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Home > Sturm College of Law > Denver Journal of International Law & Policy > Vol. 53 (2024-2025) > No. 1 (2024)

 

Agnes Chong

Abstract

The Silala case was brought by Chile against Bolivia at the International Court of Justice (ICJ) in 2016 over conflicting views of their respective substantive rights and obligations pertaining to the shared waters of the Silala River system. However, the outcome was far less than ideal, with the ICJ effectively deciding nothing about the dispute. The Court presumed the dispute had ‘disappeared’ as the parties converged on their positions mid-proceedings. Thus, the Court concluded it was not called to make a decision as there was no longer any object in the claims of the parties. Unfortunately, the Court presumed the presence of an agreement was synonymous with a non-dispute between the parties and no further role for the Court, not even any recording of the agreement, which would have been helpful to the parties in the circumstances. In effect, the failure to rule on the dispute over the States’ rights and obligations reinforces the States’ subjective self-definition of the principle’s nature, scope, and illegality without objective interference from the Court. This article highlights a missed opportunity of the Court to rule on the dispute and considers the counterfactual scenario if the Court had ruled on the object of the claims. It traces the conflicting views of States’ equitable utilization rights to analyze the legal meaning of the right to equitable and reasonable utilization with reference to the submissions of the parties and international water jurisprudence. It argues that it is within the Court’s jurisdiction to decide the object of the parties’ claims notwithstanding the convergence of positions; the Court should have made a declaratory judgment on the equitable utilization rights of the parties notwithstanding the ambiguities of the law.

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