obligation to negotiate access to the pacific ocean pdf


Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, I.C.J. Contrary to Bolivia’s view, Chile maintains that an “accumulation of interactions, none of which created or confirmed a legal obligation, does not create such an obligation by accretion”. Acquiescence to an obligation to negotiate sovereign access to the sea results from Chile’s silence and from the fact that it subsequently engaged in negotiations with Bolivia. - 7 May 2015, Verbatim record 2015/21 Bolivia’s assertion that obligation to negotiate established through acquiescence, Failure by Bolivia to identify declaration requiring response to prevent obligation from arising. Bolivia argues that estoppel does not depend on State consent; it aims “to provide a basis for obligations other than the intention to be bound” (emphasis in the original). According to that practice, a State proposes in a note to another State that an agreement be concluded following a certain text and the latter State answers with a note that reproduces an identical text and indicates its acceptance of that text. Finally, by a memorandum dated 12 January 1927, the Minister for Foreign Relations of Peru informed the Secretary of State of the United States of America that the Peruvian Government did not accept the United States’ proposal regarding Tacna and Arica. Bolivia’s argument based on resolutions of the OAS. 23. In any event, the Court does not find in the two communiques referred to by Bolivia nor in the Parties’ subsequent conduct any indication that Chile accepted an obligation to negotiate the question of Bolivia’s sovereign access to the Pacific Ocean. to create a legal obligation to negotiate”. Jus Mundi's algorithms and legal experts scan the web and the national litigation around the world in order to identify those awards that have been made public, in most cases through a municipal annulment or enforcement procedure. Bolivia characterizes this Agenda as an agreement having a binding nature. Nevertheless, access to the original PDF is reserved to clients of the Jus Mundi - Arbitration Research offer. Chile and Bolivia gained their independence from Spain in 1818 and 1825, respectively. Bolivia’s submissions could be understood as referring to an obligation with a similar character. The Court notes that Bolivia’s argument of a cumulative effect of successive acts by Chile is predicated on the assumption that an obligation may arise through the cumulative effect of a series of acts even if it does not rest on a specific legal basis. Negotiations recommended but not required — Resolutions not per se binding — Court concludes that no obligation to negotiate can be inferred from content of resolutions or from Chile’s position during their adoption. Assuming that the requirements of estoppel would be met, Chile did not act inconsistently or in denial of the truth of any prior representation. Citing the award in the. The willingness demonstrated by Chile to obtain for Bolivia an access of its own to the sea, ceding to it a considerable part of the area north of Arica and of the railway line found within the territories subject to the plebiscite established by the Treaty of Ancon, opens the way to more friendly relations between both countries which are necessary for the future union of both peoples by laying solid foundations in line with their common goals.”. It argues that “[a]s with Article 2 (3) of the United Nations Charter . During a meeting on 28 July 2011, the President of Chile, Mr. Pinera, reiterated to his Bolivian counterpart, Mr. Morales, the terms of his proposal based on the three following conditions: the compliance with the 1904 Peace Treaty, the absence of grant of sovereignty and the modification of the provision of the Bolivian Constitution referring to the right of Bolivia to an access to the Pacific Ocean. 38. 438). These alleged agreements occurred in different periods of time and will be analysed separately in chronological order. Chile’s proposal was accepted by Bolivia as a basis for the negotiations. Chile argues that, if the words used “are not suggestive of legal obligations, then they will be characterizing a purely political stance”. Bolivia does not contest that resolutions adopted by the General Assembly of that Organization are not binding “as such”, but maintains that they produce certain legal effects under the Charter of the OAS. 4. In particular, on 31 October 1979, the General Assembly of the OAS adopted resolution AG/RES. Bolivia’s argument that Chile’s declarations and other unilateral acts create obligation to negotiate, Wording of these declarations does not suggest undertaking of legal obligation. Notably, in a Note dated 28 June 1948, the Ambassador of Bolivia in Chile reported to the Minister for Foreign Affairs of Bolivia his interactions with the Chilean President, Mr. Gabriel Gonzalez Videla, regarding the opening of these negotiations and included a draft protocol containing Bolivia’s proposal. Mr. Jean-Marc Thouvenin, Professor at the University Paris Nanterre, Secretary-General of the Hague Academy of International Law. Chile argues that resolutions of the General Assembly are in principle not binding and that the General Assembly lacks competence to impose legal obligations on the Parties. 144. Although these remarks are politically significant, they do not indicate that Chile had accepted an obligation to negotiate Bolivia’s sovereign access to the Pacific Ocean. In Chile’s view, the discussions that took place prior to the exchange of Notes of June 1950 do not suggest in any way that the Parties created or confirmed a legal obligation to negotiate. AGAINST: Judges Robinson, Salam; Judge ad hoc Daudet.

By its Judgment of 24 September 2015, the Court rejected the preliminary objection raised by Chile and found that it had jurisdiction, on the basis of Article XXXI of the Pact of Bogota, to entertain the Application filed by Bolivia on 24 April 2013. H.E. By continuing your visit on this site, you accept the use of cookies for purposes of audience measurement and service improvement. Chile maintains that the language used did not reflect any sense of legal obligation. in the Counter-Memorial and in the Rejoinder: “The Republic of Chile respectfully requests the Court to dismiss all of the, claims of the Plurinational State of Bolivia.”. - 15 July 2014, Written statement of Bolivia on the preliminary objection of Chile According to Bolivia, “no subsequent acceptance or response from the other State is required” in order for such acts to establish legal obligations. All this leads the Court to the conclusion that no obligation to negotiate Bolivia’s sovereign access to the Pacific Ocean arises for Chile under the provisions of the Charter on the peaceful settlement of disputes. During this meeting, the delegate of Chile replied, inter alia, that: “Bolivia can seek satisfaction through the medium of direct negotiations of our own arranging. Accordingly, the Court cannot accept the other final submissions presented by Bolivia, which are premised on the existence of such an obligation. At the present opportunity, I have the honour of expressing to Your Excellency that my Government will be consistent with that position and that, motivated by a fraternal spirit of friendship towards Bolivia, is open formally to enter into a direct negotiation aimed at searching for a formula, (translated by Bolivia as “is willing to formally enter into direct negotiations aimed at finding a formula”), that would make it possible to give Bolivia its own sovereign access to the Pacific Ocean, and for Chile to obtain compensation of a non-territorial character which effectively takes into account its interests.”, 55. Thus, even if a statement concerning an obligation to resort to negotiations had been made by Chile, this would not have been part of an agreement between the Parties. This resolution was followed by 11 other resolutions, reaffirming the importance of dialogue and of the identification of a solution to the maritime problem of Bolivia, adopted by the General Assembly of the OAS between 1979 and 1989. Chile argues that in its Note of 20 June 1950 it did not agree to the proposal in Bolivia’s Note of 1 June 1950. Under the Treaty on the Transfer of Territory, Bolivia and Chile agreed, inter alia, that the territories of Tacna and Arica were to be transferred to Bolivia if Chile should acquire “dominion and permanent sovereignty” over them either by direct negotiations or by way of the plebiscite envisaged by the 1883 Treaty of Ancon. Chile did not vote in favour of any of the 11 resolutions, but did not oppose consensus on three occasions, while making declarations or explanations with respect to the content and legal status of the resolutions adopted. These minutes are referred to by the Parties as “Acta Protocolizada”. and aspirations of the Bolivian and Chilean peoples. Chile would be willing to negotiate with Bolivia the cession of a strip of territory north of Arica up to the Concordia Line based on the following delimitations: The Government of Chile rejects, for being unacceptable, the cession of territory to the south of the indicated limit, that could affect in any way the territorial continuity of the country. Chile indicated that it “would be willing to negotiate with Bolivia the cession of a strip of territory north of Arica up to the Concordia Line” based on specific delimitations and that “[t]he cession .

Bolivia underlines Chile’s participation in the drafting of some of these resolutions. 816. Chile specifies that the correspondence preceding or following the “Acta Protocolizada” does not support Bolivia’s position with regard to their legally binding force. 101. In Bolivia’s view, this duty to negotiate is applicable to all States. In international law, the existence of an obligation to negotiate has to be ascertained in the same way as that of any other legal obligation. On 9 December 1974, several States of Latin America, including Bolivia and Chile, signed the Declaration of Ayacucho which specified, regarding the Bolivian situation, that: “Upon reaffirming the historic commitment to strengthen, once more, the unity and solidarity between our peoples, we offer the greatest understanding to the landlocked condition affecting Bolivia, a situation that demands the most attentive consideration leading towards constructive understanding.”. 29. 24. the obligation is a positive one: Member States ‘shall’ submit disputes to the peaceful procedures identified”. IV. 126. This Treaty entered into force on 10 March 1905 after the instruments of ratification were exchanged between the Parties. Thus, the parties to a dispute will often resort to negotiation, but have no obligation to do so. Bolivia maintains that the Joint Declaration signed at Charana on 8 February 1975 (see paragraph 62 above) is also the legal basis of an obligation for Chile to negotiate Bolivia’s sovereign access to the Pacific Ocean. Declarations of this kind may be, and often are, very specific. When setting forth an obligation to negotiate, the parties may, as they did for instance in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, establish an “obligation to achieve a precise result” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 121). 116. In a Note dated 12 February 1923 to the Chilean Minister for Foreign Affairs, the Minister Plenipotentiary of Bolivia in Chile requested the revision of the 1904 Peace Treaty and stated that: “If the request that I was asked to make does not receive the response that my country expects, and instead you inform me that the Chilean Ministry of Foreign Affairs is willing to hear the proposals that my Government wants to submit to it, in order to enter into a treaty at the right time, and with mutual compensation, which, without modifying the Treaty of Peace and without interrupting the continuity of Chilean territory, considers the situation and Bolivia’s aspirations and which Your Government would make every effort to bring about, I can do nothing more than tell you that my Government has instructed me to put an end to these negotiations, as the reason for them was to seek a firm and secure basis on which Bolivia’s aspirations could be reconciled with Chile’s interests.”. 120. Ms Kate Parlett, member of the Bar of England and Wales, 20 Essex Street Chambers.

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