned that both the Charaña Process and Algarve Declaration were not legally binding. However, the Court should have considered the 13- Point Agenda legally binding, because there was a commitment to address the 13-Point Agenda and the Bi-National Commission was established to examine “the progress of the Agenda.” Because the 13-Point agenda and the Trucco Memorandum should have been deemed legally binding per Article 3 of the Vienna Convention, Chile should have been found obligated to engage in negotiations. Finally, the 1904 Peace Treaty procedure has already concluded, and for that reason Article VI of the Pact of Bogota does not apply.
While Chile is obligated to negotiate, it is not obligated to reach an agreement. If Chile were willing to negotiate in good faith, there would be no need for that negotiation to necessarily reach an agreement. Finally, based on the idea of national sovereignty, an international court should not be able to force countries to come to an agreement. International organizations were created in the spirit of cooperation, and as such, they should be able to mandate good-faith negotiations. However, countries should enjoy the freedom of deciding whether to actually enter an agreement. For all these reasons, the Court had sufficient grounds to obligate Chile to engage in negotiation with no requirement of reaching an agreement.