The following essay, authored by Francesco Sindico, Laura Movilla Pateiro, and Gabriel Eckstein, was first published on EJIL: Talk!, the Blog of the European Journal of International Law. It is reposted here with their kind permission.
Background
The Silala waters originate in Bolivia near its border with Chile, at an altitude of 4000 metres. This is one of the driest parts of the planet and home to unique mountain wetlands known as bofedales. In 1928, the Silala was heavily canalized on the Bolivian side of the border. According to Chile, this was done to address water quality concerns. Bolivia argued that the purpose was to enhance the quantity of Silala water flowing downstream.
Chile and Bolivia, for the past six years, have engaged in a dispute before the International Court of Justice over the waters of the Silala. On 01 December 2022 the Court released its decision. This summary highlights some key facts and the outcome of the case, and raises a number of preliminary questions that the case presents about general international law and the law of international watercourses.
At the heart of the dispute is the “nature” and the “use” of the Silala. In a nutshell, Chile wanted the Court to “declare” the Silala an international watercourse entirely governed by customary international law, that its “use” was lawful according to international law, and that Bolivia’s recent proposals and efforts to use the Silala were unlawful. Bolivia presented counterclaims asking the Court to declare that it had sovereignty over both the infrastructure located in its territory and the enhanced portion of the surface flows, which benefitted Chile. Bolivia also sought a ruling that any future deliveries of enhanced flows to Chile had to be subject to an agreement.
Outcome
Chile had always considered the Silala as an international watercourse. Bolivia started the proceedings considering the Silala to be domestic springs from which water was diverted downstream into Chile by means of the artificial infrastructure. Scientific studies commissioned by Bolivia during the judicial process revealed that the waters of the Silala would have flowed on the surface into Chile even without canalization. Thus, the positions of the two sides eventually converged. The only disagreement was on the effect of the infrastructure on the Silala’s surface flows with Chile maintaining that it was minimal (1 to 3%) and Bolivia considering that it was more significant (11 to 33%). Hence, Bolivia maintained that the Silala was an international watercourse with unique characteristics due to the extensive canalization infrastructure that enhanced the Silala’s surface flows. Bolivia, however, agreed in the oral proceedings that the Silala was subject to customary international law.
In deciding Chile’s first claim, the Court acknowledged that the parties had reached an agreement over the nature of the Silala as an international watercourse and that both agreed that customary international law applied to all of its waters. As a result, the Court concluded that the claim no longer had any object and that it did not have to issue a decision (§59).
The Court reached the same conclusion on Chile’s second (§65), third (§76) and fourth (§ 86) claims. In the second claim, it emphasized that both Parties agreed that the principle of equitable and reasonable utilisation applied to all the waters of the Silala, and that both parties were entitled to such utilisation. In the third claim, the Court highlighted statements made by both sides that Chile was entitled to its current use of Silala water as a function of its right to equitable and reasonable utilisation, and that such use was without prejudice to any future equitable and reasonable use that Bolivia might make, including related to the dismantling of the canals and restoration of the wetlands. With regard to Chile’s fourth claim—related to the threshold of harm that States must avoid when using the waters of an international watercourse in a way that causes pollution—the Court concluded that because Chile clarified its position during the proceedings that the actionable level was “significant” harm, as Bolivia had consistently argued, there was no disagreement between the Parties. In each of these claims, the Court acknowledged the agreement, ruled that it was devoid of any object, and declined to issue a decision.
Where the Court identified a disagreement in law and facts was in relation to Chile’s last claim. Here, Chile asserted that Bolivia had breached several procedural provisions of international law, namely the obligation to notify and consult with respect to measures that may have an adverse effect on other watercourse States. Since neither State is a party to the 1997 United Nations Watercourses Convention (UNWC) (§54), the Court decided the case on the basis of customary international law. However, Chile argued that Articles 11 and 12 of the UNWC reflected customary international law related to notification and consultation obligations. The Court rejected Chile’s assertion related to Article 11, clarifying for the first time in its case law that there was no state practice to justify such a conclusion (§111). It also acknowledged that while the Parties and the Court agreed that Article 12 reflected customary international law Chile and Bolivia had divergent views on the threshold that triggers a violation. According to Chile, “significant adverse effect” was the relevant threshold when considering application of the obligation to notify and consult on planned measures, as well as when the results of an environmental impact assessment must be shared. In contrast, Bolivia argued that the obligations only arise where there was a risk of significant transboundary harm. Relying on its jurisprudence in the cases of Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), the Court sided with Bolivia. While it acknowledged that the Commentaries to the Draft Articles on the Law of Non Navigational Uses of International Watercourses prepared by the UN International Law Commission did refer to the lower threshold, it concluded that Article 12 of the UNWC “does not reflect a rule of customary international law relating to international watercourses that is more rigorous than the general obligation to notify and consult contained in its own jurisprudence” (§117). The Court then reviewed the facts in the case and concluded that Chile had failed to allege or demonstrate any harm resulting from Bolivia’s planned measures on the Silala (§127). As a result, it unanimously rejected Chile’s claim (§128).
Bolivia’s three counterclaims received a similar fate as had Chile’s claims. The Court ruled that the Parties had reached an agreement during the proceeding on the first two, rendering them without object and negating the need for a decision; it also rejected Bolivia’s third claim.
Bolivia’s first counterclaim requested a declaration recognizing its sovereignty over the infrastructure and Bolivia’s right to remove it. In its second counterclaim, a corollary of the first, Bolivia requested a declaration of its sovereignty over the enhanced flow generated by the infrastructure. Since Chile had fully accepted Bolivia’s first counterclaim in its pleadings and during oral argument, the Court concluded that it was without object and required no decision (§147). Similarly, the Court considered that the Parties had reached a consensus on the second counterclaim as it related to Bolivia’s right to dismantle the canals and diminish the flow of the surface water downstream into Chile (§155). Thus, it also declined to rule on this point. As to Bolivia’s final counterclaim—asking the Court to declare that any need by Chile to have Bolivia maintain the infrastructure and enhanced flows would be subject to an agreement— the Court rejected it on grounds that it presented a hypothetical future scenario (§162).
Questions
The Silala case raises unique questions both for general international law and international water law. For the former, a key question relates to the consequence of new evidence and the Parties’ evolving positions during the proceedings that bring them closer to an agreement on the substance of a claim. In such cases, should the Court issue a declaratory judgement or, as occurred in the Silala case, is it free to declare a claim void of object that requires no decision? In this regard, see the Declaration of Judge Charlesworth and the Separate opinion of Judge ad hoc Simma. Another question pertains to the use of experts by the Parties, the Court’s request for cross-examination of the experts during the hearing, and the lack of nearly any reference to the science or experts in the decision.
From an international water law perspective, the Silala case appears to provide some clarification on the procedural obligation to notify and consult under customary international law. Question will surely be asked as to whether it has done so in a progressive or regressive manner. However, less clarity emerges from the decision on the extent to which riparians must cooperate to fulfil their obligations to notify and consult, on the nature of an international watercourse, and on the need to take into account the “uniqueness” of such a watercourse in the context of applying the principle of equitable and reasonable use.
While the Silala decision is distinct in being one of the few ICJ pronouncements on a dispute involving an international watercourse, it is still too early to comprehend is full value. In addition to the above, other questions will likely arise from the case for both general international law and international water law. For now, we hope these are enough to begin the discussion.
Francesco Sindico, Laura Movilla and Gabriel Eckstein all served as Counsel for the Plurinational State of Bolivia in the ICJ Silala case. None of what is written here should be attributed in any way to the Plurinational State of Bolivia, and only represents the positions and opinions of the three authors in their personal capacities.