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.
