Landlocked Countries Transit Rights and Rights to Access the Sea

Modern international order is constantly being moulded by the current demands of international politics and the precarious nature of crises. States today face and perceive a startling danger and threat of changing global politics, and the volatility of safeguarding state interest over competing global interests is constantly challenging the customary nature of norms in the international order. 

Preservation and promotion of state interest might look righteous from one legal percept when on the other hand certain actions aimed at the preservation of state interest might be termed as a violation of international law. This is especially the case in the relations between a state in an advantageous position and a state in a disadvantageous position. For example, the relationship between a coastal state and a landlocked country.

On a political side, a coastal state may deny a landlocked country its rightful access to the sea. In some cases, they might do so based on a perceived threat to coerce co-operation in another issue of mutual interest, or to coerce the political process in the landlocked country. The coastal state may also claim a threat, or the perceived threat, to justify its denial of access to transit.

Here, pandemonium may arise in defining a claim to deny access to transit rights also a legal dichotomy of whether to implore, in safeguarding the people from a perceived threat, which today might seem to have various dimensions that seem beyond the stretch of international law.  

There are instances where the coastal state has denied access to the sea in order to coerce the political process of a landlocked country. Landlocked states may oppose such actions of their coastal state neighbour on the basis of the customary as well as UN Charter based principle of non-intervention and may implore sovereign equality among states as envisaged in Article 2(1) of the UN Charter. Although this approach of a landlocked state is not entirely wrong, it seems insufficient in certain matters.

The researcher reviews and summarizes that the legal argument that could be appropriately brought by the landlocked state to claim its transit rights is on the basis customary nature of rights to access to the sea – which is a founding principle endorsed by the 1982 conference on United Nations Convention on Law of Seas.

Notwithstanding this customary nature of the right to access to the sea, the practices show that the accesses mostly rely on transit treaties between the transit states (including the coastal state). This results in coastal and transit states having an upper hand in the transit treaty negotiation and implementation and can sometimes result in denial of the right to transit and access to the sea.

This article will also draw a contextual case study of Nepal as a landlocked country and its rights to access the sea with close reference to case laws of ICJ and the principle of UNCLOS 1982.   

RES COMMUNES PRINCIPLE

On February 21, 1957, the UNGA passed a resolution that requested the United Nations Conference on Law of Sea to “study the free access to the sea of landlocked countries as established by international practice and treaties.” Pursuant to this resolution, the Fifth Committee of the First Conference began consideration of the special problems of landlocked countries on February 26, 1958. In an effort to fortify the rights of landlocked countries’ right to access, Nepalese delegates proposed that the word ‘may’ in the statement, “May have free access to the sea” in the 2nd line of the first paragraph of the ‘five power amendment’ be replaced by the word ‘shall’ i.e. “shall have free access to the sea.”

The principle of Common Heritage of Mankind (CHM), whose development is attributed to Arvid Prado, a Maltese representative to the United Nations, is viewed by “developing countries as a mechanism to assure their direct participation in the international management of resource exploitation in the CHM region thereby facilitating the distribution of the economic befit in their favour.” The use of the phrase “the common heritage of mankind” implies or prescribes worldwide common ownership of the seabed and its resources beyond the limits of national jurisdiction.

In current international law, res communes generally refer to the high sea, which has the characteristic that they may not be subject to the sovereignty of any state, and the states are bound to refrain from taking any act which might adversely affect their enjoyment by other states. It is only logical to state that the right to use the high seas as a common heritage of humanity is only effective and can only be exercised by a landlocked country if they are able to exercise their right to access the sea and transit-related rights.

UNCLOS provides that “Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind.” To this end, it states that the landlocked countries shall enjoy freedom of transit through the territory of the transit state by all means of transport. But while the LLCs are recognized to have the right to access the seas, the transit states have a parallel right to take all necessary measures to protect their legitimate interest.

Approximately 20% of the countries in the world are landlocked; they are distributed as approximately 40% of the world’s low-income economies and less than 10% in the world’s high-income countries.

One of the reasons for this is the economic disadvantage faced by the LLCs because of the lack of access to the sea which is the portal to an immense reservoir of natural resources.

Economic progress requires that a country’s international trade be as unhampered, speedy, reliable, and inexpensive as possible. Thus, the freedom of transit is an important consideration for all states and an absolutely vital prerequisite for landlocked countries to get engaged in a systematic effort of economic and trade relations with other states and to reap benefits for themselves and their people from it.

CONCLUSION

This seems to be the question of proper implementation of the right of free access to the sea of LLC but there is greater doctrinal debate necessary regarding “which right will prevail?” i.e. the principle of State sovereignty or CHM principle guided by equality of States and equitable distribution of the natural resources. Thus, this question should be sorted out; meanwhile developing the greater regional integration in terms of trade and economy would be a solution for now.

In the context of Nepal, if SAARC could play a role in integrating trade among the South Asian region, the problem of transit for Nepal as a landlocked country could be solved thus its right of free access to and from the sea guaranteed under UNCLOS could be better implemented in practice.