obligation to negotiate access to the pacific ocean ... · conflict that came to be known as the...

UFRGSMUN | UFRGS Model United NationsISSN: 2318-3195 | v.2, 2014| p. 213-244

OBLIGATION TO NEGOTIATE ACCESS TO THE PACIFIC OCEAN

(BOLIVIA V. CHILE)Cristieli Carvalho dos Santos1

Inaê Oliveira2

ABSTRACT

In the 19th century, Bolivia and Chile got involved in a war known as War of the Pacific. The war’s outcome was the Chilean annexation of a valu-able disputed territory on Pacific coast which former belonged to Bolivia’s coastline. As a result of such territorial loss, Bolivia became a landlocked nation. However, Bolivia has never accepted its landlocked nation’s condi-tion and has persistently tried to enter into direct negotiations with Chile in order to recover sovereignty over its lost coastline. Despite statements of high Chilean officials declaring willing to dialogue, direct negotiations proved to be unfruitful. In the face of such circumstances, Bolivia presented a claim against Chile to the International Court of Justice in April 2013. In its appli-cation, Bolivia requests the ICJ to adjudge and declare (a) that Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean; (b) that Chile has violated this obligations and (c) that Chile must perform the obligation in good faith, promptly, formally, effectively and within a reasonable time. In this sense, the ICJ judges must decide if Chile is bound by international law to enter into negotiations regarding Bolivia’s fully sovereign access to the Pacific Ocean and, if so, whether it has failed to fulfill such obligation.

1 Cristieli Carvalho dos Santos is a fourth-year student of UFRGS Law School (Federal University of Rio Grande do Sul)2 Inaê Olivera is a second-year student at UFRGS Law School (Federal University of Rio Grande do Sul)

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1 HISTORICAL BACKGROUND

In its origins, the case Bolivia v. Chile, pending before the ICJ since April 2013, constitutes a territorial dispute that dates back to the 19th century. Before analyzing Bolivia’s claim merit per se – and evaluating whether Chile has an obligation to negotiate effectively and in good faith in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean –, it must be assessed how Bolivia has lost its coastline to Chile and how both States are dealing with the issue. When it comes to understanding how Bolivia has lost its coastline to Chile, it is necessary to consider three elements: firstly, the uncertainty encompassing boundary delimitation among the newly independent former Spanish colonies; secondly, the economic importance of natural resources found at the Atacama Desert in 19th century; and, finally, the armed conflict widely known as the War of the Pacific (1879 – 1883).

Chile and Bolivia achieved their independence from Spain in 1818 and in 1825, respectively. These new states, grounded on the uti possidetis juris principle, took possession of the territories that corresponded to their colonial administration (US Department of State 1966). However, the administrative boundaries of Spanish colonies in Latin America were not well defined. As a result of this uncertainty, both nations claimed at least partial ownership over the Atacama Desert by invoking the same principle of uti possidetis (McCray 2005).

Uncertainties involving boundary delimitation did not create significant complications until the mid-1840s. By this time, however, the economic importance of the guano and nitrate deposits in the Atacama Desert was discovered. Suddenly, the region’s economic relevance refueled territorial disputes between Bolivia and Chile. In 1942, Chile claimed that its territory extended as far north as the 23rd parallel. Bolivia, in its turn, claimed that its territory extended as far south as the 26th parallel. The richest nitrate deposits were located around the 24th parallel – a region that both countries claimed to own. In 1847, Chile occupied de facto the Mejillones Port, located in the 24th parallel (Fifer 1972, 53). Bolivia endeavored to settle the dispute peacefully, but the Bolivian National Assembly, on May 27 1863, empowered the chief executive to declare war against Chile if a pacific settlement to the dispute could not be reached (St. John 1994, 4).Several scholars (St. John 1994; Farcau 2000; McCray 2005; Sater 2007) sustain that the armed conflict between Bolivia and Chile was delayed solely due to the Spanish intervention threat looming in the region at the end of the 1860s. This threat led Peru, Bolivia and Chile to form an alliance and jointly defend their independence against Spain.

As a result of the regional solidarity created by the threat of Spanish intervention, Bolivia and Chile negotiated a treaty in 1866 – often referred to as the Treaty of Mutual Benefits. In this treaty, both parties renounced part of the territorial and mining rights that they had been claiming. The Treaty of Mutual Benefits drew the international

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boundary at the 24th parallel and established a zone of joint mineral exploration running from the 23rd parallel (Bolivian territory) to the 25th parallel (Chilean territory). The joint mineral exploration zone meant that the “two governments agreed to split equally both the proceeds from guano deposits and the tax revenues realized from the production and sale of mineral resources” (St. John 1994, 8).

The handicap of this Treaty of Mutual Benefits was that it put Bolivia in a position of disadvantage vis-à-vis Chile. The treaty advanced early Chilean claims and gave access to the richest mineral deposits to the country – deposits that were located north of the 24th parallel. The terms of the 1866 treaty were strongly criticized by Bolivia, and different interpretations of the treaty soon troubled even more the already shaken diplomatic relations between Bolivia and Chile (St. John 1994, 10). In 1871, a new government came to power in Bolivia and it tried to revise the terms of the 1866 treaty, to no avail. A few months later, the Bolivian National Assembly declared null and void all the acts of the previous administration, arguing that the previous executive chief, General Melgarejo, was a self-appointed dictator (Farcau 2000).

In 1872, Bolivia and Chile started to negotiate a new agreement on the exploration of nitrate deposits in the Atacama Desert, known as the Lindsay-Corral Agreement. According to Chile, the Lindsay-Corral Agreement was nothing more than a clarification of the 1866 treaty, but political opposition considered the agreement an instrument to expand the Chilean influence over the disputed area. Regardless, Bolivia ratified the agreement on December 5, 1872 (McCray 2005).

By this time, Peru also had concerns about the growing Chilean influence in the region. From these common concerns, Peru and Bolivia signed a treaty in 1873, forming an alliance that remained secret until the outbreak of hostilities between Bolivia and Chile (Farcau 2000). The treaty established that its signatories should act in favor of each other in case of threats to independence, sovereignty and territorial integrity.

A year later, representatives of Bolivia and Chile reopened the negotiations about the Atacama region. They concluded an agreement – known as Treaty of Sucre –, that replaced the 1866 treaty. The Treaty of Sucre maintained the international boundary at the 24th parallel, but ended the collective exploration zones. While these provisions were favorable to Bolivia, the agreement contained a clause that granted Chilean companies operating in Bolivia’s territory a twenty-five year long exemption from tax increases (Farcau 2000). This treaty temporarily relieved the tensions between Bolivia and Chile and the conflict took place only four years later.

In 1878, partially driven by an economic crisis in the country, the Bolivian National Assembly approved a ten cents tax per hundredweight of nitrates exported from the Bolivian territory by the Chilean Antofagasta Nitrate and Railroad Company (Sater 2007). To Chile, the tax increase voided the commitment reached in the Treaty of Sucre. Once again, the countries tried to negotiate a pacific settlement,


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without reaching an agreement. The Bolivian government canceled the Antofagasta Nitrate and Railroad Company concession and determined that the company should end its activities in Bolivia by February 14, 1879. Chile then instructed its army to occupy the Bolivian coastline. The outbreak of hostilities gave rise to the conflict that came to be known as the War of the Pacific. The War of the Pacific was not “only one of longest struggles of nineteenth-century Latin America; it was one of the few large-scale conflicts to afflict the world at that time” (Sater 2007, 2).

In March 1879, one week after Chilean troops had occupied Antofagasta, Bolivia formally declared war and called upon Peru to comply with their mutual defense alliance. In April 1879, Chile declared war on both Peru and Bolivia (Farcau 2000).

Even though the 1873 treaty and the imposition of the 10 centavo tax proved to be the casus belli, there were deeper, more fundamental reasons for the outbreak of hostilities in 1879. On the one hand, there was the power, prestige, and relative stability of Chile compared to the economic deterioration and political discontinuity which characterised both Peru and Bolivia after independence. On the other, there was the ongoing competition for economic and political hegemony in the region, complicated by a deep antipathy between Peru and Chile. In this milieu, the vagueness of the boundaries between the three states, coupled with the discovery of valuable guano and nitrate deposits in the disputed territories, combined to produce a diplomatic conundrum of insurmountable proportions (St. John 1994, 9).

The Chilean army was quite superior to both Peruvian and Bolivian armies, and, by the end of 1879, all Bolivia’s coastal areas were in Chilean control. Hostilities between Chile and Peru continued for three more years and, in October 1883, the Treaty of Ancón, signed by both states, officially ended the War of the Pacific (US Department of State 1966). In the treaty, Peru agreed to a Chilean occupation in the provinces of Tacna and Arica for a period of 10 years – after which a plebiscite should be held to decide the permanent ownership of these provinces. Peru also agreed to unconditionally and perpetually yield to Chile the Peruvian littoral province of Tarapacá – at which the most valuable Peruvian nitrate deposits were located. However, the main effect from the Chilean acquisition of Tarapacá affected Bolivia: “[…] it effectively precluded Bolivia regaining its littoral as Chile could not be expected to give Bolivia territory which would separate Tarapacá from the rest of Chile” (St. John 1994). Once peace had been established between Chile and Peru, the Chilean government moved towards securing a settlement with Bolivia. Peace talks between Bolivia and Chile started in December 1883 and, on April 4 1884, Bolivia and Chile signed a Truce Pact.

Over the course of these negotiations, Bolivian representatives pressured to grant Bolivia an access to the ocean either in form of a corridor through Chilean territory or by modifying the Treaty of Ancón in order to cede the provinces of


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Tacna e Arica to Bolivia. Chile refused to sacrifice its own territorial continuity and pointed out that it could not relinquish Tacna and Arica because it did not own them (St. John 1994). As Bolivia continued to insist on an access to the ocean, both countries signed an indefinite truce pact, pending conclusion of a peace treaty. During the period of the truce pact, Bolivia accepted that “the Republic of Chile would continue to rule, subject to the political and administrative regime provided for in Chilean law, the territories that lie between parallel twenty-three and the mouth of the Loa river in the Pacific [Department of Littoral]” (St. John 1994).

In May 1895, Bolivia and Chile signed three agreements to find a solution for their pending issues. The most important of these agreements was the Agreement on the Transfer of Territories between the Republics of Bolivia and Chile. In this agreement, it was stated that, if Chile acquired the territories of Tacna and Arica through a plebiscite or direct negotiations, it would transfer them to Bolivia. If Chile was unable to acquire these territories, it would transfer the zone “from the Cove of Vitor to the Valley of Camarones” or any other similar area to Bolivia (St. John 1994, 16). Peru protested against the terms of the treaty and stated that it would not let go any part of its territory neither to Bolivia nor to Chile.

In October 1904, Bolivia and Chile finally signed a Treaty of Peace and Friendship, considered as a significant diplomatic victory for Chile, whereby Bolivia formally recognized Chilean ownership of its former littoral. In return, Chile guaranteed to Bolivia commercial transit rights and facilities at some Chilean ports. Chile also agreed to recompense Bolivia over its loss and committed to build a railroad from the port of Arica to La Paz. This railroad was concluded in 1913 (Farcau 2000).

Faced with the uncertainty surrounding the territorial status of Tacna and Arica, Bolivia proposed to both Peru and Chile that they renounced their aspirations in its favor, which both states refused to. The Tacna-Arica issue was settled only after World War I, through the mediation of the President of the United States. The Treaty of Lima, signed in 1929, stated that Tacna would belong to Peru and Arica would belong to Chile. The Treaty of Lima also established that neither Peru nor Chile could cede these territories to a third state without the prior agreement of the other (MCray 2005).

Over the next decades, Bolivia continued asking for a form of sovereign access to the Pacific Ocean. In the 1950s, the country revived the issue and proposed to Chile a new round of direct negotiations about it. Chile agreed to discuss the issue, but there was no substantial progress on negotiations since then, in spite of the Bolivian efforts and Chilean public commitments to reach a peaceful and satisfactory agreement over the Bolivian demand for access to the sea (St. John 1994). After many years of fruitless negotiations, Bolivia presented its demand before this Court, arguing that Chile has committed itself through agreements, diplomatic practice and declarations of its highest-level representatives to negotiate in good faith and


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effectively with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean.

2 STATEMENT OF THE ISSUE

In light of the aforementioned facts, the Plurinational State of Bolivia, on 24 April 2013, instituted proceedings against the Republic of Chile before the International Court of Justice.

2.1 BOLIVIA’S ALLEGATIONS

The Plurinational State of Bolivia claims that the Republic of Chile, by failing to comply with its statements that recognized Bolivia’s right of access to the Pacific Ocean, has violated both treaty law and customary international law.

2.1.1 Jurisdiction of the court

As the basis for the jurisdiction of the Court, the applicant invokes article XXXI of the American Treaty on Pacific Settlement (“Pact of Bogotá”) of 30 April 1948, to which both States are parties and that reads as follows:

In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, 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 (Pact of Bogotá 1948. Article XXXI).

Both Bolivia and Chile are parties to the Pact of Bogotá. Bolivia ratified it on 9 June 2011 and Chile on 21 August 1967. No pertinent reservation made by either party is in force at the moment.


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2.1.2 As to chile’s duty to negotiAte A sovereign Access to the PAcific oceAn under treAty lAw And chile’s breAch of such obligAtion

In its Application, Bolivia invokes several treaties celebrated between both States whereby Chile has bound itself to grant the former a form of access to the Pacific Ocean.

Firstly, the Applicant recalls that, through the treaties of 10 August 1866 and the Treaty of 6 August 1874, the boundary between Bolivia and Chile was established and Chile formally and legally recognized Bolivia’s sovereignty over the coasts of the Pacific Ocean (ICJ 2013).

Among the treaties signed by the parties to this case on May 18 1895, the Applicant highlights the Special Treaty on the Transfer of Territories – which, in its preamble, stated that:

The Republic of Chile and the Republic of Bolivia, with the purpose of strengthening increasingly closer ties of friendship to unite the two countries, and the agreement that a superior need and the future development and commercial property of Bolivia requires its free and natural access to the sea, have decided to enter into a special treaty on the transfer of territory for which purpose they have named and appointed their Plenipotentiaries (…) (Special Treaty on the Transfer of Territories, Preamble)

In its Bases I and II, this treaty also provided that, if through a plebiscite or direct arrangements, Chile were to acquire control and permanent sovereignty over the territories of Tacna and Arica, it would undertake to transfer them to the Republic of Bolivia, except for the area from the Quebrada de Camarones to the Quebrada de Vitor - which would remain under Chilean control.In Base IV of the said treaty, it was determined that, if Chile were unable to gain such sovereignty “it undertakes to transfer to Caleta de Vitor up to the Quebrada de Camarones or any other similar area to Bolivia”.

Bolivia then refers to the Treaty of Peace and Friendship, signed with Chile on 20 October 1904, through which Chile imposed its rule over the occupied Bolivian territories. This treaty did not cancel previous Chilean declarations and commitments concerning Bolivia’s sovereign access to the sea (Application, 14). Furthermore, Bolivia invokes multiple declarations by which Chile committed itself to grant sovereign access to the Pacific Ocean to Bolivia. Given the statements released by Chile on 20 January 1920 (Application, Annex 9), 20 June 1950 (Application, Annex 10), 10 July 1961 (Application, Annex 11), and especially the Joint Declaration of Charanã of 8 February 1975 (Application, Annex 13), the Applicant argues that the Respondent was willing to grant Bolivia an own and sovereign access to the Pacific Ocean.

Then, the Applicant asserts that, through a note on 19 December 1975 in the


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course of the Charaña negotiations, Chile once more declared itself to be “prepared to negotiate with Bolivia the cession of a strip of land north of Arica up to the Línea de la Concordía” (Application, 16). Nevertheless, the Respondent rejected Bolivia’s proposals for granting an appropriate and sovereign access to the Pacific Ocean on 9 June 1987, contravening its own prior declarations (Application, 16).

Bolivia also highlights the joint communiqué issued with Chile and released on 22 February 2000, the second point of which referred to their agreement to put together a work agenda including, without any exclusion, the essential matters of the bilateral relationship. The Presidents of both countries confirmed this position on 1 September 2000 and, in July 2006, the Presidents of Bolivia and Chile agreed on the “Agenda of 13 Points”, which addressed the “Maritime Issue” in point VI. Both States agreed to meet in November 2010 to start working on the Maritime Issue, but Chile unilaterally suspended the meeting, and the negotiation was not resumed.

Another attempt at resolving the matter with Chile was, according to the Applicant, the statement given by the President of Bolivia at the 66th session of the United Nations General Assembly on 21 September 2011 in the sense that the channels for a bilateral negotiation with Chile to find a solution for the Bolivian maritime issue remained open. The response received from the Chilean President was that there are no pending issues between the two countries. This positioning was confirmed by the State after Bolivia’s public request in February 2011 for a draft and concrete proposal to remedy the Bolivian confinement, and again after the statement given by the Bolivian President at the 67th session of the United Nations General Assembly in September 20123.

Finally, the Applicant presents several resolutions by international entities supporting the debate and negotiations between the two States. The Resolution 426 of the Organization of American States recommended the opening of negotiations between Bolivia and Chile for the purposes of providing Bolivia with a free and sovereign territorial connection with the Pacific Ocean (Resolution 426, 1979). Ten other subsequent resolutions during the following decade were issued by the same organ confirming such Resolution, whereby it was determined that Bolivia’s maritime problem would be kept permanently on the agenda of the General Assembly of the Organization of American States until a solution could be reached. In particular, Resolution 686 of 1983 urges Bolivia and Chile to find a formula to give Bolivia a sovereign outlet to the Pacific Ocean, on the bases that take into account mutual conveniences and the rights and interest of all parties involved.

3 Application.


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2.2 CHILE’S ALLEGATIONS

In its defense, the Republic of Chile argues that it is not bound by any legal obligations whatsoever to negotiate with the Applicant in order to grant the latter a sovereign access to the Pacific Ocean, and that Bolivia lacks any legal bases to claim a sovereign right of access.

2.2.1 Jurisdiction of the court

According to the Respondent, the requirements imposed by article XXI of the American Treaty on Pacific Settlement of 30 April 1948 (used by Bolivia as the basis for the jurisdiction of this Court over the present case) have not been met. More specifically, the Respondent argues that there is no dispute to be settled between the parties, since both have signed the aforementioned treaty of Peace and Friendship. Chile contends that the said treaty has been observed and implemented by both parties for over a century, and that Bolivia has been granted the widest possible right of commercial transit across its territory and ports on the Pacific. Having entered into negotiations innumerous negotiations with Bolivia over the years, the Respondent claims to have fulfilled every possible obligation it might have had towards Bolivia in this matter and that, therefore, there is nothing pending between the two states.

Moreover, the Respondent highlights that Bolivia’s initiative to institute proceedings against Chile before the International Court of Justice goes against the Chilean territorial integrity and national interests – which are protected by the essential principles of international law and relations among states, such as the inviolability of treaties and the stability of borders.

3 LEGAL THESES INVOLVED IN THE MERITS

On account of its historical complexity, the case Bolivia versus Chile offers the exciting opportunity for a multifaceted legal analysis. In that sense, the members of the ICJ are invited to analyze the question at hand – whether Chile is bound to grant Bolivia a sovereign access to the Pacific Ocean – from different angles.

3.1 LAW OF TREATIES

Traditional law upheld the principle of States’ freedom in the field of treaty making. Under strong pressure from socialist and Third World countries,


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momentous changes were introduced, and to a large extent ‘codified’, in the 1969 Vienna Convention on the Law of Treaties, entered into force in 1980. Most of its provisions either codify customary law or have given rise to rules belonging to the corpus of general law (Cassese 2005). Chile ratified the Convention on 9 April 1981, while Bolivia signed it on 23 May 1969, but it has not ratified it.

Article 18 of the Vienna Convention on the Law of Treaties determines that:

A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.

Therefore, where the signature is subject to ratification, acceptance, or approval, it does not necessarily imply consent to be bound. However, signature qualifies the signatory state to proceed to ratification, acceptance or approval and creates an obligation of good faith to refrain from acts that would defeat the object of the treaty. Besides, where the treaty is not subject to ratification, acceptance, or approval, signature creates the same obligation of good faith and establishes consent to be bound. Signature does not create an obligation to ratify (Brownlie 2008, 610).

On May 18 1895, Bolivia and Chile signed various treaties in Santiago with the aim of finally resolving the pending issues between the two states, amongst which was the Special Treaty on the Transfer of Territories. In its preamble, it was announced that

The Republic of Chile and the Republic of Bolivia, with the purpose of strengthening increasingly closer ties of friendship to unite the two countries, and the agreement that a superior need and the future development and commercial property of Bolivia requires its free and natural access to the sea, have decided to enter into a special treaty on the transfer of territory for which purpose they have named and appointed their Plenipotentiaries (…) (highlight added) (Special Treaty on the Transfer of Territories 1895, Preamble)

This treaty also provided, in its Bases I and II that, if through a plebiscite or direct arrangements, Chile were to acquire control and permanent sovereignty over the territories of Tacna and Arica, these areas would be transferred to the Republic of Bolivia, except for the area from the Quebrada de Camarones to the Quebrada de Vitor - which would remain under Chilean control; and, in its Base IV, that if Chile were unable to gain such sovereignty it would undertake to transfer to Caleta de Vitor up to the Quebrada de Camarones or any other similar area to Bolivia.


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Furthermore, the Applicant and the Respondent have also signed the Treaty of Peace and Friendship on 20 October 1904, through which Chile imposed its rule over the occupied Bolivian territories. This treaty did not cancel previous Chilean declarations and commitments concerning Bolivia’s sovereign access to the sea4.

3.2 GOOD FAITH

According to Art. 38 (1) (C) in the Statute of the International Court of Justice, the Court “shall apply the general principles of law recognized by civilized nations” (Statute of the ICJ 1945, Article 38). Thus, in international law, one may resort to the general principles of law when treaties or customary law are not sufficient to settle a legal question (Lauterpacht 1970, 68; Shaw 2008, 98; Crawford 2012, 134), of which good faith is perhaps the most important, since it underlies several international legal rules.

Being a general principle of international law, the principle of good faith constitutes a source of international law, acting to mediate the effects of States’ rights in international law in order to achieve acceptable results when a collision of interests occurs. Fundamentally, good faith is a limitation of State sovereignty necessary to protect other States and their trust and reliance on international law (Reinhold 2013). Good faith was elected by the UN General Assembly as one of the principles of international law concerning friendly relations and co-operation among States5, implying that States shall fulfill in good faith the obligations assumed by them in accordance with the generally recognized principles and rules of international law (including the UN Charter). In other words, the principle of good faith requires parties to a transaction to deal with each other, to represent their motives and purposes truthfully, and to refrain from taking unfair advantage that might result from a literal and unintended interpretation of the agreement between them (D’Amato 1992, 599).

In general, international law rules such as pacta sunt servanda, abuse of rights, estoppel and acquiescence and the negotiation of disputes are grounded, to some extent, in good faith (Reinhold 2013, 40). When it comes to treaty law, good faith is constantly present, from the time prior to signature to that of interpretation. The

4 Application.5 The General Assembly Declaration on Principles of International Law concerning Friendly Relations and Co-operation Among States from /of 1970 elected several principles... One of such principles was the one that that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter, a principle according to which Every State has the duty to fulfil in good faith its obligations under the generally recognized principles and rules of international law. (http://www.un-documents.net/a25r2625.htm).


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concept figures prominently in the 1969 Vienna Convention on the Law of Treaties, article 31 (1) (“a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”) ( VCLT, Article 31 (1)) and a secondary similar notion is present in the duties of signatories to a treaty prior ratification in article 18 of the VCLT6 (D’Amato 1992).

In the early days of the legal system, there was a strong tendency to interpret documents literally. The treaties began to include clauses designed to deal with questions of interpretations and performance. As time went on, those clauses were gradually reduced in size and prominence because the principle of good faith was increasingly understood to be implicit in the treaties, for the principle of good faith is rooted in a natural law conception of customary international law. The earliest systematic writers on international law, including Grotius, Pufendorf and Suárez, conceived international law as founded in natural law, by which they meant the dictates of right reason. Natural law would exclude the exploitation of an advantage deriving from a literal but mutually unintended reading of a treaty or other international agreement (D’Amato 1992, 600).

Whether in domestic legal systems or in international law, the overarching nature of good faith as a legal principle turns the task of defining it in absolute terms a substantial challenge. In fact, the understanding of good faith is ever evolving, and it is incumbent upon the members of this Court to assess to what extent has this principle mutated from its original conception in the realm of public international law for the purposes of settling the present dispute.

3.2.1 unilAterAl Acts of stAtes

Various kinds of unilateral acts by states may have legal significance or consequence for them. This law-making process, although not provided for in Article 38 of the Statute of the ICJ, is envisaged by a general rule which has the same rank as those providing for custom and treaty-making (Cassese 2005, 184). They include acts making claims or renouncing them (to territory, for instance), acts of recognition (e.g. of governments) or protests (e.g. against humanitarian intervention in another state) and the ratification of treaties. In addition to such acts that may contribute as state practice to the formation of custom or involve the application of international law rules, a state may accept a legal obligation by a public unilateral act made, either orally or in writing, by a person competent to act on behalf of the State, in relation to the international community at large or one or more States In some respects, the rules

6 See the Vienna Convention on the Law of Treaties.


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governing such declarations parallel those applicable to treaties (Harris 2010).This possibility was recognized in the Nuclear Tests Cases and is now the

subject of the Guiding Principles adopted by the International Law Commission at its Fifty-eighth session in 2006 . For the purposes of this Study Guide, the most relevant principles are:

1. Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected. 2. Any State possesses capacity to undertake legal obligations through unilateral declarations. 4. A unilateral declaration binds the State internationally only if it is made by an authority vested with the power to do so. By virtue of their functions, heads of State, heads of Government and ministers for foreign affairs are competent to formulate such declarations. Other persons representing the State in specified areas may be authorized to bind it, through their declarations, in areas falling within their competence. 5. Unilateral declarations may be formulated orally or in writing10. A unilateral declaration that has created legal obligations for the State making thedeclaration cannot be revoked arbitrarily. In assessing whether a revocation would bearbitrary, consideration should be given to:(a) Any specific terms of the declaration relating to revocation;(b) The extent to which those to whom the obligations are owed have relied onsuch obligations;(c) The extent to which there has been a fundamental change in thecircumstances.

The General Assembly, through its Resolution 61/34 of 4 December 2006, took note of the report by the ILC, recommended the dissemination of the guiding principles and that the Commission continued its work on the topics in its current programme7.

3.2.2 estoPPel

The ratio underlying estoppel is often expressed in the Latin maxim allegans contraria non audiendus est, translated as ‘one should not benefit from his or her own inconsistency’. It is a principle found in all major legal systems, underpinning the various types of estoppel in common law jurisprudence and the civil law concepts of preclusion, debarment and foreclusion (Ovchar 2009, 3). However, a substantial array

7 See GA RES 61/34 of 4 December 2006.


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of scholars8 shares the view that estoppel is also a general principle of international law, resting on the principle of good faith and consistency (Brownlie 2008).

In the jurisprudence of the International Court of Justice, estoppel is free from the ‘manifold refinements grafted onto it by domestic legal systems.’ In its transition from the municipal to the international sphere, ‘the concept of estoppel has been broadened so substantially that the analogy with the estoppel of municipal systems may be positively misleading’ (Ovchar 2009, 5). Indeed, according to Brownlie, it is necessary to point out that estoppel in municipal law is regarded with great caution, and that the ‘principle’ has no particular coherence in international law, its incidence and effect not being uniform (Brownlie 2008, 644)

Consequently, as observed by Judge Alfaro in the Temple of Preah Vihear Case:

Although there are similarities between estoppel in the jurisprudence of international and municipal courts, there is a very substantial difference between the simple and clear-cut rule adopted and applied in the international field and the complicated classifications, modalities, species, sub-species and procedural features of the municipal system (ICJ 1962, 39).

In the jurisprudence of the International Court of Justice, estoppel obliges a State “to be consistent in its attitude to a given factual or legal situation”. Such a demand has the potential to encourage finality, stability and predictability (Ovchar 2009, 1).

Professor Bowett has stated the essentials of estoppel to be: (1) a statement of fact which is clear and unambiguous; (2) this statement must be voluntary, unconditional and unauthorized and (3) there must be reliance on good faith upon the statement either to the detriment of the party so relying on the statement or to the advantage of the party making the statement (Brownlie 643).

The ICJ has not adopted the technicalities of specific forms of estoppel. Instead, it has held that estoppel consists of three fundamental elements: first, a State must make a representation to another; secondly, the representation must be unconditional and made with proper authority; and finally, the State invoking estoppel must rely on the representation. If all three elements are established, an estoppel arises (Ovchar 2009, 4). The Court, therefore, has adopted an untechnical conception of estoppel and applied it as a rule of substance instead of one of evidence or procedure9. And, notwithstanding this simplification, it has been said that the Court has not been consistent in applying estoppel (Ovchar 2009, 5).

8 See judges Alfaro and Fitzmaurice in the Temple Case, ICJ Reports (1962), 39-51, 61-5; Bowett, 33 BY (1957), at 202; MacGibbon, 7 ICLQ (1958) 468-513; Lauterpacht, The Development of International Law by the International Court (1958), 168-72; Report of the ILC on the Law of Treaties, Yrbk ILC (1966), ii-239.9 See the Separate Opinion of Judge Ajibola in the Territorial Dispute Case (Libyan Arab Jamahiriya/Chad).


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Two examples of a broader understanding of the principle by the International Court of Justice are the Arbitral Award Made by the King of Spain10 and the Temple Case11. In the former, Nicaragua challenged the validity of the award on several grounds; nevertheless, the Court deemed the award to be valid and declared that it was no longer open to Nicaragua to question its validity, for the State had already recognized the award as valid by its conduct and express declaration. In the Temple Case, Thailand sought to avoid a frontier agreement on the ground of error. In this case, the Court also found that Thailand was fettered by its conduct from asserting that it did not accept the treaty.

3.2.3 the duty to negotiAte

The process of concluding a legally binding international agreement comprehends multiple successive stages. According to Professor I. William Zartman:

[p]renegotiation begins when one or more parties consider negotiation as a policy option and communicate this intention to other parties. It ends when the parties agree to formal negotiations (an exchange of proposals to arrive at a mutually acceptable outcome in a situation of interdependent interests) or when one party abandons the consideration of negotiations as an option.... In essential terms, prenegotiation is the span of time and activity in which the parties move from conflicting unilateral solutions for a mutual problem to a joint search for cooperative multilateral or joint solutions (Zartman 1989, 4).

Therefore, the first phase is the pre-negotiation phase, which occurs before a mutual commitment to negotiations has been made. The second phase consists in the process of the negotiations per se, during which the negotiating States engage in more substantial discussions. The last stage phase of this process is the period between the conclusion of negotiations and the entry into force of the recently negotiated obligations. Once the agreement enters into force, it creates binding legal obligations for its parties. In that sense, the outcome of the negotiating process is fully protected by law: the parties are legally obligated to perform in good faith the obligations they have assumed and the legal consequences of noncompliance are prescribed (Rogoff 1994-1995, 144-145)12.

From an international law perspective, defining the binding nature of the pre-

10 Arbitral Award Made by the King of Spain. ICJ REPORTS 1960, 192 AT 21311 Temple of Preah Vihear Case. ICJ REPORTS (1962), 6 AT 32.12 See the 1969 Vienna Convention on the Law of Treaties, supra note 2, article 26. “Every treaty in force is binding on the parties and must be performed by them in good faith.”


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negotiation and the actual negotiation is a challenge. Aiming to remedy this situation, the International Law Commission, in its final draft codification of the law of treaties13, suggested an extension of the obligation to refrain from acts that would defeat the object and purpose of an eventual negotiated agreement in the negotiating phase. Thus, states participating in negotiations would incur substantive legal obligations as soon as they entered into the negotiating process. This recommendation by the ILC was not welcomed by the Vienna Convention on the Law of Treaties, which does not impose any substantive obligations on negotiating states during the negotiating phase.

It has been sustained, however, that such obligations binding upon the parties prior to an actual agreement may be imposed by customary international law or by general principles of law applicable to the relations between states. The doctrine of culpa in contrahendo (“fault in contracting”, whereby parties must act in good faith during preliminary contract negotiations) is well established in many domestic legal systems, and there is authority that supports its international application. The principle of good faith, and most likely that of abuse of rights, presumably also apply to all dealings between states. Any one or all of these doctrines may be applicable in those situations where the actions of a negotiating state with respect to the subject matter of the negotiations cause injury to the interests of another negotiating state during the negotiation period (Rogoff 1994-1995, 147).

Such a view of negotiation highlights the more formal process of state interaction and excludes tacit bargaining or other behavior that regulates conflict (Iklé 1964). It also excludes other forms of dispute settlement, such as conciliation, mediation, inquiry, arbitration, reference to international or regional organizations, or judicial settlement, because such procedures require some sort of agreement between the disputing parties which presupposes prior arrangements or negotiations (Rogoff 1994-1995, 147).

Additionally, it is useful to distinguish the obligation to negotiate from the obligation to conclude an agreement, for the obligation to negotiate only entails a commitment to some degree of interaction between states in attempting to resolve a dispute or to deal with a common problem (Rogoff 1994-1995).

Nevertheless, it appears that, at the current stage of development of international law, there is no general obligation imposed on states, applicable in all situations of dispute or disagreement, to enter into negotiations as a matter of customary or conventional international law. In the UN Charter, for instance, some of the purposes and principles of the U.N. – as stipulated in Articles 1 and 2 of the Charter – support the proposition that member states should settle disputes by peaceful means and cooperatively work out their common problems; also, a specific reference to negotiation is made in Article 33, which provides possible methods of

13 ILC Draft Articles on the Law of Treaties, 1966. Article 15, (a).


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peaceful dispute settlement in the context of the “Pacific Settlement” procedures in Chapter 6 of the Charter14. However, it does not appear that any of such provisions imposes general obligations on member states to negotiate in the absence of more specific directives found in other Charter provisions (Rogoff 1994-1995).

There are, however, two decisions of the International Court of Justice (ICJ) which hold that states are obligated to negotiate in certain situations: the Fisheries Jurisdiction Case (U.K. & N. Ireland v. Iceland) and the North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.)15. The understanding expressed by the International Court of Justice in those cases supports the general proposition that States are under an obligation to negotiate in disputes encompassing situations where each possesses legal rights that can only be defined in relation to the legal rights of the other. Thus, once it is determined that customary or conventional international law creates rights for more than one state with respect to a particular matter, in case of a dispute involving that matter, the states concerned are legally bound to enter into negotiations to solve their differences. In addition, once it is settled that an obligation to negotiate exists as a matter of customary or conventional international law, one may specify the content of that obligation by closely investigating the nature of the substantive rights of the states involved.

In the North Sea Continental Shelf cases, the ICJ found that the states involved in the continental shelf boundary disputes were obligated under customary international law to delimit the disputed areas by negotiation and eventual agreement. The Court derived this obligation to delimit continental shelf boundaries by negotiation and agreement from its detailed analysis of the legal regime of the continental shelf, from the Truman Proclamation of 1946 to subsequent developments like the Geneva Convention on the Continental Shelf of 1958. According to the Court, the Convention on the Continental Shelf was not opposable by the Federal Republic of Germany because it was not a party to the agreement, and the agreement was not necessarily expressive of customary international law with respect to the delimitation of continental shelf areas between adjacent states. In the Court’s view, however, there did exist applicable rules of customary international law governing the delimitation of continental shelf boundaries between adjacent states.

[D]elimitation must be the object of agreement between the States concerned, and . . . such agreement must be arrived at in accordance with equitable principles ... namely: (a) the parties are under an obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go through a formal process of

14 See the UN Charter.15 Fisheries Jurisdiction Case (U.K. & N. Ireland v. Iceland), 1974 I.C.J. 3, 32 (July25); North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 47 (Feb. 20).


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negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation to conduct themselves so that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it. (ICJ 1969, 46-47)

While the ICJ did find an obligation to negotiate on the part of the states involved in continental shelf boundary disputes, it found that obligation specifically in the substantive customary law regime of the continental shelf. The ICJ did not derive the obligation from more general principles of international law requiring peaceful settlement of disputes, but rather from the specific rules and principles of customary international law applicable to the delimitation of continental shelf areas between adjacent states. Furthermore, the Court gave meaning to the requirement of delimitation by agreement by mandating that the disputing states enter into negotiations aiming at such agreement. It is also worth mentioning that in this decision the Court suggested that the scope of Article 33 of the UN Charter may be broader, transcending the procedures for peaceful settlement contained in Chapter 616.

In the Fisheries Jurisdiction case, on the other hand, the ICJ took a more expansive approach to the obligation to negotiate. In that case, the ICJ determined that as a substantive matter, Iceland had certain “preferential fishing rights” in particular maritime areas while at the same time Great Britain had certain “traditional fishing rights” in the identical maritime areas. According to the Court, “[n]either right is an absolute one:”

[T]he preferential rights of a coastal State are limited according to the extent of its special dependence on the fisheries and by its obligation to take account of the rights of other States and the needs of conservation; the established rights of the other fishing States are in turn limited by reason of the coastal State’s special dependence on the fisheries and its own obligation to take account of the rights of other States, including the coastal State and the needs of conservation (ICJ 1974, 31).

The ICJ then indicated that: “[t]he most appropriate method for the solution of the dispute is clearly that of negotiation.”(ICJ 1974, 31). Unlike its reasoning in the North Sea Continental Shelf cases, where it derived the obligation to negotiate from a specific legal requirement of the customary regime of the continental shelf, in this case the Court found the obligation to negotiate “flow[ing] from the very nature of

16 It is also important to bear in mind, however, the statement given by Judge Ammoun in his separate opinion about the Judgment on the North Sea Continental Shelf cases in the sense that it could not be inferred from the Truman Proclamation, nor from Article 33 of the UN Charter, which concerns disputes the continuance of which is likely to endanger the maintenance of international peace and security, and is the less imperative inasmuch as it empowers the Security Council “when it deems necessary, [to] call upon the parties to settle their dispute by such means.”


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the respective rights of the Parties…” (ICJ 1974, 32). According to the Court, “it is implicit in the concept of preferential rights that negotiations are required in order to define or delimit the extent of those rights…” (ICJ 1974, 32).

The reasoning of the Fisheries Jurisdiction case has far-reaching implications with regard to the obligation to negotiate. Once it is determined as a matter of conventional or customary international law that the extent of particular rights of a state must be defined in relation to and in consideration of the rights of another state, it follows that in case of a dispute between those states regarding the precise definition of their respective rights, those states are under an obligation to negotiate. (Rogoff 1994-1995).

Moreover, this obligation does not stem from a specific customary norm mandating the settlement of this particular type of dispute through a negotiated agreement, as in the North Sea Continental Shelf cases, but rather from a principle of international law requiring negotiation of disputes in situations where the extent of the rights of states are limited by the rights of other states.

An obligation to negotiate on the part of states can arise from commitments made in international agreements to which they are parties. Sometimes these commitments are general, such as the promise to settle disputes likely to threaten international peace and security through negotiation or some other peaceful process. Sometimes these commitments are quite specific, such as the promise to engage in ongoing arms control or economic negotiations or to resolve disputed boundary, resource, or environmental questions through agreement.

Treaty provisions obligating the parties to negotiate are quite common in both bilateral and multilateral treaties. Such provisions may be included in treaties for a number of different reasons. First, the parties to a treaty may have been able to negotiate solutions to most of their difficulties, but a few small matters might remain unresolved. Rather than postpone agreement on the more significant matters, the parties conclude an agreement that contains a provision to negotiate a solution to the outstanding problem or problems in the future.

3.3 RIGHTS OF LAND-LOCKED STATES

Land-locked States are those that do not possess access to and from the sea. This lack of access engenders a series of disadvantages (such as a crippled competitivity in international trade) and, in this sense, they receive a special legal treatment under international law. Since Bolivia lost its coast in the War of the Pacific (1879-1884), it belongs to this category of states.


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3.3.1 lAw of the seA convention

The United Nations Law of the Sea Convention (hereinafter ‘LOSC’, ‘Law of the Sea Convention’ or ‘Montego Bay Convention’) was adopted on 10 December 1982 and entered into force on 16 November 1994. Created as a “constitution for the seas” (UN 1998) , the LOSC provides the starting point for any presentation of the contemporary law of the sea (Evans 2006, 625). It is in force for 166 States at the time of writing; however, as most of its provisions consist of a codification of customary international law, the Montego Bay Convention presents itself as relevant even for those States that have not bound themselves to it under treaty law.

Nonetheless, it is important to bear in mind that, in spite of the comprehensive nature of this Convention, some of its provisions possess only a ‘framework’ nature, foreseeing the need for further instruments addressing a number of subjects in great detail, and it has indeed been supplemented by a number of other major conventions (Evans 2006, 625). And, as developments are accomplished in other areas of international law – especially customary law –, our understanding of the treaty evolves, further supplementing and amplifying its provisions (Boyle 2005).

The Law of the Sea Convention contains some provisions aiming at the protection of land-locked States. As defined in Article 124, a land-locked State is a State lacking sea-coast (Article 124, 1, “a”) and, according to Article 125:

1. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind. To this end, land-locked States shall enjoy freedom of transit through the territory of transit States by all means of transport.2. The terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States concerned through bilateral, subregional or regional agreements.3. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests. (LOSC, Article 125)

The core provision consists of Article 125, which enshrines the right of access by land-locked States to and from the sea, and freedom of transit through the territory of transit States by all means of transport. While the provision used mandatory language in relation to access and transit rights, its effect was that land-locked States did not have a self-executing right to access. Instead, transit States were under an obligation to engage in good faith negotiation to facilitate access for landlocked States. Therefore, the Convention made the right of access contingent upon bilateral, sub-regional or regional agreements between the land-locked States


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and transit States, laying down the terms and modalities for exercising freedom of transit (125 (2)). It is also worth highlighting that article 125 (3) allows transit States to take all necessary measures to protect their sovereignty if such transit threatened their legitimate interests.

Bolivia, a land-locked State, ratified the LOSC on 28 April 1995, whereas Chile did so on 25 August 1997.

3.3.2 new york convention on the trAnsit trAde of lAnd-locked stAtes

Land-locked States have formed a distinct bloc of nations in the international system (Uprety 2003, 202). Their geographic disadvantage translates into an economic one, as they have their competitiveness undermined without direct seaborne trade.

The New York Convention on the Rights of Land-Locked States (hereinafter “New York Convention”) was the first international agreement to recognize the special position of LLS (Makil 1970, 46). It was signed on 8 July 1965 and entered into force on 9 June 1967. The main purpose of this treaty was to incorporate into treaty law the rights and obligations of land-locked states and their neighbors with regard to the movements of goods in transit, and generate universal acceptance therefor (Uprety 2003, 211).

By reaffirming the principles of the 1964 Geneva Conference, the New York Convention attempts to proclaim the freedom of access to the sea (Uprety 2003). According to the first of these principles:

The recognition of the right of each land-locked state of free access to the sea is an essential principle for the expansion of international trade and economic development17.

In its turn, Principle IV of the Convention provides that:

In order to promote fully the economic development of the land locked countries, the said countries should be afforded by all States, on the basis of reciprocity, free and unrestricted transit, in such a manner that they have free access to regional and international trade in all circumstances and for every type of goods18.

On another hand, Principle V states that:

17 New York Convention on the Transit Trade of Land-locked States.18 New York Convention on the Transit Trade of Land-locked States.


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The State of transit, while maintaining full sovereignty over its territory, shall have the right to take all indispensable measures to ensure that the exercise of the right of free and unrestricted transit shall in no way infringe its legitimate interests of any kind.

In accordance with the Interpretative Note of the Principles Relating to Transit Trade of Land-locked Countries, these principles are interdependent, and each one must be interpreted with due consideration to others.

The New York Convention is applicable only between Land-Locked States and maritime ports, and the traffic in transit is understood as the passage of goods “throughout the territory of contracting States, between a LLS and the sea, when this passage is a portion of a complete journey comprising a sea transport which precedes or follows directly the passage.”19 The most significant provision of this treaty consists of Article 2 (1) (Uprety 2003, 212), which states that:

Freedom of transit shall be granted under the terms of this Convention for traffic in transit and means of transport. Subject to the other provisions of this Convention, the measures taken by Contracting States for regulating and forwarding traffic across their territory shall facilitate traffic in transit on routes in use mutually acceptable for transit to the Contracting States concerned. Consistent with the terms of this Convention, no discrimination shall be exercised which is based on the place of origin, departure, entry, exit or destination or on any circumstances relating to the ownership of the goods or the ownership, place of registration or flag of vessels, land vehicles or other means of transport used (New York Convention, Article 1).

The Convention also includes situations allowing the prohibitions on access for Land-Locked States. These prohibitions may be determined by transit states for reasons related to public order, for the protection of their essential security interests, in case of war, in the occurrence of a situation endangering the political existence and the safety of a contracting State or by virtue of obligations deriving from international or regional treaties to which the contracting transit state is a party.

Although it has been criticized, the New York Convention demonstrates that enforceable rules for transit rights of land-locked States may be elaborated in the framework of a multilateral treaty intended to be universal in scope (Caffisch 1978).

The New York Convention was signed by Bolivia on 29 December 1965 (but not ratified until the date of writing) and ratified by Chile on 25 October 1972.

4 RELEVANT JUDICIAL PRECEDENTS

It is to be expected that, in a society of States in which opportunities for

19 See Article 1 of the New York Convention on the Transit Trade of Land-Locked States.


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authoritative and impartial statements of the law are rare, there should be a tendency to regard judicial determination as evidence or, what is in fact the same, as a source of international law (Lauterpacht 2010, 14).

Therefore, whereas the International Court of Justice is not fettered by the rigidity of the formal doctrine of precedent, it has, over the course of its existence, largely adopted its substance. The Court follows its own decisions for they constitute a repository of legal experience to which it is convenient to adhere; because they embody what the Court has considered in the past to be good law and also because respect for decisions given in the past makes for certainty and stability, which are the essence of the orderly administration of justice (Lauterpacht 2010, 13).

This practice of continuity of judicial precedents also extends to the decisions of the Permanent Court of International Justice. Be it through an indirect acknowledgment of an understanding expressed previously or by a direct reference, the ICJ has resorted to the PCIJ’s case law to construct its own reasoning on multiple occasions.

On another hand, no legal rule or principle can bind a judge of the International Court of Justice to a precedent which, in all the circumstances, they feel bound to disregard. In that case, the judge will do what he or she deems to be just through the process of “distinguishing” and in other ways. Nevertheless, a judge is not free to discard judicial precedent altogether; there is an obligation to adduce reasons for departing from the duty of consistency and observance of settled principles. These considerations are of particular urgency in relation to international jurisdiction, which is inherently voluntary in character. (Lauterpacht 2010, 14-15)

4.2 LEGAL STATUS OF THE SOUTH-EASTERN TERRITORY OF GREENLAND (DENMARK V. NORWAY)

On 12 July 1931, the Royal Danish Government brought before the Permanent Court of International Justice a suit against the Royal Norwegian Government. Denmark argued that Norway had, on July 10th, 1931, published a proclamation declaring that it had proceeded to occupy certain territories in Eastern Greenland, which, according to the Applicant, were subject to the sovereignty of the Crown of Denmark.

Besides claiming sovereignty over Greenland in this case on the basis of occupation, Denmark also argued that Norway had recognized Danish sovereignty over the island by the “Ihlen Declaration.” M. Ihlen was the Norwegian Foreign Minister. In conversations on July 14th, 1919, with the Danish Minister accredited to Norway, the latter suggested to M. Ihlen that Denmark would raise no objection to any claim Norway might want to make at the Paris Peace Conference to Spitzbergen if Norway would not oppose the claim that Denmark was to make at the same


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conference to the whole of Greenland. On 11 July 1919, M. Ihlen, while discussing with with the Danish Minister, asserted that “the Norwegian government would not make any difficulty” concerning the Danish claim. These were the terms used as they were recorded by M. Ihlen for his Government’s own purposes. Denmark contended before the Permanent Court that this undertaking was binding upon Norway (Harris 2010).

In its Judgment, the Court declared that:

This declaration by M. Ihlen has been relied on by the Counsel for Denmark as a recognition of an existing Danish sovereignty in Greenland. The Court is unable to accept this point of view. A careful examination of the words used and of the circumstances in which they were used, as well as of the subsequent developments, shows that M. Ihlen cannot have meant to be giving then and there a definitive recognition of Danish sovereignty over Greenland, and shows also that he cannot have been understood by the Danish Government at the time as having done so. In the text of M. Ihlen’s minute, submitted by the Norwegian Government, which has not been disputed by the Danish Government, the phrased used by M. Ihlen is couched in the future tense: “ne fera pas de difficultés”; he had been informed that it was at the Peace Conference that the Danish Government intended to bring up the question: and two years later - when assurances had been received from the Principal Allied Powers - the Danish Government made a further application to the Norwegian Government to obtain the recognition which they desired of Danish sovereignty over all Greenland. Nevertheless, the point which must now be considered is whether the Ihlan declaration - even if not constituting a descriptive recognition of Danish sovereignty - did not constitute na engagement obliging Norway to refrain from occupying any part of Greenland. ... It is clear from the relevant Danish documents, which preceded the Danish Minister’s démarche at Christiania on July 14th, 1919, that the Danish attitude in the Spitzbergen question and the Norwegian attitude in the Greenland question were regarded in Denmark as interdependent, and this interdependence appears to be reflected also in M. Ihlen’s minute of the interviews. Even if this interdepence - which, in view of the affirmative reply of the Norwegian Government, in whose name the Minister for Foreign Affairs was speaking, would have created a bilateral engagement - is not held to have been established, it can hardly be denied that what Denmark was asking of Norway (“not to make any difficulties in the settlement of the [Greenland] question”) was equivalent to what she was indicating her readiness to concede in the Spitzbergen question (to refrain from opposing “the wishes of Norway in regard to the settlement of this question”) (PCIJ 1933, 69-71)

Thus, on 5 April 1933, the Permanent Court of International Justice delivered its judgment on the matter. The Court considered that a reply nature given by the Norwegian Minister for Foreign Affairs on behalf of this government in response


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to a request by the diplomatic representative of a foreign power in the sense that the Norwegian Government would not make any difficulty in the settlement of a question, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.

4.3 NUCLEAR TESTS CASES (AUSTRALIA AND NEW ZEALAND V. FRANCE)

On 9 May 1973, Australia and New Zealand separately instituted proceedings against France before this Court demanding cessation of the atmospheric nuclear tests carried out by the latter in the South Pacific. While the case was pending, the French government declared that it had concluded its series of tests and did not intend to resume them. Upon deciding on whether to dismiss the application, the Court considered the legal relevance of the statements unilaterally given in public by the French authorities in that year.

In its Judgment, the International Court of Justice stated that:

463. It is well recognized that declarations made by way of unilateral acts concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.

474. Of course, not all unilateral acts imply obligation, but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound – the intention is to be ascertained by the interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.

458. With regard to the question of form, it should be observed that this is not a domain in which international law imposes any special or strict requirements. Whether a statement is made orally or in writing makes no essential difference, for such statements made in particular circumstances may create commitments in international law, which does not require that they should be couched in written


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form. Thus the question of form is not decisive. As the Court said in its Judgment on the preliminary objections in the case concerning the Temple of Preah Vihear:

496. One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sund servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declarations. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created me respected.

4951. Of the statements by the French Government now before the Court, the most essential are clearly those made by the President of the Republic. There can be no doubt, in view of his functions, that his public communications or statements, oral or written, as Head of State, are in international relations acts of the French State. His statements, and those of members of the French Government acting under his authority, up to the last statement made by the Minister of Defence (of 11 October 1974), constitute a whole. Thus, in whatever form these statements were expressed, they must be held to constitute an engagement of the State, having regard to their intention and to the circumstances in which they were made.

531. In announcing that the 1974 series of atmospheric tests would now be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect… It is true that the French Government has consistently maintained, for example in a Note dated February 7, 1973 from the French Ambassador in Canberra to the Prime Minister and Minister for Foreign Affairs of Australia, that it “has the conviction that its nuclear experiments have not violated any rule of international law,” nor did France recognize that it was bound by any rule of international law to terminate its tests, but this does not affect the legal consequences of the statements examined above. The Court finds that the unilateral undertaking resulting from these statements cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. The Court finds further that the French Government has undertaken an obligation the precise nature and limits of which must be understood in accordance with the actual terms in which they have been publicly expressed (ICJ 1974, 472-474).


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Therefore, the Court found, by nine votes to six, that “the claim of Australia no longer has any object and that the Court is therefore not called upon to give a decision thereon” because France had already fulfilled its obligation to hold no further nuclear tests in the atmosphere of the South Pacific and, consequently, the dispute between the two States had already disappeared. The companion case initiated by New Zealand received similar a ruling by the Court (ICJ Reports1974, 478).

The undertaking in this case was quite different from that in the Eastern Greenland case for being evidently unilateral, publicly made, not in the course of negotiations and without a quid pro quo. Although there was at the time little evidence to support it, the rule stated by the Court whereby a State may be bound by a unilateral public pronouncement intended by it to be binding without more has, according to some scholars, now taken root. (Harris 2010, 49).

To another set of scholars, however, in spite of the Court’s general statement in the sense that France was bound to stop its tests by virtue of its declaration that it would do so,

the normal consequence of a unilateral declaration is either that it is accepted by the State or States to which it is addressed, and it will then become in effect part of a treaty settlement; or it will be ignored and rejected, and the other State or States will not seek to enforce it, so that it will become a dead letter. Even without any explicit acceptance, the moment that one of the addressees of the unilateral declaration seeks to rely on the legal obligation indicated in it, this will itself constitute the acceptance needed to convert it into a bilateral, conventional, relationship. The Nuclear Tests Cases were exceptional in that, for reasons not relevant to the present discussion, the Court was seeking to impose on Australia and New Zealand a settlement of their claims on terms which they had not themselves accepted. Even if we do not go so far as to say that the Nuclear Tests decisions were erroneous, to base a theory of sources on a decision in a case the special facts of which are very unlikely to be repeated, does not appear a sound approach. (Thirlway 2006, 135-136)

In the course of the negotiations between Bolivia and Chile, the latter has presented several declarations with regards to the former’s right of access to the Pacific Ocean. This Court is therefore invited to assess the legal value and relevance of the statements given by Chile.

4.4 ADVISORY OPINION ON RAILWAY TRAFFIC BETWEEN LITHUANIA AND POLAND

In its 1931 Advisory Opinion on Railway Traffic Between Lithuania and Poland, the Permanent Court of International Justice found that the two states were bound by a resolution of the Council of the League of Nations which recommended that:


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the two governments ... enter into direct negotiations as soon as possible in order to establish such relations between the two neighboring States as will ensure the good understanding between nations upon which peace depends...

Poland argued that, in accepting this recommendation, both states undertook the obligation not only to negotiate but also to come to an agreement to open the Landwarów-Kaisiadorys railway sector to traffic. In rejecting this argument, the Court stated:

[that] an obligation to negotiate does not imply an obligation to reach an agreement, nor in particular does it imply that Lithuania, by undertaking to negotiate, has assumed an engagement, and is in consequence obliged to conclude the administrative and technical agreements indispensable for the re-establishment of traffic on the Landwarów-Kaisiadorys railway sector.

4.5 ADVISORY OPINION ON THE INTERNATIONAL STATUS OF SOUTH-WEST AFRICA

The 1950 ICJ’s Advisory Opinion in the International Status of South-West Africa is in the same vein. The question arose as to whether South Africa was legally obliged to conclude a trusteeship agreement with the U.N. to place Southwest Africa under the newly created system of administration and supervision.”

In determining that South Africa was under no such obligation, the Court engaged in a close, literal reading of the relevant provisions of the Charter, and rejected the argument that the answer to the question posed be sought in “general considerations” regarding the creation of the trusteeship system and its relation to the existing mandate system of the League of Nations20.

Thus, the Court was reluctant to impose a duty on South Africa lacking a clear and specific manifestation of intent in the governing international agreement, even though the agreement involved was the U.N. Charter, where one might think clear indications of object and intent would govern.

Judge Alvarez, in his dissenting opinion, indicates that he would go even further. He would derive not only an obligation to negotiate, but also an obligation to reach an agreement, from the language of the Charter read in light of the “spirit of the Charter.”21

20 Advisory Opinion on the International Status of South-West Africa.21 Dissenting Opinion of Judge Alvarez.


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5 SUBMISSIONS

The Plurinational State of Bolivia requests this Court to adjudge and declare that:

a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean. b) Chile has breached the said obligation.c) Chile must perform in good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean.

The Republic of Chile requests this Court to adjudge and declare that:

a) There is no dispute between Bolivia and Chile, for Chile is not bound by international law to negotiate with Bolivia in order to grant the latter a fully sovereign access to the Pacific Ocean, and therefore the Court lacks jurisdiction over the matter.Alternatively, b) The Court lacks jurisdiction, for Chile has already fulfilled its obligation, which was an obligation to negotiate, not to conclude an agreement, and therefore there is no dispute between the two States.

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