On 24 April 2013 Bolivia instituted proceedings against Chile at 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 Application on or before 25 July 2015. Full proceedings of this case are available at www.icj-cij.org/docket/index.php?p1=3&p2=3&case=153.
A carefully orchestrated, three-sided communications initiative aimed by Chile at Bolivia’s Day of the Sea last March 23 was blunted by President Morales’ announcement of a new complaint against Chile. At the closing speech of the Day of the Sea Mr. Morales announced that Bolivia would institute proceedings against 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 the headlines.
Chilean President Michelle Bachelet responded with the threat of a counter complaint at the ICJ (http://www.laterceratv.cl/index.php?m=video&v=49424). According to a group of former Chilean Foreign Affairs Ministers advising Foreign Affairs Minister Heraldo 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 (http://www.t13.cl/noticia/politica/ex-cancilleres-responden-bolivia-silala-es-rio-internacional).
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. They will point out to President Michelle Bachelet of Chile that it is inconsistent to claim Bolivia’s announced law suit against Chile is “artificial” and frivolous while making a huge fuss about meeting the latest verbal threat of a future law suit with an immediate panicky response aimed at reconvening Bolivia’s allegedly empty rhetoric in the counter-memorial to the on-going Bolivian law suit.
On 15 July 2015 Chile presented a preliminary objection to the current Bolivian complaint claiming the ICJ lacks competence to hear it on its merits. On 24 September 2015 the Court dismissed Chile’s objection by a vote of 14-2.
Perhaps unwittingly, President Bachelet appeared to send a message questioning the ICJ for having dared to reject Chile’s preliminary objection against an “artificial complaint.” That was the import of her closing statements while delivering the Grotius Lecture at the American Association of International Law (ASIL) in Washington DC last March 30. The full video of this presentation is available at (www.asil.org/resources/2016-annual-meeting).
Anybody who believes courts are meant to settle differences regardless of whether the party brought before the court declares they are trivial or abusive must have been baffled by President Bachelet’s confident statement that strict respect for treaties forecloses law suits about these differences when one party deems them artificial.
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.
If the Bolivian planned complaint about the Silala water trickle is so minute and frivolous, how come Chile defends every drop of these waters with tooth and nail, going to the extreme of announcing a counter-complaint in the counter-memorial to the current Bolivian law suit against Chile?
By espousing contradictory arguments about the origins and use of the Silala and Lauca waters Chile shows disdain and deceit towards Bolivia. These are not the best ingredients for a good neighbor policy. Chile’s position towards Bolivia is inconsistent with its desired image as a respected member of the international community.
Bolivia has gone before the highest International Court of Justice established by the United Nations 70 years ago in order to seek redress from Chile through an entirely peaceful process. Chile claims its relations with Bolivia are a strictly bilateral matter in which no third party can be allowed to meddle.
Chile is a champion of the universality of human rights and is proud of having highly competent staff at all levels of the United Nations, causes which are multilateral by definition. An exception is made when it comes to its policy towards Bolivia. The international community should take note.
Walter Guevara Anaya is an independent consultant on democratic development.