Conceivable versus Plausible

On April 24, 2013, the republic of Bolivia instituted proceedings against Chile in the International Court of Justice with respect to a dispute over whether Chile had an obligation to negotiate with Bolivia to allow the latter “sovereign access to the Pacific Ocean”. Apparently – according to Bolivia since its independence beginning in 1825 – Chile owes Bolivia some sort of affirmative duty to provide unfettered access to the Pacific sea. Bolivia now only cites general principles of International law. Indeed the entire argument by Bolivia seems to be based on conclusory assertions; specifically, Bolivia does not cite to any authorities for the arguments they aver. In sum, Bolivia’s position in the matter can be expressed as follows: “beyond its general obligations under international law, Chile has committed itself, more specifically through agreements, diplomatic practice and a series of declarations attributable to its highest-level representatives to negotiate a sovereign access the sea for Bolivia.” Chile apparently denies the allegations and any such obligation. At the end of the “complaint,” Bolivia seeks an order from the court seeking: (1) That Chile does owe an obligation to Bolivia to reach an agreement granting Bolivia Sovereign access to the Pacific Ocean (2) Chile has breached this obligation, and (3) that Chile must perform this obligation in a good faith and timely manner.

Initially, you may be thinking – as I was when reading this “complaint” – what the hell is he talking about? Indeed, it terms of the grand scheme of international law and issues that abound in the modern world – A putative obligation owed by Chile to Bolivia involving sovereign access to the Pacific Ocean seems like a small issue. Be that as it may – I began to think of this matter in terms of the sufficiency of the “complaint.” Specifically, would this complaint survive a 12(b)(6) motion to dismiss in a Federal Court based upon the standard elucidated by Justice Souter in Bell Atlantic Corp. v. Twombly, 550 U.S. 544; namely, that the facts in the complaint point to a “plausible” rather than a “conceivable” cause of action? I think not.

Source: ICJ

 

 

One comment

  1. In my opinion this would survive a 12(b)(6) motion to dismiss if it were being heard in a United States court. While general principles of law in international law are not as persuasive as customary international law, I believe that they are well-recognized enough to survive a motion to dismiss. Historically a number of courts, including the ICJ, have recognized the persuasiveness of general principles of law when considering international law. The principle of good faith is a well-recognized general principles of law.

    Whether Bolivia will win the case is another story. While Chile has a treaty obligation to allow Bolivia – as a land-locked state – access to transport goods to port, Bolivia’s demand for “fully sovereign access to the Pacific Ocean” seems to be overreaching. Though the history between the two States may entitle Bolivia to greater coastal access than in other situations, it is unclear how much access would be granted. I would imagine Chile has national security issues at stake which would prevent them from wanting to grant Bolivia unfettered access to their ports.

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