Comments in writing of Chile on the written reply of the Bolivian Government to the question put by Judge Owada at the public sitting held on the afternoon of 8 May 2015

REPUBLIC OF CHILE
Ministry of Foreign Aftàirs

May l4th. 2015

H.E. Mr Philippe Couvreur
Registrar

International Court of Justice
Peace Palace
The Hague

The Netherlands

Sir,

Obligation to Negotiate Access to the Pacifie Ocean (Bolivia v. Chile)
C/lile'commem~ 0·1Boli,•iaAtr.~ o hrdge Owatl11's11e.~ cmictmi11gthe mea11i1gscribedb)'
the Partiett "so"ereign acces.'tto tite.'tea"

1have the honour to convey the comments of the Republic of Chile on the answer given by Bolivia
on 13 May 2015 to the question asked by Judge Owada conceming the meaning of the terrn

·'sovereign access to the sea.. for the purpose of deterrnining whether the Court has jurisdiction
over the matter that Bolivia has reterred toit.

ln its answer, Bolivia adopts the extraordinary position that the meaning to be ascribed to an

expression central to its Request tor Relief can be deterrnined only as part of a consideration of
the merits of its daim. The meaning of Bolivia's Request for Relief cannot depend on a

consideration of the merits of whether the Court should grant that relief. What Bolivia·s Request
for Relief means is exactly the kind of issue of characterization that can and should be determined

at a preliminary stage, order to decide whether the Court has jurisdiction. 1f Bolivia·s approach
were correct, a respondent State could be left to answer the merits of adaim the meaning ofwhich

the applicant declined to explain.

As Chile emphasized in its answer to .ludge Owada's question, it is clear from the content of

Bolivia's Application, Memorial and Request for Reliefthat by seeking a declaration that Chile is
under an obligation to agree to grant Bolivia ··sovereign access to the sea··. Bolivia seeks a

declaration that Chile is under an obligation to agree to transfer to Bolivia sovereignty over coastal

territory. Bolivia now declines to enunciate the point that it has already made so explicit in its
Application, Memorial and Request for Relief: becausitis clear that a request for a declaration

that Chile is under an obligation to agree to change the allocation of sovereignty over territory is
objectively inconsistent with the scttlement reachedhe 1904 Peace Treaty and thus outside the

Court's jurisdiction by force of Article VI of the Pact of Bogotâ. Chile's Preliminary Objectionmust. however. be dccided on the basis of the Application. Memorial and Request for Relief to

which it objects.

Chile additionally notes that in Bolivia's second round oral submissions on Friday 8 May. counsel

for Bolivia submitted that ··Bolivia is not even asking the Com1 to determine the specifie modality
of sovereign access. Such access could be expressed in many ways. whether it is a conidor. a

coastal enclave. a special zone. or sorne other practical solution:· (CR 2015/19, p. 51, para. 3
(Akhavan)).

Chile further notes that Bolivia's answer to .ludge Owada·s question equally focuses on its position
that the modalities of the claimed sovereign access would be a matter to be determined by

agreement between the two States, and is not something with which the Court should be concemed.

If Bolivia's reference to "'aspecial zone. or sorne other practical solution·· and its insistence that
the modalities of the claimed access are not a matter for the Court, are intended as a retreat from

the position adopted in the Application and Memorial and embodied in the expression ''fully
sovereign access·· contained in Bolivia ·s Request for Relief. Chile reiterates that its Preliminary

Objection must be decided on the basis of the Application, Memorial and Request for Relief in
response to which thal objection has been made, none ofwhich Bolivia has withdrawn or modified.

Accept, Sir, the assurances of my highest consideration.

Felipe Bulnes

Agent ofChile .r--