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

ESTADO PLURINACIONAL DE BOLIVIA

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BOLIVIA'S COMMENTS ON CHILE'S REPLY

TO JUDGE OWADA'S QUESTION

1. Bolivia hereby respectfully submits its comments to Chile's 13 May 2015 reply to Judge

Owada's question to the parties. Chile's reply merely repeats its argument that the 1904Treaty

isallegedly irreconcilable with an obligation to negotiate sovereign access to the Pacifie Ocean.

As Balivia has explained, this objection faits to distinguish between negotiations and their final

results; it bath misrepresents, and attempts to refute, Bolivia's case on the merits.

2. As set forth in the Memorial , the parties agreed to negotiate for the purpose of finding a

modality that would grant Bolivia a sovereign access ta the sea.

3. With regardta the possible modalities ofsovereign access, Chile's reply ismisleading. Itmakes

various references to "territorial cession" in Bolivia's Memorial, but fails to mention that ali of

these references are either from Chile's own unilateral declarations or its repeated agreements

with Bolivia ta negotiate sovereign access. Chile's response does nothing more than confirm

what it agreed to on successive occasions, although the existence and specifie content of that

agreement is clearly a matter for the merits.

4. Chile's reply invokes paragraphs 361,410,411,445,483,484, and486 ofBolivia's Memorial

without recognizing that these simply reproduce verbatim or otherwise refer to the express

terms of Chile's own declarations or its agreements with Bolivia concluded independently of

the 1904Treaty. For examp1e,with regard tothe 1950Exchange ofNotes, paragraph 362 refers

to the 20 June 1950 Note of the Chilean Minister of Foreign Affairs. This Note expressly

recognized the 1895 Transfer Treaty, the 1920 Act, Chile's Note of 1923, the 1926 Kellogg

proposai and Matte Memorandum, and declarations ofthe Chilean President between 1946and
2
1949, as "important precedents, that identify a clear policy direction ofthe Chilean Republic".

Furthermore, Chile's 1950Note expressly declared that consistent with these prior agreements,

Chile "is willing ta formally enter into direct negotiations aimed at finding a formula that will
3
make it possible ta give to Bolivia a sovereign access to the Pacifie Ocean of its own". The

1 See Memorial, pars. 238, 487, and 498.
2 See Memorial, pars. 364-369.
3
Memorial, Vol. Il, Annex 109(8). ESTADOPLURINACIONALDEBOLIVIA
Embajada LaHaya - Paises Bajos

terms of the 1950Agreement were subsequently repeated and confirmed by Chile in the 10July

1961 Memorandum. 4

5. There can be no doubt from the 1950 Note that Chile has agreed: (a) ta negotiate Bolivia's

"own" and "sovereign" access ta the sea; and (b) that the abject of the negotiations is "finding

a formula" that will make this possible 5• The definition of the specifie contents of sovereign

access therefore, is ta be determined by a "formula" or modality ta be agreed upon by the

parties, this being the purpose of the negotiations.

6. This is consistent with the unanimous OAS resolutions, such as resolution N° 686 (XIIl-0/83)

(1983), which was adopted with Chile's support and calls for "a formula for giving Bolivia a

sovereign outlet to the Pacifie Ocean, on bases that take into account mutual conveniences,

rights and interests of ali parties involved" 7• Again, the OAS resolution confirms that the

purpose of negotiations is ta find a "formula" that defines the specifie content of a sovereign

access which could be expressed through various modalities and must emerge from the

negotiation between the parties.

7. By directly linking Judge Owada's question to paragraphs 32(a) and 32(c) of Bolivia's

Application, and paragraphs 500(a) and (c) of the Request for Relief in its Memorial, Chile

leaves no doubt that its objection tojurisdiction asks for a determination of the merits.

8. The argument set forth by Chile in the last paragraph of its reply to Judge Owada's question

expressing that "Bolivia seeks a ruling that compels Chile to grant Bolivia a sovereign access

to the Pacifie Ocean" is untrue. What Bolivia asks the Court is to declare that Chile is underthe

obligation to negotiate with Bolivia in order to reach an Agreement that grants Bolivia a

sovereign access to the sea independently of the 1904 Treaty.

4Memorial Vol. li, Annex 24.
sSee Memorial, Vol. II. Annex 109 and 109 (B)
6See Memorial, par.l73.
7
See Memorial, Vol. II Annex 195.