The International Fight For Water Rights: The Silala River Dispute

By Abagail Cacovic

As Americans surrounded by all types of different water sources, we often forget about some of the most arid terrains in the rest of the world and how vital each drop of water can be to the people who inhabit it.[1] The Silala River begins in Bolivia and naturally heads towards Chile.[2] It is a main source of freshwater that supports the ecosystem and the economy.[3] It is not often that international water law comes in front of the International Court of Justice (ICJ), but the recent fiery dispute between Bolivia and Chile regarding whether the Silala is a transboundary river and subject to international law ended up at the ICJ.[4]

Tension around the Silala has existed for decades, but the legal dispute began in 2016 when Bolivia argued that Chile had no legal rights to the Silala River and should pay Bolivia for using the water source.[5] Neither Bolivia or Chile are parties to the 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses[6], which aimed to protect, preserve, and manage the use of international watercourses.[7] Chile’s argument rested on the fact that “the Silala River system is an international watercourse governed by customary international law.”[8] Chile also argued that by Bolivia blocking the flow of the Silala River, that was a violation of international water laws.[9] Bolivia argued that Article 2 of the Convention is not a part of the customary international law that Chile is arguing under and that the Silala River has unique characteristics that would further separate it from customary international law regarding international watercourses.[10] These unique characteristics that Bolivia suggests is that the Silala is not a river, rather the Silala is “a series of underground springs forced above ground by Chilean construction.”[11] In Article 2 of the Convention, watercourse is defined as “a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus.”[12] International watercourse is defined as “a watercourse, parts of which are situated in different States.”[13]

The ICJ did not accept Bolivia’s arguments.[14] The ICJ held that

[i]t is not necessary for Bolivia to have recognized that the definition of ‘international watercourses’ in Article 2 are part of customary international law, and that Bolivia’s insistence on the river’s unique characteristics ‘does not change the fact that it has expressed its unequivocal agreement with the proposition that customary international law on non-navigational uses of international watercourses applies to all of the Silala waters.’[15]

Although this case created over six years of litigation, there was never an official decision put out for this case because both Bolivia and Chile agree.[16] The ICJ said that the agreement between Bolivia and Chile became apparent as “they are both entitled to the equitable and reasonable utilization of the Silala waters under customary law” and that it was not something the ICJ should address because it is “a possible difference of opinion regarding a future use of these waters.”[17]

The Silala River. Image courtesy of REUTERS/David Mercado/File Photo.

Chile considers the ICJ’s decision to not issue a decision a victory and is satisfied that the issues have been resolved.[18] Chilean President Gabriel Boric said that Chile can “rest easy” after the ICJ’s ruling because “it is recognized that Chile’s historical use and its current use of the waters of the Silala River is in accordance with the equitable and reasonable use established by international law.”[19] Bolivia’s President Luis Arce did not state that this ruling is a victory but that “Bolivia has resolved a controversy with a brother nation.”[20] He further stated that the ruling “ratifies our rights over the waters of Silala and our sovereignty over the dismantling of the artificial canals.”[21] As for now, this dispute has been laid to rest, at least legally.[22]

The ICJ has received a good amount of backlash for its choice to not issue a decision on this case.[23] The Court stated the reasoning behind not issuing a decision was that the parties agree. However, the parties only agree that there is an obligation in customary international law to prevent transboundary harm to all of the Silala waters.[24] Like most international legal disputes, this issue or something similar may arise in the future.[25] Bolivian Foreign Minister Rogelio Mayta said after the ruling that “Bolivia has the right to the channeling . . . in its territory . . . to recover wetlands that have been deteriorated.”[26] Both countries believing that they have these rights to the Silala waterways could cause more litigation in the future.[27] This is not the first time Bolivia and Chile have been at the ICJ for a dispute.[28] In 2018, the ICJ ruled with Chile stating that Chile “was not legally obligated to give sea access to its landlocked neighbor.”[29] Bolivia has been landlocked since it lost its coastline to Chile in a war that lasted from 1879-1883, and ever since then, there have been consistent and ongoing issues regarding waterways and water rights between the two countries.[30] The waterway disputes are not likely to end with the 2022 ICJ ruling on the Silala River.

[1] Tadesse M. Kebebew, Dispute Over the Status and Use of the Waters of the Silala (Chile v. Bolivia): Is the International Court of Justice Falling Short? (2023) https://onlinelibrary.wiley.com/doi/full/10.1111/reel.12513.

[2] Id.

[3] Id.

[4] Id.

[5] Justine N. Stefanelli, ICJ Issues Judgment in Chile-Bolivia Silala River Dispute, American Society of International Law (Dec. 2, 2022) https://www.asil.org/ILIB/icj-issues-judgment-chile-bolivia-silala-river-dispute.

[6] Id.

[7] Convention on the Law of the Non-Navigational Uses of International Watercourses (May 21, 1997).

[8] Stefanelli, supra note 5

[9] Molly Quell, World Court: Bolivia, Chile Close Together in River Dispute (Dec. 1, 2022) https://apnews.com/article/europe-united-nations-chile-bolivia-international-law-d6422dea0295ec179447ec1589960de4

[10] Stefanelli, supra note 5

[11] Quell, supra note 9.

[12] 1997 Convention on the Law of the Non-Navigational Uses of International Watercourses, supra note 7.

[13] Id.

[14] Stefanelli, supra note 5

[15] Id.

[16] Id.

[17] Id.

[18] Quell, supra note 9.

[19] Id.

[20] Id.

[21] Id.