Tuesday, July 9, 2013

Bolivia against Chile and the obligation to negotiate under international law

Is there a general “obligation to negotiate” under international law? That is the main question that has been posed to the International Court of Justice ("ICJ") in the last case submitted to its docket, where Bolivia is requesting the Court to declare Chile’s obligation to negotiate in good faith an agreement granting Bolivia full sovereign access to the Pacific Ocean.

Bolivia’s case rests in three main and related submissions: (i) the existence of the obligation to negotiate; (ii) the non-compliance of such obligation by Chile; and finally, (iii) Chile’s duty to comply with the obligation to negotiate.

The background of the case goes back to 1879, when as part of an armed conflict with Chile, Bolivia lost 400 kilometers of coastline and 120,000 square kilometers of territory. Concerning this event, Chile argues that it cannot serve as a ground for the dispute, since both countries signed the “Treaty of Peace and Friendship” in 1904, where they duly established their territorial and maritime boundaries. Bolivia, for its part, alleges that in 1884, it signed a Truce Pact accepting under pressure the continuing military occupation of its territory by Chile.

It has been reported that Bolivia assessed the possibility of attacking the validity of the aforementioned treaties by invoking the rules established under Articles 51 and 52 of the Vienna Convention on the Law of Treaties (“VCLT”), which provide that an agreement obtained by coercion of a representative of a State or by the threat or use of force, results in the nullity of the accord. But finally, such argument was not invoked in the application, mainly for the lack of evidence to that effect.

Thus, Bolivia’s long time desire to obtain access to sea depends on the ICJ’s consideration of a supposed obligation to negotiate owed by Chile, arising specifically of conversations between both governments in 1948, several resolutions of the Organization of American States (“OAS”), documents exchanged between dictators Augusto Pinochet and Hugo Banzer and a common agenda initiated under the tenure of Michelle Bachelet, which was in force at least until the first months of the presidency of Sebastián Piñera in 2010.

In principle, let us remember that under a classic understanding of international law, any obligation must originate from one of its main sources, that is: a treaty, custom or a general principle of international law. Taking that into account, it seems that conversations, documents exchanged and a common agenda between governments, cannot be considered as part of the aforementioned sources and therefore, cannot give rise to an obligation to negotiate.

A swift assessment of the legal regime of the OAS resolutions leads to the same conclusion, since there is no provision in the OAS Charter which can serve to argue that such resolutions are indeed of obligatory nature, the prominent view nowadays in the region being that such resolutions are plain expressions which merely contain high political and diplomatic content.

Hence, the debate before the ICJ is to what extent, conversations held by senior officials from both countries, which were not subsequently materialized in a treaty or another type of international agreement, created an obligation to negotiate for the Chilean State. The funny thing is that those “conversations” that were held even as recently as during the first months of the Piñera presidency which started in 2010, can be indeed considered negotiations between both States. That leaves us with a question that’s quite a tongue twister: when States negotiate do they agree to continue negotiating?

In that sense, some international scholars have argued that the process of negotiation is part of the conflict between the States involved in a dispute. Consequently, until the negotiations result in a binding international agreement, the negotiating States assume no legal obligations. On the other hand, some consider that obligations can arise from a negotiation phase.

Opportunely, this will not be the first time that the ICJ elaborates on the obligation to negotiate. In the Fisheries Jurisdiction Case between the UK and North Ireland and Iceland; and in the North Sea Continental Shelf Cases between the Federal Republic of Germany and the Netherlands and Denmark, the principal judicial organ of the UN held that States are obligated to negotiate in certain situations.

In a few words, according to those judgments, States are obligated to negotiate in disputes where one State possesses legal rights which can only be defined in relation to the legal rights of the other. Therefore, States must enter into negotiations once it is determined that under conventional or customary international law, one of those States has rights with respect to a particular matter, like for example, maritime and territorial boundaries.

The problem in this case is that there has never been an international agreement to negotiate between Bolivia and Chile, but merely conversations between both governments and some OAS resolutions inviting both countries to undertake a negotiation process. 

According to Bolivia’s application before the ICJ, the most convincing proof of a will to negotiate is a note issued by the Chilean government dated December 19, 1975, where it declared that it “would be prepared to negotiate with Bolivia the cession of a strip of land.”

The vagueness and impossibility of concluding that an obligation arises from such declaration takes us to our initial question: is there a general obligation to negotiate for States parties to the UN Charter? After all, Article 2.3 of the Charter provides that “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

However, our view in this regard is that the principle of peaceful dispute settlement contained in the UN Charter does not give rise to a general obligation to negotiate, since what such Article is really establishing is that States have to resolve their differences in a peaceful manner, but not necessarily through a negotiation process. Therefore, if a State is not willing to negotiate, the other State has to recourse to any other of the peaceful options available to it, except if they have established a clear obligation to negotiate under an international agreement or if that obligation arises from international custom.

Such conclusion seems in line with the ICJ’s decision in the Border and Transborder Armed Actions Case, where the Court held that even though the principle of good faith, referred under Article 2.2 of the Charter, “is one of the basic principles governing the creation and performance of legal obligation, it is not in itself a source of obligation where none would otherwise exist.” Furthermore, the Court, in the Fisheries Jurisdiction Case, cited the North Sea Continental Shelf Cases to conclude that the obligation to negotiate “merely constitutes a special application of a principle which underlies all international relations, and which is moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes.”

Thus, it is very probable that in the case of Bolivia against Chile, the ICJ confirms that unless there is an express obligation to negotiate arising from a treaty or international custom, a State does not have an obligation to negotiate. In that sense, there is no doubt that at least in the understanding of the Court, the most fundamental legal principle in international law continues to be that States must give their consent in order to be constrained.

Whatever happens in the course of the litigation, Chile has fewer reasons to be worried than Bolivia since as concluded in the recent Pulp Mills on the River Uruguay Case, the ICJ considers that in any case, “an obligation to negotiate does not imply and obligation to reach an agreement”, so even assuming that Chile has an obligation to negotiate, Bolivia cannot pretend that the only feasible result of such negotiations is an agreement which grants it access to the Pacific Ocean.

Therefore, it is obvious that this conflict has more options to be resolved in a diplomatic or political level, where it will be important to assess the role of international organizations such as the OAS and the UN, but where the greater relevance will rest on a possible change of criterion in Chilean politics, where Michelle Bachelet, who advanced a common agenda with Bolivia during her first presidential period, might return if she manages to win in the presidential election set out for November 17, 2013.

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