Dispute over the Status and Use of the Waters of the Silala
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| Dispute over the Status and Use of the Waters of the Silala | |
|---|---|
 | |
| Court | International Court of Justice |
| Full case name | Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia) |
| Decided | 1 December 2022 |
Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia) was a case at the International Court of Justice (ICJ) concerning the legal status and use of the Silala River, which originates in Bolivia and flows into Chile. Bolivia maintained that the river's flow into Chile was artificially enhanced by channels and therefore not governed by the rules applicable to international watercourses, while Chile argued that the Silala was a natural international river subject to customary international law.
The dispute had roots in a railway concession granted in 1908 and in long-standing tensions over water use linked to the broader Bolivian demand for sovereign access to the Pacific Ocean. After a preliminary agreement between the two governments in 2009 collapsed without ratification, Chile filed an application before the ICJ in June 2016, pre-empting a threatened Bolivian claim. Neither country had signed the principal international conventions governing transboundary watercourses, and no bilateral basin agreement existed between them.[1]
On 1 December 2022, the ICJ delivered its judgment. Finding that the parties in fact agreed on the international character of the Silala, the Court declined to issue a formal ruling on that question. It also found that any artificial improvement to the river's flow carried no consequences under customary international law, while recognizing Bolivia's right to undertake certain unilateral measures, such as dismantling the channels, within its own territory. The ruling was broadly interpreted as a Chilean diplomatic success, though Bolivian media highlighted elements favorable to their country's position.[2][3]
Historical context
The War of the Pacific pitted Chile against Bolivia from 1879, with Chilean forces occupying the Bolivian littoral, a territory rich in mineral resources. Following the war, Chile incorporated the territory, which became the Antofagasta Region. The existence of a watercourse originating in Bolivian territory and flowing into the San Pedro de Inacaliri River was first described by New Zealand engineer Josiah Holding in 1884, while he was working on the design and construction of the railway between Antofagasta and Ollagüe.[4]
The border between Chile and Bolivia was established by the Treaty of Peace and Friendship of 1904, following the main peaks of the Andes. The treaty text references the "Silala hill" as a boundary marker, and the Chilean government has argued that the map accompanying the demarcation already included the current course of the Silala River, suggesting its recognition as an international watercourse.[5]
On 31 July 1906, Chile granted a concession to the Antofagasta and Bolivia Railway Company Limited (later the Antofagasta (Chili) and Bolivia Railway) for use of the Silala's waters in Chilean territory, for the purpose of augmenting the water supply to the port of Antofagasta. On 21 June 1908, the same British company requested a concession from the prefecture of the Potosí Department for use of the Silala's waters to supply steam locomotives on the Antofagasta–Oruro railway line; the concession was granted on 23 September of that year, constituting the first recorded use of the river's waters in Bolivian territory.[4] The railway company made use of the resource until 1961, when it converted its fleet to diesel. However, the waters continued to be used by various companies in northern Chile, primarily Codelco and water utilities in Antofagasta.[4]
The upper area of the Silala River around the Bolivia–Chile border has had its flow enhanced by channels since 1928 for sanitary reasons, given that the river's sources lie in small wetlands.[6][1] These wetlands are bofedales with insect fauna; they were intervened for better drainage after fly eggs were detected in the water supply of the city of Antofagasta.[6]
Early disputes
On 5 May 1996, Bolivian newspapers accused Chilean entrepreneurs of having artificially diverted the Silala, arguing that any use of its waters by Chile should be subject to economic compensation to Bolivia.
In June 1997, the government of Gonzalo Sánchez de Lozada revoked the original concession on the grounds that the water was no longer being used for its originally authorized purposes.
On 4 April 2009, the governments of Evo Morales and Michelle Bachelet announced a preliminary agreement on the use of the Silala's waters, under which Chile committed to paying retroactively for use of 50% of the river's flow pending a hydrological study to determine the nature of the waters.[7] The agreement was never ratified due to opposition within Bolivia, and was ultimately set aside when Chile suspended negotiations on the Thirteen-point agenda in November 2010, one item of which concerned precisely the Silala waters and shared water resources.
Within the context of the Bolivian demand for sovereign access to the Pacific Ocean, Bolivian President Evo Morales threatened on various occasions during his 2006–2019 tenure to reduce the flow of the Silala into Chile and to charge Chile for the use of its waters.[2][8] Bolivia had as of 2022 made little use of the Silala's waters, owing to an unfavorable geographical position.[6]
Proceedings before the International Court of Justice
In early 2016, Bolivia announced it would file a claim against Chile before the ICJ, seeking retroactive compensation estimated by the Bolivian Senate at over one billion US dollars.[9] Chilean President Michelle Bachelet responded by announcing that Chile would file a counterclaim should Bolivia proceed. In June 2016, Bachelet changed strategy and announced that Chile itself would bring the case, filing the application on 6 June 2016.[10] Chile's application argued that the Silala is an international watercourse originating in Bolivia, crossing into Chile, and discharging into the San Pedro de Inacaliri River within the Pacific watershed.
On 3 July 2017, Chile submitted its memorial, comprising six volumes and setting out scientific evidence on the geology, hydrochemistry, geomorphology, biology and hydrology of the area.[11] Bolivia's counter-memorial was due on 3 July 2018 but, following a Bolivian request for an extension in May 2018, was ultimately submitted on 31 August 2018, accompanied by a counter-claim for compensation.[12] Chile submitted its reply on 15 February 2019.[13] Chile submitted a final written pleading on the counter-claim by 16 September 2019, closing the written phase.[14]
On 23 April 2020 the ICJ suspended all oral proceedings due to the COVID-19 pandemic, resuming from March 2022.[14] Public hearings were held between 1 and 14 April 2022 at the Peace Palace in The Hague.[2]
Judgement and reactions
On 1 December 2022, the ICJ delivered its judgement. It found that the parties agreed on the legal status of the Silala River as an international watercourse, and therefore the Court was not called upon to issue a ruling on that point.[15][16] The Court also established that any artificial improvement to the river's flow did not give rise to consequences under customary international law.[1] The ruling further recognized Bolivia's right to carry out certain unilateral measures within its own territory, such as dismantling the channels, while rejecting Chile's claim that Bolivia had failed to meet its obligations under international law.[3]
Various sources, including El País, described the ruling as favorable to Chile, as the Court acknowledged the international character of the Silala River, which had been Chile's primary objective.[17][3] The Chilean Ministry of Foreign Affairs said it "appreciated" the ruling, and President Gabriel Boric stated that "Chile went for judicial certainty and obtained it".[18] Bolivian newspapers, by contrast, reported the ruling as favorable to Bolivia, noting the Court's acknowledgment of certain Bolivian rights.[19]
According to lawyer Raquel Cárcar Izurriaga of the University of Navarra, the ruling diminishes the potential for future conflicts over the river but does not eliminate them entirely, since lawful Bolivian actions could nonetheless create friction with Chile.[3] She assessed the magnitude of any future international disputes arising from the Silala as likely to remain limited, given the very small volume of water resources involved.[3]