It should be noted at the outset that Bolivia framed its request to the Court under a very difficult threshold (e.g. asking the Court to adjudge and declare that “Chile has the obligation to negotiate with Bolivia in order to reach agreement granting Bolivia a fully sovereign access to the Pacific Ocean”, and that Chile breached such an alleged obligation and should be directed to perform it). [ICJ Judgment, p. 11] As noted by the Court, at the time of its independence from Spain in 1825, Bolivia had 400 km of coastline along the Pacific Ocean, which it later lost to Chile following various wars involving Peru, Bolivia, and Chile. [ICJ Judgment, paras. 19-24]. In various exchanges, statements and/or instruments throughout the 1920s to the present, the Court noted Bolivia’s articulated concerns for access to the Pacific Ocean. [ICJ Judgment, paras. 25-83]. However, because of how Bolivia framed its request to the Court seeking to have it declare the existence of an obligation on the part of Chile to negotiate with Bolivia to reach agreement on such access to the Pacific Ocean, it was not surprising that the Court closely parsed the language adopted by both states in all the exchanges, statements, treaties, instruments between the parties on this matter over the last century to ascertain the existence of such an obligation. The Court declared the threshold to be met in order to verify the existence of this legal obligation, according to the following terms:
In international law, the existence of an obligation to negotiate has to be ascertained in the same way as that of any other legal obligation. Negotiation is part of the usual practice of States in their bilateral and multilateral relations. However, the fact that a given issue is negotiated at a given time is not sufficient to give rise to an obligation to negotiate. In particular, for there to be an obligation to negotiate on the basis of an agreement, the terms used by the parties, the subject-matter and the conditions of the negotiations must demonstrate an intention of the parties to be legally bound. This intention, in the absence of express terms indicating the existence of a legal commitment, may be established on the basis of an objective examination of all the evidence.
The Applicant, in particular bilateral agreements, or declarations and other unilateral acts, gives rise to an obligation to negotiate Bolivia’s band database sovereign access to the Pacific Ocean. The Court will then examine, ifnecessary, the other legal bases invoked by the Applicant, namely acquiescence, estoppel and legitimate expectations. Finally, the Court will address, if warranted, the arguments based on the Charter of the United Nations and on the Charter of the OAS.” [ICJ Judgment, paras. 91 and 93. Italics added.]
Thus, the Court scrutinized each piece of evidence put forward by Bolivia, incrementally conducting its “objective examination” and finding that there was no such specific “obligation to negotiate sovereign access to the Pacific Ocean” indicated in either Bolivia’s bilateral agreements with Chile, exchange of notes, the 1975 Charaña Declaration, the 2000 Algarve Declaration, among others. [ICJ Judgment, paras. 94-139]. Neither was there any such obligation contained in Chile’s statements or unilateral acts [ICJ Judgment, paras. 140-148]. The Court also did not find acquiescence by Chile or estoppel against Chile [ICJ Judgment, paras. 149-161]. The Court emphatically declared that there was no such thing in general international law as an obligation arising from a State’s legitimate expectations (“It does not follow from such references that there exists in general international law a principle that would give rise to an obligation on the basis of what could be considered a legitimate expectation”). [ICJ Judgment, para. 162]. Neither does the specific obligation to negotiate sovereign access exist under the UN Charter or the Charter of the Organization of the American States. [ICJ Judgment, paras. 163-174]. On this basis, the Court declared that it “is however unable to conclude, on the basis of the material submitted to it, 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.” [ICJ Judgment, para. 175] Ultimately, the Court concluded its Judgment with a brief reminder to the Parties on “a spirit of good neighborliness” so that “meaningful negotiations can be undertaken.” [ICJ Judgment, para. 176].