In the 1883 War of the Pacific Bolivia lost about 400km of Pacific coastline to Chile. It’s been landlocked ever since.This hasn’t stopped Bolivia – hopefully – maintaining a navy, however, or celebrating the Day of the Sea. In fact the idea of reclaiming sea access is a bit of a national obsession. Today we went to the National Museum for coastline. In the lobby, in big, gold embossed letters it said:
Bolivia has not lost and will never lose its right to claim its access to the sea as an indispensable attribute of life. The coast was and will be of Bolivia.
And now, as of April this year, they’re taking that claim off the wall of their museum and to the International Court of Justice in the Hague.
The case at the ICJ
I didn’t finish my law degree, and there are good reasons that’s the case. But my rough understanding of Bolivia’s case is this: Chile has an obligation under the Bogota Treaty to negotiate in good faith towards granting Bolivia sovereign access to the Pacific Coast and has breached that obligation by not agreeing to negotiate. States party to the Treaty agreed to prefer peaceful means to settle regional disputes and empowered the ICJ to adjudicate compliance.
Bolivia’s case has been described as reasonably strong and ridiculously weak. The major argument against the case seems to be about admissibility. But there’s something else I don’t really get. It’s one thing for Bolivia to claim that Chile has an obligation to negotiate, if indeed that’s what the Bogota treaty obliges. But it seems another to say they have to negotiate towards an outcome which is favourable to Bolivia. Why could they not, for example, make a similar claim to Colombia’s coastline and oblige them to negotiate towards that end. Or for Chile to just turn the tables if Bolivia gets what it wants.
(It reminds me of an excellent Chasers War on Everything sketch parodying The Secret… Don’t worry Chile, just visualise the coastline back!)
The other thing that interests me is the apparent importance of “sovereign access”. There’s a difference between Bolivia really wanting access to Pacific ports (okay, I get why that’s important) and wanting to expand its borders. The latter seems to be out and out nationalism and a poor reason for Bolivia to get its way.
I had a feeling I could count on Daniel Jackson to offer a more correct legal analysis. Uplifted from his comment he says:
Bolivia is not basing its substantive claim on the Pact of Bogota – that is merely the basis for the Court’s jurisdiction. Rather Bolivia claims 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.” Thus Bolivia seems to be invoking two bases for the obligation: agreements between the countries and unilateral acts by Chile.
In terms of agreements between the parties, I assume Bolivia will rely on an exchange of notes between the Governments in 1950, in which they agreed to enter into negotiations on the issue. Exchanges of diplomatic notes certainly can constitute a binding international agreement, but whether the Court would find an intention to create legal obligations in this case is less clear. Unilateral acts can also create obligations in international law, but again the key question is likely to be whether the Court would infer an intention to be bound by the statements in question.