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.

The Case for the Compulsory Jurisdiction of the ICJ

Why do States comply with international law? In contrast with national law, in international law there is no State more sovereign than the other, so there is not a recognized superior governmental authority. Furthermore, there is no international legislature, which is why many have said that international law lacks the legitimacy which endorsement by a democratic legislature would give.

 

As the year 2010 comes to its last months, it is appropriate to scrutinize where is the international community in regards to the fulfillment of its obligations under international law, and more specifically, what can be done to preserve the rule of law across the globe. 

There is no doubt that since international law involves a different and sometimes unrecognizable body of law, many States still do not give too much weight to the performance of its international obligations. However, for their development, States must begin to realize that international law rests on similar principles and pursues similar ends than national law; which is no other than the observance of the rule of law.

 

Accordingly, in their Millennium Declaration the member states of the United Nations resolved to “strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties”. 

Therefore, it is not precisely a new idea that a true development of the rule of law in the international sphere would entail a greater acceptance of the compulsory jurisdiction of the International Court of Justice (ICJ). Nowadays, while 65 of the 192 member states of the United Nations have chosen to accept the compulsory jurisdiction of the ICJ, a majority do not, and it is a lamentable fact that, of the five permanent members of the Security Council, only one, the United Kingdom, does so, Russia and China never having done so and France and the United States having withdrawn earlier acceptances. 

The justification of the dissimilar regime in relation to different Member States of the United Nations is simple. The ICJ has jurisdiction in contentious cases between states, on the basis of the consent of the parties. This principle, reflected in Article 36 of the Statute of the Court, rests on international practice in the settlement of disputes and is a corollary of the sovereign equality of states. For its part, the compulsory jurisdiction of the ICJ is enshrined in Article 36(2) of the Statute, which establishes: 

2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: 

a. - the interpretation of a treaty; 

b. - any question of international law; 

c. – the existence of any fact which, if established, would constitute a breach of an international obligation; 

d. - the nature or extent of the reparation to be made for the breach of an international obligation. 

The recognition of the compulsory jurisdiction of the ICJ by all the member states of the United Nations is undoubtedly, a move which must be taken if the rule of law is to become truly successful in international law. However, former President of the ICJ, Dame Rosalyn Higgins has said that the suggestion that the rule of law requires, in this day and age, a routine and obligatory recourse to the Court in matters connected to the UN Charter and related issues is still a step too far. Nevertheless, she also recognized that the absence of a compulsory resort to the Court falls short of a recognizable rule of law model. 

International law is not imposed on states by external legislature, and a powerful reason of why states do sometimes comply with international law is that they make rules to suit themselves. However, the most potent of all reasons for compliance by states with international law is the sheer necessity of doing so. The point was well made by Douglas Hurd in 1997: 

Nation states are incompetent. Not one of them, not even the United States as the single remaining super-power, can adequately provide for the needs that its citizens now articulate. The extent of that incompetence has become sharply clearer during this century. The inadequacy of national governments to provide security, prosperity or a decent environment has brought into being a huge array of international rules, conferences and institutions; the only answer to the puzzle of the immortal but incompetent nation state is effective cooperation between those states for all the purposes that lie beyond the reach of any one of them. 

Therefore, having in mind that the main purpose of the United Nations is to maintain international peace and security, there is no better way to elucidate the disagreements between the nations than to resort to an impartial institution like the International Court of Justice. The principle of justice must be uphold by the international community, and the compulsory jurisdiction of the Court will lead to the peaceful adjustment and settlement of international disputes or situations which might lead to a breach of peace. There is no wisdom other than to seek injustice and disparity, if the different Member States cannot accept than an impartial body will only apply the law that they previously accepted to comply with. The time has come for States to understand that without true will of complying with their obligations and seeking justice, there is no possible future.

Kosovo, the International Court of Justice and Judicial Restraint

Although the International Court of Justice, delivering an advisory opinion last week, simply said that international law does not prohibit the people of Kosovo (or their representatives) from declaring independence, many minorities in the international community will find the opinion of the main judicial body of the United Nations as an ally in their way to achieve independence. No doubt, the International Court of Justice has just given a major boost to all of those aspiring for independence.

First, let us remember that the International Court of Justice has an advisory jurisdiction, pursuant to Article 65 of its Statute, to answer any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations. Thus, some months ago the General Assembly asked the ICJ the following question: 

“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law”? 

Legally speaking, this method of question referral is worth studying, since in a political body like the General Assembly it is very important how you draft the question in order to get the sufficient votes for the referral to the International Court of Justice, but it is precisely the narrow scope of a determined question that affects the final result of an advisory opinion. 

The genuine issue with Kosovo is not really whether the unilateral declaration of independence is in accordance with international law, but whether there is an obligation in international law for third States to recognize Kosovo, considering the circumstances of its independence. However, the International Court of Justice, in what seems a landmark application of the interpretation theory of judicial restraint, said that although it recalls that in previous cases it had departed from the language of the question put to it where the question was not adequately formulated, in the present case, the question posed by the General Assembly is clearly formulated. Specifically, it said: 

The question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of the declaration. In particular, it does not ask whether or not Kosovo has achieved statehood. Nor does it ask about the validity of legal effects of the recognition of Kosovo by those States which have recognized it as an independent State. The Court notes that, in past requests for advisory opinions, the General Assembly and the Security Council, when they have wanted the Court’s opinion on the legal consequences of an action, have framed the question in such a way that this aspect is expressly stated. 

In regards to the core issue of the opinion, that is, the legality in international law of Kosovo’s declaration of independence, the Court was very straightforward, establishing that in the second half of the twentieth century there is no evidence of the emergence in international law of a new rule prohibiting the making of a declaration of independence. In other words, there is no conclusive international custom at the present time that would make illegal that a determined minority declares its independence, being this one of the most dangerous affirmations the Court made.

More importantly, the ICJ stated that the principle of territorial integrity does not apply in cases of declaration of independence, because, in the words of the Court, “it is confined to the sphere of relations between States”, hinting that a declaration of independence is respectful of international law at least if it does not involves the unlawful use of force or other serious violations of international law, like jus cogens norms. 

It is worth noticing that the most controversial issue during the development of the advisory proceedings, was not answered by the Court, since the majority of the judges thought that the question of the right to remedial secession under international law was highly contentious among the States that participated in the proceedings and was not relevant in order to answer the question the General Assembly of the United Nations submitted to the Court.

In my humble opinion, the Court has done here a very dangerous thing, since while not answering completely the legal issues surrounding the Kosovo case, there is still no clear law regarding the complex relation between the principle of self-determination, secession and recognition of new States, and now probably some separatist groups are just going to think that they can easily declare independence from their States, causing a severe political crisis in several countries. However, it is also true that the Court cannot surpass the political will of the Member States of the United Nations, determining what the international law is, leaving us that with the conclusion that the Court should not have accepted to give the opinion in the first place. 

Anyhow, it is important to notice the judicial restraint of this International Court of Justice, compared with the one that decided the Wall Advisory Opinion. After all, it does not correspond to the judiciary, especially in a setting like the United Nations, to say what the law is, but to apply the law. In any case, it is important to keep in mind that declarations of independence are mainly domestic affairs and the United Nations does not reprove them except there is a violation of international law involved in the making of the declaration. Therefore, States better hurry in prohibiting minorities to declare independence in their domestic legal systems.