No closer to the ocean

Even a small tax can cast a long shadow (British North America in the 1770s, for instance).  A nineteenth century tax recently reverberated in a win for Chile in the International Court of Justice.

In February 1878, the Bolivian government imposed a (possibly unlawful) tax on the Chilean mining company Compañía de Salitres y Ferrocarril de Antofagasta which was operating in its territory.  The resulting War of the Pacific went badly for the Bolivia and its ally, Peru.  The subsequent Treaty of Peace and Friendship of 1904 resulted in Bolivia ceding its coastal territory to Chile, making it a landlocked country.  The matter remains a sore point in Bolivia.  In 2013 that country applied to the International Court of Justice for a finding that Chile was obliged to negotiate with Bolivia “in order to reach an agreement granting Bolivia a fully sovereign access” to the Pacific Ocean.

Antofagasta
Pacific Ocean cliffs north of Antofagasta, Chile (Image from here)

The Court’s decision was given on 1 October 2018.  The court noted as an initial point that –

While States are free to resort to negotiations or put an end to them, they may agree to be bound by an obligation to negotiate. In that case, States are required under international law to enter into negotiations and to pursue them in good faith. As the Court recalled in the North Sea Continental Shelf cases, States “are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification” …. Each of them“should pay reasonable regard to the interests of the other”.

The point might be usefully remembered in negotiations of any sort.

In the matter at hand, the Court did not consider that any of the bilateral agreements relied on by Bolivia required Chile to negotiate access to the sea.  Equally, Chile’s unilateral statements of general goodwill regarding negotiations did not create a legal obligation (sample text: “the policy of the Chilean Government has unvaryingly been a single one: to express its willingness to give an ear to any Bolivian proposal aimed at solving its landlocked condition”).

Interestingly, the court also found that the United Nations Charter did not assist Bolivia.  While the Charter provides that “[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”, the Court said

This paragraph sets forth a general duty to settle disputes in a manner that preserves international peace and security, and justice, but there is no indication in this provision that the parties to a dispute are required to resort to a specific method of settlement, such as negotiation. Negotiation is mentioned in Article 33 of the Charter, alongside “enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements” and “other peaceful means” of the parties’ choice. However, this latter provision also leaves the choice of peaceful means of settlement to the parties concerned and does not single out any specific method, including negotiation. Thus, the parties to a dispute will often resort to negotiation, but have no obligation to do so.

Relevant to matters involving other international bodies, it was also not significant that Chile had voted in support of resolutions by the Organization of American States recommending the two countries negotiate over the issue: “Chile’s participation in the consensus for adopting some resolutions therefore does not imply that Chile has accepted to be bound under international law by the content of these resolutions.”

Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile) (Int’l Ct of Justice, 1 Oct 2018)

The challenges of maturity

When a worker is of mature years, a damages claim for work injuries can present particular challenges

country west
Image from here

Ms Schofield was aged in her mid-fifties.  She suffered a right knee injury while employed by a butcher.  At the time of her accident she was receiving average weekly earnings of around $375.00.

She sought leave in the Melbourne County Court to sue for common law damages for economic loss and pain and suffering on the basis that she had suffered a serious injury.  The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic.) provides at §335(2)(d) that –

If—
(a) the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or
(b) the worker makes an application under section 328(2)(b) —
the worker may not bring proceedings for the recovery of damages in respect of the injury unless— …
(d) a court, other than the Magistrates’ Court, gives leave to bring the proceedings …

It was common ground that if the plaintiff retained any work capacity she would not meet the definition of “serious injury”, at least in respect of economic loss.  The medical evidence broadly showed that if she retained any work capacity it was for sedentary or clerical duties.

Judge Dyer noted that

Ms Schofield is relatively advanced in age and has not worked since sustaining her injury in 2014. She has very limited education and my own assessment of her, particularly during cross-examination before me, was that she would have very limited skills to offer other than in a very simple customer service role. Plainly her knee injury renders her unsuitable for that type of employment.

She has effectively no experience in office work, and I accept her evidence, supplemented to some extent by the report of Mr McGuire from Converge International, that she did require further computer skills in order to have any real prospect of employability in an office environment. Indeed, the plaintiff’s own evidence of effectively repeating [a] short computer course without any real benefit confirms my view that she is a woman who would have no real aptitude for any office work position in the open labour market.

His Honour concluded that the plaintiff had no current work capacity for suitable employment and that this was likely to continue indefinitely.  She was granted leave to sue for damages.

Schofield v Country West Gourmet Meat & Chicken Pty Ltd [2018] VCC 614

When is it time to go?

Only a quick post tonight.

The image that kept cropping up in my social media feeds today was an unflattering photo of Madam Justice Ruth Bader Ginsburg at Justice Kavanaugh’s swearing in.  The usual comments have been, unflatteringly but not unfairly, along the lines of “she looks like she was taken from a nursing home and is deeply annoyed that this isn’t a visit to IHOP.

Ginsburg
Image from here

This got me thinking about when judges should hang up the boots.  Judges on the High Court of Australia are required constitutionally to retire at seventy years as a result of a referendum in the 1970s.  This, perhaps, reflects some extremely long judicial careers on the High Court.  Longest of all was that of Sir Edward McTiernan.  McTiernan was appointed in 1930 and retired (not altogether willingly) in 1976.  He was aged 84 years.  His judgments were never overly impressive (my impression as a law student was that his most common judgment was the phrase “I concur”), but he still seemed to be active and involved until retirement.

Edward_McTiernan_1954
Sir Edward McTiernan (Public Domain)

McTiernan J’s career was rivalled by the longevity of Sir George Rich.  Rich served from 1913 to 1950 and retired at the age of 87.  His judgments, too, are never overly deep.  Wikipedia offers the mixed compliment that –

Rich’s judgments are generally considered to be clear and concise. Some commentators attribute this more to laziness than to a knack for clarity.

George_Rich
Sir George Rich (Image from here)

The same can be said away from the Bench too: I’m sure we can all think of barristers, solicitors and legal academics we’ve known who were, well, past their prime.  So my question is: when should lawyers look at calling it a day?

Thoughts?