International Court of Justice. Obligation to negotiate acces to the Pacific Ocean (Bolivia v. Chile). Reply of the goverment of the plurinational state of Bolivia
| Páginas | 401-585 |
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EL JUICIO ENTRE BOLIVIA Y CHILE EN LA CORTE INTERNACIONAL DE JUSTICIA
Editorial El Jurista
INTERNATIONAL COURT OF JUSTICE
OBLIGATION TO NEGOCIATE ACCESS TO THE PACIFIC OCEAN
(BOLIVIA v. CHILE)
REPLY OF THE GOVERNMENT OF THE PLURINATIONAL
STATE OF BOLIVIA
VOLUME I
21 MARCH 2017
INTRODUCTION
1. This case raises the important question of the extent to which
a State is entitled to rely upon promises and representations made
by another State and, more specically, of the circumstances in whi-
ch one may insist that the other does not arbitrarily and unilaterally
close down negotiations to which the two States have committed the-
mselves to resolve a long- standing matter between them.
2. Bolivia’s case concerns “the non-compliance by Chile with its
obligation to negotiate in good faith a sovereign access for Bolivia to
the Pacic Ocean, and its repudiation of that obligation.”1377 Chile’s
obligation arises under international law from a course of conduct
over more than a century, including agreements with Bolivia and also
Chile’s own unilateral declarations, expressly and repeatedly afr-
1377 BM, para. 3.
HUGO LLANOS MANSILLA / CRISTIÁN CABRERA ORELLANA
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ming that, notwithstanding Bolivia’s cession to Chile of its coastal
territories under the 1904 Treaty, Bolivia should not become perpe-
tually landlocked. Through this course of conduct, Chile bound itself
to negotiate in order to grant Bolivia its own sovereign access to the
Pacic Ocean.
3. In its Counter-Memorial, Chile attempts to deny the reality
that has guided relations between the two States. The factual record
demonstrates that throughout the past century Chile and Bolivia
have been in agreement on three essential points:
– The existence of an obligation to negotiate in order to grant Bo-
livia its own sovereign access to the sea;
– The independence of that obligation from the 1904 Treaty; and
– A shared understanding of what a ‘sovereign access to the sea’
entails.
As was explained in Bolivia’s Memorial, it is the arbitrary and
unilateral repudiation of this position by Chile that led to the initia-
tion of these proceedings.1378
4. Chile’s Counter-Memorial fails to address Bolivia’s legal case.
It pursues a combined strategy of ignoring the applicable law, den-
ying the historical continuity and cumulative effect of the facts, and
recycling Chile’s mischaracterization of Bolivia’s claim as an attempt
to modify the 1904 Treaty, despite the express rejection of that argu-
ment by the Court in its Judgment of 24 September 2015.
5. First, in regard to the applicable law, Chile does not adequa-
tely address the point that obligations may result not only from ex-
press agreements, but also, as the International Law Commission
(ILC) has recognised, from the unilateral acts of a State1379. While
focusing on whether the many agreements and joint declarations
made by the Parties are legally binding or not (it being Bolivia’s con-
tention that they are binding), it is remarkable that Chile’s volu-
minous Counter -Memorial does not discuss estoppel or any of the
analogous doctrines in international law. Chile simply asserts cate-
gorically that: “[t]he objective intention necessary to create a legal
1378 BM, paras. 440-482.
1379 See International Law Commission, Guiding Principles applicable to unilateral
declarations of States capable of creating legal obligations, ILC Yearbook 2006 Vol.
II, Part II.
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EL JUICIO ENTRE BOLIVIA Y CHILE EN LA CORTE INTERNACIONAL DE JUSTICIA
Editorial El Jurista
obligation cannot be inferred from another State’s expectations, as
Bolivia suggests”1380.
6. It is Bolivia’s position that Chile’s obligations in this case arise
from agreements and unilateral declarations expressing its intention
to be bound. Further, the Court has recognized that even without
such express agreements and declarations, a mere course of con-
duct can indicate an intention to be bound based on “an admission,
recognition, acquiescence or other form of tacit consent to the situa-
tion.”1381 In this regard, Chile’s Counter-Memorial has failed to refute
Bolivia’s alternative argument that even if none of the multiple agree-
ments and declarations made by Chile expressed an intention to be
bound, quod non, Chile’s repeated representations over more than a
century created legitimate expectations for Bolivia, on which Bolivia
relied, thus giving rise to legally binding obligations for Chile.
7. Second, in regard to the facts, Chile ignores the historical con-
text and continuity of the dispute, including Chile’s own express and
repeated afrmations that Bolivia’s sovereign access to the sea must
be retained and resolved by negotiation. In a clear attempt to diminish
the cumulative effect of more than a century of its own consistent
conduct, Chile portrays express and repeated agreements and unila-
teral declarations accepting an obligation to negotiate as “sporadic”
diplomatic exchanges that “punctuated longer periods of silence”. The
facts indicate the exact opposite.
8. Beginning in the nineteenth century, and extending throughout
the twentieth century, Bolivia and Chile consistently and continuously
recognized their commitment to negotiate a settlement to put an end
to Bolivia’s landlocked status, which Chile had initially imposed by
force. This course of conduct was in furtherance of the Parties’ his-
torical understanding following Chile’s occupation of Bolivia’s coastal
territories in the War of the Pacic in 1879. In the 1884 Truce Pact,
Chile and Bolivia considered negotiations as a way to provide Bolivia
a sovereign access to the sea. This commitment was conrmed in the
1895 Transfer Treaty by providing for sovereign access through the
occupied Peruvian territories of Tacna and Arica once their status was
resolved as between Chile and Peru. The 1895 Transfer Treaty did not
1380 CCM, para. 4.18.
1381 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening), I.C.J. Rep. 1992, p.350, para 364.
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