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The Case of the Silala River: Between the Laws of Men and the Laws of Nature

by Héloïse Garry Americas Sep 10th 20197 mins
The Case of the Silala River: Between the Laws of Men and the Laws of Nature

The legal dispute over the Silala river shared by the Plurinational State of Bolivia and the Republic of Chile before the International Court of Justice provides an enlightening example of the growing and complex interaction between climate change, water scarcity and international water law. Since 1997, Bolivia has claimed that the watercourse, which derives from Bolivia and crosses into Chile, belongs exclusively to Bolivia and is not international. Conversely, Chile insists it has a legal right to use the water and asserts the Silala is an international river. For international water law to apply, an international watercourse must be naturally occurring; however, Bolivia claims that the disputed river would not run to Chile without man-made canals constructed in the early 1900s. Hence, in Bolivia’s view, the Silala is not a natural transboundary watercourse. As international water law cannot apply, Bolivia states it can exploit its waters exclusively. The river meanders through one of the driest parts of the world, which strengthens the desire of both countries to claim rights over its use. This dispute is emblematic of a wider global problem. Water scarcity due to climate change and increased consumption are straining freshwater supply, opening the floodgates to a more assertive water-driven foreign policy and international posturing by nations.

The Silala River Dispute: “The most vulnerable basin on the continent”

The Silala is a current example of how political, socio-economic and environmental forces fuel competition for resources. The concept of “hydropolitical vulnerability”, defined by the United Nations Environment Programme as the “risk of political dispute over shared water systems”, is illustrated by the Silala dispute. 

It all begun in 1908, when Bolivia granted a concession to the Chilean Antofagasta-Bolivian Railway Company to use the waters of the Silala. Water, a scarce resource in the Atacama Desert, aimed to power steam engines that traveled between the cities of Antofagasta in Chile and Oruro in Bolivia. Bolivia claims that Chile built up canals that moved the river’s natural flow artificially from Bolivia to Chile. In 1962, steam-powered engines were replaced by diesel engines and water was no longer needed to power the latter. Since then, Chile has retained control of the water course, channelling its flow to supply mines and towns, even though the concession was initially given to power locomotives only. The Bolivian government revoked the concession in 1997 and sought to charge Chile retroactively for these diverted uses of the Silala waters. 

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Historical friction and the lack of full diplomatic relations between Bolivia and Chile since Bolivia’s loss of access to the Pacific Ocean in the War of Pacific at the end of the nineteenth century, strengthens the disagreement between the two countries over the Silala. 

Bolivia’s hope to gain access to the sea vanished on October 2018 after the International Court of Justice ruled in support of Chile which is not required to negotiate the surrender of its territories to give Bolivia access to the Pacific coastline. The ruling is a significant defeat for the Bolivian president Evo Morales and weakens its re-election bid. Hence, because of the underlying geopolitical and economic issues, the Silala has become one of the most vulnerable basins in the world. 

Geopolitical and Natural Challenges to International Water Law

In June 2016, the United Nation’s highest court, the International Court of Justice (ICJ), has assessed a legal case concerning the Silala river. The lawsuit is still ongoing. On the one hand, Bolivia claims ownership of the Silala as the river originates from springs on its territory. The country believes it can exploit the river and charge the riparian State for its use. On the other hand, Chile insists it has a sovereign right to the Silala, an international watercourse which had never been diverted from its springs but instead naturally canalised. The applicability of international water law to the Silala case depends on whether or not the Silala River is described as a natural transboundary watercourse. Human-altered canalisation and flow deviations would not fall within the rubric of international water law. 

Should the river be considered an international boundary, it would prevent Bolivia from using the river’s waters without sharing them with Chile. It would, instead, entail an equitable utilisation of the watercourse as well as a duty of cooperation with its neighbour. These principles have been codified in the 1997 United Nations Convention on the Law of Non-navigational Uses of International Watercourses whose fifth article states that “watercourse States shall participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Such participation includes both the right to utilise the watercourse and the duty to cooperate in the protection and development thereof”. Hence, Chile would have the right to a “reasonable and equitable” share of the river. It is noteworthy that Bolivia has not ratified the Convention.

Instead, Bolivia argues for its supreme sovereignty over the use of the Silala. Bolivia’s view might well refer to the Harmon doctrine, a principle stating that, in the name of the absolute sovereignty over its natural resources, “an upstream country has the unrestricted right to use the water of an international river irrespective of downstream consequences”. Yet, Bolivia’s argumentation is not based on this doctrine but rather on the qualification of the Silala as a domestic and not an international one, which enables the country to refuse any obligation towards Chile.  

International law may not have a solution to a political problem. Furthermore, the human right to water may relativise the relevance of the legal qualification of the Silala river as a domestic or an international watercourse. Bolivia may have extraterritorial obligations towards the riparian State as its absolute right to use Silala waters might have consequences on people living in Chile who rely on the Silala for domestic uses. Negotiations between the two countries remain a back seat while the lawsuit continues, although talks may come to the most optimal solution for this hydro-politically vulnerable basin.  

Water is a Scarce Resource in the Region

The Silala dispute highlights that water is an increasingly contentious resource, as a result of climate change and increased demands from population and industry. In 2016, Bolivia found itself in a national state of emergency due to a drought brought by a very intense El Niño. Even in unexceptional circumstances, Bolivia and Chile regularly face drought-induced water shortages. 

The Silala flows across the Bolivian-Chilean border in the Atacama Desert, one of the driest places in the world. The Atacama receives 15 millimeters of rain on average per year. Underground water basins around the desert are depleting due to excessive exploitation. Intensive mining activities in the region are severely straining available water resources. In Chile, water is considered an economic good,  bought and sold on a private water market at a relatively low price, with little governmental regulation and management. Mining companies can buy as many water contracts as they want. This cheap resource is not considered as an important capital until it is run out.

According to Dieter Helm, an economist and Professor at the University of Oxford, natural resources, such as water, should be considered a form of “natural capital” to be valued alongside human and financial capital, with an intrinsic economic price, not just as an unpriceable necessity. If natural capital keeps being provided for free, the argument goes, people, companies and governments will not have any incentive to moderate their use. Pricing natural capital as well as damage to it, would represent a viable solution, placing water at the centre of economic and political future of the Atacama region.

 Bolivia has recognised the climate crisis as one of the top risks for the country’s future. Its population is rising, while the Andean glaciers that don its high peaks are shrinking dramatically. According to a study published in The Cryosphere, a European Geosciences Union scientific journal, the glaciers of Bolivia shrank by 43% between 1986 and 2014. Glaciers are in retreat as the world warms, a consequence of rising levels of carbon dioxide in the atmosphere in response to the increasing combustion of fossil fuels. Shrinking glaciers will significantly impact downstream communities that are dependent on meltwater from glaciers, particularly during the dry season. Increasing temperatures and river streamflow reductions will make rural people increasingly vulnerable in areas already plagues by antiquated farming methods and poor yields. 

River-related conflicts are becoming one of the leading causes of tension between countries that suffer from water scarcity and global warming. The Sialala transboundary freshwater dispute, intensified by extreme droughts, shrinking glaciers and management challenges, has the potential to escalate antagonisms in the Andean region. The issues that ground this typical case expand beyond water rights. They involve a competition for resources, strengthened by water scarcity. Hence, while there may be water rights at stake before the International Court of Justice, the Silala dispute is also concerned with allocating economic and political interests in a situation of climate crisis scenario. Water scarcity in both countries is likely to intensify claims of absolute territorial sovereignty over the river instead of promoting adroit management and equal rights. The outcome of this legal case may be crucial to future Chile-Bolivian relations. 

This article is part of a series published jointly with Global Risk Insights (GRI) a leading geopolitical online news-source. Our aim is to explore the deep links between a changing climate and geopolitical shifts, to highlight how the impending climate crisis is already starting to unravel the delicately achieved balance of international power. Furthermore, the series aims to lay bare the impacts the climate crisis will have on the global fabric of society, the global economy and the domestic stability of our nation states.

About the Author

Héloïse Garry

Heloise is pursuing a joint major in Philosophy and Economics at Science Po University, La Sorbonne in Paris and at Columbia University in New York City. Her studies focus on environmental dynamics, environmental policy, green innovation, and environmental ethics. She is interested in exploring the links between the aggravating climate crisis and its impact on society, and she hopes to become part of the solution. She can be contacted at heloise[at]earth.org.

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