DOI: 10.1111/reel.

12513

CASE NOTE

Dispute over the Status and Use of the Waters of the Silala (Chile
v Bolivia): Is the International Court of Justice falling short?

Tadesse M. Kebebew

Faculty of Law, University of Geneva, Geneva,

Switzerland Abstract
This case note offers insights into a decision of the International Court of Justice on
Correspondence
Tadesse M. Kebebew the legal dispute between Chile and Bolivia over the nature and use of the Silala
Email: tadesse.kebebew@unige.ch
waters and its implications for international water law. It begins with two positive
notes, namely, the recognition of the unity of the Silala waters (natural and artificially
enhanced flows) and the use of science and expert evidence to resolve the dispute. It
then addresses two other issues that the Court should and could have dealt with
more adequately, being disputes on the ‘current use’ and ‘acquired rights’ under the
ambit of the equitable and reasonable utilization principle and the obligation to notify
and consult planned measures. The case note concludes that the Court failed to set-
tle the underlying legal issues sufficiently and to better guide the parties on their
rights and obligations.

1 | I N T RO DU CT I O N
The Silala River originates in Bolivia and naturally flows towards Chile,
following the topographic gradient of the terrain. It is found in one of
the most arid areas of the world, the Atacama Desert, where every
drop of water is vital for humans and ecosystems, as well as economic
activities. The Silala waters comprise surface water, including artifi-
cially increased flow and groundwater. The case before the Interna-
tional Court of Justice (ICJ) centres on the legal dispute between
Chile and Bolivia over the nature and use of the Silala waters. The
case involves substantive and procedural obligations under interna-
tional water law.
In its judgement in Silala of 1 December 2022, the ICJ concluded
that six claims brought by the parties were without object and
rejected the remaining two. Regarding Chile's first claim, the Court
held that the claim no longer had any object, as both sides agreed that
the Silala is an international watercourse subject to customary
1 5
Dispute over the Status and Use of the Waters of the Silala (Chile v Bolivia) (Judgment)
(1 December 2022) <https://www.icj-cij.org/sites/default/files/case-related/162/162-
20221201-JUD-01-00-EN.pdf> (Silala).
international law.2 Similarly, the Court held that Chile's second claim
had no object, given that the parties are in agreement on the fact that
the principle of equitable and reasonable utilization (ERU) applies to
all the waters of the Silala.3 The Court reached analogous conclusion
with regard to Chile's third claim regarding its current use of the
waters of the Silala River system4 and the fourth claim on the obliga-
tion to prevent and control transboundary harm.5 The Court rejected
Chile's claim that Bolivia had breached its procedural obligations to
notify and consult measures that may have an adverse effect, specify-
1
ing that ‘Chile has not demonstrated or even alleged any risk of harm,
let alone significant harm’.6
The Court held that Bolivia's counterclaims concerning sover-
eignty over the artificial channels and drainage mechanisms and the
right to dismantle the canals were also without object, as the parties
were in agreement on these points too.7 Lastly, the Court rejected
2
ibid para 59.
3
ibid para 65.
4
ibid para 76.
ibid para 86.
6
ibid paras 127–128.
7
ibid paras 147 and 155 respectively.

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RECIEL. 2023;32:371–375. wileyonlinelibrary.com/journal/reel 371


372
Bolivia's counterclaim on the need to conclude an agreement on any
future delivery to Chile of ‘enhanced flow’ of the Silala, on the ground
8
that it presented a hypothetical future scenario.
The outcome of the case has left many perplexed, as the Court
passed a judgement without issuing a definitive decision on some cru-
cial questions of international water law. Some of the judges opined
that the court had decided ‘almost nothing’. Likewise, some com- 9
mentators have suggested that ‘it is now for the parties themselves to
10
take the Court's judgment and decide what to do with it’. This case
note reflects on two positive developments in Silala, namely the
court's views on the ‘unity’ of the Silala waters and its use of scientific
evidence in resolving the water dispute. It then considers two areas
where the Court should and could have done better. The first pertains
to the ambiguity surrounding the current use and acquired right under
the ERU principle. The second relates to the dispute on the obligation
to notify and consult planned measures.
2 | THE ‘UNITY’ OF SILALA WATERS
At the outset, one of the issues that sparked disagreement between
the parties was the nature of the Silala waters.11 Chile claimed that
the Silala River system (the natural and artificially ‘enhanced’ surface
flow) is an international watercourse and is hence governed by inter-
national water law. Despite agreeing that the Silala River is an interna-
tional watercourse, Bolivia claimed that it should be considered ‘an
12
international watercourse with artificially enhanced surface flows’.
International watercourse, as defined under Article 2 of the Conven-
tion on the Law of the Non-Navigational Uses of International Water-
courses (Watercourses Convention), refers to ‘a system of surface
waters and groundwaters constituting by virtue of their physical rela-
tionship a unitary whole and normally flowing into a common termi-
nus’.13 The Silala River flows naturally from Bolivia to Chile, though
the surface flow is artificially enhanced.14 International water law
does not exclude scenarios where artificial works augment the natural
flow of a river. In line with this, the Court underscored that ‘modifica-
tions that increase the surface flow of a watercourse have no bearing
on its characterization’.15 As the judicial proceedings unfolded, and
possibly because of expert reports, both parties eventually agreed
8
ibid para 162. For further discussion on the outcome of the case, see F Sindico et al,
‘Preliminary Reflections on the ICJ Decision in the Dispute between Chile and Bolivia Over
the Status and Use of the Waters of the Silala’ (EJIL:Talk!, 8 December 2022).
9
Silala (n 1) Declaration of Judge Tomka, para 1; and Silala (n 1) Separate Opinion of Judge Ad
Hoc Simma, para 2.
JG Devaney, ‘The Role of Science and Expert Evidence in the ICJ's Silala Judgment: How
10
Bolivia's Incoherent Claims Ran up against Reality’ (2023) 98 Questions of International Law
5, 19. For a reflection on how the Court interpreted the submissions of the parties, see BS
Kantor and E Zavala, ‘The Silala Case: Was Justice Served?’ (EJIL:Talk!, 9 December 2022).
11
Silala (n 1) paras 28–38.
12
‘Public Sitting held on Wednesday 13 April 2022, at 3 p.m., at the Peace Palace, President
Donoghue presiding, in the Case Concerning the Dispute over the Status and Use of the
Waters of the Silala (Chile v. Bolivia)’, CR 2022/13 (2022) <https://www.icj-cij.org/sites/
default/files/case-related/162/162-20220413-ORA-01-00-BI.pdf> 12, para 10.
13
Convention on the Law of the Non-navigational Uses of International Watercourses
(adopted 21 May 1997, entered into force 17 August 2014) 36 ILM 700 art 2.
14
Silala (n 1) para 28.
15
ibid para 93.
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KEBEBEW
that the Silala waters constitute an international watercourse gov-
erned by customary international law.16
Accordingly, the Court accepted the unity of the Silala water
system—comprising both artificially enhanced surface flows and
groundwaters. As an international watercourse, the Silala is governed
by customary international law in its entirety. This ruling is crucial as it
dispels doubts regarding the applicability of international water law to
Silala waters.17 Though Chile claimed that the definition of ‘interna-
tional watercourse’ under Article 2 of the 1997 Convention reflects
customary international law, the Court avoided deciding on the mat-
ter. A declaratory judgement on the status of this provision would
have been beneficial for clarifying the definition of an international
watercourse under customary international law.
On Bolivia's argument about the ‘unique characteristics’ of the
Silala waters, including the fact that the parts of its surface flow are
‘artificially enhanced’, the Court simply mentioned that the ‘unique
characteristics’ of the Silala River did not change Bolivia's ‘unequivo-
cal agreement’ that customary international law applies to all of the
Silala waters.18 It further emphasized that Bolivia had recognized the
Silala as an international watercourse, independently of its special
characteristics and without attaching conditions or restrictions to the
applicability of customary international law.19 Nevertheless, accepting
the applicability of customary international law to Silala River does
not exclude the consideration of ‘special characteristics’ that might
impact the practical application of the customary international law
rules, such as the ERU principle and the obligation not to cause signifi-
cant harm. In fact, applying international water law requires consider-
ing each basin's unique characteristics.20 This is particularly true for
the ERU principle, which is widely recognized as ‘general and flexi-
ble’.21 The Court's acknowledgement of Bolivia's sovereign right to
dismantle the artificial channels and initiate wetland restoration raises
the possibility of significant alterations to the morphology, quality and
quantity of the Silala waters. Undeniably, these potential changes will
profoundly impact determining what constitutes ERU for both coun-
tries within the framework of international water law.
3 | T H E U S E O F S C I EN C E A N D E X P E R T
EVIDE N CE
In previous cases related to international water law, the Court
usually focused on legal analysis and not on scientific evidence, and
‘science experts’ were not normally subject to cross-examination.
For example, in Gabčikovo-Nagymaros, although Hungary raised con-
cerns about environmental harm based on scientific evidence, the
Court resolved the case by focusing solely on the law of State
16
ibid paras 56–57.
17
See CR Rossi, ‘The Transboundary Dispute over the Waters of the Silala/Siloli: Legal
Vandalism and Goffmanian Metaphor’ (2017) 53 Stanford Journal of International Law 55.
18
Silala (n 1) para 58.
19
ibid.
20
ibid para 95.
21
A Rieu-Clarke et al, ‘UN Watercourses Convention User's Guide’ (2012) 111.

KEBEBEW
responsibility.22 Similarly, in Pulp Mills, the Court was criticized for fail-
ing to adequately tackle contested scientific facts concerning water
quality and environmental harm, focusing its decision on the duty to
notify.23
In Silala, there was significant progress regarding using science
and expert evidence in proceedings before the Court. The decision of
the Court relating to the unity of Silala waters was based on the
agreement of independent experts appointed by each party.24 Fur-
thermore, the experts in question were not members of the counsel
team. As ‘independent experts’, they were subject to cross-
examination and re-examination,25 and they also received direct ques-
tioning from the judges.26 Accordingly, regarding the use of science
and expert evidence, the Silala waters case represents a step in the
right direction.27
4 | REFLECTIONS ON THE SUBSTANTIVE
A N D P R O C E D U R A L OB L I G A T I O N S U N D E R
C U S T O M A R Y I N T E R N A T I O N A L W A T E R LA W
4.1 | The issue of the ‘current use’ of Silala waters
As the proceeding progressed, the issues related to the use of the
Silala waters became contentious. Bolivia initially rejected the idea
that Chile is entitled to ERU of the Silala waters, including the artifi-
cially enhanced parts. Later, both States agreed that the Silala waters
form an international watercourse and that they are both entitled to
28
ERU. Nevertheless, the parties disagreed on what such entitlement
entails, including whether the ‘current use’ of the Silala waters is in
accordance with the ERU principle. The Court noted that it was not
clear whether Chile sought a declaration that it has a right to receive
the same rate of flow and volume of the waters in the future or a dec-
laration that its present use of the Silala waters conforms to the ERU
principle.29
Chile asserted that its current use of the waters is consistent with
the principle of ERU and that ‘its entitlement to any future use is
without prejudice to that of Bolivia’.30 On the contrary, Bolivia argued
that Chile's past use of the Silala waters must be considered in deter-
mining Bolivia's right to an ERU and that Chile's current use should
not prejudice Bolivia's right.31 The parties therefore held divergent
views on the matter, even though the Court decided that Chile's claim
no longer had any object.32 The Court did not decide on whether
Chile's current use of the Silala waters was in line with the principle of
22
Gabčikovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7 paras
54 and 57.
23
Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14 (Pulp
Mills) Joint dissenting opinion of Judges Al-Khasawneh and Simma, para 2.
24
Silala (n 1) paras 53 and 94.
25
ibid para 22.
26
ibid para 16.
27
See Devaney (n 10).
28
Silala (n 1) para 64.
29
ibid para 72.
30
ibid para 67.
31
ibid para 69.
32
ibid para 76.
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373
ERU but simply noted Chile's claim in that regard. Though the States
have agreed that the ERU principle applies to the Silala waters,
regardless of their natural or artificial origin, this does not necessarily
mean that Bolivia agreed with the claim that Chile's current use of the
water is in line with the principle of ERU. Thus, the Court's failure to
address this issue is regrettable.
4.2 | The notion of ‘acquired rights’
Bolivia sought a declaration that Chile had no acquired right to main-
tain the current situation and that Chile's right to the use of the sur-
face flow generated by the artificial channels did not constitute a right
that can be used to oppose Bolivia's right to dismantle the installa-
tions or its right to ERU.33 For its part, Chile explicitly said that it had
not asked the Court to recognize an acquired right to the flow of Silala
waters. Yet the issue of acquired rights implicitly resonates in Chile's
claim that the right to dismantle the channels must be exercised as
per the principles of customary international law applicable to interna-
tional watercourses, aims to guarantee an acquired right to its current
use of the waters of the Silala.34 By insisting on ERU, Chile appears to
suggest that dismantling infrastructure on the river could potentially
breach its right to use Silala waters. Chile further indicated that ‘it has
no doubt that dismantling the channels will not materially affect the
Silala's flow’.35 The Court held that any reduction in the surface flow
‘resulting from the dismantling of channels would not be considered a
violation’ of customary international law as such.36 What this sug-
gests is that the artificially enhanced surface flow might not necessar-
ily form part of the baseline for determining ERU.
The parties agreed that ‘it is entirely within Bolivia's sovereign
power’ to decide on the fate of the infrastructure in its territory and its
sovereign right to restore the wetlands in conformity with international
law.37 The consequences of these activities will affect both the quantity
and quality of water flow. This becomes apparent when one considers
Bolivia's request that Chile unconditionally accept the risks from the
dismantling of the channels, irrespective of the scale of the reduction of
Silala's surface flow, and Bolivia's demand for a declaration that Chile's
current use of the waters is without prejudice to Bolivia's rights. The
Court did not address the consequence of Bolivia's sovereign powers
on the artificial channels, specifically the effects of dismantling them,
vis-à-vis the ERU principle. The Court acknowledged that parties may
express divergent views over the dismantling of the infrastructure
installed on the Silala but refrained from providing guidance on the
matter.38 After the Court's decision, Bolivia's Minister of Foreign
Affairs, Rogelio Mayta, stated that ‘based on the ruling, Bolivia will
exercise the rights it has over the waters of the Silala River’.39
33
ibid para 152.
34
ibid para 139.
35
ibid para 159.
36
ibid para 144.
37
ibid paras 75 and 143–145.
38
ibid para 146.
39
S van den Berg, ‘World Court Urges Chile and Bolivia to Cooperate on Silala river’
(Reuters, 1 December 2022).

374
Due to the convergence of views between the parties, the Court
is not called upon to decide on the issue.40 As Judge Simma indicated,
however, Bolivia had merely ‘reformulated’ and not abandoned its
counterclaim.41 The decision therefore failed to address the notion of
‘acquired right’, which in effect means maintaining the status quo of
the existing flow. He further posits that the Court should have distin-
guished issues on which ‘parties genuinely have come to agree’ from
a ‘dispute that has been hollowed out by one party wishing to evade
a declaratory judgment and the legal effects ensuing therefrom’.42 As
Judge Charlesworth stated, ‘if a judgment identifies the parties' posi-
tions as they stand at present but refrains from drawing consequences
therefrom with respect to the parties respective rights and obliga-
tions, there remains a risk that the parties might change their positions
in the future’.43
4.3 | The obligation to notify and consult with
respect to planned measures
Under international water law, the obligation to notify and consult is
understood as a specific application of the general principle of
cooperation—a means to avoid disputes between riparian States and
prevent faits accomplis, that is, an action by a riparian State that would
leave other riparian States with no option but to accept it.44 The pur-
pose of requiring the exchange of information and consultation with
regard to ‘all possible effects’ of planned measures is to avoid prob-
lems inherent in unilateral assessments of such effects.45 However, a
common understanding of the nature and scope of the obligation to
notify and consult under international water law is still lacking.
One of the points of disagreement between Chile and Bolivia was
the scope of the procedural obligation to notify and consult and the
threshold of the obligation under customary international law.46 Chile
claimed that Articles 11 (information concerning planned measures)
and 12 (notification concerning planned measures with possible
adverse effects) of the Watercourses Convention reflect customary
international law. Bolivia disagreed about the customary international
law status of Article 11. It also argued that the obligations to notify
and consult enshrined under Article 12 only arise in the case of a risk
of ‘significant transboundary harm’. Noting the absence of ‘any State
practice or judicial authority’ cited in the 1994 International Law
Commission report, the Court concluded that Article 11 does not
reflect customary international law.47 The Court's reliance on the
1994 report to justify such a conclusion is questionable, considering
the significant developments that have taken place since then, partic-
ularly in the field of environmental protection.
40
Silala (n 1) para 155.
41
Separate Opinion of Judge Ad Hoc Simma (n 9) para 15.
42
ibid para 18.
43
Silala (n 1) Declaration of Judge Charlesworth, para 22.
44
Pulp Mills (n 23) para 113.
45
Rieu-Clarke et al (n 21) 136.
46
Silala (n 1) paras 87–89.
47
ibid para 111.
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KEBEBEW
With regard to the threshold triggering the obligations, the
Court recognized the difference between ‘significant adverse
effect’ and ‘significant transboundary harm’. Yet, it concluded that
Article 12 does not reflect a rule of customary international law.48
Here, the Court stuck to its own established jurisprudence on the
matter (i.e. ‘if the activity in question does not give rise to a risk
of significant transboundary harm, the State concerned is not
under an obligation to conduct an environmental impact assess-
ment or to notify and consult the other riparian States’),49 without
a plausible explanation. The Court's approach is that the procedural
obligations, including conducting environmental impact assessment,
are contingent upon the risk of significant transboundary harm.
Accordingly, rather than further clarifying and strengthening the
procedural obligations to enhance better cooperation, the Court
implies that a riparian State can undertake its planned measures
without notifying or consulting other riparian States, as long as
those measures ‘do not give rise to a risk of significant trans-
boundary harm’.
Generally, the Court's failure to acknowledge Article 11 as form-
ing part of customary international law and its imposition of a stricter
criterion under Article 12 regarding the obligation to notify and con-
sult encourage unilateral measures and will have detrimental effects
on the collaborative efforts needed to attain sustainable use and man-
agement of transboundary water resources.
5 | CONC LU SION
There are significant positive developments in the Silala waters case.
Unfortunately, some core international water law issues, including the
claims under the ERU principle, remain unsettled. Although the Court
underscored the importance of the obligations to cooperate, notify
and consult and called for ‘close and continuous cooperation’
between the parties,50 its hesitancy to clarify the parties' respective
rights and obligations might open the door to further disputes. As
Judge Simma noted, ‘States appearing before the Court have a legiti-
mate interest in seeking declaratory judgments that may ensure rec-
ognition of a situation at law, once and for all and with binding
force’.51 Decisions that clarify the claimed right or obligation of
parties to a dispute can ensure legal certainty and enhance coopera-
tion, which is indispensable in the utilization and management of
international watercourses. The Court has a responsibility ‘to render
well-reasoned judgments which settle their disputes with binding
force, and, where appropriate, offers them guidance on their rights
and obligations’.52
48
ibid paras 115–117.
49
See Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
(Judgment) [2015] ICJ Rep 665 para 104.
50
ibid para 101.
51
Separate Opinion of Judge Ad Hoc Simma (n 9) para 18.
52
ibid para 20.
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KEBEBEW 375

ACKNOWLEDGEMEN TS
Geneva Academy of International Humanitarian Law and Human
Open access funding provided by Universite de Geneve.
Rights and as a Lecturer in Law and Research and Technology
Interchange Director at Dire Dawa University, Ethiopia. Tadesse
DATA AVAI LAB ILITY S TATEMENT
holds a PhD in International Law from the Geneva Graduate Insti-
Data sharing not applicable to this article as no datasets were gener-
tute of International and Development Studies.
ated or analysed during the current study.

ORCID
Tadesse M. Kebebew https://orcid.org/0000-0002-8700-1764
How to cite this article: Kebebew TM. Dispute over the Status
and Use of the Waters of the Silala (Chile v Bolivia): Is the
AUTHOR BIOGRAPHY International Court of Justice falling short? RECIEL. 2023;
32(2):371‐375. doi:10.1111/reel.12513
Tadesse M. Kebebew is a postdoctoral researcher at the Univer-
sity of Geneva, platform for International Water Law, Geneva
Water Hub. He previously served as a teaching assistant at the