More than thirteen decades after Chile annexed Bolivia's coastal regions, the International Court of Justice (ICJ) denied Bolivia's longstanding claim that Chile had undertaken a legal obligation to negotiate granting it sovereign access to the Pacific Ocean.
To understand the dispute in its full context, one must review the history of Chile and Bolivia's relationship, starting with the immediate aftermath of the 1879 War of the Pacific, which pitted Chile against a Peruvian-Bolivian alliance, and continuing well into the middle of the twentieth century, where the crux of the dispute lies. In 1883, Chile signed the Treaty of Ancon with Peru, officially annexing the Peruvian province of Tarapaca and agreeing to define the status of the Tacna and Arica regions in a plebiscite, to be held ten years later. The next year, Chile ended hostilities with Bolivia through the 1884 Truce Pact, according to which Chile would occupy and administer the Bolivian coastal region of Antofagasta until a definitive peace treaty could be agreed between the parties.
Bolivia and Chile later settled their war-related differences through the 1904 Peace Treaty. According to its terms, Chile acquired sovereignty over Antofagasta “absolutely and in perpetuity,” and agreed to construct a railroad between the Peruvian port of Arica (under Chilean occupation at the time) and La Paz, Bolivia's capital. Through the 1904 Peace Treaty, Chile granted Bolivia “in perpetuity the amplest and freest right of commercial transit in its territory and its Pacific ports” and allowed it to “establish customs agencies in the ports which it may designate for its commerce” (pp. 13–14).Footnote 1
In 1920, the minister for foreign affairs of Bolivia and the minister plenipotentiary of Chile met in La Paz to address Bolivia's status as a landlocked nation. The minutes of this meeting, known as the 1920 Acta Protocolizada, set off a series of attempts by Bolivia to negotiate sovereign access to the Pacific Ocean with Chile, separate from the terms of the 1904 Treaty. In this Acta Protocolizada, Chile declared that it was “willing to seek that Bolivia acquire its own access to the sea, ceding to it an important part of that zone in the north of Arica and of the railway line which is within the territories subject to the plebiscite stipulated in the Treaty of Ancón” (p. 15).
After the 1920 Acta, Bolivia continued to seek revision of the 1904 Treaty of Peace through the League of Nations Assembly, which according to the terms of Article 19 of the Treaty of Versailles, was authorized to make such recommendations.Footnote 2 Chile strongly objected. In several diplomatic exchanges, Chile sought to convince Bolivia to enter into separate negotiations to find an agreeable accommodation, keeping the 1904 Treaty intact. One of many similar Notes stated, for instance, that “Chile has never closed that door to Bolivia, and … nothing would please us better than to sit down with her and discuss the best means of facilitating her development” (p. 16).
In 1929, Peru and Chile signed the Treaty of Lima, whereby the province of Tacna would return to Peru and the province of Arica would pass to Chilean sovereignty, fixing the current border in a line running parallel to the Arica-La Paz railway, constructed under the terms of the 1904 Chile-Bolivia Treaty. For Bolivia, however, the 1929 agreement only worsened its problems. A complementary protocol to the treaty provided that neither Peru nor Chile could cede the territories of Tacna and Arica, or a portion thereof, to a third state without prior consent of the other. Given that both Chile and Bolivia considered the eventual cession of Tacna and Arica by Chile to Bolivia a reasonable outcome,Footnote 3 the new status quo rocked the foundations of the negotiations as originally envisioned. Even worse, soon after, in 1932, Bolivia, seeking to secure access to the Atlantic Ocean through the Paraguay and Parana rivers, ended up embroiled in a full-scale war against Paraguay that left the question of access to the Pacific in a standoff.
Negotiations on the matter between Bolivia and Chile would not restart until 1950, when Bolivia's ambassador sent Chile a diplomatic Note proposing that both nations “enter into direct negotiations to satisfy Bolivia's fundamental need to obtain its own sovereign access to the Pacific Ocean” (p. 21). Chile responded through its own Note, stating it was “willing to formally enter” into such negotiations (“esta llano a entrar formalmente,” in the Spanish original, and translated by Chile as “is open formally”) (id.), but these negotiations never actually began, and the two countries instead focused on improving Bolivia's already existing non-sovereign-access rights.
In July 1961, Bolivia sought to bring the question of its access to the Pacific to the attention of an Inter-American conference to be held in Quito. Chile's ambassador to Bolivia, Manuel Trucco, drafted an internal memorandum on the matter, intended for his own Ministry of Foreign Affairs. He also sent a copy to the Bolivian minister. The Chilean translation of this document, referred to by the parties as the Trucco Memorandum, reads as follows: “Chile has always been open … to study, in direct dealings with Bolivia, the possibility of satisfying its aspirations and the interests of Chile… . Note number 9 of our Ministry of Foreign Affairs, dated in Santiago on 20 June 1950, is a clear testimony … of those purposes” (pp. 22–23).
In February 1962, Bolivia responded, expressing “its full consent” to initiate negotiations. However, a few weeks later, in April 1962, Bolivia broke off relations with Chile over a disagreement regarding the use of the River Lauca. A year later, in 1963, and with official ties still severed, Bolivia claimed the 1950 exchange of Notes constituted a commitment of the parties to negotiate, something Chile strongly denied.
Links between both nations would not resume until the 1970s. In 1975, Chile and Bolivia signed the Charaña Declaration deciding “within a spirit of mutual understanding and constructive intent … to search for formulas” to solve, among other issues, Bolivia's landlocked situation (p. 25). As part of this dialogue, Chile proposed, and Bolivia accepted, negotiations based on a territorial exchange through the formerly Peruvian territory of Arica. As per the terms of the Treaty of Ancon, however, Peru had final say on this deal, and responded in November 1976 with a counterproposal, calling for an area of shared tripartite sovereignty between Peru, Chile, and Bolivia along the Arican coast. Both Chile and Bolivia refused. Soon after, negotiations between Chile and Bolivia soured, and, in late 1977, Bolivia demanded the withdrawal of the conditions of shared sovereignty and territorial exchange before negotiations could move forward. In March 1978, Bolivia suspended diplomatic relations with Chile, citing Chile's lack of flexibility and lack of effort to secure Peru's consent.
Bolivia pointed to a number of other documents and statements (the 1986 communiqués, the 2000 Algarve Declaration, and the 2006 13-Point Agenda) to support a bilateral obligation to negotiate. Bolivia further argued that even in the absence of a bilateral obligation, Chile's statements and acts created an obligation to negotiate under the doctrines of unilateral acts, acquiescence, estoppel, and legitimate expectations. In Bolivia's view, “Chile, for more than a century, made a number of consistent and unambiguous declarations, statements and promises … that Chile cannot now deny” (p. 48). Lastly, Bolivia argued that, taken collectively, the sum of all declarations, statements, and communiqués may “cumulatively have ‘decisive effect’ for the existence of such an obligation” (p. 53).
Bolivia instituted proceedings against Chile before the ICJ on April 24, 2013. In July 2014, Chile submitted preliminary objections, claiming that the Court lacked jurisdiction under the Pact of Bogotá, which bars proceedings on matters already settled by agreement between the parties (such as the 1904 Treaty). Chile argued Bolivia was seeking a predetermined result of territorial gain against the terms of this treaty. The Court disagreed, deciding in 2015 that Bolivia's ultimate goal of “sovereign access” was distinct from the dispute it had presented the Court, “namely, whether Chile has an obligation to negotiate Bolivia's sovereign access to the sea and, if such an obligation exists, whether Chile has breached it.”Footnote 4
In the merits phase, the Court set out the standard that Bolivia would have to meet to show the existence of an obligation to negotiate:
[F]or there to be an obligation to negotiate on the basis of an agreement, 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. This intention, in the absence of express terms indicating the existence of a legal commitment, may be established on the basis of an objective examination of all the evidence. (P. 32)
The Court applied this test to all of Bolivia's evidence and found it wanting, dealing swiftly with most of Bolivia's claims. Of the total 23,912 words in the judgment itself, the Court dismissed Bolivia's arguments related to alleged bilateral agreements in barely 1,545 words, and those arguments related to other sources, such as unilateral acts and estoppel, in 1,773 words. The Court's majority spent barely more than 13 percent of the judgment dismissing Bolivia's claims. To give some perspective, the judgment's first eight pages, containing the summary of the judgment and the names of the members of each delegation, have 1,999 words. The majority's findings were also categorical. For instance, it dismissed Bolivia's arguments regarding the 2000 Algarve Declaration in a single ninety-two-word paragraph, starting with “[t]he Court cannot find in the Algarve Declaration an agreement which imposes on Chile an obligation to negotiate” (p. 42). Similar short dismissals applied to the 1986 communiqués (two paragraphs, 154 words) and the 2006 13-Point Agenda (one paragraph, 161 words).
As for the 1950 Notes, the Court observed that those documents could not meet the Vienna Convention's definition of a treaty embodied in two or more related instruments. It stated that nothing in the Notes specified that they would have the effect of binding the parties to an obligation to negotiate, nor did Bolivia show that the parties agreed through other means that the instruments should have that effect. The Court also found that the Notes did not “follow the practice usually adopted when an international agreement is concluded through an exchange of related instruments” (p. 38), observing that the Chilean and Bolivian Notes did not share the same wording nor reflect an identical position with regard to negotiating sovereign access to the Pacific. For the majority, the Notes merely convey “Chile's willingness to enter into direct negotiations, but [the Court] cannot infer from it Chile's acceptance of an obligation to negotiate Bolivia's sovereign access to the sea” (id.).
The Court was equally unconvinced by Bolivia's arguments regarding Chile's unilateral acts. The Court observed that none of Bolivia's sources revealed Chile's undertaking of a legal obligation, but instead only Chile's willingness to enter into negotiations. Likewise, the Court found that the requirements for acquiescence, estoppel, and legitimate expectations were simply not met (in five paragraphs and 516 words).
The meaning of the word “willing,” however, was a point of contention. Judge Robinson thought the particular circumstances of this case, “cover[ing] a period of at least 114 years … marked by a persistent and enduring theme characterizing the relationship between the Parties,” should inform the interpretation of the term (sep. op., p. 5). For Judge Robinson, when Chile responded to the Bolivian 1950 Notes that it was “willing” to enter into formal negotiations, it meant more than a simple political aspiration; Chile was instead setting terms for a legal obligation to negotiate, stating that it would enter into negotiations provided Bolivia agreed to grant Chile non-territorial compensation, something Bolivia did not do for twelve years, until the discussions regarding the Trucco Memorandum of 1961. In Judge Robinson's view, “[t]he acceptance by Bolivia of negotiations on the basis of compensation means that the deal was made and the pact concluded” (sep. op., p. 16).
In the end, the Court's majority ruled against Bolivia by twelve votes to three, adding, nevertheless, that the judgment should not be seen as grounds for precluding future dialogue. Rather, Chile and Bolivia should address the matter of Bolivia's landlocked status “in a spirit of good neighbourliness” (p. 54).
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The relationship between Chile and Bolivia is a rocky one. The two states have not had diplomatic ties since 1978, and the categorical nature of this judgment will certainly not help to improve relations. Upon hearing of the Court's judgment, Chilean President Sebastian Piñera complained about Bolivia's decision to bring the case, stating it had “had no foundation, neither historical, political or legal, and that is why it was categorically rejected,” forcing both countries to “los[e]” five years in the process.Footnote 5 Bolivia's president, Evo Morales, said Bolivia would “never allow itself to be kept from the sea” and that “the people of the world know that through an invasion, sovereign access to the Pacific Ocean has been taken away.”Footnote 6
President Piñera's unnecessarily blunt phrasing aside, however, Bolivia's insistence on an obligation to negotiate sovereign access made its case a particularly difficult uphill battle.Footnote 7 Bolivia's case relied heavily on the formalities of treaty-making, discussing the standards set out in cases like the Aegean Sea Footnote 8 and the Qatar-Bahrain Maritime Delimitation,Footnote 9 but strained to find support in the actual text of the relevant instruments. Careful diplomatic language crafted specifically to avoid these kinds of misunderstandings worked against Bolivia, as did the potential ripple effects of finding in Bolivia's favor. If passage of time in longstanding, stalemated disputes can change the way in which certain traditional terms are read, then other states may be incentivized to file similar complaints, a concern perhaps underlying the Court's cautious interpretations.
Ultimately, Bolivia sought to find in the collection of materials as a whole what it could not find in the individual aspects of each instrument and exchange of Notes. It argued that it had a right to see its own legitimate expectations, created by these events, fulfilled. This was a strategy unlikely to succeed. It might have been able to demonstrate that Chile's reluctance to seriously contemplate and address Bolivia's disadvantaged position as a landlocked country was unfair, but not that Chile had a definite obligation to negotiate a specific kind of solution for these problems.
This insistence on addressing the matter solely by means of sovereign access was perhaps Bolivia's greatest limitation. By ignoring other claims, Bolivia may have forced the Court to limit itself to the mere advice that “in a spirit of good neighbourliness” the parties should find a solution to a problem “they have both recognized to be a matter of mutual interest” (id.). But Bolivia's situation as a landlocked country is not at all limited solely by good neighborliness, but rather regulated by a very intricate legal regime, one that the Court was unable to discuss, given Bolivia's petition. This was likely the concern underlying ICJ President Yusuf's appended Declaration. He stated that the Court was cognizant that “relations between States cannot be limited to their bare legal aspects and that certain disputes may usefully benefit from other means of resolution that may be available to the parties” (p. 2). Considering this concern, perhaps it would have been opportune for the Court to make clear that it was sovereign access that was a matter of “good neighbourliness,” not Bolivia's status as a landlocked state itself, nor the transit of its goods through Chilean territory. As explained below, Bolivia could have raised complaints concerning Chile's treatment of Bolivian goods passing through its territory both under the 1904 Treaty and other legal frameworks, such as the law of the sea and regional trade agreements. In any case, perhaps such a resolute “no” from the Court may now lead Bolivian authorities to dust these other complaints off, and refocus its relationship with Chile, by seeking other viable and realistic foreign policy objectives, in addition to an overarching goal of access to the Pacific.
Bolivia's non-sovereign-access complaints have been ventilated in the past at the Latin American Integration Association (ALADI, its Spanish acronym). According to Bolivia,Footnote 10 in 2010 Chile began to apply the provisions of a 1990, ALADI-sponsored treaty, the Agreement on International Ground Transportation (ATIT, for its Spanish acronym), to Bolivian goods in transit through Chile.Footnote 11 From Bolivia's perspective, applying ATIT's terms would violate Chile's obligation to grant Bolivia the “amplest and freest right of commercial transit” under the 1904 Peace TreatyFootnote 12 and subsequent agreements.Footnote 13 ATIT requires truck drivers to present “crewmen booklets” (“libreta de tripulante”) detailing information about the truck, its driver, and the company who hired them.Footnote 14 This and other restrictions, such as demanding minimum technical specifications for Bolivian trucks, prompted a Bolivian complaintFootnote 15 against Chile before ALADI’s consultation mechanism in 2014.Footnote 16 According to Bolivia, none of ATIT's terms could restrict the ample rights granted by the 1904 Treaty and should thus not be applied by Chile in its relations with Bolivia. As a political body, however, ALADI merely recommended both nations engage in dialogue to solve the dispute, leaving both states unsatisfied.Footnote 17
Another often-overlooked alternative for Bolivia is bilateral negotiations with its old wartime ally, Peru, which has traditionally been very open to collaboration with Bolivia on its landlocked status. In the early 1990s, both countries signed a series of treaties on the matter that were highly beneficial to Bolivia.Footnote 18 The Agreement on Participation of Bolivian Companies in the Ilo Industrial Free Zone allows Bolivia to construct an industrial hub in the southern Peruvian port of Ilo, some five hundred kilometers southwest of La Paz. In this agreement, Peru grants Bolivia “the amplest facilities to use the Port of Ilo, both to channel its merchandise import and export operations and to support the development of the Ilo Industrial Free Zone.”Footnote 19 Similarly, the Convention on Participation of Bolivia in the Ilo Beach Tourism Free Zone, grants Bolivia a right to construct tourism infrastructure in a five-kilometer-long strip of Peruvian coast known as “Playa Boliviamar” (roughly translatable as “Bolivia Sea Beach”). Both of these free zones remain unused, with Bolivia complaining that, despite the facilities granted by Peru, Ilo is less developed and more expensive to use than Arica (in Chile). Both states seem at an impasse as to which of them should invest first and where: Bolivia in the free zones or Peru in the modernization of the Ilo Port.Footnote 20
Of course, pursuing these alternative solutions would in no way require Bolivia to drop its longstanding demand for sovereign access,Footnote 21 but it would likely help it—in a shorter timeframe—to ease the burden of not having a coast of its own. Such a course of action would also move Bolivia's demands away from a standard of “good neighborliness” and back to the field of international law, where they can be better addressed.
