Chile’s doctrine of artificial complaints Walter Guevara

President Michelle Bachelet of Chile spoke last March 30 at the annual conference of the American Society of International Law (ASIL), an organization whose purpose is to support and strengthen international justice.

Her central point was that “the abuse of international courts through artificial complaints can contribute to the erosion of the existence of these mechanisms,” a clear reference to Bolivia’s complaint against Chile before the International Court of Justice (ICJ) which meets at The Hague.

On 24 April 2013 Bolivia demanded Chile before the ICJ over a series of frustrated negotiations that would have granted this landlocked country access to the Pacific Ocean over Chilean territory.  Bolivia substantiated 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 a sovereign access to a useful sea port on the Pacific coast.  In accordance with Court procedure Chile has the option to respond the Bolivian demand on or before 25 July 2015.

Beyond surprising the event that hosted her, President Bachelet posed a veiled threat to the ICJ for having dared to reject Chile’s preliminary objection to the Bolivian complaint, an objection through which Chile claimed the Court lacks competence to hear this complaint.  On 24 September 2015 the Court dismissed Chile’s objection by a vote of 14-2.

Should Chile fail to negotiate in good faith other pending matters, Bolivia is planning further complaints.  On 26 March 2016 President Evo Morales of Bolivia announced the intention to study a complaint against Chile’s channeling and industrial use without pay of water that originates in the Bolivian Silala springs close to the Chilean border.  Chile claims this is an international river.

Conversely, Chile deviates and uses the water of the Lauca River, which originates in Chile and flows into Bolivia.  In protest against this action Bolivia broke diplomatic relations with Chile in 1962.  Chile admits this is an international river, alleging that Bolivia did not follow up on various reports approving the deviation and use of Lauca River waters on the Chilean side.

Should Chile fail to negotiate in good faith a resolution of these claims, Bolivia has a right to present complaints against Chile at the ICJ, one of whose functions is to resolve these kinds of contradictions.  Both countries signed the 1948 Pact of Bogota under which most Latin American nations agreed to submit their differences to the ICJ at The Hague.

President Bachelet places herself above the mechanisms of international law and multilateral justice.  She assumes the country she represents has an absolute power to decide which complaints are artificial and should not be heard because they constitute an abuse of international courts and which are legitimate and should be heard by the ICJ.

ICJ Magistrates present at the ASIL conference could have hardly ignored the import of these remarks.  According to President Bachelet, Chile has a unilateral right to filter out complaints deemed artificial and abusive. The appropriateness of a demand against Chile is decided by Chilean officials, not by the Court.

That is a new doctrine, worthy of consideration by the Magistrates at The Hague.  In the light of this declaration it would not be surprising if Chile considered the Court’s acceptance of the Bolivian complaint as a threat to her sovereignty.

Mr. Jose Maria Insulza, Chile’s knowledgeable Agent in Charge of this case at the ICJ, tried to contain the damage.  “She’s not referring to any specific thing.  She’s making a general statement.  The tone was very appropriate,” Mr. Insulza said according to Felipe Vargas, El Mercurio’s special envoy to Washington in his March 30 report.

Bolivian President Evo Morales pointed out that the only artificial thing about Bolivia’s Silala claim is Chile’s construction on Bolivian soil of works to deviate and use Bolivian waters on the Chilean side of the border (La Razon, 2 April 2016).

Mr. Guevara is a consultant on democratic development.

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