Introduction
On 24 September 2015, the International Court of Justice (ICJ) handed down judgment in the preliminary objections phase of a dispute between Bolivia and Chile. Contrary to Chile’s submissions, the ICJ determined that it had jurisdiction to consider the dispute, which concerns whether Chile is obliged to negotiate and grant sovereign access to the Pacific Ocean to the otherwise landlocked Bolivia. The proceedings are interesting not only because of the Bolivia’s intriguing claim, but also because they relate to peace treaties signed by the parties at the start of the 20th century.
Context of the dispute
As The Economist succinctly puts it, ‘Bolivia has all the trappings of a maritime power except an actual coastline’, having a merchant navy and a National Day of the Sea. Indeed, at independence in 1825, Bolivia had territorial access to the Pacific Ocean. In 1879, territorial disputes over the Atacama Desert (and the valuable mining opportunities within) led Chile to declare war on Bolivia and its ally Peru. An initial armistice between Chile and Bolivia was signed in 1884 and a final settlement was reached in 1904 (1904 Peace Treaty), under which Bolivia ceded its coastal territories and became a landlocked country. Bolivia has attempted to reclaim the territory through diplomatic means for the past century, most recently inserting its claim into its 2009 Constitution (see article 267 of the Constitución Política del Estado de Plurinacional de Bolivia).
In 1948, Bolivia and Chile signed the American Treaty on Pacific Settlement (also known as the Pact of Bogota), a treaty committing states to the peaceful resolution of disputes and conferring jurisdiction on the ICJ (under article XXXI). Relevantly, article VI of the Pact of Bogota states that the procedures established by the treaty
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.
The effect of this article is to exclude from the ICJ’s jurisdiction any dispute that had been settled prior to the Pact of Bogota.
History of the proceedings — Application by Bolivia
Bolivia filed its application with the ICJ in April 2013, requesting that it make declarations that Chile is obliged to negotiate sovereign access to the Pacific Ocean for Bolivia, in good faith, and that Chile had breached this obligation. The ICJ’s jurisdiction over the dispute was based on article XXXI of the Pact of Bogota.
The substance of Chile’s obligation is founded on a number of diplomatic exchanges and resolutions since the 1904 Peace Treaty, including:
- an exchange of notes (1950) and Memorandum of Understanding (1961) between the two governments to the effect that the two states should enter into negotiations for Bolivia to be given its own access to the Pacific Ocean (Application [17]–[19]);
- Negotiations in 1975 between the two governments, during which Chile reaffirmed its in-principle preparedness to negotiate with Bolivia. During negotiations in 1986 Chile had rejected Bolivia’s proposals (Application [20]–[22]);
- A joint agenda in 2006 by the two governments on issues that included Bolivia’s maritime access (Application [26]);
- Resolutions of the General Assembly of the Organization of American States urging the two states to negotiate coastal access for Bolivia (Application [23]–[25]); and
- Statements and requests by the President of Bolivia (Application [27]–[29]).
The effect of these events as alleged by Bolivia is that
Chile has committed itself, more specifically 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. Chile has not complied with this obligation and, what is more, at the present date Chile denies the very existence of its obligation (Application [31]).
History of the proceedings — Objection by Chile
Chile filed a preliminary objection to Bolivia’s application in July 2014, claiming that:
- The nature of the dispute concerns territorial sovereignty and Bolivia’s access to the Pacific;
- These are matter that were settled conclusively in the 1904 Peace Treaty, and any subsequent negotiations or statements concern the same substantial matters; and
- Consequently, the dispute is not justiciable by operation of article VI of the Pact of Bogota, which excluded disputes already settled by treaty or award.
In its response, Bolivia stated that Chile has misconstrued the subject matter of the dispute — it is about obligations to negotiate that are separate from the 1904 Peace Treaty. The judgment of the ICJ made in December concerned whether Chile’s objection was correct and what the proper subject matter of the dispute was.
Judgment of the majority
The ICJ handed down several judgments, but ruled 14–2 in favour of Bolivia, rejecting Chile’s objections. First, the majority judgment rejected Chile’s characterisation of the subject matter of the dispute. The Court determined that it is not being asked to determine the character of what Bolivia’s access to the ocean is or what the outcome of any negotiation should be. Instead, the character of the dispute is whether Chile, by its actions, has created an enforceable obligation to negotiate with Bolivia and whether Chile has breached that obligation (Majority Judgment [34]).
The majority rejected Chile’s second objection that the subject matter of the dispute was excluded from consideration because of article VI of the Pact of Bogota and the 1904 Peace Treaty. Chile had submitted that the 1904 Peace Treaty was a conclusive territorial settlement, that it fell into the excluded categories in article VI and this dispute, by covering the same matters, was also excluded. Bolivia had responded that the obligation and negotiations arose independently of the 1904 Peace Treaty and were therefore not excluded. Given the conclusion drawn by the majority on the characterisation of the dispute, the majority agreed with Bolivia. Bolivia’s application concerns a legal obligations created subsequent to and independent of the 1904 Peace Treaty, and therefore is not excluded by article VI (Majority Judgment [50]).
Additionally, the majority noted that it was satisfied that Chile’s objections were preliminary in character and could be properly addressed at an interlocutory stage. The ICJ has three options of addressing a preliminary objection: upholding it; rejecting it; or holding that it is not exclusively preliminary in character and postponing consideration of the objection to the merits phase. The majority considered that on the facts before it, it could rule whether the disputed issues had been settled by the 1904 Peace Treaty without making findings on the merits of the overall dispute. Therefore, it was suitable to dispose of Chile’s objection at this time (Majority Judgment [52]–[53]).
Other opinions
The ICJ published four other opinions. Briefly, they were:
- Declaration of Judge Bennouna — His declaration criticised two paragraphs of the main judgment , wherein the majority had provided their opinion on a Bolivian subsidiary argument. Because the Majority’s decision rendered Bolivia’s subsidiary argument moot, Bennouna considered that discussion by the majority ‘pointless’. Having rejected Chile’s objection, it had implicitly regarded it as preliminary and there was no need to consider the subsidiary argument.
- Separate Opinion of Judge Cancado Trindade — In a substantial separate opinion (that agrees with the majority’s orders), Judge Cancado Trindade gave an expanded treatment of the jurisdictional regime of the Pact of Bogota and article 79 of the ICJ Rules (which deals with preliminary objections), considering the majority’s consideration ‘far too succinct’. The separate opinion concluded that Chile’s objection is not of exclusively preliminary character and that its arguments should therefore be considered in the merits phase.
- Declaration of Judge Gaja — His declaration also noted that disposing of Chile’s objection was not an exclusively preliminary matter. Judge Gaja considered that the Court could not have made a decision on jurisdiction without examining whether the matter purportedly settled by the 1904 Peace Treaty had been subsequently ‘unsettled’. This would have required consideration of the merits of the parties’ arguments and therefore the Court should have instead ruled that the objection should be heard as part of the merits phase.
- Dissenting Opinion of Judge ad hoc Arbour — Arbour had been selected by Chile as its Judge ad hoc in the proceedings. In her dissent, she also considered that Chile’s objection was not exclusively preliminary and should have been postponed until the merits phase. In particular, she considered that the Court can only decide in the merits phase whether a Chilean obligation exists and whether the scope and content of that obligation falls within the exclusionary language of article VI.
A more substantial summary of the ICJ’s judgment and additional opinions is available here.
Moving forward
The ICJ has requested that Chile file its Counter-Memorial by 25 July 2016. At this time, there is no further public indication of when the Court will hear the parties’ substantive arguments. The dispute will remain of interest because of Bolivia’s unique argument that Chile has created an obligation to negotiate in good faith, and what the ICJ has to say about the existence or content of such an obligation may have ramifications for future diplomacy between states.
Timothy Gorton practices commercial litigation in Melbourne and is an Editor of the ILA Reporter. He is a former Editor of the Melbourne Journal of International Law. Any opinion expressed is the author’s alone.