                       INTERNATIONAL COURT OF JUSTICE

                         REPORTS OF JUDGMENTS,
                      ADVISORY OPINIONS AND ORDERS

                    OBLIGATION TO NEGOTIATE
                   ACCESS TO THE PACIFIC OCEAN
                             (BOLIVIA v. CHILE)

                       JUDGMENT OF 1 OCTOBER 2018

                              2018
                       COUR INTERNATIONALE DE JUSTICE

                           RECUEIL DES ARRÊTS,
                    AVIS CONSULTATIFS ET ORDONNANCES

                     OBLIGATION DE NÉGOCIER
                   UN ACCÈS À L’OCÉAN PACIFIQUE
                             (BOLIVIE c. CHILI)

                         ARRÊT DU 1er OCTOBRE 2018

5 CIJ1150.indb 1                                        22/05/19 10:55

                                                 Official citation :
                              Obligation to Negotiate Access to the Pacific Ocean
                            (Bolivia v. Chile), Judgment, I.C.J. Reports 2018, p. 507

                                            Mode officiel de citation :
                              Obligation de négocier un accès à l’océan Pacifique
                              (Bolivie c. Chili), arrêt, C.I.J. Recueil 2018, p. 507

                                                                                1150
                                                                 Sales number
                   ISSN 0074-4441                                No de vente :
                   ISBN 978-92-1-157349-7

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                                               1 OCTOBER 2018

                                                  JUDGMENT

                    OBLIGATION TO NEGOTIATE
                   ACCESS TO THE PACIFIC OCEAN
                         (BOLIVIA v. CHILE)

                     OBLIGATION DE NÉGOCIER
                   UN ACCÈS À L’OCÉAN PACIFIQUE
                         (BOLIVIE c. CHILI)

                                              1er OCTOBRE 2018

                                                   ARRET

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                   507

                                              TABLE OF CONTENTS

                                                                                Paragraphs

                   Chronology of the Procedure                                                  1-15
                       I. Historical and Factual Background                                    16-83
                         1. Events and treaties prior to 1904, including the 1895 Transfer
                            Treaty19-24
                         2. The 1904 Peace Treaty                                            25
                         3. Exchanges and statements in the 1920s                         26-46
                           A. The 1920 “Acta Protocolizada”                     26-31
                           B. Follow-up exchanges (1920-1925)                   32-41
                           C. The 1926 Kellogg Proposal and the 1926 Matte Memo-
                              randum42-46
                         4. Bolivia’s reaction to the 1929 Treaty of Lima and its Supple-
                            mentary Protocol                                                   47-49
                         5. The 1950 exchange of Notes                                         50-53
                         6. The 1961 Trucco Memorandum                                         54-59
                         7. The Charaña process                                                60-70
                         8. Statements by Bolivia and Chile at the Organization of Amer-
                            ican States and resolutions adopted by the Organization            71-75

                         9. The “fresh approach” of 1986‑1987                     76-77
                        10. The Algarve Declaration (2000) and the 13‑Point Agenda
                            (2006)78-83
                   II. Preliminary Considerations                                              84-90
                   III. The Alleged Legal Bases of an Obligation to Negotiate
                        Bolivia’s Sovereign Access to the Pacific Ocean                       91-174
                         1. Bilateral agreements                                              94-139
                           A. The diplomatic exchanges of the 1920s                           98-107
                           B. The 1950 exchange of Notes                                     108-119
                           C. The 1975 Charaña Declaration                                   120-127
                           D. The communiqués of 1986                                        128-132
                           E. The Algarve Declaration (2000)                                 133-135
                           F. The 13‑Point Agenda (2006)                                     136-139
                         2. Chile’s declarations and other unilateral acts              140-148
                         3. Acquiescence                                                149-152
                         4. Estoppel                                                    153-159
                         5. Legitimate expectations                                     160-162
                         6. Article 2, paragraph 3, of the Charter of the United Nations
                            and Article 3 of the Charter of the Organization of American
                            States163-167

                   4

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                   508 	        obligation to negotiate access (judgment)

                       7. The resolutions of the General Assembly of the Organization
                          of American States                                           168-171
                       8. The legal significance of instruments, acts and conduct taken
                          cumulatively172-174
                   IV. General Conclusion on the Existence of an Obligation to
                       Negotiate Sovereign Access to the Pacific Ocean                175-176
                   Operative Clause                                                       177

                   5

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                    509

                                    INTERNATIONAL COURT OF JUSTICE

        2018
                                                      YEAR 2018
      1 October
     General List                                    1 October 2018
       No. 153

                                OBLIGATION TO NEGOTIATE
                               ACCESS TO THE PACIFIC OCEAN
                                                 (BOLIVIA v. CHILE)

                       Historical and factual background.
                       1866 Treaty demarcating boundary between Chile and Bolivia and separating
                    their Pacific coast territories — War of the Pacific and Chile’s occupation of
                    Bolivia’s coastal territory — 1884 Truce Pact providing Chile to continue to gov‑
                    ern coastal region — 1904 Peace Treaty recognizing coastal territory as belonging
                    “absolutely and in perpetuity” to Chile — Minutes of 1920 meetings concerning
                    question of Bolivia’s access to the sea (“Acta Protocolizada”) — Follow‑up
                    exchanges concerning Bolivia’s request for revision of 1904 Peace Treaty —
                    1926 Matte Memorandum expressing Chile’s position concerning question of sov‑
                    ereignty over provinces of Tacna and Arica — 1950 exchange of Notes between
                    Bolivia and Chile concerning Bolivia’s access to the sea — 1961 Memorandum
                    handed by Chile’s Ambassador in Bolivia to Minister for Foreign Affairs of Bolivia
                    (“Trucco Memorandum”) — Joint declaration by Presidents of Bolivia and Chile
                    in 1975 expressing agreement to initiate negotiations (“Charaña Declaration”) —
                    Resolutions of the Organization of American States (“OAS”) concerning Boliv‑
                    ia’s sovereign access to the sea — New negotiations opened after 1985 Bolivian
                    presidential elections, known as the “fresh approach” — 2000 Algarve Declaration
                    on essential issues in the bilateral relationship — 13‑Point Agenda of 2006, includ‑
                    ing Point 6 on the “maritime issue”.

                                                             *
                      Preliminary considerations.
                      Meaning and scope of obligation to negotiate — Obligation does not include
                    commitment to reach agreement — Meaning of sovereign access.

                                                             *

                    6

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                    510 	          obligation to negotiate access (judgment)

                       Alleged legal bases of an obligation to negotiate Bolivia’s sovereign access to
                    Pacific Ocean.
                       Existence of obligation to negotiate to be ascertained as any other legal obliga‑
                    tion in international law.
                       Bolivia’s assertion that bilateral agreements establish obligation to negotiate —
                    No obligation to negotiate created by “Acta Protocolizada” — Matte Memoran‑
                    dum contains no acceptance of obligation to negotiate — 1950 exchange of Notes
                    not a binding international instrument — Trucco Memorandum does not create or
                    reaffirm any obligation to negotiate — No binding legal commitment in Charaña
                    Declaration — No obligation to negotiate created by 1986 communiqués — No
                    obligation to negotiate created in Algarve Declaration — No obligation to negoti‑
                    ate created in 13‑Point Agenda — Court concludes that no obligation to negotiate
                    established by bilateral agreements.

                        Bolivia’s argument that Chile’s declarations and other unilateral acts create
                    obligation to negotiate — Wording of these declarations does not suggest
                    undertaking of legal obligation — No evidence of intention to assume obligation
                     to negotiate — Court concludes that no obligation to negotiate established by
                     Chile’s declarations and other unilateral acts.

                       Bolivia’s assertion that obligation to negotiate established through acquies‑
                    cence — Failure by Bolivia to identify declaration requiring response to prevent
                    obligation from arising — Court concludes that no obligation to negotiate estab‑
                    lished through acquiescence.
                       Bolivia’s argument based on estoppel — Chile’s expressions of willingness to
                    negotiate do not imply obligation to do so — No detrimental reliance by Bolivia —
                    Essential conditions for estoppel not fulfilled — Court concludes that no obligation
                    to negotiate established through estoppel.

                       Bolivia’s argument based on legitimate expectations — References to legitimate
                    expectations found in investor-State arbitral awards — Does not follow from ref‑
                    erences that principle of general international law exists — Court rejects Bolivia’s
                    argument based on legitimate expectations.

                       Bolivia’s argument based on Article 2, paragraph 3, of United Nations Charter
                    and Article 3 of OAS Charter — No obligation to negotiate found in general duty
                    to settle disputes in Article 2, paragraph 3, of United Nations Charter — No obli‑
                    gation to negotiate found in the duty to settle controversies by peaceful procedures
                    set out in Article 3 of OAS Charter — Court concludes that these provisions can‑
                    not be the legal basis of an obligation to negotiate.

                       Bolivia’s argument based on resolutions of the OAS — Negotiations recom‑
                    mended but not required — Resolutions not per se binding — Court concludes that
                    no obligation to negotiate can be inferred from content of resolutions or from
                    Chile’s position during their adoption.
                       Bolivia’s assertion that instruments, acts and conduct taken cumulatively estab‑
                    lish obligation to negotiate — Cumulative consideration of various bases does not
                    change result — Court concludes that no obligation to negotiate established even if
                    all instruments, acts and conduct taken cumulatively.

                                                             *

                    7

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                    511 	           obligation to negotiate access (judgment)

                      General conclusion.
                      Chile did not undertake obligation to negotiate Bolivia’s sovereign access to
                    Pacific Ocean — Other final submissions of Bolivia consequently rejected —
                    Court’s finding should not preclude continued dialogue and exchanges.

                                                      JUDGMENT

                    Present:
                             President Yusuf ; Vice‑President Xue ; Judges Tomka, Abraham,
                             Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde,
                             Bhandari, Robinson, Gevorgian, Salam ; Judges ad hoc Daudet,
                             McRae ; Registrar Couvreur.

                        In the case concerning the obligation to negotiate access to the Pacific Ocean,
                        between
                    the Plurinational State of Bolivia,
                    represented by
                      H.E. Mr. Eduardo Rodríguez Veltzé, former President of Bolivia, former
                         President of the Bolivian Supreme Court of Justice, former Dean of the
                         Law School of the Catholic University of Bolivia in La Paz, Ambassador
                         Extraordinary and Plenipotentiary of the Plurinational State of Bolivia to
                         the Kingdom of the Netherlands,
                      as Agent ;
                      H.E. Mr. Sacha Llorentty Soliz, Permanent Representative of the Pluri
                         national State of Bolivia to the United Nations in New York,
                      as Co-Agent ;
                      H.E. Mr. Evo Morales Ayma, President of the Plurinational State of Bolivia,
                      as National Authority ;
                      Mr. Vaughan Lowe, QC, member of the Bar of England and Wales, Emeritus
                         Chichele Professor of International Law, University of Oxford, member of
                         the Institut de droit international,
                      Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad
                         Autónoma de Madrid, member of the Institut de droit international,
                      Ms Monique Chemillier-Gendreau, Professor Emeritus of Public Law and
                         Political Science at the University Paris Diderot,
                      Mr. Mathias Forteau, Professor at the University Paris Nanterre,
                      Mr. Payam Akhavan, LLM SJD (Harvard), Professor of International Law,
                         McGill University, Montreal, member of the Permanent Court of Arbitra-
                         tion, member of the New York State Bar and of the Law Society of Upper
                         Canada,
                      Ms Amy Sander, member of the Bar of England and Wales,
                      as Counsel and Advocates ;
                      Mr. Fernando Huanacuni, Minister for Foreign Affairs of the Plurinational
                         State of Bolivia,

                    8

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                    512 	           obligation to negotiate access (judgment)

                        Mr. Héctor Arce, Minister of Justice and Institutional Transparency of the
                           Plurinational State of Bolivia,
                        Mr. Pablo Menacho, Attorney General of the Plurinational State of Bolivia
                           and Professor of Constitutional Law, Universidad Mayor de San Andrés,
                           La Paz,
                        Mr. Emerson Calderón, Secretary-General of the Strategic Maritime Vindica-
                           tion Office (DIREMAR) and Professor of Public International Law, Uni-
                           versidad Mayor de San Andrés, La Paz,
                        as Advisers ;
                        Mr. Guido Vildoso, former President of Bolivia,
                        Mr. Jorge Quiroga, former President of Bolivia,
                        Mr. Carlos Mesa, former President of Bolivia,
                        Mr. José Alberto González, President of the Senate of the Plurinational State
                           of Bolivia,
                        Ms Gabriela Montaño, President of the Chamber of Deputies of the Plurina-
                           tional State of Bolivia,
                        Mr. Rubén Costas Aguilera, Governor of Santa Cruz,
                        Mr. Esteban Urquizu Cuellar, Governor of Chuquisaca,
                        Mr. Gonzalo Alcón Aliaga, President of the Council of Magistrates of the
                           Plurinational State of Bolivia,
                        Ms Segundina Flores, Executive Secretary of the Bartolina Sisa National
                           Federation of Peasant Women,
                        Mr. Juan Carlos Guarachi, Executive Secretary of the Central Obrera Boliviana,
                        Mr. Alvaro Ruiz, President of the Federation of Municipal Associations
                           (FAM),
                        Mr. Juan Ríos del Prado, Dean of the Universidad Mayor de San Simón,
                        Mr. Marco Antonio Fernández, Dean of the Universidad Católica Boliviana,
                        Mr. Ronald Nostas, President of Private Entrepreneurs of the Plurinational
                           State of Bolivia,
                        Mr. Gustavo Fernández, former Minister for Foreign Affairs,
                        Mr. Javier Murillo, former Minister for Foreign Affairs,
                        Mr. Carlos Iturralde, former Minister for Foreign Affairs,
                        Mr. Diego Pary, Permanent Representative of the Plurinational State of
                           Bolivia to the Organization of American States in Washington DC,
                        Mr. Gustavo Rodríguez Ostria, Ambassador of the Plurinational State of
                           Bolivia to the Republic of Peru,
                        Mr. Rubén Saavedra, Permanent Representative of the Plurinational State of
                           Bolivia to the Union of South American Nations (UNASUR),
                        Ms Magdalena Cajias, Consul General of the Plurinational State of Bolivia in
                           Santiago,
                        Mr. Juan Lanchipa, President of the Court of Justice of the Department of
                           La Paz,
                        Mr. Franz Zubieta, Director of International Law at the Ministry of Justice
                           and Institutional Transparency of the Plurinational State of Boli-
                           via,
                        Mr. Roberto Calzadilla, Bolivian diplomat,
                        as Special Guests ;
                        Mr. Javier Viscarra Valdivia, Deputy Chief of Mission, Embassy of the Pluri-
                           national State of Bolivia in the Kingdom of the Netherlands,
                        Mr. Luis Rojas Martínez, Minister Counsellor — Legal Adviser, Embassy of
                           the Plurinational State of Bolivia in the Kingdom of the Netherlands,

                    9

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                    513 	         obligation to negotiate access (judgment)

                      Ms Iara Beekma Reis, Counsellor, Embassy of the Plurinational State of
                         Bolivia in the Kingdom of the Netherlands,
                      Mr. José Villarroel, DIREMAR, La Paz,
                      Mr. Diego Molina, DIREMAR, La Paz,
                      as Technical Advisers ;
                      Ms Gimena González, Researcher in Public International Law,
                      Ms Patricia Jimenez Kwast, Doctoral Candidate in Public International Law,
                         University of Oxford,
                      Ms Raphaëlle Nollez-   Goldbach, Researcher at CNRS and Director of
                         Studies in Law and Public Administration at Ecole normale supérieure,
                          Paris,
                      Ms Olga Dalbinoë, Doctoral Candidate in Public International Law, Univer-
                         sidad Autónoma de Madrid,
                      Ms Melina Antoniadis, BCL/LLB, McGill University, Montreal,
                      as Assistant Counsel,
                      and
                    the Republic of Chile,
                    represented by
                      Mr. Claudio Grossman, member of the International Law Commission,
                           R. Geraldson Professor of International Law and Dean Emeritus, Ameri-
                           can University, Washington College of Law,
                      as Agent ;
                      H.E. Mr. Roberto Ampuero, Minister for Foreign Affairs of the Republic of
                           Chile,
                      as National Authority ;
                      H.E. Mr. Alfonso Silva, Vice-Minister for Foreign Affairs of the Republic of
                         Chile,
                      H.E. Ms María Teresa Infante Caffi, Ambassador of the Republic of Chile to
                         the Kingdom of the Netherlands, member of the Institut de droit interna-
                           tional,
                      as Co‑Agents ;
                      Sir Daniel Bethlehem, QC, member of the Bar of England and Wales, 20 Essex
                         Street Chambers,
                      Mr. Samuel Wordsworth, QC, member of the Bar of England and Wales,
                         member of the Paris Bar, Essex Court Chambers,
                      Mr. Jean-Marc Thouvenin, Professor at the University Paris Nanterre,
                         Secretary‑General of the Hague Academy of International Law,
                      Mr. Harold Hongju Koh, Sterling Professor of International Law, Yale
                          Law School, member of the Bars of New York and the District of
                          Columbia,
                      Mr. Ben Juratowitch, QC, admitted to practice in Australia, and England
                         and Wales, Freshfields Bruckhaus Deringer LLP,
                      Ms Mónica Pinto, Professor, Faculty of Law, University of Buenos Aires,
                         Associate, Institut de droit international,
                      Ms Kate Parlett, member of the Bar of England and Wales, 20 Essex Street
                         Chambers,

                    10

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                    514 	        obligation to negotiate access (judgment)

                     as Counsel and Advocates ;
                     H.E. Mr. Heraldo Muñoz Valenzuela, former Minister for Foreign Affairs of
                        the Republic of Chile, Professor of International Relations, University of
                        Chile,
                     H.E. Ms Ximena Fuentes Torrijo, National Director of Frontiers and Limits,
                        Ministry of Foreign Affairs of the Republic of Chile, Professor of Public
                        International Law, University of Chile,
                     H.E. Mr. Alberto van Klaveren Stork, former Vice-       Minister for Foreign
                        Affairs of the Republic of Chile, Professor of International Relations, Uni-
                        versity of Chile,
                     Ms Carolina Valdivia, General Co-ordinator, Ministry of Foreign Affairs of
                        the Republic of Chile,
                     Ms Alexandra van der Meulen, avocat au barreau de Paris and member of the
                        Bar of the State of New York, Freshfields Bruckhaus Deringer LLP,
                     Ms Mariana Durney, Director of Limits, Ministry of Foreign Affairs of the
                        Republic of Chile,
                     H.E. Mr. Luis Winter, Ministry of Foreign Affairs of the Republic of
                        Chile,
                     Mr. Hernán Salinas, Professor of International Law, Catholic University of
                        Chile, Chairman of the Inter-American Juridical Committee,
                     Mr. Andrés Jana, Professor of Civil Law, University of Chile,
                     Mr. Claudio Troncoso Repetto, Professor of Public International Law, Uni-
                        versity of Chile,
                     Mr. Daniel Müller, avocat au barreau de Paris, Freshfields Bruckhaus
                        Deringer LLP, chercheur associé, Centre de droit international de Nanterre
                        (CEDIN),
                     Ms Callista Harris, Solicitor admitted in New South Wales, Freshfields
                        Bruckhaus Deringer LLP,
                     Ms Catherine Drummond, Solicitor admitted in Queensland, Freshfields
                        Bruckhaus Deringer LLP,
                     Mr. Yuri Mantilla, member of the Bars of the District of Columbia and Flor-
                        ida, Freshfields Bruckhaus Deringer LLP,
                     as Advisers ;
                     Ms María Alicia Ríos, Ministry of Foreign Affairs of the Republic of
                        Chile,
                     Mr. Juan Enrique Loyer, Second Secretary, Embassy of the Republic of Chile
                        in the Kingdom of the Netherlands,
                     Mr. Coalter G. Lathrop, Special Adviser, Sovereign Geographic, member of
                        the North Carolina Bar,
                     Mr. José Hernández, Second Secretary, Ministry of Foreign Affairs of the
                        Republic of Chile,
                     Mr. Giovanni Cisternas, Third Secretary, Ministry of Foreign Affairs of the
                        Republic of Chile,
                     Mr. Robert Carter Parét, member of the Bar of the State of New York,
                     as Assistant Advisers,

                     The Court,
                     composed as above,

                    11

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                    515 	          obligation to negotiate access (judgment)

                      after deliberation,
                      delivers the following Judgment :
                       1. On 24 April 2013, the Government of the Plurinational State of Bolivia
                    (hereinafter “Bolivia”) filed in the Registry of the Court an Application institut-
                    ing proceedings against the Republic of Chile (hereinafter “Chile”) with regard
                    to a dispute “relating to Chile’s obligation to negotiate in good faith and effec-
                    tively with Bolivia in order to reach an agreement granting Bolivia a fully sov-
                    ereign access to the Pacific Ocean”.
                       In its Application, Bolivia seeks to found the jurisdiction of the Court on
                    Article XXXI of the American Treaty on Pacific Settlement signed on 30 April
                    1948, officially designated, according to Article LX thereof, as the “Pact of
                    Bogotá” (hereinafter referred to as such).
                       2. In accordance with Article 40, paragraph 2, of the Statute of the Court,
                    the Registrar immediately communicated the Application to the Government of
                    Chile; and, under paragraph 3 of that Article, all other States entitled to appear
                    before the Court were notified of the Application.
                       3. Since the Court included upon the Bench no judge of the nationality of
                    either of the Parties, each Party proceeded to exercise the right conferred upon
                    it by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the
                    case. Bolivia chose Mr. Yves Daudet. Chile first chose Ms Louise Arbour, who
                    resigned on 26 May 2017, and subsequently Mr. Donald M. McRae.
                       4. By an Order of 18 June 2013, the Court fixed 17 April 2014 as the time-
                    limit for the filing of the Memorial of Bolivia and 18 February 2015 for the filing
                    of the Counter-Memorial of Chile. Bolivia filed its Memorial within the time-
                    limit so prescribed.
                       5. Referring to Article 53, paragraph 1, of the Rules of Court, the Govern-
                    ments of Peru and Colombia respectively asked to be furnished with copies of
                    the pleadings and documents annexed in the case. Having ascertained the views
                    of the Parties pursuant to that same provision, the President of the Court
                    decided to grant those requests. The Registrar duly communicated these deci-
                    sions to the said Governments and to the Parties.
                       6. On 15 July 2014, within the time-limit set by Article 79, paragraph 1, of
                    the Rules of Court, Chile raised a preliminary objection to the jurisdiction of the
                    Court. Consequently, by an Order of 15 July 2014, the President, noting that by
                    virtue of Article 79, paragraph 5, of the Rules of Court the proceedings on the
                    merits were suspended and taking account of Practice Direction V, fixed
                    14 November 2014 as the time-limit for the presentation by Bolivia of a written
                    statement of its observations and submissions on the preliminary objection
                    raised by Chile. Bolivia filed such a statement within the time-limit so pre-
                    scribed.
                       7. Pursuant to the instructions of the Court under Article 43 of the Rules of
                    Court, the Registrar addressed to States parties to the Pact of Bogotá the noti-
                    fications provided for in Article 63, paragraph 1, of the Statute of the Court. In
                    accordance with the provisions of Article 69, paragraph 3, of the Rules of Court,
                    the Registrar sent at the same time to the Organization of American States
                    (hereinafter the “OAS”) the notification under Article 34, paragraph 3, of the
                    Statute of the Court. As provided for in Article 69, paragraph 3, of the Rules of
                    Court, the Registrar transmitted the written pleadings to the OAS and asked
                    that organization whether or not it intended to furnish observations in writing
                    within the meaning of that Article. The Registrar further stated in the latter

                    12

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                    516 	         obligation to negotiate access (judgment)

                    notification that, in view of the fact that the proceedings were dealing with
                    Chile’s preliminary objection to the jurisdiction of the Court, any written obser-
                    vations should be limited to that aspect. The Secretary-General of the OAS indi-
                    cated that that organization did not intend to submit any such observations.
                        8. Public hearings on the preliminary objection raised by Chile were held
                    from Monday 4 to Friday 8 May 2015. By its Judgment of 24 September 2015,
                    the Court rejected the preliminary objection raised by Chile and found that it
                    had jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to enter-
                    tain the Application filed by Bolivia on 24 April 2013.
                        9. By an Order dated 24 September 2015, the Court fixed 25 July 2016 as the
                    time-limit for the filing of the Counter-    Memorial of Chile. The Counter-
                    Memorial was filed within the time-limit thus fixed.
                        10. By an Order dated 21 September 2016, the Court authorized the submis-
                    sion of a Reply by Bolivia and a Rejoinder by Chile and fixed 21 March 2017
                    and 21 September 2017 as the respective time-      limits for the filing of those
                    pleadings. The Reply and the Rejoinder were filed within the time-limits thus
                     fixed.
                        11. Pursuant to Article 53, paragraph 2, of the Rules of Court, the Court,
                     after ascertaining the views of the Parties, decided that copies of the pleadings
                     and documents annexed would be made accessible to the public on the opening
                     of the oral proceedings.
                        12. Public hearings were held from 19 March to 28 March 2018, at which the
                     Court heard the oral arguments and replies of:
                    For Bolivia: H.E. Mr. Eduardo Rodríguez Veltzé,
                                  Mr. Payam Akhavan,
                                  Ms Monique Chemillier-Gendreau,
                                  Mr. Antonio Remiro Brotóns,
                                  Mr. Vaughan Lowe,
                                  Ms Amy Sander,
                                  Mr. Mathias Forteau,
                                  H.E. Mr. Sacha Llorentty Soliz.
                    For Chile:   Mr. Claudio Grossman,
                                 Sir Daniel Bethlehem,
                                 Mr. Jean-Marc Thouvenin,
                                 Ms Kate Parlett,
                                 Mr. Samuel Wordsworth,
                                 Ms Mónica Pinto,
                                 Mr. Ben Juratowitch,
                                 Mr. Harold Hongju Koh.

                                                           *
                      13. In the Application, the following claims were made by Bolivia:
                           “For the above reasons Bolivia respectfully requests the Court to adjudge
                         and declare that :
                         (a) Chile has the obligation to negotiate with Bolivia in order to reach
                             an agreement granting Bolivia a fully sovereign access to the Pacific
                             Ocean ;
                         (b) Chile has breached the said obligation ;

                    13

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                    517 	         obligation to negotiate access (judgment)

                         (c) Chile must perform the said obligation in good faith, promptly, for-
                             mally, within a reasonable time and effectively, to grant Bolivia a fully
                             sovereign access to the Pacific Ocean.”

                      14. In the written proceedings, the following submissions were presented by
                    the Parties:
                    On behalf of the Government of Bolivia,
                    in the Memorial and in the Reply :
                           “For the reasons given [in Bolivia’s Memorial and Reply], Bolivia requests
                         the Court to adjudge and declare that :
                         (a) Chile has the obligation to negotiate with Bolivia in order to reach
                             an agreement granting Bolivia a fully sovereign access to the Pacific
                             Ocean ;
                         (b) Chile has breached the said obligation ; and
                         (c) Chile must perform the said obligation in good faith, promptly, for-
                             mally, within a reasonable time and effectively, to grant Bolivia a fully
                             sovereign access to the Pacific Ocean.”
                    On behalf of the Government of Chile,
                    in the Counter-Memorial and in the Rejoinder :
                           “The Republic of Chile respectfully requests the Court to dismiss all of
                         the claims of the Plurinational State of Bolivia.”
                      15. At the oral proceedings, the following submissions were presented by the
                    Parties:
                    On behalf of the Government of Bolivia,
                            “In accordance with Article 60 of the Rules of the Court and the reasons
                         set out during the written and oral phase of the pleadings in the case Obli‑
                         gation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), the Pluri-
                         national State of Bolivia respectfully requests the Court to adjudge and
                         declare that :
                         (a) Chile has the obligation to negotiate with Bolivia in order to reach
                              an agreement granting Bolivia a fully sovereign access to the Pacific
                              Ocean ;
                         (b) Chile has breached the said obligation ; and
                         (c) Chile must perform the said obligation in good faith, promptly, for-
                              mally, within a reasonable time and effectively, to grant Bolivia a fully
                              sovereign access to the Pacific Ocean.”
                    On behalf of the Government of Chile,
                           “The Republic of Chile respectfully requests the Court to dismiss all of
                         the claims of the Plurinational State of Bolivia.”

                                                              *
                                                          *       *

                    14

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                    518 	         obligation to negotiate access (judgment)

                                    I. Historical and Factual Background

                       16. Bolivia is situated in South America, bordering Chile to the south-
                    west, Peru to the west, Brazil to the north and east, Paraguay to the
                    south-east and Argentina to the south. Bolivia has no sea coast. Chile, for
                    its part, shares a land boundary with Peru to the north, with Bolivia to
                    the north-east and with Argentina to the east. Its mainland coast faces the
                    Pacific Ocean to the west.
                       17. Due to the importance of the historical context of this dispute, the
                    Court will now examine in a chronological order certain events that have
                    marked the relationship between Bolivia and Chile.
                       18. Many of the documents that set out these events were drafted in
                    Spanish, and they have not always been translated by the Parties into an
                    official language of the Court in an identical manner. Where these differ-
                    ences are material, the Court will, for the sake of clarity, reproduce the
                    Spanish original of those documents, and indicate which Party’s transla-
                    tion is being quoted as well as any material variation in the translations
                    provided by the Parties.

                                       1. Events and Treaties prior to 1904,
                                        Including the 1895 Transfer Treaty
                       19. Chile and Bolivia gained their independence from Spain in 1818
                    and 1825, respectively. At the time of its independence, Bolivia had a
                    coastline of over 400 km along the Pacific Ocean.
                       20. On 10 August 1866, Chile and Bolivia signed a Treaty of Territo-
                    rial Limits, which established a demarcation line between the two States,
                    following the 24th parallel of latitude south, separating their Pacific coast
                    territories. The instruments of ratification were exchanged on 9 Decem-
                    ber 1866. The boundary was confirmed by the Treaty of Limits of
                    6 August 1874, and the instruments of ratification thereof were exchanged
                    on 28 July and 22 September 1875.
                       21. On 5 April 1879, Chile declared war on Peru and Bolivia. In the
                    course of this war, which became known as the War of the Pacific, Chile
                    occupied Bolivia’s coastal territory. Bolivia and Chile put an end to the
                    hostilities between them with the signature of the Truce Pact of 4 April
                    1884 in Valparaíso, Chile. Under the terms of the Truce Pact, Chile was,
                    inter alia, to continue to govern “the territories from the parallel 23 to
                    the mouth of the Loa River in the Pacific”, i.e. the coastal region of
                    Bolivia.
                       22. The Treaty of Peace between Chile and Peru signed on 20 October
                    1883 (hereinafter the “Treaty of Ancón”) brought hostilities formally to an
                    end between Chile and Peru. Pursuant to Article 2 of the Treaty of Ancón,
                    Peru ceded to Chile the coastal province of Tarapacá. In addition, under
                    Article 3, Chile would remain in the possession of the territories of the prov-
                    inces of Tacna and Arica for a period of ten years, after which a plebiscite
                    would be held to definitively determine sovereignty over those territories.

                    15

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                    519 	        obligation to negotiate access (judgment)

                       23. On 18 May 1895, Bolivia and Chile signed three treaties: a Treaty
                    of Peace and Amity, a Treaty on the Transfer of Territory and a Treaty
                    of Commerce. The Treaty of Peace and Amity reaffirmed Chile’s sover-
                    eignty over the coastal territory it governed in accordance with the Truce
                    Pact of 4 April 1884. Under the Treaty on the Transfer of Territory,
                    Bolivia and Chile agreed, inter alia, that the territories of Tacna and
                    Arica were to be transferred to Bolivia if Chile should acquire “dominion
                    and permanent sovereignty” over them either by direct negotiations or by
                    way of the plebiscite envisaged by the 1883 Treaty of Ancón. Should
                    Chile fail to obtain the two territories mentioned above, either through
                    direct negotiations with Peru or by plebiscite, Article IV of the Treaty on
                    the Transfer of Territory provided that Chile would cede to Bolivia the
                    territory “from the Vítor inlet up to the Camarones ravine, or an equiva-
                    lent territory”. These three treaties were followed by four protocols.
                       24. On 9 December 1895, Chile and Bolivia agreed to a Protocol on
                    the scope of the obligations in the treaties of 18 May 1895 which clarified
                    the obligations undertaken by the Parties. By an exchange of Notes of
                    29 and 30 April 1896, it was agreed that these three treaties of 18 May
                    1895 were to enter into force on the condition that the Congresses of
                    both Chile and Bolivia approved this Protocol. As this condition was
                    never met, the three treaties of 18 May 1895 never entered into force.

                                            2. The 1904 Peace Treaty
                       25. The Treaty of Peace and Friendship of 20 October 1904 (herein
                    after the “1904 Peace Treaty”) officially ended the War of the Pacific as
                    between Bolivia and Chile. This Treaty entered into force on 10 March
                    1905 after the instruments of ratification were exchanged between the
                    Parties. Under the terms of its Article II, the territory occupied by Chile
                    in application of the Truce Pact of 1884 was recognized as belonging
                    “absolutely and in perpetuity” to Chile and the entire boundary between
                    the two States was delimited. Article III provided for the construction of
                    a railroad between the port of Arica and the plateau of La Paz, at the
                    expense of Chile, which was inaugurated on 13 May 1913. Under Arti-
                    cle VI, Chile granted to Bolivia “in perpetuity the amplest and freest right
                    of commercial transit in its territory and its Pacific ports”. Under Arti-
                    cle VII of the Treaty, Bolivia had “the right to establish customs agencies
                    in the ports which it may designate for its commerce” and indicated for
                    this purpose the ports of Antofagasta and Arica.

                                    3. Exchanges and Statements in the 1920s
                    A. The 1920 “Acta Protocolizada”
                      26. Before the events of 1920, in a memorandum of 22 April 1910,
                    Bolivia, referring to the dispute between Chile and Peru regarding

                    16

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                    520 	         obligation to negotiate access (judgment)

                    the sovereignty of Tacna and Arica, had already expressed the view
                    that :
                         “[it] cannot live isolated from the sea. Now and always, to the extent
                         of its abilities, it will do as much as possible to possess at least one
                         port on the Pacific, and will never resign itself to inaction each time
                         the Tacna and Arica question is raised, jeopardizing the very founda-
                         tion of its existence.”
                       27. In a memorandum of 9 September 1919, submitted by the Minister
                    Plenipotentiary of Chile in La Paz, Bolivia, it was stated, inter alia, that
                    Chile was willing to initiate negotiations, independently of what was
                    established by the 1904 Peace Treaty, in order for Bolivia to acquire an
                    outlet to the sea subject to the result of the plebiscite envisaged by the
                    1883 Treaty of Ancón.
                       28. On 10 January 1920, the Minister for Foreign Affairs of Bolivia,
                    and the Minister Plenipotentiary of Chile in La Paz met in order to
                    address, inter alia, questions relating to Bolivia’s access to the sea and
                    documented the series of meetings in writing. These minutes are referred
                    to by the Parties as “Acta Protocolizada”.
                       29. The representative of Chile proposed the following terms of agree-
                    ment:
                            “I. The Treaty of Peace and Amity celebrated between Chile and
                         Bolivia on 20 October 1904 defines the political relations of the two
                         countries in a definitive manner and put an end to all the questions
                         derived from the war of 1879.
                            II. Chile has fulfilled the obligations that said Treaty imposed on
                         it, and the essence of that negotiation was to link the territory of
                         Tacna and Arica to Chile’s dominion, Bolivia expressly committing
                         to cooperate to that result.
                            III. The Bolivian aspiration to its own port was replaced by the
                         construction of the railway that connects the port of Arica with
                         El Alto de la Paz and the rest of the obligations undertaken by
                         Chile.
                            IV. The situation created by the Treaty of 1904, the interests located
                         in that zone and the security of its northern frontier, require Chile to
                         preserve the maritime coast that is indispensable to it ; however, for
                         the purpose of founding the future union of the two countries on solid
                         ground, Chile is willing to seek that Bolivia acquire its own access to
                         the sea, ceding to it an important part of that zone in the north of
                         Arica and of the railway line which is within the territories subject to
                         the plebiscite stipulated in the Treaty of Ancón.

                            V. Independently of what was established in the Treaty of Peace of
                         1904, Chile accepts to initiate new negotiations directed at satisfying
                         the aspiration of the friendly country, subject to the victory of Chile
                         in the plebiscite.

                    17

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                    521 	         obligation to negotiate access (judgment)

                           VI. A prior agreement would determine the line that must indicate
                         the limit between the zones of Arica and Tacna that would pass to
                         the dominion of Chile and Bolivia, respectively, as well as all other
                         commercial compensations or compensations of another nature that
                         are the basis of the agreement.”
                      30. The representative of Bolivia then responded as follows:
                            “III. Bolivia’s aspiration for its own port on the Pacific Ocean has
                         not been reduced at any time in history and has currently reached a
                         greater intensity. The railway from Arica to El Alto de La Paz that
                         has facilitated Bolivian trade, contributes to promoting the legitimate
                         aspiration of securing a port that can be incorporated under Bolivian
                         sovereignty. That aspiration will not, however, lead Bolivia to commit
                         any act contrary to the law.
                            IV. The willingness demonstrated by Chile to obtain for Bolivia an
                         access of its own to the sea, ceding to it a considerable part of the
                         area north of Arica and of the railway line found within the territories
                         subject to the plebiscite established by the Treaty of Ancón, opens the
                         way to more friendly relations between both countries which are nec-
                         essary for the future union of both peoples by laying solid foundations
                         in line with their common goals.”

                      31. The penultimate clause of the minutes specified that the Minister
                    for Foreign Affairs of Bolivia considered that: “the present declarations
                    do not contain provisions that create rights, or obligations for the States
                    whose representatives make them”.

                    B. Follow-up exchanges (1920-1925)
                       32. On 1 November 1920, Bolivia wrote to the Secretary-General of
                    the League of Nations with a view to obtaining the revision of the
                    1904 Peace Treaty by the League of Nations, in accordance with Arti-
                    cle 19 of the Treaty of Versailles which provided that the “Assembly
                    may . . . advise the reconsideration by Members of the League of treaties
                    which have become inapplicable”.
                       33. On 28 September 1921, during the Twenty-Second Plenary Meet-
                    ing of the Assembly of the League of Nations, Bolivia withdrew its
                    request, following the determination by a commission of jurists that the
                    Bolivian request was inadmissible. The reason given was that the Assem-
                    bly of the League of Nations was not competent to modify treaties, as
                    only the contracting States could do it. Bolivia nevertheless reserved its
                    right to submit this request to the Assembly again.
                       34. During this meeting, the delegate of Chile replied, inter alia,
                    that:
                         “Bolivia can seek satisfaction through the medium of direct negotia-
                         tions of our own arranging. Chile has never closed that door to

                    18

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                    522 	         obligation to negotiate access (judgment)

                         Bolivia, and I am in a position to state that nothing would please us
                         better than to sit down with her and discuss the best means of facili-
                         tating her development.”
                    The Chilean delegate also stated that :
                         “[t]he Bolivian delegation has considered it necessary to make a state-
                         ment to the effect that it ‘reserves its rights’. I trust we are right in
                         thinking that this statement signifies that, in conformity with the opin-
                         ion of the Jurists, who declare that ‘the modification of treaties lies
                         solely within the competence of the contracting States’, Bolivia has
                         finally decided to exercise the only right she can assert : namely, the
                         right of negotiation with Chile, not with a view to the revision of the
                         Treaty of 1904 . . . We find it impossible to believe that Bolivia
                         intends, in making this reservation of right, to leave definitely open,
                         and to renew later, even in a different form, a request which is devoid
                         of any legal foundation . . . Chile wishes to state that she will always
                         oppose, as she opposes today, the inclusion in the agenda of the
                         Assembly of any request of Bolivia with regard to a question upon
                         which a ruling has already been given by a Committee of Jurists . . .”
                      35. In a letter dated 8 September 1922, the Bolivian delegate informed
                    the Secretary-General of the League of Nations that Bolivia reiterated the
                    reservation of its right to submit a request “for the revision or the exami-
                    nation” of the 1904 Peace Treaty and that negotiations with Chile had
                    been “fruitless”. On 19 September 1922, the Chilean delegate to the
                    Assembly of the League of Nations responded as follows:
                         “in accordance with the declaration made by its delegation at the
                         second Assembly, the Chilean Government has expressed the greatest
                         willingness to enter into direct negotiations, which it would conduct
                         in a spirit of frank conciliation.
                            I desire to state that the declaration of M. Gutierrez, concerning
                         the mission of the Bolivian Minister at Santiago, is not in accordance
                         with the true facts of the case.
                            The President of the Republic of Chile . . . informed the Bolivian
                         representative . . . that he did not recognize the right of the Bolivian
                         Government to claim a port on the Pacific Ocean, since Bolivia aban-
                         doned that aspiration when it signed the Treaty of Peace of 1904, and
                         obtained in exchange the assumption by Chile of heavy engagements
                         which have been entirely carried out. The President of the Republic
                         added that the aspirations of Bolivia might be satisfied by other
                         means, and that his Government was quite ready to enter into nego-
                         tiations on this subject in a sincere spirit of peace and conciliation.”

                      36. In 1922 and 1923, parallel to its attempts to revise the 1904 Peace
                    Treaty, Bolivia further continued to negotiate directly with Chile in order
                    to obtain sovereign access to the Pacific Ocean.

                    19

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                    523 	              obligation to negotiate access (judgment)

                       37. On 6 February 1923, in response to a Note of 27 January 1923 of
                    the Bolivian Minister for Foreign Affairs and Worship, in which the revi-
                    sion of the 1904 Peace Treaty was proposed, the Chilean Minister for
                    Foreign Affairs stated that the Chilean Government remained open to the
                    Bolivian proposals aimed at concluding a new Pact to address “Bolivia’s
                    situation, but without modifying the Peace Treaty and without interrupt-
                    ing the continuity of the Chilean territory”. He added that Chile “will
                    devote great efforts to consult [Bolivia], in light of the concrete proposals
                    that Bolivia submits and when appropriate, the bases of direct negotia-
                    tions leading, through mutual compensation and without detriment to
                    inalienable rights, to the fulfilment of this longing”.

                       38. In a Note dated 12 February 1923 to the Chilean Minister for For-
                    eign Affairs, the Minister Plenipotentiary of Bolivia in Chile requested the
                    revision of the 1904 Peace Treaty and stated that:
                            “If the request that I was asked to make does not receive the
                         response that my country expects, and instead you inform me that the
                         Chilean Ministry of Foreign Affairs is willing to hear the proposals
                         that my Government wants to submit to it, in order to enter into a
                         treaty at the right time, and with mutual compensation, which, with-
                         out modifying the Treaty of Peace and without interrupting the con-
                         tinuity of Chilean territory, considers the situation and Bolivia’s
                         aspirations and which your Government would make every effort to
                         bring about, I can do nothing more than tell you that my Government
                         has instructed me to put an end to these negotiations, as the reason
                         for them was to seek a firm and secure basis on which Bolivia’s aspi-
                         rations could be reconciled with Chile’s interests.”

                      39. In a Note of 22 February 1923 to the Minister Plenipotentiary of
                    Bolivia in Chile, the Minister for Foreign Affairs of Chile stated:

                         “[the 1904 Peace] Treaty does not contain any other territorial stipula-
                         tion than the one declaring Chile’s absolute and perpetual dominion of
                         the area of the former Littoral included in the Atacama Desert, which
                         had been the subject of a long dispute between the two countries.
                         �����������������������������������������������������������������������������������������������������������������
                             Chile will never recognize the obligation to give a port to Bolivia
                         within that zone, because it was ceded to us definitively and uncon-
                         ditionally in 1904, and also, because, as I said in my note of the sixth
                         of this month, such recognition would interrupt the continuity of its
                         own territory ; however, without modifying the Treaty and leaving its
                         provisions intact and in full force and effect, there is no reason to fear
                         that the well intentioned efforts of the two Governments would not
                         find a way to satisfy Bolivia’s aspirations, provided that they are lim-
                         ited to seeking free access to the sea and do not take the form of the

                    20

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                    524 	              obligation to negotiate access (judgment)

                         maritime vindication that Your Excellency’s note suggests. I would
                         like to take this opportunity to state, once again, my Government’s
                         willingness to discuss the proposals that the Bolivian Government
                         wishes to present in this regard.”

                       40. In a press interview of 4 April 1923, the President of Chile,
                    Mr. Arturo Alessandri, made the following statement in which, notably,
                    he referred to the decision of 1922 of Peru and Chile to submit their ter-
                    ritorial dispute over Tacna and Arica to arbitration by the President of
                    the United States of America:
                             “[L]egally, we have no commitment towards Bolivia. We have had
                         our relations completely and definitively settled by the solemn faith
                         undertaken when both countries signed the Treaty of Peace and
                         Amity on 20 October 1904.
                         �����������������������������������������������������������������������������������������������������������������
                             This Treaty, which was highly beneficial to Bolivia and gave it free
                         and perpetual access to the Pacific Ocean, was established on the
                         condition that such country renounce its right to any port claims in
                         the Pacific and Chile, the victorious country, fully paid for the terri-
                         tory that was ceded, since the pecuniary obligations imposed on Chile,
                         which have been religiously performed, represent for Chile an approx-
                         imate cost of around eight million pounds sterling.
                         �����������������������������������������������������������������������������������������������������������������
                             Notwithstanding the foregoing, I repeat that, in case the arbitral
                         award of Washington allows it, Chile, who insists on its longing to
                         contribute all its resources to the tranquility of America, will gener-
                         ously consider the port aspirations of Bolivia in the form and terms
                         clearly and frequently posed in the Note of the Ministry of Foreign
                         Affairs of Chile, addressed to the Bolivian Minister in Chile, on
                         6 February.”
                      41. By an arbitral award of 1925, the President of the United States,
                    Mr. Calvin Coolidge, set forth the terms of the plebiscite over Tacna and
                    Arica provided for in Article 3 of the Treaty of Ancón (Tacna‑Arica
                    Question (Chile, Peru), 4 March 1925, Reports of International Arbitral
                    Awards (RIAA), Vol. II, pp. 921‑958).

                    C. The 1926 Kellogg Proposal and the 1926 Matte Memorandum
                      42. On 30 November 1926, the Secretary of State of the United States
                    of America, Mr. Frank B. Kellogg, submitted a proposal to Chile and
                    Peru, regarding the question of sovereignty over the provinces of Tacna
                    and Arica. It reads as follows :
                           “I have decided to outline and place before the two Governments
                         a plan which, in my judgment, is worthy of their earnest attention . . .

                    21

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                    525 	              obligation to negotiate access (judgment)

                         This plan calls for the co-operation of a third power, Bolivia, which
                         has not yet appeared in any of the negotiations, at least so far as my
                         Government is concerned. While the attitude of Bolivia has not been
                         ascertained, save that her aspiration to secure access to the Pacific is
                         common knowledge, it seems reasonable to assume that Bolivia, by
                         virtue of her geographical situation, is the one outside power which
                         would be primarily interested in acquiring, by purchase or otherwise
                         the subject matter of the pending controversy.

                            With this preface let me now define the concrete suggestion which
                         I have in mind :
                         (a) The Republics of Chile and Peru, either by joint or by several
                             instruments freely and voluntarily executed, to cede to the Repub-
                             lic of Bolivia, in perpetuity, all right, title and interest which either
                             may have in the Provinces of Tacna and Arica ; the cession to be
                             made subject to appropriate guaranties for the protection and
                             preservation, without discrimination, of the personal and prop-
                             erty rights of all of the inhabitants of the provinces of whatever
                             nationality.”
                      43. On 2 December 1926, the Minister for Foreign Affairs of Bolivia
                    wrote to the Minister Plenipotentiary of the United States of America in
                    La Paz expressing Bolivia’s full acceptance of the Kellogg proposal.

                       44. By a memorandum of 4 December 1926 (the “Matte Memoran-
                    dum”) addressed to the Secretary of State of the United States of Amer-
                    ica, the Minister for Foreign Affairs of Chile expressed his position
                    towards the proposal of the Secretary of State of the United States of
                    America, in the following terms:
                           “The [R]epublic of Bolivia which 20 years after the termination of
                         the war spontaneously renounced the total sea coast, asking, as more
                         suitable for its interests, compensation of a financial nature and
                         means of communication, has expressed its desire to be considered in
                         the negotiations which are taking place to determine the nationality
                         of these territories. Neither in justice nor in equity can justification be
                         found for this demand which it formulates today as a right.

                             Nevertheless, the Government of Chile has not failed to take into
                         consideration, this new interest of the Government of Bolivia and has
                         subordinated its discussion, as was logical, to the result of the pending
                         controversy with the Government of Peru. Furthermore, in the course
                         of the negotiations conducted during the present year before the State
                         Department and within the formula of territorial division, the Gov-
                         ernment of Chile has not rejected the idea of granting a strip of ter-
                         ritory and a port to the Bolivian nation.
                         �����������������������������������������������������������������������������������������������������������������

                    22

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                    526 	         obligation to negotiate access (judgment)

                            The proposal of the Department of State goes much farther than
                         the concessions which the Chilean Government has generously been
                         able to make. It involves the definitive cession to the [R]epublic of
                         Bolivia of the territory in dispute, and, although, as the Secretary of
                         State says, this solution does not wound the dignity of the contending
                         countries and is in harmony with the desire, repeatedly shown by the
                         Chilean Government, to help satisfy Bolivian aspirations, it is no less
                         true that it signifies a sacrifice of our rights and the cession of a ter-
                         ritory incorporated for 40 years in the [R]epublic by virtue of a solemn
                         [T]reaty, a situation which cannot be juridically altered, except by a
                         plebiscite, whose result offers no doubt whatever in the opinion of the
                         Chilean people.”
                      45. Subsequently, in a Note of 7 December 1926 to the Minister Pleni-
                    potentiary of Chile in Bolivia, the Minister for Foreign Affairs of Bolivia
                    noted that, in his country’s view, “Chile welcome[d] the proposal issued
                    by the Secretary of State of the United States”.

                      46. Finally, by a memorandum dated 12 January 1927, the Minister
                    for Foreign Relations of Peru informed the Secretary of State of the
                    United States of America that the Peruvian Government did not accept
                    the United States’ proposal regarding Tacna and Arica.

                                 4. Bolivia’s Reaction to the 1929 Treaty of Lima
                                          and Its Supplementary Protocol
                      47. Due to difficulties arising in the execution of the 1925 arbitral
                    award between Chile and Peru concerning the terms of the plebiscite over
                    Tacna and Arica provided for in Article 3 of the Treaty of Ancón, Chile
                    and Peru agreed to resolve the issue of sovereignty over Tacna and Arica
                    by treaty rather than to hold a plebiscite to determine sovereignty.
                      48. On 3 June 1929, Chile and Peru concluded the Treaty of Lima,
                    whereby they agreed that sovereignty over the territory of Tacna belonged
                    to Peru, and that over Arica to Chile. In a Supplementary Protocol to this
                    Treaty, Peru and Chile agreed, inter alia, to the following:

                            “The Governments of Chile and Peru shall not, without previous
                         agreement between them, cede to any third Power the whole or a part
                         of the territories which, in 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.” (Art. I.)
                       49. In a memorandum to the Secretary of State of the United States of
                    America dated 1 August 1929, upon receipt of this agreement, the Minis-
                    ter for Foreign Affairs of Bolivia affirmed that this new agreement
                    between Chile and Peru would not result in Bolivia renouncing its “policy
                    of restoration of [its] maritime sovereignty”.

                    23

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                    527 	         obligation to negotiate access (judgment)

                                          5. The 1950 Exchange of Notes
                       50. In the late 1940s, Bolivia and Chile held further discussions
                    regarding Bolivia’s access to the sea. Notably, in a Note dated 28 June
                     1948, the Ambassador of Bolivia in Chile reported to the Minister for
                     Foreign Affairs of Bolivia his interactions with the Chilean President,
                     Mr. Gabriel González Videla, regarding the opening of these negotiations
                     and included a draft protocol containing Bolivia’s proposal.

                      51. In a Note dated 1 June 1950, the Ambassador of Bolivia to Chile
                    made the following formal proposal to the Minister for Foreign Affairs of
                    Chile to enter into negotiations (Bolivia’s translation):

                            “With such important precedents (translated by Chile as “back‑
                         ground”), that identify a clear policy direction of the Chilean Repub-
                         lic, I have the honour of proposing to His Excellency that the
                         Governments of Bolivia and Chile formally enter into direct negoti-
                         ations to satisfy Bolivia’s fundamental need to obtain its own sover-
                         eign access to the Pacific Ocean, solving the problem of Bolivia’s
                         landlocked situation on terms that take into account the mutual ben-
                         efit and genuine interests of both nations.”

                            (“Con tan importantes antecedentes, que al respecto señalan una
                         clara orientación de la política internacional seguida por la República
                         chilena, tengo a honra proponer a Vuestra Excelencia que los gobier-
                         nos de Bolivia y de Chile ingresen formalmente a una negociación
                         directa para satisfacer la fundamental necesidad boliviana de obtener
                         una salida propia y soberana al Océano Pacífico, resolviendo así el
                         problema de la mediterraneidad de Bolivia sobre bases que consulten
                         las recíprocas conveniencias y los verdaderos intereses de ambos
                         pueblos.”)
                      52. In a Note of 20 June 1950, the Minister for Foreign Affairs of
                    Chile responded as follows (Chile’s translation):

                            “From the quotes contained in the note I answer, it flows that the
                         Government of Chile, together with safeguarding the de jure situation
                         established in the Treaty of Peace of 1904, has been willing to study
                         through direct efforts (translated by Bolivia as “direct negotiations”)
                         with Bolivia the possibility of satisfying the aspirations of the Gov-
                         ernment of Your Excellency and the interests of Chile.

                           At the present opportunity, I have the honour of expressing to
                         Your Excellency that my Government will be consistent with that
                         position and that, motivated by a fraternal spirit of friendship towards

                    24

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                    528 	              obligation to negotiate access (judgment)

                         Bolivia, is open formally to enter into a direct negotiation aimed at
                         searching for a formula (translated by Bolivia as “is willing to formally
                         enter into direct negotiations aimed at finding a formula”) that would
                         make it possible to give Bolivia its own sovereign access to the Pacific
                         Ocean, and for Chile to obtain compensation of a non-territorial
                         character which effectively takes into account its interests.”

                            (“De la citas contenidas en la nota que contesto, fluye que el
                         Gobierno de Chile, junto con resguard[ar] la situación de derecho
                         establecida en el Tratado de Paz de 1904, ha estado dispuesto a
                         estudiar, en gestiones directas con Bolivia, la posibilidad de satisfacer
                         las aspiraciones del Gobierno de Vuestra Excelencia y los intereses de
                         Chile. En la presente oportunidad, tengo el honor de expresar a
                         Vuestra Excelencia que mi Gobierno será con[se]cuente con esa
                         posición y que, animado de un espíritu de eternal amistad hacia
                         Bolivia, está llano a entrar formalmente en una negociación directa
                         destinada a buscar la fórmula que pueda hacer posible dar a Bolivia
                         una salida propia y soberana al Océano Pacífico, y a Chile obtener
                         las compensaciones que no tengan carácter territorial y que consulten
                         efectivamente sus intereses.”)
                      53. The negotiations between Chile and Bolivia did not make any fur-
                    ther progress in the following years. On 29 March 1951, the President of
                    Chile, Mr. Gabriel González Videla, stated as follows:
                            “[T]he policy of the Chilean Government has unvaryingly been a
                         single one : to express its willingness to give an ear to any Bolivian
                         proposal aimed at solving its landlocked condition, provided that it
                         is put forward directly to us and that it does not imply renouncing
                         our traditional doctrine of respect for international treaties, which we
                         deem essential for a peaceful coexistence between Nations.

                         �����������������������������������������������������������������������������������������������������������������
                             Every time Bolivia has updated its desire for an outlet to the sea,
                         consideration was naturally given to what that country might offer us
                         as compensation in the event that an agreement is reached on this
                         particular matter with Chile and Peru.”

                                                 6. The 1961 Trucco Memorandum
                       54. From 1951 to 1957, the exchanges between the Parties were focused
                    on improving the practical implementation of the régime for Bolivia’s
                    access to the Pacific Ocean.
                       55. On 10 July 1961, upon learning about Bolivia’s intention to raise
                    the issue of its access to the Pacific Ocean during the Inter-American
                    Conference which was to take place later that year in Quito, Ecuador,
                    Chile’s Ambassador in Bolivia, Mr. Manuel Trucco, handed to the Min-
                    ister for Foreign Affairs of Bolivia a memorandum which he had earlier

                    25

5 CIJ1150.indb 46                                                                                22/05/19 10:55

                    529 	         obligation to negotiate access (judgment)

                    addressed to the Minister for Foreign Affairs of Chile, known as the
                    “Trucco Memorandum”. It reads as follows (Chile’s translation):

                           “1. Chile has always been open (translated by Bolivia as “been will‑
                         ing”), together with safeguarding the de jure situation established in
                         the Treaty of Peace of 1904, to study, in direct dealings with Bolivia,
                         the possibility of satisfying its aspirations and the interests of Chile.
                         Chile will always reject the resort, by Bolivia, to organizations which
                         are not competent to resolve a matter which is already settled by
                         Treaty and could only be modified by direct agreement (translated by
                         Bolivia as “direct negotiations”) of the parties.

                            2. Note number 9 of our Ministry of Foreign Affairs, dated in San-
                         tiago on 20 June 1950, is a clear testimony (translated by Bolivia as
                         “clear evidence”) of those purposes. Through it, Chile states that it is
                         ‘open formally to enter into a direct negotiation aimed at searching
                         for a formula that would make it possible to give Bolivia its own
                         sovereign access to the Pacific Ocean (translated by Bolivia as
                         “expresses having ‘full consent to initiate as soon as possible, direct
                         negotiations aimed at satisfying the fundamental national need of own
                         sovereign access to the Pacific Ocean’”), and for Chile to obtain com-
                         pensation of a non‑territorial character which effectively takes into
                         account its interests.’

                           3. Given that President Paz Estenssoro manifested his willingness
                         to visit President Alessandri, in response to the invitation made by
                         the President of Chile, it would seem particularly untimely and incon-
                         venient to unsettle public opinion in both countries with the announce-
                         ment of resorting to international organizations to deal with a
                         problem that the Government of Bolivia has not specified (translated
                         by Bolivia as “has not resolved”) in its direct relations with the Gov-
                         ernment of Chile.”

                            (“1. Chile ha estado siempre llano, junto con resguardar la situ-
                         ación de derecho establecida en el Tratado de Paz de 1904, a estudiar,
                         en gestiones directas con Bolivia, la posibilidad de satisfacer las aspir-
                         aciones de ésta y los intereses de Chile. Chile rechazará siempre el
                         recurso, por parte de Bolivia, a organismos que no son competentes
                         para resolver un asunto zanjado por Tratado, y que sólo podría mod-
                         ificarse por acuerdo directo de las partes. 2. La nota No. 9 de nuestra
                         Cancillería, fechada en Santiago el 20 de junio de 1950, es claro tes-
                         timonio de esos propósitos. Mediante ella, Chile manifiesta estar
                         ‘llano a entrar formalmente en una negociación directa destinada a
                         buscar la fórmula que pueda hacer posible dar a Bolivia una salida
                         propia y soberana al Océano Pacífico, y a Chile obtener las compen-

                    26

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                    530 	         obligation to negotiate access (judgment)

                         saciones que no tengan carácter territorial y que consulten efectiva-
                         mente sus intereses.’ 3. Habiendo significado el Presidente Paz
                         Estenssoro su voluntad de visitar el Presidente Alessandri, en respuesta
                         a la invitación que el Presidente de Chile le formulara, pareciera espe-
                         cialmente extemporáneo e inconveniente agitar a la opinión pública
                         de ambos países con el anuncio de recurrir a organismos internacion-
                         ales para tratar de un problema que el Gobierno de Bolivia no ha
                         concretado en sus relaciones directas con el Gobierno de Chile.”)

                      56. In reply to this memorandum, the Ministry for Foreign Affairs of
                    Bolivia, on 9 February 1962, expressed
                         “its full consent to initiate, as soon as possible, direct negotiations
                         aimed at satisfying the fundamental national need of its own sover-
                         eign access to the Pacific Ocean, in return for compensation that,
                         without being territorial in character, takes into account the recipro-
                         cal benefits and effective interests of both countries”.

                       57. On 15 April 1962, Bolivia severed diplomatic relations with Chile
                    as a consequence of the latter’s use of waters of the River Lauca.
                       58. On 27 March 1963, the Minister for Foreign Affairs of Chile indi-
                    cated that Chile “was not willing to enter into discussions that could
                    affect national sovereignty or involve a cession of territory of any kind”
                    and denied that the Trucco Memorandum constituted “an official note”,
                    emphasizing that it was merely an “Aide Memoire” recalling “a simple
                    statement of points of view at a certain time”. It also stated that Chile
                    had an interest in improving “all the means of transport between the two
                    countries” and had proposed to engage in a joint action of economic
                    development.
                       59. On 3 April 1963, the Minister for Foreign Affairs of Bolivia main-
                    tained that the 1950 exchange of Notes was constitutive of a “commitment”
                    of the Parties, a contention rejected by Chile in a letter dated 17 November
                    1963 to the Minister for Foreign Affairs of Bolivia. In a Note sent by the
                    President of Bolivia, Mr. René Barrientos Ortuño, to the President of Uru-
                    guay, Mr. Oscar Diego Gestido, regarding Bolivia’s absence from the meet-
                    ing of the Heads of State of the American nations held in Punta del Este in
                    1967 and in the subsequent response of the Minister for Foreign Affairs of
                    Chile the opposing views of Bolivia and Chile regarding the nature of the
                    exchange of Notes of 1950 were again in evidence.

                                             7. The Charaña Process
                       60. On 15 March 1974, a joint communiqué was signed by the Presi-
                    dents of Bolivia and Chile, General Banzer and General Pinochet, respec-
                    tively, expressing their agreement to initiate negotiations on “pending and
                    fundamental issues for both nations”.

                    27

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                    531 	         obligation to negotiate access (judgment)

                      61. On 9 December 1974, several States of Latin America, including
                    Bolivia and Chile, signed the Declaration of Ayacucho which specified,
                    regarding the Bolivian situation, that:
                            “Upon reaffirming the historic commitment to strengthen, once
                         more, the unity and solidarity between our peoples, we offer the great-
                         est understanding to the landlocked condition affecting Bolivia, a
                         situation that demands the most attentive consideration leading
                         towards constructive understanding.”
                      62. On 8 February 1975, a Joint Declaration was signed at Charaña by
                    the Presidents of Bolivia and Chile, known as the Charaña Declaration,
                    which stated, inter alia, (Bolivia’s translation):

                            “3. In this regard, the Presidents reaffirmed their full support of the
                         Declaration of Ayacucho in which the spirit of solidarity and open-
                         ness to understandings of this part of America is faithfully reflected.
                            4. Both Heads of State, within a spirit of mutual understanding and
                         constructive intent, have decided (translated by Chile as “have
                         resolved”) to continue the dialogue, at different levels, in order to
                         search for formulas (translated by Chile as “seek formulas”) to solve
                         the vital issues that both countries face, such as the landlocked situ-
                         ation that affects Bolivia, taking into account the mutual interests
                         (translated by Chile as “their reciprocal interests”) and aspirations of
                         the Bolivian and Chilean peoples.
                            5. The two Presidents have decided (translated by Chile as “have
                         resolved”) to continue developing a policy of harmony and under-
                         standing so that, in an atmosphere of co-operation, the formulas for
                         peace and progress in the continent will be found.”

                            (“3. En este sentido, los Presidentes reafirmaron su plena adhesión
                         a la Declaración de Ayacucho, en la que se refleja fielmente un espíritu
                         solidario y abierto al entendimiento en esta parte de América.
                         4. Ambos mandatarios, con ese espíritu de mutua comprensión y
                         ánimo constructivo, han resuelto se continúe el diálogo a diversos
                         niveles, para buscar fórmulas de solución a los asuntos vitales que
                         ambos países confrontan, como el relativo a la situación de mediter-
                         raneidad que afecta a Bolivia, dentro de recíprocas conveniencias y
                         atendiendo a las aspiraciones de los pueblos boliviano y chileno.
                         5. Los dos Presidentes han resuelto seguir desarrollando una política
                         en favor de la armonía y el entendimiento, para que, en un clima de
                         cooperación se encuentre, en conjunto, una fórmula de paz y progreso
                         en nuestro Continente.”)
                      63. In a speech of 11 September 1975, the President of Chile, Gen-
                    eral Pinochet, stated that:
                         “with deep satisfaction I can note . . . the resuming of our traditional
                         links with Bolivia, which has been suspended for over 13 years. Since

                    28

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                    532 	                obligation to negotiate access (judgment)

                           the Charaña meeting with the President of Bolivia, we have repeated
                           our unchanging purpose of studying, together with that brother coun-
                           try, within the framework of a frank and friendly negotiation, the
                           obstacles that limit Bolivia’s development on account of its land-
                           locked condition. We trust we will find a just, timely and lasting solu-
                           tion.”
                      64. In pursuance of the “dialogue” referred to in the Joint Declaration
                    of Charaña, Bolivia proposed guidelines for negotiations on 26 August
                    1975. In December of that year, Chile presented its counter-proposal for
                    guidelines, which included a condition of territorial exchange. It reads as
                    follows:
                          �����������������������������������������������������������������������������������������������������������������
                         “(b) On this basis, the Chilean response is based on a mutually con-
                                venient arrangement that would take into account the interests of
                                both countries and that would not contain any innovation to the
                                provisions of the Treaty of Peace, Amity, and Commerce signed
                                between Chile and Bolivia on 20 October 1904.
                          (c) As His Excellency President Banzer stated, the cession to
                                Bolivia of a sovereign maritime coastline, linked to Bolivian terri-
                                tory through an equally sovereign territorial strip, would be
                                considered.
                          (d) Chile would be willing to negotiate with Bolivia the cession of a
                                 strip of territory north of Arica up to the Concordia Line based
                                 on the following delimitations :
                                — North Boundary : Chile’s current boundary with Peru.
                                — South Boundary : Gallinazos ravine and the upper edge of the
                                       ravine north of the River Lluta, (so that the A-15 highway
                                       from Arica to Tambo Quemado would in its entirety be part
                                       of Chilean territory) up until a point to the South of Puquios
                                       Station, and then an approximately straight line passing
                                       through contour 5370 of Cerro Nasahuento and extending to
                                       the current international boundary between Chile and Bolivia.
                                — Area : the cession would include the land territory described
                                       above and the maritime territory comprised between the par-
                                       allels of the end points of the coast that would be ceded (ter-
                                       ritorial sea, economical zone, and submarine shelf).
                          (e) The Government of Chile rejects, for being unacceptable, the ces-
                                 sion of territory to the south of the indicated limit, that could
                                 affect in any way the territorial continuity of the country.

                          (f) The cession to Bolivia described in section (d) would be subject
                              to a simultaneous exchange of territories, that is to say, Chile
                              would at the same time receive in exchange for what it hands over
                              a compensatory area at least equal to the area of land and sea
                              ceded to Bolivia.

                    29

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                    533 	              obligation to negotiate access (judgment)

                         		The territory that Chile would receive from Bolivia could be con-
                                tinuous or composed of different portions of border territory
                         �����������������������������������������������������������������������������������������������������������������
                          (i) The Government of Bolivia would authorize Chile to use all of
                                the waters in the River Lauca.
                          (j) The territory ceded by Chile would be declared a Demilitarized
                                Zone and, in accordance with previous conversations, the Boliv-
                                ian Government would undertake to obtain the express guaran-
                                tee of the Organization of American States with respect to the
                                inviolability of the ceded land strip
                         �����������������������������������������������������������������������������������������������������������������
                         (m) Bolivia shall commit to respect the easements in favour of Peru
                                established in the Chilean-Peruvian Treaty of 3 June 1929.
                         (n) The force of this agreement shall be conditioned upon Peru’s
                                prior agreement in accordance with Article 1 of the Supplemen-
                                tary Protocol to the aforementioned Treaty.”
                       65. Chile’s proposal was accepted by Bolivia as a basis for the negotia-
                    tions. However, in January 1976, Bolivia specified that its acceptance of
                    the condition of the territorial exchange was subject “to a clarification of
                    the maritime area, in view of the fact that the extension of internal waters,
                    territorial sea and patrimonial sea has not yet been defined by the Inter-
                    national Community” and it reserved “the right to negotiate the areas
                    that might be potentially exchanged”. In March 1976, the Minister for
                    Foreign Affairs of Bolivia recalled that Bolivia had not assumed definitive
                    commitments on this issue and declared as follows:
                            “We have categorically declared that we accept global bases of
                         negotiation that take into account the reciprocal interests of our
                         two countries, particularly as regards those matters on which there is
                         common ground between us. All other matters contained in the doc-
                         uments forming the background to the negotiations, i.e. Bolivia’s
                         proposal and the Government of Chile’s response, would be addressed
                         at a later stage of the negotiations. Consequently, we want to make
                         clear that our Government has not accepted the demilitarization of
                         the area to be handed over to Bolivia, inasmuch as it would lead to
                         a limitation of sovereignty, the use of the waters of the Lauca River
                         as a whole, or a territorial exchange that would extend over maritime
                         areas.”

                       66. By an exchange of Notes of 28 July and 11 August 1976, Chile and
                    Bolivia agreed to establish a mixed permanent commission, which was
                    created on 18 November 1976, “to discuss any issues of common interest
                    to both countries”. Throughout 1976, at several junctures, Bolivia con-
                    firmed that it was willing to consider transferring certain areas of its ter-
                    ritory for an equivalent portion of Chilean territory.

                    30

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                    534 	         obligation to negotiate access (judgment)

                      67. On 19 December 1975, pursuant to the guidelines for negotiations
                    and the Supplementary Protocol to the Treaty of Lima of 3 June 1929,
                    Chile asked Peru whether it agreed with the territorial cession envisaged
                    between Bolivia and Chile. In November 1976, Peru replied with a
                    counter-proposal for the creation of an area under tripartite sovereignty,
                    which was not accepted by either Chile or Bolivia. However, Peru refused
                    to change its position on this matter.

                       68. On 24 December 1976, the President of Bolivia, General Banzer,
                    publicly announced that he “propose[d] that the Government of Chile
                    modify its proposal to eliminate the condition regarding an exchange of
                    territory” if they were to continue the negotiations. However, throughout
                    1977, the negotiations continued on the basis of the exchanges of 1975.
                    On 10 June 1977, the Ministers for Foreign Affairs of Bolivia and Chile
                    issued a Joint Declaration, stating that:

                         “[t]hey emphasize that the dialogue established via the Declaration of
                         Charaña reflects the endeavouring of the two Governments to deepen
                         and strengthen the bilateral relations between Chile and Bolivia by
                         seeking concrete solutions to their respective problems, especially
                         with regard to Bolivia’s landlocked situation. Along these lines, they
                         indicate that, consistently with this spirit, they initiated negotiations
                         aimed at finding an effective solution that allows Bolivia to count on
                         a free and sovereign outlet to the Pacific Ocean.

                           Taking as a basis both Ministers’ constructive analysis of the course
                         of the negotiations regarding Bolivia’s vital problem, they resolve to
                         deepen and activate their dialogue, committing to do their part to
                         bring [their] negotiation to a happy end as soon as possible.

                            Consequently, they reaffirmed the need to pursue the negotiations
                         from their current status.”
                      69. In a letter of 21 December 1977, the President of Bolivia informed
                    his Chilean counterpart that, in order to continue the negotiations, new
                    conditions should be established to achieve the objectives set by the Joint
                    Declaration of Charaña, notably that both the condition of territorial
                    exchange and Peru’s proposal for a zone of shared sovereignty between
                    the three countries should be withdrawn. In January 1978, Chile informed
                    Bolivia that the guidelines for negotiations agreed in December 1975
                    remained the foundation of any such negotiations.

                      70. On 17 March 1978, Bolivia informed Chile that it was suspending
                    diplomatic relations between them, given Chile’s lack of flexibility with
                    respect to the conditions of the negotiations and Chile’s lack of effort to
                    obtain Peru’s consent to the exchange of territory.

                    31

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                    535 	          obligation to negotiate access (judgment)

                         8. Statements by Bolivia and Chile at the Organization of American
                                 States and Resolutions Adopted by the Organization
                       71. On 6 August 1975, the Permanent Council of the OAS, of which
                    Bolivia and Chile are Member States, adopted by consensus resolution
                    CP/RES. 157 which stated that Bolivia’s landlocked status was a matter
                    of “concern throughout the hemisphere”, and that all American States
                    offered their co-operation in “seeking solutions” in accordance with the
                    principles of international law and the Charter of the OAS.
                       72. This resolution was followed by 11 other resolutions, reaffirming
                    the importance of dialogue and of the identification of a solution to the
                    maritime problem of Bolivia, adopted by the General Assembly of the
                    OAS between 1979 and 1989. Chile did not vote in favour of any of the
                    11 resolutions, but did not oppose consensus on three occasions, while
                    making declarations or explanations with respect to the content and legal
                    status of the resolutions adopted.
                       73. In particular, on 31 October 1979, the General Assembly of the
                    OAS adopted resolution AG/RES. 426, which stated that it was “of con-
                    tinuing hemispheric interest that an equitable solution be found whereby
                    Bolivia [would] obtain appropriate sovereign access to the Pacific Ocean”.
                    The representative of Chile protested against the draft resolution, contest-
                    ing the jurisdiction of the General Assembly of the OAS in this matter,
                    and added in a statement of 31 October 1979 that:
                             “Consequently, Chile emphatically declares that, in accordance
                          with the legal rules indicated, this resolution does not obstruct it or
                          bind it or obligate it in any way.
                             On repeated occasions I have indicated Chile’s willingness to nego-
                          tiate a solution with Bolivia to its aspiration to have free and sover-
                          eign access to the Pacific Ocean. The way to reach that goal is direct
                          negotiation, conducted at a level of professionalism and mutual
                          respect, without any interference, suggestions or dictates from any-
                          one.
                             Once again Bolivia has rejected this way, and the path that it has
                          chosen through this resolution, in an attempt to condition and put
                          pressure on Chile, creates an insuperable obstacle to opening nego
                          tiations that will satisfy its aspiration and duly contemplate the dig-
                          nity and sovereignty of both parties.

                            This Assembly has closed that path. It has made the possibility
                          of Bolivia obtaining satisfaction of its maritime aspiration more
                          remote.
                            As long as it insists on the path indicated by this resolution, as long
                          as it rejects the proper and logical path of free negotiations without
                          any conditions between the two countries, as long as it attempts to
                          put pressure on Chile through foreign interference, Bolivia will have
                          no outlet to the sea through Chilean territory. The responsibility will
                          not have been Chile’s.”

                    32

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                    536 	         obligation to negotiate access (judgment)

                       74. In 1983, the General Assembly of the OAS adopted resolution AG/
                    RES. 686. Both Bolivia and Chile took part in drafting this resolution
                    through the good offices of Colombia, which recommended a process
                    of
                         “rapprochement . . . directed toward normalizing relations [between
                         Bolivia and Chile] and overcoming the difficulties that separate
                         them — including, especially, a formula for giving Bolivia a sovereign
                         outlet to the Pacific Ocean”.

                    Chile did not oppose consensus, expressing support for the draft resolu-
                    tion, with some reservations.
                       75. In 1987 and 1988, the General Assembly of the OAS issued
                    two  resolutions — AG/RES. 873 and AG/RES. 930 (XVIII-0/88) —
                    expressing
                         “regret . . . that the latest talks held between Chile and Bolivia were
                         broken off, and to again urge the [S]tates directly involved in this
                         problem to resume negotiations in an effort to find a means of making
                         it possible to give Bolivia an outlet to the Pacific Ocean”.

                                      9. The “Fresh Approach” of 1986-1987
                       76. After the presidential elections in Bolivia in July 1985, new nego-
                    tiations were opened between Bolivia and Chile, within the framework of
                    what was called the “fresh approach”. In November 1986, the renewal of
                    Bolivia and Chile’s negotiations was reported to the General Assembly of
                    the OAS which took note of it with the adoption of resolution AG/
                    RES. 816. On 13 November 1986, the Ministers for Foreign Affairs of
                    Bolivia and Chile each issued a communiqué in which they stated that
                    they were to carry out the talks, initiated that year, in a meeting sched-
                    uled in April 1987. In his communiqué, the Minister for Foreign Affairs
                    of Bolivia specified that they were to consider “the aspects related to the
                    maritime issue of Bolivia”.
                       77. The meeting held between 21 and 23 April 1987 in Montevideo,
                    Uruguay, between the Parties was opened by speeches of the Ministers
                    for Foreign Affairs of Chile and Bolivia. During this meeting, Bolivia
                    presented two alternative proposals to gain access to the Pacific Ocean,
                    both involving the transfer of a part of Chilean territory. The first pro-
                    posal involved the sovereign transfer to Bolivia of a strip of land linked
                    to the maritime coast and the second one proposed the transfer of a “ter-
                    ritorial and maritime enclave in the north of Chile”, with three different
                    alternative locations that would not “affect the territorial continuity of
                    Chile”. On 9 June 1987, Chile rejected both proposals. On 17 June, before
                    the General Assembly of the OAS, the representative of Bolivia announced
                    the suspension of bilateral negotiations between the two States as a con-

                    33

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                    537 	         obligation to negotiate access (judgment)

                    sequence of their inability to reach agreement based on its proposals of
                    April 1987. By a resolution of 14 November 1987, the General Assembly
                    of the OAS recorded the discontinuance of the talks between Chile and
                    Bolivia.

                                       10. The Algarve Declaration (2000)
                                         and the 13‑Point Agenda (2006)
                       78. In 1995, the Parties resumed their discussions. They launched a
                    “Bolivian- Chilean mechanism of Political Consultation” to deal with
                    bilateral issues. On 22 February 2000, the Ministers for Foreign Affairs of
                    both countries issued a joint communiqué, the “Algarve Declaration”,
                    envisaging a working agenda which would include “without any excep-
                    tion, the essential issues in the bilateral relationship”.

                      79. From 2000 to 2003, the Parties engaged in discussions regarding a
                    Chilean concession to Bolivia for the creation of a special economic zone
                    for an initial time period of 50 years, but the project was finally rejected
                    by Bolivia. On 1 September 2000, the Presidents of Bolivia and Chile,
                    General Banzer and Mr. Lagos, issued a joint communiqué in which they
                    “reiterated . . . the willingness of their Governments to engage in a dia-
                    logue on all issues concerning their bilateral relations”.

                       80. Following different exchanges throughout 2005 and 2006, on
                    17 July 2006, the Vice‑Ministers for Foreign Affairs of Bolivia and Chile
                    publicly announced a 13‑Point Agenda, encompassing “all issues relevant
                    to the bilateral relationship” between the Parties, including the “maritime
                    issue” (Point 6). The topics included in the 13‑Point Agenda, notably the
                    question of the maritime issue, were discussed in the subsequent meetings
                    of the Bolivian-Chilean mechanism of Political Consultation until 2010.

                       81. In 2009 and 2010, the creation of a Bolivian enclave on the Chilean
                    coast was discussed between the Parties. In January 2011, the Parties
                    agreed to continue the discussions with the establishment of a High Level
                    Bi-National Commission.
                       82. On 7 February 2011, the Bolivian and Chilean Ministers for For-
                    eign Affairs issued a Joint Declaration stating that:
                           “The High Level Bi-National Commission examined the progress
                         of the Agenda of the 13 Points, especially the maritime issue . . . The
                         Ministers of Foreign Affairs have also set out future projects which,
                         taking into account the sensitivity of both Governments, will aim at
                         reaching results as soon as possible, on the basis of concrete, feasible,
                         and useful proposals for the whole of the agenda.”

                      83. On 17 February 2011, the President of Bolivia, Mr. Morales,
                    requested “a concrete proposal by 23 March [2011] . . . as a basis for a

                    34

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                    538 	        obligation to negotiate access (judgment)

                    discussion”. During a meeting on 28 July 2011, the President of Chile,
                    Mr. Piñera, reiterated to his Bolivian counterpart, Mr. Morales, the terms
                    of his proposal based on the three following conditions: the compliance
                    with the 1904 Peace Treaty, the absence of grant of sovereignty and the
                    modification of the provision of the Bolivian Constitution referring to the
                    right of Bolivia to an access to the Pacific Ocean. Given the divergent
                    positions of the Parties, the negotiations came to an end, as the state-
                    ments of 7 June 2011 of the Heads of the Bolivian and Chilean Legation
                    before the General Assembly of the OAS show.

                                        II. Preliminary Considerations

                       84. Before examining the legal bases invoked by Bolivia with regard to
                    Chile’s alleged obligation to negotiate Bolivia’s sovereign access to the
                    Pacific Ocean, the Court will analyse the meaning and scope of Bolivia’s
                    submissions.
                       85. In its submissions, which have remained unchanged since the
                    Application, Bolivia has requested 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”.
                       86. While States are free to resort to negotiations or put an end to
                    them, they may agree to be bound by an obligation to negotiate. In that
                    case, States are required under international law to enter into negotia-
                    tions and to pursue them in good faith. As the Court recalled in the North
                    Sea Continental Shelf cases, States “are under an obligation so to conduct
                    themselves that the negotiations are meaningful, which will not be the
                    case when either of them insists upon its own position without contem-
                    plating any modification” (I.C.J. Reports 1969, p. 47, para. 85). Each of
                    them “should pay reasonable regard to the interests of the other” (Appli‑
                    cation of the Interim Accord of 13 September 1995 (the former Yugoslav
                    Republic of Macedonia v. Greece), Judgment, I.C.J. Reports 2011 (II),
                    p. 685, para. 132).
                       87. Negotiations between States may lead to an agreement that settles
                    their dispute, but, generally, as the Court observed quoting the Advisory
                    Opinion on Railway Traffic between Lithuania and Poland (P.C.I.J.,
                    Series A/B, No. 42, p. 116), “an obligation to negotiate does not imply an
                    obligation to reach an agreement” (Pulp Mills on the River Uruguay
                    (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), p. 68,
                    para. 150). When setting forth an obligation to negotiate, the parties may,
                    as they did for instance in Article VI of the Treaty on the Non‑Prolifera-
                    tion of Nuclear Weapons, establish an “obligation to achieve a precise
                    result” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opin‑
                    ion, I.C.J. Reports 1996 (I), p. 264, para. 99). Bolivia’s submissions could
                    be understood as referring to an obligation with a similar character.

                    35

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                    539 	         obligation to negotiate access (judgment)

                       88. As the Court observed in its Judgment on the preliminary objec-
                    tion, “Bolivia does not ask the Court to declare that it has a right to
                    sovereign access to the sea” (I.C.J. Reports 2015 (II), p. 605, para. 33).
                    What Bolivia claims in its submissions is that Chile is under an obligation
                    to negotiate “in order to reach an agreement granting Bolivia a fully sov-
                    ereign access” (ibid., para. 35).
                       89. In its Judgment on Chile’s preliminary objection, the Court deter-
                    mined “that the subject-matter of the dispute is whether Chile is obligated
                    to negotiate in good faith Bolivia’s sovereign access to the Pacific Ocean”
                    (ibid., para. 34). As the Court observed, this alleged obligation does not
                    include a commitment to reach an agreement on the subject-matter of the
                    dispute.
                       90. The term “sovereign access” as used in Bolivia’s submissions could
                    lead to different interpretations. When answering a question raised by a
                    Member of the Court at the end of the hearings on Chile’s preliminary
                    objection, Bolivia defined sovereign access as meaning that “Chile must
                    grant Bolivia its own access to the sea with sovereignty in conformity
                    with international law”. In its Reply, Bolivia further specified that a “sov-
                    ereign access exists when a State does not depend on anything or anyone
                    to enjoy this access” and that “sovereign access is a regime that secures
                    the uninterrupted way of Bolivia to the sea — the conditions of this access
                    falling within the exclusive administration and control, both legal and
                    physical, of Bolivia”.

                         III. The Alleged Legal Bases of an Obligation to Negotiate
                                Bolivia’s Sovereign Access to the Pacific Ocean

                       91. 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 con-
                    ditions of the negotiations must demonstrate an intention of the parties
                    to be legally bound. This intention, in the absence of express terms indi-
                    cating the existence of a legal commitment, may be established on the
                    basis of an objective examination of all the evidence.

                      92. Bolivia invokes a variety of legal bases on which an obligation for
                    Chile to negotiate Bolivia’s sovereign access to the Pacific Ocean allegedly
                    rests. The arguments concerning these bases will be examined in the fol-
                    lowing paragraphs.
                      93. The Court will first analyse whether any of the instruments invoked
                    by the Applicant, in particular bilateral agreements, or declarations and

                    36

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                    540 	         obligation to negotiate access (judgment)

                    other unilateral acts, gives rise to an obligation to negotiate Bolivia’s sov-
                    ereign access to the Pacific Ocean. The Court will then examine, if neces-
                    sary, 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.

                                              1. Bilateral Agreements
                       94. Bolivia’s claim mainly rests on the alleged existence of one or more
                    bilateral agreements that would impose on Chile an obligation to negoti-
                    ate Bolivia’s sovereign access to the Pacific Ocean. According to Bolivia,
                    the Parties reached some agreements that either establish or confirm
                    Chile’s obligation to negotiate. These alleged agreements occurred in dif-
                    ferent periods of time and will be analysed separately in chronological
                    order.
                       95. Bolivia argues that, like treaties in written form, oral and tacit
                    agreements can produce legal effects and be binding between the parties.
                    Bolivia submits that, even though the 1969 Vienna Convention on the
                    Law of Treaties (hereinafter the “Vienna Convention”) does not apply to
                    such agreements, their legal force, according to Article 3 of the Vienna
                    Convention, is not affected. Bolivia maintains that, whether an instru-
                    ment is capable of setting forth binding obligations is a matter of sub-
                    stance, not of form. Bolivia contends that the intention of the Parties to
                    create rights and obligations in a particular instrument must be identified
                    in an objective manner.
                       96. Chile acknowledges that, in order to assess whether there is a
                    binding international agreement, the intention of the Parties must be

                    established in an objective manner. However, Chile argues that, following
                    an analysis of the text of the instruments invoked by Bolivia and the cir-
                    cumstances of their formation, neither State had the intention to create a
                    legal obligation to negotiate Bolivia’s sovereign access to the sea. Accord-
                    ing to Chile, an expression of willingness to negotiate cannot create
                    an obligation to negotiate on the Parties. Chile argues that, if the words
                    used “are not suggestive of legal obligations, then they will be character-
                    izing a purely political stance”. Chile further maintains that only in excep-
                    tional cases has the Court found that a tacit agreement has come into
                    existence.

                                                         * *
                       97. The Court notes that, according to customary international law, as
                    reflected in Article 3 of the Vienna Convention, “agreements not in writ-
                    ten form” may also have “legal force”. Irrespective of the form that
                    agreements may take, they require an intention of the parties to be bound
                    by legal obligations. This applies also to tacit agreements. In this respect,
                    the Court recalls that “[e]vidence of a tacit legal agreement must be com-

                    37

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                    541 	         obligation to negotiate access (judgment)

                    pelling” (Territorial and Maritime Dispute between Nicaragua and
                    Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,

                    I.C.J. Reports 2007 (II), p. 735, para. 253).

                    A. The diplomatic exchanges of the 1920s
                       98. In Bolivia’s view, the 1920 “Acta Protocolizada” of a meeting
                    between the Minister for Foreign Affairs of Bolivia and the Minister
                    Plenipotentiary of Chile in La Paz (see paragraphs 26‑31 above) “plainly
                    [constitutes] an agreement to negotiate sovereign access” to the sea. In
                    that respect, Bolivia specifies that the commitment in this “Acta Proto-
                    colizada” was given by State representatives vested with the authority to
                    bind their State. Bolivia also contends that the terms used confirmed
                    Chile’s intention to be legally bound by the instrument. Bolivia acknow
                    ledges that the penultimate clause in the “Acta Protocolizada” excludes
                    the formation of rights and obligations for the Parties, but submits that
                    this clause should not be read in isolation. Bolivia maintains that, in light
                    of the full text and context of the minutes, “the reservation refers to the
                    modality of sovereign access rather than the agreement to negotiate such
                    access”. In Bolivia’s view, Chile’s statement that it is willing to seek that
                    Bolivia “acquire an access to the sea of its own” indicates that only the
                    specific modalities of Bolivia’s sovereign access to the sea would not be
                    binding until the conclusion of a formal agreement and that Chile had
                    agreed to undertake the necessary negotiations for that purpose.

                       99. Bolivia also argues that the specific terms of the correspondence
                    preceding the “Acta Protocolizada” confirm the intention of the Parties
                    as reflected in the minutes. In particular, according to Bolivia, the Minis-
                    ter Plenipotentiary of Chile in La Paz made on 9 September 1919 a pro-
                    posal indicating Chile’s commitment to negotiate Bolivia’s sovereign
                    access to the Pacific Ocean (see paragraph 27 above). Bolivia recalls that
                    in this instrument Chile accepted “to initiate new negotiations aimed at
                    satisfying the aspirations of the friendly country, subject to Chile’s tri-
                    umph in the plebiscite”. Bolivia observes that the terms of this proposal
                    were reproduced almost in their entirety in the “Acta Protocolizada”.

                      100. Moreover, Bolivia contends that the follow-up exchanges to the
                    “Acta Protocolizada” confirm that Chile was under an obligation to
                    negotiate with Bolivia. For instance, Bolivia recalls the letter of 19 Sep-
                    tember 1922 from the Chilean delegate to the Assembly of the League of
                    Nations according to which Chile “expressed the greatest willingness to
                    enter into direct negotiations, which it would conduct in a spirit of frank
                    conciliation, and in the ardent desire that the mutual interests of the two
                    parties might be satisfied” (see paragraph 35 above). According to Bolivia,
                    further reassurances were given in the following year through various
                    Notes from the Chilean Government.

                    38

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                    542 	         obligation to negotiate access (judgment)

                       101. Chile focuses on the penultimate clause of the “Acta Proto-
                    colizada”, according to which Bolivia’s Minister for Foreign Affairs
                    stated that no rights or obligations could be created for the States whose
                    representatives made the declarations, and maintains that, contrary to
                    Bolivia’s position, this express statement is indicative of the Parties’ inten-
                    tion not to establish any legal obligation. According to Chile, given that
                    the discussions reflected in the minutes are not limited to the modalities of
                    access to the sea, Bolivia’s explanation of the penultimate clause cannot
                    stand. Irrespective of this clause, Chile maintains that the whole text of
                    the “Acta Protocolizada” makes it clear that no legal obligation was
                    either created or confirmed with this instrument.

                       102. Chile specifies that the correspondence preceding or following the
                    “Acta Protocolizada” does not support Bolivia’s position with regard to
                    their legally binding force. Chile submits that it is not possible to detect in
                    the language of such correspondence an intention by both Parties to
                    establish an obligation to negotiate.
                       103. With regard to subsequent exchanges, Bolivia recalls that in a
                    memorandum of 4 December 1926 (see paragraph 44 above) Chile indi-
                    cated that it “ha[d] not rejected the idea of granting a strip of territory
                    and a port to the Bolivian nation”. The Chilean Minister for Foreign
                    Affairs, Jorge Matte, had submitted this memorandum (the so-           called
                    “Matte Memorandum”) to the Secretary of State of the United States,
                    Frank B. Kellogg, in response to his proposal, addressed to Chile and
                    Peru, to cede Tacna and Arica to Bolivia. A copy of the memorandum
                    had been given to Bolivia, which contends that it “accepted the Chilean
                    offer to proceed in the discussion and examination of the details of the
                    transfer of territory and a port referred to in the 1926 Matte Memoran-
                    dum”. In Bolivia’s view, these exchanges amounted to “a new written
                    agreement reaffirming Chile’s commitment to negotiate with Bolivia to
                    grant it a sovereign access to the sea”. Considering that the Matte Memo-
                    randum was in written form, was issued by a State representative,
                    recorded Chile’s previous commitment and was the result of formal inter-
                    State communications, Bolivia is of the view that it demonstrates Chile’s
                    intention to be bound.

                       104. Chile responds that the Matte Memorandum was addressed to
                    the Secretary of State of the United States, and not to Bolivia. Even
                    though it was conveyed through diplomatic channels to Bolivia, it did not
                    amount to an offer made by Chile to Bolivia. In any event, it did not
                    reflect any intention by Chile to bind itself. The Matte Memorandum
                    noted that the proposal of the Secretary of State “goes much farther than
                    the concessions which the Chilean Government has generously been able
                    to make”, more specifically the part of the proposal concerning “the
                    definitive cession to the [R]epublic of Bolivia of the territory in dispute”
                    between Chile and Peru. Chile specifies that the wording that is used in
                    the memorandum does not denote a legal obligation and only shows

                    39

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                    543 	        obligation to negotiate access (judgment)

                    Chile’s “willingness” to consider certain options. In Chile’s view, the
                    memorandum is not capable of generating any legal obligation.

                                                        * *
                      105. The Court notes that in 1920 the Parties engaged in negotiations
                    during which Chile expressed willingness “to seek that Bolivia acquire its
                    own access to the sea ceding to it an important part of that zone in the
                    north of Arica and of the railway line” (“Chile está dispuesto a procurar
                    que Bolivia adquiera una salida propia al mar, cediéndole una parte
                    importante de esa zona al norte de Arica y de la línea del ferrocarril”).
                    Chile also accepted “to initiate new negotiations directed at satisfying the
                    aspiration of the friendly country, subject to the victory of Chile in the
                    plebiscite” concerning the provinces of Tacna and Arica. Although these
                    remarks are politically significant, they do not indicate that Chile had
                    accepted an obligation to negotiate Bolivia’s sovereign access to the
                    Pacific Ocean. Nor does the “Acta Protocolizada” reveal that such an
                    acceptance was expressed during the negotiations.

                       106. The Court recalls that in the case concerning Maritime Delimita‑
                    tion and Territorial Questions between Qatar and Bahrain (Qatar v. Bah‑
                    rain), it had found that signed minutes of a discussion could constitute an
                    agreement if they “enumerate[d] the commitments to which the Parties
                    ha[d] consented” and did not “merely give an account of discussions and
                    summarize points of agreement and disagreement” (Jurisdiction and
                    Admissibility, Judgment, I.C.J. Reports 1994, p. 121, para. 25). The Court
                    observes that the “Acta Protocolizada” does not enumerate any commit-
                    ments and does not even summarize points of agreement and disagree-
                    ment. Moreover, the penultimate clause of these minutes records that the
                    Foreign Minister of Bolivia stated that “the present declarations do not
                    contain provisions that create rights, or obligations for the States whose
                    representatives make them”. The Chilean Minister Plenipotentiary did
                    not contest this point. Thus, even if a statement concerning an obligation
                    to resort to negotiations had been made by Chile, this would not have
                    been part of an agreement between the Parties.

                       107. The Court observes that the exchanges that took place between
                    the Parties after the “Acta Protocolizada” also do not indicate that there
                    was an agreement under which Chile entered into a commitment to nego-
                    tiate Bolivia’s sovereign access to the Pacific Ocean. In this context, the
                    Matte Memorandum could be considered a politically significant step.
                    However, it was not addressed to Bolivia and did not contain any word-
                    ing that could show the acceptance on the part of Chile of an obligation
                    to negotiate or the confirmation of a previously existing obligation to
                    do so.

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                    544 	         obligation to negotiate access (judgment)

                    B. The 1950 exchange of Notes
                        108. Bolivia recalls that on 1 June 1950 it submitted a Note to Chile in
                    which it proposed that both Parties “formally enter into direct negotia-
                    tions to satisfy Bolivia’s fundamental need to obtain its own sovereign
                    access to the Pacific Ocean, solving the problem of Bolivia’s landlocked
                    situation” (see paragraph 51 above). Bolivia also points out that on
                    20 June 1950 Chile responded by a Note of which the Parties provide
                    divergent translations (see paragraph 52 above). According to Bolivia’s
                    translation, the Note indicated that Chile was “willing to formally enter
                    into direct negotiations aimed at finding a formula that will make it
                    possible to give to Bolivia a sovereign access to the Pacific Ocean of its
                     own, and for Chile to receive compensation of a non‑territorial charac-
                     ter”. This Note moreover mentioned Chile’s willingness “to study, in
                     direct negotiations with Bolivia, the possibility of satisfying [Bolivia’s]
                     aspirations”.

                       109. In Bolivia’s view, this exchange of Notes constitutes “a treaty
                    under international law, as is evidenced by the nature and content of the
                    Notes and by the circumstances that preceded and followed their adop-
                    tion”. Bolivia further submits that the terms of the Notes are “clear and
                    precise” and indicate Chile’s intention to be bound to negotiate Bolivia’s
                    sovereign access to the Pacific Ocean. In Bolivia’s view, the textual differ-
                    ences between the Notes are slight and do not demonstrate that the Par-
                    ties had a different understanding of the subject‑matter of the negotiations:
                    to grant Bolivia sovereign access to the sea. The Notes, Bolivia maintains,
                    were negotiated and drafted by the highest authorities of each State. It is
                    also telling, in Bolivia’s view, that Chile did not challenge the content of
                    Bolivia’s Note in its own Note.

                       110. Bolivia argues that the two Notes set forth a double agreement:
                    one confirming past agreements, in light of the express references to pre-
                    vious instruments, and another resulting from the Notes themselves.
                    Bolivia submits that the Notes cannot be seen as the combination of a
                    proposal by Bolivia with a counter-   proposal by Chile. According to
                    Bolivia, the Notes were prepared and negotiated together and are to be
                    seen as “an exchange of mutual commitments demonstrating a clear
                    intention to be bound”. Bolivia maintains that its Note, even though
                    dated 1 June 1950, was delivered to Chile on 20 June 1950, the same day
                    the Chilean Note was delivered to Bolivia. Bolivia contends that the
                    Notes constitute a single instrument, the content of which was previously
                    agreed upon by the Parties.
                       111. Finally, Bolivia maintains that the Parties’ previous and subse-
                    quent conduct confirms their understanding that they were committing to
                    a legally binding obligation to negotiate. Bolivia recalls the fact that it
                    registered the Notes in the Department of International Treaties of its

                    41

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                    545 	        obligation to negotiate access (judgment)

                    Ministry of Foreign Affairs and maintains that both Parties referred to
                    them, in the following years, as reflecting an agreement between them.

                        112. Chile argues that the Notes of June 1950 do not show the Parties’
                    objective intention to be bound. In Chile’s view, it is “self-evident” that
                    the Parties did not conclude an international agreement. Through the
                    exchange of Notes, the Parties did not create nor confirm any legal
                    obligation. Chile argues that in its Note of 20 June 1950 it did not agree
                     to the proposal in Bolivia’s Note of 1 June 1950. In its Note, Chile only
                     stated, according to its own translation, that it was “open formally to
                     enter into a direct negotiation aimed at searching for a formula
                     that would make it possible to give Bolivia its own sovereign access to the
                     Pacific Ocean”. According to Chile, the language of its Note only denotes
                     its political willingness to enter into negotiations. Chile also points out
                     that the Parties did not commence negotiations following the exchange.

                       113. In Chile’s view, the discussions that took place prior to the
                    exchange of Notes of June 1950 do not suggest in any way that the Par-
                    ties created or confirmed a legal obligation to negotiate. The same is
                    argued about the discussions that followed the exchange of Notes.
                       114. With regard to subsequent exchanges, Bolivia recalls that a Chil-
                    ean memorandum of 10 July 1961 (the so-called Trucco Memorandum)
                    (see paragraph 55 above) quotes the part of the Chilean Note of 20 June
                    1950 which, in Bolivia’s translation of the memorandum, refers to Chile’s
                    “full consent to initiate as soon as possible, direct negotiations aimed at
                    satisfying the fundamental national need [of Bolivia] of own sovereign
                    access to the Pacific Ocean”. In Bolivia’s view, this memorandum pro-
                    vides “clear evidence” of Chile’s intention to negotiate Bolivia’s sovereign
                    access to the sea. Bolivia argues that the “denomination given to a docu-
                    ment is not determinative of its legal effects” and that the Trucco Memo-
                    randum is not simply an internal document or an “Aide Memoire”.
                    According to Bolivia, this memorandum is an “international act” reflect-
                    ing the agreement between the Parties to enter into direct negotiations
                    with regard to Bolivia’s sovereign access to the sea.

                       115. Chile states that the Trucco Memorandum, although it was
                    handed over to Bolivia, was an internal document. It was not an official
                    note, was not signed and only stated Chile’s policy at that time. Chile
                    maintains that the language used did not reflect any sense of legal obliga-
                    tion. The Trucco Memorandum, in Chile’s view, did not create or con-
                    firm any legal obligation.

                                                        * *
                       116. The Court observes that, under Article 2, paragraph 1 (a), of the
                    Vienna Convention, a treaty may be “embodied . . . in two or more
                    related instruments”. According to customary international law as

                    42

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                    546 	         obligation to negotiate access (judgment)

                    reflected in Article 13 of the Vienna Convention, the existence of the
                    States’ consent to be bound by a treaty constituted by instruments
                    exchanged between them requires either that “[t]he instruments provide
                    that their exchange shall have that effect” or that “[i]t is otherwise estab-
                    lished that those States were agreed that the exchange of instruments
                    should have that effect”. The first condition cannot be met, because noth-
                    ing has been specified in the exchange of Notes about its effect. Further-
                    more, Bolivia has not provided the Court with adequate evidence that the
                    alternative condition has been fulfilled.
                       117. The Court further observes that the exchange of Notes of 1 and
                    20 June 1950 does not follow the practice usually adopted when an inter-
                    national agreement is concluded through an exchange of related instru-
                    ments. According to that practice, a State proposes in a note to another
                    State that an agreement be concluded following a certain text and the
                    latter State answers with a note that reproduces an identical text and indi-
                    cates its acceptance of that text. Other forms of exchange of instruments
                    may also be used to conclude an international agreement. However, the
                    Notes exchanged between Bolivia and Chile in June 1950 do not contain
                    the same wording nor do they reflect an identical position, in particular
                    with regard to the crucial issue of negotiations concerning Bolivia’s sov-
                    ereign access to the Pacific Ocean. The exchange of Notes cannot there-
                    fore be considered an international agreement.
                       118. In any event, Chile’s Note, whichever translation given by the
                    Parties is used, conveys Chile’s willingness to enter into direct negotia-
                    tions, but one cannot infer from it Chile’s acceptance of an obligation to
                    negotiate Bolivia’s sovereign access to the sea.

                      119. The Court observes that the Trucco Memorandum, which was
                    not formally addressed to Bolivia but was handed over to its authorities,
                    cannot be regarded only as an internal document. However, by repeating
                    certain statements made in the Note of 20 June 1950, this memorandum
                    does not create or reaffirm any obligation to negotiate Bolivia’s sovereign
                    access to the Pacific Ocean.

                    C. The 1975 Charaña Declaration
                       120. Bolivia maintains that the Joint Declaration signed at Charaña on
                    8 February 1975 (see paragraph 62 above) is also the legal basis of an
                    obligation for Chile to negotiate Bolivia’s sovereign access to the Pacific
                    Ocean. In that Declaration, the Heads of State of Bolivia and Chile
                    undertook to “continue the dialogue, at different levels, in order to search
                    for formulas to solve the vital issues that both countries face, such as the
                    landlocked situation that affects Bolivia, taking into account the mutual
                    interests and aspirations of the Bolivian and Chilean peoples”. Bolivia
                    argues that this Declaration has the legal force of a treaty. It is of the
                    view that, through this Joint Declaration, Bolivia and Chile reaffirmed,
                    “in precise and unequivocal terms”, their intention to negotiate Bolivia’s

                    43

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                    547 	         obligation to negotiate access (judgment)

                    sovereign access to the sea. Bolivia also points out that the Joint Declara-
                    tion was included in the Treaty Series of the Ministry of Foreign Affairs
                    of Chile, thus, it argues, demonstrating the binding legal character of the
                    instrument.
                       121. Bolivia further argues that the commitment comprised in the
                    Charaña Declaration was confirmed in a number of instances that fol-
                    lowed its adoption. Bolivia notes that the negotiations carried out after the
                    Charaña Declaration had the object of the “cession to Bolivia of a sover-
                    eign maritime coast”. On the other hand, Bolivia concedes that the com-
                    pensation to be granted to Chile in exchange for Bolivia’s sovereign access
                    to the sea was not the subject of a definitive agreement. On 10 June 1977,
                    the Ministers for Foreign Affairs of the Parties adopted a further Joint
                    Declaration (see paragraph 68 above), which in Bolivia’s view amounts to
                    an additional commitment to negotiate its sovereign access to the Pacific
                    Ocean. Bolivia characterizes this second declaration as another bilateral
                    agreement between the Parties. Bolivia argues that the two declarations
                    confirm the obligation set forth in the exchange of Notes of 1950.
                       122. Bolivia also mentions that the adoption of the 1975 Joint Decla-
                    ration allowed the Parties “to normalize” their diplomatic ties. In Boliv-
                    ia’s opinion, the re‑establishment of diplomatic relations depended on
                    Chile’s acceptance to undertake negotiations on sovereign access to the
                    sea; thus “[t]he fact that Chile accepted to restore diplomatic relations
                    necessarily implie[d]” that acceptance. Bolivia asserts that the failure of
                    the Charaña process was attributable to Chile, but did not extinguish
                    Chile’s obligation to negotiate.
                       123. In Chile’s view, the terms of the Charaña Declaration as well as
                    those of other statements that followed the adoption of that instrument
                    do not create or confirm a legal obligation to negotiate. Chile maintains
                    that a “record of a decision to continue discussions shows no intention to
                    create a legal obligation to negotiate”. Also, the fact that Bolivia agreed
                    to resume diplomatic relations with Chile did not depend on the creation
                    of an obligation to negotiate. Chile notes that the publication of the dec-
                    laration in its Treaty Series is not significant because this series contains a
                    variety of documents other than treaties.

                       124. On 19 December 1975, Chile adopted guidelines for negotiation
                    that envisaged the cession to Bolivia of a sovereign maritime coast in
                    exchange for Bolivian territory (see paragraph 64 above). However,
                    according to Chile, those guidelines did not refer to any previous obliga-
                    tion to negotiate or give rise to any new obligation in that regard. Chile
                    also asserts that throughout the negotiations that followed the adoption
                    of the 1975 Joint Declaration, it expressed its willingness to negotiate an
                    exchange of territories, which it considered to be an essential condition.
                    With regard to the 1977 Joint Declaration, Chile argues that this instru-
                    ment contains “merely an expression of political willingness” for the
                    Parties to negotiate with regard to Bolivia’s landlocked situation.

                    44

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                    548 	         obligation to negotiate access (judgment)

                       125. Chile maintains that between 1975 and 1978 it showed willingness
                    to negotiate in good faith with Bolivia, but was under no obligation to do
                    so. Chile is of the view that, even if such an obligation to negotiate existed,
                    it would have been discharged following the meaningful negotiations
                    undertaken by the Parties in that period and that it could not, in any case,
                    have survived the suspension by Bolivia of the diplomatic relations
                    between the Parties.

                                                         * *
                       126. The Court notes that the Charaña Declaration is a document that
                    was signed by the Presidents of Bolivia and Chile which could be charac-
                    terized as a treaty if the Parties had expressed an intention to be bound
                    by that instrument or if such an intention could be otherwise inferred.
                    However, the overall language of the declaration rather indicates that it
                    has the nature of a political document which stresses the “atmosphere of
                    fraternity and cordiality” and “the spirit of solidarity” between the two
                    States, who in the final clause decide to “normalize” their diplomatic rela-
                    tions. The wording of the declaration does not convey the existence or the
                    confirmation of an obligation to negotiate Bolivia’s sovereign access to
                    the Pacific Ocean. The engagement “to continue the dialogue, at different
                    levels, in order to search for formulas to solve the vital issues that both
                    countries face, such as the landlocked situation that affects Bolivia”, can-
                    not constitute a legal commitment to negotiate Bolivia’s sovereign access
                    to the sea, which is not even specifically mentioned. While the Ministers
                    for Foreign Affairs of the Parties noted in their Joint Declaration of
                    10 June 1977 that “negotiations have been engaged aiming at finding an
                    effective solution that allows Bolivia to access the Pacific Ocean freely
                    and with sovereignty”, they did not go beyond reaffirming “the need of
                    continuing with the negotiations” and did not refer to any obligation to
                    negotiate. Based on this evidence, an obligation for Chile to negotiate
                    cannot be inferred from the Charaña Declaration.

                       127. The Court notes, however, that, subsequently, the Parties engaged
                    in meaningful negotiations, in the course of which Chile proposed to cede
                    to Bolivia a sovereign maritime coastline and a strip of territory north of
                    Arica in exchange for territory. When Peru was consulted, in accordance
                    with Article 1 of the Supplementary Protocol to the 1929 Treaty of Lima,
                    Peru proposed to place part of Chile’s coastal territory under the joint
                    sovereignty of the three States, which Bolivia and Chile refused (see para-
                    graph 67 above). Consequently, the negotiations came to an end.

                    D. The communiqués of 1986
                       128. Bolivia argues that an agreement resulted from two communiqués
                    issued by both States in November 1986 as part of the “fresh approach”

                    45

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                    549 	         obligation to negotiate access (judgment)

                    (see paragraph 76 above). On 13 November 1986, the Minister for For-
                    eign Affairs of Bolivia issued a communiqué in which he recalled the talks
                    held between the Parties during that year and indicated that “the mari-
                    time issue of Bolivia” was to be considered at a meeting between the Par-
                    ties in April 1987. The same day, the Minister for Foreign Affairs of Chile
                    also issued a communiqué in which he stated the following :

                           “We have agreed with the Minister of Foreign Affairs of Bolivia
                         that, without prejudice to the important and fruitful talks and tasks
                         that the Bi-National Rapprochement Commission will continue to
                         carry out, both Foreign Ministers will meet in Montevideo at the end
                         of April, in order to discuss matters of substance that are of interest
                         to both Governments.”
                       129. Bolivia argues that, even though “[t]he communiqués were formu-
                    lated in different terms . . . there can be little doubt that both recorded the
                    existence of an agreement to start formal negotiations with regard to
                    ‘matters of substance’”, which matters are, in Bolivia’s view, those
                    referred to in the 1975 Joint Declaration of Charaña. Moreover, Bolivia
                    indicates that this agreement was confirmed by the declaration of
                    the Chilean Minister for Foreign Affairs of 21 April 1987 (see para-
                    graph 77 above) in which he expressed his hope that a dialogue between
                    the Parties would allow them to reach “more decisive stages” than the
                    ones reached in previous negotiations and by a press release issued on
                    23 April 1987 following the meeting of both Foreign Ministers in Monte-
                    video, Uruguay.
                       130. Chile contends that the communiqués of November 1986 do not
                    record any agreement between the Parties and do not demonstrate any
                    intention to be bound. Chile points out that, at the meeting of April 1987
                    in Montevideo, Bolivia did not mention any obligation to negotiate.
                    Referring to the press release of 23 April 1987, Chile maintains that the
                    only objective of the meeting was “to become familiar with the positions
                    of both countries with respect to the basic issues that are of concern to
                    the two nations”.

                                                         * *
                       131. The Court recalls that in the Aegean Sea Continental Shelf
                    (Greece v. Turkey) case, it had observed that there is “no rule of interna-
                    tional law which might preclude a joint communiqué from constituting an
                    international agreement” and that whether such a joint communiqué con-
                    stitutes an agreement “essentially depends on the nature of the act or
                    transaction to which the Communiqué gives expression” (Judgment,
                    I.C.J. Reports 1978, p. 39, para. 96).
                       132. The Court notes that the two communiqués of 13 November 1986
                    are separate instruments, that the wording used in them is not the same
                    and that, moreover, neither of these documents includes a reference to

                    46

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                    550 	        obligation to negotiate access (judgment)

                    Bolivia’s sovereign access to the sea. In any event, the Court does not find
                    in the two communiqués referred to by Bolivia nor in the Parties’ subse-
                    quent conduct any indication that Chile accepted an obligation to negoti-
                    ate the question of Bolivia’s sovereign access to the Pacific Ocean.

                    E. The Algarve Declaration (2000)
                       133. Bolivia recalls that in a Joint Declaration of 22 February 2000
                    issued by the Ministers for Foreign Affairs of Bolivia and Chile (also
                    called the “Algarve Declaration”) (see paragraph 78 above) the Parties
                    “resolved to define a working agenda that will be formalized in the subse-
                    quent stages of dialogue and which includes, without any exception, the
                    essential issues in the bilateral relationship”. This joint declaration was
                    followed by a joint communiqué of 1 September 2000 of the Presidents of
                    the two States (see paragraph 79 above), in which the Parties confirmed
                    their willingness to engage in a dialogue “with no exclusions”. In Bolivia’s
                    view, the Algarve Declaration expresses an agreement between the Par-
                    ties. Bolivia argues that “[o]nce again, both Parties indicated their agree-
                    ment to entirely open-minded negotiations, ‘without exclusions’”.

                       134. Chile argues that the Algarve Declaration does not suggest that
                    the Parties agreed to an obligation to negotiate. According to Chile, the
                    declaration also does not refer to any previous obligation to negotiate or
                    to sovereign access to the sea. Chile maintains that “[i]t is impossible to
                    find in this language evidence of any intention to create any legal obliga-
                    tion”. The Parties have used “classic diplomatic language” from which no
                    obligation can be deduced. Chile points out that Bolivia, in a further
                    statement made by its Minister of Foreign Affairs in 2002, indicated that
                    the Algarve Declaration was a confirmation of Bolivia’s decision “to keep
                    that option of dialogue as a State policy”. In Chile’s view, this demon-
                    strates that the declaration did not create or confirm an obligation to
                    negotiate sovereign access to the sea.

                                                        * *
                       135. The Court cannot find in the Algarve Declaration an agreement
                    which imposes on Chile an obligation to negotiate Bolivia’s sovereign
                    access to the Pacific Ocean. The Algarve Declaration, like the joint com-
                    muniqué of 1 September 2000, only indicates the Parties’ willingness to
                    initiate a dialogue “without any exception” on a working agenda that was
                    yet to be defined for the purpose of establishing a “climate of trust”
                    between the Parties. Moreover, neither the Algarve Declaration nor the
                    joint communiqué contains a reference to the issue of Bolivia’s sovereign
                    access to the sea.

                    47

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                    551 	         obligation to negotiate access (judgment)

                    F. The 13‑Point Agenda (2006)
                      136. On 17 July 2006, the Bolivia-Chile Working Group on Bilateral
                    Affairs issued minutes of a meeting which became known as the “13‑Point
                    Agenda” (see paragraph 80 above). These minutes listed all issues to be
                    addressed by Bolivia and Chile in their bilateral relationship. Point 6 of
                    the Agenda referred to the “maritime issue” (“tema marítimo”). Bolivia
                    characterizes this Agenda as an agreement having a binding nature. In
                    Bolivia’s view, there is no doubt that the “maritime issue” covers its sov-
                    ereign access to the sea. Bolivia argues that “[i]t was understood by both
                    Parties that the ‘maritime issue’ was an umbrella term that included the
                    pending issue of the sovereign access to the sea.”

                       137. Chile acknowledges that it accepted the inclusion of the “mari-
                    time issue” in the 13‑Point Agenda. However, according to Chile, nothing
                    in this instrument points to a pre‑existing obligation to negotiate on that
                    subject-matter. Moreover, in Chile’s view, the “maritime issue” is a broad
                    topic but does not include any reference to sovereign access to the sea.
                    Furthermore, the Agenda is “overtly diplomatic in character” and uses
                    broad language which cannot be taken as indicative of an intention to
                    create or confirm a legal obligation. According to Chile, it consists only
                    of “an expression of the political will of both countries”.

                                                           * *
                       138. The Court notes that the item “maritime issue” included in the
                    13‑Point Agenda is a subject-matter that is wide enough to encompass the
                    issue of Bolivia’s sovereign access to the Pacific Ocean. The short text in
                    the minutes of the Working Group concerning the maritime issue only
                    states that “[b]oth delegations gave succinct reports on the discussions
                    that they had on this issue in the past few days and agreed to leave this
                    issue for consideration by the Vice-Ministers at their meeting”. As was
                    remarked by the Head of the Bolivian delegation to the General Assem-
                    bly of the OAS, “[t]he Agenda was conceived as an expression of the
                    political will of both countries to include the maritime issue”. In the
                    Court’s view, the mere mention of the “maritime issue” does not give rise
                    to an obligation for the Parties to negotiate generally and even less so
                    with regard to the specific issue of Bolivia’s sovereign access to the Pacific
                    Ocean.

                                                           *
                                                       *       *

                       139. On the basis of an examination of the arguments of the Parties
                    and the evidence produced by them, the Court concludes, with regard to
                    bilateral instruments invoked by Bolivia, that these instruments do not

                    48

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                    552 	         obligation to negotiate access (judgment)

                    establish an obligation on Chile to negotiate Bolivia’s sovereign access to
                    the Pacific Ocean.

                                 2. Chile’s Declarations and other Unilateral Acts
                       140. Bolivia submits that Chile’s obligation to negotiate Bolivia’s sov-
                    ereign access to the Pacific Ocean is also based on a number of Chile’s
                    declarations and other unilateral acts. In Bolivia’s view, “[i]t is well estab-
                    lished in international law that written and oral declarations made by
                    representatives of States which evidence a clear intention to accept obli-
                    gations vis-à-vis another State may generate legal effects, without requir-
                    ing reciprocal undertakings from that other State”. Bolivia maintains that
                    at multiple occasions in its jurisprudence the Court has taken into account
                    unilateral acts and has recognized their autonomous character. A     ccording
                    to Bolivia, “no subsequent acceptance or response from the other State is
                    required” in order for such acts to establish legal obligations.

                       141. For determining the requirements that a unilateral declaration
                    has to meet in order to be binding on a State, Bolivia refers to the Court’s
                    jurisprudence and to the Guiding Principles applicable to unilateral dec-
                    larations of States capable of creating legal obligations, adopted by the
                    International Law Commission. According to the latter instrument, a
                    unilateral declaration is required to be made by an authority vested with
                    the power to bind the State, with the intention of binding that State, con-
                    cerning a specific matter and formulated in a public manner. In respect of
                    these criteria, Bolivia points out that in the present case a number of rel-
                    evant declarations were made by Chile’s Presidents, Ministers for Foreign
                    Affairs and other high-ranking representatives. Bolivia further submits
                    that the aim of the declarations was “clear and precise”: namely, to nego-
                    tiate with Bolivia its sovereign access to the Pacific Ocean. In Bolivia’s
                    view, through its unilateral declarations, Chile did not merely promise to
                    negotiate, but committed itself to reaching a precise objective. Chile’s
                    declarations were also made known to and accepted by Bolivia. Bolivia
                    argues that “[t]he jurisprudence of the Court does not support the possi-
                    bility that State representatives who have made legally binding declara-
                    tions on behalf of their Government may withdraw from their statements
                    and claim that they were mere political declarations”.
                       142. Bolivia identifies a number of declarations and other unilateral
                    acts made by Chile that, taken individually or as a whole, give rise, in
                    Bolivia’s view, to a legal obligation on Chile to negotiate Bolivia’s sover-
                    eign access to the Pacific Ocean. With regard to the period before 1950,
                    Bolivia recalls in particular the memorandum of 9 September 1919 (see
                    paragraph 27 above) in which Chile asserted that it was “willing to seek
                    that Bolivia acquire its own outlet to the sea, ceding to it an important
                    part of that area to the north of Arica and of the railway line within the
                    territories submitted to the plebiscite stipulated in the Treaty of Ancón”.
                    Bolivia then refers to a statement made by Chile at the League of Nations

                    49

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                    553 	         obligation to negotiate access (judgment)

                    on 28 September 1921 with regard to Bolivia’s landlocked situation (see
                    paragraph 34 above). The delegate of Chile stated that “Bolivia can seek
                    satisfaction through the medium of direct negotiations of our own arrang-
                    ing. Chile has never closed that door to Bolivia”. Bolivia further points
                    out that in a Note of 6 February 1923 (see paragraph 37 above), Chile
                    indicated that it was willing to enter into direct negotiations and stated
                    that it was open to the conclusion of “a new Pact regarding Bolivia’s situ-
                    ation, but without modifying the Peace Treaty and without interrupting
                    the continuity of the Chilean territory”.

                      143. With regard to the period following 1950, Bolivia recalls that
                    President Videla of Chile, in a statement dated 29 March 1951 (see para-
                    graph 53 above), declared that:
                         “the policy of the Chilean Government has unvaryingly been a single
                         one : to express its willingness to give an ear to any Bolivian proposal
                         aimed at solving its landlocked condition, provided that it is put for-
                         ward directly to us and that it does not imply renouncing our tradi-
                         tional doctrine of respect for international treaties, which we deem
                         essential for a peaceful coexistence between Nations”.

                    Bolivia also gives weight to the following statement, made on 11 Septem-
                    ber 1975 by President Pinochet of Chile (see paragraph 63 above) :

                            “Since the Charaña meeting with the President of Bolivia, we have
                         repeated our unchanging purpose of studying, together with that
                         brother country, within the framework of a frank and friendly nego-
                         tiation, the obstacles that limit Bolivia’s development on account of
                         its landlocked condition.”
                    Bolivia also recalls that, following the adoption of the Charaña Declara-
                    tion, Chile put forward in a Note dated 19 December 1975 its guidelines
                    for negotiating a potential exchange of territories (see paragraph 64
                    above). Chile indicated that it “would be willing to negotiate with Bolivia
                    the cession of a strip of territory north of Arica up to the Concordia
                    Line” based on specific delimitations and that “[t]he cession . . . would be
                    subject to a simultaneous exchange of territories, that is to say, Chile
                    would at the same time receive in exchange for what it hands over a com-
                    pensatory area at least equal to the area of land and sea ceded to Bolivia”.
                    Furthermore, Bolivia points out that in a statement of 31 October 1979 in
                    front of the General Assembly of the Organization of American States
                    (see paragraph 73 above), Chile declared that it “ha[d] always been will-
                    ing to negotiate with Bolivia”. The Chilean representative added :

                           “On repeated occasions, I have indicated Chile’s willingness to
                         negotiate a solution with Bolivia to its aspiration to have free and

                    50

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                    554 	         obligation to negotiate access (judgment)

                         sovereign access to the Pacific Ocean. The way to reach that goal is
                         direct negotiation”.
                    Bolivia adds that, as part of the “fresh approach”, the Foreign Minister
                    for Chile reaffirmed, in a speech of 21 April 1987 related to the meeting
                    ongoing in Montevideo (see paragraph 77 above), “the willingness and
                    greatest good will (“la disposición y la mejor buena fe”) with which Chile
                    comes to this meeting, with the purpose of exploring potential solutions
                    that may, through the timeframe, bring positive and satisfactory results in
                    the interests of countries”.

                       144. Chile agrees with Bolivia that unilateral declarations are capable
                    of creating legal obligations if they evidence a clear intention on the part
                    of the author to do so. Chile affirms that “[t]he intention of the State issu-
                    ing a unilateral statement is to be assessed by regard to the terms used,
                    objectively assessed”. However, according to Chile, the burden on the
                    State seeking to prove the existence of a binding obligation based on a
                    unilateral statement is a heavy one; the statement must be “clear and spe-
                    cific”, and the circumstances surrounding the act, as well as subsequent
                    reactions related to it, must be taken into account. Chile is of the view
                    that Bolivia has failed to identify how the content of any of the unilateral
                    statements Bolivia relies on, and the circumstances surrounding them,
                    can be understood as having created a legal obligation.

                       145. Chile argues that “[a]n objective intention to be bound by interna-
                    tional law to negotiate cannot be established by a unilateral statement of
                    willingness to negotiate” — in this case, it requires a clear and specific
                    statement which would provide evidence of an intention to be bound to
                    negotiate Bolivia’s sovereign access to the sea. Chile further argues that
                    when the stakes are the highest for a State — as it submits they are in the
                    present circumstances — the intention to be bound must be manifest. In
                    Chile’s view, the careful language that was adopted throughout its
                    exchanges with Bolivia indicates that Chile did not have an intention to
                    be bound. In further support of its view that no obligation to negotiate
                    has arisen, Chile also points out that the obligation Bolivia alleges to exist
                    in the present case could not be performed unilaterally. In Chile’s words,
                    “a commitment to negotiate entails reciprocal obligations on the part of
                    both the putative negotiating parties”.

                                                         * *
                       146. The Court recalls that it has stated in the following terms the cri-
                    teria to be applied in order to decide whether a declaration by a State
                    entails legal obligations:
                           “It is well recognized that declarations made by way of unilateral
                         acts, concerning legal or factual situations, may have the effect of

                    51

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                     555 	         obligation to negotiate access (judgment)

                          creating legal obligations. Declarations of this kind may be, and often
                          are, very specific. When it is the intention of the State making the
                          declaration that it should become bound according to its terms, that
                          intention confers on the declaration the character of a legal undertak-
                          ing, the State being thenceforth legally required to follow a course of
                          conduct consistent with the declaration. An undertaking of this kind,
                          if given publicly, and with an intent to be bound, even though not
                          made within the context of international negotiations, is binding.”
                          (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
                          p. 267, para. 43 ; Nuclear Tests (New Zealand v. France), Judgment,
                          I.C.J. Reports 1974, p. 472, para. 46.)

                     The Court also asserted that, in order to determine the legal effect of a
                     statement by a person representing the State, one must “examine its
                     actual content as well as the circumstances in which it was made” (Armed
                     Activities on the Territory of the Congo (New Application: 2002) (Demo‑
                     cratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility,
                     Judgment, I.C.J. Reports 2006, p. 28, para. 49).
                        147. The Court notes that Chile’s declarations and other unilateral
                     acts on which Bolivia relies are expressed, not in terms of undertaking a
                     legal obligation, but of willingness to enter into negotiations on the issue
                     of Bolivia’s sovereign access to the Pacific Ocean. For instance, Chile
                     declared that it was willing “to seek that Bolivia acquire its own outlet to
                     the sea” and “to give an ear to any Bolivian proposal aimed at solving its
                     landlocked condition” (see paragraphs 142 and 143 above). On another
                     occasion, Chile stated its “unchanging purpose of studying, together with
                     that brother country, within the framework of a frank and friendly nego-
                     tiation, the obstacles that limit Bolivia’s development on account of its
                     landlocked condition” (see paragraph 143 above). The wording of these
                     texts does not suggest that Chile has undertaken a legal obligation to
                     negotiate Bolivia’s sovereign access to the Pacific Ocean.

                        148. With regard to the circumstances of Chile’s declarations and
                     statements, the Court further observes that there is no evidence of an
                     intention on the part of Chile to assume an obligation to negotiate. The
                     Court therefore concludes that an obligation to negotiate Bolivia’s sover-
                     eign access to the sea cannot rest on any of Chile’s unilateral acts referred
                     to by Bolivia.

                                                   3. Acquiescence
                       149. Bolivia submits that Chile’s obligation to negotiate Bolivia’s sov-
                     ereign access to the sea may also be based on Chile’s acquiescence. In this
                     context, Bolivia refers to the Court’s jurisprudence as authority for the
                     proposition that the absence of reaction by one party may amount to
                     acquiescence when the conduct of the other party required a response

                     52

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                     556 	        obligation to negotiate access (judgment)

                     (citing Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks
                     and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008,
                     pp. 50‑51, para. 121).
                        150. Bolivia refers to a statement made on 26 October 1979 that listed
                     what it considered the agreements in force on the negotiation of its sover-
                     eign access to the sea. Bolivia also refers to the declaration made on
                     27 November 1984 upon signature of the United Nations Convention on
                     the Law of the Sea (“UNCLOS”), in which negotiations with the view of
                     restoring its sovereign access to the sea were mentioned. According to
                     Bolivia, these statements required a response from Chile. Acquiescence to
                     an obligation to negotiate sovereign access to the sea results from Chile’s
                     silence and from the fact that it subsequently engaged in negotiations
                     with Bolivia.
                        151. Chile contends that Bolivia has not demonstrated how in the pres-
                     ent case an obligation to negotiate could have been created by acquies-
                     cence, nor has it pointed to any relevant silence by Chile or explained
                     how silence by Chile may be taken as tacit consent to the creation of a
                     legal obligation. In Chile’s view, the silence of a State has to be consid-
                     ered in light of the surrounding facts and circumstances for it to amount
                     to consent. In Chile’s words, the burden on the State alleging acquies-
                     cence is “heavy” since it “involves inferring a State’s consent from its
                     silence. That inference must be ‘so probable as to be almost certain’ or
                     ‘manifested clearly and without any doubt’.” Chile notes that in a diplo-
                     matic context there can be no requirement incumbent on a State to answer
                     all the statements made by counterparts in an international forum. With
                     regard to Bolivia’s statement upon its signature of UNCLOS, Chile
                     argues that this declaration did not call for any response by Chile. Chile
                     maintains that on no occasion can it be said that it acquiesced to be
                     bound to negotiate Bolivia’s sovereign access to the Pacific Ocean.

                                                        * *
                        152. The Court observes that “acquiescence is equivalent to tacit rec-
                     ognition manifested by unilateral conduct which the other party may
                     interpret as consent” (Delimitation of the Maritime Boundary in the Gulf
                     of Maine Area (Canada/United States of America), Judgment, I.C.J.
                     Reports 1984, p. 305, para. 130) and that “silence may also speak, but
                     only if the conduct of the other State calls for a response” (Sovereignty
                     over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
                     (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 51, para. 121).
                     The Court notes that Bolivia has not identified any declaration which
                     required a response or reaction on the part of Chile in order to prevent an
                     obligation from arising. In particular, the statement by Bolivia, when
                     signing UNCLOS, that referred to “negotiations on the restoration to

                     53

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                     557 	         obligation to negotiate access (judgment)

                     Bolivia of its own sovereign outlet to the Pacific Ocean” did not imply the
                     allegation of the existence of any obligation for Chile in that regard.
                     Thus, acquiescence cannot be considered a legal basis of an obligation to
                     negotiate Bolivia’s sovereign access to the sea.

                                                     4. Estoppel
                        153. Bolivia invokes estoppel as a further legal basis on which Chile’s
                     obligation to negotiate with Bolivia may rest. In order to define estoppel,
                     Bolivia relies on the Court’s jurisprudence and on arbitral awards. Bolivia
                     indicates that for estoppel to be established, there must be “a statement
                     or representation made by one party to another” and reliance by that
                     other party “to his detriment or to the advantage of the party making it”
                     (citing Land, Island and Maritime Frontier Dispute (El Salvador/Hondu‑
                     ras), Application for Permission to Intervene, I.C.J. Reports 1990, p. 118,
                     para. 63). Citing the award in the Chagos arbitration, Bolivia points out
                     that four conditions must be met for estoppel to arise :

                          “(a) a State has made clear and consistent representations, by word,
                          conduct, or silence; (b) such representations were made through an
                          agent authorized to speak for the State with respect to the matter in
                          question; (c) the State invoking estoppel was induced by such rep-
                          resentations to act to its detriment, to suffer a prejudice, or to convey
                          a benefit upon the representing State ; and (d) such reliance was legit-
                          imate, as the representation was one on which that State was entitled
                          to rely” (Chagos Marine Protected Area (Republic of Mauritius v.
                          United Kingdom), Award of 18 March 2015 (International Law
                          Reports (ILR), Vol. 162, p. 249, para. 438).

                        154. Bolivia argues that estoppel does not depend on State consent; it
                     aims “to provide a basis for obligations other than the intention to be
                     bound” (emphasis in the original).
                        155. Bolivia maintains that Chile, for more than a century, made a
                     number of consistent and unambiguous declarations, statements and
                     promises with regard to Bolivia’s sovereign access to the sea and that
                     Chile cannot now deny that it agreed to negotiate with Bolivia with a
                     view to the latter acquiring sovereign access to the sea. According to
                     Bolivia, these “were representations on which Bolivia was entitled to rely
                     and did rely”.

                       156. Chile does not contest the requirements of estoppel as set forth by
                     the jurisprudence referred to by Bolivia. However, according to Chile,

                     54

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                     558 	         obligation to negotiate access (judgment)

                     estoppel plays a role only in situations of uncertainty. Chile argues that
                     when it is clear that a State did not express an intent to be bound, estop-
                     pel cannot apply.
                        157. In the present case, Chile maintains that it is “manifest” that
                     Chile did not have any intention of creating a legal obligation to negoti-
                     ate. Moreover, Chile asserts that Bolivia did not rely on any representa-
                     tions made by Chile. Assuming that the requirements of estoppel would
                     be met, Chile did not act inconsistently or in denial of the truth of any
                     prior representation. In Chile’s view, Bolivia was unable to show that
                     “there was a clear and unequivocal statement or representation main-
                     tained by Chile over the course of more than a century that, at all times
                     and in all circumstances, it would engage in negotiations with Bolivia on
                     the topic of a potential grant to Bolivia of sovereign access to the sea”.
                     Moreover, Bolivia did not demonstrate how its position would have
                     changed to its detriment, or suffered any prejudice because of its reliance
                     on Chile’s alleged representations.

                                                         * *
                        158. The Court recalls that the “essential elements required by estop-
                     pel” are “a statement or representation made by one party to another and
                     reliance upon it by that other party to his detriment or to the advantage
                     of the party making it” (Land, Island and Maritime Frontier Dispute
                     (El Salvador/Honduras), Application for Permission to Intervene, Judg‑
                     ment, I.C.J. Reports 1990, p. 118, para. 63). When examining whether the
                     conditions laid down in the Court’s jurisprudence for an estoppel to exist
                     were present with regard to the boundary dispute between Cameroon and
                     Nigeria, the Court stated:

                              “An estoppel would only arise if by its acts or declarations Cam
                          eroon had consistently made it fully clear that it had agreed to settle
                          the boundary dispute submitted to the Court by bilateral avenues
                          alone. It would further be necessary that, by relying on such an
                          attitude, Nigeria had changed position to its own detriment or had
                           suffered some prejudice.” (Land and Maritime Boundary between
                           Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objec‑
                           tions, Judgment, I.C.J. Reports 1998, p. 303, para. 57.)

                        159. The Court finds that in the present case the essential conditions
                     required for estoppel are not fulfilled. Although there have been repeated
                     representations by Chile of its willingness to negotiate Bolivia’s sovereign
                     access to the Pacific Ocean, such representations do not point to an obli-
                     gation to negotiate. Bolivia has not demonstrated that it changed its posi-
                     tion to its own detriment or to Chile’s advantage, in reliance on Chile’s

                     55

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                     559 	          obligation to negotiate access (judgment)

                     representations. Therefore, estoppel cannot provide a legal basis for
                     Chile’s obligation to negotiate Bolivia’s sovereign access to the sea.

                                              5. Legitimate Expectations
                        160. Bolivia claims that Chile’s representations through its multiple
                     declarations and statements over the years gave rise to “the expectation of
                     restoring” Bolivia’s sovereign access to the sea. Chile’s denial of its obliga-
                     tion to negotiate and its refusal to engage in further negotiations with
                     Bolivia “frustrates Bolivia’s legitimate expectations”. Bolivia argues that,
                           “[w]hile estoppel focuses on the position of the State taking up a
                           stance, and holds it to its commitments, the doctrine of legitimate
                           expectations focuses on the position of States that have relied upon
                           the views taken up by another State, and treats them as entitled to
                           rely upon commitments made by the other State”.

                     Bolivia also recalls that this principle has been widely applied in invest-
                     ment arbitration.

                        161. Chile is of the view that Bolivia has not demonstrated that there
                     exists in international law a doctrine of legitimate expectations. Chile
                     maintains that “[t]here is no rule of international law that holds a State
                     legally responsible because the expectations of another State are not
                     met”. It argues that Bolivia attempts “to circumvent the requirement of
                     detrimental reliance necessary to establish estoppel” because it is unable
                     to prove that it has relied on Chile’s alleged representation to its own
                     detriment.

                                                          * *
                        162. The Court notes that references to legitimate expectations may be
                     found in arbitral awards concerning disputes between a foreign investor
                     and the host State that apply treaty clauses providing for fair and equi-
                     table treatment. It does not follow from such references that there exists
                     in general international law a principle that would give rise to an obliga-
                     tion on the basis of what could be considered a legitimate expectation.
                     Bolivia’s argument based on legitimate expectations thus cannot be sus-
                     tained.

                            6. Article 2, Paragraph 3, of the Charter of the United Nations
                          and Article 3 of the Charter of the Organization of American States
                        163. Bolivia also argues that a general obligation to negotiate exists in
                     international law and is reflected in Article 2, paragraph 3, as well as in

                     56

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                     560 	         obligation to negotiate access (judgment)

                     Article 33 of the Charter of the United Nations. It maintains that this
                     general obligation applies to any pending issue involving two or more
                     countries. According to this provision, international disputes must be
                     settled by peaceful means “in such a manner that peace and security and
                     justice are not endangered” (emphasis in the original). In its oral plead-
                     ings, Bolivia developed this argument and contended that Article 2, para-
                     graph 3, of the Charter reflects “a basic principle of international law”
                     and imposes a positive obligation. In Bolivia’s view, this duty to negotiate
                     is applicable to all States. It is also applicable to all international disputes,
                     and not only to “legal” ones or those endangering the maintenance of
                     international peace and security. Bolivia develops a similar argument
                     with regard to Article 3 of the Charter of the OAS. It argues that “[a]s
                     with Article 2 (3) of the United Nations Charter . . . the obligation is a
                     positive one : Member States ‘shall’ submit disputes to the peaceful proce-
                     dures identified”.

                        164. Chile recognizes that the Charter of the United Nations imposes
                     an obligation to settle disputes via “peaceful means”. However, while
                     negotiations are one of the methods for settling disputes peacefully, they
                     do not have to be preferred to other means of peaceful settlement. Chile
                     points out that the term “negotiate” does not appear anywhere in Arti-
                     cle 2, paragraph 3, of the Charter. While the Parties are free to negotiate
                     with their neighbours, the Charter does not impose on them an obligation
                     to do so. With regard to Bolivia’s argument concerning Article 3 of the
                     Charter of the OAS, Chile responds that this provision cannot constitute
                     the legal basis of an obligation for Chile to negotiate with Bolivia on the
                     issue of Bolivia’s sovereign access to the Pacific Ocean.

                                                           * *
                        165. The Court recalls that, according to Article 2, paragraph 3, of the
                     Charter of the United Nations, “[a]ll Members shall settle their interna-
                     tional disputes by peaceful means in such a manner that international
                     peace and security, and justice, are not endangered”. This paragraph sets
                     forth a general duty to settle disputes in a manner that preserves interna-
                     tional peace and security, and justice, but there is no indication in this
                     provision that the parties to a dispute are required to resort to a specific
                     method of settlement, such as negotiation. Negotiation is mentioned in
                     Article 33 of the Charter, alongside “enquiry, mediation, conciliation,
                     arbitration, judicial settlement, resort to regional agencies or arrange-
                     ments” and “other peaceful means” of the parties’ choice. However, this
                     latter provision also leaves the choice of peaceful means of settlement to
                     the parties concerned and does not single out any specific method, includ-

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                     561 	         obligation to negotiate access (judgment)

                     ing negotiation. Thus, the parties to a dispute will often resort to negotia-
                     tion, but have no obligation to do so.

                       166. The same approach was taken by resolution 2625 (XXV) of the
                     General Assembly (“Declaration on Principles of International Law con-
                     cerning Friendly Relations and Co-operation among States in accordance
                     with the Charter of the United Nations”). Resolution 37/10 (“Manila
                     Declaration on the Peaceful Settlement of International Disputes”) also
                     followed the same approach and proclaimed the “principle of free choice
                     of means” for the settlement of disputes (para. 3). All this leads the Court
                     to the conclusion that no obligation to negotiate Bolivia’s sovereign
                     access to the Pacific Ocean arises for Chile under the provisions of the
                     Charter on the peaceful settlement of disputes.
                       167. Article 3 (i) of the Charter of the OAS sets forth that “[c]ontro-
                     versies of an international character arising between two or more Ameri-
                     can States shall be settled by peaceful procedures”. Article 24 provides
                     that international disputes between Member States “shall be submitted to
                     the peaceful procedures set forth” in the Charter, while Article 25 lists
                     these “peaceful procedures” as follows: “direct negotiation, good offices,
                     mediation, investigation and conciliation, judicial settlement, arbitration,
                     and those which the parties to the dispute may especially agree upon at
                     any time”. Resort to a specific procedure such as “direct negotiation” is
                     not an obligation under the Charter, which therefore cannot be the legal
                     basis of an obligation to negotiate sovereign access to the Pacific Ocean
                     between Bolivia and Chile.

                                     7. The Resolutions of the General Assembly
                                       of the Organization of American States
                        168. Bolivia refers to 11 resolutions of the General Assembly of the
                     OAS which dealt with the issue of Bolivia’s sovereign access to the Pacific
                     Ocean, arguing that they confirmed Chile’s commitment to negotiate that
                     issue (see paragraphs 71‑75 above). Bolivia does not contest that resolu-
                     tions adopted by the General Assembly of that Organization are not
                     binding “as such”, but maintains that they produce certain legal effects
                     under the Charter of the OAS. Following the precept of good faith,
                     the Parties must give due consideration to these resolutions and their con-
                     tent.
                        169. Bolivia also maintains that the Parties’ conduct in relation to the
                     drafting and adoption of General Assembly resolutions “can reflect, crys-
                     tallize or generate an agreement” between them. Bolivia underlines Chile’s
                     participation in the drafting of some of these resolutions. It refers in par-
                     ticular to resolution No. 686, which urged Bolivia and Chile to resort to
                     negotiations and was adopted by consensus.
                        170. In Chile’s view, the resolutions of the General Assembly of the
                     OAS referred to by Bolivia “neither confirmed any existing obligation nor

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                     562 	        obligation to negotiate access (judgment)

                     created any new one, and like all OAS resolutions, would have been incap
                     able of doing so”. Chile argues that resolutions of the General Assembly
                     are in principle not binding and that the General Assembly lacks compe-
                     tence to impose legal obligations on the Parties. In any event, Chile notes
                     that none of the resolutions in question mentions a pre-existing obliga-
                     tion for Chile to engage in negotiations with Bolivia. It observes that it
                     voted against the adoption of most of the resolutions in question or did
                     not participate in the vote; only on three occasions it did not oppose the
                     consensus for adopting the resolutions, but joined declarations or expla-
                     nations related to their content.

                                                         * *
                        171. The Court notes that none of the relevant resolutions of the Gen-
                     eral Assembly of the OAS indicates that Chile is under an obligation to
                     negotiate Bolivia’s sovereign access to the Pacific Ocean. These resolu-
                     tions merely recommend to Bolivia and Chile that they enter into nego-
                     tiations over the issue. Also resolution AG/RES. 686, to which Bolivia
                     calls special attention, only urges the Parties

                          “to begin a process of rapprochement and strengthening of friendship
                          of the Bolivian and Chilean peoples, directed toward normalizing
                          their relations and overcoming the difficulties that separate them —
                          including, especially, a formula for giving Bolivia a sovereign outlet
                          to the Pacific Ocean, on bases that take into account mutual conveni-
                          ences, rights and interests of all parties involved”.

                     Moreover, as both Parties acknowledge, resolutions of the General
                     Assembly of the OAS are not per se binding and cannot be the source of
                     an international obligation. Chile’s participation in the consensus for
                     adopting some resolutions therefore does not imply that Chile has
                     accepted to be bound under international law by the content of these
                     resolutions. Thus, the Court cannot infer from the content of these reso-
                     lutions nor from Chile’s position with respect to their adoption that Chile
                     has accepted an obligation to negotiate Bolivia’s sovereign access to the
                     Pacific Ocean.

                                   8. The Legal Significance of Instruments, Acts
                                         and Conduct Taken Cumulatively
                        172. In Bolivia’s view, even if there is no instrument, act or conduct
                     from which, if taken individually, an obligation to negotiate Bolivia’s
                     sovereign access to the Pacific Ocean arises, all these elements may cumu-
                     latively have “decisive effect” for the existence of such an obligation. The
                     historical continuity and cumulative effect of these elements should be

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                     563 	         obligation to negotiate access (judgment)

                     taken into account. Also, Bolivia asserts that the different rounds of
                     negotiations were not independent from one another; “each undertaking
                     or promise to negotiate was given as an ongoing continuation of previous
                     undertakings”.
                        173. Contrary to Bolivia’s view, Chile maintains that an “accumula-
                     tion of interactions, none of which created or confirmed a legal obliga-
                     tion, does not create such an obligation by accretion”. An intention to
                     become bound by international law cannot arise out of the repetition of a
                     statement which denotes no intention to create an obligation. In Chile’s
                     words, “[w]hen it comes to founding a legal obligation, the whole is not
                     greater than the sum of the parts”; if a series of acts taken individually are
                     unable to create an obligation, the same is true if those acts are taken
                     cumulatively. In Chile’s view, the interactions between the Parties were
                     “fragmented”, “discontinuous” and marked by periods of inactivity and
                     by shifting political priorities.

                                                          * *
                         174. The Court notes that Bolivia’s argument of a cumulative effect of
                      successive acts by Chile is predicated on the assumption that an obliga-
                     tion may arise through the cumulative effect of a series of acts even if it
                     does not rest on a specific legal basis. However, given that the preceding
                     analysis shows that no obligation to negotiate Bolivia’s sovereign access
                     to the Pacific Ocean has arisen for Chile from any of the invoked legal
                     bases taken individually, a cumulative consideration of the various bases
                     cannot add to the overall result. It is not necessary for the Court to
                     consider whether continuity existed in the exchanges between the Par-
                      ties since that fact, if proven, would not in any event establish the exis-
                      tence of an obligation to negotiate Bolivia’s sovereign access to the Pacific
                      Ocean.

                          IV. General Conclusion on the Existence of an Obligation
                              to Negotiate Sovereign Access to the Pacific Ocean

                       175. In light of the historical and factual background above (see para-
                     graphs 26-83), the Court observes that Bolivia and Chile have a long his-
                     tory of dialogue, exchanges and negotiations aimed at identifying an
                     appropriate solution to the landlocked situation of Bolivia following the
                     War of the Pacific and the 1904 Peace Treaty. The Court 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 agree-
                     ment granting Bolivia a fully sovereign access to the Pacific Ocean”
                     (Bolivia’s submissions, see paragraphs 13, 14 and 15 above). Accordingly,
                     the Court cannot accept the other final submissions presented by Bolivia,

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                     564 	         obligation to negotiate access (judgment)

                     which are premised on the existence of such an obligation (Bolivia’s sub-
                     missions, see paragraphs 13, 14 and 15 above).

                       176. Nevertheless, the Court’s finding should not be understood as
                     precluding the Parties from continuing their dialogue and exchanges, in a
                     spirit of good neighbourliness, to address the issues relating to the land-
                     locked situation of Bolivia, the solution to which they have both recog-
                     nized to be a matter of mutual interest. With willingness on the part of
                     the Parties, meaningful negotiations can be undertaken.

                                                            *
                                                        *       *

                       177. For these reasons,
                       The Court,
                       (1) By twelve votes to three,
                       Finds that the Republic of Chile did not undertake a legal obligation to
                     negotiate a sovereign access to the Pacific Ocean for the Plurinational
                     State of Bolivia ;
                       in favour : President Yusuf ; Vice‑President Xue ; Judges Tomka, Abraham,
                          Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
                          Gevorgian ; Judge ad hoc McRae ;
                       against : Judges Robinson, Salam ; Judge ad hoc Daudet ;
                       (2) By twelve votes to three,
                       Rejects consequently the other final submissions presented by the Pluri-
                     national State of Bolivia.
                       in favour : President Yusuf ; Vice‑President Xue ; Judges Tomka, Abraham,
                          Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde, Bhandari,
                          Gevorgian ; Judge ad hoc McRae ;
                       against : Judges Robinson, Salam ; Judge ad hoc Daudet.

                        Done in English and in French, the English text being authoritative, at
                     the Peace Palace, The Hague, this first day of October, two thousand and
                     eighteen, in three copies, one of which will be placed in the archives of the
                     Court and the others transmitted to the Government of the Plurinational
                     State of Bolivia and the Government of the Republic of Chile, respec-
                     tively.

                                                         (Signed) Abdulqawi Ahmed Yusuf,
                                                                         President.
                                                                (Signed) Philippe Couvreur,
                                                                              Registrar.

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                     565 	       obligation to negotiate access (judgment)

                       President Yusuf appends a declaration to the Judgment of the Court ;
                     Judges Robinson and Salam append dissenting opinions to the Judgment
                     of the Court ; Judge ad hoc Daudet appends a dissenting opinion to the
                     Judgment of the Court.

                     (Initialled) A.A.Y.
                       (Initialled) Ph.C.

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