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.