Chile’s Counter-Offensive Runs into New Bolivian Demand at the International Court of Justice Walter Guevara

On 24 April 2013 Bolivia placed Chile on the docket before the International Court of Justice (ICJ) overa series of frustrated negotiations that would have granted this landlocked country access to the Pacific Ocean over Chilean territory.

Boliviasubstantiated its case in a memorial dated 15 April 2014.  In it Bolivia accuses Chile of failing to follow through on repeated formal offers to negotiate with Bolivia sovereign access to a useful sea port on the Pacific coast.Chile has the option to respond to the Bolivian demand on or before 25 July 2015 or abandon the case.

Adebate arose in Chile and Bolivia on the way this demand should be managed.  The issue was whether it should be managedexclusively on legal grounds, or whether complementary efforts should be made to pursuediplomatic efforts andcontrol media spinoffs beyond the Court.

Past squabbles in a nutshell

During the War of the Pacific (1879–83), Chile overwhelmed its neighbors Peru and Bolivia.  Peru lost three large provinces.  Its capital city, Lima, was occupied by Chile during three years.  A treaty signed in 1904under duress forced Bolivia to surrender to Chile its whole sea coast more than 400 kilometers long and an area of 120,000 square kilometers, which Chile had previously recognized in the 1874 Treaty as Bolivian territory.  This territory was rich in nitrates used at the time as fertilizers and to manufacture explosives.  Some of the richest copper deposits in the world were found there.  In 1971 Chilean President Salvador Allende nationalized the copper mines.  He said at the time ‘copperis Chile’s salary,’ and so it remains to this day.

The 1904 Treaty gave Bolivia free and permanent access to Chilean sea ports.  For all practical purposes this meant access to the Port of Arica, on territory conquered by Chile from Peru.  Arica had been one of Bolivia’s main outlets to the seasince Spanish colonial times.

The law cameafter the sword

Based on rights acquired by military victory, Chile’s position regarding Bolivian claims to its lost sea coast are highly legalistic.  Chile holds that the 1904 Treaty solved for all time all pending territorial issues with Bolivia.  Any attempt to review, improve or interpret this Treaty is regarded by Chile as a serious threat to international law and peace among nations. Compliance by Chile of the terms of this Treaty is an issue periodically raised by Bolivia.

In 1929 Chile signed a Treaty with Peru.  In a clause of the Treaty of Lima, held secret at the time, Chile ‘agreed’ it could not grant former Peruvian territory to ‘a third power,’ without obtaining Peru’s express approval.   This power could only be Bolivia.  According to Bolivian President Daniel Salamanca (1931-34),Chile locked up Bolivia and handed the key to Peru.

The sea, one offer at a time

On 19 December 1975, Chile agreed to grant Bolivia a sovereign corridor eliminating along its border with Peru.  The corridor would have ended close to the Port of Arica. Chile stated that this offer did not alter the 1904 Treaty in any way.

In compliance with the 1929 Treaty of Lima, Chile asked Peru for consent on its offer to grant Bolivia a sovereign corridor on former Peruvian territory.  Peru responded with a creative counterproposal: make the Port of Arica a tri-national entity.  Chile took this to be a denial of its proposal and closed the matter to this day.

In its demand against Chile before the ICJ, Bolivia holds that this is one of several offers made by Chile to grant Bolivia access to the Pacific Ocean.  According to the Bolivian demand,these offers add up to an obligation contracted by Chile to negotiate with Bolivia in good faith an access to the sea.  This claim is backed by the doctrine of unilateral acts of states,recognized by the ICJ in previous cases.

Bolivia’sinitial approach

Bolivia’s indigenous President Evo Morales invited former President Eduardo Rodríguez Veltzé, a respected jurist who had been President of the Supreme Court, to head Bolivia’s legal team before the ICJ.  Mr. Morales invited another political foe, former President Carlos Mesa, to head Bolivia’s public opinion efforts.  Mr. Mesa is a distinguished historian and a masterful media presenter.  Both men lie at the whitest extreme of Bolivia’s highly pluralistic ethnic spectrum.

Former presidents and ministers of foreign affairs were invited by Mr. Morales to complement this effort regardless of their political views or ethnicity.  President Morales coordinated this high-level team through a newly created Strategic Directorate of Maritime Vindication (DIREMAR).

The demand before the ICJ was left for the most part in the hands of a team of high powered international legal experts led by the cautious, low profile Harvard-educated lawyer Eduardo Rodríguez Veltzé.  Responding to circumstances that arose early in 2016, President Morales took personal charge of Bolivia’s political, diplomatic and media efforts.

Chile aims to change Bolivian public opinion

At the outset of the Bolivian demand President Michelle Bachelet of Chile leaned on the traditional legalistic position that there are no pending territorial issues with Bolivia.  On 24 September 2015the ICJ rejected Chile’s preliminary objection to its competence and accepted to hear this case.  This was the first time Chile had lost anything to Bolivia.  At that point President Bachelet changed tactics.

She replaced the respected, low profile lawyer who headed Chile’s Hague team with a high profile, extremely powerful political figure.  Mr. José Miguel Insulza, a non-practicing lawyer, was Secretary General of the Organization of American States (OAS) for a decade (May 26, 2005 to May 26, 2015).  Upon leaving this post Mr. Insulza returned to Chile as a potential presidential candidate.President Bachelet also hired Mr. Ascanio Cavallo, a well-known public relations and political consultant, to head Chile’s media efforts in support of its legal defense at The Hague.

A couple of days before March 23, when Bolivia remembers the defense of its sea coast in 1879 by a small bunch of civilians, Mr. Cavallo was interviewed by El Pais of Madrid, a widely respected newspaper read throughout Latin America.  In this interview Mr. Cavallo restated Chile’s traditional, highly legalisticresponse to the Bolivian claim.

At the same time Chile´s Foreign Affairs Minister Heraldo Muñoz presented a short video purporting to prove Bolivia has unparalleled access to the Port of Arica.  Locals of Bolivian ancestry were shown to be extremely happy asChilean citizens.  Bolivian residentswere shown to enjoy non-discriminatory, ethnically oriented educational facilities for their children.

Coincidentally Mr. Insulza was interviewed by La Razón, a pro-government Bolivian newspaper.   Question:  ‘How do you see Bolivia and Chile after the law suit?’  Response:  ‘Chile and Bolivia will be neighbors forever.  That is why they should respect each other, take care of each other and cooperate with each other.  Any other option is useless over the long term.  At the end of the law suit we will face each other alone, forced to share our days and to reach an understanding.’

The bottom line

This was an outstanding response.  When the law suit is over, politics remains on call.  Should the Court rule that Chile has contracted no legal obligation to negotiate with Bolivia an access to the sea, Chile nevertheless will be well advised to sit down with Bolivia at the negotiating table.  What remains to be determined is just how the two neighbors will understand their vicinity.

The Bolivian demand against Chile at The Hague is an attempt to test the good faith and political will of both nations to live together and to come to mutually beneficial understandings, as Mr. Insulza recommends.  They should be able to do so beyond the harm caused by one part which shouts and insults, as Bolivia often does, and the other which disdains and deceives, as Chile is wont to do.

President Morales hits back

The carefully orchestrated, three-sidedinitiative aimed by Chile at Bolivia’s Day of the Sea was blunted by President Morales’announcement of a new demand against Chile.  At the closing speech of the Day of the Sea Mr. Morales announced that Bolivia would demand Chile before the ICJ over Chile’s deviation and use of water resources originating in a cluster of Bolivian springs close to the Chilean border at Silala, another dispute of long standing.

With this announcement President Morales resumed the often bumpy dialogue with Chile over headlines.  Chilean Foreign Affairs Minister Heraldo Muñoz responded with the threat of a counter demand at the ICJ.  According to a group of former Chilean Foreign Affairs Ministers advising Mr. Muñoz, Chile should reconvene Bolivia’s planned new demand over the Silala waters in the counter-memorial to the original Bolivian demand over the completely different issue of Chile’s purported obligation to grant Bolivia access to the sea.  It is unlikely that this course will be adopted with the consent of the high-powered team of international lawyers representing Chile before The Hague on the original Bolivian demand.

It’s the politics, stupid

On February 21, 2016 President Morales lost a referendum on whether to change the constitution so as to allow him to be a candidate for re-election in 2019, when his present term will come to a close.  Many voices in Chile celebrated this defeat, interpreting it as a rejection of the president’s maritime policy.Bolivian initiatives on access to the sea are often dismissed by Chile’s authorities as attempts to generate internal support for the Bolivian government.  Given the widespread support of Mr. Morales’ policy towards Chile, these reactions can only be attributed to wishful thinking.  Contrary to the traditional Chilean position, there are a number of unresolved matters in the relations between Chile and Bolivia.

There is no question that good management of this dispute by both sides requires the delicate coordination of three different and complementary approaches:  proper handling of legal cases before the ICJ, skillful bilateral diplomacy and effective media impact on each other’s public opinion.  That is a balancing act which falls under the responsibility,and is affected by the temperament,of each chief of state.

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