Chile and Bolivia: A New Confrontation in The Hague

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‘Sea for Bolivia’. Credit: EFE Agency

By: Jose Jofre Leal / Source: DiarioUChile / The Dawn News / March 20, 2018


There are few voices in Chile capable of opposing the dominant and elite narrative which thinks that there is nothing to discuss with Bolivia in the country’s claim for the recovery of the maritime access to the Pacific, which was lost 137 years ago.

In general, the Chilean political class, with very few exceptions, is usually aligned with the idea that International Treaties must be strictly respected. Thus, even if the world has changed, as it has done in almost a century and a half and that Chile’s energy, water and economic needs in the northern part of the country require collaboration with our neighbors in southern Peru, western Bolivia and the Northern Argentina, the population is often aligned in this position where emotions prevails and it often manifests in ultranationalist outbreaks.

An Outdated Chauvinism.

The Chilean population, for the most part, is influenced by a political class, which is nationalist in the discourse, but has not hesitated to deliver the country’s natural resources to the highest bidder, as has happened in the ​​maritime, mining and forestry areas. The investments from abroad are an important part of the Chilean pension funds which are managed by foreign economic groups who often shelter their financial assets in tax havens.

In support of this policy, the dominant media, managed by the sectors of the Chilean political and economic right, are responsible for presenting the uncertain possibility of yielding a sovereign exit to Bolivia to the Pacific Ocean as a foolish proposition. An idea of ​​feverish minds or, as it can be read in social networks, “traitors to the country” “that insult the memory of those soldiers who died to defend that land” or who try to minimize the neighbor, make fun of their origin, offend their pretensions and visualize their political strategies, as typical of demagogues or “not very serious politicians”. Ignoring in an unforgivable way, that the territories that currently belong to the Great Chilean North were acquired through invasion and military conquest, relegating, in the case of Bolivia, this country to its current landlocked condition.

At this point, most are ignorant opinions. Since Bolivia hasn’t requested Chile a sovereign and immediate exit to the Pacific Ocean. The request aims to force Chile into a discussion for this demand. The way in which the request will be presented will be related to the “national feelings” “the unwavering defense of our territory” “the respect for our fallen heroes” and where chauvinism and incendiary declarations along with the most absurd calls for armed self defense in response to those that want to “take away what it is ours”.

A breeding ground for hateful minds. Minds that often call upon a war that they and their children won’t fight, since there will always be an excuse so that the most humble and least fortunate are the ones that face the conflicts between our peoples. Characteristics of an outdated Chauvinism that must end in pursuit of the collaborative relationships between our peoples.

This maritime confinement has meant a harsh reality for Bolivia with a verifiable economic impact. Jeffrey Sachs pointed out in a study done a few decades ago “that a country with no coastline loses around 0.7% of their annual growth due to their confinement”. Countries that rely on other countries for transit, face bigger transport and logistic costs which drives up their foreign commerce. This includes Switzerland as well. As a general rule, Coastal Countries have a 66% bigger per capita income than the countries without a coast.

Let’s not forget that this confinement is considered as a severe thorn in the side of the aspirations of Bolivia to retake their access to the Pacific Ocean in a sovereign way. Not only under the conditions established by the Treaty of 1904, which the Bolivian vision saw as the establishment of a Bolivian Litoral Department under Chilean military intervention, without access to their own ports, they face many difficulties with transportation and Chilean administration in their customs system. A Peace and Friendship Treaty signed on October 20, 1904.

A Treaty that recognized the Chilean domination of the occupied territories after the war and which gave Bolivia the right to free commercial transit on the territory and on the Pacific ports, some economical compensation and the construction of the railroad between Arica and La Paz. However, according to the Bolivian demands, “the treaty has been partially fulfilled, and didn’t resolve the aftermath of the confinement nor did it end the negotiations between Bolivia and Chile about a sovereign access to the sea”.

The last lines of this idea have been put in the Book of the Sea, introduced by the Plurinational State of Bolivia in 2014. A document that explains why Bolivia started on June 13, 2013 a process to “obtain the recognition on behalf of the International Court of Justice (ICJ) that forces Chile to negotiate an agreement to guarantee the sovereign access of Bolivia to the Pacific Ocean”. Basing this claim on the will of Chilean government to assume the commitment through a series of negotiation processes or bilateral dialogues, and on Chilean declarations regarding the previously mentioned processes.

After this presentation by the Bolivian government, Chile denounced in July 2014 a preliminary incompetence objection to the Court, arguing that a favorable resolution to the Bolivian pretensions would modify the 1904 Treaty which fixed the limits between both countries. In September 2015, the ICJ in The Hague recognized the demand but delimited the controversy and emphasized that they were not capable of predetermining the actual result of an eventual bilateral negotiation.

After this first response of the Chilean government, the Bolivian counterpart delivered in March 2017 their reply to the Chilean counter memorial of 2016. In said reply, the government of La Paz presented to the ICJ “a series of economical, historical and juridical arguments which aim to show the unfilled commitments of Chile”. On September 2017, the Chilean delegation gave their plea before the Bolivian reply while ending the written stage of the process.

The Chilean plea of 196 pages detailed 3 fundamental lines of argumentation:

  1. The intangibility of the 1904 Treaty, which established the permanent dominance of the territories conquered by Chile during the Pacific War.
  2. That there is no obligation to engage discussions, since it would denaturalize bilateral conversations;
  3. The Court publicly stating that this case is not relative to the right of Bolivia to a sovereign access.


Negotiating as a Desirable Behaviour

Five years later, on March 19, 2018, both parts started their oral presentations after the previously mentioned parts of the process, where Chile and Bolivia have discussed head to head the Bolivian demand to Chile to participate in negotiations and comply with their commitments regarding a sovereign exit to the Pacific Ocean. An oral stage that will allow us to see the written documents, which are made public, and analyze in a greater depth the arguments of each side that is involved and the possibilities of the outcomes .

When this process of argumentation comes to an end, we will still have two stages. The so called Deliberation Stage where every judge studies the submitted oral and written background. Then they form a legal decision; discuss it among themselves to arrive to a unanimous or mayority agreement to dictate the definitive ruling. Once it is definitive, both parts will be called to be present for the reading of the ICJ ruling. Then, once both sides hear the decision, the last stage is the Fulfilment of the Decision. There are no predetermined terms for these last two phases of a process that began in 2013 and which will have its end depending on when the judges of the Court observe the complexity of the case.  

In internal documents destined for the press of the Chilean Ministry of Foreign Affairs, it is stated that legally, behind the Bolivian demand there is a confusion between aspiration and right. However, regarding such a transcendent right, inside the Chilean Ministry of Foreign Affairs they affirm that it would affect the territorial integrity of Chile and so it can not be inferred from assumptions or expectations. Argument exposed in the framework of the development of the so-called expectative rights, which has been presented by Bolivia in the past years in The Hague. Rights defined in the legal field as latent rights, in the framework of unilateral declarations, which have not been perfected and which are based on the hope or possibility of obtaining a future benefit and which may become legally protected or effective rights in the future. it is clear from Bolivian legal documents that have served as an input for their claim in The Hague.

At the time, in an article prepared in 2015 when Chile and Bolivia were preparing their arguments to see if the ICJ in The Hague would determine that it was “competent” to respond to Bolivia’s request, I recorded the words of former Bolivian President, historian and official spokesman of the Bolivian maritime demand, Carlos Meza, who said: “The legal basis of the Bolivian demand are the so-called unilateral acts of the States, which in the case of Chile were made outside the 1904 Treaty and established innumerable formal acts and commitments of the Chilean State to the Bolivian State to negotiate over a sovereign access to the sea… We do not intend to ignore the treaty of 1904, that is a highly sensitive issue that does not fit the truth and can have ambiguous interpretations. Neither directly nor indirectly, because we respect the architecture of international treaties, since they allow the world to function without alterations”.

Meza’s words clarify that Bolivia wants the International Tribunal to force Chile to negotiate the access to the sea with La Paz “in good faith”. This claim has an ethical dimension that escapes the cold diplomatic world and it could be the main storyline in a court which not only issues opinions based exclusively on political or legal criteria, but has managed to be impregnated with other topics that the current international dynamics have been delivering. The great fear of Chile? For The Hague to define unilateral acts and bilateral dialogues between both countries, in accordance to assumed commitments, so that Bolivia recovers its maritime quality.

For Meza, the maritime theme “is a State policy” and for that reason former presidents Jorge Quiroga and Guido Vildoso traveled to Holland. “That we have major or minor differences with President Morales does not take away even a millimeter that Bolivia, as a whole, is a nation whose main objective is to return to the sea with sovereignty” said the former Bolivian president. “Let’s make history, with the truth, with the right to do so. We are convinced that we will achieve the justice that corresponds to Bolivia “, said the Bolivian leader, Evo Morales, prior to the allegations in a lunch with a large delegation of his country.

In Chile’s case, the delegation that went to The Hague is lead by the new chancellor of the Chilean right-wing government, writer Roberto Ampuero (former Communist, with residence in Cuba and the former RDA during Pinochet’s dictatorship). With Ampuero, parliamentarians from all the political parties traveled under the slogan “The maritime issue is a state issue”. The large Chilean parliamentary delegation adds to the defeated former presidential candidate, Senator Alejandro Guillier, along with Socialist Senators Isabel Allende and José Miguel Insulza, also former Secretary General of the OAS,. The right-wing parliamentarians Felipe Kast, Andrés Allamand and Issa Kort. Also Jorge Pizarro (Christian Democrat), Ricardo Lagos Weber (PPD) and Vlado Mirosevic (Broad Front).

On Monday 19 and Tuesday 20 of the current month, Bolivia, through its international agents, began the argumentative stage before the 15 judges of the Court, elected by the General Assembly of the United Nations and its Security Council. Judges of different nationalities who also represent the different models and legal systems that coexist throughout world. A Court chaired by Somali Judge Abdulqawi Ahmed Yusuf and seconded by Chinese Judge Xue Hanqin. After a very brief recess, the Chilean delegation will present its arguments on March 22 and 23, which will be the oral expression of what was presented in the July 2016 countermemory.

Just as I presented in a previous article (in May 2015) when the ICJ had to define its competence before the Bolivian lawsuit against Chile, and which is now in full force: whatever happens in The Hague, the reality of northern Chile, western Bolivian and southern Peru -and even Northwest Argentina- requires collaborative policies: energetic, cultural, migratory, economic, mining, infrastructure policies, and cooperation, will, resources and efforts. To think of a strategically sustainable South that faces the challenges of the 21st century with criteria of development that favors the people, political union and that expands our cultural and historical ties. All this requires generous views, both from La Paz and from Santiago. Facing The Hague with a perspective of the future, beyond blind political calculations, can be the first step to start walking together, maybe not holding hands, but at least without elbowing each other.


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