The Dispute over the Status and Use of the Waters of the Silala case and the customary rules on the definition of international watercourse

• DOI: http://doi.org/10.1111/reel.12377
• Date: 01 November 2020
• Author: Lingjie Kong
• Published date: 01 November 2020

322 

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  wileyonlinelibrary.com/journal/reel RECIEL. 2020;29:322–335.© 2020 Wiley Periodicals LLC

1 |  INTRO DUCTION

In June 2016, Chile fi led an application at the Int ernational Court of

Justice (ICJ) i nstituting proce edings against Bo livia on the dispute

over the status of t he waters of the Silala and the ri ghts and obliga-

tions of the par ties relating to the use an d protection of the water s.1

More specific ally, Chile, in its Applic ation, requests the C ourt to ad-

judge and declar e that:

(a) ‘[t]he Silala River system , together with the subter-

ranean portio ns of its system, is an intern ational wa-

tercourse, the use o f which is governed by customar y

international law’;

(b) Chile is entitled to ‘the eq uitable and reasonab le

use of the waters’, especial ly ‘its current use of the

waters ’;

(c) Bolivia, as a watercou rse State, is obliged to ‘take all

appropriate meas ures to prevent and control po llution

and other forms of har m to Chile’ and

(d) Bolivia is oblige d to ‘cooperate and to provide

Chile with timely notification of planned measures

which may have an adve rse effect on shared wa ter

resources, to exch ange data and informatio n and to

conduct where appropriate an environmental impact

assessment’.2

Despite being li sted as ‘one of the most hydropol itically vulnerab le

basins in the world ’,3 the tiny Silala/Siloli basin w as essentially unhea rd

of before the dispu te was brought before th e Court. Accordi ng to

Chile, the sur face waters of the Silal a River system origin ate in Bolivian

territory. The surface waters emanate from certain groundwater

springs, whi ch are fed by an aquifer tha t itself crosses th e border

 1Dispute over the St atus and Use of the Wate rs of the Silala (Ch ile v Bolivia) (A pplication o f

the Republi c of Chile) (2016) case-relat

ed/162/162-20160 606-APP-01-0 0-EN.p df> (Chile Ap plicatio n).

 2ibid para 50.

 3United Nations Environment Programme (UNEP), ‘Hydropolitical Vulnerability and

Resilience a long Internati onal Waters: Lat in America an d the Caribbe an’ (2007) 64–6 6.

Received: 16 June 2 020 

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 Accep ted: 22 October 202 0

DOI: 10 .1111/reel .12377

SPECIAL ISSUE ARTICLE

The Dispute over the Status and Use of the Waters of the Silala

case and the customary rules on the definition of international

watercourse

Lingjie Kong

Correspondence

Email: konglingjie@whu.edu.cn Abstract

The International Co urt of Justice is to determi ne, in the Dispute over the Status and

Use of the Waters of the Silala case, th e international status of t he waters in question

by customary rul es of international law. In its identificati on of the existence and con-

tents of the applic able rules on the definition of intern ational watercourse, the Court

may refer to the United Nation s Watercourses Convention, other inter national instru-

ments, State pra ctice and international jurispr udence. The decisive fact for fin ding an

international watercou rse is that the component s of the watercourse are situate d in

two or more States. D ifficulties may lie in the deter mination of the components of the

watercourse and the ir physical relationships. The Court m ay have to decide whether

the status of waters c an be altered by artificial mean s by certain general principle s of

the law of international wate rcourses.