Water Resources Development,

Vol. 27, No. 3, 595–606, September 2011

The Silala/Siloli Watershed: Dispute over

the Most Vulnerable Basin in South America
B. M. MULLIGAN* & G. E. ECKSTEIN**
*University of Calgary, Calgary, AB, Canada; **Texas Wesleyan School of Law, Fort Worth, TX, USA

ABSTRACT The dispute over the Silala (or Siloli) Basin, shared by Bolivia and Chile, illustrates the
importance of history, the role of indigenous communities, and the effects of differences in national
socio-economic philosophies informing water resource management in international negotiations
concerning transboundary watercourses, regardless of their size. The Silala case provides an
illuminating example of the overlap between surface and groundwater regimes, and the range of
interpretations states can uphold regarding this complex interaction. The objective of this paper is to
present a brief case study, including a physical description, historical review, summary of current
status, and discussion of the legal context of the transboundary Silala Basin.

Introduction
An international dispute over the rights to the waters of the Silala, or Siloli, Basin has been
unfolding since 1997, when the Bolivian government revoked a concession awarded to a
Chilean company in 1908 to use the waters for its steam engines. A preliminary bilateral
agreement drafted by the two states was rejected, and the negotiations paused, by the
Bolivian government in early 2010. Resolution of the Silala dispute has been impeded by
the historical context of the watershed, the existing diplomatic situation between the two
riparian states, and the lack of an agreement on whether or not the Silala is an international
watercourse (UNEP, 2007). The Silala watershed remains essentially unheard of, even
among experts, outside of Bolivia and Chile, despite being called the only “high risk” basin
in South America and “one of the most hydropolitically vulnerable basins in the world”
(UNEP, 2007). The objective of this paper is to present a brief case study, including a
physical description, historical review, legal context, and summary of current status of the
Silala Basin, and to shed light on this hitherto virtually unknown transboundary watershed.

Physical Description
The Silala Basin is shared by Bolivia (upstream) and Chile (downstream), and lies in the
Atacama Desert approximately 300 km northeast of Antofagasta, Chile (Figure 1). The
waters of the Silala begin as high altitude (over 4,500 m above sea level) wetlands (called
“bofedales”) formed by groundwater springs that discharge in Sud Lı́pez, Potosı́, Bolivia,

Correspondence Address: B. M. Mulligan, Project Co-ordinator, Universidad de San Francisco Xavier, Campos
#180, Sucre, Bolivia. Email: mulligan@ucalgary.ca
0790-0627 Print/1360-0648 Online/11/030595-12 q 2011 Taylor & Francis
DOI: 10.1080/07900627.2011.595363

Electronic copy available at: http://ssrn.com/abstract=1924974

596 B.M. Mulligan & G.E. Eckstein

Figure 1. Location map showing Silala as a tributary of the San Pedro de Inacaliri and Loa Rivers in
Chile.

near the Bolivian– Chilean border. More than 70 small-volume groundwater springs have
been identified in Bolivian territory, discharging from fractured ignimbrites (volcanic
deposits) of Miocene age overlain by relatively impermeable andesitic lavas of Pliocene
and Pleistocene age (SERGEOTECMIN, 2003). Preliminary evidence supports claims
that the groundwater was principally recharged by glacial melt water thousands of years
ago (SERGEOTECMIN, 2003). The Silala Aquifer is considered a transboundary aquifer,
but little is known about the underground flow component.
Most of the springs are drained by a series of small, man-made channels that direct the
flow towards two central drainage channels, the north and south canals, which join to form
a principal canal (Figure 2). Each canal is clearly man-made (lined with rocks and very
straight in certain stretches; see Figure 2). The south canal is nearly 3 km long and
contributes around two thirds of the flow to the principal canal, whereas the north canal is
less than 1 km long and contributes the remaining one third of the flow. The principal canal
directs the water for about 700 m within Bolivia, before crossing the international border
into the II Antofagasta Region of Chile. In Chilean territory, the principal canal flows 7 km
to its confluence with the Helado River, where the two form the San Pedro de Inacaliri
River, a tributary of the Loa River (Figure 1). The Loa Basin is the largest in Chile and the
only exorheic (allowing outflow) basin in the Antofagasta Region. Mean discharge of the
principal canal near the border crossing is approximately 0.150 m3/s, based on data
collected from 2001 – 2011 (DGA, 2011); however, the flow rate is significant given that
the Silala Basin is situated in the Atacama Desert, arguably the driest place on Earth. The
Chilean General Directorate of Water has three pluviometers in the area, which have
recorded mean annual precipitation values from 1969 – 2010 ranging from 27.0 mm to
116.2 mm (DGA, 2011). Bolivian investigators report the mean annual precipitation and
potential evaporation in the Basin from 1983 –1995 as 59.1 mm and 914 mm, respectively
(SERGEOTECMIN, 2003).

Electronic copy available at: http://ssrn.com/abstract=1924974

 Disputes over the Silala/Siloli Watershed 597

Figure 2. Detail of the source area of the Silala watercourse. Gray shading indicates the general
geographic area of wetlands (“bofedales”) produced by groundwater discharge, present along both
the North and South Canals.

Geological, topographical, and historical evidence suggests that the Silala springs
flowed overland from Bolivia to Chile prior to the canalization. Recent site evaluations and
examination of topographic maps clearly show that the principal canal follows a natural
drainage course featuring significant natural alluvial erosion, including a relatively deep
(tens of metres) canyon incised in the desert floor (SERGEOTECMIN, 2003). In addition,
the general manager of the Bolivian company hired (in 2009) to evaluate the Silala’s
hydroelectric potential concluded, based on detailed topographic studies, that the canals
were constructed to make more efficient, but not to alter, the natural course of the waters,
which naturally and inexorably flow to Chile (R. Alvarez, personal communication, March
18 2010). Similarly, in the 1908 application for the concession to use the waters of the
Silala, a Bolivian citizen acting on behalf of the Antofagasta (Chili) & Bolivia Railway Co.
Ltd. (FCAB, following the Spanish acronym) stated that “in the Province of Sud Lı́pez near
the border, there exist springs which form the Siloli River, which flows in Chilean
territory” (Martı́nez, 2004).
Currently, the only Bolivian users of the waters of the Silala are the soldiers (numbering
seven in January 2010) stationed at the Silala advanced military post. The Bolivian
community nearest the Silala is Quetena Chico, located approximately 70 km east –
southeast of the watershed. The people of Quetena Chico have not historically used the
waters of Silala and the current community leader has dismissed the possibility of using
the Silala for agricultural purposes, as several Bolivian commentators from other parts of
the country have suggested (D. Berna, personal communication, January 26, 2010).
For Chile, the Silala Basin is strategically important because it is a significant source of
process water for FCAB and for the Chuquicamata copper mine, located approximately
90 km west – southwest of the Basin (Figure 1). The FCAB intake is located immediately
downstream of the border with Bolivia (Figure 2). The water is diverted by pipeline to the
communities of Baquedano and Sierra Gorda, where it is used as potable water, and to
Antofagasta, where it is used for industrial purposes. The Chuquicamata intake is located
approximately 5 km downstream of the border with Bolivia. The Chuquicamata mine, run
by state-owned Coporación Nacional del Cobre (CODELCO), is one of the largest open pit
598 B.M. Mulligan & G.E. Eckstein

mines in the world. CODELCO is the world’s largest copper producing company and
generator of about a third of the Chilean government’s income (Government of Chile,
2010). Chilean copper miners consume approximately 11.5 m3/s of water per tonne of
copper produced (Reuters, 2009).

History
To many Bolivians, the Silala Basin is symbolic of their country’s loss of access to the
Pacific Ocean to Chile in the War of the Pacific (1879 – 1883). Bolivia lost its Departamento
Litoral (coastal region), including significant mineral deposits, to Chile as a result of the
war. An additional consequence of the clash was the division of the Silala Basin, which,
prior to 1883, was situated entirely within Bolivian territory. The conflict is also referred to
as the Saltpeter War, after the nitrate-bearing mineral over which the two countries and
Peru fought. Following the war, saltpeter, gold, silver, and, chiefly, copper mines were
excavated on the newly Chilean territory.
Rail was the only reliable way to get the minerals to market and steam engines required a
constant supply of water, a scarce commodity in the Atacama Desert. Early in the 1900s, the
then English (now part of the Chilean Antofagasta PLC investment group) FCAB identified
the Silala springs as a potential source of water, and requested the Prefecture of Potosı́,
Bolivia for permission to use the springs to power their locomotives (Martı́nez, 2004). In its
letter of request, FCAB explained that the Silala is a desirable water source because of its
convenient location and its relatively high quality (FCAB was previously using relatively
saline waters that were corroding its steam engines unacceptably quickly; Martı́nez, 2004).
In its letter, FCAB offered to leave a third of the volume of the Silala for public use (noting
that “the projected works would make useable waters that are currently lost without benefit to
anyone”; Martı́nez, 2004). Bolivia, however, never exploited the waters, except for possibly
the occasional local llama herder and, more recently, the soldiers stationed at the nearby
military base (D. Berna, personal communication, 26 January, 2010). In 1908, the Prefecture
of Potosı́, Bolivia granted the company a concession to construct canals in Bolivian territory
and use the waters of the Silala for its steam engines (Prefecture of Potosı́, 1908; Martı́nez,
2004). The deed does not oblige anything of FCAB in return for the use of the waters
(Prefecture of Potosı́, 1908) and the motives of the Prefecture remain unclear. In 1997, the
Bolivian government revoked this concession, contending that the waters had long been used
for purposes differing from those noted in the original agreement (Toromoreno, 2000).
Since annulling the 1908 concession, Bolivia has taken a number of potentially
provocative actions with respect to the Silala. In 1999, the government of Hugo Banzer put
the Silala concession out to public tender and the following year awarded the rights to the
Silala’s waters for 40 years to the Bolivian firm DUCTEC SRL for $46.8 million
(Toromoreno, 2000). DUCTEC SRL attempted to charge CODELCO and FCAB for their
use of the waters of the Silala, but no payments have been made (Martı́nez, 2004). In 2002,
Jorge Quiroga (acting on behalf of Banzer, who resigned in for health reasons in 2001)
publicly stated that one possible course of action would be to stop the flow of the waters of
the Silala to Chile, and that another would involve arbitration proceedings before an ad hoc
court and/or the International Court of Justice (El Diario, 2003). The following
government, led by Gonzalo Sánchez de Lozada, rescinded the contract with DUCTEC
SRL in 2003, stating that the firm was unable to fulfill its objective of charging the Chilean
companies (El Diario, 2003). In 2006, the government of Evo Morales inaugurated a
 Disputes over the Silala/Siloli Watershed 599

military base on the banks of the Silala (Figure 2) and publicly discussed a plan to bottle the
water and sell it with the slogan “Drink Silala water for sovereignty” (Craze, 2006). In 2009,
the Prefecture of Potosı́ hired a La Paz-based engineering consulting company to conduct a
feasibility study for a hydroelectric plant on the Silala within Bolivian territory. They
reported that approximately 50 kW of electricity could be generated, enough to provide
only for the nearby military base and, perhaps, a future tourist installation (Alvarez, 2010).
On the other hand, despite a lack of official diplomatic relations, the two countries have
demonstrated efforts to co-operate on the issue. In 2004, the Bolivian and Chilean Ministries
of Foreign Affairs organized a working group on the Silala, which would meet several times
in the ensuing years. In 2008, the topic of the Silala Basin was included in the 13-point
bilateral agenda adopted by Evo Morales and Michelle Bachelet on behalf of their respective
states. Most notably, in July 2009, the Chancellery of the Republic of Bolivia provided to the
media a draft preliminary bilateral agreement on the use of the waters of the Silala.1
The preliminary bilateral agreement contains 17 articles, organized in the following
sections: general principles, technical considerations, institutional considerations,
settlement of disputes, and entry into force. The general principles and institutional
considerations establish conditions under which Bolivia could potentially sell their share of
the waters of Silala to Chilean users. Under general principles, Article 6 states that:

of the total volume of water of the Silala or Siloli system, which flows across the
border (100%), 50% corresponds, initially, to the Plurinational State of Bolivia, is
freely available to it and can be used within its territory or authorized to be captured
for use by third parties, including its deliverance to Chile,

and that “this percentage may be increased in Bolivia’s favour, based on the results of joint
studies to be carried out under the agreement” (La Razón, 2009a). Under the section on
institutional considerations, Articles 13 and 14 explain that the Bolivian

Ministry of Environment and Water will determine the value per cubic metre to be
received by the Plurinational State of Bolivia in compensation depending on the
volume transferred, which will be negotiated directly with the relevant public or
private legal entity,

and that this Ministry “may take into account, inter alia, the average price currently paid
per cubic meter of untreated water in the II Region of Chile” (La Razón, 2009a).
The agreement’s technical considerations address the need for additional scientific
information in order to rationally negotiate a long term agreement. Article 7 states that:

the parties will implement a network of hydrometeorological stations in the area that
will allow data collection and the execution of joint studies with a view to signing a
new long term Agreement (La Razón, 2009a).

Article 11 provides that “the parties shall produce semi-annual reports and a final report
after four years with the results of the studies” and that “this final report will form the basis
for the new long term Agreement that will establish the percentage of water freely
available to each country” (La Razón, 2009a).
600 B.M. Mulligan & G.E. Eckstein

Current Status
The draft agreement remains unsigned and the Silala negotiations have yet to resolve the
two states’ distinct positions. The Chilean government claims simply that the Silala is an
international river (Toromoreno, 2000). Chile asserts its right to equitable and reasonable
utilization, as described in the United Nation’s 1997 Convention on the Law of the Non-
navigational Uses of International Watercourses (1997 Watercourses Convention) (for
which Chile voted in favour, Bolivia abstained, and neither country has ratified; UNGA,
1997). Bolivia, for the most part, denies that there exists a Silala ‘River’, asserting that the
Silala ‘springs’ would not flow to Chile if not for the construction of the canals over a
hundred years ago (Bazoberry, 2003).
Thus, Bolivia claims ownership of the waters and demands payment from Chile for their
use (La Razón, 2010b). The Bolivian chancellor, David Choquehuanca, has publicly stated
that the rate of payment would be US$2 per cubic metre of water (La Razón, 2010a),
though this was not made explicit in the draft agreement. Many Bolivians believe that the
payment should include a historic debt for use of the waters not stipulated in the original
concession (La Razón, 2009b). The draft agreement reflects Chile’s willingness to permit
Bolivia to sell their share of the waters (initially, 50% of the total volume of water that
flowed across the border) to public or private Chilean users, but not to negotiate payment
of a historic debt (La Razón, 2009a). Parliamentary representatives from Potosı́ and
community activist groups alike rejected the articles stating that Chile would initially have
to pay for only half of the transboundary flow, believing that Bolivia is the rightful owner
to the waters of the Silala in their entirety (La Razón, 2009c, 2009d).
Bolivia rejected the draft bilateral agreement, despite the economically
impoverished indigenous community of Quetena Chico and the Bolivian Chancellery
pushing for its signing. With support from the Chancellor’s Office, Quetena Chico
representatives argued that they were entitled to any compensation obtained from Chile for
the use of Silala water. The leader of the community also warned that “if the pre-
agreement isn’t signed, those who opposed it should pay us [100%] of what the Chileans
were prepared to compensate” (D. Berna, personal communication, January 26, 2010). He
and a representative of the Chancellery were booed at the International forum in defence of
the waters of Silala, held in December 2009 in La Paz. The forum declared Bolivia’s
sovereign right to 100% of the flow of the Silala, calculated that Chile owes more than a
billion dollars for historic use of the waters, and concluded that any negotiation with Chile
should guarantee Bolivia access to the Pacific Ocean (Hora 25, 2009). This latter demand
suggests that the issues surrounding the Silala are not entirely water-focused, and that
other political and historical interests may be at play.
Bolivian negotiators attempted to include an article on the historic debt in the draft
agreement during a meeting of the bilateral working group on Silala in October 2010, but
the Chilean representatives refused to sign the agreement (La Razón, 2010a; Los Tiempos,
2010). During the same meeting, the Bolivian negotiators recommended that the Rı́o
Lauca dispute (see below) be considered in the Silala negotiations (La Razón, 2010a).
In April 2011 the director of Bolivia’s Directorate of Maritime Strategy announced that
Bolivia would study the possibility of suing Chile in an international court over the Silala
and Lauca disputes (La Razón, 2011a), although President Morales maintained his hope
that the two countries could resolve the disputes through bilateral negotiations (La Razón,
2011b, 2011c). Chilean legislators publicly criticized Bolivia’s position (La Razón,
 Disputes over the Silala/Siloli Watershed 601

2011d), with one Chilean deputy calling “ridiculous” the concept of a historic debt (La
Razón, 2011e).
Also in April 2011, a commission led by the departmental government of Potosı́,
Bolivia, visited the Silala Basin to define potential projects that would use the waters
(La Razón, 2011f). The government of Potosı́ subsequently announced two projects that
would use 30% of the water that flows across the border (La Razón, 2011g), leading
representatives of the opposition to state that Bolivia has the sovereign right to 100% of
the flow and thus should propose projects which use the water in its entirety (La Razón,
2011h).

General Discussion
The Rı́o Lauca is shared by Bolivia and Chile in the region north of the Silala. Though
there are enough differences between the Silala and Lauca watersheds to warrant cautious
comparison, there are revealing similarities. Perhaps the most important of these is the
Bolivian desire to link a local watershed with the War of the Pacific, in which Chile left
Bolivia without access to the Pacific Ocean. Glassner (1970) noted that “the Lauca had
become essentially a tool with which the Bolivian government could unite its people on
the less dramatic, but much more basic, question of an outlet to the sea”. Forty years later,
one can substitute “Silala” for “Lauca” in Glassner’s writing and have no less a fitting
observation. The Rı́o Lauca dispute prompted Bolivia to propose “preliminary studies on
the legal problems relating to the utilization and use of international rivers” to the UNGA
in 1959, setting in motion a process that would eventually yield the 1997 Watercourses
Convention. Three years later, the dispute would provoke a break in Bolivian– Chilean
diplomatic relations that continues to this day.
Further hampering the Silala negotiations is the stark contrast of philosophies
influencing the management of water resources in Bolivia and Chile. To one extreme is
Chile, an often cited model of privatization for its 1981 Water Code (reformed in 2005),
which created water markets and established transferable water use rights (Bauer, 2004).
On the other is Bolivia, whose support for water as a human right is enshrined in its new
constitution, and whose “water wars” in Cochabamba and El Alto put it at the forefront of
the anti-privatization movement (Olivera, 2008; Shultz, 2009). Bolivia championed the
Resolution on the Human Right to Water and Sanitation, recently adopted by the UNGA
(UNGA, 2010). Yet Bolivians, to whom water is not for sale, seem to agree that Chile
should pay for its use of the Silala.
It is also interesting to note the two countries’ levels of inclusivity and media coverage
surrounding the Silala negotiations. The Chilean position on the Silala has been
established by experts and has had relatively little media coverage in Chile. Bolivia’s
position is defined by multiple actors (Bolivia’s president and vice president have even
hinted at the possibility of a national referendum on the issue; La Razón, 2009e, 2009f) and
national media coverage is rampant—one newspaper (La Razón) alone published nearly
two articles every week on the subject in 2009.

International Law
The international law applicable to transboundary fresh water resources is based primarily
on two substantive principles and a series of procedural tenets, all of which are recognized
602 B.M. Mulligan & G.E. Eckstein

under customary international law and have been codified in the 1997 Watercourses
Convention on the Non-navigational Uses of International Watercourses (UNGA, 1997).
They have also been integrated in the draft articles on transboundary aquifers formulated
by the UN International Law Commission and currently under consideration by the
member states of the UN General Assembly (UNGA, 2008).
The first of the substantive principles—equitable and reasonable utilization—affords all
riparian states a correlative right to an equitable share of the benefits of a transboundary
river, lake, or aquifer, and mandates that all riparian states use the water body equitably
and reasonably. Equity and reasonableness are gauged against a variety of factors that
include local hydrological and natural characteristics, social and economic criteria,
negative impacts, and the availability of alternatives. The second principle limits a riparian
state’s sovereign right to use transboundary waters within its territory to the extent that it
causes significant harm to another riparian state (McCaffrey, 2007).
To facilitate the two substantive principles, as well as prevent conflict and encourage
co-operation over transboundary fresh waters, international water law also obligates
riparian states to undertake certain procedures. Central among these are the duties to: co-
operate over transboundary waters, regularly exchange data and information, and provide
prior notification of and consult on planned activities related to transboundary waters
(McCaffrey, 2007).
Also relevant to the Silala scenario is international law applicable to transboundary
aquifers. In contrast to the state of international water law applicable to rivers, lake, and
other surface water bodies, international groundwater law is still embryonic, with only few
examples of state practice. Those examples, however, suggest an evolutionary trend that
international groundwater law may follow in the footsteps of surface water law to the
extent of adopting similar substantive and procedural principles, albeit tailored to the
unique characteristics of aquifers (Eckstein, 2011). In addition, in 2008, the UN General
Assembly adopted a resolution commending 19 articles, drafted by the UN International
Law Commission on the law of transboundary aquifers, to the member states for their
consideration. Following largely on the provisions of 1997 Watercourses Convention, the
topic has been placed on the agenda of the upcoming UN General Assembly session in the
autumn of 2011 (UNGA, 2008).

Legal Discussion
The applicability of international water law principles to the Silala scenario will greatly
depend on how the Silala watershed is described and categorized. Generally, international
water law norms apply only where a transboundary water resource is determined to be
naturally occurring (McCaffrey, 2007). A manufactured river, in the form of canals or
other man-made systems, would not fall within the rubric of international water law, since,
by definition, such water bodies are proprietary and subject to the agreements that created
them.
In the case of the Silala Basin, most of the spring flow is captured by artificial channels,
constructed by FCAB under its 1908 concession from the Prefecture of Potosı́, Bolivia,
and that cross into Chile via the principal canal. This would suggest that the water in the
canal is subject to the terms of the concession agreement rather than to international water
law. Nevertheless, geological, topographical, and historical evidence indicates that prior to
canalization, the Silala springs likely flowed across the Bolivian –Chilean border in
 Disputes over the Silala/Siloli Watershed 603

approximately the same path as the principal canal, since that canal follows the natural
drainage features of the Silala Basin. Whether international water law applies to a captured
and canalized transboundary river is unclear. Chile might argue that the concession trumps
international water law since international law allows for the creation of agreements
deviating from international standards so long as the deviations do not violate jus cogens
(peremptory international norms). On the other hand, Bolivia will possibly contend that
the concession was a form of license that is revocable at the will of the licensor, in this case
Bolivia. If this latter analysis holds, then the rules for the basin reverted back to the default
norms of international water law when the Bolivian government revoked the concession in
1997.
Nevertheless, there may be an argument for the application of international water law
principles if it is determined that, prior to the construction of the principal canal, the Silala
flowed perennially and naturally across the border in the same location as that canal. As
noted above, geological, topographical, and historical evidence suggest that prior to
canalization, the Silala flowed overland through a relatively deep drainage feature from
Bolivia into Chile. Moreover, the recent Bolivian assessment of the Silala’s hydroelectric
potential suggested that the canals did not alter the then-existing water flow, but rather
enhanced the efficiency of water flow of the natural Silala watercourse. Considering the
Bolivian position that the springs would not flow into Chile absent of the construction of
the canals, this may be a significant point of contention, since international water law does
not apply to surface runoff flowing in a marginally defined or in undefined channel (e.g.
surface runoff), regardless of whether or not the flow crosses an international boundary
(McCaffrey, 2007).
Moreover, to the extent that the flow of the pre-canalized Silala was intermittent rather
than perennial, the applicability of international norms also may be tenuous. The
substantive rules of international water law can be understood, in part, as rules of liability.
In other words, violation of the rules mandates the imposition of responsibility and
recompense. Violation of the rules, however, can only occur where human action
interferes with the natural flow of the river. Where a stream fails to flow for natural
reasons, as an intermittent stream is wont to do, no liability can be imposed. Moreover, the
absence of state practice or examples in which international water law norms were applied
to an intermittent stream suggests that this scenario is, at best, unresolved. Hence, to the
extent that, prior to canalization, water in the Silala flowed across the Bolivian– Chilean
border only intermittently, international water law principles may not be applicable to the
present dispute.
Unfortunately, this scant evidence does not indicate whether the flow of the Silala
entailed a perennial or intermittent flow or whether the watershed through which water
traversed the international boundary, prior to canalization, was clearly defined for
the purposes of designating it an international watercourse. Accordingly, additional
factual evidence must be produced about the natural conditions of the Silala Basin as it
existed prior to canalization before a resolution can be formulated based on international
water law.
Complicating the scenario is the presence of an interrelated transboundary aquifer.
As noted above, the Silala Aquifer is believed to traverse the Bolivian –Chilean border,
however, little is known about the extent of the Aquifer, its volume, or its flow. If the
Aquifer indeed lies in both jurisdictions, the nascent body of international groundwater
law may be relevant to the Silala dispute and the allocation and management of the
604 B.M. Mulligan & G.E. Eckstein

Aquifer. Moreover, the Aquifer’s surface expression (e.g. natural springs) and hydraulic
relationship to the Silala watershed may also be implicated in the same governance
scheme. Again, the lack of adequate data and information on the Aquifer, as well as its
hydraulic relationship to Silala surface waters, limit the applicability of international legal
principles in a clear and defined manner.
Whether additional facts and scientific information will be forthcoming from the parties
or from independent sources is presently unclear. As noted above, the draft agreement
would establish a monitoring and reporting plan that would form the basis of a new long-
term agreement. These efforts, however, depend entirely on both nations ratifying the draft
agreement and then implementing those obligations. Also unclear is whether the parties
would prefer to have the dispute settled by an impartial arbiter. While such a process may
be desirable objectively, it could be to the detriment of one or both countries. As is often
the case in transboundary fresh water disputes, the peaceful negotiation of the controversy
in good faith and co-operative manner may best serve the interest of both nations and
produce a more favourable outcome for all.

Conclusion
The dispute over the Silala Basin illustrates the importance of history and the effects of
differences in national socio-economic philosophies informing water resource manage-
ment in international negotiations concerning transboundary watercourses, regardless of
their size. The Silala is about one million times smaller than the Amazon (in terms of mean
discharge), and far less known. Yet, the basin has been labelled as the only “high risk”
basin in South America, largely because of the historical friction and the lack of official
diplomatic relations between Bolivia and Chile.
That “high risk” status, however, is also a function of the fundamental disagreement as
to whether or not the Silala is an international watercourse for purposes of international
water law. The outcome of applying international law to the Silala as a natural
transboundary watercourse would be considerably different from the application of the
concession’s terms to the Silala as a manufactured transboundary river. Additionally, the
presence of a hydraulically-linked transboundary aquifer to the Silala further complicates
the situation, especially since little is known about the extent, volume, or flow regime of
that resource. Hence, a lack of adequate data and information about the Silala and its
related Aquifer make resolution of this dispute, as a legal matter, unclear.
Ultimately, the row over the Silala reflects the fact that water disputes are often
grounded in issues that extend beyond typical water rights and allocation interests. While
Bolivia has never used the waters of the Silala, it is attempting to link any agreement on
the Silala Basin to territory it lost to Chile in the War of the Pacific and, thereby, its desire
to regain access to the Pacific Ocean. Hence, while there may be water rights at stake in the
Silala dispute, historical and economic interests, as well as national pride, may be of even
greater concern.

Acknowledgements
The authors wish to acknowledge The Walter and Duncan Gordon Foundation and the University of Calgary for
supporting the development of this paper.
 Disputes over the Silala/Siloli Watershed 605

Note
1. (available online at http://www.internationalwaterlaw.org/Silala)

References
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