Myth of 'Bilateral Agreement' for Transit Right of Landlocked States Under Unclos Iii
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MYTH OF 'BILATERAL AGREEMENT' FOR TRANSIT RIGHT OF LANDLOCKED STATES UNDER UNCLOS III
Vijay Prasad Jayshwal
Teaching Assistant
International Relation and Diplomacy
Kathmandu school of Law, Nepal
+977-9860675231
ABSTRACT
Transit right for the landlocked countries are not only subject to the moral treatment but entitled to get recognition and enforcement. The transit right although developed in the form of principles but it is duly recognized by the international court of justice in number of cases. The subject to bilateral agreement must be eroded from the realization of this right. The most part of the UNCLOSIII are taken as part of the customary international law with fulfilling the objective and subjective requirement. So today, the need for separate bilateral agreement is merely the myth of coastal state.
Key Words: Transit, Customary International law, Coastal State
Where to begin?
The international law has developed through various juristic writings and judgment. The contribution made by the Western society can't be ignored for any reasons. But the world is not anymore as it was in the beginning so today UN recognizes all the states as sovereign, equal and entitled to get equal respect. Meanwhile, the Article 38 of the International Court of Justice considers as one of sourcecalled “general principles of law recognized by civilized nations”. These word civilized has not been interpreted by Court nor it has been explained by the law itself. This notion must be rooted out from the juristic notion of international law.Humanity had faced various ups and downs in regards of wealth of the planet. The sea is considered as always point of conflict and co-operation among the nation because it hosts the largest resources in the planet. From conventionally, the sea is considered as —res communis—is for the common use of all navigators of the international community. It was not subject to the restriction by any states. It made accessible for navigation, even for nationals of an enclave State.”[1]
The contractualistic has framed the notion of state and its rights under the classical eras. A “State” is the essential and original subject of international law.[2] States “have juridical personality in international law; for example, they are apt to have rights and duties.”[3]The term “State” designates a human grouping established permanently on a territory and having its own political organization, the political existence of which depends legally upon itself and is governed directly by international law.[4] A State is a territory or group of territories that has its own law of nationality.[5] The Montevideo Convention of 1933, Article (1) explicitly recognizes the essentiality of statehood and their relation with other state. This has given support to the recognition of states by the international community through defacto and dejure.
According to article 124 (1(a)) of the UNCLOS Convention defines the term land-locked State as ‘a State which has no sea-coast’[6].It is compelling to look into Article 125 of the Convention, which plainly articulates the right of access to and from the sea and freedom of transit of land-locked states. This convention has not imposed any restrictive measures which can narrow down the implication of it. The land locked states have very legitimate concerns over the access to sea and fro sea. It has seenin previous centuries land-locked states had striven to fain direct territorial access to the sea. Under existing circumstances, the only generally acceptable way to solve this problem appears to be by way of bilateral or multilateral treaty arrangements on transit rights.[7] The conflicts over the coastal states and the landlocked states have arisen with many more complexities such as subject to bilateral or multilateral agreement.
Underlying Principle of Transit Notion
The freedom of transit right has always secured by the international community for the landlocked states. Such as, Lauterpachtconfirmed that certain states may legitimately claim “the right of transit” when there exist two fundamental conditions. First, the State claiming the right of transit must be capable of proving the merits and necessity of the right. Second, the exercise of the right must not cause disturbance or prejudice to the transit State. Lauterpacht concludes that the Covenant of the League of Nations, the Barcelona Convention, and similar instruments recognize the principle of free transit. They require transit States “to negotiate and conclude, on reasonable bases, transit agreements.”[8] But emerging jurist like Surya Subedi argues that the actual right to exercise this freedom is itself no longer dependent on a bilateral agreement with the transit state, breaking from the Barcelona tradition, it eliminates the requirement of reciprocity.[9] Recently, the ICJ has made similar ruling on the case of Peru V Chile in regards of Bolivia to access to sea. The requirement of bilateral agreement always provides the legitimate interest of the coastal or transit states. Since, the very term is not defines in the pretext of the protection of legitimate interests, transit countries can critically challenge the rights and freedoms of landlocked countries. The term legitimate interests can be and has been interpreted by transit states according to their convenience which we saw in Nepal and India crisis and border blockade. DuringUNCLOS III, India states that in endorsing the right of landlocked states, ‘the legitimate interests of the coastal or transit state should also be borne in mind. Such interest might relate to the determination of routes and the protection of the security interests of the transit states’. Accordingly, India used this approach to seriously impede Nepal’s access to and from the sea in 1989 when Nepal and India had some difference on other trade and political issues that had very little to do with the exercise of Nepal’s transit rights[10]
TheConvention of Transit Trade of land –Locked[11] states andits preamble sets forth a number of principles reflecting the main aspirations of the land-locked countries, including inter alia free access to the sea, identical treatment for vessels flying the flag of land –locked states to those of coastal states, free and unrestricted transit-however, once again on the basis of reciprocity.[12] The international community has agreed on trying to obtain at UNCOLS III confirmation on the existing navigational rights of land locked states; transit rights through states laying between landlocked states and the sea; access to the resources of neighboring coastal states’ EEZs;[13] and proper recognition of their interests in the internationals sea bed regime.[14]The rights of landlocked states are not only recognized by the states practices rather it has cited in number of international instruments. Such as, Article 3[15] of High Seas Convention indicates that states without coastlines ‘should’ have free access to the sea, this point of uncertainty has been removed with respect to land locked and transit states that are party to the 1982; it remains for states that are party only to the High Seas Convention. If a transit state is party to neither the LOSC not the High Seas Convention, then, the rules of customary international law would apply: the better view is that the rules set out in the High Seas Convention reflect customary international law on the point of access to the sea for land-locked states.[16] The status of transit right for the land locked states is not only the general principle of the international law but has obtained the status of customary international law which is inviolable in nature. This customary international law[17] don't require any sorts of bilateral agreement or multilateral with the transit states.
Myth of Bilateral Agreement for Rights
UNCLOS recognizes the importance of bilateral, sub-regional and regional agreements in application of provisions of “freedom of transit”[18] of the landlocked states.[19]This is only to the subject of procedural requirement for the transit, routes, and exit and entry points in order to avoid the security concerns of the transit states. Such as, in case of Nepal the Indo-Nepal Treaty of Transit 1991, which has been and preamble of the treaty of transit recognizes that "Nepal as a land-locked country needs freedom of transit, including permanent access to and from the sea, to promote its international trade", a Protocol to the treaty and a Memorandum signed between the two countries in this regard have further diluted the freedom of transit, as they incorporate provisions that are mutually agreed and guided by international law. This treaty and its Protocol allow 15 entry-exit points for movement of Nepal's traffic in transit and specify operational modalities including entry and exit points to and from India. According to Article X of the Treaty of Transit, Nepal and India are supposed to resolve any issue regarding implementation ofthe treaty through mutual consultation. This bilateral agreement has not included the suspension of such rights of Nepal as being landlocked states.
The agreement between land locked states and transit states concern must be agreed with universal acceptance of an international law, for the daily administration of transit trade. These terms may not be justifying this suspension of an otherwise valid right of access with absence of agreement. The conflict over the rights of the landlocked states has always seen with the transit states like during the crisis of 1989/90 in Nepal with India then P.V. Narasimha Rao, the then Indian parliament on 26 April 1989, states that as India was party neither to the 1965 convention on landlocked states nor to the 1982 convention on the LOS, ‘matter of transit, India has, strictly no obligation towards Nepal’ butthe fact lies that both countries are signatory to the 1982 convention, which inter alia, gurantees the right of free access for landlocked states (Art. 125 of LOSC-III), signatories are obliged, under art. 18 of the 1969 Vienna Convention on the Law of Treaties, to which both Nepal and India are party, ‘to refrain from acts which would defeat the object and purpose’ of the convention. The states are obliged to implement and interpret the right of transit set out in the LOS Convention in good faith. This is not the new phenomenon for landlocked states like Nepal rather it is phenomenal in nature and violation by the coastal or transit states time and again.
Conclusion
The progressive development of the international law and inevitable contribution made by it for securing the rights of landlocked countries are able to exercise. The landlocked countries are entitled a number of rights which are enshrined into the different convention, treaties and judgments. These all rights were traditionally subject to the restriction of the coastal state or transit state and require the bilateral agreement for its realization. The modern international law jurists argue the non necessity of such traditional notion because those rights have become part of the customary international law.
The absence of signatories to the UNCLOS III or not having the any spate agreement doesn't restrict from enjoying the protected rights of transit for the landlocked nations. The coastal states always concerns with the security concern which are only the procedural requirement and it can't overpass the substantive clauses of the treaties. The unnecessary restriction imposes by the coastal state to the landlocked states are pulling for having advantages from the resources of sea.
Hence, the bilateral agreement is merely the subject of procedural notion not have much contribution to guide or to suspend the transit right of the landlocked nations.
[1]The principle of freedom of the seas, noted: “If the ocean is open freely for all humanity (res communis), it is reasonable to suppose that each will have access to the shore of the ocean and the right to navigate and discharge the goods on all navigable rivers, since they are only but natural prolongation of the free high sea.”
[2] A Dictionary of International Law (Progress Publishers 1982)
[3] Paul Reuter, Droit International Public 153–154 (5th ed., PUF 1983); for a detailed analysis of statehood, see generally James Crawford, The Creation of States in International Law (Clarendon Press 1979).
[4] Dictionary of the Terminology of International Law 264 (Sirey 1960)
[5] Words and Phrases Legally Defined (John B. Saunders, ed., Butterworths 1970)
[6] Endalcachew Bayeh , The Rights of Land-Locked States in the International Law: The Role of Bilateral/Multilateral Agreements' Published online March 18, 2015 ( doi: 10.11648/j.ss.20150402.12 ISSN: 2326-9863 (Print); ISSN: 2326-988X (Online) accessed on 2016/1/7
[7] Helmut Turek and Gerhard Hafner, Law of the Sea, the library of essays in international law, edited by Caminos, Hugo, The Cromwell Press, 2001, P.357
[8] E. Lauterpacht, Freedom of Transit in International Law, 44 Transactions of the Grotius Society 332 (1958–59).
[9] Surya P. Subedi, Dynamics of Foreign Policy and Law ( A study of Indo-Nepal Relations), Oxford University Press-2005, P.68
[10] Ibid ,pg.69
[11]TheConvention on Transit Trade of Land-locked Statesis a multilateraltreatycame into force on 9 June 1967. Coastal states that ratify the convention (known as "transit states")[1]agree to make arrangements with land-locked states that are party to the treaty that wish to transit goods across the territory of the transit state to or from a coastal port in the transit state. The transit states agree that they will not discriminate based on place of origin or destination of the goods being transported. The land-locked states agree to be responsible for any expenses that the transit states incur in supervising or protecting the transit of the land-locked state's goods.
[12] The Geneva Conventions on the Law of the Sea (1958) and the Convention on Transit Trade of Land-Locked States (1965)
[13]Anexclusive economic zone(EEZ) is a sea zone prescribed by theUnited Nations Convention on the Law of the Seaover which astatehas special rights regarding the exploration and use ofmarineresources, including energy production from water and wind.[1]It stretches from the baseline out to 200nautical miles(nmi) from its coast. In colloquial usage, the term may include thecontinental shelf.
[14] Churchill and Lowe, Law of the Sea, third edition, Manchester University Press (1999), P. 434
[15]Article V of the GATT(1994, Freedom of Transit) provides for freedom of transit of goods, vessels and other means of transport across the territory of WTO members via the routes most convenient for international transit.In order to enjoy the freedom of the seas on equal terms with coastal States, States having no sea coast should have free access to the sea. To this end States situated between the sea and a State having no sea coast shall by common agreement with the latter, and in conformity with existing international conventions, accord: (a) To the State having no sea coast, on a basis of reciprocity, free transit through their territory; and (b) To ships flying the flag of that State treatment equal to that accorded to their own ships, or to the ships of any other States, as regards access to seaports and the use of such ports. 3 2. States situated between the sea and a State having no sea coast shall settle, by mutual agreement with the latter, and taking into account the rights of the coastal State or State of transit and the special conditions of the State having no sea coast, all matters relating to freedom of transit and equal treatment in ports, in case such States are not already parties to existing international conventions.
[16] Dr. Stephen Vasciannie, Land-Locked and Geographically disadvantaged states, Heinonline—31 commw. L. Bull. 60-60, 2005
[17] In the North Sea Continental Shelf cases the court held thatthe passage of a considerable period of time was unnecessary (i.e. duration) to form a customary law. OBJECTIVE ELEMENT:the existence of State practice. In other words, the actions or omissions by the State must support the custom; an2. SUBJECTIVE ELEMENT:acceptance as law.In other words, States when performing a custom must do so because they feel that they are legally bound to perform the custom.We call this conceptOpinio juris.Moreover, in the view of the mandatory character of Art. 125 (1) of the LOSC, and the approval of this provision by consensus during the UNCLOS III, the right of the free access as embodied in the 1982 convention could now be regarded as part of customary international law.
[18]TheBarcelona Convention and Statute on Freedom of Transitis an International treaty signed in Barcelona on 20 April 1921; the treaty ensures freedom of transit for various commercial goods across national boundaries. It was registered inLeague of Nations Treaty Serieson 8 October 1921.[1]It went into effect on 31 October 1922. the convention is still in force at present. Article 1 of the statute defined transit as movement of persons and goods from one sovereign state to another. Article 2 recognized the freedom of sovereign governments to make transit arrangements within their territories. Article 3 prohibited governments from demanding payments for transit rights, except for dues designated to cover operational expenses. Article 4 made compulsory for governments to apply equal transit dues to all persons, regardless of nationality. Article 5 permitted governments to prevent the entry into their territories of certain persons or goods for reasons of security. Article 6 permitted governments to refrain from granting transit permission to persons of states that were non-signatories of the convention. Article 7 permitted governments to deviate from the provisions of the statute in cases of national emergency, but required this be done for as brief period as possible. Article 8 allowed exceptions in times of war. Article 9 stated that none of its provisions can contradict obligations of states within the League of Nations. Article 10 stated that the statute shall replace all other transit agreements concluded prior to 1 May 1921. Article 11 permitted governments to grant greater freedoms of transit than provided in the statute, if they chose to do so. Article 12 permitted governments to postpone temporarily the applications of the transit provisions in case their territory or parts of it still suffered from the devastation caused by theFirst World War. Article 13 provided for resolution of disputes regarding interpretation through thePermanent Court of International Justice. Article 14 permitted governments to refrain from applying reasonable transit provisions to territories that were either under populated or lacking in proper arrangements of the rule of law. Article 15 stated that different arrangements shall apply in League of Nations mandated territories.