From:
andrew cooke <andrew@...>
Date:
Sun, 10 May 2015 22:27:52 -0300
..
This is a loose translation of
http://revistas.pucp.edu.pe/index.php/agendainternacional/article/viewFile/7728/7976
by Sandra Namihas.
Please note that my Spanish is imperfect (my English too!) and use the
original for reference.
See also (other translations):
* President Bachelet's Speech http://acooke.org/cute/PresidentB0.html
* The Davalos Affair For Idiots http://acooke.org/cute/TheDavalos0.html
* Another Tax Fraud http://acooke.org/cute/AnotherTax0.html
* The SQM Affair For Idiots http://www.acooke.org/cute/TheSQMAffa0.html
* The Penta Affair For Idiots http://acooke.org/cute/ThePentaAf0.html
My comments are [in square brackets]. Apologies for the inconsistent
translation of names. I started by translating what I could, but realised
later it was better to leave them in the original form.
Andrew
Introduction
As a consequence of the War of the Pacific and the signing of the Peace Treaty
on Oct 20 1904, between Chile and Bolivia, the latter lost its 400 km
coastline and 120 000 sq km of area, and so became landlocked. Since then
Bolivia has made untiring efforts to find a solution that would grant it
sovereign access to the sea. The latest significant step in this journey,
made by the government of Evo Morales, has been the presentation, on Apr 24
2013, of a case against Chile in front of the highest tribunal, the
International Court Of Justice in The Hague (ICJ).
However, in this case, Bolivia has put aside its traditional legal position
denying the validity of the 1904 Peace Treaty - which reestablished peaceful
relations with Chile and ended the regime established by the Pact Of Tregua in
1884 - for a new position asking the Court to declare that "Chile has an
obligation to negotiate sovereign access to the Pacific Ocean with Bolivia",
something that, it claims, Chile has failed to do so far.
1 Historical Background
1.1 The First Attempts To Find A Solution To Bolivia's Landlocked State
In the new context formed after the War of the Pacific, Bolivia and Chile
signed three agreements on May 18 1895: one of peace and friendship, another
of commerce, and a third of importance here, called the Special Treaty For The
Transfer Of Territories, in which Chile agreed to deliver to Bolivia the
captured Peruvian provinces Tacna and Arica, if the plebiscite that was to be
taken over the future of each was favourable [to Chile], as given by the
following articles:
Article 1: If as a consequence of the plebiscite that has to have taken
place, in agreement with the Treaty Of Ancon, or in virtue of direct action,
the Republic Of Chile obtains dominion and sovereignty over the territories
of Tacna and Arica, it is obliged to transfer them to the Republic of
Bolivia, in the same form and with the same extent as it acquired them.
Article 3: To realise the given proposition, the Government Of Chile agrees
to lend all its force, alone or together with Bolivia, to obtain ownership
of the territories of Tacna and Arica.
This improper - made by an occupying state without legal title to make the
offer - declaration of Chile to transfer land was protested by Peru who
asserted that they would never drop their claim to Tacna and Arica and would
transfer them to no other state.
However, the treaties for both peace and the transfer of territory met with
fierce opposition in the Bolivian Congress, largely because of of deep mistrust
in the signing of two, separate documents, and so they were never ratified.
The Bolivian fear was based on the possibility that Chile would give weight to
the first - which clearly gave them the Bolivian coast - and not the second,
which referred to the transfer from Chile of the two Peruvian provinces.
Afterwards, both countries celebrated the Peace Treaty of Oct 20 1904, in
which Bolivia gave its coast to Chile in perpetuity - including the ports of
Mejillones, Cobija, Tocopilla and Antofagasta - and in compensation received
300 000 UK pounds and the construction of a railway from Arica to La Paz. At
the same time, Chile recognised Bolivia's "perpetual and most ample and free
right of commercial transit through its territory and Pacific ports", as well
as the right to construct customs agencies in the ports specified by Chile:
Antofagasta and Arica. In that treaty, still valid today, no mention is made
of the improper transfer of Peruvian provinces.
Note that an important part of the traditional Bolivian position over its
landlocked status has been to assert that this treaty was invalid because it
was signed when the coastal region of Bolivia was still under Chilean
occupation. But this all occurred before the use or threat of force was
proscribed by international law. In effect, "until 1945 violence did not
invalidate treaties; law recognised the effectiveness of historic events;
otherwise it would have brought into question all the peace treaties, for the
general tax of the victors on the vanquished." So, according to international
law, this given treaty was not invalid. Maybe because of this, in item 14 of
the case presented by this country to the ICJ, the historical fact is
described with mentioning the invalidity of the treaty; however, in item 34 of
the same document, Bolivia reserves the right to ask for the right to form a
tribunal for whatever claim arises from the Treaty of 1904, from which it
could be understood that it has not renounced its historical position of
invalidity.
According to the history given by the Bolivian case, in 1910 the Bolivian
Chancellor, Daniel Sanchez Bustamente proposed to the chancelleries of Lima
and Santiago, that they should cede complete or partial control of the Peruvian
provinces of Tacna and Arica, occupied by Chile, because "they are only useful
for Bolivia." This suggestion had the same problems as 1895; first, Peru
maintained valid legal rights over the territories and, as it had indicated,
would not cede them voluntarily; Chile, for its part, although it would have
wanted to, could not transfer the territories to Bolivia because they were not
sovereign territories, only occupied territories [supremacia territorial],
which is a situation de facto and not de jure. Finally, the Bolivian
proposition had no legal obligation on either of the mentioned states.
Ten years later, on Jan 10 1920, the secret "Registered Act" [Acta
Protocolizada] was signed by the Bolivian Chancellor Carlos Gutierrez and the
Chilean extraordinary and plenipotentiary envoy, Emilio Bello Codesido, in La
Paz, by which Chile agreed to provide Bolivia with an exit to the sea north of
Arica, providing that Tacna and Arica stayed in Chilean power. Again the
attempt was made to overpass Peruvian sovereignty and again Bolivian and Chile
were frustrated in their plans.
Unhappy with the loss of their coastline, which was certainly established in
the Peace Treaty of 1904, Bolivia suggested a revision to the Society of
Nations, on Nov 1 1920, invoking article 19 of its constitution. Almost a
year later the commission of judges, created by that international
organisation to analyse the problem, resolved that:
As it has been presented, the case of Bolivia is inadmissible, given that
the Assembly of the Society Of Nations cannot by itself modify any treaty:
the change of treaties is the sole responsibility of the member nations.
Effectively, this international law judgement - which was later recognised by
the Vienna Convention On Treaties in article 39 - established that a treaty
can only be modified by the parties involved; and so no organisation or
international court has the right to do so.
1.2 Negotiations Between Bolivia And Chile In C20
Failing to obtain a favourable result in the Society of Nations did not deter
Bolivia in its quest to solve the problem of being landlocked, and so it
continued with a series of actions, including various direct negotiations with
Chile. But it's necessary to note that after 1929, for obvious reasons [on
Jun 3 1929 a Treaty was signed between Chile and Peru that returned Tacna to
Peru and left Arica as part of Chile, who paid Peru 6m USD], the deal over the
provinces of Tacna and Arica was no longer part of the conversations between
the two countries.
The first of these negotiations was carried out between 1946 and 1952,
starting on the Presidential inauguration ceremony of the Chilean Gabriel
Gonzales Videla, on Nov 3 1946, and extending for more than three and a half
years, it was carried out via diplomatic notes. In note 529/21 of Jun 1 1950
(delivered on the 20th) to the Chilean chancellor, delivered by the Bolivian
ambassador in Santiago, Alberto OStria Gutierrez, asked:
That the governments of Bolivia and Chile enter formal talks towards meeting
the fundamental Bolivian need to obtain their own, sovereign access to the
Pacific Ocean, resolving the landlocked state of Bolivia, on the basis of
reciprocal convenience and true interest of both countries.
In his reply contained in note 9 of Jun 20 1950, the Chilean chancellor
Horacio Walker Larrain said:
In the present instance, I have the honour to express to your excellency
that my government will be consistent with that position and, motivated by a
spirit of fraternal friendship towards Bolivia, is inclined to enter
formally into a direct negotiation intended to make possible Bolivia's own,
sovereign exit to the Pacific Ocean, and that Chile obtains non-territorial
compensation consistent with its own interests.
For the contents of the deal, it's know that the option discussed was to
provide Bolivia o corridor north of Arica, approximately 10km wide, with the
possibility of constructing a port and using the Arica - La Paz railway, in
exchange for which Chile would use the waters of Lake Titicaca, river
Desaguadero, and lake Poopo, to generate hydroelectric energy for the Chilean
provinces of Tarapaca and Antofagasta.
Curiously, almost a year later, the US president Harry Truman expressed
himself in favour of irrigating the north of Chile with water from Lake
Titicaca in exchange for a Bolivian exit via Arica. In reality, Truman took
his idea from the president of Chile, Gabriel Gonzales Videla, who after the
intervention of the American president, strengthened the idea based on the
necessity of generating energy for Peruvian, Bolivian and Chilean industries.
Bolivia immediately replied that it had not been officially notified of the
Chilean proposal. Further, Bolivian political opposition refused a deal on
these terms, which, combined with a change in Chilean government in 1952, when
Carlos Ibanez - absolutely opposed to the deal - became president, shipwrecked
the conversation.
Additionally, an agreement on this basis would have been unworkable because the
waters of the Titicaca cannot be allocated unilaterally by just one of the
bordering countries, as was made clear Mar 30 1951, by the government of
general Manuel A Odria (1950-1956) via a declaration in which, in addition to
saying that Peru had not been consulted in any way - for which they considered
the declarations of Truman and Gonzalez Videla to have been only personal
opinion - and reaffirming that any modification to the frontier between
Bolivia and Chile must respect article 1 of the Protocolo Complementario of
the Treaty of 1929, signed between Peru and Chile.
Before the second major attempt at negotiation between Bolivia and Chile,
there were several approaches, embodied for example in the memorandum
delivered in La Paz, Apr 10 1961, by the Chilean ambassador, Manuel Trucco, or
in the proposition of the coordinator of the Alliance For Progress, the Puerto
Rican Teodoro Moscoso in 1963.
Similarly, negotiations were opened several times during the Chilean
governments of Eduardo Frei (1964-1970) and Salvador Allende (1970-1973) - who
returned to the possibility of developing a petrochemical plant between the two
countries - but none were productive, this time because of the string internal
political opposition in both countries, evidenced by the coups lead by
generals Augusto Pinochet and Hugo Banzer.
The second important negotiation over Bolivia's landlocked status was started
on Feb 8 1975, in the frontier zone of Charana, where the de facto presidents
of Bolivia and Chile (see above) signed the Act of Charana, agreeing to:
Continue the dialogue at various levels to find a formula do vital problems
that both countries face, like the landlocked state of Bolivia, at the
mutual convenience and respecting the aspirations of both the Bolivian and
Chilean people.
Afterwards, Chile would accept a proposal from Bolivia for further study. And
on Aug 26 of the same year Bolivia reached a memorandum that basically
suggested a corridor north of Arica until the border with Peru [Linea De
Concordia], and an enclave, situated in the land that Peru lost as part of the
Treaty of 1929. In Dec 1974, after 5 months, Chile replied, agreeing to
transfer the corridor to Bolivia, but at the same time dismissing any
transfer of land to the south that could affect the territorial continuity of
the country, and adding the necessity of territorial compensation of an
equivalent area.
We must note that three days after Chile replied to Bolivia, the country
communicated with Peru (note 685), seeking to complete article 1 of the
Protocolo Complementario of the 1929 Treaty. The note was read and replied to
by the minister for exterior relations in Peru, Jose de la Puente Radbill, but
the reply was in the negative:
The truth of the matter is that the Bolivian-Chilean formula for a corridor
submitted to Peru implies a substantial change in the political geography
fixed by the 1929 Treaty, since it introduces a new state, Bolivia, on this
border with Peru. Before such changes, that change for our country the
border regimen that for 50 years has been governed by the Treaty of 1929,
the least that can be asked is that Peru, in turn, and within its own
timetable, makes its own suggestions within the emerging circumstances.
In Nov 1977 Pinochet sent a letter to president of Peru, Banzer with the hope
of reopening negotiations, but he replied by suggesting it was necessary to
reconsider the conditions, that is, reevaluate the territorial exchange. But
none of this happened and so in Mar 1978, Banzer decided to break relations
with Chile, given the wave of criticism produced in Bolivia by suggestion of
an exchange of territory, or to pay compensation.
The third important negotiation (known as the "new look") occurred between Apr
21 - 23 1987, between the chancellors of Bolivia and Chile, Guillermo Bedregal
and Jaime del Valle, respectively, in Hotel Carrasco in Montevideo, under the
auspices of the Eastern Republic Of Uruguay and in the initiative of the
Bolivian president Victor Paz Estoenssoro. Both chancellors were accompanied
by national delegations, led by the ambassador Gaston Illanes, for Chile, and
Rene Soria Galvarro, for Bolivia. In this attempt, Bolivia presented an
initial proposal where it repeated the idea of a corridor to the north of
Arica; simultaneously it presented a second with three possible coastal
enclaves. But Chile rejected both proposals, which it considered unacceptable
given internal politics. This led, in the morning Tuesday, Jun 9, to the
general sub-secretary of the Chilean Chancellory delivering the Bolivian
general consul in that country, Jorge Siles Salinas, a copy of a communication
that said the Bolivian proposal was found to be unacceptable. Chile's
attitude was very different to the one it had adopted in 1975, which can be
explained by the economic, political and military situation of the time (1987
[the "no" vote was in 1988]), and having solved the issue of the Beagle
Channel with Argentina.
1.3 Multilateral Bolivian Efforts In The Region
In the decade of the 70s, Bolivia decided to also raise the issue of its
landlocked state - without renouncing its bilateral approach, as we have seen
- at the Organisation Of American States (OAS) and obtained an initial
resolution from the Permanent Council on Aug 6 1975. Even so, it wasn't until
1979, the year of the centenary of the Pacific War, that Bolivia - host that
year of the General Assembly - obtained resolution AG 426, approved without the
participation of Chile, and considered the most important by the Bolivians for
its content:
It is in the permanent interest of the hemisphere to find an equitable
solution through which Bolivia has sovereign access to the Pacific Ocean.
...
It is resolved:
1 To recommend to the states directly affected by this issue that they start
negotiations directed towards giving Bolivia a territorial connection,
free and sovereign, to the Pacific Ocean. Such negotiations should take
into account the rights and interests of the parties involved and may
consider, amongst other elements, the inclusion of a multinational port
zone that would take into account the Bolivian suggestion to not include
territorial compensation.
2 To continue the discussion of the issue "report on the maritime problem of
Bolivia" in the next session of the General Assembly.
In the following years the General Assembly of the OAS continued to emit
resolutions on the issue, many of which would start to be approved by
consensus, including the Chilean vote. In 1989 a final resolution was
approved whose contents have allowed Bolivia to keep open the consideration of
the issue in the ordinary sessions of the General Assembly of the OAS, with
the need to submit a specific resolution for a vote, as had been done in
previous years. In effect the resolution 989 approved:
Reaffirm the importance of a solution to the Bolivian maritime problem on the
basis of mutual understanding and the rights and interests of the involved
parties, for a better understanding, solidarity and integration of the
hemisphere, encouraging the dialogue of the parties and leaving open the
consideration of the the issue for whichever ordinary session of the General
Assembly is required.
1.4 The Bilateral Treatment [?] From 2000 Onwards
The issue of landlocked Bolivia remained constant in the foreign politics of
Bolivia, In Feb 22 2000, in the Portuguese city of Algarve, Chile and Bolivia
agreed to the "Agenda Without Exclusions", under the presidency of Eduardo
Frei and Hugo Banzer. According to the then Bolivian chancellor Javier
Murillo, it was necessary to discard, in C20, the criteria of C19, which had
governed relations until then and "had not allowed an opening, a constructive
and cooperative neighbourliness" between the two states.
Then, following various attempts to return to negotiate the issue, like that
made in 2004 when, at the start of August, the vice-chancellors of Bolivia,
Jorge Gumucio, and Chile, Cristian Barros, met in the city of La Paz, on the
basis of the "Agenda Without Exclusions". The discussion included the
maritime issue and the possible transport of Bolivian gas to Chile, which was
suffering an energy crisis, due to the crisis facing Argentina, their primary
source.
The agenda would be taken up again, and closed, between the presidents Evo
Morales and Michelle Bachelet, via the "Agenda Of 13 Points", signed in La
Paz, Jul 1 2006, between the vice-chancellors Muricio Dorfler of Bolivia and
Alberto van Klaveren of Chile. This new agenda included 13 points: 1
Development of mutual confidence; 2 Integration of borders and cooperation of
customs services; 3 Free transit and modification of the port of Iquique; 4
Physical integration with the Arica - La Paz railway; 5 Complementary economic
development [?]; 6 The maritime issue; 7 El Silala [a border river] and it's
resources; 8 Tools for the fight against poverty; 9 Security and defence; 10
Cooperation to control the flow of illicit drugs and their precursors; 11
Education, science and technology; 12 Culture; 13 Other issues, like
agreements on social security, delivery of visas to Chilean students in
Bolivia, help with problems of gender issues, and other social aspects.
Unfortunately the conversation between the countries arrived at no specific
points. As Correa said:
The position of president Bachelet, very proactive during the first two
years of her administration, became more cautious and, finally, postponed the
dialogue to the end of her mandate.
After 6 years, Jul 14 2010, on the last day of the 22nd meeting of the
Mecanismo Bilateral De Consultas Politicas De Bolivia Y Chile, the Chilean
vice-chancellor, Fernando Schmidt, declared readiness to "analyse the Bolivian
maritime demand with practical proposals, concrete and useful, in a climate of
respect, without prejudice." But, again, there were no concrete proposals.
The passage of time and the lack of agreement led Bolivia to a negative
perception of the Chilean position on the issue. So, on Mar 23 2011, the
president Evo Morales announced the creation of the Direccion General De
Reinvidicacion Maritima (DIREMAR), whose mandate would be to prepare a case
against Chile at international bodies, denouncing the Chilean attitude of
having no desire to advance the issue of the sea.
Given this, the Chilean president, Sebastian Pinera announced that his
government would firmly defend the country's sovereignty. On the other hand,
as when Peru presented its demand before the same court, Chile has claimed
that this presentation is an unfriendly act that prejudices the bilateral
dialogue. In this sense, it appears that Chile has forgotten the obligation
of states to solve controversies peacefully, an obligation that is considered
ius cogens [a fundamental principle] in international law, and that there is a
freedom of choice, including both negotiation and legal routes.
2 The Bolivian Demand
Within this framework, the Estado Plurincacional De Bolivia dropped,
surprisingly, its traditional position on the invalid nature of the Treaty Of
Peace of 1904 and presented before the ICJ on Apr 24 2013, a case concerning
Chile's obligation to negotiate with Peru, with the aim of arriving at an
agreement to provide sovereign access to the sea.
2.1 Competency Of The ICJ
When the case was presented, the competency of the court was not in
discussion. Both countries are part of the Tratado Americano De Soluciones
Pacificas (Pacto De Bogota), signed in the Columbian city on Apr 30 1948,
which says:
Article XXXI. In agreement with item 2 of article 36 of the Statute Of The
ICJ, the cosignatories declare recognition, to whichever other American
State, as obligatory, ipso facto, without any special agreement, while this
treaty is operational, of the jurisdiction of the ICJ in all legal
controversies between them that apply to:
a The interpretation of a treaty;
b Any question of international law;
c The existence of any fact that, if it were established, would constitute a
violation of international law;
d The nature of size of any reparation made for the breaking of an
international obligation.
Chile ratified this document Aug 21 1967, while Bolivia did so recently on Apr
14 2011, making the deposition on Jun 9 of the same year, in which it also
presented an exclusion against article VI, which says:
Article VI. The above cannot be applied to procedures already resolved by
the parties, or by arbitrators, or by sentencing in an international
tribunal, or which are governed by agreements or treaties active on the date
of agreement of this treaty.
It's clear that this exclusion was made for consistency with the position that
there are problems related to the Treaty Of Peace of 1904, which Chile
responded to on Jun 15 2011, in a note titled "Objection by the Republica de
Chile to the exception formulated by the government of the Estado
Plurinacional de Bolivia on the moment of ratifying the Tratado Americano De
Soluciones Pacificas or Pacto De Bogota" and in which declare that, according
to internal rights, the objection impedes the acceptance of this instrument
between those two states. For their part, Bolivia presented note
OEA-MP-225-11 which contained the "Clarification on the objection of the
Republica de Chile to the exception formulated by the Estado Plurinacional de
Bolivia on the moment of ratifying the Tratado Americano De Soluciones
Pacificas or Pacto De Bogota" in which they deny the legal effects claimed by
president Pinera, that is, the inexistence of the treaty between the two
states.
As is known, both the acceptance of the exception and the objection create a
new legal situation with respect to the original treaty. In this sense it is
completely valid that Chile has presented a complete objection to the Bolivian
exception, which [... I can't translate this legalese but I don't think it's
important].
Chile sent note 389, dated Dec 12 2011, to the Secretary General of the OAS,
in which it reaffirmed what was said in the previous note, that is, that the
Pacto De Bogota was not valid between that state and Bolivia, in reply to the
"clarification" made by the other country.
Finally, on Apr 10 2013, 14 days before the presentation of the case to the
ICJ, Bolivia presented note MPB-OEA-ND-039-13 to the OAS, which contained the
retraction of the exception to article VI of the treaty. So the Pacto De
Bogota became valid between Bolivia and Chile.
2.2 The Object Of The Controversy
En its case, Bolivia claims the existence of an assumed international
obligation (bilateral and unilateral) by Chile, to negotiate in good faith
with the first, an agreement that would permit it sovereign access to the
Pacific Ocean. Bolivia sustains that Chile has not complied with this
obligation, and so asks the Court to declare this non-compliance and establish
the need for Chile to negotiate in good faith, in short time, sovereign access
to the sea for Bolivia.
Specifically, Bolivia gives the following treaties and unilateral declarations
of Chile as the basis for its position:
a The (secret) Tratado Especial Para La Transferencia De Territorios of 1985
between Bolivia and Chile, in which the southern country agreed to deliver
to Bolivia the captive provinces of Tacna and Arica, if the plebiscite
that was t be taken over their future was favourable.
Although, in this case, we should note that supposition given in the
treaty never occurred, so this clause never became active.
b The secret Acta Protocolizada of Jan 10 1920, in which Chile agreed to
give Bolivia an exit to the sea to the north of Arica, with Bolivia
agreeing that Tacna and Arica would stay under Chile's control.
On this point we should clarify that was based on the same precondition as
the previous treaty which, as already noted, never occurred.
c The note of Jun 20 1950, signed by the Chilean Chancellor Walker, in which
he indicates his country's "willingness to enter a formal, direct
negotiation to find a way to give Bolivia a sovereign exit to the Pacific
Ocean."
d The note above is reaffirmed with the same contents in a memorandum that
the Embassy Of Chile sent to the Minister Of Foreign Relations in Bolivia
on Jun 10 1961.
e Note 686 from the Ministry Of Foreign Relations in Chile, Dec 19 1975,
which said "Chile is preparing to negotiate with Bolivia the transfer of
a band of land north of Arica to the Linea de Concordia."
f Resolution 426 of the OAS General Assembly, in 1979, which said:
It is in the permanent interest of the hemisphere to find an equitable
solution via which Bolivia has useful, sovereign access to the Pacific
Ocean.
...
It is resolved that:
1 To recommend to the states directly affected by this issue that they
start negotiations directed towards giving Bolivia a territorial
connection, free and sovereign, to the Pacific Ocean.
g The Acuerdo de Algarve, Feb 22, 2000, in which was agreed an "agenda
without exclusions."
h The "Agenda Of 13 Points" agreed Jul 1 2006 in La Paz whose point 6 refers
to the maritime issue.
If it is difficult to give a legal opinion unbiased by memory, or by the
opposing memory from the Chilean side [very lose translation here, sorry], but
we can give some reflections of a preliminary character with the hope of
clarifying some points and inviting reflection on others.
A first comment is that the Bolivian case asks the ICJ to determine that Chile
is obliged to negotiate an exit to the sea. We should bear in mind judge
Moore en Asunto Mavrommatis when he said "negotiations are, in the
international ambit and in the sense of international rights, the normal and
legal method of administration by which governments, in the exercise of their
incontestable power, pursue mutual relations and discuss, adjust and solve
their differences."
In effect, negotiation is a diplomatic method of solving controversies that
tends to facilitate an agreement between parties, but without a binding
character. That means, the obligation to negotiate is simply an obligation of
methods, and not of results, from which the parties do not have the obligation
to arrive at a concrete solution to the problem. As the Permanent Court Of
International Justice (PCIJ) said: "the agreement to negotiate doesn't mean
that you understand." So, although the ICJ accepts that Chile is obliged to
negotiate, that does not resolve the basis of the controversy, which is to
give sovereign access to the sea to Bolivia, and no such obligation exists to
arrive at the that result through negotiation, even though that is the object
of the Bolivian case.
In other words, we do not understand what is the point of the Bolivian case,
in case that Bolivia does win, that will not resolve the landlocked situation,
but only oblige Chile to enter a new negotiation, without any guarantee that
this country cedes sovereign access to the sea.
The previous leads us to a second point which is how the International Court
Of Justice can carry ahead a process whose does not lead - if it is started -
to the solution of the controversy. This tribunal has already made previous
pronouncements on the case, indicating that it is not possible to use the
court when the sentence is purely declarative, that is, with no practical
effect; it has concretely refused to resolve the case when it has considered
that the judgement will have a purely declarative effect. The idea is
discussed in the judgement of the ICJ Dec 2 1963, concerning "Asunto del
Camerun Septentrional." A third point is related to the so-called "actos
unilaterales de los Estados" (AUE), which currently are undoubtedly the source
of international rights, that is, generative norms of rights [?]. In this
respect we must bear in mind that not all unilateral acts create rights - as
was noted by the ICJ in the Issue of Nuclear Tests Between France and
Australia / New Zealand - so Bolivia must prove that the Chilean declarations
presented as proof of an AUE are really such, by establishing the constitutive
elements: manifestation of autonomous will, unilateral, with the objective and
intention to produce legal effects, whose validity does not depend on other
legal acts, conforming with international law, and that combine certain
requirements of ability (coming from a competent organ), of form (public) and
basis (la declaration must be made in a binding way). [I have no idea what
that all means - if it's important, check the original]
Finally, in the measure in which a unilateral act is a recognised source of
international right, it immediately produces the existence of an obligation
for the declaring state and a right for the receiving state. But in the
present case Bolivia doesn't just claim that the unilateral Chilean
declarations have created the right to force Chile to negotiate, but also
asserts that the declarations have created a "expectative right" in their
favour, concretely, the expectation to gain sovereign access to the Pacific
Ocean. This is an interesting point that the Court will have to resolve, that
is, determine whether an AUE can generate not only rights in favour of the
recipient, but also "expectative rights".
3 Steps After The Case
Six days after presenting the case, it was accepted by the ICJ, and this
organisation immediately informed Chile, starting the judicial process.
Later the parties were summoned by the secretary of the Court, Philippe
Couvreur, to meet behind closed doors in the Palacio De La Paz on Jun 12 2013,
with the objective of explaining the steps in the written phase. Then,
following the order of the Court, Bolivia was given 11 months to elaborate a
"memoria de demanda" against Chile (Apr 17, 2014), while the latter was given
the date of Feb 18, 2015 to introduce its "contramemoria". After that stage
dates for the oral phase would be given.
As you can see, we find ourselves still in the preliminary phase [the present
document is dated 2013] of the process whose solution will not only be of
interest to the parties involved, but also to academics and specialists in
international rights, since the case involves the use of criteria on some
aspects that are underdeveloped in this discipline.