Volume I

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 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 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 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 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 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 Instrum ent of Ratification, 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. 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 (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. (c) It being established that the 1895 Treaties were wholly without effect, 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 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. (c) It being established that the 1895 Treaties were wholly without effect, 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 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 ForeiAffairs 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 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 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 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 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 dicho arreglo, que comprende todas nuestras cuestiones.” (Emphasis added.) 3032 CHAPTER IV BOLIVIA’S ATTEMPTS TO CIRCUMVENT THE 1904 PEACE TREATY CANNOT ESTABLISH JURISDICTION 4.1. Bolivia uses a number of devices to attempt to circumvent the settlement reached in 1904. First, it relies on the1895 Treaty on Transfer of Territory (the 1895 Treaty), without anywhere acknowledging that by agreement of the parties that Treaty is wholly without effect. Second, it relies on diplomatic exchanges after the 1904 Peace Treaty, which concerned the same matters settled and governed by that Treaty. This Chapter briefly addresses these arguments for the purpose of demonstrating that they cannot create consent to jurisdiction over matters that have been excluded from the Court’s jurisdiction by Article VI of the Pact of Bogotá. Finally, the Chapter explains that Article VI of the Pact of Bogotá also applies to the settlement concerning sovereignty over the provinces of Tacna and Arica reached by Chile and Peru in their 1929 Treaty of Lima. Section 1. BOLIVIA ’S C LAIM RELIES ON A M ATTER SETTLED AND GOVERNED BY THE 1896E XCHANGE OF NOTES 4.2. Bolivia relies on the 1895 Treaty throughout its Memoria l as a 102 foundation for its alleged right to sovereign access to the Pacifiand as giving rise to a “legal duty for Chile to negotiate the realisation of Bolivia’s sovereign access to the sea”.03 4.3. Bolivia argues that in the 1895 Treaty “the Parties agreed t hat Bolivia’s enclosure was temporary and that it retained a right of sovereign access 104 to the sea.” Bolivia alleges that: “The 1895 Transfer Treaty thus expressed the parties’ agreement that Bolivia should have a sovereign access to the sea.” 105 102 See for example Bolivia’s Memorial, paras 9, 36, 76, 115, 131, 145, 228, 311, 338, 340, 368, 388, 410, 411 and 497. 103 Bolivia’s Memorial, para 411. 104 Bolivia’s Memorial, para 36 (emphasis in the original). 105 Bolivia’s Memorial, para 76. 32 33 Bolivia asserts that in the 1895 Treaty “Chile explicitly bound itself” and that the two States “created an international obligation for Chile ‘to transfer’ a pre - defined area of territory , materializing a sovereign access to t he sea for Bolivia.” 106 Bolivia refers to protocols subsequent to the 1895 Treaty and describes their effect as being “similar”, “mutatis mutandis” to the correction that followed the Maroua Declaration in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria which “treat ed the Declaration as valid and applicable”. 107Bolivia claims that the instruments of ratification of the 1895 Treat y “were duly exchanged, without any qualifications or conditions attached” 108and that the 1895 Treaty was “legally binding”. 109 4.4. Bolivia omits to inform the Court that the 1895 Treaty never entered into force. O n the day they exchanged instruments of ratification for the 1895 Treaties, Bolivia and Chile recorded in an exchange of notes their “perfect agreement” that the 1895 Treaties would be “whol ly without effect” absent approval by the Congress of each State of a protocol of 9 December 1895 (the December 1895 Protocol ) and a clarification of that protocol contained in a further protocol of 30 April 1896 (the 1896 Protocol). This exchange of notes 110 was subsequently published in the British and Foreign State Papers. 4.5. On 29 April 1896, Chile sent a note to Bolivia stating: “as was expressed in our last conference, the failure by either of the Congresses to approve of the Protocol of 9 December or th e clarification we made to it would imply a disagreement upon a fundamental basis of the 106 Bolivia’s Memorial, para 340. 107 Bolivia’s Memorial, para 341, citing Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Merits, Judgment, I.C.J. Reports 2002, p 431, para 267. 108 Bolivia’s Memorial, para 343. 109 Bolivia’s Memorial, para 145. 110 (1895-1896) 88 British & Foreign State Papers 1332-1333. 34 33Bolivia asserts that in the 1895 Treaty “Chile explicitly bound itself” and that the two States “created an international obligation for Chile ‘to transfer’ a pre - defined area of territory , materializing a sovereign access to t he sea for Bolivia.” 106 Bolivia refers to protocols subsequent to the 1895 Treaty and describes their effect as being “similar”, “mutatis mutandis” to the correction that followed the Maroua Declaration in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria which “treat ed the Declaration as valid and applicable”. 107 Bolivia claims that the instruments of ratification of the 1895 Treat y “were duly exchanged, without any qualifications or conditions 108 109 attached” and that the 1895 Treaty was “legally binding”. 4.4. Bolivia omits to inform the Court that the 1895 Treaty never entered into force. O n the day they exchanged instruments of ratification for the 1895 Treaties, Bolivia and Chile recorded in an exchange of notes their “perfect agreement” that the 1895 Treaties would be “whol ly without effect” absent approval by the Congress of each State of a protocol of 9 December 1895 (the December 1895 Protocol ) and a clarification of that protocol contained in a further protocol of 30 April 1896 (the 1896 Protocol). This exchange of notes was subsequently published in the British and Foreign State Papers. 110 4.5. On 29 April 1896, Chile sent a note to Bolivia stating: “as was expressed in our last conference, the failure by either of the Congresses to approve of the Protocol of 9 December or th e clarification we made to it would imply a disagreement upon a fundamental basis of the 106 Bolivia’s Memorial, para 340. 107 Bolivia’s Memorial, para 341, citing Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Merits, Judgment, I.C.J. Reports 2002, p 431, para 267. 108 Bolivia’s Memorial, para 343. 109 Bolivia’s Memorial, para 145. 110 (1895-1896) 88 British & Foreign State Papers 1332-1333. 33 4.7. Bolivia’s Congress entered a reservation to the 1896 Protocol on the 116 very point that had led to Chile insisting on that protocol, and Chile’s Congress declined to approve either of the two protocols to which the exchange of notes referred. 117 The approval of the two Congresses of the December 1895 Protocol and the clarification contained in the 1896 Protocol required for the two States to be bound by the 1895 Treaty was never forthcoming, and so they were never bound by it. 4.8. By their 1896 exchange of notes, Chile and Bolivia settled by agreement between them that the 1895 Treaty is “wholly without effect .” The matter of whether the 1895 Treaty confers any right on any part y is governed by the 1896 exchange of notes. Article VI of the Pact of Bogotá places outside the Court’s jurisdiction Bolivia’s attempt to unsettle the agreement reached between the two States in the exchange of notes of 1896. The 1895 Treaty being agreed to be wholly without effect, Bolivia and Chile then unconditionally settled the matters of territorial sovereignty and the character of Bolivia’s access to the sea in their 1904 Peace Treaty. 116 Bolivia’s Reservation to the 1896 Explanatory Protocol of the Protocol of 9 December 1895 between Bolivia and Chile, 7 November 1896, Annex 9. 117 See Letter from the Ministry of Foreign Affairs of Chile to Manuel Salinas, Extraordinary Envoy and Minister Plenipotentiary of Chile in Bolivia, 15 June 1897, Annex 25. For further context, see Letter from Juan Matta, Minister Plenipotentiary of Chile in Bolivia, to the Minister of Foreign Affairs of Chile, 18 June 1895, Annex 18; Chamber of Deputies of Chile, Extraordinary Secret Session No 33 of 16 January 1896, Annex 22; Chamber of Deputies of Chile, Ex traordinary Secret Session No 34 of 17 January 1896, Annex 23; Agreement between Bolivia and Chile to Postpone the Exchange of Instruments of Ratification for the Treaties signed on 18 May 1895 until 31 December 1895, signed at Santiago on 6 November 1895, Annex 19; Agreement between Bolivia and Chile to Postpone the Exchange of Instruments of Ratification for the Treaties signed on 18 May 1895 until 15 January 1896, signed at Santiago on 31 December 1895, Annex 20; Agreement between Bolivia and Chile to Postpone the Exchange of Instruments of Ratification for the Treaties signed on 18 May 1895 until 30 January 1896, signed at Santiago on 15 January 1896, Annex 21; and Agreement between Bolivia and Chile to Postpone the Exchange of Instruments of Ratificatio n for the Treaties signed on 18 May 1895 until 30 April 1896, signed at Santiago on 30 January 1896, Annex 24. See also Report of Eliodoro Villazón, Minister of Foreign Affairs of Bolivia, to the Bolivian Congress, 20 August 1900, Annex 28, pp 22-24. 36 354.7. Bolivia’s Congress entered a reservation to the 1896 Protocol on the 116 very point that had led to Chile insisting on that protocol, and Chile’s Congress declined to approve either of the two protocols to which the exchange of notes referred. 117 The approval of the two Congresses of the December 1895 Protocol and the clarification contained in the 1896 Protocol required for the two States to be bound by the 1895 Treaty was never forthcoming, and so they were never bound by it. 4.8. By their 1896 exchange of notes, Chile and Bolivia settled by agreement between them that the 1895 Treaty is “wholly without effect .” The matter of whether the 1895 Treaty confers any right on any part y is governed by the 1896 exchange of notes. Article VI of the Pact of Bogotá places outside the Court’s jurisdiction Bolivia’s attempt to unsettle the agreement reached between the two States in the exchange of notes of 1896. The 1895 Treaty being agreed to be wholly without effect, Bolivia and Chile then unconditionally settled the matters of territorial sovereignty and the character of Bolivia’s access to the sea in their 1904 Peace Treaty. 116 Bolivia’s Reservation to the 1896 Explanatory Protocol of the Protocol of 9 December 1895 between Bolivia and Chile, 7 November 1896, Annex 9. 117 See Letter from the Ministry of Foreign Affairs of Chile to Manuel Salinas, Extraordinary Envoy and Minister Plenipotentiary of Chile in Bolivia, 15 June 1897, Annex 25. For further context, see Letter from Juan Matta, Minister Plenipotentiary of Chile in Bolivia, to the Minister of Foreign Affairs of Chile, 18June 1895, Annex 18; Chamber of Deputies of Chile, Extraordinary Secret Session No 33 of 16 January 1896, Annex 22; Chamber of Deputies of Chile, Ex traordinary Secret Session No 34 of 17 January 1896, Annex 23; Agreement between Bolivia and Chile to Postpone the Exchange of Instruments of Ratification for the Treaties signed on 18 May 1895 until 31 December 1895, signed at Santiago on 6 November 1895, Annex 19; Agreement between Bolivia and Chile to Postpone the Exchange of Instruments of Ratification for the Treaties signed on 18 May 1895 until 15 January 1896, signed at Santiago on 31December 1895, Annex 20; Agreement between Bolivia and Chile to Postpone the Exchange of Instruments of Ratification for the Treaties signed on 18 May 1895 until 30 January 1896, signed at Santiago on 15 January 1896, Annex 21; and Agreement between Bolivia and Chile to Postpone the Exchange of Instruments of Ratificatio n for the Treaties signed on 18 May 1895 until 30 April 1896, signed at Santiago on 30January 1896, Annex 24. See also Report of Eliodoro Villazón, Minister of Foreign Affairs of Bolivia, to the Bolivian Congress, 20 August 1900, Annex 28, pp 22-24. 35 envisage “any innovation to the provisions of” the 1904 Peace Treaty, 120 and that in the 1950 exchange of notes Chile expressed its willingness “to study the matter of Bolivia’s sovereign access to the sea in direct negotiations with Bolivia” in conjunction with “safeguarding the legal situation established by” the 121 1904 Peace Treaty. 4.11. In the context of Bo livia’s claim for revision or nullity of the 1904 Peace Treaty, in participating in these exchanges Chile insisted that its willingness to study the matter of sovereign access to the sea for Bolivia in no way diminished the ongoing validity of the 1904 Treaty, which sett led and governs the matter s of territorial sovereignty and the character of Bolivia’s access to the sea. 4.12. They are matters concerning which Chile has by Article VI of the Pact of Bogotá not consented to the jurisdiction of the Court. This is made plain by another of the post -1904 documents on which Bolivia relies in its Memorial, namely, the Memorandum sent by Chile to Bolivia on 10 July 1961: “Chile has always been willing, along with preserving the legal situation established in the Treaty o f Peace of 1904, to examine in direct negotiations with Bolivia the possibility of satisfying the aspirations of the latter and the interests of Chile. Chile will always reject resort ing, on Bolivia’s end , to organizations which are not competent to resolv e a n issue settled by the Treaty, 120 Bolivia’s Memorial, para s 150 and 483, citing Note from Patricio Carvajal Prado, Minister of Foreign Affairs of Chile, to Guillermo Gutiérrez Vea Murguia, Extraordinary and Plenipotentiary Ambassador of Bolivia in Chile, No 686, 19 December 1975, Annex 52. 121 Bolivia’s Memorial, para 362, citing Note from Horac io Walker Larraín, Minister of Foreign Affairs o f Chile, to Alberto Ostria Gérrez, Ambassador of Bolivia to Chile, No 9, 20 June 1950, Annex 109 to Bolivia’s Memorial. 38 37envisage “any innovation to the provisions of” the 1904 Peace Treaty, 120 and that in the 1950 exchange of notes Chile expressed its willingness “to study the matter of Bolivia’s sovereign access to the sea in direct negotiations with Bolivia” in conjunction with “safeguarding the legal situation established by” the 121 1904 Peace Treaty. 4.11. In the context of Bo livia’s claim for revision or nullity of the 1904 Peace Treaty, in participating in these exchanges Chile insisted that its willingness to study the matter of sovereign access to the sea for Bolivia in no way diminished the ongoing validity of the 1904 Treaty, which sett led and governs the matter s of territorial sovereignty and the character of Bolivia’s access to the sea. 4.12. They are matters concerning which Chile has by Article VI of the Pact of Bogotá not consented to the jurisdiction of the Court. This is made plain by another of the post -1904 documents on which Bolivia relies in its Memorial, namely, the Memorandum sent by Chile to Bolivia on 10 July 1961: “Chile has always been willing, along with preserving the legal situation established in the Treaty o f Peace of 1904, to examine in direct negotiations with Bolivia the possibility of satisfying the aspirations of the latter and the interests of Chile. Chile will always reject resort ing, on Bolivia’s end , to organizations which are not competent to resolv e a n issue settled by the Treaty, 120 Bolivia’s Memorial, para s 150 and 483, citing Note from Patricio Carvajal Prado, Minister of Foreign Affairs of Chile, to Guillermo Gutiérrez Vea Murguia, Extraordinary and Plenipotentiary Ambassador of Bolivia in Chile, No 686, 19 December 1975, Annex 52. 121 Bolivia’s Memorial, para 362, citing Note from Horac io Walker Larraín, Minister of Foreign Affairs o f Chile, to Alberto Ostriaérrez, Ambassador of Bolivia to Chile, No 9, 20 June 1950, Annex 109 to Bolivia’s Memorial. 37 Figure 4 40 39Figure 4 third State without the prior agreement of Peru. That was agreed in a Supplementary Protocol to the Treaty of Lima, signed on the same Treaty a nd agreed to form “an integral part” of that Treaty. Supplementary Protocol provided in Article 1 that: “The Governments of Chile and Peru shall not, without previous agreement between them, cede to any third Power the whole or part of the territories conformity with the Treaty of this date, come under their respective sovereignty, nor shall they, in the absence of such an agreement, construct through those territories any new international railway lines.” Bolivia states in its Memorial that this Supplementary Protocol “resulted in the creation of a new condition (the agreement of Peru), compliance with which was out of the control of Bolivia and Chile. Peru’s consent would have to be obtained in the future whenever Chile proposed to grant Bo livia a sovereign access to the sea.”127 125 Supplementary Protocol to the Treaty Lima on 3 June 1929 (entry into force 28 July 1929), 94 League of Nations Treaty Series 401, Annex 11, Article 3. 126 Supplementary Protocol to the Treaty Lima on 3 June 1929 (entry into force 28 July 1929), 94 League of Nations Treaty Series 401, Annex 11, Article 1. 127 Bolivia’s Memorial, para 419. On Peru not having provid ed consent to a proposal that Chile made in the past, see Foreign Affairs of Chile, to Guillermo Gutiérrez Vea Murguia, Extraordinary and Plenipotentiary Ambassador of Bolivia in Chile, No Annex 52; Message of Bolivian President Banzer (19 December 1975) constitutes a globally acceptable basis for negotiations 21 December 1975, Annex 53; Communiqué from the Bolivian Ministry of Foreign Affairs on the Chara ña Negotiations, 5 January 1976, Annex 54; Official Communiqué of the Peruvian Ministry of Foreign Affairs, No 18 November 1976, Annex 155 to Bolivia’s Memorial ; Memorandum from the Ministry of Foreign Affairs of Chile in response to the proposal made 18 November 1976 by Peru, 26 November 1976, Annex 26 to Bolivia’s Memorial ; 39 4.16. Since any discontinuity in Chile’s territory would be obviously 128 unacceptable, sovereign access to the Pacific Ocean through the province of Arica is the object of Bolivia’s claim. 129 Article VI of the Pact of Bogotá excludes from the Court’s jurisdiction Bolivia’s request that the Court order Chile to negotiate with Bolivia to “reach an agreement granting Bolivia a fully 130 sovereign access to the Pacific Ocean” and “perform the said obligation … to 131 grant Bolivia a fully sovereign access to the Pacific Ocean” . This is not only because of the 1904 Peace Treaty between Bolivia and Chile, but also because of the terms of the settlement reached between Chile and Peru in their 1929 Treaty of Lima concerning sovereignty over the province of Arica. and Official Press Release of the Minister of Foreign Affairs of Bolivia, 17 March 1978, Annex 147 to Bolivia’s Memorial. 128 See for example Protocol to Seek an Arrangement to Put an End to the War of the Pacific, 13 February 1884, Annex 14; 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; Note from Luis Izquierdo, Minister of Foreign Affairs of Chile, to Ricardo Jaimes Freyre, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile, No 435, 22 February 1923, Annex 50 to Bolivia’s Memorial ; and Note from Patricio Carvajal Prado, Minister of Foreign Affairs of Chile, to Guillermo Gutiérrez Vea Murguia, Extraordinary and Plenipotentiary Ambassador of Bolivia in Chile, No 686, 19 December 1975, Annex 52, para 4(e). 129 See Bolivia’s Memorial, para 419. 130 Bolivia’s Memorial, para 500(a). 131 Bolivia’s Memorial, para 500(c). 42 414.16. Since any discontinuity in Chile’s territory would be obviously 128 unacceptable, sovereign access to the Pacific Ocean through the province of Arica is the object of Bolivia’s claim. 129 Article VI of the Pact of Bogotá excludes from the Court’s jurisdiction Bolivia’s request that the Court order Chile to negotiate with Bolivia to “reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean” 130 and “perform the said obligation … to grant Bolivia a fully sovereign access to the Pacific Ocean” . 131 This is not only because of the 1904 Peace Treaty between Bolivia and Chile, but also because of the terms of the settlement reached between Chile and Peru in their 1929 Treaty of Lima concerning sovereignty over the province of Arica. and Official Press Release of the Minister of Foreign Affairs of Bolivia, 17 March 1978, Annex 147 to Bolivia’s Memorial. 128 See for example Protocol to Seek an Arrangement to Put an End to the War of the Pacific, 13 February 1884, Annex 14; 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; Note from Luis Izquierdo, Minister of Foreign Affairs of Chile, to Ricardo Jaimes Freyre, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile, No 435, 22 February 1923, Annex 50 to Bolivia’s Memorial ; and Note from Patricio Carvajal Prado, Minister of Foreign Affairs of Chile, to Guillermo Gutiérrez Vea Murguia, Extraordinary and Plenipotentiary Ambassador of Bolivia in Chile, No 686, 19 December 1975, Annex 52, para 4(e). 129 See Bolivia’s Memorial, para 419. 130 Bolivia’s Memorial, para 500(a). 131 Bolivia’s Memorial, para 500(c). 41 5.2. For the reasons explained in the preceding Chapters, Chile respectfully requests the Court to ADJUDGE and DECLARE that: The claim brought by Bolivia against Chile is not within the jurisdiction of the Court. Felipe Bulnes S. Agent of the Republic of Chile 15 July 2014 43 445.2. For the reasons explained in the preceding Chapters, Chile respectfully requests the Court to ADJUDGE and DECLARE that: The claim brought by Bolivia against Chile is not within the jurisdiction of the Court. Felipe Bulnes S. Agent of the Republic of Chile 15 July 2014 4346 LIST OF ANNEXES (V OLUMES 1, 2AND 3) ANNEX T ITLE SOURCE PAGE N O N O VOLUME 1:C ORE DOCUMENTS ANNEXES 1 -13 Annex 1 Treaty of Peace of Ancón between Spanish transcription 71 Chile and Peru, signed at Lima on submitted by Bolivia as 20 October 1883 (the Treaty of Annex 97 to its Ancón) Memorial Spanish transcription, English translation Annex 2 Truce Pact between Bolivia and Original submitted by 77 Chile, signed at Valparaíso on Bolivia as Annex 108 to 4 April 1884 (the 1884 Truce Pact)its Memorial Spanish transcription, English translation, original in Spanish Annex 3 Treaty on Transfer of Territory Original submitted by 91 between Bolivia and Chile, signed Bolivia as Annex 98 to Santiago on 18 May 1895 (the 1895 its Memorial Treaty) Spanish transcription, English translation, original in Spanish Annex 4 Protocol of 9 December 1895 on theChile, Ministry of 105 scope of the obligations agreed upForeign Affairs, Report in the treaties of 18 May between of the Minister of Bolivia and Chile, signed at SucreForeign Affairs to the 9 December 1895 (the National Congress December 1895 Protocol) (1897), p 179 Original in Spanish, English translation 47 ANNEX T ITLE S OURCE PAGE NO N O Annex 5 Note from Heriberto Gutiérrez, Chile, Ministry of 109 Extraordinary Envoy and Minister Foreign Affairs, Report Plenipotentiary of Bolivia in Chile, to the Minister of Adolfo Guerrero, Minister of Foreign Foreign Affairs to the Affairs of Chile, No 117, National Congress 29 April 1896 (1897), p 182 Original in Spanish, English translation Annex 6 Note from Adolfo Guerrero, Minister Chile, Ministry of 113 of Foreign Affairs of Chile, to Foreign Affairs, Report Heriberto Gutiérrez, Extraordinary of the Minister of Envoy and Minister Plenipotentiary Foreign Affairs to the of Bolivia in Chile, No 521, National Congress 29 April 1896 (1897), p 183 Original in Spanish, English translation Annex 7 Note from Heriberto Gutiérrez, Chile, Ministry of 117 Extraordinary Envoy and Minister Foreign Affairs, Report Plenipotentiary of Bolivia in Chile, of the Minister of Adolfo Guerrero, Minister of Foreign Foreign Affairs to the Affairs of Chile, No 118, National Congress 30 April 1896 (1897), p 184 Original in Spanish, English translation Annex 8 Explanatory Protocol of the Protocol Original submitted by 121 of 9 December 1895 between Bolivia Bolivia as Annex 106 to and Chile, signed at Santiago on its Memorial 30 April 1896 (the 1896 Protocol) Spanish transcription, English translation, original in Spanish 48 ANNEX TITLE SOURCE PAGE N O N O Annex 5 Note from Heriberto Gutiérrez, Chile, Ministry of 109 Extraordinary Envoy and Minister Foreign Affairs, Report Plenipotentiary of Bolivia in Chile, to the Minister of Adolfo Guerrero, Minister of Foreign Foreign Affairs to the Affairs of Chile, No 117, National Congress 29 April 1896 (1897), p 182 Original in Spanish, English translation Annex 6 Note from Adolfo Guerrero, Minister Chile, Ministry of 113 of Foreign Affairs of Chile, to Foreign Affairs, Report Heriberto Gutiérrez, Extraordinary of the Minister of Envoy and Minister Plenipotentiary Foreign Affairs to the of Bolivia in Chile, No 521, National Congress 29 April 1896 (1897), p 183 Original in Spanish, English translation Annex 7 Note from Heriberto Gutiérrez, Chile, Ministry of 117 Extraordinary Envoy and Minister Foreign Affairs, Report Plenipotentiary of Bolivia in Chile, of the Minister of Adolfo Guerrero, Minister of Foreign Foreign Affairs to the Affairs of Chile, No 118, National Congress 30 April 1896 (1897), p 184 Original in Spanish, English translation Annex 8 Explanatory Protocol of the Protocol Original submitted by 121 of 9 December 1895 between Bolivia Bolivia as Annex 106 to and Chile, signed at Santiago on its Memorial 30 April 1896 (the 1896 Protocol) Spanish transcription, English translation, original in Spanish ANNEX T ITLE S OURCE PAGE NO NO Annex 13 American Treaty on Pacific 30 United Nations 231 Settlement, signed at Bogotá on Treaty Series 83 30 April 1948 (entry into force 6 May 1949) (the Pact of Bogotá) Original in English and Spanish VOLUME 2:A NNEXES 14-46 Annex 14 Protocol to Seek an Arrangement to Put Chile, Ministry of 265 an End to the War of the Pacific, Foreign Affairs, 13 February 1884 Treaties, Conventions Original in Spanish, English translationnd International Arrangements of Chile 1810-1976, Volume II (1977), pp 52-55 Annex 15 Treaty of Commerce between the Chile, Ministry of 275 Republics of Chile and Bolivia, signed Foreign Affairs, at Santiago on 18 May 1895 Report of the Minister of Foreign Affairs to Original in Spanish, English translation the National Congress (1897), p 170 Annex 16 Protocol on Debts between Bolivia and Bolivia, Ministry of 291 Chile, signed at Santiago on Foreign Affairs, 28 May 1895 Report of the Minister Original in Spanish, English translationf Foreign Affairs to the Ordinary Congress (1896), p 182 50 ANNEX T ITLE SOURCE PAGE N O NO Annex 13 American Treaty on Pacific 30 United Nations 231 Settlement, signed at Bogotá on Treaty Series 83 30 April 1948 (entry into force 6 May 1949) (the Pact of Bogotá) Original in English and Spanish V OLUME 2:A NNEXES 14-46 Annex 14 Protocol to Seek an Arrangement to Put Chile, Ministry of 265 an End to the War of the Pacific, Foreign Affairs, 13 February 1884 Treaties, Conventions Original in Spanish, English translationnd International Arrangements of Chile 1810-1976, Volume II (1977), pp 52-55 Annex 15 Treaty of Commerce between the Chile, Ministry of 275 Republics of Chile and Bolivia, signed Foreign Affairs, at Santiago on 18 May 1895 Report of the Minister of Foreign Affairs to Original in Spanish, English translation the National Congress (1897), p 170 Annex 16 Protocol on Debts between Bolivia and Bolivia, Ministry of 291 Chile, signed at Santiago on Foreign Affairs, 28 May 1895 Report of the Minister Original in Spanish, English translationf Foreign Affairs to the Ordinary Congress (1896), p 182 ANNEX T ITLE S OURCE PAGE NO N O Annex 21 Agreement between Bolivia and Chile Bolivia, Ministry of 349 to Postpone the Exchange of Foreign Affairs, Instruments of Ratification for the Treaties Archive, Treaties signed on 18 May 1895 until No 16 30 January 1896, signed at Santiago on 15 January 1896 Spanish transcription, English translation, original in Spanish Annex 22 Chamber of Deputies of Chile, Chile, Records of the 353 Extraordinary Secret Session No33 of Chamber of Deputies 16 January 1896 (extract) (1896) Original in Spanish, English translation Annex 23 Chamber of Deputies of Chile, Chile, Records of the 375 Extraordinary Secret Session No34 of Chamber of Deputies 17 January 1896 (extract) (1896) Original in Spanish, English translation Annex 24 Agreement between Bolivia and Chile Bolivia, Ministry of 407 to Postpone the Exchange of Foreign Affairs, Instruments of Ratification for the Treaties Archive, Treaties signed on 18 May 1895 until No 17 30 April 1896, signed at Santiago on 30 January 1896 Spanish transcription, English translation, original in Spanish Annex 25 Letter from the Ministry of Foreign Archives of the 411 Affairs of Chile to Manuel Salinas, Ministry of Foreign Extraordinary Envoy and Minister Affairs of Chile Plenipotentiary of Chile in Bolivia, 15 June 1897 (extract) Spanish transcription, English translation, original in Spanish 52 ANNEX TITLE SOURCE PAGE N O N O Annex 21 Agreement between Bolivia and Chile Bolivia, Ministry of 349 to Postpone the Exchange of Foreign Affairs, Instruments of Ratification for the Treaties Archive, Treaties signed on 18 May 1895 until No 16 30 January 1896, signed at Santiago on 15 January 1896 Spanish transcription, English translation, original in Spanish Annex 22 Chamber of Deputies of Chile, Chile, Records of the 353 Extraordinary Secret Session No33 of Chamber of Deputies 16 January 1896 (extract) (1896) Original in Spanish, English translation Annex 23 Chamber of Deputies of Chile, Chile, Records of the 375 Extraordinary Secret Session No34 of Chamber of Deputies 17 January 1896 (extract) (1896) Original in Spanish, English translation Annex 24 Agreement between Bolivia and Chile Bolivia, Ministry of 407 to Postpone the Exchange of Foreign Affairs, Instruments of Ratification for the Treaties Archive, Treaties signed on 18 May 1895 until No 17 30 April 1896, signed at Santiago on 30 January 1896 Spanish transcription, English translation, original in Spanish Annex 25 Letter from the Ministry of Foreign Archives of the 411 Affairs of Chile to Manuel Salinas, Ministry of Foreign Extraordinary Envoy and Minister Affairs of Chile Plenipotentiary of Chile in Bolivia, 15 June 1897 (extract) Spanish transcription, English translation, original in Spanish A NNEX T ITLE SOURCE PAGE NO N O Annex 31 Act of Exchange of Instruments of Bolivia, Ministry of 537 Ratification for the 1904 Treaty of Foreign Affairs, Peace and Amity between Bolivia and Collection of Treaties Chile, 10 March 1905 in Force in the Original in Spanish, English translationepublic of Bolivia, Volume IV, p 405 Annex 32 Protocol that Designates an Arbitrator Chile, Ministry of 541 between Bolivia and Chile, signed at Foreign Affairs, Santiago on 16 April 1907 Treaties, Conventions Original in Spanish, English translationnd International Arrangements of Chile 1810-1976, Volume II (1977), p 132 545 Annex 33 Bolivia, Opening Session of Congress, Bolivia, Congress of 6 August 1910 (La Paz, 1911) (extracts) 1910-1911, Original in Spanish, English translationapporteur of the Honourable National Congress (La Paz, 1911), pp 1-10, 51 Annex 34 Convention on Trade between Chile Chile, Ministry of 559 and Bolivia, signed at Santiago on Foreign Affairs, 6 August 1912 Treaties, Conventions and International Original in Spanish, English translatioArrangements of Chile 1810-1976, Volume II (1977), p 145 Annex 35 Act Fixing the Date of Transfer of the Chile, Ministry of 569 Bolivian Section of the Railroad to theForeign Affairs, Republic of Bolivia, signed at Arica onTreaties, Conventions 13 May 1913 and International Original in Spanish, English translationrrangements of Chile 1810-1976, Volume II (1977), p 150 54 ANNEX T ITLE SOURCE PAGE N O NO Annex 31 Act of Exchange of Instruments of Bolivia, Ministry of 537 Ratification for the 1904 Treaty of Foreign Affairs, Peace and Amity between Bolivia and Collection of Treaties Chile, 10 March 1905 in Force in the Original in Spanish, English translationepublic of Bolivia, Volume IV, p 405 Annex 32 Protocol that Designates an Arbitrator Chile, Ministry of 541 between Bolivia and Chile, signed at Foreign Affairs, Santiago on 16 April 1907 Treaties, Conventions Original in Spanish, English translationnd International Arrangements of Chile 1810-1976, Volume II (1977), p 132 545 Annex 33 Bolivia, Opening Session of Congress, Bolivia, Congress of 6 August 1910 (La Paz, 1911) (extracts) 1910-1911, Original in Spanish, English translationapporteur of the Honourable National Congress (La Paz, 1911), pp 1-10, 51 Annex 34 Convention on Trade between Chile Chile, Ministry of 559 and Bolivia, signed at Santiago on Foreign Affairs, 6 August 1912 Treaties, Conventions and International Original in Spanish, English translatioArrangements of Chile 1810-1976, Volume II (1977), p 145 Annex 35 Act Fixing the Date of Transfer of the Chile, Ministry of 569 Bolivian Section of the Railroad to theForeign Affairs, Republic of Bolivia, signed at Arica onTreaties, Conventions 13 May 1913 and International Original in Spanish, English translationrrangements of Chile 1810-1976, Volume II (1977), p 150 ANNEX T ITLE S OURCE PAGE NO N O Annex 41 Note from Ricardo Jaimes Freyre, Bolivia, Ministry of 603 Extraordinary Envoy and Minister Foreign Affairs, Plenipotentiary of Bolivia in Chile, toReport of the Minister Luis Izquierdo, Minister of Foreign of Foreign Affairs to Affairs of Chile, 15 February 1923 the Ordinary Original in Spanish, English translationongress (1923), pp 122-123 Annex 42 Protocol Regarding the Transfer of the Chile, Ministry of 607 Bolivian Section of the Railroad from Foreign Affairs, Arica to La Paz between Bolivia and Treaties, Conventions Chile, signed at Santiago on and International 2 February 1928 Arrangements of Chile 1810-1976, Original in Spanish, English translatioVolume II (1977), p 155 Annex 43 Act of Transfer of the Railroad from Chile, Ministry of 611 Arica to the Plateau of La Paz – Foreign Affairs, Bolivian Section between Bolivia and Treaties, Conventions Chile, signed at Viacha on and International 13 May 1928 Arrangements of Original in Spanish, English translationhile 1810-1976, Volume II (1977), p 157 Annex 44 Convention on Transit between Bolivia Chile, Ministry of 615 and Chile, signed at Santiago on Foreign Affairs, 16 August 1937 Treaties, Conventions Original in Spanish, English translationnd International Arrangements of Chile 1810-1976, Volume II (1977), p 174 56 ANNEX TITLE SOURCE PAGE N O N O Annex 41 Note from Ricardo Jaimes Freyre, Bolivia, Ministry of 603 Extraordinary Envoy and Minister Foreign Affairs, Plenipotentiary of Bolivia in Chile, toReport of the Minister Luis Izquierdo, Minister of Foreign of Foreign Affairs to Affairs of Chile, 15 February 1923 the Ordinary Original in Spanish, English translationongress (1923), pp 122-123 Annex 42 Protocol Regarding the Transfer of the Chile, Ministry of 607 Bolivian Section of the Railroad from Foreign Affairs, Arica to La Paz between Bolivia and Treaties, Conventions Chile, signed at Santiago on and International 2 February 1928 Arrangements of Chile 1810-1976, Original in Spanish, English translatioVolume II (1977), p 155 Annex 43 Act of Transfer of the Railroad from Chile, Ministry of 611 Arica to the Plateau of La Paz – Foreign Affairs, Bolivian Section between Bolivia and Treaties, Conventions Chile, signed at Viacha on and International 13 May 1928 Arrangements of Original in Spanish, English translationhile 1810-1976, Volume II (1977), p 157 Annex 44 Convention on Transit between Bolivia Chile, Ministry of 615 and Chile, signed at Santiago on Foreign Affairs, 16 August 1937 Treaties, Conventions Original in Spanish, English translationnd International Arrangements of Chile 1810-1976, Volume II (1977), p 174 ANNEX TITLE SOURCE P AGE NO N O (F) Letter from the General Manager of Terminal Puerto 673 Terminal Puerto Arica S.A., Arica S.A. 10 January 2014 Original in Spanish, English translation 677 (G) Letter from Terminal Puerto Arica S.A. Terminal Puerto to the General Manager of Empresa Arica S.A. Portuaria Arica, 30 April 2014 (extract) Original in Spanish, English translation Annex 46 Declaration of Arica by the Ministers oChile, Ministry of 683 Foreign Affairs of Bolivia and Chile, Foreign Affairs, signed at Arica on 25 January 1953 Treaties, (extract) Conventions and Original in Spanish, English translationnternational Arrangements of Chile 1810-1976, Volume II (1977), p 222 V OLUME 3:A NNEXES 47-77 Annex 47 Agreements between Bolivia and Chile and Chilean Decrees 687 relating to the Sica Sica – Arica Oil Pipeline, 1957-1992 (A) Agreement on the Sica Sica – Chile, Ministry of Foreign 687 Arica Oil Pipeline of Affairs, Treaties, Conventions Yacimientos Petroliferos and International Fiscales Bolivianos, TransitingArrangements of Chile 1810- Through Chilean Territory 1976, Volume II (1977), between Bolivia and Chile, pp 240-245 Santiago, 24 April 1957 (extracts) Original in Spanish, English translation 58 ANNEX TITLE SOURCE P AGE N O N O (F) Letter from the General Manager of Terminal Puerto 673 Terminal Puerto Arica S.A., Arica S.A. 10 January 2014 Original in Spanish, English translation 677 (G) Letter from Terminal Puerto Arica S.A. Terminal Puerto to the General Manager of Empresa Arica S.A. Portuaria Arica, 30 April 2014 (extract) Original in Spanish, English translation Annex 46 Declaration of Arica by the Ministers ofChile, Ministry of 683 Foreign Affairs of Bolivia and Chile, Foreign Affairs, signed at Arica on 25 January 1953 Treaties, (extract) Conventions and Original in Spanish, English translationInternational Arrangements of Chile 1810-1976, Volume II (1977), p 222 VOLUME 3:A NNEXES 47-77 Annex 47 Agreements between Bolivia and Chile and Chilean Decrees 687 relating to the Sica Sica – Arica Oil Pipeline, 1957-1992 (A) Agreement on the Sica Sica – Chile, Ministry of Foreign 687 Arica Oil Pipeline of Affairs, Treaties, Conventions Yacimientos Petroliferos and International Fiscales Bolivianos, Transiting Arrangements of Chile 1810- Through Chilean Territory 1976, Volume II (1977), between Bolivia and Chile, pp 240-245 Santiago, 24 April 1957 (extracts) Original in Spanish, English translation ANNEX TITLE SOURCE P AGE NO N O (F) Amendment to the Agreement Official Journal of the 715 on the Sica Sica – Arica Oil Republic of Chile, No 29.745, Pipeline of Yacimientos 28 April 1977, pp 2-3 Petroliferos Fiscales Bolivianos, Transiting Through Chilean Territory between Bolivia and Chile, Santiago, 4 December 1974 (extracts) Original in Spanish, English translation (G) Agreement entered into for Chile, Ministry of Foreign 721 Yacimientos Petroliferos Affairs, Report of the Fiscales Bolivianos to perform Minister of Foreign Affairs to works on the Sica Sica –Arica the National Congress Oil Pipeline between Bolivia (1992), pp 327-329 and Chile, signed at Santiago on 5 November 1992 (extracts) Original in Spanish, English translation Annex 48 Memorandum from the Original submitted by Bolivia 729 Embassy of Chile in Bolivia to as Annex 24 to its Memorial the Bolivian Ministry of Foreign Affairs, 10 July 1961 Original in Spanish, English translation Annex 49 Chilean National Congress National Congress of Chile 733 Chamber Debate, Background of Decree No 526 – American Treaty on Pacific Settlement (1967) (extracts) Original in Spanish, English translation 60 ANNEX TITLE SOURCE P AGE N O N O (F) Amendment to the Agreement Official Journal of the 715 on the Sica Sica – Arica Oil Republic of Chile, No 29.745, Pipeline of Yacimientos 28 April 1977, pp 2-3 Petroliferos Fiscales Bolivianos, Transiting Through Chilean Territory between Bolivia and Chile, Santiago, 4 December 1974 (extracts) Original in Spanish, English translation (G) Agreement entered into for Chile, Ministry of Foreign 721 Yacimientos Petroliferos Affairs, Report of the Fiscales Bolivianos to perform Minister of Foreign Affairs to works on the Sica Sica –Arica the National Congress Oil Pipeline between Bolivia (1992), pp 327-329 and Chile, signed at Santiago on 5 November 1992 (extracts) Original in Spanish, English translation Annex 48 Memorandum from the Original submitted by Bolivia 729 Embassy of Chile in Bolivia to as Annex 24 to its Memorial the Bolivian Ministry of Foreign Affairs, 10 July 1961 Original in Spanish, English translation Annex 49 Chilean National Congress National Congress of Chile 733 Chamber Debate, Background of Decree No 526 – American Treaty on Pacific Settlement (1967) (extracts) Original in Spanish, English translation ANNEX T ITLE S OURCE PAGE NO NO Annex 53 Message of Bolivian President Reproduced in LF Guachalla, 765 Banzer announcing that Chile’s Bolivia-Chile: The Maritime Reply (19 December 1975) Negotiation, 1975-1978 constitutes a globally acceptable1982), pp 85-86 basis for negotiations, 21 December 1975 Original in Spanish, English translation Annex 54 Communiqué from the Bolivian Reproduced in RP Lizón, 771 Ministry of Foreign Affairs on History of the Charaña the Charaña Negotiations, Negotiations (2011), pp 137- 5 January 1976 138 Original in Spanish, English translation Annex 55 Statement by Mr Schweitzer, Organization of American 777 Minister of Foreign Affairs of States, General Assembly, Chile, at the Fourth Session of Thirteenth Ordinary Session, the General Committee of the 1983, Records and General Assembly of the Documents, Volume II, Part I, Organization of American OEA/Ser.P/XIII.02 (1984), States, 18 November 1983 pp 348, 368-370 (extract) Original in Spanish, English translation 62 ANNEX T ITLE SOURCE PAGE N O NO Annex 53 Message of Bolivian President Reproduced in LF Guachalla, 765 Banzer announcing that Chile’s Bolivia-Chile: The Maritime Reply (19 December 1975) Negotiation, 1975-1978 constitutes a globally acceptable1982), pp 85-86 basis for negotiations, 21 December 1975 Original in Spanish, English translation Annex 54 Communiqué from the Bolivian Reproduced in RP Lizón, 771 Ministry of Foreign Affairs on History of the Charaña the Charaña Negotiations, Negotiations (2011), pp 137- 5 January 1976 138 Original in Spanish, English translation Annex 55 Statement by Mr Schweitzer, Organization of American 777 Minister of Foreign Affairs of States, General Assembly, Chile, at the Fourth Session of Thirteenth Ordinary Session, the General Committee of the 1983, Records and General Assembly of the Documents, Volume II, Part I, Organization of American OEA/Ser.P/XIII.02 (1984), States, 18 November 1983 pp 348, 368-370 (extract) Original in Spanish, English translation ANNEX TITLE SOURCE P AGE NO N O Annex 59 Statement by Mr Iturralde, Organization of American 837 Minister of Foreign Affairs of States, General Assembly, Bolivia, at the Fourth Session ofneteenth Ordinary Session, the General Committee of the 1989, Records and Organization of American Documents, Volume II, Part I, States, 16 November 1989 OEA/Ser.P/XIX.O2 (1991), (extracts) pp 373, 405-407, 411-413 Original in Spanish, English translation 853 Annex 60 Bolivian Supreme Decree Official Gazette of the No 24434 of 12 December 1996 Plurinational State of Bolivia (extracts) Original in Spanish, English translation Annex 61 Ministry of Foreign Affairs of the Presidency of the Republic of Bolivia, May 2004) (extracts) Original in English Annex 62 Political Constitution of the Original in Spanish, English translation 64 ANNEX TITLE SOURCE P AGE N O N O Annex 59 Statement by Mr Iturralde, Organization of American 837 Minister of Foreign Affairs of States, General Assembly, Bolivia, at the Fourth Session ofineteenth Ordinary Session, the General Committee of the 1989, Records and Organization of American Documents, Volume II, Part I, States, 16 November 1989 OEA/Ser.P/XIX.O2 (1991), (extracts) pp 373, 405-407, 411-413 Original in Spanish, English translation 853 Annex 60 Bolivian Supreme Decree Official Gazette of the No 24434 of 12 December 1996 Plurinational State of Bolivia (extracts) Original in Spanish, English translation Annex 61 Ministry of Foreign Affairs of the Presidency of the Republic of Bolivia, May 2004) (extracts) Original in English Annex 62 Political Constitution of the Original in Spanish, English translation ANNEX T ITLE S OURCE PAGE NO NO Annex 67 Service Manual for the Port of Original in Spanish, English translation Annex 68 Letter from the Chilean Archives of the Ministry of 975 Ministry of Foreign Affairs to Foreign Affairs of Chile the General Secretariat of the Organization of American States, No 389, 12 December 2011 Original in Spanish, English translation Annex 69 Empresa Portuaria Arica, Port Original in Spanish, English translation 985 Annex 70 Empresa Portuaria Iquique, Port (extracts) Original in Spanish, English translation Annex 71 Bolivian Law on Normative Bolivia, Senate, Act 991 Application – Statement of Implementing Regulations: Reasons, 6 February 2013 Explanatory Memorandum, (extracts) 6 February 2013 Original in Spanish, English translation 66 ANNEX T ITLE SOURCE PAGE N O NO Annex 67 Service Manual for the Port of Original in Spanish, English translation Annex 68 Letter from the Chilean Archives of the Ministry of 975 Ministry of Foreign Affairs to Foreign Affairs of Chile the General Secretariat of the Organization of American States, No 389, 12 December 2011 Original in Spanish, English translation Annex 69 Empresa Portuaria Arica, Port Original in Spanish, English translation 985 Annex 70 Empresa Portuaria Iquique, Port (extracts) Original in Spanish, English translation Annex 71 Bolivian Law on Normative Bolivia, Senate, Act 991 Application – Statement of Implementing Regulations: Reasons, 6 February 2013 Explanatory Memorandum, (extracts) 6 February 2013 Original in Spanish, English translation A NNEX TITLE SOURCE PAGE N O N O Annex 76 Official Bolivian Press Release,ttp://www3.abi.bo/nucleo/n1095 “Morales calls on Obama to oticias.php?i=2&j=20140630 show Chile how treaties may be112624> revised and territories returned”, Bolivian Information Agency, 30 June 2014 Original in Spanish, English translation Annex 77 Organization of American Ratifications, A-42: American Treaty on Pacific Settlement Original in English 68CORE DOCUMENTS ANNEXES 1-13 69 Annex 1 Treaty of Peace of Ancón between Chile and Peru, signed at Lima on 20 October 1883 (the Treaty of Ancón) (Spanish transcription, English translation) Spanish transcription submitted by Bolivia as Annex 97 to its Memorial 70 Annex 1 Treaty of Peace of Ancón between Chile and Peru, signed at Lima on 20 October 1883 (the Treaty of Ancón) (Spanish transcription, English translation) Spanish transcription submitted by Bolivia as Annex 97 to its Memorial 71Annex 1 72 Annex 1 TREATY OF PEACE OF ANCÓN (Lima, 20 October 1883) The Republic of Chile on the one part and the Republic of Peru on the other, being desirous of reinstating relations of friendship between both countries, have resolved upon celebrating a treaty of peace and friendship, and for the purpose have named and deputed as their plenipotentiaries the following: His excellency the President of the Republic of Chile appoints Don Jovino Novoa; and his Excellency the President of the Republic of Peru appoints Don José Antonio Lavalle, Minister of F oreign Affairs, and Don Mariano Castro Zaldívar; who, after communicating their credentials and having found them to be in proper and due form, have agreed to the following articles: Article 1 -Relations of peace and friendship between the Republics of Chile and Peru are re-established. Article 2 - The Republic of Peru cedes to the Republic of Chile in perpetuity and unconditionally the territory of the littoral province of Tarapac á, the boundaries of which are: on the north, 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. Article 3 - The territory of the Provinces of Tacna and Arica, bounded on the north by the river Sama from its source in the Cordilleras bordering upon Bolivia to its mouth at the sea, on the south by the ravine and river Camarones on the east by the Republic of Bolivia and on the west by the Pacific Ocean, shall continue in the possession of Chile and subject to Chilean laws and authorities for a period of ten years, from the date of the ratification of the present Treaty of Peace. After the expiration of that term, a plebiscite will decide by popular vote whether the territories of the above -mentioned provinces shall remain definitively under the dominion and sovereignty of Chile or continue to form part of Peruvian territory . Either of the two countries to which the Provinces of Tacna and Arica may remain annexed, will pay to the other ten million pesos in Chilean silver coins or Peruvian soles of the same standard and weight. A special protocol, which shall be considered to be an integral part of the present treaty, will prescribe the manner in which the plebiscite is to be carried out, and the terms and time for the payment of the ten million [pesos] by the nation which may remain the owner of the provinces of Tacna and Arica. Article 4 - In compliance with the stipulations of the S upreme Decree of 9 February, 1882, by which the Government of Chile ordered the sale of one million tons of guano, the net proceeds of which, after deducting the expenses and other disbursements, as referred to in Article 13 of said decree, to be divided in equal parts between the Government of Chile and those creditors of Peru whose 73Annex 1 74 Annex 1 claims appear to be guaranteed by lien on the guano. After the sale of the million tons of guano has been effected, referred to in the previous paragraph, the Government of Chile will continue paying over to the Peruvian creditors 50 per cent of the net proceeds of guano, as stipulate d in the above-mentioned Article 13, until the extinction of the debt or the exhaustion of the deposits and current exploitation . The proceeds of deposits or beds that may be hereafter discovered in the territories that have been ceded will belong exclusively to the Government of Chile. Article 5 - If, in the territories that remain in possession of Peru there should be discovered deposits or beds of guano, in order to avoid competition in the sale of the article by the Governments of Chile and Peru, the two Governments, by mutual agreement, will first determine the proportion and conditions to which each of them binds itself in the disposal of the said fertilizer. The stipulations in the preceding paragraph will also be binding in regard to the existing guano already discovered and which may remain over in the Lobos Islands when the time comes for delivering up these islands to the Government of Peru, in conformity with the terms of the ninth article of the present treaty. Article 6 - The Peruvian creditors, to whom may be awarded the proceeds stipulated in Article 4, must submit themselves, in proving their titles and in other procedures, to the regulations stated in the Supreme Decree of February 9, 1882. Article 7 - The obligation which the Government of Chi le accepts, in accordance with Article 4, to deliver 50 per cent of the net proceeds of guano from the deposits currently exploited, will be carried out whether the exploitation be done in accordance with the existing contract for the sale of one million tons or by virtue of any other contract, or on account of the Government of Chile. Article 8 - Beyond the stipulations contained in the preceding article s, and the obligations that the Chilean Government has voluntarily accepted in the Supreme Decree of 28 March 1882, which regulated the nitrate property in Tarapacá, the said Government of Chile will recognize no debts whatsoever, that may affect the new territories acquired by virtue of this treaty, whatever may be their nature and origin. Article 9 - The Lobos Islands will remain under the administration of the Government of Chile until the completion of the excavation from existing deposits of the million tons of guano, in conformity with articles 4 and 7. After this they will be returned to Peru. Article 10 - The Government of Chile declares that it will cede to Peru, to commence from the date of the constitutional ratification and exchange of the present treaty, the fifty per centum pertaining to Chile from the proceeds of the 75Annex 1 guano of the Lobos Islands. Article 11 - Pending a spe cial treaty to be entered into, commercial relations between both countries shall be maintained on the same footing as before 5 April 1879. Article 12 - Indemnities due by Peru to Chileans, who may have suffered damages on account of the war, will be adjudged by an arbitral tribunal or mixed international commission to be appointed immediately after the ratification of the present treaty, in the manner established by conventions recently settled between Chile and the Governments of England, France, and Italy. Article 13 - The contracting Governments recognize and accept the validity of all administrative and judicial acts during the occupation of Peru arising from the martial jurisdiction exercised by the Government of Chile. Article 14 - The present treaty to be ratified and the ratifications exchanged in the city of Lima, so soon as possible , during a period not exceeding sixty days, to be reckoned from this date. In testimony whereof the respective plenipotentiaries have signed this in duplicate and affixed their private seals. Done in Lima, 20 October 1883 (Signed) Jovino Novoa. (Signed) A. De Lavalle - (Signed) Mariano Castro Zaldívar 76 Annex 2 Truce Pact between Bolivia and Chile, signed at Valparaíso on 4 April 1884 (the 1884 Truce Pact) (Spanish transcription, English translation, original in Spanish) Original submitted by Bolivia as Annex 108 to its Memorial 77Annex 2 78 Annex 2 Truce Pact between Bolivia and Chile While waiting for the opportunity to conclude a definitive treaty of peace between the Republics of Bolivia and Chile, both countries, duly represented, the former by Mr Belisario Salinas and Mr Belisario Boeto, and the latter by the Minister of Foreign Affairs, Mr Aniceto Vergara Albano, have agreed to conclude a truce pact, in accordance with the following terms: 1 - The Republics of Chile and Bolivia conclude an indefinite truce. As a consequence, they declare the end of the state of war, to which it will not be possible to return without the prior notification by one of the contracting parties to the other, at least one year in advance, of its intention to trigger hostilities again. In that case, the notification s hall be made directly or via a diplomatic representative of a friendly nation. 2 - The Republic of Chile, throughout the validity of this truce, shall continue to govern, in accordance with the political and administrative regime as defined by Chilean law, the territories from the parallel 23 to the mouth of the Loa River in the Pacific; these territories being limited to the east by a straight line starting at Sapalegui, from the intersection with the demarcation separating them from the Argentina Republ ic, to the L licancaur volcano. From this point, it shall continue straight to the summit of the dormant Cabana volcano; from here, another straight line shall continue to the water source, which is found further south in the lake Ascotan. From there, anoth er line, crossing the said lake, ends at the Ollagua volcano. From this point, another straight line continues to the Tua volcano, and then continues to the existing demarcation line between the department of Tarapacá and Bolivia. In the event of difficu lties, both parties shall appoint a commission of engineers, which will determine the boundary to be delimited following the points determined herein. 3 - The property seized in Bolivia from Chilean nationals by government decrees or measures emanating from civil and military authorities, will be immediately returned to their owners or representatives appointed by them, with sufficient powers. They will also return the profit that the Government of Bolivia has received from such property, which must be justified with appropriate documents. The damage caused by the aforementioned measures, or by the destruction of property that Chilean citizens may have sustained, will be compensated through a process that stakeholders will engage in with the Government of Bolivia. 4 - If an agreement between the Government of Bolivia and the stakeholders regarding the amount and compensation for damages, or the form of payment is not reached, they shall submit the dissenting points to arbitration by a commission, composed of one member appointed by Chile, another by Bolivia and a third who will be nominated in Chile, by mutual agreement between neutral representatives accredited in this country. This appointment will be made in the shortest time possible. 5 - Commercial relations between Bolivia and Chile shall be re-established. From now on, the Chilean natural products and those produced with the latter, shall enter Bolivia free of any customs duty. The Bolivian products of the same nature and produced in the same way, shall 79Annex 2 80 Annex 2 enjoy the same exemption in Chile, whenever imported or exported through Chilean ports. The commercial exemptions which, respectively, the Chilean and Bolivian manufactured products will enjoy, as well as the enumeration of these products, shall be dealt with in a special protocol. The nationalized goods, which are introduced via the port of Arica, shall be considered as foreign goods during the entrance process. The foreign goods, which are introduced in Bolivia via Antofagasta, shall benefit from free transit, without prejudice to any measures the Government of Chile may take to avoid contraband. As long as there is no agreement to the contrary, Chile and Bolivia shall enjoy the advantages and commercial exemptions that one or the other country may grant to the most favoured nation. 6 - In the port of Arica, the entrance rights shall be charged in accordance with Chilean customs duties, as applicable to foreign goods intended to be consumed in Bolivia, without the possibility of applying further tax inside the country. The revenue of these customs duties shall be divided in the following way: twenty five percent shall be used for the customs services and the portion corresponding to Chile for the despatch of goods for consumption by the territories of Tacna and Arica; and seventy five percent for Bolivia. For the time being, the seventy five percent shall be divided in the following way: forty percent shall be retained by the Chilean administration for the payment of the amounts resulting from the indebtedness of Bolivia in relation to the liquidations carried out, pursuant to the third clause of this agreement, and to satisfy the outstanding part of the loan to Bolivia raised in Chile in 1867; the rest shall be handed over to the Bolivian Government in current currency or as promissory notes. The loan shall be considered, in its liquidation and payment, under the same conditions as those who suffered damages in the war. The Bolivian Government, when it deems it appropriate, shall be entitled to have access to the accounts of the customs offices of Arica for its customs agents. Upon payment of the indemnifications referred to in Article 3, with the subsequent ending of the withholding of the forty percent aforementioned, Bolivia shall be able to es tablish its own internal customs offices in the portion of its territory which it considers appropriate. In that case, foreign goods shall benefit from free transit through Arica. 7 - The acts of the subordinate authorities of either country, which tend to alter the situation created by the present Truce Pact, especially regarding the boundaries of the territories Chile continues to occupy, shall be repressed and punished by the respective Governments, ex officio or following the request of one of the parties. 8 - Given that the objective of the contracting parties, when concluding this Truce Pact, was to prepare and facilitate the establishment of a strong and stable peace between the two Republics, they reciprocally commit to pursue the negotiations in that respect. This pact shall be ratified by the Government of Bolivia within a period of forty days, and the ratifications shall be exchanged in Santiago throughout the forthcoming month of June. 81Annex 2 82 Annex 2 In witness hereof the Plenipotentiaries of Bolivia and the Minister of Foreign Affairs of Chile, respectively duly empowered in that respect, signed, in duplicate, the present pact of truce, in Valparaiso, 4 April 1884. Belisario Salinas. Belisario Boeto. A. Vergara Albano. 83Annex 2 84Annex 2 85Annex 2 86Annex 2 87Annex 2 88Annex 2 89Annex 2 90 Annex 3 Treaty on Transfer of Territory between Bolivia and Chile, signed at Santiago on 18 May 1895 (the 1895 Treaty) (Spanish transcription, English translation,original in Spanish) Original submitted by Bolivia as Annex 98 to its Memorial 91Annex 3 92 Annex 3 18 May 1895 Treaty on Transfer of Territory Jorje Montt, President of the Republic of Chile. Whereas, the Republic of Chile and the Republic of Bolivia have negotiated and signed, through their respective and duly authorized Plenipotentiaries, in Santiago, a Treaty on the Transfer of Territory, the wording of which is as follows: The Republic of Chile and the Republic of Bolivia, for the purpose of strengthening the bonds of friendship which unite both countries and in agreement that a higher need and the future development and commercial prosperity of Bolivia require its free and natural access to the sea, have decided to conclude a special Treaty on the transfer of territory and to that end, have appointed and authorized their Plenipotentiaries, namely: His Excellency the President of the Republic of Chile has appointed Mr Luis Barros Borgoño, Minister of Foreign Affairs of Chile , and his Excellency the President of Bolivia has appointed Mr Heriberto Gutiérrez, Extraordinary Envoy and Plenipotentiary Minister of Bolivia in Chile. Who, after having exchanged their full p owers and found them in order, have agreed on the following terms: I. If, as a consequence of the plebiscite due to take place pursuant to the Treaty of Ancón or through direct arrangements, the Republic of Chile acquires dominion and permanent sovereignty over the territories of Tacna and Arica, it undertakes to transfer th em to the Republic of Bolivia in the same form and covering the same extent in which it acquires them, without prejudice to the stipulations of Article II. The Republic of Bolivia shall pay by way of compensation for this transfer of territory the sum of five million silver pesos ( $5,000,000), of twenty-five grams weight and nine tenths fino, with forty percent (40%) of the gross income of the Customs of Arica being specially dedicatedfor this payment. II. If the cession contemplated in the previous art icle takes effect, it is understood that the Republic of Chile will move its northern border from Camarones to the Vítor cove, from the sea up to the boundary that currently separates that region from the Republic of Bolivia. 93Annex 3 94 Annex 3 III. So as to accomplish that set forth in the preceding Articles, the Government of Chile commits itself to engaging all its efforts, either jointly with Bolivia or on its own, to obtain the definitive title over the territories of Tacna and Arica. IV. If the Republic of Chile were not able to obtain, through the plebiscite or through direct arrangements, definitive sovereignty over the territory in which the cities of Tacna and Arica are found, it commits itself to cede to Bolivia the Vítor cove up to the Camarones ravine, or an other analogous one, as well as the amount of five million silver pesos (5,000,000) of twenty five grams weight and nine tenths fino. V. A special arrangement shall determine the precise boundaries of the territory to be ceded under the present Treaty. VI. If the cession is made in keeping with Article IV, and should deposits of saltpeter be found or discovered in the ceded area in the future, they may absolutely not be exploited or transferred until after such time as all the existing deposits of saltpeter in the territory of the Republic of Chile have been exhausted, unless a special agreement between both governments providesotherwise. VII. This Treaty, which shall be signed at the same time as the Peace and Trade treaties agreed between the same Republics, shall be kept secret and may not be published except under an agreement between the signatory parties. VIII. Ratifications of this Treaty shall be exchanged within six months and the exchange shall take place in the city of Santiago. In witness whereof , the Minister of Foreign Affairs of Chile and the Extraordinary Envoy and Minister Plenipotentiary of Bolivia hereby sign and seal, with their respective se als, duplicate copies of this special Treaty in Santiago, on 18 May 1895. (Signed) – Luis Barros Borgoño (Signed) – Heriberto Gutiérrez 95Annex 3 96 Annex 3 Hence and after the National Congress approved the present Treaty on Transfers of Territory, in exercise of the powers conferred by Part 19, Article 73 of the Political Constitution, I have accepted, approved and ratified it as law of the Republic and committed to its observance for national honour. In witness whereof I sign this Ratification, sealed with the seal of Arms of the Republic and endorsed by the Minister of State in the Department of Foreign Affairs, in Santiago, 30 April 1896. (Signed) Jorge Montt (Signed) Adolfo Gutierrez 97Annex 3 98Annex 3 99Annex 3 100Annex 3 101Annex 3 102Annex 3 103104 Annex 4 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) (Original in Spanish, English translation) Chile, Ministry of Foreign Affairs, Report of the Minister of Foreign Affairs to the National Congress (1897), p 179 105Annex 4 106 Annex 4 Protocol of 9 December 1895 on the scope of the obligations agreed upon in the treaties of 18 May Having met in the Ministry of Foreign Affairs, His Excellency the Extraordinary Envoy and Minister Plenipotentiary of the Republic of Chile, Mr Juan G. Matta, and the Minister of Foreign Affairs and Worship, Mr Emeterio Cano, duly authorized by their respective Governments and for the purpose of setting the scope and obligations established under the Treaties of 18 May and the Supplementary Protocol of 28 May have agreed: 1. That both High Contracting Parties make the Treaties of Peace and Transfer of Territories an indivisible whole containing reciprocal obligations and which are integral to one another. 2. That the definitive cession of the Littoral of Bolivia, in favour of Chile, will have no effect, if Chile does not give Bolivia, within a period of two years, the port on the Pacific Coast to which the Treaty ofTransfer makes reference. 3. That the Government of Chile is bound to make use of all legal measures found in the Pact of Ancón, or by means of direct negotiation, so as to acquire the port and territories of Arica and Tacna, with the unavoidable purpose of ceding them to Bolivia to the extent determined by theTreaty of Transfer. 107Annex 4 4. That if, despite all of its endeavours, Chile cannot obtain the said port and territories and has to comply with the other provisions of the Pact, giving Vítor or an analogous inlet, the said obligation undertaken by Chile will not be regarded as fulfilled, until it cedes a port and zone that fully satisfies the current and future needs of Bolivian trade and industry. 5. That Bolivia does not recognize any debts or responsibilities of any kind, arising from the territories that it transfers to Chile. In perfect agreement with the aforementioned points, signed and sealed this Protocol in two copies in Sucre, 9 December 1895 .–UAN G ONZALO M ATTA .– EMETERIO C ANO . 108 Annex 5 Note from Heriberto Gutiérrez, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile, to Adolfo Guerrero, Minister of Foreign Affairs of Chile, No 117, 29 April 1896 (Original in Spanish, English translation) Chile, Ministry of Foreign Affairs, Report of the Minister of Foreign Affairs to the National Congress (1897), p 182 109Annex 5 110 Annex 5 LEGATION OF B OLIVIA IN CHILE Santiago, 29 April 1896. No. 117. SIR: I have the honor to address myself to your Excellency in order to request that you will not insist on maintaining the idea, brought up in our conferences, of consigning in the Protocol drawn up by us as a preliminary to the exchange of the ratifications of the Treaties of May the following declaration : “Without interrupting, in any case , the continuity of Chilean territory. ” The continuity of the territory is understood to be preserved by the stipulations, in the conditions defined by Article IV of the Protocol of the 9th December, 1895, that Vítor or another analogous roadstead shall be delivered up by Chile to Bolivia in the extreme case of not being able to obtain Tacna and Arica. I consider unnecessary, therefore, the declaration referred to in this dispatch , and I trust your Excellency will be able to appreciateit in the same manner. It is my honor to take this opportunity to renew to Your Excellency my respectful consideration. H. GUTIERREZ. To Señor Adolfo Guerrero, Minister of Foreign Affairs of Chile. 111112 Annex 6 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 (Original in Spanish, English translation) Chile, Ministry of Foreign Affairs, Report of the Minister of Foreign Affairs to the National Congress (1897), p 183 113Annex 6 114 Annex 6 M INISTRY OF FOREIGN A FFAIRS OFC HILE Santiago, 29 April 1896. No. 521. Dear MINISTER: I have the honor to acknow ledge receipt of your Excel lency’s dispatch number 117 of this date, in which you request that the insertion will not be insisted on of the phrase relative to the non -interruption of the continuity of Chilean territory in the Agreement now being drawn up for the definition of the meaning of Article IV of thProtocol of 9 December 1895. Your Excellency considers such declaration unnecessary because the continuity of the territory is preserved by the stipulation that it shall be ítor or another analogous roadstead that Chile shall be obliged to deliver overBolivia in case the acquisition of Tacna and Arica shall not be obtained. In view of the grounds adduced by your Excellency in demonstrating that it will be unnecessary to insert the phrase in the terms referred to, it gives me pleasure to accede to the suggestion made to me by you. It is my duty, however, to signify to your Excellency that, as was expressed in our last conference, the failure by either of the Congresses to approve of the Protocol of 9 December or the clarification we made to it would impl y a disagreement upon a fundamental basis of the May agreements which would make them wholly without effect. I renew to Your Excellency the assurances of my highest consideration. ADOLFO GUERRERO. To Señor Heriberto Gutiérrez, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile 115116 Annex 7 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 (Original in Spanish, English translation) Chile, Ministry of Foreign Affairs, Report of the Minister of Foreign Affairs to the National Congress (1897), p 184 117Annex 7 118 Annex 7 LEGATION OF BOLIVIA IN CHILE Santiago, 30 April 1896. No. 118. Dear MINISTER: Your Excellency has been good enough to accept in your de spatch of yesterday the proposal that I had the honor to make in my despatch of the same date relative to the continuity of Chilean territory. In finally disposing of that declaration, I am to announce to your Excellency my perfect agreement with the contents of the second part of your despatch above mentioned, in order that it shall remain established that the failure by either of the Congresses to approve the Protocol of 9 December or the clarification we made to itwould imply a disagreement upon a funda mental basis of the May agreements which would make them wholly without effect. I renew to Your Excellency the expression of my highest consideration. H. GUTIERREZ. To Señor Adolfo Guerrero, Minister of Foreign Affairs of Chile.– Delivered by hand. 119120 Annex 8 Explanatory Protocol of the Protocol of 9 December 1895 between Bolivia and Chile, signed at Santiago on 30 April 1896 (the 1896 Protocol) (Spanish transcription, English translation,original in Spanish) Original submitted by Bolivia as Annex 106 to its Memorial 121Annex 8 122 Annex 8 No 18 30 April 1896 Having met at the Ministry of Foreign Affairs of Chile, the Extraordinary Envoy and Minister Plenipotentiary of Bolivia, Mr Heriberto Guti érrez, and the Minister of Foreign Affairs of Chile , Adolfo Guerrero, after taking into consideration the difficulties that have emerged in exchanging the instruments of ratification of the Treaties and Supplementary Protocols signed respectively in this capital on 18 and 28 May 1895 by the Extraordinary Envoy and Minister Plenipotentiary of Bolivia, Heriberto Guti érrez, and the Foreign Minister of Chile , Luis Barros Borgoño, given that the Congress of Bolivia has still not approved the P rotocol of 28 May respecting the liquidation of debts and that the Government and Congress of Chile has not approved the Protocol signed in Sucre on 9 December 1895 between the Minister of Foreign Affairs of Bolivia, Emeterio Cano, and the Extraordinary Envoy and Minister Plenipotentiary of Chile before that Government, Juan G. Matta, motivated with the desire to remove those difficulties and to establish an agreement over certain points, have agreed to the following: 1 The Government of Chile approves, on its part, the Protocol of 9 December 1895, which ratifies its principal commitment to transfer to Bolivia the territories of Tacna and Arica, whose 4th clause, in reference to Article 4 of the Treaty on Transfer of 28 May , establishes the transfer of Vítor or a nother analogous inlet with port conditions sufficient to fulfill the needs of trade, namely, anchorage for merchant vessels, with an area where a dock and customs buildings can be built and with facilities for the establishment of a population, that by means of a railway to Bolivia may meet the fiscal and economic needs of the country. nd 2 The Government of Bolivia will submit to c ongressional approval the Protocol relative to the liquidation of debts , signed in Santiago on 28 May 1895, as well as the clarification referred to in the previous clause, setting the meaning and scope of the 4th clause of the Protocol of 9 December of that same year. rd 3 The Government of Chile will request c ongressional approval of the aforementioned Protocol of 9 December with the previous clarification, as soon as the Legislature of Bolivia has approved the latter. 123Annex 8 124 Annex 8 4 The exchange of ratifications of the Treaties of 28 May 1895 relative to the liquidation of debts and of 9 December 1985 on the transfer of territory, as clarified by this agreement, shall be carried out in this city within sixty days from the approval of the Chilean Congress of these two Protocols. In witness whereof, this Protocol is signed in two copies, in Santiago on 30 April 1896. (Signature) Adolfo Guerrero (Signature) Heriberto Gutiérrez Severo F. Alonso, Constitutional President of the Republic of Bolivia Whereas the Congress of Bolivia has approved the Protocol concluded in Santiago between the Governments of Bolivia and Chile, through their respective Plenipotentiaries on 30 April 1896, setting the scope of the 4th clause of the Protocol of 9 December 1895 signed in Sucre, I confer upon Mr Heriberto Gutiérrez full powers to exchange instruments of ratification of the said Protocol, as soon it receives the approval of the Chilean Legislature. Done in Sucre on 13 November 1896 (Signature) Severo F. Alonso (Signature) [Illegible] Gomes 125Annex 8 126Annex 8 127Annex 8 128Annex 8 129130 Annex 9 Bolivia’s Reservation to the 1896 Explanatory Protocol of the Protocol of 9 December 1895 between Bolivia and Chile, 7 November 1896 (Spanish transcription, English translation,original in Spanish) Archives of the Ministry of Foreign Affairs of Chile 131Annex 9 El Congreso Nacional Atendiendo a la iniciativa que contiene el Mensag e Especial del Poder Ejecutivo del 4 de este mes, relativo a las negociaciones internacionales con la Republica de Chile. Declaro: Que en el caso extremo, previsto por la cláusula 4 del Protocolo de 9 de Diciembre de 1895 , corresponde al Poder Legislativo, en el ejercicio de sus atribuciones constitucionales, el pronunciarse sobre si el puerto y zona que ofrezen Chile en sustitución del puerto y territorios de Arica y Tacna, sirve a no las condiciones establecidas en las estipulacionescelebradas entre las dos Republicas. La presente declaración legislativa, será puesta en conocimiento del Gobierno de Chile a tiempo de efectuarse el canje de los tratados y protocolos complementarios. Comuníquese al Poder Ejecutivo para los fines constitucionales. Sala a sesiones del Congreso Nacional –Sucre, 7 de Noviembre de 1896. Rafael Pena, José Santos Machicado, Manuel O Jofré, hijo S.S. = Trifon Moleano, AS = Abel Iterralds, S.S. Cúmplase con arreglo a la constitución. Casa de Gobierno en Sucre, a los diez días del mes de Noviembre de mil ochocientos noventa y seis años. Severo F Alonso El Ministro de Relaciones Esteriores a Manuel M Gomes El conforme El oficial Mayor de Relaciones Esteriores Dario Gutiérrez Es copia fiel (firmado) Secretario 132 Annex 9 The National Congress In view of the initiative contained in the Special Message from the Executive Branch, dated the 4th of this month, regarding the international negotiations with the Republic of Chile. Declares: That in the extreme case provided for by Clause 4 of the Protocol of 9 December 1895, it is for the Legislative Branch, in the exercise of its constitutional authority, to decide whether the Port and the zone offered by Chile as a replacement for the Port and territory of Arica and Tacna, meet the conditions established in the provisions agreed between the two Republics. This legislative declaration will be reported to the Chilean Government when the treaties and supplementary protocols are exchanged. Notice hereof shall be given to the Executive Branch for constitutional purposes. Meeting room of the National Congress - 7 November 1896. Rafael Peña, José Santos Machicado , Manuel O Jofré Jr. S.S.= Trifón Meleano, AS = Abel Iturralde, S.S. Done in compliance with the Constitution. House of Government in Sucre, on the 10th day of the month of November, eighteen hundred ninety-six. Severo F Alonso The Minister of Foreign Affairs Manuel Ma. Gomes True copy The Senior Official of Foreign Relations Dario Gutiérrez Certified true copy [signature] Secretary 133Annex 9 134Annex 9 135136 Annex 10 Treaty of Peace and Amity between Bolivia and Chile, signed at Santiago on 20 October 1904 (the 1904 Peace Treaty) (Spanish transcription, English translation,original in Spanish) Original submitted by Bolivia as Annex 100 to its Memorial 137Annex 10 138 Annex 10 In pursuance of the purpose expressed in Article 8 of the Truce Pact of April 4, 1884, the Republic of Bolivia and the Republic of Chile have agreed to celebrate a treaty of peace and friendship, and to that end have named and constituted as their plenipotentiaries, respectively: His Excellency the President of the Republic of Bolivia, Alberto Gutié rrez, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile and His Excellency the President of the Republic of Chile, Emilio Bello Codesido, Minister of Foreign Affairs; Who, having exchanged their Full Powers and having found them in good and due form, have agreed on the following: Article I. The relations of peace and friend ship between the Republic of Bolivia and the Republic of Chile are re -established, the regime established by the Truce Pact being thereby terminated. Article II. By the present T reaty, 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 to Chile. The North and South boundary between Chile and Bolivia shall be that here indicated: From the highest point of Zapaleri Hill (1) in a straight line to the highest point of the ridge jutting out toward the south from Guayaques Hill, in latitude (approximate) 22°54’; hence a straight line to the pass of the Caj ón (3); next, the watershed of the ridge which runs north, including the peak s of Juriques Hill (4), Licancábur Volcano (5), Sairecabur Hill (6), Curiquinca Hill (7), and Putana or Jorjencal Volcano (8). From this point it will follow one of the ridges to Pajonal Hill (9) and in a straight line to the south peak of the Tocorpuri Hills (10), whence it will follow the watershed of the Panizo Ridge (11) and the Tatio Range (12). It will keep on toward the N orth by the watershed of the Linzor Ridge (13) and the Silaguala Hill (14); from their northern peak (Apagado Volcano) (15) it shall go by a ridge to the little hill called Silala (16) and thence in a straight line toInacaliri or Cajón Hill (17). From this point it shall go in a straight line to the peak which appears in the middle of the group of the Inca or Barrancane Hills (18), and, again taking the watershed, shall 139Annex 10 140 Annex 10 keep on northward by the ridge of Ascotá n or Jardín Hill (19); from the peak of this hill it shall go in a straight line to the peak of Araral Hill (20) and by straight line again to the peak of Ollagüe Volcano (21). Hence in a straight line to the highest peak of Chipapa Hill (22), descending toward the West by a line of small hills until it reaches the peak of Cosca Hill (23). From this point it shall be the watershed of the ridge which joins it to Alconcha Hill (24), and thence it shall go to Olca Volcano (25) by the divide. From this volcano it shall continue by the range of the Millunu Hill (26), the Laguna Hill (27), Irruputuncu Volcano (28), Bofedal Hill (29), Chela Hill (30), and, after a high knot of hills, shall reach the Milliri (31), and then the Huallcani (32). Hence it shall go to Caiti Hill (33) and shall follow the divide to Napa Hill (34). From the peak of this hill it shall go in a straight line to a point (35) situated ten kilo- metres to the south of the eastern peak of Huailla Hill (36), whence it shall go in a straight line to the hill named; doubling immediately toward the East, it shall keep on by the range of Laguna (37), Correjidor (38), and Huaillaputuncu (39) hills to the easternmost peak of Sillillica (40), and thence by the ridge that runs northwest to the peak of Piga Hill (41). From this hill it shall go in a straight line to the highest point of the Three Little Hills (42), and thence in a straight l ine to Challacollo Hill (43) and the narrow part of Sacaya Meadow (44) , fronting Vilacollo. From Sacaya the boundary shall run in straight lines to the peak of Cueva Colorada(45) and Santaile (46), and thence it will keep on to the northwest by Irruputuncu Hill (47) and Patalini Hill (48) . From this peak the boundary shall go in a straight line to Chiarcollo Hill (49), cutting the Cancosa River (50), and thence also in a straight line to the peak of Pintapintani Hill (51), and from this hill by the range of the Quiuri (52), Pumiri (53), and Panantalla (54) hills. From the peak of Panantalla it shall go in a straight line to Tolapacheta (55), midway between Chapi and Rinconada, and from this point in a straight li ne to the pass of Huialla (56); thence it shall pass on by the peak s of Lacataya (57) and Salitral (58) hills. It shall turn toward the N orth, going in a straight line to Tapacollo Hill (59), in the Salar of Coipasa, and in another straight line to the la ndmark of Quellaga (60), whence it shall continue by straight line to Prieto Hill (61) to the north of Pisiga meadow, Toldo Hill (62), the landmarks of Sicaya (63), and those of Chapillicsa (64), Cabarray (65), Three Crosses (66), Jamachuma (67), Quimsacha ta (68), and Chinchillani (69), and, cutting the river Todos Santos (70), shall go to the landmarks of Payacollo (71) and Carahuano (72), to Canasa Hill (73) and Captain Hill (74). 141Annex 10 142 Annex 10 It shall then continue toward the North by the divide of the range of Lliscaya (75) and Quilhuiri (76) hills, and from the peak of the latter in a straight line toPuquintica Hill (77). To the North of this last point Bolivia and Chile agree to establish between them the following frontier: From Puquintica Hill (77) it shall go northward by the range that runs to Macaya; shall cut the river Lauca (78) at this point and then run in a straight line to Chiliri Hill (79). It shall keep on to the North by the divide of the waters of the Japu Pass (80), the Quimsachata Hills (81), the Tambo Quemado Pass (82), the Quisiquisini Hills (83), the Huacollo Pass (84), the peaks of the Payachata Hills (85, 86), and Larancahua Hill (87) to the Casiri Pass (88). From this point it shall go to the Condoriri Hills (89), which divide the waters of the Sajama and Achuta rivers from those of the Caquena River, and shall continue by the ridge which, branching off from those hills, goes to Carbiri Hill (90 ), passing by the Achuta Pass (91), from Carbiri Hill it shall run down its slope to the narrows of the river Caquena or Cosapilla (92), above the inn of the latter name. Then it shall follow the bed of the river Caquena or Cosapilla to the point (93) where it is joined by the apparent outlet of the meadows of the Cosapilla farm, and from this point it shall go in a straight line to Visviri Hill (mojon) (94). From this hill it shall go in a straight line to the sanctuary (95) on the north side of the Maure, northwest of the junction of this river with another which comes into it from the North, two kilom eters northwest of the Maure Inn; i t shall keep on toward the northwest by the range which runs to the landmark of Chipe or Tolacollo Hill (96), the last point of the boundary. Within the six months following the r atification of this treaty the H igh Contracting Parties shall name a commission of engineers to proceed to mark out the boundary line, the points of which, enumerated in this article, are indicated in the appended plan, which shall form an integral part of the present treaty, in conformity w ith the procedure and in the periods which shall be agreed upon by a special agreement between the two Foreign Ministries. If there should arise among the engineers engaged in marking the boundary any disagreement which could not be arranged by the direct action of the two governments, it shall be submitted to the decision of His Majesty the Emperor of Germany, in conformity with the provisions of article 12 of this treaty. 143Annex 10 144 Annex 10 The H igh Contracting Parties shall recognize the private rights of nationals and foreigners, if legally acquired, in the territor ies which by virtue of this T reaty may remain under the sovereignty of either of the countries. Article III. With the object of strengthening the political and commercial relations between the two Republics the H igh Contracting Parties agree to unite the port of Arica with the Plateau of La Paz by a railroad for the construction of which the Government of Chile shall contract at its own expense, within the term of one year from the ratification of this treaty. Ownership of the Bolivian section of this railway shall be transferred to Bolivia at the expiration of the term of fifteen years from the day on which it is entirely completed. With the same object , Chile undertakes to pay the obligations which Bolivia may incur by guarantees up to five per cent on the capital which may be invested in the following railroads, the construction of which shall begin within the term of thirty years: Uyuni to Potosí; Oruro to La Paz; Oruro, via Cochabamba, to Santa Cruz; from La Paz to the Beni region, and from Potosí, via Sucre and Lagunillas, to Santa Cruz. This obligation shall not occasion for Chile an expense greater than one hundred thousand pounds sterling annually nor in excess of one million, seven hundred thousand pounds sterling, which is fixed as a maximum of what Chile will devote to the construction of the Bolivian section of the railway from Arica to the Plateau of La Paz and for the guarantees referred to, and it shall be null and void at the conclusion of the thirty years indicated above. The construction of the Bolivian section from Arica to the Plateau of La Paz , as well as that of the other railroads which may be constructed with the Chilean Government’s guarantee, shall be a matter of special agreements between the two Governments, and provision shall be made in them for affording facilities for commercial interchange between the two countries. The value of the section mentioned shall be determined by the amount of the bid which shall be accepted for the contract for its construction. Article IV. The Government of Chile binds itself to deliver to the Government of Bolivia the sum of three hundred thousand pounds sterling in cash, in two payments of one hundred and fifty thousand pounds sterling, the first payment to be made six months after the exchange of ratifications of this treaty and the second one year after the first. 145Annex 10 146 Annex 10 Article V. The Republic of Chile devotes to the final cancellation of the credits recognized by Bolivia, for indemnities in favour of the mining companies of Huanchaca, Oruro, and Corocoro, and for the balance of the loan raised in Chile in the year 1867, the sum of four million, five hundred thousand pesos gold of 18 pence, payable, at the option of its government, in cash or in bonds of its foreign debt valued at their price in London on the day on which the payment is made, and the sum of two million pesos in gold of 18 pence, in the same form as the preceding, for the cancellation of the credits arising from the following obligations of Bolivia: t he bonds issued, i.e.; the loan raised for the construction of the railroad between Mejillones and Caracoles according to the contract of 10 July 1872; the debt recognized to Pedro López Gama, represented by Messrs. Alsop and Company, surrogates of the former’s rights; the credits recognized to John G. Meiggs, represented by Edward Squire, arising from the contract entered into 20 March 1876, for renting nitrate fields in Toco; and, finally, the sum recognized to Juan Garday. Article VI. The Republic of Chile recognizes in favour of Bolivia in perpetuity the fullest and most unrestricted right of commercial transit in its territory and its Pacific ports. Both Governments will agree, in special acts, upon the method suitable for securing, without prejudice to their respective fiscal interests, the object indicated above. Article VII. The Republic of Bolivia shall have the right to establish customs agencies in the ports which it may designate for its commerce. For the present it indicates as such ports for its commerce those of Antofagastaand Arica. The agencies shall take care that the goods in transit shall go directly from the pier to the railroad station and shall be loaded and transported to the Bolivian Custom-houses in wagons closed and sealed and with freight schedules which shall indicate the number of packages, their weight and mark, number and content , which shall be exchanged for receipts. Article VIII. Until the H igh Contracting Parties shall agree to celebrate a special Treaty of commerce, the commercial interchange between the two Republics shall beregulated 147Annex 10 148 Annex 10 by rules of the strictest equality with those applied to other nations, and in no case shall any product of either of the two P arties be placed under conditions inferior to those of a third party. All the natural and manufactured products of Chile, therefore, as well as those of Bolivia, shall be subject, on their entry into and t heir consumption in the other Country, to the payment of the taxes in force for those of other nations, and the favours, exemptions, and privileges which either of the two Parties shall grant to a Third may be demanded on equal conditions by the other. The High Contracting Parties agree to accord, reciprocally, on all railroad lines which cross their respective territories, the same tariffs to the national products of the other country that they accord to the most favoured nation. Article IX. The natural and manufactured products of Chile and the nationalized goods, in order to be taken into Bolivia, shall be dispatched with the proper consular invoice and with the freight schedules spoken of in a rticle seven. Cattle of all kinds and natural products of little value may be introduced without any formality and dispatched with the simple manifest written in the Customs-houses. Article X. The natural and manufactured products of Bolivia in transit to foreign countries shall be exported with sc hedules issued by the Bolivian C ustom-houses or by the officers charged with this duty. These schedules shall be deliveredto the customs agents in the respective ports and with no other formality, once the products are embarked for foreign markets. In the port of Arica imp orts shall be made with the same formalities as in that of Antofagasta, and the transit schedules in this port shall be passed with the same requirements as those indicated in the previous articles. Article XI. Bolivia being unable to put this system into practice immediately, the present system established in Antofagasta shall continue to be followed for the term of one year , which shall be extended to the port of Arica, a proper term being fixed for putting into effect the tariff of Bolivia, until it is possible to regulate the trade in the manner before mentioned. Article XII. All questions which may arise with reference to the interpretation or execution of the present Treaty shall be submitted to the arbitration of His Majesty the Emperor of Germany. The ratifications of this Treaty shall be exchanged within the term of six months, and the exchange shall take place in the city of La Paz. In witness whereof the 149Annex 10 150 Annex 10 Minister of Foreign Relations of Chile and the Extraordinary Envoy and Minister Plenipotentiary of Bolivia have signed and sealed with their respective seals , in duplicate, the present T reaty of P eace and A mity, in the cityof Santiago, on the twentiethof October of the year one thousand nine hundred and four. (A. GUTIERREZ .) (EMILIO B ELLO C.) La Paz, 11 November 1904 The Cabinet Council approves the aforementioned Treaty of Peace and Amity signed in the city of Santiago on 20 October 1904, between Mr Alberto Gutierrez, Extraordinary Envoy and Minister Plenipotentiary of Bolivia in Chile , and Mr Emilio Bello Codesido, Minister of Foreign Affairs of said Republic. Ismael Montes Claudio Pinilla Anibal Capriles Weice Castillo Juan M. Saracho La Paz, 14 November 1904 To the mixed commission of Foreign Affairs of both Chambers PO of Mr P Jss Carrasco 151Annex 10 152Annex 10 153Annex 10 154Annex 10 155Annex 10 156Annex 10 157Annex 10 158Annex 10 159Annex 10 160Annex 10 161Annex 10 162Annex 10 163Annex 10 164Annex 10 165Annex 10 166Annex 10 167Annex 10 168Annex 10 169170 Annex 11 Treaty between Chile and Peru for the Settlement of the Dispute Regarding Tacna and Arica (the Treaty of Lima) and the Supplementary Protocol to the Treaty of Lima, both signed at Lima on 3 June 1929 (entry into force 28 July 1929) (Original in Spanish, French and English translations) 94 League of Nations Treaty Series 401 171Annex 11 172Annex 11 173Annex 11 174Annex 11 175Annex 11 176Annex 11 177Annex 11 178Annex 11 179Annex 11 180Annex 11 181182 Annex 12 Travaux préparatoires to the Pact of Bogotá (extracts) (Original in Spanish, English translation) Ninth International Conference of American States, held at Bogotá from 30 March – 2 May 1948, Records and Documents (1953), Vol I, pp 231-235, 254-259; Vol II, pp 528-538; and Vol IV, pp 69-70, 79-85, 132-136 183Annex 12 184 Annex 12 … PERU PROPOSED AMENDMENT TO THE PROJECT OF THE INTER-AMERICAN PEACE SYSTEM … Article . . . The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral or judicial decisions , or which are governed by international agreements in force on the date of the conclusion of the present Treaty. … 185Annex 12 186Annex 12 187Annex 12 … … REPORT OF THE WORKING GROUP CREATED TO STUDY THE GENERAL RULES OF THE INTER-AMERICAN PEACE SYSTEM … 188…Annex 12 190 Annex 12 The Delegation of Peru presented the following additional articles to be placed at the end of the first part of the [Project of the] Inter-American Peace System: … “Article … The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral award or 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.” … 191Annex 12 192 Annex 12 MINUTES OF THE THIRD SESSION OF THE THIRD COMMITTEE (Typewritten version) DATE : Tuesday, 27 April 1948 TIME: 3:00 p.m. to 7:00 p.m. PLACE: Valencia Room, National Capitol Building PRESIDENT: Juan Bautista de Lavalle (Peru) VICE PRESIDEN: Homero Viteri Lafronte (Ecuador) RAPPORTEUR : Dardo Regules (Uruguay) SECRETARY : Antonio José Uribe Portocarrero PRESENT: Marco Antonio Datrea (Honduras); José Ramón Gutiérrez (Chile); Ernesto Dihigo (Cuba); Jack B. Tate (United States of America); Joaquín Balaguer (Dominican Republic); Eduardo Montas (Bolivia) ; Víctor Andrés Belaúnde (Peru); Guillermo Sevilla Sacasa (Nicaragua); Ernesto Enríquez (M exico); Benjamín Peralta (Ecuador); Arthur Ferreira dos Santos (Brazil); Pascual La Rosa (Argentina); Jorge Soto del Corral (Colombia); and Charles G. Fenwick (Pan-American Union). … 193Annex 12 194Annex 12 195Annex 12 196 Annex 12 The President: If none of the delegates wish es to take the floor, we will take a vote on the text of the article in the form in which it was read aloud. It has been approved. The text of the next article says: The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral award or 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. I submit the article to a vote. Mr. Viteri Lafronte (Ecuador): I would like to ask Dr. Belaúnde if it would be possible to find a formula to temper the categorical nature of the article in question. The general principle is all well and good; but even with respect to matters already settled, new disputes can arise in the course of compliance with the very same international agreements that settled them. I would ask Dr. Belaúnde to take this idea and draw up a formula that is not so general and absolute in nature. I have no particular desire to propose a formula or specific wording. The only thing I want (and I think it would be possible to achieve this) is for the article not to be so general and absolute. Then, let us assume that the matter involved one of the cases provided for: the case of an agreement in force, or an arbitral award or a court ruling. In the development, I mean, and not in the case of interpretation, because as we already know, interpretation would be up to the same court or the same arbitrator. Ultimately, as the compliance unfolds, matters or aspects may arise that could be completely resolved by resorting to one of those means. The President: The Delegate of Peru has the floor. Mr. Belaúnde ( Peru): I am going to answer the concern or the question that the Delegate of Ecuador appears to have. It seems to me that the article must establish the principle that the procedures do not apply to matters settled by agreement of the parties, by arbitral awards or by the judgment of a court. It is obvious that if there are difficulties in the process, surely the same arbitrator, in accordance with the General Arbitration Treaty, can resolve it. The doubt is completely removed, given the fact that the article goes on to say “or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty”; because those “treaties in force” generally indicate how to resolve the issues. On the other hand, it would be very dangerous to tone down the wording. First of all, it would be quite difficult to tone it down; second, it would open the door to provoking a dispute, which is precisely 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 disputes is precisely one of the ways to threaten peace. 197 If there is an arbitral award, surely if there is any difficulty the arbitrator canAnnex 12 198provoking a dispute, which is precisely 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 disputes is precisely one of the ways to threaten peace. Annex 12 If there is an arbitral award, surely if there is any difficulty the arbitrator can resolve it, or the agreement to arbitrate will have inc luded a means of resolving difficulties in enforcing the award. There is a treaty: surely that treaty will have its procedures. That is why the last part is so important: “ governed by agreements or treaties in force on the date of the conclusion of the present Treaty.” On the other hand, if the wording is toned down and it says, “ but any future event that could occur in the performance... ”, then, instead of working for peace, we are inviting litigation; and inviting litigation is an invitation to disrupt the grounds for peace. Therefore, with all due respect to the Delegate of Ecuador, I sincerely believe that the last part closes the road, because generally an arbitration treaty provides for difficulties with the enforcement of the judgment, and a treaty that settles a problem generally establishes a procedure whereby those difficulties can be settled. Mr. Ferreira dos Santos (Brazil): Mr. President, please read the article aloud. Mr. Belaúnde (Peru): Yes, I will be pleased to read it to you: The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral award or 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. Therefore, everything is ready, because there is generally a procedure for matters governed by the treaties in force; and that procedure, as we have agreed, must trump any other. The President: The Delegate of Chile has the floor. Mr. Gutiérrez (Chile): The delegation of my country fully supports the comments by the Delegate of Peru, and is prepared to vote in favor of the article in the form in which he has proposed it. The President: The Delegate of Cuba has the floor. Mr. Dihigo (Cuba): Mr. President, I would like to ask Dr. Belaúnde a question. The first part of the article says: “The aforesaid procedures, furthermore, may not be applied to matters already settled... ” If they have already been settled, what is the problem? That is what I want to know. Mr. Belaúnde (Peru): The danger is that the matter could be re -opened, or that there could be an attempt to re-open it. This is the defense of res judicata. The President: I am going to call for a vote on the text of the articl e in the following form: The aforesaid procedures, furthermore, may not be applied to matters already settled by arrangement between the parties, or by arbitral award or 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. Would everyone who is in favor of the text of the article please vote? Approved. … 199Annex 12 200 TEXT OF THE INTER-AMERICAN SYSTEM OF PACIFIC SETTLEMENT Annex 12 … … TEXT OF THE INTER-AMERICAN SYSTEM OF PACIFIC SETTLEMENT … Article V [VI] The afo resaid procedures, furthermore, may nto be applied matters already 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. … Article V [VI] The afo resaid procedures, furthermore, may nto be applied matters already 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. … This document contains the provisional text o-American System of Pacific Settlement (Pact of Bogota), in the form that it was approved by the Third Committee, to be submitted to the Committee-ordination and the Drafting Committee. … This document contains the provisional text o-American System of Pacific Settlement (Pact of Bogota), in the form that it was approved by the Third Committee, to be submitted to the Committee-ordination and the DraftingAnnex 12 202Annex 12 203Annex 12 204 Annex 12 MINUTES OF THE SECOND PART OF THE FOURTH SESSION OF THE COMMITTEE ON CO-ORDINATION (Verbatim record) DATE: Thursday, 29 April 1948 TIME: 4 p.m.-8 p.m. PLACE: “Murillo Toro” Hall, National Capitol PRESIDENT: Mr. Eduardo Zuleta Angel, President of the Conference RAPPORTEUR : Mr. Jaun Bautista de Lavalle, President of the 3 Commission SECRETARIES: Mr. Alvaro Herrán Medina and Mr. Ricardo Herrera Salazar DELEGATES PRESENT: Mr. Rodrigo González Allendes (Chile); Mr. Blanca Mieres de Botto (Uruguay); Mr. William Sanders (United States of Americ. Minerva Bernardino (Dominican Republic); Mr. Víc tor Andrés Belaúnde (Peru); Mr. José Gorostiza (Mexico); Mr. Gabriel de Rezende Passos (Braz; M r. Gustave Laraque (Haiti); Mr. Pedro Juan Vignale (Argentina); Mr. Jorge Soto del Corral (Colombia); and Alberto Lleras Camargo (Pan-American Union). … 205Annex 12 206Annex 12 207Annex 12 208Annex 12 209Annex 12 210Annex 12 211Annex 12 212Annex 12 213Annex 12 214… Annex 12 THE P RESIDENT: Mr. Delegate, we have looked at the document drd by the Secretariat earlier this morning, entitled “Text of the Inter -American System of Pacific Settlement–Pact of Bogotá”. It was produced in a limited form the work of the Commissions would be easier. It seems that a number of articles were ad ded and a number of amendments were made to the document. I kindly ask the Delegate for Mexico to state what those additions and changes are, so as to make our work easier. We would like to know, then, what is the text of the additional articles whiot appear in this document, and what were the main changes introduced in the other articles that were amended. M R. NRIQUEZ (M EXICO): I’ll be pleased to do so, Mr President. 215Annex 12 216 Annex 12 The heading of the draft Treaty was drafted in the following terms: On behalf of their countries, the Governments represented in the Ninth International American Conference have resolved, pursuant to Article 23 of the Charter of the Organization of American States, to execute the following Treaty. The title of the instrument was changed: “Inter-American System of Pacific Settlement” was replaced by “American Treaty on Pacific Settlement”. A few linguistic mistakes were corrected in Chapter One and the order of the articles was changed as well. Articles I and II remained in their original order; but Art icle III was renumbered Article VIII; Article IV was renumbered Article V; Article V was renumbered Article VI; Article VI was renumbered Article IV; Article VII was renumbered Article III; Article VIII was renumb ered Article VII. The purpose was to make the succession of topics more logical. A typewritten copy of the document has been produced. … 217Annex 12 218 Annex 12 MINUTES OF THE SEVENTH PLENARY SESSION (Verbatim record–document published under No. CB-452/SP-36) D ATE: Friday, 30 April 1948 TIME: 11.15 a.m.—1.30 p.m. PLACE : Main Hall, National Capitol PRESIDENT: Mr. Eduardo Zuleta Angel, Ministry of Foreign Affairs of Colombia SECRETARIES: Mr. Camilo de Brigard Silva, Secretary General of the Conference; Mr. Jaime López Mosquera; Mr. Ernesto Jara Castro; and Mr. Enrique Soto. D ELEGATESP RESENT: Mr. Marco Antonio Batres (Honduras); Mr. Enrique Muñoz Meany (Guatemala); Mr. Juvenal Hernánez (Chile); Mr. Dardo Regules (Uruguay); Mr. Oscar Gans (Cuba); Mr. Norman Armour (United States of America); Mr. Arturo Despradel (Dominican Republic); Mr. Javier Paz Campero (Bolivia); Mr. Armando Revoredo Iglesias (Peru); Mr. Luis Manuel Debayle (Nicaragua); Mr. Jaime Torres Bodet (Mexico); Mr. Mario de Diego (Panama); Mr. Héctor David Castr o (El Salvador); Mr. César A. Vasconsellos (Paraguay); Mr. Emilio Valverde (Costa Rica); Mr. Antonio Parra Velasco (Ecuador); Mr. Gabriel de Rezende Passos (Brazil); Mr. Joseph D. Charles (Haiti); Mr. Luis Lander (Venezuela); Mr. Enrique Corominas (Argentina); Mr. Carlos Lozano y Lozano (Colombia); Mr. Alberto Lleras Camargo (Pan-American Union); and Mr. Alfonso García Robles (United Nations). … 219Annex 12 220Annex 12 221Annex 12 222 Annex 12 THE PRESIDEN: I appreciate the remark made by the Paraguayan Delegate. The Secretariat will have it recorded. At any rate, the reservation will be introduced before signing the Pact. If there is no other remark with regard to the text of the American Treaty on Pacific Settlement (Pact of Bogotá), and acknowledging that all delegations may make all such reservations they deem convenient until the signing of the instrument (which will occur at the Closing Session this afternoon), I will ask those delegates who are in approval to stand up, just as we all did with regard to the Charter of the Organization of American States. (Applause). SECRETARYG ENERAL: Approved by acclamation. … 223Annex 12 224 Annex 12 MINUTES OF THE FIRST PART OF THE EIGHTH PLENARY SESSION CLOSING SESSION (Verbatim record–document published without classification) D ATE: Friday, 30 April 1948 TIME: 5.15 p.m.-6.40 p.m. PLACE : Quinta de Bolívar PRESIDENT: Mr. Eduardo Zuleta Angel, Minister of Foreign Affairs of Colombia SECRETARIES: Mr. Camilo de Brigard Silva, Secretary General of the Conference; and Mr. José Joaquín Gori D ELEGATES PRESENT: Mr. Marco Antonio Batres (Honduras); Mr. Luis Cardoza y Aragón (Guatemala); Mr. Juvenal Hernández (Chile); Mr. Dardo Regules (Uruguay); Mr. Oscar Gans (Cuba); Mr. Norman Armour (United States of America); Ms Minerva Bernardino (Dominican Republic); Mr. Javier Paz Campero (Boliv; Mr. Armando Revoredo Iglesias (Peru); Mr. Luis Manuel Debayle (Nicaragua); Mr. Jaime Torres Bodet (Mexico); Mr. Mario de Diego (Panama); Mr. Hécto r David Castro (El Salvador); Mr. César A. Vasconsellos (Paraguay); Mr. Emilio Valverde (Costa Rica); Mr. An tonio Parra Velasco (Ecuador); Mr. João Neves da Fontoura (Brazil); Mr. Gustave Laraque (Haiti); Mr. Rómulo Betancourt (Venezuela); Mr. Enrique Corominas (Argentina); and Mr. Carlos Lozano y Lozano (Colombia). The President called the meeting to order gave the floor to Mr. Betancourt (Venezuela), who delivered the following speech ( Document published under No. CB - 448/SP-35): … 225Annex 12 226Annex 12 227Annex 12 228Annex 12 229Annex 12 Next, the President announced that the Charter of the Organization of American States and the American Treaty on Pacific Sett lement (Pact of Bogotá) were ready for signing, and invited the delegates to sign them. The delegations all came forward one after another and signed both instruments, each with its respective national anthem playing in the background. Thereafter, the President adjourned the Closing Meeting, which would be resumed at the Main Hall of the National Capitol on the following Sunday, 2 May at 4 p.m., at which the remaining instruments agreed upon by the Conference, and the Final Minutes would be signed. 230 Annex 13 American Treaty on Pacific Settlement, signed at Bogotá on 30 April 1948 (entry into force 6 May 1949) (the Pact of Bogotá) (Original in English and Spanish) 30 United Nations Treaty Series 83 231Annex 13 232Annex 13 233Annex 13 234Annex 13 235Annex 13 236Annex 13 237Annex 13 238Annex 13 239Annex 13 240Annex 13 241Annex 13 242Annex 13 243Annex 13 244Annex 13 245Annex 13 246Annex 13 247Annex 13 248Annex 13 249Annex 13 250Annex 13 251Annex 13 252Annex 13 253Annex 13 254Annex 13 255Annex 13 256Annex 13 257Annex 13 258Annex 13 259Annex 13 260Annex 13 261Annex 13 262Annex 13 263264