Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)
On 24 April 2013, Bolivia filed an Application instituting proceedings against Chile concerning a dispute in relation to “Chile’s obligation to negotiate in good faith and effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean”. In its Application, Bolivia states that the subject matter of the dispute lies in “(a) the existence of th[e above mentioned] obligation, (b) the non compliance with that obligation by Chile, and (c) Chile’s duty to comply with the said obligation”. As basis for the jurisdiction of the Court, the Applicant invoked Article XXXI of the Pact of Bogotá of 30 April 1948, to which both States are parties.
On 15 July 2014, Chile, referring to Article 79, paragraph 1, of the Rules, filed a preliminary objection to the jurisdiction of the Court in the case. In accordance with paragraph 5 of the same Article, the proceedings on the merits were then suspended. In the Judgment which it rendered on 24 September 2015, the Court rejected the preliminary objection raised by Chile. It then found that it had jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to entertain the Application filed by Bolivia.
The Court delivered its Judgment on the merits on 1 October 2018 in which it found that Chile did not undertake a legal obligation to negotiate a sovereign access to the Pacific Ocean for Bolivia. In so doing, the Court concluded that the bilateral instruments invoked by Bolivia do not establish an obligation on Chile to negotiate Bolivia’s sovereign access to the Pacific Ocean; that an obligation to negotiate Bolivia’s sovereign access to the sea cannot rest on any of Chile’s unilateral acts referred to by Bolivia; that the alleged acquiescence of Chile cannot be considered a legal basis of an obligation to negotiate Bolivia’s sovereign access to the sea; that estoppel cannot provide a legal basis for Chile’s obligation to negotiate Bolivia’s sovereign access to the sea; that there does not exist in general international law a principle that would give rise to an obligation on the basis of what could be considered a legitimate expectation and, consequently, Bolivia’s argument based on legitimate expectations cannot be sustained; that the provisions of the United Nations Charter and the Organization of American States (OAS) Charter invoked by Bolivia could not be the legal basis of an obligation to negotiate Bolivia’s sovereign access to the sea; that the Court cannot infer from the content of the OAS resolutions nor from Chile’s position with respect to their adoption that Chile has accepted an obligation to negotiate Bolivia’s sovereign access to the Pacific Ocean; that, given that its analysis shows that no obligation to negotiate Bolivia’s sovereign access to the Pacific Ocean has arisen for Chile from any of the invoked legal bases taken individually, a cumulative consideration of the various bases cannot add to the overall result.