Analysis of the Judgment in the Silala case

There can be no doubt, the ruling on the Silala case was favorable to Chile.
To understand this, it is important to establish that the International Court of Justice indicated that it could not rule on the merits in the five points sustained in the Chilean application, nor on the merits in two of the three Bolivian counterclaims, establishing -in addition- the rejection of the third point of the altiplanic petition.
Given this, why did Chile win? Namely:
In 2016, Chile sued Bolivia before the International Court of Justice hoping that it would declare, among others, that the Silala is an international watercourse and that Chile’s use of the waters is legitimate.
The Bolivian response was to raise three demands in the counter-memorial, which aimed not only to object to the Chilean position, but also to recognize rights over the artificial flow of the river that would have been generated as a result of pipelines.
It is important to note that the Court has rules of action, for example, to rule on the merits of the case when a dispute exists or is maintained, which implies that the Court would have nothing to judge whether the subject matter of the application has disappeared.
The Court noted that the Parties have evolved throughout the proceedings, which has led Chile and Bolivia – and during the different stages of the process – to recognize the Silala as an international watercourse governed by customary international law, so that Chile’s claim and most Bolivian counterclaims would be meaningless. since the substance of the claims would have been settled during the written and oral procedure.
Given this, the Court only had to recall a few considerations. First, the regime applicable to the waters of the Silala, both groundwater, surface and improved, is customary international law, so Bolivia cannot be recognized preferential rights over the latter on the basis that the waters of the Silala system must be used in an equitable and reasonable manner by the riparian States.
The Court noted that the protection of the Silala system is an obligation of conduct of the Parties and that it must be subject to the principles of cooperation, which obliges the Parties to notify and consult when there is a significant risk.
It was also established that Bolivia has the sovereign right to dismantle the pipelines, which is a point that Chile never objected to.
Although the Court did not rule on the merits of the Chilean claim, nor on the merits of two of the three Bolivian counterclaims, it is possible to recognize that the national decision to sue Bolivia turned out to be an appropriate strategy, since it forced Bolivia to recognize -in the process- some considerations that it previously denied. such as the character of international watercourse that Silala has.

Today, and thanks to this cause and the process carried out, it has been established that the Silala is an international watercourse governed by customary international law, which implies the equitable and reasonable use of the entire water system, as well as the obligation of the Parties to protect it.

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Original source in Spanish