by Institute for Global Dialogue
by Institute for Global Dialogue
The case brought to the International Court of Justice (ICJ), the United Nations’ (UN) primary judicial branch, by Bolivia can signify a significant turning point or watershed moment for the ICJ, or it could just be another blot on the record of the ICJ’s jurisdictional affectivity and legitimacy. Furthermore, as the ICJ’s jurisdiction is in question, this case provides it with a unique opportunity to provide new and innovative solutions to persistent problems, as well as the chance to gain global recognition for its role as a legitimate global institution of justice. The ICJ should thus take this opportunity to carry out its responsibilities of delivering justice in cases brought to it, and the Bolivian-Chilean dispute may serve to add to the legitimacy that global institutions of law and justice dearly need.
The ICJ has had numerous cases that ultimately affected its credibility and legitimacy as a global judicial institution, such as Nicaragua vs. the USA. Part of the ICJ’s predicament is the lack of an ICJ enforcement agency and part of it is State Sovereignty, therefore the case has arisen whereby it up to the United Nations Security Council (UNSC) to enforce the decisions taken by the ICJ. What the Court does have is a group of fifteen judges of different nationalities elected by the UN General Assembly and the UNSC. The Court also has a dual role: to settle the legal disputes submitted to it by signatory States, and to give advisory opinions on legal questions referred to it by duly authorized global organs and agencies, in accordance with international law.
Accordingly, the jurisdiction of the Court falls into two distinct parts, namely, contentious jurisdiction and advisory jurisdiction. Contentious cases like the dispute between Bolivia and Chile, can be instituted in the ICJ through two means, notification or application. Firstly, case proceedings can be instituted through the notification of a special agreement lodged with the Court by either of the States involved in the proceedings or by both states, which is of a bilateral nature. These cases are formally marked in documentation as “State x/State y” as there is neither an “applicant” State nor a “respondent” State. Secondly, an application can be submitted which is of a unilateral nature. This means that the application is submitted by the Applicant State against a respondent State. These cases, like the one between Bolivia and Chile are marked by the official title of the case and the names of the two parties that are separated by the abbreviation “v.” (for the Latin versus) for example, Nicaragua v. Colombia.
During May 2015, Bolivia approached the ICJ to present its case as to why the ICJ has to make a ruling and why Bolivia claims a part of the Atacama Desert that connects Bolivia to the Pacific Ocean, in the case “Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)”. Despite various historical perspectives and confusion surrounding the exact delineation and agreement of borders, Bolivia administered the disputed territory up until the conclusion of the Pacific War from 1879-1884. Thereafter the territories now stretching over the areas known as the Chilean regions of Antagofasta, Tarapacá and Arica and Parinacota (including the port city of Arica) would be transferred to Chile as stipulated by the 1904 Treaty of Peace and Friendship between Chile and Bolivia. Bolivia also recognised Chile’s undisputed sovereignty; however, it still referred to the loss of its territory after the Pacific War.
The 1904 treaty would thus be the last documentation that would serve as the logical systemic entry point for Bolivia’s requests for Lady Justice to activate her processes, uncover the truth and in the case of the ICJ, making recommendations as opposed to binding decisions. Bolivia and Chile’s respective legal claims or repudiations thus rests mainly on its interpretation of the 1904 treaty as allowing for compensation or compromise of some sort. The importance of the Pact of Bogota (1948) can also not be overlooked in this debate, as Bolivia has appealed to the ICJ to order Chile to negotiate the 1904 settlement based on the understanding that Bolivia has made reservations about its land claims every time when signing the Pact. This means that the significance of Bolivia’s desire to refer to the Pact lies in their form of protest by making their reservations about land claims as well as the ability of the Pact to force members of the OAS to settle their disputes through the ICJ. However, using the ICJ to settle disputes of OAS member states is possible in this case, only if Bolivia is able to effect amendments to the Pact to include disputes before 1948.
On the basis of the Pact’s Article VI and the emphasis of Bolivia’s reservations, Bolivia’s appeal to the ICJ for the restitution of its access to the ocean, is not based on the 1904 treaty. The emphasis of this pact and reservation is therefore meant to bring to the ICJ, Bolivia’s efforts to modify the 1904 treaty, and Chile’s reluctance to partake in negotiations.
Other documentation on the Atacama Desert and border delineation was also produced and signed during the war which had an impact on Bolivia’s losses. For example, the Treaty of Ancón (1883) signed between Chile and Peru resulted in the transfer of the now disputed territory of Southern Peru to Chile. Other treaties also had an impact on the status of the Atacama such as the 1866 Boundary Treaty (or the Treaty of Mutual Benefits), and the Truce of Valparaiso (1884).
Chile continues to speak the language of peace and reconciliation, whilst it does not seem to be putting in the same effort towards a practical resolution of the border dispute. Neither does there seem to be any urgency or political will to assemble at a dedicated summit or conference to discuss potential practical and implementable resolutions for all parties involved. In fact, Chile has requested that the ICJ declares itself as incompetent to make a ruling on the case, and insists that Bolivia continues on its path to resolve these tensions bilaterally with Chile. It must be noted though that the Pact of Bogotá signed and ratified by both Bolivia and Chile as members of the Organisation of American States (OAS), confers jurisdiction over disputes between signatories to the ICJ for all treaties signed by its member states before 1948.
Additionally it is important to note that, Bolivia included a reservation with its signature to the Pact and all subsequent amendments. If the OAS amends the pact according to Bolivia’s interests, Chile may end up withdrawing from the pact and the OAS, as did Colombia in 2012. Additionally, the amendment of the Pact may result in more cases of border disputes submitted to the ICJ’s jurisdictional and legal processes by OAS member states.
Some concerns arise from this case. Firstly, if the ICJ cannot or will not resolve the dispute what recourse does Bolivia have if it does not feel Chile is serious about the restitution in part of territory that Bolivia lays claim to? Does it turn to other institutional avenues such as regional or global organisations and groupings such as the G-77, the OAS (approach the ICJ for a change in the OAS Pact of Bogota Art VI) or CELAC, extra-regional states or does it opt for a bilateral approach that could assume a reconciliatory nature or an antagonistic nature? Would Peru allow for a settlement to occur that excludes its participation in decision-making about territory that it also claims?
Secondly, the Bolivia-Chile detente has a polarising effect on their respective regional communities ALBA and the Pacific Alliance (PA), as Bolivia and Chile may attempt to seek support for their respective positions from member states of these Regional Communities. Factors that may spur on this polarisation are: Questioning the possession of the Peruvian region of Tacna for Chile’s appropriation during 2007; Chile’s continued denial of Bolivian claims over territories that are now Chilean; Chile’s unflattering views about an ICJ ruling; retreat to regional partners or organisations for support; or extra-regional support from influential states like the United States (US), the United Kingdom or the European Union.
Thirdly, the tension between Bolivia and Chile threatens to spill over not only into regional communities, but also into continental organisations and institutions such as the OAS or the Community of Latin American and Caribbean States (CELAC).
These three areas of concern need to be closely monitored and governed as the tensions produced from the Bolivian-Chilean detente are potentially divisive for the region and the continent. Furthermore, these areas of concern remain entrenched as long as international law and its adjoining institutions are incapable of not only passing judgements or advisory opinions but also enforcing these rulings in such a manner that transcends the Westphalian concept of a sovereign state, and endears widespread global support throughout the UN structures. The ICJ’s ruling on this dispute may arise at the closing of 2015 and will be binding as stipulated by the UN Charter in Article 94 of member states’ compliance with the decision of the ICJ. However, before the binding nature of the ICJ’s judgement takes effect and if Chile wishes to do so, it could explore the options available that includes requesting an interpretation of the judgement’s meaning and scope. If something else is found unknown to the court before the handing down of its judgement, both parties depending on whose challenging may apply for a revision of the judgment. therefore, an increase of divergent diplomatic agendas and posturing may become noticeable and entrenched depending on the ruling and reactions.
The overarching issue of concern is the ICJ’s capacity and jurisdiction globally and more particularly in the forthcoming ruling, and how it implements or ensures the implementation of its judgement. The UNSC, despite its unrepresentative composition, remains as the UN body most capable of enforcing such rulings, however due to the political nature of this organ and the political tensions and relations brought to these bodies, the judgments of the ICJ can be subverted or circumnavigated if the “right” and the right amount of support is garnered. The US’s acceptance of the ICJ’s ruling on Nicaragua should be an indication of the kind of accessible-power that is required to frustrate and escape the intentions of the ICJ and global law.
Chile’s non-recognition of the foreseeable ruling of the ICJ may result in various outcomes as noted above, and if the ICJ makes a ruling that favours the interests of Bolivia, Chile may end up withdrawing from the ICJ. This could have a profound impact on Chile’s global image (especially in the global South) and its membership to the OAS (as the OAS’s pact expressly recommends that all disputes between member states must be brought to the ICJ). Therefore, on Chile’s behalf the activation of regional and global alliances in the run up to the final Court judgment, and potentially in preparation for the post-judgment period can and should be expected.
Although solutions have been offered, one of which was Peruvian suggested that Arica be designated as a tri-national city with collective sovereignty between the states, Chile has resisted any mention of giving up territory without exchanges of equal proportions of land, and so too has Bolivia resisted against Chile’s proposals. This has resulted in the current status quo whereby Bolivia seeks to see Chile act on morals and transcend the 1904 treaty that defined the current disputed border delineation. Further, the economic performance and the amount and rations of wealth distribution occurring in these states, may lead to dissatisfaction forcing the respective governments to not only seek to entrench and exploit matters of their perceived identities but also matters of economic importance.
The unresolved dispute over the Atacama threatens to disrupt Latin American projects on unity and integration, and the development in the areas most affected by this border dispute. The lack of an alternative authoritative mediator or mediation mechanism, in the absence of the ICJ’s jurisdictional implementation capability only serves to keep a wound open and festering for longer. This status quo thus increases the amount of risks in achieving a stable and prosperous Latin American System of Relations. State tensions threaten to spill over into regional communities thereby becoming a catalyst for the creation of divisions among Latin American states at the bilateral level, but also within organisations such as the PA and ALBA. Mercosur may also become an increasing area of trade integration and potentially an area where political support may be sourced from, now that Bolivia has joined the group. Furthermore, these regional and inter-state tensions may be expressed and furthered through the continental organisations and institutions.
The resolution of this dispute is therefore not only crucial for the stability and unity of Latin America, but is also crucial for restoring some of the reputation, legitimacy and clout to the workings of the ICJ. This is a crucial opportunity for the ICJ to claim its position and credibility as a court that it can deliver rulings that the global community can group around and adopt as means to govern their relations at the global, regional and bilateral levels. This global solidarity around ICJ ruling of any nature is necessary, as it provides the ICJ with legitimate endorsement at the global level that can counter the fact that it has no power to enforce rulings. Furthermore, the ICJ has an opportunity to be innovative in the delivery of justice as it is not able to enforce its rulings, but usually has to consider rulings that would be just and fair and most importantly rulings that would be innovative and pragmatic to not only release tension but also encourage future cooperation and global solidarity around certain relational markers.
*Wayne J. Jumat is a research assistant at the Institute for Global Dialogue associated with the University of South Africa. His research interests include foreign policy analysis, international relations and diplomacy with a focus on African, more specifically Southern African, and Latin American relations. He is currently registered as a MA student in International Politics at the University of South Africa. His views do not necessarily reflect those of the IGD.