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Should Chile Grant Bolivia Sovereign Access to the Sea?

By: Guest Contributor - May 27, 2015, 2:02 pm

International Law Backs Return of Lost Territory

By Roxana Forteza

The 21st century international system is marked by peace, cooperation, and negotiation — all governed by the institutions of international law. These circumstances have lead Bolivia to rely on the benefits of international law embodied in the Superior Court of Justice in the Hague. Thus, Bolivia expects Chile to sit down and negotiate, effectively and in good faith, for full sovereign access to the Pacific Ocean in what was lost territory.

Bolivia bases its legal action before the International Court of Justice on Chile’s unilateral acts — that is, in the various ways Chile has gestured territorial return to Bolivia. The country acts on the need to expedite its trade, at a time when this is a matter of real and pragmatic livelihood for many developing countries. Furthermore, Bolivia obviously intends to receive compensation for historic damages.

Chile’s position has regressed lately, as former President Piñera and President Bachelet have stated that there are no outstanding issues between Chile and Bolivia, as everything was elucidated in the Treaty of 1904. They have said that treaties are intangible (beyond the physical realm); ie they can never be negotiated. It is precisely on this point that I want to expose some theoretical and practical assessments based on international relations.

From the standpoint of international law, it could be argued that there are no grounds to enforce the 1904 treaty, since the Convention on the Law of Treaties didn’t enter into force until 1980, and it is not retroactive. From the pragmatic side, however, it can be said that in reality, despite the many advances that international law has had, it has not overcome the basic condition of anarchy in international relations — or the classical conception of realism.

The revision of a treaty is highly feasible with the consent of the parties, and it would not be the first time that Bolivia and Chile have done it. The border treaty of August 10, 1866, was revised and replaced by that of August 6, 1874, and then by the treaty of 1904.

It is illogical to think that treaties are irreplaceable, intangible, or that they cannot be revised, given that conditions and circumstances change over time. Chile’s position on the impossibility of modifying the treaty of 1904 is not conciliatory at all.

It is possible and realistic to have a negotiation within the terms of the treaty, proposing the territorial exchange of Chile’s north of Arica, with Bolivian territories with freshwater. This position obviously requires the political will of the parties.

It is necessary for both countries to return to dialogue and diplomatic work. The Chilean immovable speech, and the erratic and aggressive actions of the current Bolivian foreign ministry cannot remain as the basis of the policy between these countries. It is vital that both states generate pragmatic proposals, leaving petty national loyalties aside.

The exchange of territory does not mean the loss or reduction of area for the countries. Chile cannot continue to deny the maritime quality to Bolivia, in a world where access to the Pacific becomes very important for international trade.

In an interdependent and globalized world, the dynamics and importance of foreign trade for the growth of states become vital. For Bolivia, this could be its big chance to export food, which given its current landlocked condition is highly difficult, and the competitiveness in its export costs is reduced.

Roxana Forteza is a Bolivian international-relations scholar with a masters in higher education and international trade. She works as the director of international relations at the Ecological University of Bolivia.

Bolivia’s Intentions: Dangerous and Naive

By Valerie Dekimpe

EspañolA crucial distinction to be made in this debate is that Bolivia does have access to the sea; it just does not have access in the form of territory bordering the Pacific Ocean and under Bolivian sovereignty.

Honoring the 1904 Peace Treaty, Chile provides Bolivia with free commercial transit through its ports at an annual cost of US$100 million. Bolivia not only counts on its own customs authorities, it also benefits from preferential treatment and tariffs. In March 2014, of the 763,000 tons of goods mobilized in the port of Arica, 81 percent was Bolivian load.

By signing the treaty that ended the War of the Pacific, Bolivia accepted the loss of territory. There is no legal ground for Chile to be obliged to cede Bolivia part of its coastline. A transfer of land would imply the treaty is no longer binding and that borders can be re-drawn at the whims of leaders, setting a dangerous precedent in international relations.

Bolivia seemingly understands that the reclaiming of lost territory will receive little support from the international community. During this month’s hearing it declined to provide a definition of “sovereign access to the sea” despite repeatedly using the terms “transfer of territory” and “cession of territory” in its application and memorial.

Further contradicting itself, Bolivia insists that obtaining access to the Pacific “is a matter independent of the 1904 Treaty and that it does not require any innovation thereof.” Considering that Bolivia has been sufficiently clear about wanting to absorb Chilean territory, how else does Bolivia intend to achieve this if not by amending the treaty that settled the current borders? No country in its right mind would voluntarily relinquish part of its territory.

A logical question then arises. Is Evo Morales genuinely pursuing a change of the status quo in good faith? Is he even serious about obtaining access to the Pacific?

Bolivia’s incoherence and inconsistency strongly discredit the country’s petition and reduce it to a populist and bellicose foreign policy. One not need look any further than the revision of the constitution to include access to the sea as an “irrevocable right,” the country’s pompous holiday celebrating the sea, and its decorated navy (stationed in rivers and lakes) to recognize that Evo Morales’s policy is anchored more on domestic politics than at sea.

Bolivia also claims Chile promised it access to the sea in the past, which it now considers an “expected right.” Talks have indeed taken place, but what is flawed in Bolivia’s interpretation is that discussions don’t equal commitment. The nature of negotiations entails that proposals can be made without resulting in a commitment if talks collapse.

“Expectations don’t create rights, and no country would negotiate with another, or would make proposals if potential offerings were to generate rights. That goes against the logic of international relations,” Chile’s minister of Foreign Affairs Heraldo Muñoz has said.

Bolivia’s demand might be legitimate on moral grounds. Chile did, after all, violate Bolivia’s sovereignty in the first place, unfairly cutting it from the coast. What is at stake, however, is not fairness but the law. Bolivia’s landlocked condition remains a fact of history, like many others that have marked humanity.

Thinking the long-standing treaty system that has underpinned the world order could be forgone is naive.

Valerie Dekimpe is a Belgian-Chilean journalist based in Santiago, Chile, where she follows the country’s current transformation. Aside from covering Chilean politics, she writes on international affairs. Follow @VDekimpe.