June 15, 2012

Can a Treaty Really Not Be Renegotiated?

MABB © ®

After the diplomatic fiasco of his government during and after the 42nd. OAS General Assembly, Evo Morales seems to be more than ever resolute on renegotiating the 1904 Peace and Friendship Treaty with Chile. The question is (at least for a non expert in International Relations like me) whether a treaty such as the one we are talking about can be modified or renegotiated.

Evo Morales and his government has began to make, what it looks to me, a somewhat decent argument on the necessity to renegotiate the treaty. First, and here are what I consider the weakest part of the argument, Morales, and his Foreign Affairs Minister Choquehuanca, argue that Chile has not met the conditions laid out in the treaty. For one, they argue, that the free transit of Bolivians to and from the sea is not given. Second, they argue that the treaty was signed 25 years after the war ended and that Bolivia signed under the threat of more violence from the part of Chile. In other words, Bolivia was forced to sign the treaty and did not sign it voluntarily. Third, the privatization of the port and its administration has been a major violation to the treaty, argue the Bolivian government.

However, and here is what I consider what might be the stronger part of their argument, Morales and his government are beginning to argue that historically treaties such as that one have been modified and renegotiated in other parts of the world as well. For example, he cited the renegotiation of the Panama/US treaty which ended in the devolution of the canal to Panama. So there might be a precedent of renegotiating treaties in the international law realm. Moreover, Bolivia has highlighted that the 1904 treaty has already been modified, and this at Chile's request in four occasions.

When I first heard the Bolivian Government's arguments I was skeptical, but now I am not so sure. If there is a precedent in international law that treaties such as the 1904 treaty can be renegotiated and if the treaty itself has already been modified, at Chile's request, then what is the problem of yet another modification or renegotiation? After all, it is a peace and frienship treaty. It is not like Bolivia signed a capitulation document. It might be possible to argue that in the name of "peace and fiendship" the treaty needs to be renegotiated. Again, if one party in the treaty is not happy with it, then it can hardly be a lasting treaty.

So, here is the question: Can this treaty be renegotiated?