The crucial importance of the sea and ocean for the strategy and development of governments seems to turn into an axiom in this day and age. The case of a claim to have access to the sea presented by Bolivia against Chile and whose final ruling was recently revealed seems to confirm the axiom.
The total lack of littoral places some states in disadvantage in face of others, limiting their development, trade and export capabilities, has only a couple of exceptions, such as Switzerland and Austria. International law has provided development mechanisms for landlocked governments which are close to 45 around the world, known as Trade Transit Corridors without sovereignty. This is not an autonomous right and depends on the negotiation of bilateral agreements between governments.
The case of Bolivia has unique characteristics due to the historical conditions by which it lost its access to the Pacific Ocean.
The history of this dispute between Bolivia and Chile goes back to the War of the Pacific among Chile and a Bolivia-Peru alliance between 1879 and 1884. The war was declared by Chile in April of 1879 after the Bolivian government tried to impose a ten cent tax on a Chilean salt exporting company, which served as a pretext for the war declaration.
Chile won the war due to its naval superiority and also conquered important rich coastal desert areas and also acquired territory. To end the war Bolivia and Chile signed a truce agreement.
Then in 1904 both countries signed a “Peace and Friendship” treaty, formally reestablishing the relationships between the two countries, recognizing the “absolute and perpetual dominion of Chile” over the occupied territories as a consequence of the war.
A final clause established an arbitration mechanism in case of controversy over the execution of the agreement. Since then, Bolivia has permanently claimed access to the sea in many ways and manners.
The Constitution of Bolivia declares the unrenounceable and imprescriptible right over the territory claiming access to the sea, through peaceful manners. The development of a merchant marine is a priority for Bolivia.
Bolivia requested the ICJ to declare Chile to be compelled to negotiate and reach an agreement with Bolivia to guarantee access to the Pacifica Ocean.
Chile has maintained the validity and respect for the treaty of 1904, including the recognition of perpetuity in favor of Bolivia to free trade transit through its territory and ports in the Pacific Ocean, denying the existence of a commitment and obligation claimed by the demanding state.
In order to base its ruling the Court analyzed legal aspects, declarations, unilateral acts of Chile and the so-called “Act of Charaña”, which was a meeting between Generals Hugo Banzer of Bolivia and Augusto Pinochet of Chile in February of 1975, in which both countries expressed their desire to continue dialogue in search of formulas to solve the topics of mediterraneity affecting Bolivia, “among reciprocal conveniences and tending to the aspirations of the people of Bolivia and Chile” in an environment of harmony, understanding, and cooperation.
The ICJ also analyzed the provisions of the United Nations which compel member states to solve international disputes in a peaceful manner so as to not endanger peace, international safety, or justice. The court concluded that this obligation has a general character and does not establish a specific mechanism for a solution of a controversy.
They also analyzed the Charter of the Organization of American States, for which the ICJ reached a similar conclusion.
The recent ICJ ruling is apathetic and unconvincing. The Court restricted itself to verifying that in the treaties, dialogues and diplomatic approaches among both states through time, there is no legal obligation to compel Chile to negotiate access to the sea with sovereignty to Bolivia.
Although, besides the quick rhetoric in the sense that the ruling does not exclude the continuation of dialogue or exchanges, the Court lacked the impetus to provide concrete mechanisms to facilitate any progress of the negotiations. The Court, simply and wisely added that with the will of the parties, it was possible “to embark in significant negotiations.”
The ruling is not a definitive closure to the claims as it does not refer to the extension or the rights of a coastal line in dispute, but to the legal obligation to negotiate of each of the states in dispute. The obligation to negotiate a solution to their disputes continues to be an obligation of all governments.
The aspect of the right of the people with ancestral links to the sea and its environmental surroundings, as was the case of the artisanal fishermen and Raizals of the Colombian Island of San Andrés does not seem to elicit any consideration from the ICJ, being that the aspects relative to human rights and the right of the people, as in the case of the Inuit, currently seem to open a path in the development of ocean rights.
Bolivia has announced that it will not abandon its claims and will continue to make efforts toward developing a pacific mechanism to solve the dispute.
In the case presented to the ICJ, Bolivia has made visible the historical context of the dispute: The right of the Bolivian people to completely benefit of the diverse resources provided by the sea, and sustaining the legitimacy of a cause which relates to an absurd war between brother nations during the remnants of Colonialism and the battles of transnational companies of the period for the natural resources.
Seen altogether the ruling of the court seems to open a new stage of “significant” negotiations, which need to be prepared and accepted by both countries.
Consejo Editorial: Fredy Chaparro Sanabria Director Unimedios, Nelly Mendivelso Rodríguez Oficina de Prensa, Liseth Sayago Cortes Oficina de Realización Audiovisual, Carlos Raigoso Camelo, Oficina de Producción Radiofónica, Ramiro Chacón Martinez Oficina de Proyectos Estratégicos.
Editor: Álvaro Enrique Duque Soto
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