MEMORIAL OF PLURINATIONAL

INTERNATIONAL COURT OF JUSTICE CASE CONCERNING THE OBLIGATION TO NEGOTIATE ACCESS TO THE PACIFIC OCEAN (PLURINATIONAL STATE OF BOLIVIA v. REPUBLIC OF CHILE) MEMORIAL OF PLURINATIONAL STATE OF BOLIVIA 24 APRIL 2013

Memorandum of Points of Bolivia Presented to: The International Court of Justice From: Plurinational State of Bolivia Regarding: The dispute between Bolivia and Chile on access to the Pacific Ocean Introduction This document includes the facts and points presented by the Plurinational State of Bolivia involving the nation s application against the Republic of Chile concerning the access of Bolivia to the territory which allows entry to the Pacific Ocean. In this memorandum, Plurinational State of Bolivia accuses the Republic of Chile for denying its obligation of negotiating with the Bolivian Nation regarding its request for imprescriptible right of accessing this coastline. The following sections of the document explain why this obligation exists as well as how Chile failed to comply with it. Furthermore, Bolivia presents the legal documents and statements concerning the issue, as well as the the Bolivian Government s requests from the court. Bolivia hereby calls upon the honorable judges of ICJ to consider the facts and points stated in this document while evaluating the case. A. Statements of Facts: I. Background of the Conflict Prior to Chile s and Bolivia s declarations of independence in 1818 and 1825, respectively, both nations were under the Spanish rule. Once established, these new states followed the principle of taking possession of the territories that satisfy their colonial legislations, also known as the uti possidetis juris principle. However, administrative boundaries of Spanish colonies in Latin America were highly uncertain, which led to a dispute between the two states regarding the lands that would be considered within their borders. This did not create any significant conflicts until the mid 1840s, by which the economic importance of nitrate and guano in the Atacama Desert was discovered. This caused territorial disputes between the two parties, both claiming to own the 24th parallel in which the most valuable nitrate deposits in the Atacama Desert were located. As the threat of Spanish intervention started looming in the region, both parties refrained from any armed conflict and instead, negotiated a treaty. The Treaty of Mutual Benefits (1866) (See legal documents section), established a joint mineral exploration covering the area between the 23rd (Bolivian territory) and the 25th parallel (Chilean territory). The borders set in this treaty were legally reaffirmed eight years later in the Treaty of 6 August 1874.

By agreeing on the Treaty of 6 August 1874, Chile formally and legally recognized Bolivia s independence and sovereignty over the Pacific coastline. Chile invaded and occupied the Bolivian part of Antofagasta, which led to the core event of this case, the War of the Pacific. II. The War of the Pacific (April 5, 1879 October 20, 1883) On 14 February 1879, Chilean forces invaded the Bolivian port of Antofagasta. By doing so, Chile breached the treaties of 1866 and 1874 in which it had legally recognized Bolivia s independence and sovereignty over the Pacific coastline. As both nations had agreed to the borders set in 1866 and 1874, Chile has clearly breached these treaties by occupying Bolivian territory. This military occupation led to the War of the Pacific, which has been called one of the longest struggles of nineteenth century Latin America. The war took place between Chile and the allied nations of Bolivia and Peru for the purpose of gaining rule over the region which was previously declared as a joint mineral exploration area, and ended with the invasion of Bolivian coastline by Chilean forces. The results of the war deprived Bolivia of its access to the Pacific, which has caused the country to suffer economically and socially for more than a century, as it was vital for the economy of the nation. Bolivia signed a Truce Pact on 4 April 1884, accepting the military occupation of its Department of Litoral by Chile while under pressure by Chilean military forces, as they held superiority in power over the Bolivian military force. Bolivia was obliged to sign the Truce Pact in order to prevent further economic and social damage. III. Post war Negotiations and Chile s promises The Bolivian Government knew that it was a fundamental need to have access to the Pacific Ocean in order to overcome the severe economic and social problems that the country had been experiencing. Thus, during negotiations, Bolivia insisted on being given such an access either through a corridor extending from its territories to the ocean or by modifying the Treaty of Ancon in order to sacrifice the provinces of Tacna and Arica to Bolivia. Treaty of Ancon was signed at the end of the Pacific War between Peru and Chile, in which Peru agreed to Chilean occupation in Tacna and Arica for 10 years. It stated that a plebiscite negotiation would be held to decide the permanent ownership of these territories. Tacna and Arica are located on the Pacific coastline.

This wish was not granted. In May 1895, multiple agreements were signed by both parties in Santiago, with the aim of resolving the issues between the two countries. These treaties included the Agreement on the Transfer of Territories between the Republics of Bolivia and Chile. (Explained further in the legal documents section.) Bolivia signed the Treaty of Peace and Friendship with Chile in 1904, which enforced its rule over the occupied Bolivian territory while Bolivia s Department of Litoral was under military occupation. This treaty, however, did not cancel Chile s previous promises and commitments over granting Bolivia access to the Pacific Ocean, such as the Chilean Note on 20 June 1950. (Explained further below.) Over the next decades, Bolivia kept requesting a form of sovereign access to the Pacific Ocean. In the 1950s, Bolivia proposed to Chile a new round of negotiations through the Bolivian note of 1 June 1950, which read as: "for the Governments of Bolivia and Chile to formally enter into a direct negotiation to satisfy Bolivia's fundamental need for obtaining an own and sovereign access to the Pacific Ocean, thus resolving the problem of Bolivia's confinement, on the basis of mutual conveniences and the true interests of both countries. In its response to this request, Chile agreed to discuss the issue, stating; (...) my Government (...)it is willing to formally enter into a direct negotiation aiming at finding the formula which would make it possible to grant Bolivia an 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" On 10 July 1961, the Chilean Embassy in Bolivia forwarded a Memorandum to the Bolivian Ministry of Foreign Affairs, therefore reaffirming the agreement between the two nations upon granting Bolivia sovereign access to the Pacific Ocean. As declared in this note, the Chilean government had officially agreed to proceed with the negotiations which would satisfy the Chilean nation s requests, however it took no action to do so. On 8 February 1975, the Presidents of the two nations signed the Joint Declaration of Charana, in which the parties agreed to continue the dialogue in order to find a solution to the vital issue. In the course of the negotiations, Chile once more declared that they would be prepared to negotiate with Bolivia the cession of a strip of land north of Arica up to the Line de la Concordia, in a note of 19 December 1975.

In the following years, Bolivia continuously requested Chile to proceed with the negotiations and even signed peace treaties that foresaw satisfying the Bolivian government's requests in order to resolve the economic and social issues that the nation had been experiencing. (See legal documents section.) However, there was no significant progress on negotiations despite the fact that Chilean officials had made public commitments to satisfy both parties needs and grant Bolivia a sovereign access to the Pacific Ocean. On 22 February 2000, the Ministers of Foreign Affairs of the two nations issued a communique, which referred to the agreements of putting together a work agenda including the essential matters of the bilateral relationship. This was confirmed by the two nations on 1 September 2000. In July 2006, the two nations agreed on the Agenda of the 13 Points, which included the Maritime Issue. On the 22nd meeting of the Bolivia Chile Bilateral Mechanism for Political Consultations both nations agreed the appropriate and feasible solutions had to be found through the bilateral dialogue on the Maritime Issue as addressed in point VI of the agenda. A meeting was to take place in November 2010 for the said purposes, however Chile unilaterally suspended the meeting when the date arrived. Negotiations were not resumed. In February 2011, the President of Bolivia publicly requested Chile to draft a written proposal to resume the process of solving Bolivia s confinement. Chile, in response, stated that Bolivia lacks any legal basis to access the Pacific Ocean through territories appertaining to Chile. Since Chile refused to proceed with the negotiations, the Plurinational State of Bolivia took the issue to the United Nations General Assembly, which attempted to resolve the conflict in its 66 th and 67 th sessions by requesting Chile to initiate the discussions on the issue as they had previously promised. The president of Chile replied by stating that there was no dispute between Chile and Bolivia. This clearly shows that the Chilean nation ignored both the GAs and Bolivia s requests. It s clear that the Chilean government has no intention to resume the bilateral dialogue regarding the agreement to fulfill its obligation. Therefore Bolivia, as a peaceful state, has decided to solve the issue through peaceful settlement mechanism provided for in international law. Bolivia therefore submits the Case Concerning the Obligation to Negotiate Access to the Pacific Ocean to the International Court of Justice. B. Legal Grounds: I. Mutual Benefits Treaty (10 August 1866)

This document was signed by the two parties with the purpose of determining the current boundaries of both nations. The treaty recognized the independence of the two states, and stated that the 24th parallel would be considered as the international boundary between the two. The treaty also declared the region between the 23 rd and 25 th parallels as a mutual zone for the two nations, in which they would divide the export duties of guano, a valuable source for phosphorus located in this area. In this document, Chile officially agreed that Bolivia had the right to access the Pacific Ocean and that the Pacific coasts located above the 24th parallel would be considered as Bolivian territory. II. Special Treaty on the Transfer of Territories (18 May 1895) This document was signed by Bolivia and Chile 11 years after the end of the War of the Pacific. After the war, the Pacific shores of Bolivia were occupied by Chilean forces, thus Bolivia no longer had access to the Pacific Ocean, a passage which was fundamental for the social and economic sustainability of the nation. The main purpose of the treaty was to regulate the relations between the two countries which had been unstable for the last few decades and to resolve the domestic issues that the Bolivian nation had due to the Chilean occupation of the Bolivian coastline. The treaty recognized that having an access to the ocean was vital for Bolivia to sustain and develop its financial situation and to reestablish an economy that would satisfy the social needs of the country. The agreement stated that if Chile acquired Tacna and Arica through a plebiscite or direct negotiations, they would be transferred to Bolivia. If Chile was unable to acquire these territories, it would transfer the zone from the Cove of Vitor to the Valley of Camarones or any other similar area to Bolivia III. The Treaty of Peace, Friendship and Commerce (The 1904 Treaty) This document was signed on October 20, 1904 through which Chile imposed its rule over the occupied Bolivian territories, which has been causing dispute between the two countries since its occupation by the Chilean forces during the War of the Pacific. The treaty stated that Chile would be responsible for constructing a railroad between the Bolivian city of La Paz and Arica, a port city located in the former Bolivian coasts which were occupied by

Chile. The purpose of this railroad would be to grant Bolivia sovereign access to the Pacific through a number of ports in the territory, which were specified in the treaty. By signing this document, Chile agreed on building this railroad and therefore providing Bolivia a passage between its territories and the Pacific shores. Furthermore, Bolivia signed this treaty while over a barrel, therefore the articles of the treaty which granted Chile control over the Pacific shores cannot have any legal grounds on the issue concerning the Obligation to Negotiate Access to the Pacific Ocean, as will be explained further in this section. The fact that the parties have signed this treaty does not imply that Chile s previous promises and statements concerning Bolivia s sovereign access to the sea are invalid and does not cancel the previously signed treaties which granted Bolivia access to the Pacific Ocean. Chile has stated in multiple previous assertions that The 1904 Treaty did not satisfy the needs of both parties and that the situation should be handled through negotiations, independent of The 1904 Treaty. IV. The Vienna Convention on Law of Treaties (23 May 1969) Article 7 of the Vienna Convention on Law of Treaties reads as follows 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) He produces appropriate full powers; or (b) It appears from the practice of the States concerned or from other cir cumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. In a previous ICJ case concerning the nuclear tests performed by France in the South Pacific (New Zealand & Australia vs. France), the court had concluded in the judgement that the

declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Therefore, the declarations made by officials of the Republic of Chile, implying that the nation is willing to negotiate to satisfy both nations needs has the effect of creating legal obligations. V. New York Convention on Transit Trade of Landlocked States (8 July 1965) This international treaty was signed by 27 states, including the Plurinational State of Bolivia and the Republic of Chile. The purpose of the document was to protect the rights of the land locked states, which are defined as nations that are entirely enclosed by land. As Chile has occupied the Bolivian coasts, Bolivia no longer possesses any access to and from the sea, thus it s a land locked state. This convention reaffirmed the principles of the 1964 Geneva Conference, which emphasized the importance of having free access to the sea and explained that this right was essential for a land locked state to conduct international trade in a large scale and thus to economically develop. In order to assure that each land locked state was granted this right, Principle IV of the convention stated: In order to promote fully the economic development of the land locked countries, the said countries should be afforded by all States, on the basis of reciprocity, free and unrestricted transit, in such a manner that they have free access to regional and international trade in all circumstances and for every type of goods. Goods in transit should not be subject to any customs duty. Means of transport in transit should not be subject to special taxes or charges higher than those levied for the use of means of transport of the transit country. By agreeing on the principles of this convention, Chile officially agreed to assist the land locked states for obtaining the right mentioned above. However, when Bolivia became a land locked state due to Chile s occupation, Chile violated this principle by not agreeing to grant Bolivia any type of access to the sea. This violation has continued ever since. VI. American Treaty on Pacific Settlement (Pact of Bogota)

The treaty was signed in Bogota, Colombia on 30 April 1948 during the ninth period of Organization of American States (OAS) sessions by independent republics of the America with the intention of solving their territorial disputes through peaceful means. It focused on the dispute between Chile and Bolivia and finding an equitable solution to it as it resolved: to recommend to the States most directly concerned with this problem that they open negotiations for the purpose of providing Bolivia with a free and sovereign territorial connection with the Pacific Ocean. Article VI of the treaty reads as follows: The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangements between the parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty. However, Article I of the treaty states that, [all signators] agree to refrain from the threat or the use of force, or from any other means of coercion for the settlement of their controversies, and to have recourse at all times to pacific procedures. As Bolivia signed the 1904 Treaty while under pressure, it is not valid. Therefore, Article VI does not apply to the case as the 1904 Treaty is invalid and is not in force. Both Chile and Bolivia are parties to this pact. VII. The Law of the Sea Convention (LOSC) Article 124, 1, a of the convention defines a landlocked state as a state lacking sea coast. Bolivia is therefore considered a landlocked state. Article 125 of the Convention states that: Land locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind. To this end, land locked States shall enjoy freedom of transit through the territory of transit States by all means of transport. Bolivia and Chile have ratified this agreement on 28 April 1995 and 25 August 1997, respectively. Article 125 states that land locked states, such as Bolivia, have the right of access to and from sea in any form or shape. As a signatory party to this convention Chile has legally and officially

displayed their compromise to this article and therefore have stated that they believe that as a land locked state, Bolivia has the right to access the sea. C. Bolivia s Demands As a multiparty democratic republic, Plurinational State of Bolivia strongly believes in justice. It also understands that it s not a concept that s uniform throughout the world. The fact that the idea of justice differs from nation to nation has caused the states of Bolivia and Chile to engage in a distasteful dispute that cannot be resolved, even to this day. Chile s longstanding indifference to the dispute between the two nations has affected Bolivia s economic and social development dramatically. The Plurinational State of Bolivia asks each and every single judge to analyze Bolivia s points in detail and to carefully observe the court. If that is the case Bolivia is confident that the honorable judges will come to realize the truth about the case, that the government of Chile is violating its obligation to negotiate with Bolivia with the purpose of reaching an agreement which satisfies Bolivia s needs by granting the nation a fully sovereign access to the Pacific Ocean. By doing so, Chile has breached numerous international agreements and caused the Bolivian nation s economic and social issues to worsen. For that reason, the Plurinational State of Bolivia asks the honorable judges to come to a verdict which would demand that Chile finally fulfill its said obligation of negotiating with Bolivia regarding the dispute in a timely manner, help that Chile resolves the issue as effectively as possible, and last but not least, that they grant Bolivia its long awaited right of having a sovereign access to the Pacific, as promised many times before. D. Timeline of Events 1866 1879 August The Treaty of 10 August 1866 determined the boundary between Chile and Bolivia at parallel 24, which was then confirmed by the Treaty of 6 August 1874. Therefore Chile formally and legally recognized Bolivia s sovereignty over the Pacific coast. Chile invaded and occupied the Bolivian part of Antofagasta which led to the War of the Pacific. The war is known as one of the longests struggles of the nineteenth century Latin America. The war was fought between three nations, in which Peru and Bolivia often sided together against Chile. It ended with the invasion of the Bolivian coastline by the Chilean forces.

1884 1895 1904 1950 1961 1975 4 April The Truce Pact was signed. Bolivia accepted, under pressure, Chile s military occupation of it Department of Litoral. 18 May The Special Treaty on the Transfer of Territories was signed by the the two nations in Santiago. This treaty stated that if Chile acquired the territories of Tacna and Arica through a plebiscite or direct negotiations, they would be transferred to Bolivia. And that if Chile can t acquire these territories, it would transfer the zone from the Cove of Vitor to the Valley of Camarones or any other similar area to Bolivia. By doing so, the treaty has stated that Bolivia has the right to access the Pacific. 20 October The Treaty of Peace and Friendship, also known as the 1904 Treaty, was signed. This treaty stated that Bolivia required access to the sea, and that therefore Chile has to build a railroad to satisfy this need. It also ratified that Chile had control over the former Bolivian shores. Bolivia signed this treaty while under pressure, therefore it cannot have any legal grounds. It also doesn t cancel out the previous and further promises and commitments made by Chile. 1 June Bolivia proposed to Chile a new round of negotiations through the note of 1 June 1950. 20 June Chile agreed to start negotiations through the note of 20 June 1950. This commitment was never fulfilled. 10 July The Chilean Embassy in Bolivia forwarded a Memorandum to the Bolivian Ministry of Foreign Affairs, therefore reaffirming the agreement between the two nations upon granting Bolivia sovereign access to the Pacific Ocean. Again, this commitment was not fulfilled. 8 February The Presidents of the two nations signed the Joint Declaration of Charana, in which the parties

agreed to continue the dialogue in order to find a solution to the vital issue. 19 September Chile once more declared that they were willing to resume the negotiations through the note which states that they were prepared to negotiate with Bolivia the cession of a strip of land north of Arica up to the Line de la Concordia. 2000 2006 2011 2015 22 February The Ministers of Foreign Affairs of the two nations issued a communique referring to the agreements on putting together an agenda including the essential matter of the bilateral relationship. 1 September The communique was confirmed by the two nations. July Agenda of the 13 Points, which included the Maritime Issue was confirmed by Bolivia and Chile. February President of Bolivia publicly requested Chile to draft a written proposal to resume the process of solving Bolivia s confinement. Chile, in response, stated that there was no dispute. Chile s failure to cooperate and fulfill their promises and obligations has led Bolivia to submit the case to the ICJ in order to find a peaceful solution to the dispute. Works Cited Authentic Texts: English, French, Chinese, Russian And Spanish., and Registered Ex. No. 18232 (n.d.): n. pag. Web. "Avalon Project Venezuelan American Diplomacy Treaty of Peace, Friendship, Navigation and Commerce Between the United States and Venezuela; May 31, 1836." Avalon Project Venezuelan American Diplomacy Treaty of Peace, Friendship, Navigation and

Commerce Between the United States and Venezuela; May 31, 1836. N.p., n.d. Web. 20 Sept. 2015. <http://avalon.law.yale.edu/19th_century/venez_001.asp>. "Convention on Transit Trade of Land locked States." United Nations Treaty Collection. N.p., n.d. Web. <https://treaties.un.org/pages/viewdetails.aspx?src=treaty&mtdsg_no=x 3&chapter= 10&lang=en>. "FRUS: Papers Relating to the Foreign Relations of the United States, with the Annual Message of the President Transmitted to Congress December 5, 1905: Chile." FRUS. N.p., n.d. Web. 11 Oct. 2015. <http://digicoll.library.wisc.edu/cgi bin/frus/frus idx?type=div&did=frus.frus190 5.i0011&isize=text>. ":: Multilateral Treaties Department of International Law OAS ::." :: Multilateral Treaties Department of International Law OAS ::. N.p., n.d. Web. 11 Oct. 2015. <http://www.oas.org/juridico/english/treaties/a 42.html>. Nations, American Model United. ICJ (n.d.): n. pag. Web. "Opinio Juris» Blog Archive Bolivia s Reasonably Strong ICJ Case against Chile Opinio Juris." Opinio Juris» Blog Archive Bolivia s Reasonably Strong ICJ Case against Chile Opinio Juris. N.p., n.d. Web. 20 Sept. 2015. <http://opiniojuris.org/2014/03/21/bolivias reasonably strong icj case chile/>. "Peace Treaties and International Law in European History." Google Books. N.p., n.d. Web. 20 Sept. 2015. <https://books.google.com.tr/books?id=onb5auyreq4c&pg=pa75&lpg=pa75&dq=trea ty%2bof%2b10%2baugust%2b1866&source=bl&ots=j279d_lqvd&sig=l2v9annwre humce0h5zn7jgpmok&hl=en&sa=x&ved=0cd8q6aewcgovchmix Hb 6SGyAIVx5 1yCh3f QTZ#v=onepage&q=treaty%20of%2010%20august%201866&f=false>. "Refworld American Treaty on Pacific Settlement ("Pact of Bogotà ")." Refworld. N.p., n.d. Web. 20 Sept. 2015. <http://www.refworld.org/docid/3de4a7024.html>.

Ufrgsmun Ufrgs Model United Nations, and Issn: 2318 3195 V.2, 2014 P. 213 244. OBLIGATION TO NEGOTIATE ACCESS TO THE PACIFIC OCEAN (BOLIVIA V. CHILE) (n.d.): n. pag. Web. "United Nations Convention on the Law of the Sea." (n.d.): n. pag. United Nations Treaty Collection. Web. <http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf>.