Resubmitted Chile Memorandum copy

 Bolivia v. Chile MEMORANDUM Stephen Horvath & Clara Rupf, Westminster School PREPARED BY CHILE FOR THE BERLIN MODEL UNITED NATIONS XXIV INTERNATIONAL COURT OF JUSTICE | AN OUTLINE OF THE FACTS OF THE CASE, WITH LEGAL AGREEMENTS AND OTHER EVENTS INTERWOVEN INTO AN EXPLANTORY CHRONOLOGY Contents
Chronology of events ....................................................................................................................................... 2 Geographical Facts ........................................................................................................................................... 6 Legal Concepts ................................................................................................................................................... 7 Chile’s objection to the jurisdiction of the Court ................................................................................. 8 I: The standing of Bolivia’s appeal and the 1948 Pact of Bogota ................................................. 8 II: The nullification of the 1895 Treaty .................................................................................................. 9 III: Conclusions .............................................................................................................................................. 9 Maps .................................................................................................................................................................... 10 Sources ............................................................................................................................................................... 12 1 | P a g e Chronology of events
1. 1818 – (a) Chile becomes independent from Spain on 12th February;
(b) National borders are drawn with help from the uti possidetis legal principle (see
Legal Concepts) but their exact placement is still uncertain as a portion of Southern
Chile remained under the influence of Spanish royalists until well into the 1820s.1
2. 1825 – (a) Bolivia gains independence from Spain on 1st April;
(b) Inconclusive debate over whether the territory of Charcas, assimilated by
Bolivia, encompasses access to the sea;
(c) Leader of Bolivia Simon Bolivar arbitrarily claims access to the sea at port
Cobija, ignoring Chile’s overlapping and equally valid claim that Bolivia had a
periphery edging on Peru passing through Rio Loa (see Fig. 1.1 and 1.2).
3. 1829 – Andres de Santa Cruz, the president of Bolivia, launches a military
intervention in Peru.
4. 1833 – In its Constitution, Chile demarcates its territory as extending from the
Atacama Desert to Cape Horn.
5. 1836 – (a) Bolivia and Peru form the Peru-Bolivian Confederation after
political turmoil and military fighting2;
(b) Chile, as a neighbouring country, feels its power is threatened by the size and
strength of the new Confederation and declares war on Bolivia, with Argentina
following Chile’s example in 1837.
6.
1839 – Collapse of the ephemeral Confederation.
7. 1866 – Borders between Chile and Bolivia finally decided via the Treaty of
Mutual Benefits, instituting their dividing frontier on the 24th Parallel South (see
Fig. 2), as well as setting out other territorial and financial settlements with a
mutual zone for both nations between the 23rd and 25th parallels.
8. 1879 – (a) General Hilarion Daza of Bolivia breaches the 1866 Treaty just 13
years after Bolivia signed it by increasing taxes on saltpetre exports;
(b) Chilean saltpetre companies justifiably reject these unfair terms;
(c) Daza dictates an illegitimate and disproportionate response, starting with
Bolivian confiscation of state and private Chilean companies and assets and their
subsequent sale to Bolivians;
(d) Daza abruptly ends all trade with Chile and banishes all Bolivian residents of
Chilean nationality in an aggressive nationalist move;
(e) The 1866 negotiated treaty is rendered meaningless by Bolivia’s direct violation
of its terms and putting an abrupt end to all ‘mutual benefit’ set out in the Treaty, a
situation that Chile has no choice but to accept;
2 | P a g e (f) Chile declares war on Bolivia (termed the War of the Pacific, April 5, 1879 –
October 20, 1883) following its unequivocal provocation and stations troops in the
contested coastal area;
(g) Peru intervenes in the War of the Pacific by taking sides with Bolivia,
(i) This is a direct result of the 1873 Secret Treaty signed by between
Peru and Bolivia to form a so-called ‘defensive’ alliance. This was in fact
a subversive attempt at an offensive alliance against Chile3;
(h) Chile wins the War of the Pacific and by consequence assumes control of the
contested coastal area under the uti possidetis principle.
9. 1883 – Through the peacetime Treaty of Ancon, Peru recognises Chilean
sovereignty over the concerned littoral.
10. 1884 - Chile signs a Truce Pact whereby peacetime conditions were established
with free trade, and Bolivia agreed to pay an indemnity for war-related damages. In
return, Chile allowed 35% of custom duties from Arica to go directly to Bolivia, in
addition to 40% funding the Bolivian payment of the indemnity and loan interest.
11. 1895 – On the 18th of May, Chilean and Bolivian representatives sign a series
of three treaties, including the Special Treaty on the Transfer of Territories on 18
May, under which Bolivia acknowledges Chilean sovereignty over its former
littoral and over part of the adjacent Puna de Atacama; in return Chile agrees to
take on some of Bolivia’s financial obligations from the 1884 Truce.
12. 1896 – Both Chile and Bolivia agree on 30 April that all 3 treaties from May
1985 had to be ratified for any individual treaty to stand, and as Chile only ratified
the Special Treaty on the Transfer of Territories, the 1895 accords do not stand.
13. 1904 – (a) As the 1884 treaty required that the two states produce a final peace
treaty and the 1895 Treaties had been nullified, Bolivia and Chile signed the Treaty
of Peace and Friendship. In doing this, Bolivia validates and grants legal status to
Chile’s territorial sovereignty over the coast, including the ports of Mejillones,
Cobija, Tocopilla and Antofagasta, and in exchange Chile guarantees Bolivia: (i)
commercial transit rights through Chile, (ii) the payment of £300,000 to Bolivia,
(iii) the construction of a railroad from the port of Arica to La Paz, (iv) the use of
facilities at several Chilean ports, such as Arica and Antofagasta;
(b) The treaty provisions show that Bolivia respects Chile’s exercise of sovereignty
over the region, and also demonstrate that Chile was committed to allowing Bolivia
adequate outlets to the Pacific and peacefully dealing with the issue.
14. 1920 – Bolivia demanded that the League of Nations force a revision of the
1904 treaty. The League refused to get involved on the grounds that it was outside
of its prerogative.
15. 1929 – The Treaty of Lima was signed between Peru and Chile and concerned
sovereignty over the province of Arica (see Fig. 1).
3 | P a g e 16. 1948 – Both countries signed the American Treaty on Pacific Settlement, also
known as the Pact of Bogota, but did not ratify the Pact. Bolivia entered a
reservation concerning Article VI (see 1.3 under Chile’s Objection to the
jurisdiction of the court).
17. 1950 – Chile accepted a Bolivian request to enter into negotiations over the
latter’s access to the sea, and Chile opened itself to the idea of non-territorial
compensation as long as the legal framework of the 1904 Treaty was respected.
18. 1964 – Resurrecting long-settled historical disputes as part of a nationalist
drive, Bolivian President Victor Paz Estenssoro obstructively breaks off diplomatic
relations with Chile and thus prevents any form of negotiation over the border or
Bolivian sea access.
19. 1974 – Chile ratifies the Pact of Bogota.
20. 1973 – Generals Pinochet and Banzer, the military leaders of Chile and Bolivia
respectively, engage in secret negotiations in an attempt to resolve disputes over
territorial entitlements.
21. 1975 – (a) Diplomatic relations between Chile and Bolivia officially resume;
(b) When Pinochet and Banzer next meet for the Charana Accords, Pinochet makes
a pressured decision to cede a small portion of land to Bolivia;
(c) A stumbling block arises in the form of the Treaty of Lima from 1929, under
which Chile must theoretically consult with Peru before ceding land in the area of
Tarapaca (by the Peruvian border);
(d) On this basis, Peruvian President Francisco Morales Bermudez objects to the
cession and instead unilaterally draws up a scheme under which administration of
the port of Arica would be shared;
(e) General Pinochet declines this proposal that would have further jeopardised
regional relations.
22. 1978 – General Banzer breaks ties with Chile once more, a confrontational
move that prevents the good-faith efforts of Pinochet to continue negotiations.
23. 1992 – (a) Peru and Bolivia conclude a 50-year renewable arrangement which
gives Bolivia the right to set up shipping and customs operations in a duty-free port
and industrial park at Ilo, a Peruvian port, with financial incentives from the
Peruvian government providing a generous opportunity for Bolivia; Bolivia also
obtains a tourist zone (in place for 99 years initially but renewable) and 5
kilometres of Ilo coastline, christened ‘Bolivia Mar.’
24. 2011 – Bolivia ratifies the Pact of Bogota and confirms that it still holds its
reservation to Article VI, although it argued that the Pact was in force between it
and Chile.
4 | P a g e 25. 2013 – Bolivia withdrew its reservation to the pact on 10 April and filed this
case shortly after.
26. 2015 – (a) Chile’s repeated overtures to re-establish diplomatic relations and
negotiate a mutually favourable settlement were rebuffed by Bolivian President
Evo Morales, who declares that the restoration of diplomatic relations between
Bolivia and Chile would be dependent on Chile complying with Bolivia’s strategic
aim of sovereign access to the Pacific Ocean via Chilean territory specifically and
leaving Peru out of the matter;
(b) Chile wishes to re-open full relations, and is happy to examine any issues about
territory after that happens, but will not cede substantial portions of historically
Chilean land on inequitable terms as a prerequisite.
5 | P a g e Geographical Facts
Atacama Desert
Bordered by the Coast Range in the West and the Andes on the East, the Atacama
Desert is one of the driest places on earth. Despite being resource-rich, it is sparsely
populated. Moreover, the area’s geography was an important factor in sparking the
border dispute as well as in its continuation. Since 1842, Chile has argued that
deserts should be treated like rivers in territorial distribution and that they ought to
be divided at their median line, and thus Chile made the claim that its northern
frontier was at the Mejillones parallel. (International Boundaries Research Unit:
Boundary and Territory Briefing, Volume 1 Number 6, The Bolivia-Chile-Peru
Dispute in the Atacama Desert pp. 7-8)
Natural Resources
30% of the world’s copper is mined in the Atacama, and heavy sulphur mining is
also underway. Taxation on these businesses is key to Chile’s prosperity and nitrate
mining here in the region was an essential part of Chile’s economy. This is very
relevant to the case’s history and present settlement, as Bolivia’s claim to a Pacific
port is motivated in large part by a desire to establish an export market for natural
resources mined in the disputed region. Negotiations over where the border
between the two countries in the Atacama Desert had to consider relevant deposits
of materials. For example, the discovery of a silver deposit in 1870 led to Bolivia
attempting to revise the common usage of land under the 1866 treaty. .
(International Boundaries Research Unit: Boundary and Territory Briefing, Volume
1 Number 6, The Bolivia-Chile-Peru Dispute in the Atacama Desert pp. 10-11)
6 | P a g e Legal Concepts
Nature of the legal dispute
1. International law (specifically territorial and treaty law) plays the central role,
2. Contingent on the subjective interpretation of historic treaties, which have at
points been partially or wholly superseded or violated;
3. Contingent on the existence or lack of claimed international obligations
Uti possidetis
A principle in international law that conclusively states that territory or other
property remains in the hands of the possessor at the end of a conflict, unless
contrary terms are specifically provided for in a mutually consensual treaty. Simply
put, the term translates into ‘may you continue to possess such as you do possess’ –
an idea that links military victory with valid territorial gain. This is especially
relevant when that land had previously been contested and unclearly governed, and
indeed a cause of the conflict.
Terra nullius
Bolivia’s implicit solicitation of the terra nullius principle is manifest in its claim
that Chile has no right to territorial ownership of the disputed littoral. Yet this view
is erroneous, as it wholly misunderstands the terra nullius concept. The term
translates into ‘nobody’s land’ and in the context of international law refers to
territory that has never been subject to the sovereignty of any state or over which
any prior sovereign has relinquished sovereignty. Sovereignty over territory
encompasses that acquired through occupation. Since the coastal territory in
question has expressly been ceded by Bolivia to Chile in binding legal treaties, and
that Chile has affirmed sovereignty over the territory, the terra nullius principle
cannot be used in this situation. Chile has sovereignly governed the disputed areas
for over a century now. However, the fact that the concept cannot be applied here
proves that Chile’s entitlement to the littoral is legitimate.
7 | P a g e Chile’s objection to the jurisdiction of the Court
I: The standing of Bolivia’s appeal and the 1948 Pact of Bogota
1.1.
Bolivia states that the purpose of the case is to force Chile to
revise or nullify the 1904 Treaty to allow it access to the Pacific Ocean
through the province of Arica, which is governed by the 1929 Treaty of
Lima.
1.2.
Bolivia argues that it has standing in this court through Article
XXXI of the pact of Bogota. This article states that Bolivia and Chile
recognise:
The jurisdiction of the Court as compulsory ipso facto, without the
necessity of any special agreement so long as the present Treaty is in
force, in all disputes of a juridical nature that arise among them
concerning: a) The interpretation of a treaty; b) Any question of
international law; c) The existence of any fact which, if established,
would constitute the breach of an international obligation; d) The nature
or extent of the reparation to be made for the breach of an international
obligation.”
However, Bolivia’s claim is based solely on its argument that Chile has
an obligation to allow it access to the sea (sub-clauses b and c) and
international laws regulating that obligation (sub-clause b). It does not
sufficiently address sub-clause a (relating to the 1904 Treaty), and it does
not consider the rest of the Pact of Bogota’s requirements about such
treaties.
1.3.
Article VI of the Pact of Bogota is one of the prerequisites for the
dispute resolution mechanism of Article XXXI to apply. (N.B. Timeline
points 19 and 25 explain that both Bolivia and Chile fully accept the
entirety of the Pact including this article now.) This article in full says
that:
“The aforesaid procedures, furthermore, may not be applied to matters
already settled by arrangement between the parties, or by arbitral award
or by decision of an international court, or which are governed by
agreements or treaties in force on the date of the conclusion of the
present Treaty.”
Bolivia’s claim about access to the sea is a “matter already settled”
before 1948 with articles III, VI, and VII of the 1904 Treaty providing
Bolivia a means to exercise its right of access to the Pacific. Even if
Bolivia contests this, the 1904 Treaty was “in force on the date of the
conclusion of the present Treaty.” Therefore the jurisdiction of the ICJ,
as one of the “aforesaid procedures,” “may not be applied” to this case.
Chile argues that Bolivia does not have standing.
1.4.
Even though Bolivia does not have standing to revise the 1904
Treaty in this Court, Article XII of the 1904 Treaty provides that any
issues of interpreting or enforcing the Treaty will be governed by its own
dispute resolution system at the Permanent Court of Arbitration.
8 | P a g e 1.5.
The Court must rule on whether it has jurisdiction before
considering the case under Article XXXIII of the Pact of Bogota, which
states:
“If the parties fail to agree as to whether the Court has jurisdiction over
the controversy, the Court itself shall first decide that question.”
II: The nullification of the 1895 Treaty 2.1.
Bolivia relies on the May 1895 Treaties (three separate treaties all
concerning the matter of this present case) to assert that it has a right to
sovereign access the Pacific (i.e. not through Chilean territory but a nonexistent Bolivian littoral), and to argue that Chile has a duty to negotiate
with it to allow Bolivia to have such sovereign access.
2.2.
Both nations later agreed that the three treaties were dependent on
the congress of each nation approving the December 1895 Protocol.
2.3.
This was clarified in April 1986. Chile sent a note on 29 April
declaring that the “May agreements [would be] wholly without effect” if
the December 1985 Protocol was not voted through. Replying to the
Chilean note one day later, Bolivia declared it was in “perfect
agreement” with this statement. On 30 April, both countries signed the
1896 Protocol affirming this clarification about the 1895 Protocol.
2.4.
Neither state ever approved the December 1895 Protocol, and thus
the May 1895 Treaties are not valid by mutual agreement.
III: Conclusions 3.1.
The Treaty of 1904 Treaty represents a final settlement on
Bolivia’s territorial sovereignty and access to the Pacific.
3.2.
Both Bolivia and Chile recognise that the 1895 Treaties were
legally invalidated.
3.3.
Bolivia’s proposed request to access the sea also relates to the
1929 Treaty of Lima relating to the status of the province of Arica.
3.4.
Article VI of the Pact of Bogota precludes from ICJ jurisdiction
the 1904 Treaty and the 1929 Treaty as these treaties were in force in
1948.
3.5.
Article VI of the Pact of Bogota precludes from ICJ jurisdiction
the matters settled by Bolivia and Chile in their 1896 notes (i.e. that the
1895 Treaties were nullified).
3.6.
Chile has shown itself willing to negotiate in good faith in 1950
and 1975, and the 1904 Treaty provides recourse to a method of
arbitration for Bolivia that does not involve the ICJ.
9 | P a g e Maps
Figure 1-­‐ Rio Loa with surrounding area ............................................................................................ 10 Figure 2-­‐ Close up of Rio Loa .................................................................................................................... 10 Figure 3-­‐ Map of Bolivian claims ............................................................................................................. 10 Figure 4 -­‐ 1886 Treaty Boundary .......................................................................................................... 10 Figure 5 -­‐ Overview Historical Map ....................................................................................................... 11 Figure 1 -­‐ Rio Loa with surrounding area
Figure 2 -­‐ Close up of Rio loa
Figure 3-­‐ Map of Bolivian claims Figure 4 -­‐ 1866 Treaty Boundary
10 | P a g e Figure 5 -­‐ Overview Historical Map 11 | P a g e Sources
Maps –
https://upload.wikimedia.org/wikipedia/commons/8/83/Rios-antofagastaregion.svg
http://geology.com/world/chile-satellite-image.shtml
http://xenohistorian.faithweb.com/latinam/la04a.html
Map taken from history article on regional border disputes;
http://www.smithsonianmag.com/history
Legal documents and historic information sites –
1
http://www.oxfordbibliographies.com/view/document/obo9780199766581/obo-9780199766581-0153.xml
2
http://www.britannica.com/topic/Peruvian-Bolivian-Confederation
3
International Boundaries Research Unit: Boundary and Territory Briefing,
Volume 1 Number 6, The Bolivia-Chile-Peru Dispute in the Atacama Desert
http://www.icj-cij.org/docket/files/153/17338.pdf
All information in this document was drawn from these sources. Background
reading not cited here was also carried out.
12 | P a g e