Well-targeted scoop of Chilean journalists in La Paz

On Monday May 2, 2016 Chile’s news channel Teletrece published a spectacular interview conducted in a high security prison with Gabriela Zapata Montaño, a young woman with whom President Evo Morales admitted having fathered a son (http://www.t13.cl/buscador/gabriela-zapata and http://eju.tv/2016/05/ultimo-hijo-evo-morales/).

 

This scoop targets Evo Morales and his government for a very good reason.

 

On 24 April 2013 Bolivia instituted proceedings against Chile before the International Court of Justice (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.

 

According to the Bolivian Application, these offers add up to an obligation contracted by Chile to negotiate with Bolivia in good faith an access to the Pacific Ocean.  This claim is backed by the doctrine of unilateral acts of states, recognized by the ICJ in previous cases.  In accordance with Court procedure Chile has the option to respond the Bolivian demand on or before 25 July 2015.

 

On 15 July 2015 Chile presented a preliminary objection claiming the ICJ lacks competence to hear the Bolivian complaint. On 24 September 2015 the Court dismissed Chile’s objection by a vote of 14-2.  In spite of the fact that all it does is rule that the Court is competent to hear the merits of this case, this decision was not received well in Chile.

 

Anticipating an unfavorable decision on the merits, some commentators accused the ICJ of deciding cases on the basis of equity rather than justice.  Others, including high ranking members of Congress, former Ministers of Foreign Affairs, top level politicians and academics, pressured the Chilean government to quit their country’s membership in the 1948 Pact of Bogota, under which most Latin American nations agreed to submit their differences to the ICJ.

 

If Chile decides to withdraw from the Pact of Bogota, this action will not have any effect on Bolivia’s current Application. The process will continue due to the fact that the Bolivian complaint was presented before any repudiation of the Court by Chile.  The only way Chile can withdraw from this case is by abandoning it. Should Chile abandon it, the case will proceed in Chile’s absence, in effect leaving Chile without a defense.

 

The voice of Jose Miguel Insulza, Chile’s Agent at the ICJ, stood out in this debate:  “when it comes to international relations, kicking the table is not a habit in this country,” he declared.  Perhaps unwittingly, President Bachelet of Chile appeared to send a message questioning the ICJ for having dared to reject Chile’s preliminary objection against an “artificial complaint.”

 

Her view of artificial complaints can be appreciated in the full videotape of the March 30 lecture she gave at the American Society of International Law (ASIL) (www.asil.org/resources/2016-annual-meeting).  Anybody, including ICJ Magistrates present at this lecture, 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.

 

Chile’s 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,” Mr. Jose Maria Insulza declared to El Mercurio’s special envoy right after President Bachelet’s presentation in Washington. His take was reported under the headline “Chile’s Agent at The Hague assures that Bachelet speech was not necessarily aimed at Bolivia” (www.emol.com/noticias/Nacional/2016/03/30/795680/Agente-de-Chile-ante-La-Haya-asegura-que-discurso-de-Bachelet-no-apunto-necesariamente-a-Bolivia.html).

 

Ever since Bolivia instituted proceedings against Chile at the ICJ, there has been an unusual degree of interest within Chile about the troubles and tribulations of the government led by President Evo Morales.  This interest is not motivated by an outrage about personal scandals and allegations of corruption.  It is motivated by a not-so-secret burst of shadenfreude or pleasure at the misfortunes of others, particularly when those others have dared take Chile to court.

 

There is hardly a similar level of interest within Bolivia about the troubles and tribulations of Chile’s President Michelle Bachelet.  Few Bolivians are aware of or care very much that “the daughter-in-law of President Michelle Bachelet has been charged with tax fraud in a lucrative real estate deal that also possibly involved insider information,” as reported by the Washington Post under the heading “Kickbacks, dirty deals and more: The corruption scandals plaguing Latin America” (https://www.washingtonpost.com/news/worldviews/wp/2016/04/27/kickbacks-dirty-deals-and-more-the-corruption-scandals-plaguing-latin-america/).

 

Recently Chilean former diplomat Jorge Canelas evaluated the prospects of improving his country’s relations with Bolivia, which last time severed diplomatic relations with Chile in 1978.  Ambassador Canelas argues that the results of the referendum held in Bolivia on 21 February 2016 open an opportunity for Chile to recover the initiative it lost when Bolivia asked the ICJ to rule that Chile has an obligation to negotiate in good faith sovereign access to the Pacific Ocean for Bolivia over its territory.

 

On that date Bolivians voted down a government proposal to amend re-election rules in order to allow President Morales to run for another term in 2019. Ambassador Canelas gleefully flagged what he took to be a frontal clash with reality suffered by Bolivian President Evo Morales (www.ellibero.cl/opinion/bolivia-post-referendum-evo-en-empate-tecnico-con-la-realidad/).

 

There is no question that the Teletrece scoop is a gutsy piece of journalism.  The presenter of the interview expresses puzzlement over the surprising fact that the police allowed the Chilean news team to conduct a 15 minute face-to-face interview with Ms. Zapata against the rules of the high security prison.  However that feat was achieved, Teletrece and Ms. Zapata made the most of it.

 

The Bolivian National Police and its supervisors in the Executive and Legislative Branches will have to explain how a couple of journalists exhibiting Chilean passports managed to enter the prison and interview a prisoner who is not allowed to meet the press.  It would not be surprising if the Teletrece team is accused of espionage and the interview turns into an international incident.

 

This scoop will cause much joy in Chile, particularly among those who resent Bolivia’s complaint before the ICJ.  They will imagine that this is a blow to the decision of the Bolivian Government to institute proceedings against Chile.  Nothing could be further from the truth.  Bolivians may disapprove of the Zapata scandal, but they fully support their government’s policy towards Chile.

 

 

Walter Guevara Anaya is an independent consultant on democratic development.

Chile over-reacts to Bolivian alleged legal frivolity

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.

New Chilean Spokesman Unveils Old Chilean Line

On 23 March 1879 well equipped Chilean troops invading Bolivia came across stiff resistance from a handful of civilians defending a small bridge over the Loa River.  Honoring their bravery, a Chilean officer asked them to surrender in exchange for their lives.

Eduardo Abaroa, an accountant and small businessman from the targeted locality of Calama, yelled back:  “May your grandma surrender!” followed by an equally traditional Spanish imprecation.  He was shot on the spot and buried with honors by the Chilean troops.

In commemoration of this brave act, every 23 March Bolivia celebrates the Day of the Sea.  This is a bittersweet celebration.  As a result of the War of the Pacific (1879-1883), Bolivia lost its entire sea coast of 400 kilometers in length and a resource-rich province of 120,000 square kilometers.

 

21 March, two days before Bolivia’s Day of the Sea, was the date chosen in 2016 by Chilean communications expert Ascanio Cavallo to give an interview to Spain’s highly respected newspaper El País.  Mr. Cavallo was contracted by his government to manage Chile’s PR and communications strategy regarding a law suit brought by Bolivia against Chile at the International Court of Justice (ICJ) on pending territorial issues derived from the late 19th Century War.

 

During the War of the Pacific Chile overwhelmed its northern neighbors Peru and Bolivia.  Peru lost three large provinces.  Its capital city, Lima, was occupied during three years.  An objective introduction to the Bolivian participation in this war can be found on line in ‘Guano, Salitre y Sangre’ by Roberto Querejazu Calvo, www.lecturasinegoismo.com/2013/05/guano-salitre-sangre-historia-de-la.htm.

Imposing a peace treaty is not an exception but the rule whenever a country wins a war.  Chilean President Domingo Santa Maria (1881-1886) took the decision to choke Bolivian commerce in order to force Bolivia’s representative in Santiago to sign a Truce Agreement or Pact on 4 April 1884, through which Bolivia was forced to give up its entire maritime province.

To save Bolivian minerals trade with Europe, on 20 October 1904 the Bolivian Congress was forced to approve a “Treaty of Peace and Friendship” with Chile, ratifying the conditions of the 1884 Truce.  More than a century later, Bolivia cannot denounce this treaty without risking 80% of its exports.  President Santa Maria has long been gone, but the duress he imposed on Bolivia under the rights conferred by a military victory persists to this day.

In every generation after the War of the Pacific there have been a handful of idealistic Bolivians who strived against all odds to propose actions aimed at recovering the totality of the territory lost to Chile.  Successive Bolivian governments have centered on a more realistic objective: obtain a very narrow corridor over Chilean territory granting Bolivia sovereign access to a useful port on the Pacific Ocean.  For this corridor not to split Chile in two, it would have to run along the current border of Chile with Peru.

The scaled down Bolivian objective is complicated by a Treaty signed by Chile with Peru in 1929.  In a clause kept secret at the time, Chile agreed with Peru it could not grant former Peruvian territory to ‘a third power,’ without obtaining Peru’s express approval.  This power could only be Bolivia.  Bolivian President Daniel Salamanca (1931-34) observed that Chile locked up Bolivia’s access to the sea and handed the key over to Peru.  Chile holds this action in no way affected the 1904 Treaty with Bolivia.

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

In compliance with the 1929 Treaty of Lima, Chile asked Peru for its consent to proceed along these lines.  Almost a year later, 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.

On 24 April 2013 Bolivia instituted proceedings against Chile before the ICJ over this and a series of other 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.

According to the Bolivian Application, these offers add up to an obligation contracted by Chile to negotiate with Bolivia in good faith an access to the Pacific Ocean.  This claim is backed by the doctrine of unilateral acts of states, recognized by the ICJ in previous cases.

 

On 15 July 2015 Chile presented a preliminary objection claiming the ICJ lacks competence to hear the Bolivian complaint. On 24 September 2015 the Court dismissed Chile’s objection by a vote of 14-2. In accordance with Court procedure Chile has the option to respond the Bolivian demand on or before 25 July 2015.

Chile enjoys an international image as a well-organized, law-abiding country, with extensive representation at various levels of the United Nations, the Organization for Economic Cooperation and Development (OECD) and the Trans Pacific Partnership (TPP).  This image can be tarnished by its condescending policy towards Bolivia, a much weaker, less organized nation whose current President Evo Morales takes pride in calling himself indigenous.

Mr Cavallo addressed this problem head on.  His March 21 interview at El Pais struck a familiar note in Bolivia.  The headline quotes the first part of one of Mr. Cavallo’s statements in response to the question: “Do you accept that Morales has managed to put Bolivia on the map of the world in a way that is new?”  Headline: “Evo Morales is no more indigenous than any Chilean.”  Second part of this statement quoted within the interview:  “we’re all half-breeds.”

 

Chile is run by a well-educated oligarchy that is much more proud of its European origins than any presumed non-European drops of blood in its blue veins.  Chileans of indigenous origins are a large proportion of the population only in the Northern Provinces taken over by Chile from Bolivia and Peru.  Upper class Chileans must have been surprised to be labeled indigenous by one of their most prestigious communicators.

President Evo Morales chose as Bolivia’s communicator on this issue a tall, bearded, notoriously white former President of Bolivia who looks like he has just debarked from a Spanish galleon.  Carlos Mesa happens to be a respected historian, man of letters, cinema expert and exceptional communicator.  He commanded enormous respect in Chile when he was aggressively interviewed on 29 September 2015 by TV Chile (https://www.youtube.com/watch?v=ywFLtRDFnJw).

To claim every Chilean is partly indigenous sounds in Bolivia a bit like the consecrated phrases “some of my best friends are Jews” or “I don´t mind Blacks in my neighborhood” when pronounced in the US or the UK.  If you never have a second chance to make a first impression, Mr. Cavallo missed his chance as far as Bolivia is concerned.

The interview is otherwise a compendium of Chilean commonplaces regarding Bolivia’s claim of an outlet to the sea over Chilean territory.  Following are excerpts of the main themes:

It’s all about politics and emotions.  It’s an excuse to promote support for internal demagogues.  Chile is a daily victim of Bolivian verbal aggression.  Bolivia never said what it wants from Chile.  When they say they want sovereign access to the sea they don’t even know what sovereignty means.  President Morales stokes nationalist feelings in Bolivia.  This is extremely dangerous.

 Chilean public opinion has turned against Bolivia on account of the law suit.  Bolivia claims its underdevelopment is due to lack of access to the sea.  This is completely false.  Its underdevelopment is due to institutional instability.  Bolivia enjoys unparalleled access to the Chilean sea port of Arica.  80% of its exports go through the Port of Arica and 80% of the Port of Arica traffic is Bolivian commerce.

 Bolivia lost territory to all its neighbors.  Why should Chile be singled out to resolve Bolivia’s lack of a seacoast?

This last argument recalls the response Senator Sam Ervin gave to President Nixon’s Watergate collaborators when they claimed in self-defense that President Franklin D. Roosevelt’s Democratic Party had spied as well on past Republican presidential campaigns:  “larceny and murder have been popular every generation; that does not make larceny legal or murder meritorious.”

With astonishing candor Mr. Cavallo claims Bolivia was in the hole after losing more than half its original territory to all its neighbors.  According to him this was the reason Bolivians begged to sign the 1904 Treaty through which they surrendered to Chile in perpetuity their whole maritime province.  Aside from being patently false and ridiculous, this is an unusually cheap shot for a high-end communicator.

In response to a question about international support obtained by President Morales for Bolivia’s law suit against Chile, Mr. Cavallo resorted to the stock answer of Chilean diplomats:  “This is a bilateral issue in which third parties must not interfere because, when that happens, this issue tends to become more poisonous.”

No wonder Chile resents the Bolivian law suit.  It requests justice be done by a multi-lateral agency set up by the United Nations, the highest International Court of Justice that meets at The Hague since its founding 70 years ago.  It is very hard for Chile to claim it is a respectful member of the international community while rejecting all multi-lateral meddling in its Bolivian policy.

Mr. Cavallo admits at the end of the interview that there have been a number of occasions when Chile and Bolivia came close to an agreement on this matter.  “All Chilean proposals failed because of Bolivian maximalism.  Chile offers something and Bolivia asks for three times as much… they don’t understand an agreement cannot be built on the basis of imposition or blackmail.”

“Amen” is all Bolivians can say in response to this pious conclusion.

If Chile wants to make significant inroads in Bolivian public opinion, it must stop talking down to its indigenous neighbors and start measuring the impact of its tired rhetoric not only on Bolivian ears, but also on the international community.

All the proceedings of Bolivia’s case against Chile, including Chile’s responses, can be examined at www.icj-cij.org/docket/index.php?p1=3&p2=3&case=153.  Mr. Cavallo’s full interview is found at http://internacional.elpais.com/internacional/2016/03/20/america/1458503243_194665.html.

Walter Guevara Anaya is an independent consultant on democratic development.

 

How Chile quashes Bolivia

On 21 February 2016 Bolivians went to the polls to approve or disapprove a proposed constitutional amendment that would have allowed President Evo Morales to run in 2019 for a consecutive term ending in 2025, for a total of two decades in office.

According to official results, 48.70% of Bolivian registered voters approved the proposed amendment while 51.30% disapproved. This was the first major loss suffered by President Morales in his 10 years in office. His approval ratings during this period hover around 75%.

Retired Chilean diplomat Jorge Canelas recently assessed the prospects of improving relations of his country with its immediate neighbor Bolivia, severed since 1978 by the Bolivian government. He did so in an article published in El Libero on 26 February 2016.

In his article Ambassador Canelas celebrates what the takes to be a frontal clash with reality on the part of President Evo Morales. He argues with unabashed enthusiasm that the results of the referendum in Bolivia open an opportunity for Chile to recover the initiative it lost a while ago. He assumes the referendum was a major blow to President Morales in general and to his policy towards Chile in particular, ignoring the fact that this policy enjoys widespread support in Bolivia.

From 2010 to 2014 Ambassador Canelas served as Chile’s Consul General in Bolivia, the highest rank allowed when diplomatic relations are severed. He is the grandson of a Bolivian who went to study medicine in Chile. Like many other Bolivians, his grandfather ended up marrying a local girl and staying for life in the new country.

In spite of his roots and familiarity with Bolivia, Ambassador Canelas insinuates in his article that Bolivia is on the verge of regime change on account of the results of the 21 February referendum. According to him the NO of this referendum is similar to the NO given by the Chilean people in October 1988 to Pinochet’s attempt to remain in power after 15 years of bloody dictatorship.

That result led to regime change. Presidential and parliamentary elections took place as scheduled on December 14, 1989. Christian Democrat Patricio Aylwin won and took office on the following March. On 21 February 2016 the Bolivian electorate rejected a proposed constitutional amendment that would have allowed President Morales to run for an additional term in 2019. Surveys show that many of the people who voted NO approve the performance of President Morales. Regime change is not in question. Change at the top is.

It would be all too easy to point out the similar difficulties faced today by President Bachelet of Chile and Bolivia’s President Morales. The prices of commodities exported by both countries are suffering a marked decline. Accusations of corruption plague both regimes. Their difficulties have had a vastly different impact on the approval and disapproval ratings of both heads of government. By the end of February 2016 the approval ratings of President Michelle Bachelet fell to 20%, while her disapproval ratings rose to 70% (CADEM Survey).

On April 24, 2013 Bolivia instituted judicial proceedings against Chile at the International Court of Justice (ICJ). This action was decided by President Morales after Chile failed to follow through on conversations based on a mutually agreed 13-point agenda, which included discussion of sovereign access to the sea for landlocked Bolivia. When Chile ignored over a two year period President Morales’ attempts to resume these conversations, he responded with the demand.

Ambassador Canelas wants to take future relationships between Chile and Bolivia out of the judicial sphere. He wants Chile’s initiative back in the bilateral area, undisturbed by multilateral parties such as the International Court of Justice (ICJ), the highest court under the United Nations. As a first step he recommends that Chile pull out of the Pact of Bogota, under which Chile, Bolivia and most Latin American nations agreed through the Pact of Bogota to submit their differences to the ICJ, the multilateral judicial body which meets in the Peace Palace at The Hague in the Netherlands.

In its demand Bolivia claims Chile, through a number of repeated promises made before and after 1948, incurred in an obligation to negotiate with Bolivia in good faith a sovereign access to the Pacific Ocean. Bolivia has asked the Court to uphold this obligation and rule that Chile should abide by it.

The first step Chile took when confronted with this demand was to object to the Court’s jurisdiction. At the same time its top diplomats pretended on the media front that the 13-point agenda had been cancelled by Chile because Bolivia took Chile to court. In its preliminary objection Chile claimed Bolivia’s demand hides a request for the revision of the 1904 Treaty of Peace and Friendship, through which Bolivia surrendered to Chile 400 kilometers of sea coast and 120,000 square kilometers of land where the richest copper deposits in the world were found.

The Court rejected Chile’s preliminary objection and decided to hear this case. Following court procedure, Chile has to counter Bolivia’s arguments in a Counter-Memorial due on July 25, 2016. If Chile follows Ambassador Canelas’ advice and denounces the Pact of Bogota, this action will not have any effect on Bolivia’s demand, which would continue due to the fact that it was presented before any possible repudiation of the court by Chile. The only way Chile could withdraw from this case would be by abandoning it. The case would then proceed in Chile’s absence without any Chilean defense. Chile could be declared in contempt of court.

The traditional line followed by Ambassador Canelas in his article is that Chile’s relations with Bolivia are strictly bilateral. No other country or international organization has a right to meddle in this area. The visit of Pope Francis to Bolivia in July 2015 was regarded with great suspicion by Chile. All the more so when Francis addressed this issue from La Paz and repeated his observations once he was back at the Vatican. Plain historical, geographical, diplomatic and political facts show Bolivia’s relations with Chile are hardly confined to the bilateral area.

As a result of the War of the Pacific (1879-1883), Bolivia lost its whole sea coast and the southern part of the resource-rich Atacama Desert. Peru, allied with Bolivia during this war, lost two large sea coast provinces, Arica and Tarapaca, and the northern part of the Atacama Desert. The Province of Arica includes one of the few useful seaports close to the main cities of Bolivia. Bolivia has been the main client and benefactor of the Port of Arica since colonial times. This port has never been essential either to Peru or Chile. It is the port through which Bolivian commerce breathes.

Bolivia is not asking that Chile give back the territories it conquered by force. Ever since the end of the War of the Pacific, Bolivia has pleaded with Chile to grant it a sovereign corridor to a seaport on former Peruvian territory. 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.

In 1929 Chile and Peru signed in Lima a treaty with a secret clause stipulating 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. And that land could only be a corridor in the former Peruvian Province of Arica.

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’s response the seaport of Arica should become tri-national. Conceivably, a multilateral organization would supervise its works.

Chile took this as an outright rejection by Peru of its proposal to grant Bolivia a corridor to the sea. Diplomatic relations between Chile and Bolivia, suspended in 1962, had been re-established in 1975 following Chile’s undertaking. By 1978 it became clear that Chile discounted the Peruvian counterproposal and closed the door on all further negotiations on this matter. That year Bolivia once more broke diplomatic relations with Chile. They remain broken to this day.

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 Pacific Ocean is a matter of hemispheric concern, turning this into a multilateral issue of interest to all nations from Alaska to Patagonia.

The motto on Chile’s coat of arms remains to this day “By Reason of by Force.” Chile is accustomed to impose its view point and conditions on Bolivia. Chile calls this a bilateral issue, when in fact it is a unilateral imposition. 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 self-serving.

At present Chile claims that under the terms of the 1904 Treaty Bolivia has full and free access to the Port of Arica. Anybody traveling from Bolivia’s capital La Paz to the Arica sea port will be annoyed by long lines of trailer trucks waiting to go through customs at the Chile-Bolivia border. Due to heavy traffic and lack of proper maintenance the road on the Chilean side is in extremely poor condition.

Bolivian cargo at the Port of Arica is subject to minute inspections by Chilean officials at high costs charged to Bolivian exporters. Since Bolivia breathes through this Port, the Bolivian government has denounced these difficulties over the years at a number of appropriate organisms. Relying on its excellent image as an exemplary democracy, Chile denies there is any pending problem with Bolivia.

Ambassador Canelas misses in his article three key attributes of Chilean diplomacy: strategic vision, decisiveness and a sense of historical responsibility. The Chileans who planned, fought and won the War of the Pacific at the end of the 19th Century had these attributes. They were acutely aware of the need to grant Bolivia sovereign access to the Pacific Ocean.

Later generations of Chileans benefitted immensely from the land conquered from Bolivia and Peru by their ancestors. Unfortunately they lost the vision, decisiveness and sense of responsibility needed to face up to the pending problem of Bolivia’s lack of access to the sea.

Often in the past Chile has successfully bet on Bolivian internal divisions to make sure its interests prevail. Ambassador Canelas deludes himself and deludes his compatriots when he imagines that the difficulties faced by President Morales give Chile a window of opportunity to insure that Bolivia lies low, forgets its demand before the ICJ and accepts Chile’s unilateral conditions from A to Z.

Hawks Urge Chile to Kick the Table

According to Chile’s Agent at the International Court of Justice (ICJ) Jose Miguel Insulza, “when it comes to international relations, kicking the table is not a habit in this country” (El Mercurio, 17 February 2016).

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.

Influential commentators in Chile believe there is a better option:  withdraw from the 1948 Pact of Bogota, the agreement under which most Latin American nations decided to submit their differences to the ICJ at The Hague.  Mr. Insulza believes that action would amount to kicking the table.

Guano, saltpeter and blood

During the War of the Pacific (1879–83), Chile overwhelmed its northern neighbors Peru and Bolivia.  Peru lost three large provinces.  Its capital city, Lima, was occupied by Chile during three years.  An objective introduction to the Bolivian participation in this war can be found in ‘Guano, Salitre y Sangre’ by Roberto Querejazu Calvo, Editorial Los Amigos del Libro (La Paz) 1979.

A treaty signed in 1904 under duress forced Bolivia to surrender to Chile its entire sea coast (over 400 kilometers long) plus 120,000 square kilometers of a deserted land rich in sodium nitrate (saltpeter) and guano, commodities in great demand in Europe during the second half of the 19th Century.  They were used as fertilizers and for the manufacture of explosives.

Some of the richest copper deposits in the world were found in the 20th Century in the Atacama Desert lost by Bolivia and Peru to Chile.  In 1971 Chilean President Salvador Allende nationalized the copper mines.  He said ‘copper is Chile’s salary.’  It remains so 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 has been and remains one of Bolivia’s main outlets to the sea since Spanish colonial times.

Bolivia has complained over the years about Chile’s failure to provide Bolivian commerce with effectively free transit to Arica.  Chile staunchly denies these accusations.  On 27 August 2015 Bolivia’s Foreign Affairs Minister David Choquehuanca accused Chile of failing to comply with the terms of the 1904 Treaty.  He suggested Chile and Bolivia agree on an arbitration process to determine the facts.  Chile did not take him up.

Invade and clean up the rubble with the law

Based on rights acquired by military victory, Chile holds the 1904 Treaty has resolved all pending territorial issues with Bolivia for all time.  Any attempt to review, improve or interpret this treaty is regarded by Chile as a serious threat to international law and to peace among nations.  And any attempt by Bolivia to point out territorial issues unresolved by the War of the Pacific is denounced by Chile as a violation of the 1904 Treaty.

Yet in 1929 Chile signed a fresh Treaty with Peru.  In a clause kept 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.  Bolivian President Daniel Salamanca (1931-34) observed that Chile locked up Bolivia’s access to the sea and handed the key over to Peru.  Chile holds this action in no way affected the 1904 Treaty with Bolivia.

Chile’s three-pronged strategy

The motto on Chile’s coat of arms is ‘By Reason or by Force.’  Displaying a certain flair in the right dosage of the principles and instrumentalities of realpolitik, Chile has applied force, reason and the law, whichever was more convenient at a given time, during a century and a half, in order to maximize its interests and territorial claims.

In response to the Bolivian demand Chile will have to justify indirectly the original conquest of Bolivian territory by force, but mainly its persistent dodging of negotiations conducted in good faith to grant Bolivia a corridor less than 10 miles wide ending in the Pacific Ocean.  According to the CIA World Factbook Chile has a coastline over 4,000 miles in length.

The Bolivian demand comes at an inconvenient time for Chile.  Chile’s law-abiding image is inconsistent with being taken to Court by a much weaker neighbor over promises not kept.  Chile will have to prove before the Court and world public opinion that its wily alternation of force, reason and the law is consistent with international law and a good neighbor policy on grounds other than short-sighted convenience.

How Chilean offers add up

On 19 December 1975, Chile agreed to grant Bolivia a sovereign corridor eliminating its border with Peru.  The corridor would have ended close to the Port of Arica. Chile made clear 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 to proceed along these lines.  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 many offers made by Chile over decades.  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 Pacific Ocean.  This claim is backed by the doctrine of unilateral acts of states, recognized by the ICJ in previous cases.

Chile’s next steps

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.  As stated above, Chile has the option to counter Bolivia’s arguments in a memorial due on or before July 25, 2016.

If Chile decides to withdraw from the Pact of Bogota, this action will not have any effect on Bolivia’s current demand.  The process will continue due to the fact that the Bolivian demand was presented before any repudiation of the Court by Chile.

The only way Chile can withdraw from this case is by abandoning it.  The case will then proceed in Chile’s absence, in effect leaving Chile without a defense.  Chile could be declared in contempt of court.  It is unlikely Chilean hawks will prevail over saner heads and expose their country to the risks inherent in leaving the Pact of Bogota or abandoning the current case.

Mr. Guevara is a democratic development consultant.

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.

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.