Chile’s doctrine of artificial complaints
President Michelle Bachelet of Chile spoke last March 30 at the annual conference of the American Society of International Law (ASIL), an organization whose purpose is to support and strengthen international justice. Towards the end of a presentation dedicated to all the best causes she declared “we are all responsible for ensuring that the international system works properly. One essential element is the principle of adherence to international law, which includes strict respect for treaties as a means of guaranteeing peace and international stability. This requires respecting what has been agreed and not misusing the mechanisms that have been designed for peacefully resolving any differences that might exist. The abuse of international tribunals for artificial law suits could contribute to the erosion of those existing mechanisms.” The full videotape of her Grotius Lecture on “The Challenges to International Law in the 21st Century” is available in English at www.asil.org/resources/2016-annual-meeting.
Chile’s most respected newspaper El Mercurio reported about this presentation that “President Bachelet delivered a clear message on Bolivia’s inclination to take to the courts its sovereignty claims. She asserted the abuse of international courts can cause the erosion of the mechanisms established by international law [...] she pointed out ‘artificial complaints’ should be rejected in order to prevent damage to conflict resolution mechanisms.” www.emol.com/noticias/Nacional/2016/03/30/795672/Bachelet-llama-a-no-abusar-de-los-tribunales-internacionales-con-demandas-artificiales-en-EEUU.html
On 24 April 2013 Bolivia instituted proceedings against Chile at the ICJ over a series of frustrated negotiations that would have granted this landlocked country access to the Pacific Ocean over Chilean territory. Bolivia substantiated its case in a memorial dated 15 April 2014. In it Bolivia accuses Chile of failing to follow through on repeated formal offers to negotiate with Bolivia a sovereign access to a useful sea port on the Pacific coast. In accordance with Court procedure Chile has the option to respond the Bolivian Application on or before 25 July 2015. Full proceedings of this case are available at www.icj-cij.org/docket/index.php?p1=3&p2=3&case=153.
By her stance at the ASIL conference, President Bachelet placed herself above the mechanisms of international law and multilateral justice. She assumed the country she represents has an absolute power to decide which Applications are artificial and should not be heard by a court of law and which are legitimate and should be heard. ICJ Magistrates present at the ASIL conference could have hardly ignored the import of these remarks. According to President Bachelet, Chile has a unilateral right to filter out Applications deemed artificial and abusive. The appropriateness of a complaint against Chile is decided by Chilean officials, not by the Court. That is a new doctrine, worthy of consideration by the Magistrates at The Hague.
On 15 July 2015 Chile presented a preliminary objection claiming the ICJ lacks competence to hear the Bolivian complaint. On 24 September 2015 the Court dismissed Chile’s objection by a vote of 14-2. Perhaps unwittingly, President Bachelet appeared to send a message questioning the ICJ for having dared to reject Chile’s preliminary objection against an “artificial complaint.” Anybody who believes courts are meant to settle differences regardless of whether the party brought before the court declares they are trivial or abusive must have been baffled by President Bachelet’s confident statement that strict respect for treaties forecloses law suits about these differences when one party deems them artificial.
Chile’s Agent in Charge of this case at the ICJ tried to contain the damage. “She’s not referring to any specific thing. She’s making a general statement,” Mr. Jose Maria Insulza declared to El Mercurio’s special envoy right after President Bachelet’s presentation in Washington. His take was reported under the headline “Chile’s Agent at The Hague assures that Bachelet speech was not necessarily aimed at Bolivia” (www.emol.com/noticias/Nacional/2016/03/30/795680/Agente-de-Chile-ante-La-Haya-asegura-que-discurso-de-Bachelet-no-apunto-necesariamente-a-Bolivia.html).
Bolivia and Chile signed the 1948 Pact of Bogota under which most Latin American nations agreed to submit their differences to the ICJ. Ever since the ICJ discarded Chile’s preliminary objection, influential voices in Santiago are pressuring the Bachelet government to leave the Pact of Bogota, while others oppose this action. If Chile decides to withdraw from the Pact of Bogota, this action will not have any effect on Bolivia’s current Application. The process will continue due to the fact that the Bolivian complaint was presented before any repudiation of the Court by Chile. The only way Chile can withdraw from this case is by abandoning it. The case will then proceed in Chile’s absence, in effect leaving Chile without a defense. The voice of Jose Miguel Insulza, Chile’s Agent at the ICJ, stood out in this debate: “when it comes to international relations, kicking the table is not a habit in this country,” he declared.
Mr. Insulza’s comment is found at www.elmercurio.com/blogs/2016/02/17/39474/Agente-Insulza-responde-criticas-de-Evo-Morales-El-Presidente-de-Bolivia-esta-en-plena-campana.aspx.
Debate on leaving Pact of Bogota is found at: 1) www.cooperativa.cl/noticias/pais/relaciones-exteriores/bolivia/senadores-plantearon-que-chile-se-retire-del-pacto-de-bogota/2016-03-23/200032.html, 2)www.elpaisonline.com/index.php/2013-01-15-14-16-26/nacional/item/209970-politicos-en-chile-insisten-en-dejar-pacto-de-bogota-tras-decision-de-bolivia-de-demandar-por-silala and 3) http://www.latercera.com/noticia/politica/2016/03/674-674160-9-ex-cancilleres-consideran-inconveniente-que-chile-se-retire-del-pacto-de-bogota.shtml
When she stated at the ASIL lecture that “the abuse of international tribunals for artificial law suits could contribute to the erosion of those existing mechanisms,” President Bachelet must have been aware of the growing Chilean opposition to the Pact of Bogota. It is unlikely hawks will prevail over her government and expose their country to the risks inherent in leaving this Pact or abandoning the current case. Nevertheless, her message to the ICJ is that there is a risk, however slight, that the scope and authority of the ICJ might be diminished if Chile leaves the Pact of Bogota. This could be read as a subtle warning to the ICJ on the dire consequences of accepting “artificial complaints” whose merits need not be examined.
Through her presentation at ASIL, President Bachelet appeared at first sight as a champion of peaceful mechanisms to resolve international differences. But her speech contained a veiled subtext. She managed to insinuate Bolivia undermines these mechanisms. First, Bolivia threatens Chile with a succession of frivolous complaints. Second, Bolivia’s current Application hides a request to the ICJ to force Chile to modify the treaty signed by Chile and Bolivia in 1904.
During the War of the Pacific (1879–83), Chile overwhelmed its northern neighbors Peru and Bolivia. Peru lost three large provinces. Its capital city, Lima, was occupied by Chile during three years. An objective introduction to the Bolivian participation in this war can be found in ‘Guano, Salitre y Sangre’ by Roberto Querejazu Calvo, Editorial Los Amigos del Libro (La Paz) 1979, also found on line at www.lecturasinegoismo.com/2013/05/guano-salitre-sangre-historia-de-la.htm.
After winning the war Chile choked Bolivian exports. The 1904 Treaty was signed under duress by Bolivia’s envoy in Santiago. It forced Bolivia to surrender to Chile its entire sea coast (over 400 kilometers long) plus 120,000 square kilometers of a deserted land rich in sodium nitrate (saltpeter) and guano, commodities in great demand in Europe during the second half of the 19th Century. They were used as fertilizers and for the manufacture of explosives.
Some of the richest copper deposits in the world were found in the 20th Century in the Atacama Desert lost by Bolivia and Peru to Chile. In 1971 Chilean President Salvador Allende nationalized the copper mines. He said ‘copper is Chile’s salary.’ It remains so to this day.
The 1904 Treaty gave Bolivia free and permanent access to Chilean sea ports. For all practical purposes this meant access to the Port of Arica, on territory conquered by Chile from Peru. Arica has been and remains one of Bolivia’s main outlets to the sea since Spanish colonial times. Bolivia has complained over the years about Chile’s alleged failure to provide Bolivian commerce with effectively free transit to Arica in compliance with the terms of the 1904 Treaty.
On 27 August 2015 Bolivia’s Foreign Affairs Minister David Choquehuanca accused Chile of failing to comply with various specific points of the 1904 Treaty of Peace and Friendship, a title not taken at face value in Bolivia. Mr. Choquehuanca suggested Bolivia would consider going to an arbitration process in order to determine the facts. Chile’s Foreign Affairs Minister Heraldo Muñoz did not take up this suggestion. He visited the Port of Arica to verify on location the alleged fact that “Chile meets its obligations, Chile complies with the 1904 Treaty, which placed at Bolivia’s disposal this port and [the port of] Antofagasta to move Bolivian cargo.” (http://www.latercera.com/noticia/politica/2015/08/674-644730-9-bolivia-acusa-a-chile-de-incumplir-el-tratado-de-1904-y-no-descarta-acudir-a-un.shtml).
President Bachelet’s Chile’s top diplomatic hand has no problem acting as a judge of the last instance in a contentious situation in which he is a party. The motto on Chile’s coat of arms is ‘By Reason or by Force.’ Displaying an undoubted flair in the administration of the principles and instrumentalities of realpolitik, Chile has applied force, reason and the law, whichever was more convenient at any given time, during almost two centuries, in order to maximize its interests and territorial claims vis-à-vis Bolivia.
In response to the current Bolivian Application before the ICJ Chile will have to justify, however indirectly, the original conquest of Bolivian territory by force, but mainly its persistent dodging of negotiations conducted in good faith to grant Bolivia a corridor less than 10 miles wide on former Peruvian territory ending at or near a useful port in the Pacific Ocean. According to the CIA World Factbook Chile has a coastline over 4,000 miles in length.
President Bachelet’s Grotius Lecture at ASIL was introduced by the Dean of the sponsoring institution, the American University Washington College of Law. By a happy coincidence, Dean Claudio Grossman is Co-Agent of Chile’s Delegation to the ICJ in charge of Chile’s defense from Bolivia’s complaint. Much like President Bachelet, Dean Grossman has a lifetime of dedication to the best causes, including human rights and international law. His introduction can be appreciated at length in the ASIL videotape mentioned earlier.
Bolivian legal action comes at an inconvenient time for Chile. Chile’s law-abiding image is inconsistent with being taken to court by a much weaker neighbor over promises not kept. At the end of the day, Chile will have to prove before the ICJ and world public opinion that its wily alternation of force, reason and the law is consistent with international law and a good neighbor policy on grounds other than short-sighted convenience.
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