Chile’s Counter-Offensive Runs into New Bolivian Demand at the International Court of Justice Walter Guevara

On 24 April 2013 Bolivia placed Chile on the docket before the International Court of Justice (ICJ) overa series of frustrated negotiations that would have granted this landlocked country access to the Pacific Ocean over Chilean territory.

Boliviasubstantiated 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 has the option to respond to the Bolivian demand on or before 25 July 2015 or abandon the case.

Adebate arose in Chile and Bolivia on the way this demand should be managed.  The issue was whether it should be managedexclusively on legal grounds, or whether complementary efforts should be made to pursuediplomatic efforts andcontrol media spinoffs beyond the Court.

Past squabbles in a nutshell

During the War of the Pacific (1879–83), Chile overwhelmed its neighbors Peru and Bolivia.  Peru lost three large provinces.  Its capital city, Lima, was occupied by Chile during three years.  A treaty signed in 1904under duress forced Bolivia to surrender to Chile its whole sea coast more than 400 kilometers long and an area of 120,000 square kilometers, which Chile had previously recognized in the 1874 Treaty as Bolivian territory.  This territory was rich in nitrates used at the time as fertilizers and to manufacture explosives.  Some of the richest copper deposits in the world were found there.  In 1971 Chilean President Salvador Allende nationalized the copper mines.  He said at the time ‘copperis Chile’s salary,’ and so it remains 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 had been one of Bolivia’s main outlets to the seasince Spanish colonial times.

The law cameafter the sword

Based on rights acquired by military victory, Chile’s position regarding Bolivian claims to its lost sea coast are highly legalistic.  Chile holds that the 1904 Treaty solved for all time all pending territorial issues with Bolivia.  Any attempt to review, improve or interpret this Treaty is regarded by Chile as a serious threat to international law and peace among nations. Compliance by Chile of the terms of this Treaty is an issue periodically raised by Bolivia.

In 1929 Chile signed a Treaty with Peru.  In a clause of the Treaty of Lima, held 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.  According to Bolivian President Daniel Salamanca (1931-34),Chile locked up Bolivia and handed the key to Peru.

The sea, one offer at a time

On 19 December 1975, Chile agreed to grant Bolivia a sovereign corridor eliminating along its border with Peru.  The corridor would have ended close to the Port of Arica. Chile stated 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 on its offer to grant Bolivia a sovereign corridor on former Peruvian territory.  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 several offers made by Chile to grant Bolivia access to the Pacific Ocean.  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 sea.  This claim is backed by the doctrine of unilateral acts of states,recognized by the ICJ in previous cases.

Bolivia’sinitial approach

Bolivia’s indigenous President Evo Morales invited former President Eduardo Rodríguez Veltzé, a respected jurist who had been President of the Supreme Court, to head Bolivia’s legal team before the ICJ.  Mr. Morales invited another political foe, former President Carlos Mesa, to head Bolivia’s public opinion efforts.  Mr. Mesa is a distinguished historian and a masterful media presenter.  Both men lie at the whitest extreme of Bolivia’s highly pluralistic ethnic spectrum.

Former presidents and ministers of foreign affairs were invited by Mr. Morales to complement this effort regardless of their political views or ethnicity.  President Morales coordinated this high-level team through a newly created Strategic Directorate of Maritime Vindication (DIREMAR).

The demand before the ICJ was left for the most part in the hands of a team of high powered international legal experts led by the cautious, low profile Harvard-educated lawyer Eduardo Rodríguez Veltzé.  Responding to circumstances that arose early in 2016, President Morales took personal charge of Bolivia’s political, diplomatic and media efforts.

Chile aims to change Bolivian public opinion

At the outset of the Bolivian demand President Michelle Bachelet of Chile leaned on the traditional legalistic position that there are no pending territorial issues with Bolivia.  On 24 September 2015the ICJ rejected Chile’s preliminary objection to its competence and accepted to hear this case.  This was the first time Chile had lost anything to Bolivia.  At that point President Bachelet changed tactics.

She replaced the respected, low profile lawyer who headed Chile’s Hague team with a high profile, extremely powerful political figure.  Mr. José Miguel Insulza, a non-practicing lawyer, was Secretary General of the Organization of American States (OAS) for a decade (May 26, 2005 to May 26, 2015).  Upon leaving this post Mr. Insulza returned to Chile as a potential presidential candidate.President Bachelet also hired Mr. Ascanio Cavallo, a well-known public relations and political consultant, to head Chile’s media efforts in support of its legal defense at The Hague.

A couple of days before March 23, when Bolivia remembers the defense of its sea coast in 1879 by a small bunch of civilians, Mr. Cavallo was interviewed by El Pais of Madrid, a widely respected newspaper read throughout Latin America.  In this interview Mr. Cavallo restated Chile’s traditional, highly legalisticresponse to the Bolivian claim.

At the same time Chile´s Foreign Affairs Minister Heraldo Muñoz presented a short video purporting to prove Bolivia has unparalleled access to the Port of Arica.  Locals of Bolivian ancestry were shown to be extremely happy asChilean citizens.  Bolivian residentswere shown to enjoy non-discriminatory, ethnically oriented educational facilities for their children.

Coincidentally Mr. Insulza was interviewed by La Razón, a pro-government Bolivian newspaper.   Question:  ‘How do you see Bolivia and Chile after the law suit?’  Response:  ‘Chile and Bolivia will be neighbors forever.  That is why they should respect each other, take care of each other and cooperate with each other.  Any other option is useless over the long term.  At the end of the law suit we will face each other alone, forced to share our days and to reach an understanding.’

The bottom line

This was an outstanding response.  When the law suit is over, politics remains on call.  Should the Court rule that Chile has contracted no legal obligation to negotiate with Bolivia an access to the sea, Chile nevertheless will be well advised to sit down with Bolivia at the negotiating table.  What remains to be determined is just how the two neighbors will understand their vicinity.

The Bolivian demand against Chile at The Hague is an attempt to test the good faith and political will of both nations to live together and to come to mutually beneficial understandings, as Mr. Insulza recommends.  They should be able to do so beyond the harm caused by one part which shouts and insults, as Bolivia often does, and the other which disdains and deceives, as Chile is wont to do.

President Morales hits back

The carefully orchestrated, three-sidedinitiative aimed by Chile at Bolivia’s Day of the Sea was blunted by President Morales’announcement of a new demand against Chile.  At the closing speech of the Day of the Sea Mr. Morales announced that Bolivia would demand 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 headlines.  Chilean Foreign Affairs Minister Heraldo Muñoz responded with the threat of a counter demand at the ICJ.  According to a group of former Chilean Foreign Affairs Ministers advising Mr. 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.  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.

It’s the politics, stupid

On February 21, 2016 President Morales lost a referendum on whether to change the constitution so as to allow him to be a candidate for re-election in 2019, when his present term will come to a close.  Many voices in Chile celebrated this defeat, interpreting it as a rejection of the president’s maritime policy.Bolivian initiatives on access to the sea are often dismissed by Chile’s authorities as attempts to generate internal support for the Bolivian government.  Given the widespread support of Mr. Morales’ policy towards Chile, these reactions can only be attributed to wishful thinking.  Contrary to the traditional Chilean position, there are a number of unresolved matters in the relations between Chile and Bolivia.

There is no question that good management of this dispute by both sides requires the delicate coordination of three different and complementary approaches:  proper handling of legal cases before the ICJ, skillful bilateral diplomacy and effective media impact on each other’s public opinion.  That is a balancing act which falls under the responsibility,and is affected by the temperament,of each chief of state.

Chilean offersto Bolivia

Offended, you throw me out of your house.  Presenting my excuses is out of the question.  I don’t admit for a moment that I offended you. On the contrary, I offer to return to your house without any preconditions. I simply forget and forgive the fact that you threw me out of your house. I keep repeating there are no issues between the two of us.  If you felt offended by me, well, that is your problem.

This has been Chile’s most frequent response to the fact that Bolivia broke diplomatic relations with Chile in 1978.  Upping the ante, on 24 April 2013 Bolivia placed Chile on the docket before the International Court of Justice (ICJ).  Following court procedure, on 15 April 2014 Bolivia presented a memorial substantiating its demand.  In it Bolivia accuses Chile of reneging on repeated formal promises to negotiate with Bolivia a sovereign access to the Pacific Ocean.

Soon after being hit with the Bolivian demand, Chile went public to offer Bolivia three things: 1)immediate renewal of diplomatic relations, 2) dialogue without any preconditions on any and all subjects, and 3)a request to share Chile’s view that there are no pending issues between the two countries.  Chilean diplomats capped these undertakings by stressing Chile spends a lot of money allowing Bolivia full and free access to its ports.

This is how Chile’s diplomacy turns the tables on Bolivia.  Public opinion deserves a chance to evaluate Bolivia’s reasons to act as the offended party.It all started with a dispute by two new nations over a barren desert during the first half of the 19th Century.  There is practically no drier place on earth than the Atacama Desert, which runs low along the Western coast of South America.  A few usable ports dot the forbidding plunge of the Andes Mountains through the desert into the sea.

Chile claims to this day Bolivia was born without a sea coast.  In its view Spanish colonial subdivisions entitled Chile to a sea coast that extended its northern border all the way up to Peru, leaving Bolivia landlocked.  From the start of this dispute Bolivia claimed colonial practice and Spanish crown papers proved otherwise.  By 1866 Chile and Bolivia reached an agreement.  They agreed in a treaty that their boundary along the sea coast would be the 24th parallel south.  Bolivia was left with a useful port, Antofagasta, located at one of the few protected bays in the whole region.

Chile claims it voluntarily ceded a part of its own sea coast to Bolivia by the 1866 treaty.  By contrast, Bolivia holds Chile recognized through this treaty Bolivia’s legitimates rights over  a sea coast.  As a condition for signing the 1866 treaty Chile got Bolivia to agree that Chile would share in the collection of tax revenues over the territory Chile claimed to have ceded to Bolivia.

In 1874 a fresh treaty between Chile and Bolivia recognized Bolivia’s right to be the sole collector of taxes on this territory.  In exchange for this concession, Bolivia agreed to set fixed tax rates on Chilean enterprises for 25 years.  Chilean companies backed by British investors exploited sodium nitrates and guano deposits on Bolivian and Peruvian territory.  These commodities were used to fertilize crops and manufacture explosives in Europe.  Chilean fortune hunters soon surpassed the number of Bolivians on the territory Chile agreed was Bolivian.

In 1878 Bolivia attempted to raise the taxes of the Antofagasta Nitrate Company.  The British manager refused to comply.  Bolivia threatened to confiscate the company.  Claiming this action was taken in violation of the terms of the 1874 treaty, on 14 February 1879 Chile took over the Bolivian port city of Antofagasta.  A few days later, on 5 April 1879, Chile declared war on Bolivia and Peru.  Soon thereafter the Chilean navy took control of the whole Atacama Desert, including two Peruvian provinces way beyond territory “ceded” to Bolivia.  By January 1881 Chile occupied Lima, Peru’s capital city.

Lima is almost 1500 kilometers to the north of Antofagasta and almost 2500 kilometers to the north of Chile’s capital, Santiago. Chile was not unprepared for this naval and military feat.    With great foresight Chile had ordered advanced warships from Great Britain.

As early as 1836 Chile waged a preventive war against Peru and Bolivia.  Fearing trade competition and the choking of its ports by two united neighbors, on 1839 Chile managed to destroy the Peru-Bolivia confederacy set up and run by Bolivian statesman Andres de Santa Cruz.  The War of the Pacific (1879-1883)waged by Chile against Peru and Bolivia forty years later was provoked by Chile, who rejected to settle a dispute trough arbitration.  Even so, the defeat of Peru and Bolivia in this war derived from a visionary policy formulated half a century earlier by Diego Portales, a noted Chilean statesman who held Chile had to be the master of the South Pacific coast.

The generation of Chileans who fought and won the War of the Pacific was acutely aware of the need to grant Bolivia full and unrestricted access to useful ports on the Pacific coast.  Leaving Bolivia landlocked was a time bomb.  Chile’s economy grew by leaps and bounds with the riches found in the Atacama Desert, where some of the largest copper deposits of the world are found.  Later generations of Chileans sought to placate Bolivia through a treaty giving it free access to Chilean ports, but no sovereign access to a port of its own.

During and after the War of the Pacific Chile controlled the ports through which Bolivia channeled its main export, mineral ores.  By 1904 Bolivia was forced to sign a treaty ceding to Chile its entire sea coast while Chile granted Bolivia perpetual free access to its ports and promised to build a railroad connecting the capital of Bolivia with Arica, a sea port located in territory conquered by Chile from Peru.

Over the years Bolivia denounced a number of restrictions imposed by Chile on its access to the sea, alleging violations of the 1904 treaty.  According to Chile, Bolivia enjoys to this day full and unrestricted access to the sea as stipulated by the 1904 treaty.Furthermore Chile holds that the 1904 treaty has solved all pending territorial issues between the two countries and is intangible.

Bolivia insists on obtaining from Chile sovereign access to the Pacific Ocean.  Since Chile annexed two Peruvian provinces whose ports served most of Bolivian commerce, one  way Chile can comply with this request is to grant Bolivia a corridor along the border with Peru.

In 1929 Chile signed a treaty with Peru on pending territorial issues.  A secret protocol of the Treaty of Lima determined that Chile could not grant former Peruvian territory to “a third power,” which could only be Bolivia, without Peru’s formal consent. According to some commentators Chile locked up Bolivia and gave the key to Peru.

The importance of dealing with this issue was recognized by successive Chilean governments.  At certain times Chilean authorities took a hardline, closing the door on negotiations with Bolivia.  At other times they kept negotiations open, seldom advancing practical solutions that would deal with Bolivia’s complaints.  Over the years several Chilean governments went on the record with a number of promises to Bolivia to negotiate sovereign access to the Pacific Ocean.

The fulfillment of these promises failed to prosper for a number of reasons, including Chile’s unwillingness to comply with them.  In 1975 Chile proposed Bolivia a sovereign corridor along its border with Peru.  When consulted about this proposal in compliance with the Treaty of Lima, Peru took a year to make a thoughtful counterproposal.

Peru agreed that the sovereign corridor offered by Chile to Bolivia should end close to the Port of Arica, precisely as Chile had proposed and Bolivia had accepted, on condition that the Port of Arica become tri-national.  This would have meant that Chile would have had to surrender sovereignty over the Port of Arica.  Chile interpreted the Peruvian response as a rejection of its proposal and closed the matter.

In its demand before the ICJ Bolivia claims that through these promises Chile acquired an obligation to negotiate with Bolivia a sovereign access to the Pacific sea coast.  This demand is consistent with the contemporary doctrine of unilateral acts of states, upheld in previous decisions of the ICJ.

Chile objected the jurisdiction of the International Court of Justice to adjudicate this demand.  Its main argument was that the Bolivian demand hides a request for the Court to impose on Chile a unilateral revision of the 1904 Treaty.  Such a revision according to Chile would upset the foundations of international law and bring chaos to world order.  The court rejected this and other arguments of the Chilean objection and ruled that it has jurisdiction to adjudicate this matter. Chile has until 25 July 2016 to file its response to Bolivia’s demand.

As a prelude to invading the Bolivian seacoast in 1879, Chile withdrew its envoy to Bolivia.  Diplomatic relations were resumed after the war.  Bolivia broke diplomatic relations with Chile in 1962 over a mountain waters dispute.  They were resumed in 1975 when Chile offered Bolivia access to the sea through a narrow corridor along its northern border with Peru.  When Chile declined to consider Peru’s counterproposal, Bolivia broke diplomatic relations with Chile in 1978.

Since then Chile has made many offers to Bolivia to resume diplomatic relations.  It has launched a public relations campaign aimed to prove that Bolivia enjoys full access to ports on the Pacific and is willing to improve this access.  Its diplomats insist that there are no pending territorial issues between Chile and Bolivia.  They offer to sit down with Bolivia to discuss any and all issues without any preconditions.  Chile complains about having been taken to court by Bolivia.

Walter Guevara Anaya – Democratic development consultant

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.

Chile on the docket

The Bolivian demand against Chile is an act of law, not an act of war.

By taking Chile before the International Court of Justice (ICJ) Bolivia recognizes and asserts the primacy of international law.  Through this legal action Bolivia announces to the international community that it places full trust upon a peaceful mechanism set up by the United Nations for the resolution of international disputes.

In response to a public challenge by Chile, Bolivia said it intends to abide by the decision of the court.  This was an unusual declaration because the challenge to abide by the court’s decision was posed by the party brought before the court.

During 2015 Chile formally questioned the competence of the ICJ to hear this case.  When the court ruled against Chile’s preliminary objection, influential commentators in Santiago argued that Chile should quit the Pact of Bogotá, the treaty which gave birth to the ICJ. Sober heads pointed out that such a decision would apply to future cases, not to the current demand which is already in process.

Some Chilean commentators regard Bolivia as a primitive place run by illiterate Indians who take power by force and raise the dispute with Chile as a cheap way to generate internal support. It is not surprising to find in the Chilean press triumphalist, morally superior takes regarding anything that relates to Bolivia.  What is surprising is to find these attitudes reflected in top media of the Western world.

Except when otherwise convenient, Chile has held Bolivia’s claim is a strictly bilateral issue. In 1929 Chile signed the Lima Treaty with Peru.  A clause of this treaty directly affects Bolivia’s relation to Arica, the seaport that handles most Bolivian trade since colonial times, when it belonged to Peru.

As a result of the War of the Pacific Peru lost two large sea coast provinces.  One of them includes Arica, one of the few useful seaports close to the main cities of Bolivia.  A clause of the Treaty of Lima stipulates 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.

Ever since the end of the War of the Pacific (1879-1883), Bolivia has pleaded with Chile to grant it a sovereign access to the Pacific Ocean. But, according to Chile, 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.  This solution requires the formal consent of Peru.

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 the seaport of Arica should become tri-national.  Conceivably, a multilateral organization could supervise its works.

Chile took this as an outright rejection by Peru of its proposal to grant Bolivia a corridor to a seaport.  Diplomatic relations between Chile and Bolivia, suspended in 1962, had been re-established following Chile’s offer. By 1978 it became clear that Chile discounted the Peruvian counterproposal and closed the door on all further negotiations on this matter.  Once again, Bolivia broke diplomatic relations with Chile.

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 sea is a matter of hemispheric concern, turning this into a multilateral issue.  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 futile and pernicious.

Chile officially claims that there are no pending border issues with Bolivia.  It argues that all such issues were settled by the 1904 Treaty.  Chile holds that this treaty cannot be revised without placing international law and world order at risk.  The considerable efforts Bolivia has undertaken since 1904 through diplomatic channels, direct negotiations between heads of state, legal action before the League of Nations and the United Nations, resolutions of international organizations such as the OAS and presentations before the Court of public opinion, are dismissed by Chile as mere “aspirations.”

Chile claims that Bolivia currently enjoys unparalleled access to Chilean seaports in full compliance with the terms of the 1904 Treaty.  Bolivia has presented proofs that show otherwise before a variety of international organizations, but Chile pretends to act as the only judge of this matter.  Chile shows a permanent predisposition to hear out Bolivia’s aspirations and complaints for an indefinite time, but not to act upon them.

According to Chile’s preliminary objection, Bolivia’s demand asked the ICJ to force upon Chile a unilateral revision of the 1904 Treaty.  Chile argued that the 1904 Treaty settled all possible disputes concerning limits between Chile and Bolivia, adding that Bolivia’s demand hides a request that the ICJ should force upon Chile a unilateral revision of this Treaty.

Chile strengthened its request that the Court declare its lack of jurisdiction by pointing out that Bolivia’s demand turns on an issue that was settled by a treaty signed about a half a century prior to the Pact of Bogota of 1948, which gives jurisdiction to the ICJ over disputes after that year.

After suffering a resounding defeat in the War of the Pacific Bolivia signed the 1904 Treaty under extreme duress.  In order to pressure Bolivia into signing this treaty, Chile choked Bolivian commerce, which then and now moves for the most part through ports on the Pacific Ocean controlled by Chile.

 

Today Chile seeks to brush off Bolivia’s legal action before the ICJ by appealing to the understandable interest of major powers in the stability of borders, no matter how acquired.  The time when open land grabs were commonly practiced and accepted is over.  Border violations during and after WW II have been punished for the most part.  A few notable exceptions prove the rule.  Chile has zealously joined the ranks of former usurpers who uphold the primacy of international law.

Bolivia does not question the results of such historical processes, no matter how unjust they might be.  The basis of the Bolivian demand against Chile is that at least since 1895 Chile, in pursuit of its own self-interest, has made a number of official, publicly recorded promises to negotiate with Bolivia a sovereign access to the Pacific Ocean.

Relying on the evolving doctrine of unilateral acts under international law, Bolivia has asked the ICJ to rule that Chile has an obligation to pursue with Bolivia negotiations held in good faith regarding these promises. That is the substantive question the ICJ has decided to hear.  Chile has until 25 July 2016 to file its response to Bolivia’s demand.

In the meantime Chile and Bolivia have plenty of time to start negotiating a pragmatic solution to this impasse.  There are numerous reasons why Chile would come out ahead by trying to accommodate Bolivia in earnest.  One of them is that the substance of Bolivia’s demand would vanish if Chile took this bull by the horns.

Chile quibbled with some of the considerations made by the ICJ in its decision to deny Chile’s preliminary objection.  It objected to the Court’s view of the War of the Pacific.  At the same time Chile found that some of the antecedents set forth by the ICJ in this decision anticipate a resolution of the substantive issue in Chile’s favor.

According to Chile the ICJ decided in the preliminary objection that it could not rule on the outcome of negotiations between Chile and Bolivia. But, at the same time, Chile does not accept that the Court might rule that Chile should negotiate with Bolivia a sovereign access to the sea.

Chile claims the trial will not start with a clean slate. According to this view, under the best case scenario for Bolivia, Chile will be enjoined by the Court to sit with Bolivia at the negotiating table.  That is all.  In fact this particular trial will be fully engaged only when Chile presents its response to the Bolivian demand on July 25, 2016.  Thereafter the Court will be free to rule according to its findings, without any constraints posed by considerations made in its decision on the preliminary objection.

Chile believes it will comply with an adverse decision of the Court by negotiating with Bolivia about anything and everything for any length of time.  This view skips over the substantive issue before the Court, namely that Chile has an obligation to negotiate in good faith with Bolivia sovereign access to the Pacific Ocean.  It is up to the Court to decide:1) whether such an obligation exists, and 2) what is the extent of such an obligation if it exists.

Chile is rightly proud of the quality of its democratic institutions and practices.  It has a solid economy, based mainly on the fabulous copper deposits found on territory conquered from Bolivia and Peru.  Its superbly educated elite is proud of its European origins. Chileans of indigenous origins complain they are treated as second class citizens.

Chile ranks high on transparency ratings and enjoys a standard of living that brings it close to the leading nations of the world.  Its army, navy and air force are the most capable and best financed in Latin America.  A Reserved Copper Law and its amendments enable the military to spend at least 10% of the annual copper revenue beyond public inquiry.

Chile’s success is the product of penury. Its territory lies like the sheath of a very thin sword caught between the rough Western coast of South America and the forbidding Andes Mountains to the East, which separate Chile from Argentina.  Chile overcame this meager legacy by conquering a desert on its barren North.  The Atacama Desert is one of the driest places on earth.  It is also a place where some of the richest copper deposits can be easily mined.  To this day Chile depends on copper exports for its survival.

By contrast Bolivia’s journey towards democracy and economic development has been uneven.  From the start Bolivia suffered from the spoliation of its natural resources.  Spain held on to Potosí, the richest silver mine the world has ever known, from 1545 until 1825, when Bolivia finally gained its independence.  Silver ran out, but it was replaced by tin, mined to this day in Potosí.

Today Bolivia depends massively upon the export of gas, minerals and soy beans.  In spite, or perhaps because of its natural wealth, Bolivia’s educational system and armed forces are relatively weak.  Extreme poverty remains a problem, although it has been significantly reduced in the last decade.  Efforts to wean the economy away from the extraction and exporting of natural resources have been meager.

The vast majority of Bolivians are of mixed origin.  Ethnic discrimination is illegal and no longer open.  President Evo Morales proudly proclaims himself an Indian.  Bolivians of all origins yearn for a sovereign access to the Pacific Ocean.  None forget the defeat suffered in the War of the Pacific at the hands of Chile.

The climates and economies of Chile and Bolivia complement each other.  Ethnic, family and business ties are common.  There is something artificial about the dispute that separates the two countries.  Many Chilean observers over the decades have pointed out that it is in Chile’s best interests to stop beating around the bush and start addressing this open wound in earnest.

Articles on the subject in the most prestigious newspapers and magazines of the English speaking world often make light-hearted fun of Bolivia’s navy and this country’s evident shortcomings.  They tend to ignore aspects of this dispute which are not immediately appealing to readers.  Chile is portrayed as a long suffering victim of a nearly barbarian neighbor, buttherein can be found a story waiting to be told.

Walter Guevara Anaya

Democracy Development Consultant

2016