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?

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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:

“91. In international law, the existence of an obligation to negotiate has to be ascertained in the same way as that of any other legal obligation. Negotiation is part of the usual practice of States in their bilateral and multilateral relations. However, the fact that a given issue is negotiated at a given time is not sufficient to give rise to an obligation to negotiate. In particular, for there to be an obligation to negotiate on the basis of an agreement, the terms used by the parties, the subject-matter and the conditions of the negotiations must demonstrate an intention of the parties to be legally bound. This intention, in the absence of express terms indicating the existence of a legal commitment, may be established on the basis of an objective examination of all the evidence.

…93. The Court will first analyse whether any of the instruments invoked by the Applicant, in particular bilateral agreements, or declarations and other unilateral acts, gives rise to an obligation to negotiate Bolivia’s sovereign access to the Pacific Ocean. The Court will then examine, ifnecessary, the other legal bases invoked by the Applicant, namely acquiescence, estoppel and legitimate expectations. Finally, the Court will address, if warranted, the arguments based on the Charter of the United Nations and on the Charter of the OAS.” [ICJ Judgment, paras. 91 and 93.  Italics added.]

Thus, the Court scrutinized each piece of evidence put forward by Bolivia, incrementally conducting its “objective examination” and finding that there was no such specific “obligation to negotiate sovereign access to the Pacific Ocean” indicated in either Bolivia’s bilateral agreements with Chile, exchange of notes, the 1975 Charaña Declaration, the 2000 Algarve Declaration, among others. [ICJ Judgment, paras. 94-139].  Neither was there any such obligation contained in Chile’s statements or unilateral acts [ICJ Judgment, paras. 140-148].  The Court also did not find acquiescence by Chile or estoppel against Chile [ICJ Judgment, paras. 149-161].  The Court emphatically declared that there was no such thing in general international law as an obligation arising from a State’s legitimate expectations (“It does not follow from such references that there exists in general international law a principle that would give rise to an obligation on the basis of what could be considered a legitimate expectation”). [ICJ Judgment, para. 162].  Neither does the specific obligation to negotiate sovereign access exist under the UN Charter or the Charter of the Organization of the American States.  [ICJ Judgment, paras. 163-174].  On this basis, the Court declared that it “is however unable to conclude, on the basis of the material submitted to it, that Chile has “the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean.” [ICJ Judgment, para. 175]  Ultimately, the Court concluded its Judgment with a brief reminder to the Parties on “a spirit of good neighborliness” so that “meaningful negotiations can be undertaken.”  [ICJ Judgment, para. 176].

The Judgment does not show if the Court looked for sources of legal

obligation to negotiate, beyond what the Parties submitted

For a Court that has historically used its authority under Article 36 and Article 38 of its Statute to examine legal sources beyond what parties have simply put forward in their written submissions, it was somewhat surprising that the Judgment made no reference whatsoever to international human rights law – particularly the sustainable development and poverty reduction commitments of both countries.  As emphasized in the landmark Zimmermann, Tomuschat, Oellers-Frahm, and Tams commentary to the Statute of the Court (The Statute of the International Court of Justice: A Commentary, OUP, 2nd Edition, 2012, at pp. 752-753):

“By defining the function of the Court with respect to the law to be applied by it, Article 38 thus appears as the – usually undisclosed – basis for sustaining the fundamental view that the World Court is an organ of international law…As such, it is deemed itself to know what international law is, and consequently, in the fulfillment of its task of itself ascertaining what international law is, it [must not confine] itself to a consideration of the arguments put forward by the Parties, but [must include] in its research all precedents, teachings, and facts to which it had access and which might possibly help to settle the dispute.  As explained in the Icelandic Fisheries case:

The Court…as an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case, to consider its own initiative all rules of international law which may be relevant to the settlement of the dispute.  It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties for the law lies within the judicial knowledge of the Court.” [Italics in the original.]

Since the Court conducted its copious analysis mainly through an “objective examination of the evidence” submitted by the parties (quite reminiscent of how the Court did its piece by piece textual analysis of instruments and statements in its 2011 Judgment on Jurisdiction in Georgia v. Russia), it was inevitable that it was unable to find in Bolivia’s favor any specifically worded “obligation to negotiate sovereign access” to the Pacific Ocean that Chile supposedly assumed.  As the texts of those instruments and statements confirm, Bolivia repeatedly articulated its concerns about such access.  Chile’s pronouncements – as seen from the evidence minutely scrutinized by the Court – did not reveal that it intended to be bound to negotiate such access at all.  But as seen from the text of the Judgment, the Court itself is silent on whether it examined any other possible sources of such an obligation to negotiate ocean access for landlocked countries, even from the standpoint of UNCLOS and customary international law norms on freedom of transit, limited transport rights, among others.  [See Kishor Uprety, Landlocked States and Access to the Sea:  An Evolutionary Study of a Contested Right, 12 Dickinson J. Intl L. 3 (1994), pp. 404-496.]

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:

“States have the primary responsibility for respecting, protecting and ful lling human rights, including for creating national and international conditions favourable to the realization of the right to development (art. 3 (1)). This means that they have the primary responsibility for providing an enabling environment for equitable development, both locally and globally. States also have the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals (art. 2 (3)). Furthermore, States should work together with a view to strengthening the realization of human rights (art. 6), and “have the duty to cooperate with each other in ensuring development and eliminating obstacles to development. States should … fulfil their duties in such a manner as to promote a new international economic order based on sovereign equality, interdependence, mutual interest and cooperation among all States” (art. 3 (3)).

States thus have obligations at three levels: (a) internally, through the formulation of national development policies and programmes affecting persons within their jurisdictions; (b) internationally, through the adoption and implementation of policies extending beyond their jurisdictions; and (c) collectively, through global and regional partnerships.

According to the Declaration, “all human beings have a responsibility for development, individually and collectively, taking into account the need for full respect for their human rights and fundamental freedoms, as well as their duties to the community, which alone can ensure the free and complete fulfillment of the human being …” (art. 2 (2)). They should be active participants in development (art. 2 (1)) and have a duty, individually and collectively, to promote and protect an appropriate political, social and economic order for development (art. 2 (2)).” [OHCHR, Right to Development, Fact Sheet No. 37, at p. 4]  (Italics and emphasis added.)

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.

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    Comments

    Mark says

    October 5, 2018

    Thanks for this note. I'm less convinced that "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." I'm skeptical because there's just so little practice of countries along the lines of a robust interpretation of sustainable development to claim it's now CIL. Also I have not a tiny doubt that if there was a case to be made, judge Cancado Trindade would have appended a separate opinion on the subject. https://www.ejiltalk.org/judging-judges-a-statistical-exercise/
    I will point out also that the ICJ ruling on interim protection in the Iran v USA case was NOT because the ICJ was seeking to protect Human Rights. It was about whether USA measures affecting humanitarian goods could plausibly come within the section of the agreement permitting the USA to take security measures, and the ICJ said that plausability of the measures taken by USA do not go that far.

    Diane Desierto says

    October 5, 2018

    Many thanks Mark. The post doesn't make the argument that the ICJ "was seeking to protect human rights" in Iran v. US. It was simply an observation that the carve-out for humanitarian goods and civil aviation was NOT expressly indicated in Iran's request for provisional measures, but the Court was able to make that differentiation motu proprio in any case because it DOES apply international law in its totality irrespective of what the parties indicate in their submissions.

    I'm accustomed to the skepticism about the nature of economic, social, and cultural rights, as well as with the right to development (and the legal status of sustainable development). It's a fair argument to say that practice may be insufficient to doubt the customary nature of ESC rights or the right to development/sustainable development. Certainly in the readings I pointed out above, coastal States do not appear to have acted with a deep sense of obligation towards the opportunities for sustainable development of landlocked States.

    But arguing the inexistence of custom does not address at all the question of whether States, when they make their economic decisions today (e.g. including deciding whether a neighboring landlocked State can get access to any part of its coastline), are also bound to make those economic decisions consistent with their international human rights law treaty commitments.

    Judge Cancado Trindade is undoubtedly a revered authority as one of our finest jurists in international human rights law - but the absence of a separate opinion from him on a given case is ambiguous and could also be the result of many factors (logistical, case-load, time, etc.). In this case, he voted with the majority of the Court in deciding the case where the Court said it had deliberately limited its analysis to the treaties, agreements, and norms invoked in the submissions of the parties. I hardly expected him to issue a separate opinion here.

    riccardo pavoni says

    October 5, 2018

    'but the absence of a separate opinion from him on a given case is ambiguous and could also be the result of many factors (logistical, case-load, time, etc.)'... yes indeed, and perhaps another of those factors may be that he (and the other judges) completely overlooked your admirable human rights/sustainable development perspective on the case...

    John Morss says

    October 6, 2018

    Thankyou for this thoughtful post.
    Granted I am of the sceptical tendency but The Fisheries' cautious and realistic 'relevant (IL)' is not the same as Zimmermann's 'might possibly help'. The latter is frankly absurd whether or not it connotes a monist assumption about total, benevolent interconnectedness of all IL.
    Is the (although understandable) Bolivia argument not a version of 'our population is expanding'? (Nb population is not the same as peoplehood).

    Pierre d'Argent says

    October 6, 2018

    Thanks for this interesting post, Diane.

    Having read it, I thought: “Ok, what will a disappointed Bolivian patriot take from such piece? Probably (a) that Bolivia’s counsels badly pleaded their case and/or (b) that the Court did not properly use its adjudicatory power." In other words, that injustice continues to be done to Bolivia, even when it puts its faith in the World Court.
    You probably did not exactly mean that, but it is difficult not to read you that way. Allow me to join Mark and inform the disappointed Bolivian patriot that things are less straightforward than what you suggest:

    (a) It is probable that Bolivia’s counsels envisaged the human rights + sustainable development argument that you make. I am ignorant of the reason why they did not pursue such argument. It can relate to jurisdictional concerns, instructions of their client or the strategic preference not to see such (difficult) argument openly rejected by the Court in order to have still some argumentative fuel for future diplomatic exchanges if they were to lose the case. The most likely reason for ruling out such argument is that, despite its apparent appeal, it is quite a legal stretch. As far as I understand the case, Bolivia was not claiming that Chile was in breach of its obligations under Part X of UNCLOS, or any other transit obligations (which, admittedly, may have a bearing on human rights and sustainable development). Bolivia’s claim was that Chile had an obligation to negotiate a sovereign access to the sea in its favour. The human rights/sustainable development argument you make requires establishing that the obligations you refer to can only be fulfilled by engaging in negotiation in order to reach such outcome. To put it differently: in order for your argument to succeed, the Court must be convinced that human rights/sustainable development obligations necessarily entail an obligation for coastal states to negotiate with landlocked states in order to grant the latter a sovereign access to the sea. This is a huge interpretative leap and I cannot see how it can be bridged convincingly, nor how it could survive the test set out by the Court in paragraph 91 of the Judgment. Moreover, it somehow transforms the obligation to negotiate as an obligation of conduct into an obligation of result. Overall, a very difficult, if not impossible argument.

    (b) It is one thing for the Court to raise proprio motu arguments pursuant to Art. 53 of its Statute (to which the quoted excerpt refers) when the respondent State does not appear before the Court or fails to defend its case; it is quite another thing for the Court to add to the legal grounds presented by claimant, or even substitute such grounds. Admittedly, judges may put questions to the parties, ascertaining their views on some legal issues or grounds they may have failed to raise. However, the Court must respect the principle of party disposition and questioning the parties cannot go as far as altering the claims presented to the Court in the final conclusions presented at the close of the oral pleadings or adjudicating on issues not raised by claimant. In any case, it would be a breach of due process for the Court to base its judgment proprio motu on a legal ground that has not been submitted to the adversarial scrutiny of the parties.

    Barbara Locke Geier says

    October 8, 2018

    Bolivia already has generous and preferential access to the sea in Chile --just not sovereignty, which is what it seeks. For that reason, Bolivia would be hard pressed to demonstrate that its current state of development is related to any actions or obstacles on the part of Chile. Under the 1904 Peace and Friendship Treaty (Article VI), Chile granted to Bolivia,in perpetuity, “the broadest freedom of commercial transit through its territory and the ports of the
    Pacific”. Bolivia transfers goods through the Chilean port of Arica, near the Peruvian border. Bolivia has its own customs officials at the port, preferential tariffs and terms for storage of goods, tax exemptions for Bolivian goods passing through Chile, and free transit of goods through Chile to the port. These facts have often been overlooked but are relevant to the discussion of whether Bolivia could reasonably argue a human rights aspect to its quest for sovereign sea access, as it does not suffer the prejudice that other landlocked countries might.

    Diane Desierto says

    October 8, 2018

    Dear Pierre and Barbara (my apologies I am responding to both of you jointly):

    Both your precise interventions on interpretation and facts (empirical or otherwise), do make my fairly subjective point on a potentially helpful elucidation from the Judgment not just in resolving the dispute but also declaring the state of international law - even if it means saying that human rights and sustainable development issues may not apply/is not a relevant question/will not be applicable to Bolivia.

    Obviously I am an academic observer and do not act as counsel for any parties involved and I'm not privy to the facts or the pleadings other than what is available in the public domain. But fundamentally this exchange is useful to illustrate differences of views that exist between scholars on the nature of the Court's judicial function.

    We can all have different views on whether judicial parsimony (in a very Justice Frankfurter sense in SCOTUS) or (the often-derided these days) judicial openness are philosophies or approaches to judging that should (or should not) exist at the ICJ.

    With best wishes,
    Diane

    marka says

    October 15, 2018

    Thank you Diane Desierto.Im the "the disappointed Bolivian patriot".Your article is very interesting.I translated some of your views.They can be very helpful for the future of relationships between Bolivia and Chile.(As a possible legal basis for a new political aproach in the “spirit of good neighborliness”).This exchange is more useful than merely "illustrate differences of views that exist between scholars on the nature of the Court’s judicial function".It helps people.(Excuse me for my very poor english) Again:Thank you

    MARKA says

    October 15, 2018

    “Ok, what will a disappointed Bolivian patriot take from such piece?"
    Disappointed Bolivian patriot will not take that "from such a piece". Bolivian patriot takes this: "the Court’s finding should not be understood as precluding the Parties
    from continuing their dialogue and exchanges, in a spirit of good neighbourliness, to address the
    issues relating to the landlocked situation of Bolivia, the solution to which they have both
    recognized to be a matter of mutual interest" Disappointed Bolivian patriot thinks that Desierto´s views are important for those dialogues and exchanges.

    Cecilia Bailliet says

    November 2, 2018

    It does not make sense to assume that Trindade's decision not to issue a separate opinion is an indication of the lack of relevance of sustainable development or equity standards. Among the possible reasons for the lack of a separate opinion by Trindade is his profound respect for Claudio Grossman, Chile's lawyer.