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 band database 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)).