Preliminary Objection of Chile | INTERNATIONAL COURT OF JUSTICE

Document Number

18616

Document Type

written_pleading

Case

153 - Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)

Incidental Proceedings

Preliminary objections

Date of the Document

Tue, 07/15/2014 - 12:00

Document File

18616.pdf

INTERNATIONAL COURT OF JUSTICE

OBLIGATION TO NEGOTIATE ACCESS TO THE
PACIFIC OCEAN

(BOLIVIA v. CHILE)

PRELIMINARY OBJECTION OF THE

REPUBLIC OF CHILE

Volume 1

15 JULY 2014 TABLE OF CONTENTS

page

CHAPTER I INTRODUCTION 1

CHAPTER II BOLIVIA’S CLAIM 5

CHAPTER III THE PACT OF BOGOTÁ AND THE 1904 PEACE

TREATY EXCLUDE BOLIVIA’S CLAIM FROM THE
COURT’S JURISDICTION 9

SECTION 1. THE PACT OF BOGOTA PROVIDES NO C ONSENT TO
JURISDICTION OVERBOLIVIAS CLAIM 9

A. The Text of the Pact of Bogotá 9

B. The Travaux Préparatoires of Article VI of the Pact of

Bogotá 11

SECTION 2. BOLIVIA’S RESERVATION TO ARTICLE VI OF THE

PACT OFB OGOTA 14

SECTION 3. BOLIVIA’SC LAIM CONCERNS MATTERS SETTLED AND
GOVERNED BY THE 1904PEACE TREATY 17

A. Territorial Sovereignty is a matter settled and
governed by the 1904 Peace Treaty 22

B. The Character of Bolivia’s Access to the Sea is a
matter settled and governed by the 1904 Peace
Treaty 26

CHAPTER IV BOLIVIA’S ATTEMPTS TO CIRCUMVENT THE 1904
PEACE TREATY CANNOT ESTABLISH

JURISDICTION 33

i i SECTION 1. B OLIVIAS CLAIM RELIES ON M ATTER SETTLED AND
GOVERNED BY THE 1896E XCHANGE OF NOTES 33

SECTION 2. B OLIVIAS INVOCATION OF POST-1904 EXCHANGES
DOES NOT ESTABLISHJURISDICTION 37

SECTION 3. T HE SETTLEMENT OF SOVEREIGNTY OVER T ACNA

AND A RICA UNDER THE1929TREATY OF LIMA 39

CHAPTER V SUMMARY AND SUBMISSION 42

ii
iiSECTION 1. BOLIVIA’SC LAIM RELIES ON AMATTER SETTLED AND
GOVERNED BY THE 1896E XCHANGE OF N OTES 32

SECTION 2. BOLIVIA’S INVOCATION OF POST -1904 EXCHANGES
DOES NOT ESTABLISHJURISDICTION 36

SECTION 3. THE SETTLEMENT OF SOVEREIGNTY OVER TACNA
AND ARICA UNDER THE 1929 TREATY OFL IMA 38

CHAPTER V SUMMARY AND SUBMISSION 42

iiiv CHAPTER I
INTRODUCTION

1.1. Bolivia claims that it has a right to sovereign access to the Pacific
Ocean and that Chile is under an obligation to negotiate with Bolivia, to agree

with Bolivia and “to grant Bolivia a fully sovereign access to the Pacific
1
Ocean”. Article VI of the 1948 American Treaty on Pacific Settlement (the Pact
of Bogotá) excludes from the jurisdiction of the Court matters already settled by

arrangement between the parties and matters governed by agreements or treaties

in force when the Pact was signed in 1948. Territorial sovereignty and the
character of Bolivia’s access to the Pacific Ocean are matters that were settled

by, and remain governed by, the Treaty of Peace and Amity agreed between
3
Bolivia and Chile in 1904 (the 1904 Peace Treaty). Bolivia’s claim is therefore
outside the Court’s jurisdiction.

1.2. The sole foundation on which Bolivia asserts that the Court has
jurisdiction to adjudicate its claim against Chile is Article XXXI of the Pact of

Bogotá. Article XXXI is subject to exceptions, notably Article VI of the Pact of

Bogotá, which provides that:

“The aforesaid procedures, furthermore, may not be
applied to matters already settled by arrangement
between the parties, or by arbitral award or by decision

of an int ernational court, or which are governed by
agreements or treaties in force on the date of the
conclusion of the present Treaty.”

1 Bolivia’s Memorial, Submissions, para 500.
2 American Treaty on Pacific Settlement, signed at Bogotá on 30 April 1948 (entry
into force 6 May 1949), 30United Nations Treaty Series 83 (the Pact of Bogotá ),

Annex 13.
3 Treaty of Peace and Amity between Bolivia and Chile, signed at Santiago on
20 October 1904 (the 1904 Peace Treaty), Annex 10.

1 1 1.3. Bolivia makes no mention of Article VI in the short passage in its
4
Memorial in which it asserts that the Court has jurisdiction . Article VI is
however of central importance, and excludes Bolivia’s claim from the consent to

the Court’s jurisdiction provided by the parties to the Pact of Bogotá. By force of

Article VI, Chile has not consented to the Court taking jurisdiction over m atters

settled or governed by the 1904 Peace Treaty.

1.4. The 1904 Peace Treaty constituted a comprehensive settlement

between the two States concerning the re -establishment of peaceful relations,

territorial sovereignty, Bolivia’s access to the Pacific Ocean, and other benefits

conferred on Bolivia. The two States “re-established” their “relations of peace
and friendship”. 5 Bolivia recognised Chilean sovereignty over coastal territory

that had been Bolivian . The two States delimited their boundary in full. 7 Chile

granted to Bolivia in perpetuity a right of commercial free transit to the Pacific
8
and at Chilean ports, together with the right to establish Bolivian customs posts
at Chilean ports. 9 Chile also agreed to build a nd pay for a railway from Arica

(Chile’s northernmost port ) to the plateau of La Paz in Bolivia, 10 to guarantee

obligations incurred by Bolivia to attract investment in other railways in
11
Bolivia, to settle Bolivian debts to private entities associated with the coastal
12
territory that had been B olivian, and to make a substantial cash payment to
Bolivia. 13

4
Bolivia’s Memorial, paras 22-27.
5 1904 Peace Treaty, Annex 10, Article I.
6
1904 Peace Treaty, Annex 10, Article II.
7 1904 Peace Treaty, Annex 10, Article II.
8
1904 Peace Treaty, Annex 10, Article VI.
9 1904 Peace Treaty, Annex 10, Article VII.
10
1904 Peace Treaty, Annex 10, Article III.
11 1904 Peace Treaty, Annex 10, Article III.
12
1904 Peace Treaty, Annex 10, Article V.
13 1904 Peace Treaty, Annex 10, Article IV.

2 21.3. Bolivia makes no mention of Article VI in the short passage in its

Memorial in which it asserts that the Court has jurisdiction . Article VI is

however of central importance, and excludes Bolivia’s claim from the consent to

the Court’s jurisdiction provided by the parties to the Pact of Bogotá. By force of
Article VI, Chile has not consented to the Court taking jurisdiction over m atters

settled or governed by the 1904 Peace Treaty.

1.4. The 1904 Peace Treaty constituted a comprehensive settlement
between the two States concerning the re -establishment of peaceful relations,

territorial sovereignty, Bolivia’s access to the Pacific Ocean, and other benefits

conferred on Bolivia. The two States “re-established” their “relations of peace
5
and friendship”. Bolivia recognised Chilean sovereignty over coastal territory
that had been Bolivian . The two States delimited their boundary in full. 7 Chile

granted to Bolivia in perpetuity a right of commercial free transit to the Pacific
8
and at Chilean ports, together with the right to establish Bolivian customs posts
9
at Chilean ports. Chile also agreed to build a nd pay for a railway from Arica
(Chile’s northernmost port ) to the plateau of La Paz in Bolivia, 10 to guarantee

obligations incurred by Bolivia to attract investment in other railways in
11
Bolivia, to settle Bolivian debts to private entities associated with the coastal
territory that had been B olivian, 12 and to make a substantial cash payment to

Bolivia. 13

4 Bolivia’s Memorial, paras 22-27.
5
1904 Peace Treaty, Annex 10, Article I.
6 1904 Peace Treaty, Annex 10, Article II.
7
1904 Peace Treaty, Annex 10, Article II.
8 1904 Peace Treaty, Annex 10, Article VI.
9
1904 Peace Treaty, Annex 10, Article VII.
10 1904 Peace Treaty, Annex 10, Article III.
11
1904 Peace Treaty, Annex 10, Article III.
12 1904 Peace Treaty, Annex 10, Article V.
13
1904 Peace Treaty, Annex 10, Article IV.

2 “confined to those matters that are relevant to the objection”. Bolivia’s Memorial

contains numerous incorrect allegations concerning the substance of its claim,
but Chile does not address them in this preliminary objection.

1.8. This preliminary objection is comprised of five chapters. After this

introductory chapter, Bolivia’s claim is analysed in more detail in Chapter II.
Chapter III e xiste at ris f teat f oot d

demonstrates that Chile has limited its consent to the Court’s jurisdiction to
exclude matters settled or governed by the 1904 Peace Treaty. Chapter IV

addresses attempts by Bolivia to avoid the settlement reached in the 1904 Peace
Treaty, notably by relying on the 1895 Treaty and on bilateral exchanges after

1904. Chapter V contains a brief summary of the reasoning developed in this
preliminary objection, leading to Chile’s formal submission requesting the Court

to adjudge and declare that Bolivia’s claim is not within its jurisdiction.

1.9. This preliminary objection is accompanied by the 77 annexes referred
to in the footnotes and a list of those annexes. The 13 core annexes are compiled

in chronological order in the latter part of this Volume 1. The remainder are
compiled in chronological order in Volume 2 (Annexes 14 – 46) and Volume 3

(Annexes 47 – 77).

4
4 CHAPTER II
BOLIVIA’S CLAIM

2.1. Bolivia’s claim in this proceeding is a reformulation of its claim for

revision or nullification of the 1904 Peace Treaty in order to obtain sovereign

access to the Pacific Ocean. Bolivia pursued that claim in 1920, when it
16
requested “revision” of the 1904 Peace Treaty from the League of Nations. The
17
League rejected that request as being outside its competence. In 2004, in its
Blue Book: The Maritime Claim of Bolivia , published by the Office of the

President, Bolivia asserted that it “was forced to accept the terms of a draft treaty

imposed by Chile”, the final version of which was the 1904 Peace Treaty. The 18

introduction to this Presidential publication identifies “the basis of ou r claim” as

16
Letter from the Delegates of Bolivia to the League of Nations to James Eric
Drummond, Secretary -General of the League of Nations, 1 November 1920,
Annex 37. See also Chile’s response: Letter from the Delegates of Chile to the

League of Nations to the President of the Assembly of the League of Nations, No 14,
19 December 1920, Annex 38.
17 League of Nations, Report of the Commission of Jurists on the Complaints of Peru
and Bolivia , 21 September 1921, Annex 39. See also Note from Ricardo Jaimes

Freyre, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile, to
Luis Izquierdo, Minister of Foreign Affairs of Chile, 1February 1923, Annex 40;
Note from Ricardo Jaimes Freyre, Extraordinary Envoy and Minister Plenipotentiary
of Bolivia in Chile, to Luis Izquierdo, Minister of Foreign Affairs of Chile,
15 February 1923, Annex 41; Note from Ricardo Jaimes Freyre, Extraordinary

Envoy and Minister Plenipotentiary of Bolivia in Chile, to Luis Izquierdo, Minister
of Foreign Affairs of Chile, 27 January 1923, Annex 47 to Bolivia’s Memorial; and
Note from Luis Izquierdo, Minister of Foreign Affairs of Chile, to Ricardo Jaimes
Freyre, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile, No 20,
6 February 1923, Annex 48 to Bolivia’s Memorial.
18
Ministry of Foreign Affairs of Bolivia, The Blue Book: The Maritime Claim of
Bolivia (Directorate of Information of the Presidency of the Republic of Bolivia,
May 2004), Annex 61, pages not numbered, under the heading “Friendship and
Peace Treaty sign ed between Bolivia and Chile (1904)” . See also Statement by

Mr Bedregal, Minister of Foreign Affairs of Bolivia, at the Fourth Session of the
General Committee of the Organization of American States , 12 November 1987,
Annex 57; Statement by Mr Bedregal, Mi nister of Foreign Affairs of Bolivia, at the
Third Session of the General Committee of the Organization of Ame rican States,
16 November 1988, Annex 58; and Statement by Mr Iturralde, Minister of Foreign

Affairs of Bolivia, at the Fourth Session of the Gene ral Committee of the
Organization of American States , 16 November 1989, Annex 59. S ee further
Ministry of Foreign Affairs of Bolivia, The Book of the Sea (La Paz, 2014),
Annex 75.

5
5 the War of the Pacific and adds that “125 years later, we continue to uphold our
maritime claim”. 19 Although Bolivia has now sought to portray its claim as one

concerning an obligation to negotiate, it is an obligation to negotiate on and

agree to precisely the same result that Bolivia sought in 1920: revision of the

1904 Peace Treaty.

2.2. The claim that Bolivia now makes before the Court is predicated on an
20
alleged “right to sovereign access to the Pacific Ocean”. To give effect to that

alleged right, Bolivia requests the Court to adjudge and declare that “Chile has
the obligation to negotiate with Bolivia in order to reach an agreement granting

Bolivia a fully sovereign access to the Pacific Ocean”. 21 Bolivia further requests

the Court to order Chi le to perform this obligation and so “grant Bolivia a fully
22
sovereign access to the Pacific Ocean.”

2.3. Bolivia has confirmed that it has brought the present case to vindicate

its longstanding claim to revise or nullify the 1904 Peace Treaty. Bolivia has

recently stated that its “maritime claim pending at The Hague prevails over the
23
1904 Treaty which, in any event , it condemned as unfair, forced, and broken.”
In 2009, Bolivia enacted a new Constitution that, by its Article 267 and Ninth

Transitional Provision, imposed a duty on the Government to “denounce and, if

necessary, renegotiate” treaties that are contrary to Bolivia’s asserted “right over

19 Ministry of Foreign Affairs of Bolivia, The Blue Book: The Maritime Claim of

Bolivia (Directorate of Information of the Presidency of the Republic of Bolivia,
May 2004), Annex 61, pages not numbered, Introduction. See also Official Bolivian
Press Release, “Morales calls on Obama to show Chile how treaties may be revised
and ter ritories returned”, Bolivian Information Agency , 30 June 2014, Annex 76
(recording that President Morales asked US President Obama “to teach the President
of Chile, Michelle Bachelet, how treaties may be revised and territories returned,
when justice so demands”).
20
Bolivia’s Memorial, paras 20, 35, 94, 338, 497 and 498.
21 Bolivia’s Memorial, Submissions, para 500(a); see also para 28(a).
22
Bolivia’s Memorial, Submissions, para 500(c); see also para 28(c).
23 Official Bolivian Press Release, “Morales calls on Obama to show Chile how treaties
may be revised and territories returned”, Bolivian Information Agency,

30 June 2014, Annex 76.

6 6the War of the Pacific and adds that “125 years later, we continue to uphold our
19
maritime claim”. Although Bolivia has now sought to portray its claim as one
concerning an obligation to negotiate, it is an obligation to negotiate on and

agree to precisely the same result that Bolivia sought in 1920: revision of the

1904 Peace Treaty.

2.2. The claim that Bolivia now makes before the Court is predicated on an

alleged “right to sovereign access to the Pacific Ocean”. 20 To give effect to that

alleged right, Bolivia requests the Court to adjudge and declare that “Chile has

the obligation to negotiate with Bolivia in order to reach an agreement granting
21
Bolivia a fully sovereign access to the Pacific Ocean”. Bolivia further requests
the Court to order Chi le to perform this obligation and so “grant Bolivia a fully

sovereign access to the Pacific Ocean.” 22

2.3. Bolivia has confirmed that it has brought the present case to vindicate
its longstanding claim to revise or nullify the 1904 Peace Treaty. Bolivia has

recently stated that its “maritime claim pending at The Hague prevails over the
23
1904 Treaty which, in any event , it condemned as unfair, forced, and broken.”

In 2009, Bolivia enacted a new Constitution that, by its Article 267 and Ninth

Transitional Provision, imposed a duty on the Government to “denounce and, if
necessary, renegotiate” treaties that are contrary to Bolivia’s asserted “right over

19 Ministry of Foreign Affairs of Bolivia, The Blue Book: The Maritime Claim of
Bolivia (Directorate of Information of the Presidency of the Republic of Bolivia,
May 2004), Annex 61, pages not numbered, Introduction. See also Official Bolivian
Press Release, “Morales calls on Obama to show Chile how treaties may be revised

and ter ritories returned”, Bolivian Information Agency , 30 June 2014, Annex 76
(recording that President Morales asked US President Obama “to teach the President
of Chile, Michelle Bachelet, how treaties may be revised and territories returned,
when justice so demands”).
20
Bolivia’s Memorial, paras 20, 35, 94, 338, 497 and 498.
21 Bolivia’s Memorial, Submissions, para 500(a); see also para 28(a).
22
Bolivia’s Memorial, Submissions, para 500(c); see also para 28(c).
23 Official Bolivian Press Release, “Morales calls on Obama to show Chile how treaties
may be revised and territories returned”, Bolivian Information Agency,
30 June 2014, Annex 76.

6 Whether formulated as a direct claim for treaty revision or an obligation to
negotiate and agree on the same result, t hose are matters excluded from the

Court’s jurisdiction by Article VI of the Pact of Bogotá.

8 8Whether formulated as a direct claim for treaty revision or an obligation to

negotiate and agree on the same result, those are matters excluded from the
Court’s jurisdiction by Article VI of the Pact of Bogotá.

8 3.2. Bolivia makes no mention in its Memorial of Article VI of the Pact of
Bogotá, which is one of the “ conditions” 31 on the consent of the parties to the

Pact’s dispute resolution procedures. It provides that:

“The aforesaid procedures, furthermore, may not be

applied to matters al ready settled by arrangement
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.”

3.3. This provision has two limbs. Each of them independently excludes

Bolivia’s claim from the jurisdiction of the Court. In the first limb the States
parties excluded from the dispute settlement procedures of the Pact “matters

already settled by arrangement between the parties”. In the second limb they also
excluded “matters” that “are governed by agreements or treaties” in force in

April 1948. These two limbs are separated by the disjunctive “or”. In accordance

with the ordinary meaning of Article VI, w here either limb applies, the relevant
“matters” are excluded from the consent to the jurisdiction of the Court.

3.4. As discussed further in Section 3 below, the relevant “matter s” are

territorial sovereignty and the character of Bolivia’s access to the Pacific Ocean .
Those are matters “settled b y arrangement ” in the 1904 Peace Treaty. The

settlement reached was that Bolivia’s territorial sovereignty would be limited by
the boundary fully delimited in Article II of the 1904 Peace Treaty and that

Bolivia has the rights of access to the Pacific Ocea n granted in Articles III, VI
and VII of the 1904 Peace Treaty. They are also matters governed by the 1904

Peace Treaty, which was in force on the date of the conclusion of the Pact of
Bogotá in 1948. Under either limb these matters fall within the scope o f

Article VI of the Pact of Bogotá and therefore fall outside the jurisdiction

conferred on the Court by the parties to the Pact.

31
Pact of Bogotá, Annex 13, Article II.

10 103.2. Bolivia makes no mention in its Memorial of Article VI of the Pact of
Bogotá, which is one of the “ conditions” 31 on the consent of the parties to the

Pact’s dispute resolution procedures. It provides that:

“The aforesaid procedures, furthermore, may not be
applied to matters al ready settled by arrangement
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.”

3.3. This provision has two limbs. Each of them independently excludes

Bolivia’s claim from the jurisdiction of the Court. In the first limb the States
parties excluded from the dispute settlement procedures of the Pact “matters

already settled by arrangement between the parties”. In the second limb they also
excluded “matters” that “are governed by agreements or treaties” in force in

April 1948. These two limbs are separated by the disjunctive “or”. In accordance

with the ordinary meaning of Article VI, w here either limb applies, the relevant
“matters” are excluded from the consent to the jurisdiction of the Court.

3.4. As discussed further in Section 3 below, the relevant “matter s” are

territorial sovereignty and the character of Bolivia’s access to the Pacific Ocean .
Those are matters “settled b y arrangement ” in the 1904 Peace Treaty. The

settlement reached was that Bolivia’s territorial sovereignty would be limited by

the boundary fully delimited in Article II of the 1904 Peace Treaty and that
Bolivia has the rights of access to the Pacific Ocea n granted in Articles III, VI

and VII of the 1904 Peace Treaty. They are also matters governed by the 1904
Peace Treaty, which was in force on the date of the conclusion of the Pact of

Bogotá in 1948. Under either limb these matters fall within the scope o f

Article VI of the Pact of Bogotá and therefore fall outside the jurisdiction
conferred on the Court by the parties to the Pact.

31 Pact of Bogotá, Annex 13, Article II.

10 3.8. The travaux indicate that after a first reading of Article VI in the Third
Committee of the Conference, the delegate of Ecuador asked “if it would be

possible to find a formula to temper the categorical nature of the article in
35
question.” The delegate of Peru, who had drafted the article, responded, stating
36
that “it would be very dangerous to tone down the wording.” This was because:

“First of all, it would be quite difficult to tone it down;
second, it would open the door to provoking a dispute,

which is precisel y what we want to avoid. I think that an
American system of peace must not only resolve
disputes, but also keep them from being provoked,

because provoking disp37es is precisely one of the ways
to threaten peace .”

The delegate of Peru made clear that Article VI was designed to avoid “inviting

litigation” aimed at provoking the unsettling of matters already settled. 38

3.9. The delegate of Chile intervened to observe that Chile “fully supports”
the comments made by the delegate of Peru and that Chile was prepared to vote

in favour of the Article without amendment. 39

3.10. The delegate of Cuba then observed that the “first part of the article
says: ‘ The aforesaid procedures, furthermore, may not be applied to matters

already settled’.” 40 He asked: “If they have already bee n settled, what is the

35
Travaux préparatoi res of the Pact of Bogotá, Ninth International Conference of
American States , held at Bogotá from 30 March – 2 May 1948, Records and
Documents (1953) (Travaux préparatoires of the Pact of Bogotá ), Annex 12, Vol
IV, p 134.
36
Travaux préparatoires of the Pact of Bogotá, Annex 12, Vol IV, p 135.
37 Travaux préparatoires of the Pact of Bogotá, Annex 12, Vol IV, p 135.
38
Travaux préparatoires of the Pact of Bogotá, Annex 12, Vol IV, p 135.
39 Travaux préparatoires of the Pact of Bogotá, Annex 12, Vol IV, p 136.
40
Travaux préparatoires of the Pact of Bogotá, Annex 12, Vol IV, p 136.

12 123.8. The travaux indicate that after a first reading of Article VI in the Third
Committee of the Conference, the delegate of Ecuador asked “if it would be

“First of all, it would be quite difficult to tone it down;
second, it would open the door to provoking a dispute,

which is precisel y what we want to avoid. I think that an
American system of peace must not only resolve
disputes, but also keep them from being provoked,

because provoking dis37tes is precisely one of the ways
to threaten peace .”

The delegate of Peru made clear that Article VI was designed to avoid “inviting

litigation” aimed at provoking the unsettling of matters already settled. 38

3.9. The delegate of Chile intervened to observe that Chile “fully supports”
the comments made by the delegate of Peru and that Chile was prepared to vote

in favour of the Article without amendment. 39

3.10. The delegate of Cuba then observed that the “first part of the article
says: ‘ The aforesaid procedures, furthermore, may not be applied to matters

already settled’.” 40 He asked: “If they have already bee n settled, what is the

12 Section 2. B OLIVIA S R ESERVATION TO A RTICLE VI OF THE P ACT OF
B OGOTÁ

3.13. Bolivia has always been aware that Article VI excludes from the

dispute resolution procedures of the Pact of Bogotá its claim to sovereign access
to the sea. Bolivia entered a reservation to Article VI in an attempt to expand the

scope of the dispute resolution procedures of the Pact . When that prevented the
Pact from entering into force between Bolivia and Chile , Bolivia withdrew its

reservation and reformulated its claim to allege an obligation to negotiate and to

agree on sovereign access to the sea . Bolivia’s reformulated claim also comes
within the scope of Article VI . This reformulated claim concerns the sam e

matters as the claim directly for revision of the 1904 Treaty : territorial
sovereignty and the character of Bolivia’s access to the sea.

3.14. Upon signing the Pact in 1948, Bolivia entered the following
reservation:

“The Delegation of Bolivia makes a reservat ion with
regard to Article VI, in asmuch as it considers that pacific

procedures may also be applied to controversies arising
from matters settled by arrangement between the Parties,
when the said arrangement affects the vital interests of a
State.”45

3.15. Through this reservation, Bolivia sought to make the Pact’s dispute
resolution procedures available for matters affecting Bolivia’s “vital interests”

even if they were already settled, or governed by an agreement or treaty in force
prior to 1948. In 1985 the Gen eral Secretariat of the Organization of Americ an

States conducted “a study on the procedures for peaceful settlement of disputes
46
set forth in the OAS Charter”. This was mandated by the Member States of the

45
Pact of Bogotá, Annex 13, p 108.
46 Study prepared by the General Secretariat of the Organization of American States –
Part II: American Treaty on Pacific Settlement, 9 April 1985, Annex 56, p 29.

14 14 Section 2. B OLIVIA ’S R ESERVATION TO A RTICLE VI OF THE P ACT OF
BOGOTÁ

3.13. Bolivia has always been aware that Article VI excludes from the
dispute resolution procedures of the Pact of Bogotá its claim to sovereign access

to the sea. Bolivia entered a reservation to Article VI in an attempt to expand the

scope of the dispute resolution procedures of the Pact . When that prevented the

Pact from entering into force between Bolivia and Chile , Bolivia withdrew its
reservation and reformulated its claim to allege an obligation to negotiate and to

agree on sovereign access to the sea . Bolivia’s reformulated claim also comes

within the scope of Article VI . This reformulated claim concerns the sam e
matters as the claim directly for revision of the 1904 Treaty : territorial

sovereignty and the character of Bolivia’s access to the sea.

3.14. Upon signing the Pact in 1948, Bolivia entered the following
reservation:

“The Delegation of Bolivia makes a reservat ion with

regard to Article VI, in asmuch as it considers that pacific
procedures may also be applied to controversies arising
from matters settled by arrangement between the Parties,

when th45said arrangement affects the vital interests of a
State.”

3.15. Through this reservation, Bolivia sought to make the Pact’s dispute

resolution procedures available for matters affecting Bolivia’s “vital interests”

even if they were already settled, or governed by an agreement or treaty in force
prior to 1948. In 1985 the Gen eral Secretariat of the Organization of Americ an

States conducted “a study on the procedures for peaceful settlement of disputes
46
set forth in the OAS Charter”. This was mandated by the Member States of the

45 Pact of Bogotá, Annex 13, p 108.
46
Study prepared by the General Secretariat of the Organization of American States –
Part II: American Treaty on Pacific Settlement, 9 April 1985, Annex 56, p 29.

14 day, Chile objected to Bolivia’s reservation and indicated that “this objection
53
prevents the entry into force” of the Pact as between Chile and Bolivia.

3.17. On 21 October 2011, Bolivia responded by issuing an Aclaración,

asserting that notwithstanding Chile’s objection, the Pact “is in force” as between

Chile and Bolivia. 54 Bolivia argued that its reservation “only aims at extending”

the obligations in the Pact, and for this reason, “does not imply any commitment
55
for the Parties to the Pact , who do not expressly accept it.” Bolivia contended

that since its reservation purported to add an obligation to a treaty, rather than to
restrict its obligations, if Chile did not accept that addition, then the Pact entered

into force as between Bolivia and Chile without that addition. Chile responded to

Bolivia’s Aclaración, confirming that “the reservation made by Bolivia to

Article VI of the Pact of Bogotá and the objection made by Chile … prevent the
56
entry into force of this Treaty between the two States.”

3.18. On 10 April 2013, Bolivia withdrew its reservation to the Pact of

Bogotá, 57 bringing it into force as between Bolivia and Chile. Two weeks later it

filed its Application in the present case. 58

Annex 63.
53 Objection by Chile to the reservation made by Bolivia at the time it ratified the
American Treaty on Pacific Settlement, 10 June 2011, Annex 64.
54
Letter from David Choquehuanca, Minister of Foreign Affairs of Bolivia, to the
General Secretariat of the Organization of American States, 21 October 2011,
Annex 66.
55
Letter from David Choquehuanca, Minister of Foreign Affairs of Bolivia, to the
General Secretariat of the Organization of American States, 21 October 2011,
Annex 66.
56
Letter from the Chilean Ministry of Foreign Affairs to the General Secretariat of the
Organization of American States, No 389, 12 December 2011, Annex 68.
57
Bolivian Instrument of Withdrawal of Reservation to the Pact of Bog otá,
10 April 2013, Annex 115 to Bolivia’s Memorial.
58 Bolivia’s Application Instituting Proceedings, 24 April 2013.

16 16day, Chile objected to Bolivia’s reservation and indicated that “this objection

prevents the entry into force” of the Pact as between Chile and Bolivia. 53

3.17. On 21 October 2011, Bolivia responded by issuing an Aclaración,

asserting that notwithstanding Chile’s objection, the Pact “is in force” as between
54
Chile and Bolivia. Bolivia argued that its reservation “only aims at extending”

the obligations in the Pact, and for this reason, “does not imply any commitment
for the Parties to the Pact , who do not expressly accept it.” 55Bolivia contended

that since its reservation purported to add an obligation to a treaty, rather than to

restrict its obligations, if Chile did not accept that addition, then the Pact entered
into force as between Bolivia and Chile without that addition. Chile responded to

Bolivia’s Aclaración, confirming that “the reservation made by Bolivia to

Article VI of the Pact of Bogotá and the objection made by Chile … prevent the
56
entry into force of this Treaty between the two States.”

3.18. On 10 April 2013, Bolivia withdrew its reservation to the Pact of
57
Bogotá, bringing it into force as between Bolivia and Chile. Two weeks later it
filed its Application in the present case.58

Principal Legal Officer of the Department of International Law of the Organization
of American States, to States signatory to the American Treaty on Pacific Settlement,
OEA/2.2/36/11, 9 June 2011, enclos ing Bolivia’s Instrument of Ratification,
Annex 63.
53
Objection by Chile to thereservation made by Bolivia at the time it ratified the
American Treaty on Pacific Settlement, 10 June 2011, Annex 64.
54 Letter from David Choquehuanca, Minister of ForeignAffairs of Bolivia, to the
General Secretariat of the Organization of American States, 21October 2011,

Annex 66.
55 Letter from David Choquehuanca, Minister of Foreign Affairs of Bolivia, to the
General Secretariat of the Organization of American States,21 October 2011,
Annex 66.
56
Letter from the Chilean Ministry of Foreign Affairs to the General Secretariat of the
Organization of American States, No 389, 12 December 2011, Annex 68.
57 Bolivian Instrument of Withdrawal of Reservation to the Pact of Bog otá,
10 April 2013, Annex 115 to Bolivia’s Memorial.
58
Bolivia’s Application Instituting Proceedings, 24 April 2013.

16 3.21. Bolivia says that: “Sovereign access to the sea was not addressed in
60
the 1904 Treaty.” That is incorrect. The 1904 Peace Treaty addressed both

territorial sovereignty and the character of Bolivia’s access to the sea. It s terms
left no prior Bolivian claim to sovereign access to the sea pending, and it

established a special regime for Bolivian access to the sea over Chilean territory.

3.22. The basic chronology of events leading to the 1904 Peace Treaty was

as follows:

(a) In 1884, Bolivia and Chile signed a Truce Pact to “declare the end of

the state of war” 61 between the two States and which, in Article 8, was

expressed as being designed to “prepar e and facilitate the
establishment of a strong and stable peace between the two

Republics”. The Truce Pact established that Chile would “continue to
62
govern” coastal territory that had previously been Bolivian and it

explicitly envisaged the subsequent con clusion of a “definitive treaty
of peace ”. 63 The delimitation effected by the 1884 Truce Pact is

depicted in Figure 1.

60 Bolivia’s Memorial, para 10.
61
Truce Pact between Bolivia and Chile , signed at Valparaíso on 4April 1884 (the
1884 Truce Pact), Annex 2, Article 1.
62 1884 Truce Pact, Annex 2, Article 2.
63
1884 Truce Pact, Annex 2, Preamble; see also Article 8.

18 183.21. Bolivia says that: “Sovereign access to the sea was not addressed in
60
the 1904 Treaty.” That is incorrect. The 1904 Peace Treaty addressed both

territorial sovereignty and the character of Bolivia’s access to the sea. It s terms
left no prior Bolivian claim to sovereign access to the sea pending, and it

established a special regime for Bolivian access to the sea over Chilean territory.

3.22. The basic chronology of events leading to the 1904 Peace Treaty was

as follows:

(a) In 1884, Bolivia and Chile signed a Truce Pact to “declare the end of

the state of war” 61between the two States and which, in Article 8, was

expressed as being designed to “prepar e and facilitate the
establishment of a strong and stable peace between the two

Republics”. The Truce Pact established that Chile would “continue to
62
govern” coastal territory that had previously been Bolivian and it

explicitly envisaged the subsequent con clusion of a “definitive treaty
of peace ”. 63 The delimitation effected by the 1884 Truce Pact is

depicted in Figure 1.

18 (b) In May 1895 the two States signed a Treaty of Peace and Amity. 64

With it they signed the 1895 Treaty on Transfer of Territor y (defined

above as the 1895 Treaty) and the 1895 Treaty of Commerce. 66 These

three treaties (the 1895 Treaties ) were accompanied by four
67
protocols and the two States agreed in an exchange of notes in 1896
that a failure by the Congresses of both States to approve the latter two

of those protocols would make all of the 1895 Treaties “wholly

without effect”. 68 Congressional approval was never forthcoming. The

1895 Treaties thus never entered into force , as discussed further at

paragraphs 4.2-4.8 below.

in 1904 the two States concluded the “definitive treaty of peace ”

envisaged in the 1884 Truce Pact. In its Preamble, the 1904 Peace

Treaty noted that it was concluded “[i]n pursuance of the purpose

expressed in Article 8 of the Truce Pact of April 4, 1884 ” and, in its

64
Treaty of Peace and Amity between the Republics of Chile and Bolivia, signed at
Santiago on 18 May 1895, Annex 99 to Bolivia’s Memorial.
65 1895 Treaty, Annex 3.
66
Treaty of Commerce between the Republics of Chile and Bolivia , signed at Santiago
on 18 May 1895, Annex 15.
67
Protocol on the Scope of the Treaty on Transfer of Territory between Bolivia and
Chile, signed at Santiago on 28 May 1895 , Annex 17; Protocol on Debts between
Bolivia and Chile, signed at Santiago on 28 May 1895, Annex 16; Protocol of
9 December 1895 on the scope of the obligations agreed upon in the treaties of
18 May between Bolivia and Chile, signed at Sucre on 9 December 1895 (the
December 1895 Protocol ), Annex 4; and Explanatory Protocol of the Protocol of

9 December 1895 between Bolivia and Chile , signed at Santiago on 30 April 1896
(the 1896 Protocol), Annex 8.
68 Note from Heriberto Gutiérrez, Extraordinary Envoy and Minister Plenipotentiary of
Bolivia in Chile, to Adolfo Guerrero, Minister of ForeigAffairs of Chile, No 117,

29 April 1896, Annex 5; Note from Adolfo Guerrero, Minister of Foreign Affairs of
Chile, to Heriberto Gutiérrez, Extraordinary Envoy and Minister Plenipotentiary of
Bolivia in Chile, No 521, 29 April 1896, Annex 6; and Note from Heriberto
Gutiérrez, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile, to
Adolfo Guerrero, Minister of Foreign Affairs of Chile, No 118, 30 April 1896,
Annex 7.

20 20 (b) In May 1895 the two States signed a Treaty of Peace and Amity. 64

With it they signed the 1895 Treaty on Transfer of Territor y (defined

above as the 1895 Treaty) and the 1895 Treaty of Commerce. 66 These

of those protocols would make all of the 1895 Treaties “wholly

without effect”. 68 Congressional approval was never forthcoming. The

1895 Treaties thus never entered into force , as discussed further at

paragraphs 4.2-4.8 below.

in 1904 the two States concluded the “definitive treaty of peace ”

envisaged in the 1884 Truce Pact. In its Preamble, the 1904 Peace

Treaty noted that it was concluded “[i]n pursuance of the purpose

expressed in Article 8 of the Truce Pact of April 4, 1884 ” and, in its

64
Treaty of Peace and Amity between the Republics of Chile and Bolivia, signed at
Santiago on 18 May 1895, Annex 99 to Bolivia’s Memorial.
65 1895 Treaty, Annex 3.
66
Treaty of Commerce between the Republics of Chile and Bolivia , signed at Santiago
on 18 May 1895, Annex 15.
67
Protocol on the Scope of the Treaty on Transfer of Territory between Boliviaand
Chile, signed at Santiago on 28 May 1895 , Annex 17; Protocol on Debts between
Bolivia and Chile, signed at Santiago on 28 May 1895, Annex 16; Protocol of
9 December 1895 on the scope of the obligations agreed upon in the treaties of
18 May between Bolivia and Chile, signed at Sucre on 9 December 1895 (the
December 1895 Protocol ), Annex 4; and Explanatory Protocol of the Protocol of

20 President of Bolivia spe cifically referred in Congress to the “clear and finally
determined borders” settled in the 1904 arrangement. 73

A. Territorial Sovereignty is a matter settled and governed by the
1904 Peace Treaty

3.24. In their 1904 Peace Treaty, which was signed twenty years after the

war had ended, and which entered into force on 10 March 1905 , 74 Bolivia and

Chile delimited the entirety of their boundary . That included the boundary

between Bolivia and , on the Chilean side, from South to North, (i) the coastal
territory that had been Bolivian over which Bolivia recognised Chilean

sovereignty, (ii) the province of Tarapacá that Peru had already ceded to Chile,

and (iii) the province s of Tacna and Arica, which were both under Chilean
75
control in 1904.

3.25. In Article II of their 1904 Peace Treaty , Bolivia and Chile delimited

their entire present day boundary, settli ng between them sovereignty on either

side of that boundary. The boundary is described in Article II from South to
North by reference to 96 points. 76This may be seen in Figure 2.

73 Bolivia, 13th Closing Session of the Honourable National Congress,
2 February 1905 (La Paz, 1905), Annex 30, p 123.
74
Act of Exchange of In struments of Ratification for th1904 Treaty of Peace and
Amity between Bolivia and Chile, 10 March 1905, Annex 31.
75
On the subsequent agreement between Chile and Peru concerning Tacna and Arica,
see paragraphs 4.14-4.16 below and the Treaty between Chile and Peru for the
Settlement of the Dispute Regarding Tacna and Arica , signed at Lima on
3 June 1929 (entry into force 28 July 1929), 94 League of Nations Treaty Series 401
(the Treaty of Lima), Annex 11.
76
1904 Peace Treaty, Annex 10, Article II.

22 22President of Bolivia spe cifically referred in Congress to the “clear and finally

determined borders” settled in the 1904 arrangement. 73

A. Territorial Sovereignty is a matter settled and governed by the

1904 Peace Treaty

3.24. In their 1904 Peace Treaty, which was signed twenty years after the
74
war had ended, and which entered into force on 10 March 1905 , Bolivia and

Chile delimited the entirety of their boundary . That included the boundary
between Bolivia and , on the Chilean side, from South to North, (i) the coastal

territory that had been Bolivian over which Bolivia recognised Chilean

sovereignty, (ii) the province of Tarapacá that Peru had already ceded to Chile,
and (iii) the province s of Tacna and Arica, which were both under Chilean

control in 1904. 75

3.25. In Article II of their 1904 Peace Treaty , Bolivia and Chile delimited
their entire present day boundary, settli ng between them sovereignty on either

side of that boundary. The boundary is described in Article II from South to
76
North by reference to 96 points. This may be seen in Figure 2.

73
Bolivia, 13th Closing Session of the Honourable National Congress,
2 February 1905 (La Paz, 1905), Annex 30, p 123.
74 Act of Exchange of In struments of Ratification for th1904 Treaty of Peace and
Amity between Bolivia and Chile, 10 March 1905, Annex 31.
75
On the subsequent agreement between Chile and Peru concerning Tacna and Arica,
see paragraphs 4.14-4.16 below and the Treaty between Chile and Peru for the
Settlement of the Dispute Regarding Tacna and Arica , signed at Lima on
3 June 1929 (entry into force 28 July 1929), 94 League of Nations Treaty Series 401
(the Treaty of Lima), Annex 11.
76
1904 Peace Treaty, Annex 10, Article II.

22 3.26. Also in Article II, Bolivia recognised Chile as being sovereig n over
coastal territory that had been Bolivian:

“By the present Treaty, the territories occupied by Chile
by virtue of article 2 of the Truce Pact of April 4, 1884,

are recogni77d as belonging absolutely and in perpetuity
to Chile.”

This recognition was unconditional, and was not subject to any purported right of

Bolivia later to obtain sovereign access to the sea. Both States recognised Chile’s

sovereignty over that territory “absolutely and in perpetuity”.

3.27. In 1883, Peru had ceded to Chile “in perpetuit y and unconditionally

the territory of the littoral province of Tarapac á”, bounded on the north by “the
ravine and river Camarones; on the south, the ravine and river Loa ; on the east,
78
the Republic of Bolivia; and on the west, the Pacific Ocean.” Thus at the time

of the 1904 Peace Treaty, Tarapacá was definitively under the sovereignty of
Chile, with Bolivia to its East.

3.28. Although sovereignty over Tarapacá had been settled, the definitive
status of the provinces of Tacna and Arica remained open as between Chile and

Peru in 1904. In the 1883 Treaty of Peace between Chile and Peru, those two

States agreed that Tacna and Arica “shall continue in the possession of Chile and
subject to Chilean laws and authorities for a period of ten years, from the date of
79
the ratification of the present Treaty of Peace.” They also agreed that after the
term of ten years, the question whether Tacna and Arica would “remain

definitively under the dominion and sovereignty of Chile or continue to form part

77 1904 Peace Treaty, Annex 10, Article II.
78
Treaty of Peace of Ancón between Chile and Peru, signed at Lima on
20 October 1883 (the Treaty of Ancón), Annex 1, Article 2.
79 Treaty of Ancón, Annex 1, Article 3.

24 243.26. Also in Article II, Bolivia recognised Chile as being sovereig n over

coastal territory that had been Bolivian:

“By the present Treaty, the territories occupied by Chile
by virtue of article 2 of the Truce Pact of April 4, 1884,
are recognized as belonging absolutely and in perpetuity
77
to Chile.”

This recognition was unconditional, and was not subject to any purported right of

Bolivia later to obtain sovereign access to the sea. Both States recognised Chile’s

sovereignty over that territory “absolutely and in perpetuity”.

3.27. In 1883, Peru had ceded to Chile “in perpetuit y and unconditionally

the territory of the littoral province of Tarapac á”, bounded on the north by “the

ravine and river Camarones; on the south, the ravine and river Loa ; on the east,
the Republic of Bolivia; and on the west, the Pacific Ocean.” 78 Thus at the time

of the 1904 Peace Treaty, Tarapacá was definitively under the sovereignty of

Chile, with Bolivia to its East.

3.28. Although sovereignty over Tarapacá had been settled, the definitive

status of the provinces of Tacna and Arica remained open as between Chile and

Peru in 1904. In the 1883 Treaty of Peace between Chile and Peru, those two

term of ten years, the question whether Tacna and Arica would “remain
definitively under the dominion and sovereignty of Chile or continue to form part

77
1904 Peace Treaty, Annex 10, Article II.
78 Treaty of Peace of Ancón between Chile and Peru, signed at Lima on
20 October 1883 (the Treaty of Ancón), Annex 1, Article 2.
79
Treaty of Ancón, Annex 1, Article 3.

24 the States parties to the Pact of Bogotá ensured by excluding settled matters from

the jurisdiction of the Court in Article VI.

3.31. The territorial settlement in the 1904 Peace Treaty was agreed in

absolute terms . No earlier Bolivia n claim to sovereign access to the Pacific
survived it. The 1904 Peace Treaty between Bolivia and Chile h as continued to

govern their boundary, territorial sovereignty on either side of that boundary, and

Bolivia’s access to the Pacific Ocean across Chilean territory, for more than a
century.

B. The Character of Bolivia’s Access to the Sea is a matter settled and

governed by the 1904 Peace Treaty

3.32. An integral part of the overall peace settlement agreed between

Bolivia and Chile in 1904 was that Bolivia would h ave access to the sea over
Chilean territory.

3.33. Article VI of the 1904 Peace Treaty provided that Chile would accord
“in favour of Bolivia in perpetuity the fullest and most unrestricted right of
86
commercial transit in its territory and its Pacific ports.” It also provided that the

two States would “agree, in special acts, upon the method suitable for securing,
without prejudice to their respective fiscal interests”, Bolivia’s unrestricted right
87
of commercial transit. Bolivia’s access to the sea in accordance with the 1904

Peace Treaty has been facilitated through a number of subsequent bilateral
agreements, as well as in Chilean law and practice. 88

86
1904 Peace Treaty, Annex 10, Article VI.
87 1904 Peace Treaty, Annex 10, Article VI.
88
The two States affirmed Bolivia’s right of free transit for cargo and passengers in the
Convention on Trade between Chile and Bolivia, signed at Santiago on
6 August 1912, Annex 34, Article I ; and in theConvention on Transit between
Bolivia and Chile, signed at Santiago on 16 August 1937, Annex 44, Article I. All
goods in transit through Chile originating in or bound for Bolivia are subject to the

26 26the States parties to the Pact of Bogotá ensured by excluding settled matters from

the jurisdiction of the Court in Article VI.

3.31. The territorial settlement in the 1904 Peace Treaty was agreed in

absolute terms . No earlier Bolivia n claim to sovereign access to the Pacific

survived it. The 1904 Peace Treaty between Bolivia and Chile h as continued to
govern their boundary, territorial sovereignty on either side of that boundary, and

Bolivia’s access to the Pacific Ocean across Chilean territory, for more than a

century.

B. The Character of Bolivia’s Access to the Sea is a matter settled and

governed by the 1904 Peace Treaty

3.32. An integral part of the overall peace settlement agreed between

Bolivia and Chile in 1904 was that Bolivia would h ave access to the sea over

Chilean territory.

3.33. Article VI of the 1904 Peace Treaty provided that Chile would accord

“in favour of Bolivia in perpetuity the fullest and most unrestricted right of
86
commercial transit in its territory and its Pacific ports.” It also provided that the

two States would “agree, in special acts, upon the method suitable for securing,
without prejudice to their respective fiscal interests”, Bolivia’s unrestricted right

of commercial transit. 87Bolivia’s access to the sea in accordance with the 1904

Peace Treaty has been facilitated through a number of subsequent bilateral
88
agreements, as well as in Chilean law and practice.

86
1904 Peace Treaty, Annex 10, Article VI.
87 1904 Peace Treaty, Annex 10, Article VI.
88
The two States affirmed Bolivia’s right of free transit for cargo and passengers in the
Convention on Trade between Chile and Bolivia, signed at Santiago on
6 August 1912, Annex 34, Article I ; and in the Convention on Transit between
Bolivia and Chile, signed at Santiago on 16 August 1937, Annex 44, Article I. All
goods in transit through Chile originating in or bound for Bolivia are subject to the

26 the section of the railway in Bolivian territory was to be vested i n Bolivia. 93

Accordingly, in 1928 Chile transferred the Bolivian section of the railway to the
94
Government of Bolivia, free of any charge.

3.36. The construction of the railway was of particular importance to
Bolivian access to the sea . 95 Before Chile constructed it, including in the time

when Bolivia had coastal territory, by Bolivia’s own admission it had “to seek

other routes of transit, concluding treaties and granting concessions of all kinds”,
96
due to desert-like conditions in the region.

3.37. In addition to constructing at its sole charge the entirety of the railway

from Arica to the plateau of La Paz, in Article III of the 1904 Peace Treaty Chile
also agreed to guarantee obligations incurred by Bolivia to attract investment in

other railways in Bolivia. 97

93 1904 Peace Treaty, Annex 10, Article III.
94
Act of Transfer of the Railroad from Arica to the Plateau of La Paz – Bolivian
Section between Bolivia and Chile , signed at Viacha on 13 May 1928, Annex 43.
The handover was anticipated by the Protocol Regarding the Transfer of the Bolivian
Section of the Railroad from Arica to La Paz between Bolivia and Chile , signed at
Santiago on 2 February 1928, Annex 42.

95 See Bolivia, Opening Session of Congress, 6 August 1910 (La Paz, 1911),
Annex 33, p 6 (“The works on the Arica railway … will ult imately provide our
country with the most important means of communication with the Pacific, which

will expand our industries and foreign trade”).
96 Note from Eliodoro Villazόn, Minister of Foreign Affairs of Bolivia, to Abraham
König, Minister Plenipotentiary of Chile in Bolivia, No 25, 15 October 1900,

Annex 29, p 376.
97 1904 Peace Treaty, Annex 10, Article III.

28
28 93
the section of the railway in Bolivian territory was to be vested i n Bolivia.

Accordingly, in 1928 Chile transferred the Bolivian section of the railway to the
94
Government of Bolivia, free of any charge.

3.36. The construction of the railway was of particular importance to

Bolivian access to the sea . 95 Before Chile constructed it, including in the time

when Bolivia had coastal territory, by Bolivia’s own admission it had “to seek

other routes of transit, concluding treaties and granting concessions of all kinds”,
96
due to desert-like conditions in the region.

3.37. In addition to constructing at its sole charge the entirety of the railway

from Arica to the plateau of La Paz, in Article III of the 1904 Peace Treaty Chile

also agreed to guarantee obligations incurred by Bolivia to attract investment in
97
other railways in Bolivia.

93 1904 Peace Treaty, Annex 10, Article III.

94 Act of Transfer of the Railroad from Arica to the Plateau of La Paz – Bolivian
Section between Bolivia and Chile , signed at Viacha on 13 May 1928, Annex 43.
The handover was anticipated by the Protocol Regarding the Transfer of the Bolivian

Section of the Railroad from Arica to La Paz between Bolivia and Chile , signed at
Santiago on 2 February 1928, Annex 42.
95 See Bolivia, Opening Session of Congress, 6 August 1910 (La Paz, 1911),
Annex 33, p 6 (“The works on the Arica railway … will ult imately provide our

country with the most important means of communication with the Pacific, which
will expand our industries and foreign trade”).
96 Note from Eliodoro Villazόn, Minister of Foreign Affairs of Bolivia, to Abraham

König, Minister Plenipotentiary of Chile in Bolivia, No 25, 15 October 1900,
Annex 29, p 376.
97 1904 Peace Treaty, Annex 10, Article III.

28 3.38. Under Article XII of the 1904 Peace Treaty: “All questions which may

arise with reference to the interpretation or execution” of that treaty shall be
98
submitted to arbitration before the Permanent Court of Arbitration. Any claims
concerning the interpretation or execution of the 1904 Peace Treaty would thus

also be outside the jurisdiction of the Court becau se they would be subject to its

own dispute resolution provision.

* * *

3.39. In the 1904 Peace Treaty Bolivia and Chile re -established peaceful
relations. Bolivia recognised Chile as being sovereign over coastal territory that

had been Bolivian and agreed to a boundary w hich apportioned no coastal

territory to it, while Bolivia received ( a) the broadest right of free transit in
perpetuity over not only its former territory but over the whole of Chile’s

territory; together with (b) a railway constructed at Chile’s expense to facilitate

Bolivia’s access to the sea; (c) a substantial cash payment from Chile to Bolivia;
(d) a financial settlement by Chile of claims against Bolivia related to the ceded

territory; and (e) Chile acting as guarantor for obligations incurred by Bol ivia

relating to investment in other railways in Bolivia. The comprehensive nature of
the matters settled and governed by the 1904 Peace Treaty led the President of

Bolivia to refer in Congress to the “clear and finally determined borders” that
99
were settled in that arrangement, and the Chairman of the Bolivian Congress to
describe more generally the “laborious, lengthy and difficult negotiations that

resulted in the said arrangement, which encompasses all of our issues .” 100 Now

98
1904 Peace Treaty , Annex 10, Arti cle XII, as amended by the Protocol that
Designates an Arbitrator between Bolivia and Chile, signed at Santiago on
16 April 1907, Annex 32.
99 Bolivia, 13th Closing Session of the Honourable National Congress,
2 February 1905 (La Paz, 1905), Annex 30, p 123.
100
Bolivia, 13th Closing Session of the Honourable National Congress,
2 February 1905 (La Paz, 190 5), Annex 30, p 119. The Spanish original is:
“Negociación laboriosa, larga y accidentada, que ha acabado con dichoarreglo,
que comprende todas nuestras cuestiones.” (Emphasis added.)

30 303.38. Under Article XII of the 1904 Peace Treaty: “All questions which may