Chile’s retaliatory claim

In a videotaped press conference posted by La Tercera TV Noticias on 28 March 2016 President Michelle Bachelet of Chile declared:

‘Should Bolivia materialize its announced law suit, Chile will present a cross-complaint (contra demanda) to preserve our rights, which are clearly recognized by the principle that every state having a river bank on an international water course has a right to use it for the benefit of its communities.’

This was Chile’s response to a March 24 announcement by President Evo Morales that Bolivia will prepare to sue Chile before the International Court of Justice (ICJ) over Chile’s deviation and use of water resources originating in the Silala springs close to the Chilean border, where Chile built water channels from Bolivian into Chilean territory starting at a location within Bolivia.

Three years earlier, on 24 April 2013 Bolivia placed Chile on the docket 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 sovereign access to a useful sea port on the Pacific coast.

Chile presented a preliminary objection challenging the Court’s competence to hear this case.  On 24 September 2016 this objection was turned down by a vote of 14 to 2.  Chile has the option to respond to the Bolivian demand in a counter-memorial presented on or before 25 July 2015 or abandon the case.

A conclave of Former Foreign Affairs Ministers advised Chile’s current Minister Heraldo Muñoz to reconvene Bolivia’s planned new demand in Chile’s counter-memorial to the original Bolivian demand.  This recommendation was reported in the narrative section under the videotaped conference mentioned above.

According to the definition of cross-complaint found at http://dictionary.law.com, “after a complaint has been filed against a defendant for damages or other orders of the court, the defendant may file a written complaint against the party suing him/her or against a third party as long as the subject matter is related to the original complaint.”

Bolivia’s original complaint is about Chile’s obligation to negotiate with Bolivia in good faith access to the Pacific Ocean.  Bolivia’s planned new complaint is about Chile’s use of Bolivian waters from the Silala spring sources.

It is unlikely the high-powered team of international lawyers representing Chile before The Hague on the original Bolivian demand will accede to introduce a cross-complaint on a totally different matter.

At her press conference President Bachelet added “the government of Bolivia speaks about dialogue, but the facts show that it is not inclined to any dialogue and that it resorts to international courts as its preferred tool.”

As documented in Bolivia’s original plea, Chile held negotiations with Bolivia on access to the Pacific Ocean for well over a century.  It is up to the Court to determine whether these negotiations failed on account of Bolivia’s refusal to accept terms offered by Chile or whether those terms were offered in good faith.

Conversely to the case of the Silala spring waters, since the middle of the 20th Century Chile deviates and uses the waters of the Lauca River, which originates in Chile and flows into Bolivia.  As a state having a river bank on an international water course, Bolivia protested against this action and broke diplomatic relations with Chile in 1962.

Chile alleged these waters originate in the Parinacota springs within its territory and do not affect the flow of water into Bolivia.  According to Chile, Bolivia did not follow up on reports approving the deviation and use of these waters on the Chilean side, which gave Chile the right to channel and use them as it saw fit.

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.  Should Chile fail to negotiate in good faith a resolution of these two fresh water claims through direct dialogue between the parts, Bolivia has a right under the terms of this Pact to present complaints against Chile at the ICJ, one of whose functions is to study and resolve these kinds of contradictions in the conduct of states.

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