Beyond “Good Neighborliness” in the ICJ 1 October 2018 Judgment in Bolivia v. Chile: Do Human Rights and Sustainable Development Obligate Creating Negotiated Access for Landlocked Bolivia to the Pacific Ocean?

On 1 October 2018, the International Court of Justice issued its Judgment on the Merits in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), finding, by 12 votes to 3, that Chile “did not undertake a legal obligation to negotiate sovereign access to the Pacific Ocean” for Bolivia and rejecting all other submissions of Bolivia.  While the Judgment minutely and carefully scrutinizes each treaty, exchange of notes, and statements of the parties for well over a century on the issue of access to the Pacific Ocean for landlocked Bolivia – and I have no difference with the Court’s individual scrutiny and interpretation of each document and piece of evidence indicated in its Judgment on the Merits – it is remarkably curious that the dispute involving Bolivia’s assertion of Chile’s obligation to attempt good faith negotiation on access to the Pacific Ocean did not refer to nor invoke human rights or sustainable development needs as a possible basis to substantiate the urgency of cooperation necessary for both countries.  As seen from the image below (source here), Bolivia’s landlocked situation is a permanent feature of its territory:

Both countries are parties to the American Convention on Human Rights and the International Covenant on Economic, Social and Cultural Rights. Both countries voted in favor of the 1986 Declaration on the Right to Development and the 1992 Rio Declaration on Environment and Development.  And yet, the fundamental issue of Bolivia’s massive underdevelopment (as one of the poorest countries of Latin America) for lack of any maritime access to the Pacific Ocean, in contrast to Chile’s exponential economic development (remarkably succeeding in reducing poverty from 26% to 7.9%), seems to be an inherent inequality on which international legal proceedings have been silent. As reported in a World Bank study, landlocked developing countries (such as Afghanistan, Burundi, the Central African Republic, among others) face higher transport costs, delays, higher consumer and food prices, less trade, such that “being landlocked is a major reason why 16 of the world’s 31 landlocked developing countries are among the poorest in the world”.

In today’s understanding of human rights and sustainable development (and further considering that we provide for the regime of “common heritage of mankind” for all coastal and landlocked countries in regard to the marine resources in the Area), is it still an acceptable and legitimate outcome for human rights and sustainable development that landlocked countries (or Bolivia in particular, for well over a century) are denied any access whatsoever to the oceans as an inevitable result of loss of territory, peace treaties, or sheer accident of natural geography?  If compensated negotiated access to the Pacific Ocean can eventually be achieved for Bolivia, does human rights and the right to sustainable development have anything to say about the degree of compensation that Chile can exact for granting such access, so as not to make it too cost-prohibitive for Bolivia to obtain such access?  In this post, I briefly summarize the October 1, 2018 ICJ judgment below, and suggest some aspects of human rights and sustainable development commitments of both countries that might spur more urgency to negotiate access to the Pacific Ocean after the glacial pace of failed diplomacy for well over a century.

Summary of the ICJ Judgment

It should be noted at the outset that Bolivia framed its request to the Court under a very difficult threshold (e.g. asking the Court to adjudge and declare that “Chile has the obligation to negotiate with Bolivia in order to reach agreement granting Bolivia a fully sovereign access to the Pacific Ocean”, and that Chile breached such an alleged obligation and should be directed to perform it). [ICJ Judgment, p. 11]  As noted by the Court, at the time of its independence from Spain in 1825, Bolivia had 400 km of coastline along the Pacific Ocean, which it later lost to Chile following various wars involving Peru, Bolivia, and Chile. [ICJ Judgment, paras. 19-24].  In various exchanges, statements and/or instruments throughout the 1920s to the present, the Court noted Bolivia’s articulated concerns for access to the Pacific Ocean. [ICJ Judgment, paras. 25-83].  However, because of how Bolivia framed its request to the Court seeking to have it declare the existence of an obligation on the part of Chile to negotiate with Bolivia to reach agreement on such access to the Pacific Ocean, it was not surprising that the Court closely parsed the language adopted by both states in all the exchanges, statements, treaties, instruments between the parties on this matter over the last century to ascertain the existence of such an obligation.  The Court declared the threshold to be met in order to verify the existence of this legal obligation, according to the following terms:

An Impetus to Negotiate under Human Rights Law and

Sustainable Development?  Some Considerations

It is not visible from Bolivia’s submissions on the ICJ website if they had indeed pleaded any norm of international human rights law or sustainable development as a possible legal basis for Chile to negotiate. Certainly the Court’s Judgment was silent on this point. As noted in the Court’s judgment, discussions on Bolivia’s concerns about its lack of any access whatsoever to the Pacific Ocean have taken place for well over a century since Bolivia lost its coastline during wars with Peru and Chile.  Article 1(2) of the ICESCR does recognize that all peoples – such as Chile – may freely dispose of their natural wealth and resources, but this is “without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law…In no case may a people deprived of its own means of subsistence.”  Article 26 of the American Convention on Human Rights calls upon its States Parties “to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires”.  Under both international human rights law standards, one could argue that while Chile has the absolute sovereign prerogative to determine access to its coastline, it also has human rights commitments to cooperate – without delay and certainly not for as long as 100 years – to enable Bolivia some measure of access as a matter of both economic development and the rights of all peoples to means of subsistence and an adequate standard of living.

Most importantly, the international law principle of sustainable development – most recently affirmed and elaborated in the Agenda 2030 for Sustainable Development and its SDG1 on the global commitments to eliminate poverty and extreme poverty – should make it entirely unacceptable that over 100 years have elapsed with no feasible cooperation or negotiated solution to enable Bolivia to obtain some access to the Pacific Ocean, under just and equitable terms of compensation to Chile. [On this point, see Paula Casal and Nicole Selame, Sea for the landlocked:  a sustainable development goal?, 11 Journal of Global Ethics 3 (2015)]. All States have the primary responsibility for respecting, protecting, and fulfilling human rights, including creating national and international conditions favorable to the realization of the right to development.  [Declaration on the Right to Development, Art. 3(1)]  This includes duties to cooperate to eliminate international and national barriers to States’ development:

I personally doubt that Bolivia’s denial of any access to the Pacific Ocean can just be left up today to, in the words of the Court, “a spirit of good neighborliness” that will somehow move Chile, Bolivia, or the rest of the OAS to facilitate and expedite negotiations, when 100 years thus far have produced no results.  As the World Bank observed over a decade ago, landlocked countries are often mired in poverty, if not deep and extreme poverty.  They face higher consumer prices especially for crucial essentials for local communities such as food and agricultural foodstuffs; the inevitable imposition of more tariffs and customs duties by coastal States to which they are beholden; and this can retard economic growth and capabilities-driven development by generations.  While of course in Bolivia’s case its poverty is attributable to many factors (governance, corruption, deep social inequality, among others), it is hard to say that its landlocked situation is not also among those factors contributing to its continuing poverty.

International human rights law – especially our commitments to sustainable development – should mean more in Bolivia’s case here than just “a spirit of good neighborliness” to simply leave it at the mercies of its prosperous coastal neighbors.  If the Court could indicate provisional measures two days later in its 3 October 2018 Provisional Measures Order in Iran v. United States carving out “humanitarian and civil aviation” exceptions to the United States’ May 8, 2018 sanctions (when no such differentiated language appears in Iran’s original application to the Court and request for provisional measures), the Court could have also done better than resigning itself to “a spirit of good neighborliness” in Bolivia v. Chile, to at least recognize the urgency of Bolivia’s developmental needs for some maritime access to the Pacific Ocean. States’ legally binding commitments under international human rights law and the international law of sustainable development should also reorient our orthodox understandings today on States’ freedoms to use their territory and dispose of their natural resources.  These freedoms are no longer completely unlimited, nor are they unilaterally determined anymore in this era of cooperation for the sustainable development of all States.