How the ICJ’s Attempts to Settle Disputes Over Water Access in Latin America Have Proven Ineffective

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Disclaimer:This blog post solely reflects the opinion of the authors and should not be taken to represent the general views of IPPR’s management/ editorial team or those of fellow authors.

The International Court of Justice (ICJ or World Court), the official judicial organ of the United Nations, has been criticised by theorists as being ineffective in resolving political conflicts in some cases. 

Some claim that the reason why certain disputes cannot be successfully resolved by judicial means is their political nature, and only legal disputes can be settled in court. However, it is difficult, if not impossible, to find an international conflict that strictly fits into only one of the two categories. Indeed, there have been political conflicts that were resolved as a result of the ICJ decisions. 

The conflict between Chile and Bolivia is one of the rare instances where different aspects of the same conflict have appeared twice before the ICJ. However, the ICJ has failed to successfully resolve this conflict as the two states continue to allow 150 years of historical differences define their politics and diplomatic relations. The latter are yet to resume after 40 years. 

This article outlines the complex background of the conflict between Chile and Bolivia, summarises the two cases, Obligation to  Negotiate Access to the Ocean (Bolivia v Chile) and Dispute over the Status and the Use of the Silala Waters (Chile v Bolivia), and illustrates how unimpactful the ICJ’s decisions can be if political will does not align with the Court’s findings.

Background

I.               Historical differences

Chile and Bolivia’s territorial dispute has been ongoing for almost 150 out of their 200 years of statehood. After gaining independence from Spain in 1818 (Chile) and 1825 (Bolivia), the Treaty of Territorial Limits (1866) guaranteed 400 kilometres of coastline for Bolivia, which was later confirmed by the signing of another instrument in 1874. The War of the Pacific broke out in 1879 when Chile declared war on Bolivia and Peru. 

In 1884, Bolivia signed the Truce Pact, leaving its coastal territory under Chilean sovereignty. Twenty years of negotiations concluded in the 1904 Peace Treaty, which delimited the common border: the occupied territories remain in the possession of Chile. Nevertheless, Chile granted Bolivia free commercial transit between its ports on the coast and La Paz, but not fully sovereign access to the Pacific coastline.

II.             Natural resources

Foremost, the two countries share one of the most hydropolitically vulnerable water basins in Latin America, the Silala. Hydropolitical vulnerability is the “risk of political dispute over shared water systems”. Today, the once underground waters of the Silala flow on the surface, between Bolivia and Chile, through a particularly dry region known as the Atacama Desert, via canals constructed by a Chilean company in 1908. The canals were controlled by Chile and the water was used for steam-powered engines. After the introduction of diesel engines, the water became vital for the local mining industry and the main source of water for the residents of Antofagasta. 

In 1997, the Bolivian government seized control of the canals and stopped the waterflow unless Chile paid concessions retroactively for 40 years of water use, contrary to the original purpose of the canals (powering steam engines). To present day, Chile has refused to pay these concessions.

Furthermore, Bolivia is an oil-rich country, and energy-poor Chile needs a source of oil that Bolivia is currently withholding. 

III.           Diplomatic relations

Bolivia and Chile’s diplomatic relations first broke down in 1962, when then-President of Bolivia, Víctor Paz Estenssoro, severed ties with Chile following the diversion of the waters of Lauca river. After reconciliation in 1975, Bolivia decided to cut off relations again in 1978 due to the ongoing territorial dispute. The two countries have not had any diplomatic relations since. Although, Bolivia would benefit from having a trading partner such as Chile.

Using the ICJ as a battlefield

I.               Obligation to Negotiate Access to the Ocean (Bolivia v. Chile)

a.     Proceedings

After Bolivia’s loss of access to the ocean in the 19th century, 200 years of negotiation and tension followed. Thus, after the negotiations with Chile failed two years prior, in 2013, Bolivia decided to file proceedings before the World Court, looking to put pressure on its neighbour.

Bolivia argued that different agreements existed between the parties that either originated or confirmed Chile’s obligation to negotiate with Bolivia regarding sovereign access to the ocean, but it did not put forward the argument that Chile had an obligation to grant sovereign access. The legal bases included: 1920s diplomatic exchanges, communiques, declarations, and unilateral acts by Chile.

Chile denied the existence of such an obligation and claimed that the 1904 Treaty settled the issue of Bolivia’s sovereign access to the ocean through Chilean territory. 

In its 2018 judgement, the ICJ rejected Bolivia’s arguments and ruled that, based on the materials Bolivia submitted for review, there was no obligation to negotiate in this case. This is because in order for such an obligation to arise, the agreement’s “terms, subject-matter and conditions of the negotiations must demonstrate an intention of the parties to be legally bound.” The Court concluded with the disclaimer that its decision should not be interpreted as precluding the States from continuing negotiations “in a spirit of good neighbourliness.”

b.     Results

With its decision in the Access to the Ocean case, the Court failed to successfully resolve the 150-year-old conflict. Specifically, the Court failed to exercise its right to review evidence that had not been submitted by the Parties, which it holds under Articles 36 and 38 of the ICJ Statute. It ignored international human rights law and sustainability grounds on which Chile could have been bound to negotiate, as far as its judgement shows. An obligation may stem from the concern over the sustainable development of landlocked developing countries, since data shows that the most underperforming developing countries are landlocked. The existence of the international principle of sustainable development was recently confirmed in the Agenda 2030 for Sustainable Development.

The Declaration of President Yusuf, President of the Court, acknowledges that the ICJ failed to effectively resolve the dispute. President Yusuf recognized that the nature of judicial dispute resolution made it impossible to settle this historical, politically charged conflict in court, since “the law cannot claim to apprehend all aspects of disputes.” The court’s ruling on the law “may not put to an end the issues which divide the Parties or remove all the uncertainties affecting their relations.” Since Bolivia’s objective in filing the proceedings was political (i.e. pressuring Chile to negotiate), the State lacked genuine concern for a breach of international law. As such, the finding of no violation of law did not influence its stance on the subject. Due to the internal political climate at the time and Bolivians’ inherent connection to the coastline issue, to this day, both States maintain their views. Consequently, it is surprising that President Yusuf still considers that the ICJ’s work “facilitates the peaceful settlement of disputes above and beyond the realm of what is strictly legal,” since the decision had no impact. If the Court’s recommendation to continue negotiations “in a spirit of good neighbourliness” has done anything, it has drawn attention to the question of whether an issue this vital from the standpoint of sustainable development of landlocked States should be left up to the mercies of coastline countries.

II.             Dispute over the Share and Use of the Silala Waters (Chile v Bolivia)

a.     Proceedings

After Bolivia closed the canals, officials demanded that Chile provide Bolivia sovereign access to the ocean in exchange for the opening of the canals. In 2016, Chile instituted proceedings against Bolivia, claiming that the Silala are an international watercourse, and as per international law, it has the right to reasonable and equitable share of the water. 

Bolivia argued that the waters only flow across the border because of the artificial canals built in the 1900s. Since the waters originate from Bolivian territory, it claims ownership over the Silala. By 2019, Bolivia dropped its most controversial claim —that the Silala were not an international river — but it maintained that part of the flow was artificial. Consequently, Bolivia holds that it has sovereignty over the canals while Chile continues to deny this. Due to delays related to the pandemic, the ICJ has not yet issued a judgement.

b.     Results

While the case still awaits a decision, the Bolivian and Chilean governments took a step in the direction of re-establishing diplomatic relations in 2021. In May 2021, the Chilean Minister of Foreign Affairs declared “road map 2021”, an agreement of intent between the two states, which aims to normalise Bolivian-Chilean relations. Although the changes signal both parties’ desire to have a less combative relationship, neither the access to the ocean nor the Silala dispute were mentioned in the agreement, as both parties have confirmed that their stances on the two issues remain unchanged. Moreover, the negotiations did not entail talks of reopening embassies.

Nevertheless, the negotiations resulted in an agreement that envisages the establishment of working groups to address common issues such as border and integration and economic complementation. 

Here, the ICJ proved to be unhelpful in the settling of the dispute, due to the slow nature of the procedure. Instead, political will brought the States closer together. The new Bolivian President, Luis Arce, contrary to his predecessor, Evo Morales — who sought to gain political ammunition from the pursuit of the access to ocean issue — has been eager to develop a warm relationship with Chile from the beginning of his term. Thus, in both instances when the Court was asked to resolve the conflict between Chile and Bolivia, it failed to have a considerable impact on the dispute for the better, which highlights the limitations of judicial dispute resolution in international law.

By Lili Grosser

A graduate of Dickson Poon School of Law, King’s College London, soon to begin my LLM in Public International Law at Leiden University. My main interest lies in the intersection of international human rights, public international law and international and European public policy.

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