[Monica Feria-Tinta is a barrister specialising in Public International Law, at the Bar of England and Wales and Simon Milnes is a barrister specialising in international environmental law and the business/ human rights nexus.]
The Americas’ proud heritage of settling disputes through international law entered a new chapter this week, as arguments opened in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), a claim by Bolivia to regain access to the sea lost in 1879. Brilliant legal minds will cross swords over the coming days, over whether Chile is obliged to sit down and negotiate with Bolivia. But, whoever prevails in Court, negotiations could prove a win-win by healing a troubled relationship.
Bolivia lost its 200-mile coast after humiliating defeat in the 1879-83 ‘War of the Pacific’ that broke out after an earthquake forced Bolivia to impose taxes on Chilean exporters of nitrate and saltpetre. Even as Bolivia’s port of Antofagasta fell, Chile’s foreign minister, Domingo Santa María, argued that “we cannot suffocate Bolivia … we must somehow provide it with its own port, a front door …”. In 1904, a Chile-Bolivia peace treaty agreed the coastal territories now belonged to Chile “in perpetuity.” Yet sentiments like Santa María’s have echoed down the years. Bolivia contends that from the totality of these assurances, Chile has given a solemn undertaking to negotiate a sovereign access to the sea.
Several features of the case are likely to fascinate international lawyers.
First, while most international cases centre on treaties or customary rules, here Bolivia cites mostly political declarations, diplomatic notes and resolutions. Are such statements mere ‘soft law’ lacking binding effect? Or do they create some enforceable obligation? At the heart of this question is the problem of how to decide what the sources of international law are (beyond the most orthodox categories in the ICJ Statute). The ICJ’s own case law establishes that an agreement involving states may be binding even if it is not a treaty (Anglo-Iranian Oil Case), and that unilateral declarations of a State can create binding obligations (Nuclear Tests (Australia v. France), also considered in the UK/Ireland OSPAR arbitration (2003)). But the ICJ also cautioned that declarations that do so “may be, and often are very specific”, and that a “restrictive interpretation” is called for (Nuclear Tests, Australia v. France).
Good faith, conduct and result
Second, is Bolivia’s claim pushing the envelope by linking negotiations to a specific result? Or is it only an ‘obligation of conduct’ (i.e. to discuss, without prejudging the outcome)?
Good faith is overarching and ever-present in international law, with a long legal pedigree. The Venezuelan Preferential Claims Case (1904) affirmed that good faith “ought to govern international relations“. Indeed, the Tacna-Arica arbitration (1925), also arising from the War of the Pacific, was one of the earliest decisions on the legal duty to negotiate in good faith. In the Right of Passage over Indian Territory Case (1960), Judge ad hoc Fernandes called it “the most general and the most essential of the general principles of law”, while in the celebrated WTO case US-Shrimp, the Appellate Body described it as “at once a general principle of law and a general principle of international law”. Yet, as Bin Cheng put it in his 1953 classic, General Principles of Law, “[w]hat exactly this principle implies is perhaps difficult to define”. It usually does its work through other legal rules, not as a freestanding source of obligations.
International law has not shrunk back from finding states to be under obligations to negotiate “in good faith”. As regards the conduct element – manner, modalities, and attitude – it is already clear that no ‘box-ticking’ exercise would suffice. In North Sea Continental Shelf (Germany v. Denmark), the ICJ held that international law on the delimitation of continental shelf boundaries required the two states to negotiate sincerely and to make real efforts to equitably accommodate one another’s interests (“to enter into negotiations with a view to arriving at an agreement . . . [and] so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it . . .”). Thus, if the ICJ finds that Chile bound itself to negotiate, this will likely include a duty to make negotiations “meaningful”, including contemplating modifications to its position and identifying what concessions from Bolivia could be an acceptable price for access to the ocean.
As regards the result element, this is perhaps the most complex and difficult aspect. In the PCIJ advisory opinion on Railway Traffic between Lithuania and Poland, the two states had concurred in accepting a recommendation to “enter into direct negotiations as soon as possible” so as to establish “the good understanding between nations upon which peace depends” – theoretically a ‘result’ obligation, but perhaps so broadly worded that it is dubious whether it could be enforceable. (Such doubts nonetheless call to mind the observations of Judge Lauterpacht in his Separate Opinion in South-West Africa Voting Procedure: “however rudimentary, elastic, and imperfect” the content of a binding resolution may be, it does not lose its nature as a legal obligation. Discussing this Opinion, O’Connor wrote that Lauterpacht emphasized “the legal nature” of the obligation to act in good faith, even where “it was difficult to draw the dividing line between a legal obligation and a non-legal obligation.”)
Contrastingly, in the ICJ’s 1996 Nuclear Weapons Advisory Opinion, the Court held that all parties to the Non-Proliferation Treaty had bound themselves absolutely to achieve “a precise result” – complete denuclearization – with good faith negotiations as the means.
Bolivia’s contentions fall somewhere in between the two. Unlike “good understanding” (Railway Traffic), the concept of “a fully sovereign access to the Pacific Ocean” has some irreducible substantive content; on the other hand, unlike the single “precise result” required in Nuclear Weapons, there are many possible permutations for how it could be achieved, and what Bolivia could offer in return.
In the Fisheries Jurisdiction Cases (UK v Iceland), the Court held that negotiating in good faith required the parties to “reasonable regard to the legal rights of the other”. But to what extent could good faith require regard for considerations beyond “hard law”, such as justice and equity?
Whilst some consider equity an extra-legal notion, others regard it a general principle of international law. Indeed in the Tunesia/Lybia Continental Shelf Case, the ICJ made it clear that equity is a general principle “directly applicable as law”  ICJ. Rep p. 60.
Context – the obligation to use pacific means to settle international disputes
Third, the dispute throws into relief the ways that general principles – like the obligation to use ‘pacific means’ to settle disputes, ‘good neighborliness’ (reflected in Article 74 of the UN Charter), and equity or justice – may shape concrete legal duties. Equity plays a role, though limited, in deciding existing borders (Frontier Dispute, Burkina Faso/Mali), but questions of negotiating to move frontier lines are uncharted territory.
While the legal questions are difficult, Bolivia’s confinement appears (in layman’s terms) so unfair that a negotiated change would seem to offer better prospects all round. Objective data shows that landlocked countries suffer impediments to development. In today’s global economy, a coastline with a port means the chance to develop a whole ‘ecosystem’ of production and service industries which support one another, increasing GNP: freight-forwarding, chartering, ship repairs, marine fuels, insurance, etc, not to mention fisheries and the ‘Blue Economy’ [openknowledge.worldbank.org].
What does Chile have to gain, if it were to negotiate Bolivia’s access to the sea? More cordial relations, clearly – but probably much more: strong demand for Bolivia’s natural gas, and a prolonged drought in Chile, with water supply to the Santiago region expected to fall by 40% over the next half-century, could increase the value of Bolivia’s potential gas and water exports to Chile.
Recent examples justify optimism. Last week, Timor-Leste and Australia put years of acrimony behind them with a new maritime boundary treaty. In Latin America, the Pulp Mills dispute (Argentina/Uruguay) is an encouraging precedent: within 6 months of the ICJ’s 2010 judgment they had negotiated new environmental protection arrangements for the River Uruguay. Across the world, Singapore and Malaysia experienced frictions over a railway track owned by Malaysia that bisected its island neighbour; in 2010 they negotiated to swap the railway land for stakes in prestigious real estate. Today, the tracks that generated so much discord are a much-loved nature trail.
In short, governments who get around a table with a will to find solutions can surprise themselves. Vision and pragmatism on both sides could transform Bolivia’s economic future, see Chile recompensed, and demonstrate the strength of the Americas’ distinctive tradition of peace and law in international affairs.