Chile begins oral arguments in the Silala River case at the International Court in The Hague

Chile’s delegation, headed by Foreign Affairs Undersecretary Ximena Fuentes, began by presenting its arguments in the case filed by Chile relating to use of the Silala River’s waters, at the International Court of Justice in The Hague in the Netherlands.

Chile’s team also comprises Co-Agent Carolina Valdivia, Legal Adviser and General Co-ordinator Johanna Klein Kranenberg, and other experts in international litigation. They began the round of debates, reinforcing the solid arguments that support Chile’s demand. 

“Bolivia’s thesis is that the groundwater that naturally flows down the gradient into Chile, but which due to the channelization works on Bolivian territory constructed in 1928, may now flow down a channel as surface water instead of groundwater. It would be manifestly contrary to international law for Bolivia to assert exclusive sovereignty over the groundwater flowing to Chile. Yet somehow, according to Bolivia, once the groundwater flows on the surface due to the drainage effect of the channelization works on Bolivia’s territory, this is said to become “artificial water”, over which Bolivia can claim exclusive sovereignty,” explained Undersecretary Fuentes, who is also Chile’s legal agent before The Hague. 

She added, “That position, with all due respect, is obviously untenable. Indeed, Chile wonders how Bolivia’s thesis, which was never mentioned during the development of this dispute between November 1999 and September 2018,  can seriously be pursued before this Court. (…) whether as groundwater or as surface water, the waters of the Silala, after due allowance for minimal evaporation, flow down the gradient to Chile.”

History of the litigation

It should be noted that on July 3, 2017, Chile’s legal team, headed by the then Director of the Directorate of Frontiers and Limits of the State (DIFROL), Ximena Fuentes Torrijo, who is now Foreign Affairs Undersecretary and Chile’s Agent, filed Chile’s Memorial with the court.

In this Memorial, Chile asked the International Court of Justice to adjudge and declare that the Silala River system is an international watercourse, the use of which is governed by customary international law and that Chile is entitled to the equitable and reasonable utilization of its waters.

It also asserted that Bolivia has an obligation to take all appropriate measures to prevent and control pollution and other forms of harm to Chile resulting from its activities in the vicinity of the Silala River.

Chile defends its entitlement to utilize the waters of the Silala River, given Bolivia’s contention that the Silala River system is not a trans‑boundary watercourse and that Bolivia is therefore entitled to the use of 100 per cent of its waters.

However, it must be emphasized that the Silala River crosses into Chile through a ravine with a slope of between 4% and 5% that has been formed for at least 8,400 years. Due to the force of gravity, the water can only flow downhill into Chilean territory.

Confidence

Once the first day of arguments had drawn to a close, Co-Agent Carolina Valdivia stated that, “our objectives for the first day were, above all, to present our country’s case. Then, we wanted to show how Bolivia has been changing its position during the course of the written case. Likewise, another very important objective is to show that the new Bolivian theory on artificial flow is not supported from the point of view of international law or from the perspective of the facts that constitute our case.” 

The Agent, Ximena Fuentes, emphasized, “as you have seen and as the Co-Agent has explained, the goal of Chile’s first presentation has been to make it very clear that Chile is right, both from a legal and factual point of view. We were clear in explaining all the points of agreement that we have with Bolivia. This is very important in court, and the conclusion is that those things on which we do not agree in the case, the dispute, have been ostensibly reduced. They have been reduced to the point where Chile has proposed to resolve this case through an out-of-court settlement, because the very nature of the case indicates and justifies it.”

Lastly, she noted that “we basically agree that it is an international river, we agree that the rule of equitable and reasonable use applies to an international river and, therefore, that both countries can use it. And we also agree on an essential factual point: that all of the water, whether surface or groundwater, flows from Bolivia to Chile down the slope, either the slope in the terrain or the hydraulic gradient. Therefore, it does not make sense to Chile that Bolivia claims ownership over a portion of this water.”