The Inefficiency of International Water Law: How Did This Impact Chile v. Bolivia?

In the mountains of Chile, a little-known fourteen-year-long drought has been terrorizing Chileans, not to mention causing the country to almost lose one of its main water sources. The reason for this devastating loss, a dispute between Chile and its neighbor Bolivia, has left many with lingering questions about water rights. Bolivia has claimed for almost thirty years that the Silala River, which begins in Bolivia and then crosses over into Chile before flowing west into the Pacific Ocean, is solely for Bolivia’s use. [1] Bolivia believes the waterway is only under its jurisdiction which prevents Chile from using the water without any compensation. Bolivia’s argument is supported by its claims that the Silala River was artificially created to flow into Chile in 1908. [2] Chile, however, has argued that the Silala River is governed by international law, so it is an international waterway. This dispute was taken to the International Court of Justice (ICJ) in the case Chile vs. Bolivia (2022), where proceedings led the Court to surprisingly decide that the two countries actually agreed on the issue. [3] The Court ruled that Bolivia and Chile did not fundamentally disagree on the issue, since they both wanted equitable use of the waterway. [4] Therefore, an official decision was never made by the ICJ. Instead, the court simply urged the two countries to work together on issues such as these, a decision that poses significant legal problems for the future of international water laws. [5]

Although Chile and Bolivia were eventually able to work out their shared waterway issues by agreeing that both could use the river, this was not without the intervention of the ICJ, causing several years of deliberation and efforts between the two countries to go to waste. The involvement of the ICJ was unnecessary in the end because the lack of a proper decision did not establish any guidance for future cases in the realm of international water laws. Thus, international law concerning the usage of a waterway by multiple countries must be clarified to resolve multiple long-term instances of conflict between borders and to further prevent these unnecessarily long cases. This new framework must consider features such as timing, directionality, and the necessity of waterways. Since precedent is not considered to be binding in international law, a direct ICJ decision on the issue may completely solve the problem, but it would encourage countries to follow a newly instated avenue in instances of conflict. [6]

Current international water laws use vague language that prevents issues from being solved promptly and agreeably. For example, the words “equitable and reasonable use” are placed to be a key principle of the 1997 United Nations Convention on Non-Navigational Uses of International Watercourses. [7] However, there has been no clarification of what “equitable and reasonable use” truly means in the world of international law, as any country can present its actions in a light that technically places them in this category.

The determination of “equitable and reasonable use” came into play in November of 2010, when the Republic of Costa Rica filed an ICJ case against the Republic of Nicaragua, Nicaragua v. Costa Rica, concerning the construction of a canal from the San Juan River to Laguna Los Portillos between the two countries. Costa Rica claimed that Nicaragua had entered the territory of Costa Rica without permission on two separate occasions during the construction process. [8] The dispute focused on Costa Rica’s assertion that it had a “right to sovereignty, to territorial integrity and non-inference with its rights over the San Juan River, its lands, its environmentally protected areas, as well as the integrity and flow of the Colorado River.” In December of 2011, Nicaragua claimed it had the right to fight back “for violations of Nicaraguan sovereignty and major environmental damages to its territory.” In 2018, the Court ultimately decided that Nicaragua’s harmful activities made Costa Rica eligible for compensation due to the “impairment of use.” Costa Rica was awarded a sum of USD 378,890 to be paid by Nicaragua. Not only is this no small fee, but also this case further solidifies the ability of the ICJ to rule in favor of one party. [9]

Since Nicaragua v. Costa Rica did end in a decision, precedent was set in international law. The ICJ made it clear that becoming involved in activities that are harmful to the environment, especially waterways, is taken seriously in the current state of the law. This is important as legal precedent has a principal role in how judicial officers make decisions in similar cases. [10] This non-binding notion of precedent does not require future judiciaries to make the same decision as the ICJ, but it does serve as a guide and reference point. When the ICJ made a direct decision in Nicaragua v. Costa Rica, it was committing to further clarity in international water law: specifically, factors that international water laws need in order to be a more prominent dictation of how countries should behave. The vagueness of the written law requires this precedent, but unfortunately, the Nicaragua v. Costa Rica decision does not set a precedent for all international water laws. With the Bolivia v. Chile case, for example, laws about the use of how to divide the use of a shared waterway –which make up a fair amount of legal discourse about water laws– were not clarified, so work by the ICJ and other international entities is still needed. Without this precedent, the ICJ will only inflict more trouble on themselves in the future.

The faults caused by the absence of a precedent concerning many sects of international water law go beyond just wasted time and resources, as the humanitarian impacts may have a larger influence on the function of these laws. If the decision by the ICJ had been to restrict the waterway from Chile’s use, the breaking of international humanitarian law may have been in question. This would raise an entire new legal question adjacent to international water laws. In July 2010, the United Nations General Assembly “recognized the human right to water and sanitation and acknowledged that clean drinking water and sanitation and acknowledged that clean drinking water and sanitation are essential to the realization of all human rights.” [11] This resolution (64/292) established that countries in positions such as Chile’s would have the upper hand in cases similar to Bolivia v. Chile due to the importance of access to drinkable water. The likelihood of the ICJ siding with Bolivia is small, so the lack of a decision gives countries in the same situation as Bolivia more freedom to attempt to restrict water access. When there are no real legal consequences, this allows countries limiting human rights to continue their actions, highlighting another reason why an official decision by the ICJ needs to be made.

When considering the logistics of creating a more sound set of international water laws, past examples come into play. Do these laws need to be established region by region? Both cases discussed here have been from Central and South America. In the Arab world, “over 50% of freshwater resources originate from outside the Arab region.” [12] Because of this, a global water convention or basin treaty could be more beneficial than a regional one. A regional Arab agreement would put Arab countries’ interests before others, which does not make sense when the resources come from them. This complicates how international water laws should be approached, as this regional water supply dynamic may not be the same in other regions. A regional agreement may be what Central and South American countries need, but it is difficult to legally cater to the needs of all countries across the world. If one region wants a more overall agreement worldwide and another region prefers an agreement for their specific area, what blanket decision should judiciaries make? This creates a common outcome of discourse about international law where no official agreement is made.

In the Bolivia v. Chile case, this never-ending wait for such an important issue about access to the Silala River threatened the lives and livelihoods of many others. Therefore, the implications of the ICJ being at a standstill for so long in Bolivia v. Chile did no favors to any party involved, and the saga only ended in a short-term solution to an issue that will come up again in the future. Not only simply making a verdict, but also releasing it much faster, would have been much more efficient and appropriate to both the judiciaries and citizens of involved countries. Making steps to clarify these international water laws is incredibly necessary for the efficiency and effectiveness of the international legal system when transnational waterway issues arise.

Edited by Stella Tallmon

[1] Garry, Héloïse. 2019. “The Case of the Silala River: Between the Laws of Men and the Laws of Nature | Earth.Org.” Earth.Org. Earth.Org, September 10, 2019.

https://earth.org/silala-river-special-report/

[2] Garry, “The Case of the Silala River.”

[3] “Dispute over the Status and Use of the Waters of the Silala (Chile v. Bolivia).” n.d. Cour Internationale de Justice - International Court of Justice | INTERNATIONAL COURT OF JUSTICE. Accessed March 7, 2024. https://www.icj-cij.org/case/162.

[4] Berg, Stephanie vanden. 2022. “World Court Urges Chile and Bolivia to Cooperate on Silala River.” Reuters, December 1, 2022. https://www.reuters.com/world/europe/world-court-urges-chile-bolivia-cooperate-silala-river-2022-12-01/.

[5] Stefanelli, Justine. 2022. “ICJ Issues Judgment in Chile-Bolivia Silala River Dispute | ASIL.” Welcome to ASIL | ASIL, December 2, 2022. https://www.asil.org/ILIB/icj-issues-judgment-chile-bolivia-silala-river-dispute.

[6] Pelc, Krzysztof. 2014. “The Politics of Precedent in International Law: A Social Network Application.” The American Political Science Review 108 (3): 547–64.

https://www.jstor.org/stable/43654392?seq=1

[7] “International Water Law | Peace Palace Library.” n.d. The International Law Library | Peace Palace Library. Accessed March 7, 2024.

https://peacepalacelibrary.nl/research-guide/water

[8] “Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica).” n.d. Cour Internationale de Justice - International Court of Justice. Accessed March 7, 2024. https://www.icj-cij.org/case/152.

[9] “Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica).” n.d. Cour Internationale de Justice - International Court of Justice. Accessed March 7, 2024. https://www.icj-cij.org/case/152.

[10] Solanki, Sneha. 2023. “What Is a Legal Precedent? Definition and Case Law Resources.” Thomson Reuters Law Blog, March 15, 2023. https://legal.thomsonreuters.com/blog/what-is-a-legal-precedent-definition-and-case-law-resources/#:~:text=Legal%20precedents%20play%20an%20important,saving%20time%20and%20scrutinizing%20results.

[11] “The Human Right to Water and Sanitation.” n.d. UN. Accessed March 7, 2024. https://www.un.org/waterforlifedecade/human_right_to_water.shtml#:~:text=The%20human%20right%20to%20water%20and%20sanitation&text=On%2028%20July%202010%2C%20through,realisation%20of%20all%20human%20rights.

[12] Antaine Ibrahim, Imad. n.d. “Challenges for International Water Law: Voices from Emerging Scholars (Part 1 of 3) | Global Water Forum.” Global Water Forum. https://www.facebook.com/GlobalWaterForum. Accessed March 7, 2024. https://www.globalwaterforum.org/2022/08/22/challenges-for-international-water-law-voices-from-emerging-scholars/.