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.