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)

But the tree had to fall

Nobody asked the tree what it thought about the matter.

big-catalpa-tree
Catalpa tree (Image from here)

In about 1930 a catalpa tree began to grow in the Washington Park neighbourhood of Denver. Eighty years of subdivisions and land transfers later, the tree was on the boundary of blocks owned by the Loves and the Kloskys (sadly, the case does not disclose that the blocks were called Blackacre and Whiteacre, which would have been rather cool). Specifically, 74% of the trunk was on Klosky’s land and 26% on Love’s land. The tree dropped leaves, braches and seed pods on both properties. Klosky decided to cut the tree down. Love objected and obtained a restraining order pending an injunction preventing Klosky felling the tree.  The Loves’ application was dismissed by the Denver District Court, although in words many garden lovers would understand  Judge Hoffman said –

[T]he law often requires me [to] do things I don’t want to do. If I [were] the emperor of Washington Park, I would, I would order this tree not cut down. It’s a beautiful tree, it’s a great tree. But that’s not my role. I’m not the emperor of Washington Park. I have to follow what I think the law is, and my conclusion is that the Loves have not met their burden of proof.

The Loves appealed to the Colorado Court of Appeals, which dismissed their application: Love v Klosky, 2016 COA 131. They appealed to the Supreme Court of Colorado.

The Supreme Court considered its earlier decision in Rhodig v Keck, 421 P.2d 729 (Colo., 1966). Rhodig was found to have embraced the very old English case of Masters v Pollie, 2 Rolle 141; 81 ER 712 (Kings Bench, 1620). That case had found that in a case like the present, where the tree encroached on anothers property, the tree belonged to the owner of the land where the tree was planted. Rhodig had added a gloss that where such a tree had been jointly planted, jointly cared for, or treated as a boundary between properties, it could become joint property between the neighbours. This was not the case here. There being no case for overturning Rhodig, Klosky was entitled to remove the tree.

Love v Klosky, 2018 CO 20