The 1904 Treaty and Free Transit in the Light of International Law | El Tratado de 1904 y el libre tránsito a la luz del Derecho Internacional

By Windsor Hernani, El Diario:

The 1904 Peace and Friendship Treaty formally ended the 1879 war between Bolivia and Chile and established the legal foundations of bilateral relations.

In the framework of contemporary Public International Law, the 1904 Treaty can be classified as a “treaty–contract,” as it set specific obligations between States in a context of reciprocity. It was a kind of “international barter”: Bolivia ceded its coastline in perpetuity and, in return, received £300,000 sterling and the formal guarantee of free transit. This contractual logic is relevant because it entails the permanent and unconditional validity of the obligations undertaken, particularly that of free transit.

To avoid doubt or misinterpretation, the right to free transit was clarified by the 1904 Complementary Protocol and later regulated through the 1937 International Land Transport Agreement, as well as other subsequent bilateral instruments. Under these, Bolivia obtained the broadest and unrestricted free transit of goods, free of duties except for those corresponding to services actually provided.

Historically, Chile has argued that the free transit granted to Bolivia constitutes a sovereign “concession” resulting from the bilateral treaty. However, in light of the evolution of International Economic Law, this can no longer be seen as a concession — it is an obligation — subject to multilateral principles and equivalent to an “acquired right.”

With the rise of international trade and the emergence of the multilateral system — especially from the 1947 GATT and later the creation of the World Trade Organization (WTO) — the concept of free transit acquired new legal meaning. Article V of GATT states categorically: “There shall be freedom of transit through the territory of each member… without distinction as to the flag, origin, ownership, departure, destination, or any other circumstance…” This principle was thus consolidated under the WTO as a multilateral legal obligation of member States, not only toward their neighbors but also toward the international community at large.

To illustrate the importance of free transit as an international obligation, consider Brazil’s efforts to reach the mega-port of Chancay — key to its exports to Asia-Pacific — which necessarily involves transit through Peruvian territory. If Peru were to demand compensation in return, or even cession of Brazilian territory, it would be inadmissible, unrealistic — absurd. The free transit of Brazilian goods through Peru is assumed; it is not negotiable.

When, through acts such as unjustified customs delays, unlawful charges, arbitrary inspections, strikes, route interruptions, and logistical restrictions, the free transit of Bolivian goods and people through Chilean territory and ports is hindered, this constitutes a breach of a multilateral obligation that can give rise to international responsibility. Unfortunately, Chilean authorities in dealing with Bolivia, fully aware of Bolivia’s need for access to Pacific ports, interrupt free transit to use it as bargaining leverage for their own interests.

A contemporary reading of the 1904 Treaty requires understanding that its clauses cannot be interpreted under 19th-century legal categories and outdated paradigms of absolute sovereignty. The free transit right Chile undertook to respect is no longer a sovereign “favor” or diplomatic gift, but a binding obligation, protected by International Economic Law and customary practice. The “concession” argument has been surpassed by WTO principles, the doctrine on landlocked States, and international jurisprudence (WTO case: Panama vs. Colombia, Transit and Ports of Entry).

In the context of the national bicentennial, it should be remembered that the 1904 Treaty was imposed; its provisions were “accepted” because there was no other option. It is one of those boundary, territorial, or peace treaties that reflect power imbalances between States — supposedly sealing peace, but a peace imposed by victors on the vanquished, without any possibility of negotiation. Such treaties are understandable only through the logic of force, not reason; their results are inequitable or ignominious and, consequently, cannot and should not endure.

Windsor Hernani Limarino is an economist and diplomat.

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