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.
