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Home Human Rights American Convention on Human Rights 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?

9 Responses

  1. Mark

    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.

  2. 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.

  3. riccardo pavoni

    ‘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…

  4. John Morss

    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).

  5. 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.

  6. Barbara Locke Geier

    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.

  7. 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

  8. marka

    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

  9. MARKA

    “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.

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