María Teresa Infante Caffi
By judgment of October 1, 2018, the International Court of Justice has decided on the submission of the Plurinational State of Bolivia regarding an alleged existence of an obligation under Chile, to negotiate an agreement granting Bolivia sovereign access to the sea. The Court has ruled that neither general international law nor the conduct of the parties resulted in the existence of such an obligation. The case raised the question of where and how that obligation had been generated, if it had been through the conduct of the respondent, or by agreement of the parties, as well as about the role of general international law. The case has recalled the theoretical debate according related to obligations characterized as part of a pactum of negotiando or of a pactum of contrahendo.
The response of the Court to these various elements has been that it could not reach the conclusion that Chile had «the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean», as stated by Bolivia in its submissions. Among other elements, the Court also affirms that art. 2.3 of the Charter of the United Nations establishes a general duty to settle disputes in order to preserve international peace and security, and justice. And, it does not indicate that the parties are obliged to resort to a specific method of settlement, such as negotiations, a term which is not mentioned in the said provision. Accordingly, the Court could not accept the other final submissions presented by Bolivia, which were premised on the existence of such an obligation.
1. INTRODUCCIÓN.—2. HECHOS Y DERECHO: DIVERSAS INTERPRETACIONES.—3. UNA OBLIGACIÓN DE NEGOCIAR QUE PLANTEA INTERROGANTES EN EL DERECHO INTERNACIONAL.—4. LA NATURALEZA DE LA NEGOCIACIÓN EN EL CASO BOLIVIA C. CHILE.—5. EL ART . 2.3 DE LA CARTA DE LAS NACIONES UNIDAS COMO CUESTIÓN DE FONDO.—6. LAS OPINIONES DISIDENTES DE LOS JUECES YVES DAUDET, NAWAF SALAM Y PATRICK ROBINSON.—7. CONCLUSIONES.
access to the sea; Charter of the United Nations; dispute settlement.; nature and scope of an obligation to negotiate; OAS international resolutions; pactum de contrahendo; pactum de negotiando; sovereign access;
REDI Vol. 71 2 2019
Read the article in: