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.
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.”
Stephen the Lawyer 