International Court upholds Chile's position, but also hears Bolivia in the dispute over the Silala River

In the December 1 ruling of the International Court of Justice in The Hague on the dispute between Bolivia and Chile over the use of the waters of the small Silala River, the Chileans achieved more than their neighbors. The high court of the United Nations grants "international" - therefore, shared - character to a river that Bolivia wanted to reduce to a simple spring, whose management intended to carry out without taking into account the rights of the country downstream. But the Chileans may see the flow reduced, since the Court admits that some of the channels that increase the flow are "artificial", made at the time on Bolivian soil by a Chilean business . This sentence, which was to close one of the controversies derived from Bolivia's loss of access to the sea in the 19th century, once again leaves the two countries in a status of possible friction, if not for the sovereignty and character of the riverbed, then for the management of its waters.

The International Court of Justice (ICJ) did not actually have to make any decision, as the two countries finally agreed on agreement. In 2016 Chile sued Bolivia after President Evo Morales accused its neighbors of "stealing" and "diverting" the Silala, a watercourse that rises in Bolivia's Potosí and, after a dozen kilometers, its waters feed several tributaries of the Loa, Chile's main river. Although its flow is small, it is an important water resource as it flows through the Atacama Desert and provides water to department of Antofagasta, headquarters of the large Chilean copper industry. Bolivia counterclaimed in 2018, claiming that Chile should pay, even retroactively, for the use of the water.

Once the sentence was published, the president of Chile, Gabriel Boric, considered that his country had seen all its claims recognized and that it was Bolivia who had been moving positions to overcome the dispute. For his part, Bolivian President Luis Arce, on the other hand, emphasized that, although the Silala is an "international" course, the ICJ recognizes Bolivia's sovereignty over the existing "artificial" channels and leaves the future of these in the hands of the Bolivian authorities. The Government of La Paz indicated that the canalizations increase the flow between 11% and 33%, subtracting it from a possible contribution to the wetlands, but announced that it will not take any decision on the matter immediately. In any case, the Court established that Chile should not pay for the benefit of the reinforced Silala channel.

Origin of the dispute

This conflict between Chile and Bolivia dates back to the War of the Pacific (1879-1884), in which Chile faced an alliance between Bolivia and Peru. On February 14, 1879, Bolivia increased taxes on the Chilean-British business Compañía de Salitres y Ferrocarril de Antofagasta, which the Chileans saw as a violation of an 1874 treaty. Faced with Bolivia's refusal to accept arbitration, Chile invaded Antofagasta. With Peru withdrawn from the war, the defeat led Bolivia to sign the Treaty of Peace, Friendship and Commerce with Chile in 1904, which set the limits between the two countries. As result, Bolivia lost its Pacific coast, including the port city of Antofagasta, which belonged to Chile. In addition, it was established that the waters of the Silala were international and concessions were made by both countries for the use of the river's water; however, this matter was later reopened due to the lack of agreement on the use and sovereignty of the water resource .

An essential condition of the Peace Treaty was the construction by the Chilean state of a railroad from Arica to La Paz. However, a railroad from Uyuni, in the Bolivian highlands, to Antofagasta was also built by private initiative, at position of the business The Antofagasta-Bolivia Railway Company Ltd. (later named Ferrocarriles Antofagasta-Bolivia). For the steam train used on this second route, a large amount of water was necessary, for which the prefect of department of Potosí granted the aforementioned business the licence of the waters of the Silala, recognizing it as an international river. In 1910 a public deed was granted authorizing the construction of canals and masonry works in Bolivian territory and the use of the waters of the Silala River at no cost. In 1962 the steam train ceased to be operational and, therefore, the purpose of the concession disappeared, as the need to use the waters of the Silala by the business was eliminated.

However, it was not until 1996 that the Bolivian Government began to reject the concession made by Chile in 1906 to the British business Ferrocarril de Antofagasta a Bolivia (FCAB), finally revoking the concession in 1997, arguing that business had not respected the agreements. In 1997 the Bolivian Chamber of Deputies ordered the elimination of the term "river" to refer to the Silala, considering it a spring, and considered charging Chile for its use. In 1999, the Bolivian government declared that the Silala River belonged exclusively to its sovereignty, thus intensifying the dispute between the two countries. In addition, in 2002 Chile diverted the course of the river in its territory for its own benefit.

Therefore, in 2009, the presidents of Bolivia and Chile, in the framework of a rapprochement program or "diary of the 13 points", tried to reach a agreement, but this could not be achieved because the Bolivian Parliament did not accept the negotiated pre-agreement. The pre-agreement established that Chile should pay 50% of the waters of the Silala for the duration of the technical programs of study on its use and exploitation. However, Bolivia proposed after two years that the payment should be retroactive to the connection of the waters to Chile at the beginning of the 20th century, which Chile rejected. Finally, Bolivia opened a trout hatchery that is supplied from the Silala, even though it could affect the quality of the waters, to which Chile responded by declaring that the river was an area of international waters, which originates in Bolivia but continues in Chile.

Lawsuits in The Hague

The dispute over the Silala is part of the more general dispute that Bolivia has with Chile over the loss of its access to the sea as a result of the War of the Pacific. This issue is still very much alive in the Bolivian conscience and carries weight in Bolivian national politics. On March 23, 2011, Bolivian President Evo Morales announced his intention to file a maritime lawsuit in international courts. In 2013, Bolivia finally sued Chile before the International Court of Justice in The Hague, asking for a sovereign outlet to the Pacific Ocean, since documents such as the 1904 Treaty expressed that Chile had a legal commitment to negotiate an outlet to the sea for Bolivia and had not fulfilled it, thus forcing Chile to negotiate such a concession. Chile defended that the borders between the two countries had already been fixed in the 1904 Treaty and that the ICJ had no skill in this regard. On October 1, 2018, the ICJ dismissed by 12 votes to 3 Bolivia's claim, rejecting Chile's obligation to negotiate an outlet to the sea with Bolivia. 

In parallel to that process, Evo Morales announced in March 2016 his intention to sue Chile before the ICJ for "stealing" the waters of the Silala River, that is, for the improper use made by Chile. However, who first resorted to The Hague was Chile: in June 2016, President Michelle Bachelet filed a complaint before the Court requesting that the Silala be declared an international watercourse whose use is governed by customary international law, requesting equal rights over the river and, finally, requesting that Bolivia adopt the necessary measures to prevent the contamination of its waters, in addition to notifying Chile of measures that could contaminate the course of the river. In this way, Chile could in the future prevent Bolivia from interfering with the Silala's water supply to Chile through the Atacama Desert.

In 2018, Bolivia counterclaimed against Chile, requesting to declare its sovereignty over the artificial channels and drainage mechanisms in the Silala that are located in its territory. Bolivia raised its sovereignty over the artificial flow of the waters of the Silala that has been designed, improved or produced in its territory, and alleged that Chile has no right to such artificial flow, such that any submission from Bolivia to Chile of the artificially flowing waters of the Silala - as well as the conditions and modalities thereof, including the compensation to be paid for such submission-, is subject to the conclusion of a agreement with Bolivia.

Bolivia had been arguing that the Silala is a set of spring eyes, and therefore its usufruct corresponded to it in full, even with retroactive effects. In other words, Bolivia argued that the Silala originates from springs that have their origin in springs that are artificially captured and conducted towards Chile, by means of works built by Chileans that, if they did not exist, would allow their channel to infiltrate Bolivian land. Bolivia argued that Chile should pay for the use of the waters of the Silala since its concession at the beginning of the 20th century, which constituted a high debt.

Chile, for its part, defended that the Silala flows naturally from the Bolivian heights towards Chile and that "Bolivia never attempted to present Chile with serious scientific programs of study on the basis of which the two parties could have initiated a fruitful dialogue". For Chile, the Silala is an international river of successive course, so the principle of equitable and reasonable use of its resource is applicable; that is to say, no agreement or economic retribution is necessary for its use, eliminating Chile's obligation to pay for it. In addition, Chile has recalled that of the almost 10 kilometers of the river's length, slightly more than half runs through Chilean territory.

The judgment of the International Court of Justice at the beginning of this month, therefore, gives much of the reason to Chile on the rights of both countries in relation to the Silala riverbed, although it gives Bolivia room for certain unilateral actions, which could cause discomfort to the Chilean side. Being a short river -even though every water contribution is important in the Atacama Desert-, it is difficult to reach a great conflict between both countries. The Court's ruling, in any case, significantly reduces these risks, even though this is a particularly sensitive issue for Bolivian national sentiment.