Chile on the docket

The Bolivian demand against Chile is an act of law, not an act of war.

By taking Chile before the International Court of Justice (ICJ) Bolivia recognizes and asserts the primacy of international law.  Through this legal action Bolivia announces to the international community that it places full trust upon a peaceful mechanism set up by the United Nations for the resolution of international disputes.

In response to a public challenge by Chile, Bolivia said it intends to abide by the decision of the court.  This was an unusual declaration because the challenge to abide by the court’s decision was posed by the party brought before the court.

During 2015 Chile formally questioned the competence of the ICJ to hear this case.  When the court ruled against Chile’s preliminary objection, influential commentators in Santiago argued that Chile should quit the Pact of Bogotá, the treaty which gave birth to the ICJ. Sober heads pointed out that such a decision would apply to future cases, not to the current demand which is already in process.

Some Chilean commentators regard Bolivia as a primitive place run by illiterate Indians who take power by force and raise the dispute with Chile as a cheap way to generate internal support. It is not surprising to find in the Chilean press triumphalist, morally superior takes regarding anything that relates to Bolivia.  What is surprising is to find these attitudes reflected in top media of the Western world.

Except when otherwise convenient, Chile has held Bolivia’s claim is a strictly bilateral issue. In 1929 Chile signed the Lima Treaty with Peru.  A clause of this treaty directly affects Bolivia’s relation to Arica, the seaport that handles most Bolivian trade since colonial times, when it belonged to Peru.

As a result of the War of the Pacific Peru lost two large sea coast provinces.  One of them includes Arica, one of the few useful seaports close to the main cities of Bolivia.  A clause of the Treaty of Lima stipulates that the concession by Chile of land formerly belonging to Peru to “a third power”requires the explicit consent of Peru.  That power could only be Bolivia.

Ever since the end of the War of the Pacific (1879-1883), Bolivia has pleaded with Chile to grant it a sovereign access to the Pacific Ocean. But, according to Chile, the only way to avoid splitting Chile in two with a Bolivian corridor is for this corridor to run along the current border of Chile with Peru, ending in the Port of Arica.  This solution requires the formal consent of Peru.

On February 8, 1975 Chile formally offered Bolivia such a corridor.  In compliance with the 1929 Treaty of Lima Chile asked Peru for its consent to proceed along these lines.  Peru responded with a counterproposal.  According to Peru the seaport of Arica should become tri-national.  Conceivably, a multilateral organization could supervise its works.

Chile took this as an outright rejection by Peru of its proposal to grant Bolivia a corridor to a seaport.  Diplomatic relations between Chile and Bolivia, suspended in 1962, had been re-established following Chile’s offer. By 1978 it became clear that Chile discounted the Peruvian counterproposal and closed the door on all further negotiations on this matter.  Once again, Bolivia broke diplomatic relations with Chile.

In 1979 the Organization of American States approved a resolution, with Chile’s sole dissenting vote, to the effect that Bolivia’s access to the sea is a matter of hemispheric concern, turning this into a multilateral issue.  The admission of Bolivia’s demand by the ICJ, an organism of the United Nations, is further proof that Chile’s efforts to exclude all third parties from helping to settle this issue are futile and pernicious.

Chile officially claims that there are no pending border issues with Bolivia.  It argues that all such issues were settled by the 1904 Treaty.  Chile holds that this treaty cannot be revised without placing international law and world order at risk.  The considerable efforts Bolivia has undertaken since 1904 through diplomatic channels, direct negotiations between heads of state, legal action before the League of Nations and the United Nations, resolutions of international organizations such as the OAS and presentations before the Court of public opinion, are dismissed by Chile as mere “aspirations.”

Chile claims that Bolivia currently enjoys unparalleled access to Chilean seaports in full compliance with the terms of the 1904 Treaty.  Bolivia has presented proofs that show otherwise before a variety of international organizations, but Chile pretends to act as the only judge of this matter.  Chile shows a permanent predisposition to hear out Bolivia’s aspirations and complaints for an indefinite time, but not to act upon them.

According to Chile’s preliminary objection, Bolivia’s demand asked the ICJ to force upon Chile a unilateral revision of the 1904 Treaty.  Chile argued that the 1904 Treaty settled all possible disputes concerning limits between Chile and Bolivia, adding that Bolivia’s demand hides a request that the ICJ should force upon Chile a unilateral revision of this Treaty.

Chile strengthened its request that the Court declare its lack of jurisdiction by pointing out that Bolivia’s demand turns on an issue that was settled by a treaty signed about a half a century prior to the Pact of Bogota of 1948, which gives jurisdiction to the ICJ over disputes after that year.

After suffering a resounding defeat in the War of the Pacific Bolivia signed the 1904 Treaty under extreme duress.  In order to pressure Bolivia into signing this treaty, Chile choked Bolivian commerce, which then and now moves for the most part through ports on the Pacific Ocean controlled by Chile.

 

Today Chile seeks to brush off Bolivia’s legal action before the ICJ by appealing to the understandable interest of major powers in the stability of borders, no matter how acquired.  The time when open land grabs were commonly practiced and accepted is over.  Border violations during and after WW II have been punished for the most part.  A few notable exceptions prove the rule.  Chile has zealously joined the ranks of former usurpers who uphold the primacy of international law.

Bolivia does not question the results of such historical processes, no matter how unjust they might be.  The basis of the Bolivian demand against Chile is that at least since 1895 Chile, in pursuit of its own self-interest, has made a number of official, publicly recorded promises to negotiate with Bolivia a sovereign access to the Pacific Ocean.

Relying on the evolving doctrine of unilateral acts under international law, Bolivia has asked the ICJ to rule that Chile has an obligation to pursue with Bolivia negotiations held in good faith regarding these promises. That is the substantive question the ICJ has decided to hear.  Chile has until 25 July 2016 to file its response to Bolivia’s demand.

In the meantime Chile and Bolivia have plenty of time to start negotiating a pragmatic solution to this impasse.  There are numerous reasons why Chile would come out ahead by trying to accommodate Bolivia in earnest.  One of them is that the substance of Bolivia’s demand would vanish if Chile took this bull by the horns.

Chile quibbled with some of the considerations made by the ICJ in its decision to deny Chile’s preliminary objection.  It objected to the Court’s view of the War of the Pacific.  At the same time Chile found that some of the antecedents set forth by the ICJ in this decision anticipate a resolution of the substantive issue in Chile’s favor.

According to Chile the ICJ decided in the preliminary objection that it could not rule on the outcome of negotiations between Chile and Bolivia. But, at the same time, Chile does not accept that the Court might rule that Chile should negotiate with Bolivia a sovereign access to the sea.

Chile claims the trial will not start with a clean slate. According to this view, under the best case scenario for Bolivia, Chile will be enjoined by the Court to sit with Bolivia at the negotiating table.  That is all.  In fact this particular trial will be fully engaged only when Chile presents its response to the Bolivian demand on July 25, 2016.  Thereafter the Court will be free to rule according to its findings, without any constraints posed by considerations made in its decision on the preliminary objection.

Chile believes it will comply with an adverse decision of the Court by negotiating with Bolivia about anything and everything for any length of time.  This view skips over the substantive issue before the Court, namely that Chile has an obligation to negotiate in good faith with Bolivia sovereign access to the Pacific Ocean.  It is up to the Court to decide:1) whether such an obligation exists, and 2) what is the extent of such an obligation if it exists.

Chile is rightly proud of the quality of its democratic institutions and practices.  It has a solid economy, based mainly on the fabulous copper deposits found on territory conquered from Bolivia and Peru.  Its superbly educated elite is proud of its European origins. Chileans of indigenous origins complain they are treated as second class citizens.

Chile ranks high on transparency ratings and enjoys a standard of living that brings it close to the leading nations of the world.  Its army, navy and air force are the most capable and best financed in Latin America.  A Reserved Copper Law and its amendments enable the military to spend at least 10% of the annual copper revenue beyond public inquiry.

Chile’s success is the product of penury. Its territory lies like the sheath of a very thin sword caught between the rough Western coast of South America and the forbidding Andes Mountains to the East, which separate Chile from Argentina.  Chile overcame this meager legacy by conquering a desert on its barren North.  The Atacama Desert is one of the driest places on earth.  It is also a place where some of the richest copper deposits can be easily mined.  To this day Chile depends on copper exports for its survival.

By contrast Bolivia’s journey towards democracy and economic development has been uneven.  From the start Bolivia suffered from the spoliation of its natural resources.  Spain held on to Potosí, the richest silver mine the world has ever known, from 1545 until 1825, when Bolivia finally gained its independence.  Silver ran out, but it was replaced by tin, mined to this day in Potosí.

Today Bolivia depends massively upon the export of gas, minerals and soy beans.  In spite, or perhaps because of its natural wealth, Bolivia’s educational system and armed forces are relatively weak.  Extreme poverty remains a problem, although it has been significantly reduced in the last decade.  Efforts to wean the economy away from the extraction and exporting of natural resources have been meager.

The vast majority of Bolivians are of mixed origin.  Ethnic discrimination is illegal and no longer open.  President Evo Morales proudly proclaims himself an Indian.  Bolivians of all origins yearn for a sovereign access to the Pacific Ocean.  None forget the defeat suffered in the War of the Pacific at the hands of Chile.

The climates and economies of Chile and Bolivia complement each other.  Ethnic, family and business ties are common.  There is something artificial about the dispute that separates the two countries.  Many Chilean observers over the decades have pointed out that it is in Chile’s best interests to stop beating around the bush and start addressing this open wound in earnest.

Articles on the subject in the most prestigious newspapers and magazines of the English speaking world often make light-hearted fun of Bolivia’s navy and this country’s evident shortcomings.  They tend to ignore aspects of this dispute which are not immediately appealing to readers.  Chile is portrayed as a long suffering victim of a nearly barbarian neighbor, buttherein can be found a story waiting to be told.

Walter Guevara Anaya

Democracy Development Consultant

2016

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