The International Court of Justice Will Not Force Chile and Bolivia to Negotiate Bolivian Sovereign Access to the Pacific Ocean

By: Amid Bennaim

The International Court of Justice (ICJ) has ruled against Bolivia in its dispute with neighboring Chile over access to the Pacific Ocean. The decision came as a heavy blow to the Bolivian government, which views access to the Pacific Ocean as a matter of sovereignty and economic survival.

The decision was read by Abdulqawi Ahmed Yusuf, the Somali president of the ICJ, in the presence of high-level Bolivian dignitaries such as President Evo Morales. Throughout the landlocked Andean country, citizens gathered and tuned into their televisions to listen to Mr. Yusuf’s pronouncement, which stated that Chile had no obligation to negotiate sovereign access to the sea with Bolivia.

The conflict dates back to the War of the Pacific (1879-1884) in which Chile defeated Bolivia. In the resulting treaty, finalized in 1904, Bolivia accepted the loss of its Pacific Coastline. To date, Chile has provided Bolivia with duty free access to its Pacific ports in Arica and Antofagasta. This arrangement is unpopular in Bolivia, where many believe that sovereign access to the sea is important for that nation’s economic development. Hence, in 2013 Bolivia filed a case with the ICJ against Chile concerning a 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.”

Bolivia argues that the Chilean government has an obligation to negotiate in good faith with the goal of granting Bolivia sovereign access to the Pacific Ocean. Bolivia contends that repeated unilateral statements and diplomatic acts by Chilean officials since the 1920s have created an obligation to negotiate in good faith. Alternatively, Bolivia argues that a resolution from the Organization of American States (OAS) binds Chile to good faith negotiation.

On the other hand, Chile argues that there is no cause of action because the issue of Bolivian access to the sea was definitively settled in the 1904 treaty. Chilean President Sebastian Piñera described the lawsuit as counterproductive, raising false hope amongst Bolivians while straying further from fostering the healthy relationship he believes is necessary to come to an equitable agreement. However, Mr. Piñera has explicitly stated that the transfer of sovereign territory to Bolivia is off the negotiating table.

In the 12-3 ruling from October 1st, 2018, the ICJ agreed with Chilean president. In the words of the ICJ, “Chile did not undertake a legal obligation to negotiate a sovereign access to the Pacific Ocean for Bolivia. . . . [and] that the provisions of the United Nations Charter and the Organization of American States Charter invoked by Bolivia could not be the legal basis of an obligation to negotiate Bolivia’s sovereign access to the sea” because such resolutions are not legally binding under international law. The ICJ further found that a legitimate expectation, formed by another nation’s unilateral acts and pronouncements, cannot create an obligation under international law. The decision means that the two nations must sit down and negotiate a solution to the question of Bolivia’s sovereign access to the sea. In the current political climate, this seems fanciful.

The conflict over Bolivia’s sovereign access to the sea plays important roles in the identity and politics of both nations. In Chile, a national holiday celebrates the country’s victory in the War of the Pacific. To many Chileans, the strip of coastline in question is a sovereign part of the Chilean territory. While dejected Bolivians despaired at the ICJ’s ruling, in Chile the president celebrated the “great triumph of the Chilean cause” in front of a crowd of supporters chanting Viva Chile. In Bolivia, the issue of sovereign access to the sea is even more prominent in political discourse. President Evo Morales has invested political capital into this case, attending the courtroom to hear the ruling and has repeatedly spoken publicly about the case. He argues that sovereign access to the sea is essential to Bolivia’s economic development and has vowed to continue the fight despite the ICJ ruling.

The ICJ’s ruling is likely to make an agreement between the two nations more difficult. The two countries severed diplomatic relations in 1978 and are unlikely to restore them during the term of President Morales, who is a strong advocate of Bolivia’s sovereign access to the sea. In a practical sense, the ICJ decision serves to shift the negotiating leverage from Bolivia to Chile. An obligation to negotiate in good faith, as Bolivia wanted, would have given the landlocked nation leverage to achieve a more favorable deal. However, the biggest obstacle to finding an equitable agreement to the conflict is the positions held by both parties. The Chilean president refuses to cede any Chilean land to Bolivia, while the Bolivian president refuses to accept a deal in which his nation does not get sovereign access to the sea. The implications are that both nations will likely not agree on a solution in the foreseeable future.

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