Bolivia v. Chile: Old Story, New Chapter

By: Ronald Bruce St John, Guest Scholar at the Council on Hemispheric Affairs 

After more than a century of often frustrating negotiations between neighboring Chile and “the Plurinational State of Bolivia”, in April 2013 La Paz took its quest to gain sovereign access to the Pacific Ocean before the International Court of Justice at The Hague. The Bolivian decision to turn to the Court for the first time in its history highlighted the seeming futility of additional bilateral talks with Chile as well as rapidly changing economic realities in the region. In its April 2013 application to the Court, Bolivia demanded the obligatory cooperation of Chile to reach an agreement with Bolivia in granting La Paz sovereign access to the Pacific Ocean. After the Court agreed to rule on its jurisdiction in the case, Bolivia and Chile presented oral arguments during the first week of May 2015.

Chile opened the proceedings, arguing that the 1904 Treaty of Peace, Friendship, and Commerce between Bolivia and Chile had definitively resolved the issue suggesting that what Bolivia really desired was either a renegotiation of the 1904 treaty or the negotiation of a complementary agreement. Chile then noted that Article VI of the Pact of Bogota (American Treaty on Pacific Settlement) excluded the Court’s jurisdiction from any matter settled by arrangement before the Pact was signed in 1948. Chile responded by asking the Court to find that Bolivia’s claim was not within the Court’s jurisdiction.

Chile also spent considerable time arguing that a decision on the part of the Court to accept jurisdiction would undermine the authority of Article VI of the Pact of Bogotá, challenging the stability of extant borders and the present sovereign territory throughout the region. Given the unique character of the Bolivian case, this aspect of the Chilean argument was both not well argued and of questionable legal basis. Outside the scope of the case at hand, the logic applied here was largely irrelevant; however, it might become germane if the Court would eventually accept jurisdiction.

Based on Article XXXI of the Pact of Bogota, Bolivia argued that the Court had jurisdiction in the case. Also, it noted that Chile had promised ever since a Truce Pact had been signed in 1884 to allow Bolivia retain sovereign access to the sea. According to Bolivia, this understanding did not end with the 1904 Treaty; on the contrary, Chile repeatedly affirmed thereafter that it would negotiate Bolivia’s sovereign access. In making this argument, Bolivia stressed that it had not come before the Court to reject the 1904 treaty or to reopen agreed upon issues; instead, it came before the Court because it had rights under international law, including the right for Chile to complete its obligation to negotiate sovereign access to the sea. Where Chile spent considerable time laying out the merits of its own claim, including the applicability of the 1904 treaty to the case, Bolivia focused on the matter at hand, the Chilean challenge to the jurisdiction of the Court to hear and resolve the claim of Bolivia. Arguing that Chile sought to dismiss Bolivia’s case on its merits, Bolivia asked the Court to find that Chile was obligated to negotiate sovereign access to the sea and that this obligation must be performed in good faith.

In the course of their respective oral arguments, Judge Christopher John Greenwood and Judge Hisashi Owada addressed a string of separate questions that appeared to signal the Court might decide it had jurisdiction in the case. Judge Greenwood asked Bolivia to identify the date on which an agreement relating to the negotiation of sovereign right of access was concluded. Noting that no principle of international law required a specific date for an agreement, Bolivia responded that there was no single, magic moment on which such an agreement had been concluded; instead there were different instances and times in which Chile agreed to negotiate sovereign access. Stating that “sovereign access to the sea” was not a recognized term under international law, Judge Owada took it upon himself to ask La Paz and Santiago to define the phrase. In written responses, Bolivia and Chile essentially agreed that sovereign access to the sea in this case meant that Chile would be granting Bolivia its own access to the Pacific Ocean with inherent sovereignty which conforms to international law. In their written responses and their subsequent comments on the response of the opposing party, Bolivia and Chile repeated their respective arguments that were made earlier before the Court. But, the questions posed by Judge Greenwood and Judge Owada appeared to go beyond the issue of the Court’s jurisdiction and then began to query the root cause of the dispute. In so doing, the Court suggested that it would likely either accept jurisdiction in the case or simply defer that decision as it moved forward to consider the merits of the case.

Both La Paz and Santiago expressed their conviction regarding the strength of their respective arguments and expressed belief that the Court will rule in favor of their respective arguments. In the more than 100 cases involving jurisdiction brought before the Court, it has accepted jurisdiction in approximately 50% of them, so precedent appears to favor neither Bolivia nor Chile. If the Court comes to accept jurisdiction, the case will surely drag on for years to come. If the Court comes to reject jurisdiction, Bolivia’s decision to take the case before the international bench could backfire and could well be the final chapter in a controversy dating back to 1884. If the Court decides it does not have jurisdiction in the case, Chile is unlikely to seek further negotiations with La Paz.

By: Ronald Bruce St John, Guest Scholar at the Council on Hemispheric Affairs 

COHA Guest Scholar Ronald Bruce St John first visited Bolivia in 1968 in the course of researching a Ph.D. dissertation on Peruvian foreign policy. Since that time, he has published widely on Andean issues, including Bolivia’s quest for a Pacific port. His latest book on the region is Toledo’s Peru: Vision and Reality (University Press of Florida, 2010).

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Featured Photos: Bolivian President Evo Morales and Chilean President Michelle Bachelet. From: Gobierno de Chile, Wikimedia Commons,ón_bilateral_con_el_Presidente_de_Bolivia,_Evo_Morales_(16211299787).jpg

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