On October 1, 2018, the International Court of Justice (ICJ) delivered its judgment in Bolivia’s case against Chile, rejecting Bolivia’s arguments that Chile had an obligation to negotiate sovereign access to the Pacific Ocean for Bolivia. Bolivia, a landlocked state with limited access to the sea neighboring Chile, sought to obligate Chile to negotiate on their terms.
The case stemmed from the consequences of the War of the Pacific between Bolivia and Peru against Chile, which rendered Bolivia landlocked. A 1904 Peace Treaty between Chile and Bolivia sealed the territorial status quo. The ICJ held that after the 1904 Peace Treaty, Chile never accepted any legal obligation to negotiate a sovereign access to the ocean. Chile currently allows Bolivia duty-free access to the port of Arica, but Bolivia sought to have a passage, including a train line and port, under its own control. According to the World Bank, landlocked states are the most economically vulnerable. Oftentimes, their communities are developmentally hindered. It affects most aspects of the community, including security, economy, and foreign policy. The Bolivian government argued that restoring sovereign access to the sea would revolutionize the economy, which currently has the second lowest per capita GDP in South America. Bolivian officials have previously stated that the country’s annual GDP growth would be twenty percent higher if it still had a route to international waters.
As a result of the ICJ’s ruling, Bolivia cannot hold Chile to any obligation or impose any negotiations that would question the territorial integrity of Chile. The ICJ’s ruling recognized the history of dialogue, exchanges, and negotiations between the two states as well as the attempts to resolve the landlocked situation of Bolivia following the War of the Pacific and the 1904 Peace Treaty. However, the ICJ did not see this history as binding on Chile and therefore reinforced the United Nations Convention on the Law of the Sea (UNCLOS) protection of transit states. Although only noted once in the ICJ’s judgement, Article 125 of UNCLOS is of particular importance because it directly discusses the rights of landlocked states, like Bolivia, and transit states, like Chile.
Both states demonstrably recognize the importance of Paragraph One of Article 125, which states that landlocked states have the right to access the sea through the territory of transit states to exercise the rights outlined in UNCLOS. Paragraph Two states that the transit state and the landlocked state shall agree upon the terms of access to the sea through “bilateral, subregional, or regional agreements.” The ICJ notes Bolivia’s belief that the 1984 declaration made upon signature of the UNCLOS that mentioned negotiations to restore sovereign access to the sea required a response from Chile. Bolivia believed that Chile’s subsequent silence on the declaration and their engagement in negotiations with Bolivia solidified Chile’s obligation to negotiate sovereign access. This obligation would emphasize Paragraph Two because it would reserve more rights for landlocked states than transit states.
Paragraph Three of Article 125 asserts that transit states have the right to ensure that the landlocked states do not infringe on the sovereignty of their territories. Chile contends that there is no obligation to negotiate and Bolivia failed to prove that one was created by acquiescence. Silence on a declaration made on the signing of UNCLOS does not create a legal obligation. The ICJ stated, “acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent” and no such conduct occurred to create a legal obligation on Chile.
Bolivia’s attempt to impose on the sovereignty of Chile, a transit state, violated Article 125. Chile and Bolivia have an established agreement that allows Bolivia the right of access to and from the sea as well as its freedom to exercise the rights stated in UNCLOS, but Bolivia sought more. Had the ICJ ruled in Bolivia’s favor, it would have created a precedent that would allow landlocked states to put their needs before the sovereignty and rights of the transit states they would impede upon. On the other hand, Bolivia continues to have difficulties as a landlocked state that could have been eased had the judgment been in its favor. The ICJ decision reinforces the economic vulnerability that Bolivia faces as a landlocked state. The most obvious handicap is the reliance on transit states to implement treaties that gives Bolivia, and similar landlocked states, access to ports to develop their trade. The Economist reports that companies often consider landlocked nations unreliable trading partners because their trade can be interrupted by transit states. For example, in 2013, Chilean customs officials went on strike and negatively affected the Bolivian companies who were trying to pass through customs to access the ports. It is estimated that the Bolivian GDP would be one-fifth higher if they had continuous access to the sea.
Nevertheless, the ICJ encouraged both Chile and Bolivia to continue their dialogues and exchanges as had been done in the past. The Court encouraged “good neighbourliness” and recognized that it was in both their interests to undertake willing and meaningful negotiations. The case will likely hold a significant impact on the negotiations between transit states and landlocked states in the future. Transit states will emphasize their sovereignty and note that there is no legal obligation to give access to the sea particularly if it puts the transit state at risk. The case also hinders the economies of developing landlocked states who rely on their access to the sea to improve their economy.