The fact that international law is not static but rather dynamic and evolving finds an eloquent expression in the prohibition of the use of force and its subsequent repercussion regarding the criminalization of the act of aggression. Indeed, departing from the precursor system of the League of Nations where the war or the use of force was not prohibited but only restricted, contemporary international law has moved onto enforcing the prohibition of the use of force, enshrined in Article 2(4) UN Charter, inter alia, through the crime of aggression which has permeated the Rome Statute system. In this context, the old believe that the war was a legitimate means of solving conflicts and hence conferred rights upon the victorious party, does no longer find any echo in contemporary international law. What is more, the prohibition of the use of force and, arguably, of the act of aggression may be purported to constitute nowadays jus cogens norms. Such a special status has been also recognized by the International Law Commission which regarded the prohibition of the use of force as a conspicuous example of a jus cogens norm. This view was recalled by the ICJ in Nicaragua v. USA (Judgment on the Merits (1986), para. 190). The same could hold true for the prohibition of acts of aggression. In Congo v. Rwanda, the ICJ, while pronouncing on the jurisdictional contention, confirmed that the prohibition of genocide was a jus cogens norm (Judgment on Jurisdiction and Admissibility (2006), para. 64). In view of the gravity of the crime of aggression, the aforesaid pronouncement could be extended to the prohibition of aggression. In fact, in its Separate Opinion Judge ad hoc Dugard, while enunciating some rules of jus cogens character, specifically referred to the prohibition of aggression (para. 10).
On 14 February 1879, while Carnival celebrations were taking place along the country, Chilean troops invaded Bolivia’s territory giving place to the so-called War of the Pacific whereby Bolivia lost its sovereign access to the sea (the Pacific Ocean). Since then military troops occupied and remained in former Bolivian territories. Against this backdrop, a Truce Pact was signed in 1884 establishing an indefinite truce and twenty years later the 1904 “Treaty of Peace and Friendship”, entered into by both countries, included a provision stating the absolute and perpetual dominion of Chile over the territories that it had occupied by virtue of the Truce Pact, depriving Bolivia of its access to the sea. Such historical context is captured, as part of the statement of facts, in Bolivia’s recent application instituting proceedings against Chile before the ICJ, filed on 24 April 2013.
Under –current– international law, the aforesaid scenario would allegedly constitute a breach to not only general principles of international law but, what is more, to jus cogens norms. Indeed, the historical context may amount to an act of aggression. Article 8bis Rome Statute, in accordance with the UN General Assembly Resolution 3314 of 1974, inserts a definition of the crime of aggression within the Rome Statute system (adopted in its First Review Conference in June 2010), which in the first place requires the determination of an act of aggression by a State. An act of aggression may be committed by way, inter alia, of invasion or attack by the armed forces of the territory of another State, or any military occupation resulting from such invasion or attack, in addition to any annexation forged by the (illegal) use of force. In Congo v. Uganda, the ICJ observed that according to Article 42 of the Hague Regulations Concerning the Laws and Customs of War in Land (1907), reflecting customary law, a territory is deemed occupied when it is placed under the authority of the hostile army (Judgment on the Merits (2005), para. 172). As mentioned above, the Truce Pact and the 1904 Treaty are self illustrative of the existence of an occupation, during which Chile imposed its rule over the territories where its military troops remained stationed for years after invading the Bolivian port of Antofagasta.
While the world history is tainted by territorial acquisitions forged by the so-called “conquer wars”, arguably Bolivia’s situation is unique as it entailed not an “ordinary” lost of territory but, what is more, deprivation of its sovereign access to the sea. The unjust situation that unfolded as a result of the 1904 Treaty entry into force has given place to Bolivia’s permanent protest in tandem with expectations raised that have translated into diverse frustrated negotiations featuring the convoluted centenarian bilateral relation. The legal characterization of such a situation constitutes the subject of the dispute. Indeed, the declarations, agreements and diplomatic conduct of the parties referred to in the application are deemed to have created an international obligation for Chile to negotiate a sovereign access to the sea. Therefore, Bolivia requests the ICJ to adjudge and declare that Chile by way of its conventional and unilateral acts has engaged in an international obligation to negotiate a sovereign access to the sea; is currently in breach of the said obligation; and must perform the said obligation ‘[...] in good faith, promptly, formally, within a reasonable time and effectively [...]’ (Application, para. 32).
While the ICJ, and its’ predecessor, have already pronounced on the capability of acts and conduct of governments to create legal effects since the very early cases, namely the Legal Status of Eastern Greenland (1933) and thereafter, the case sub judice presents a whole spectrum for analysis. Indeed, the said pronouncements date back to the Greenland case where the undertaking involved in an oral statement by the Norwegian Minister of Foreign Affairs was held by the Permanent Court of Justice to entail an obligation for Norway to refrain from contesting Danish sovereignty over Greenland. In the Nuclear Test case, publicly given undertakings were considered binding for France to cease the conduct of atmospheric nuclear tests, giving place to finalize proceedings on the understanding that by virtue of the said unilateral declarations a dispute was no longer extant. In Burkina Faso v. Mali, the ICJ upheld the validity of declarations made to the press by Mali’s President. In the Temple of Preah Vihear case, the ICJ held that Thailand was precluded by her conduct from denying the validity of an agreement. Likewise, in Libya v. Chad the ICJ observed, on the one hand, the consistency of Chad’s conduct in relation to the location of a boundary and, on the other, Libya’s lack of protest.
Therefore, the legal relations involved in the convergence of unilateral acts of states, estoppel, and legitimate expectations may be further explored and developed within the ambit of public international law by virtue of the application. This also applies to the legal effects of agreements contained in exchange of notes, such as the notes exchanged on 1 and 20 June 1950 by the Ministers of Foreign Affairs. The Chilean note in response stated:
‘[...] my Government [...] is willing to formally entered into a direct negotiation aiming at finding the formula which would make it possible to grant Bolivia and own and sovereign access to the Pacific Ocean and for Chile to obtain compensations that are not of a territorial nature and that effectively take into account its interests’.
(quoted in para. 18 of Bolivia’s application and appended as Annex 11).
As it can be adverted, Bolivia’s application presents a juxtaposition of historical events of relevance to international law. Indeed, while not being the subject of the dispute, the alleged existence of an act of aggression underlying the history of the case could constitute an interesting aspect for discussion. Would the existence of an underlying rule of jus cogens character have any bearing in the assessment of the case as a whole?
Furthermore, the application interestingly refers to general obligations under international law –besides Chile’s conventional and unilateral acts (to negotiate a sovereign access to the sea) – as part of its legal grounds. Avenues are thus open to explore and delve into the said general obligations, discussion where arguably related areas of international law may conflate. Therefore, the case may well go beyond the discussion surrounding the legitimate expectations created by conventional and unilateral acts of states. Being that the case or not, the role of the ICJ is once again at stake with respect to its potential to (peacefully) solve –long standing– territorial disputes. Legal reckoning could channel the deterrence of further grievances towards a constructive and conclusive dialogue. Let’s follow what is expected to be an interesting and pivotal path not only for local populations, but also for the progressive development of international law.
Elizabeth Santalla Vargas has been part of Bolivia’s legal team at Dirección Estratégica de Reivindicación Marítima (Diremar). The views expressed in this note are those of the author alone and do not necessarily reflect the views of Diremar or any official position. All the information used for this note has been made public in the Application and in the local press. Therefore, it does not contain any confidential information.