miércoles, septiembre 30, 2020
 
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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?

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:

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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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