AFGHANISTAN, BHUTAN, BOLIVIA, BOTSWANA, BURUNDI, CZECHOSLOVAKIA, HUNGARY, LAOS, LESOTHO, MALI, MONGOLIA, NEPAL, PARAGUAY, SWAZILAND, UGANDA, UPPER VOLTA AND ZAMBIA: EXPLANATORY PAPER ON DRAFT ARTICLES RELATING TO LAND-LOCKED STATES 1

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82S00697R000300030025-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 12, 2016
• Document Release Date: October 1, 2001
• Sequence Number: 25
• Publication Date: July 30, 1974
• Content Type: REGULATION

U tU TIONS 001/11/08: CIA-RDP82SO0697R000300030025-7
Distr.
LIMITED
SECOND COMMITTEE
locked, S tates 1/ i
In accordance with the list of.subjects and issues relating to the law of the Sea
which was approved by.the.Sea-Bed. Committee in 1972 and which, according to its report
to the twenty-seventh session of the General Assembly, "should serve as a framework for
discussion and drafting of necessary articles" at the Third United Nations Conference on
the Law of the Sea, / legal norms ensuring the rights and interests of land-locked
and other geographically disadvantaged States shall become a part ofthe new
codification of international law of the sea which will emerge .trgm;that, Conference,
for the list includes two specific` items, one dealing with the problems of land-locked
countries, the other with the problems relating to the rights and interests of
shelf-locked States and States with narrow shelves or coastlines.
Item 9, relating to land-locked States, includes inter alia the following subitems:
"9.1.
Volta and Zambia: explanatory paper on draft articles relating toland-
A/CONF.62/C.2/L.29
30 July 1974
Bhutan, Bolivia, Botswana, Burundi,: Czechoslovakia, Hun
Laos. Lesotho, Mali, Mongolia, Nepal, Paraguay, Swaziland, Uganda, Upper
General Principles of the Law of the Sea concerning the land-locked
countries
9.2 Rights and interests of land-locked countries
9.2.1. Free access to and from the sea:freedom of transit, means. and
facilities for transport and communications
9.2.2 Equality of treatment in the ports of transit States
.9.2.3 Free access to the international sea-bed area beyond national
jurisdiction
9.2.4 Participation .in the "international regime, including the machinery
and the equitable sharing.in the benefits of the area"
1/ Official Records of the General semb Twent -ei hth Session,,
Supplement No. 21 (A/902]j vol. II.
2/ Official Records of the General Assembl Twent -seventh Session,
Supplement No. 21 (A/8721), para. 23).
C-0739
/. ..
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Needless to say, a just and satisfactory solution of the above-mentioned points
and their implementation in adequate provisions are of the utmost significance for all
land-locked countries, both developed States exporting industrial goods and importing
raw materials, and developing States whose economy largely depends on the exportationf
of raw materials and the importation of industrial products and complexes.
Under present international law the right of land-locked States to free access to
and from the sea is a firmly established and legally binding principle. It shall be
reaffirmed and elaborated in the new codification instrument on the law of the sea.
Such a conclusion is indispensable if the land-locked States. are to be given a
real opportunity to participate in the uses of the-seas and to enjoy benefits from
them on equal terms with coastal States. For this purpose the land-locked States
must obtain adequate 1,--gal means and guarantees ensuring them of the exercise of their
right of free access to and from the sea, including the right of free access to the
sea-bed area beyond national jurisdiction. This necessity arises from their
geographically disadvantaged position, from the fact that they lack any sea coast
whatsoever and, in most cases, vast distances separate them from the coast.
As a principle of international law the right of land-locked countries to free
access to and from the sea was also provided for and implemented step-by-step in
bilateral and multilateral treaties, mostly concluded in this century. This development
lied several significant milestones, particularly the Barcelona Convention and Statute
on Freedom of Transit in 1921, the Geneva Conventions on the Law of the Sea in 1958
and the New York Convention on Transit Trade of Land-Locked States in 1965.
Without underestimating the relevance of these instruments, their positive
contributions to the struggle for recognition and deve''--aent of the right of free
access to and from the sea, as well as to practical settlements of many issues
involved, it must be stated that in some respects they brought only partial solutions.
Thus, for example, the Barcelona Statute facilitated transit in general and was
helpful to land-locked States, particularly those in Europe, by opening up to them
necessary routes to the sea. Moreover, this multilateral regulation inspired the
conclusion of bilateral agreements which were based on thy: principles of the Barcelona
S--atute.
On the other hand, this instrument did not provide for all means of transport and
communication, having left aside, in particular, traffic by roads and pipelines, the
importance of which has significantly grown since that time. Furthermore, the number
of contracting parties to the Barcelona Convention and Statute, still in force, has
re;Llined relatively limited and it has lacked adherence among non-European States.
In the years preceding the first United Nations Conference on the Law of the Sea,
th~- land-locked countries made vigorous efforts on different international levels to
draw the attention of the whole international community to their specific problems and
needs for ensuring their rights in theforthcoming codification. Their efforts were
remarkably supported by the United Nations General Assembly which recognized in its
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resolution 1028 (XT) of 20 February 1957 "the need of land-locked countries for
adequate transit-facilities in promoting international trade" and invited all Members
of the United Nations "to give full recognition to the needs of land-locked Member
States in the matter of transit trade and, therefore, to accord them adequate facilities
in terms of international law and practice in this regard, bearing in mind the future'
requirements resulting from the economic development of the land-locked countries".
On the eve of the first United Nations Conference on the Law of the Sea a
Preliminary Conference of Land-Locked States was held in Geneva.from 10 to
14 February 1958 which adopted, as a result of its 'work, a document entitled "Principles
Enunciated by the Preliminary Conference of Land-Locked States". Seven principles
included in this document represented a restatement of principles and norms of
international law concerning the right of land-locked States to free access to the sea
and specific rights derived therefrom. Endorsed by all the . then land-locked States this
document became the basic paper of the Geneva Conference in its consideration of problems
of States having no seacoast. 3/
In the Geneva Codification of the Law of the Sea significant. progress towards the
recognition of full equality of land-locked States in the exercise of freedoms of the
seas. was made. Article 2 of the 1958 Convention on the High Seas confirmed that the
high seas were open "to all nations".and that freedoms arising from the freedom of the
high seas were provided "both for coastal and non-coastal States". The right of
land-locked States to free access to the sea-.was specifically declared in article.3
of this Convention. It stated that "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'".
Nevertheless; though including a provision in favour of free transit for..land-
locked States-through the territory of States. situated between the sea and a State
having no seacoast, as *.reil as equal treatment for.ships flying the flags of land-locked
States as regards access to seaports and the use of such ports, article _3 of the Geneva
Convention on theiHigh Seas included a number of elements that in fact diminished the
practical effect of the above-mentioned principle. By emphasizing that, transit States
shall accord free-transit and other facilities by "common agreement" with a State
having no ?ea--on and,-moreover, by indicating that free transit should be accorded
'"on:a basis of reciprocity",.;Article.,3 of the Geneva Convention on the High Seas
made in fact the; exercise of-the principle of free access of land-locked States to
the sea dependent primarily on transit States.
Besides, the principle of the 1921-Barcelona Declaration concerning the right of
fi, ?~ of .both-, coastal and non-coastal States was restated in article 4.. Finally,
a principle relating to land-locked States,. equally with other States, was included
in-article :1.4 of the Convention on the. Territorial Sea and the Contiguous Zone.. This
provision states genes,-:11y that "ships of all States, whether coastal or not, shall
enjoy the right of innocent passage through the territorial sea".
3/ Document A/CONF.13/C.5/L.1, annex 7.
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Therefore, it must be concluded that the 1958 Geneva Codification, though
declaring the principle of free access to the sea eLn4 recognizing the equality of
States having no sea coast with coastal States, did not adopt adequate measures to
ensure their effective exercise. Its half-way provisions, more declaratory than
effective, could not satisfy the real needs of land-locked countries, for they did not
take into due account their geographically most disadvantaged position in relation to
the uses of the sea.
This fact was confirmed by developments following the Geneva Codification
Conference, particularly by the first United Nations Conference on Trade and Development
which was considering, among other points, "the proposal for the formulation of an
adequate and effective International Convention, or other means to ensure the freedmT
of transit trade of land-locked countries". As a result the first UNCTAD Conference
adopted a special document including eight principles, together with an Interpretative
Note. 4/
It should be recalled that Principle I of this significant document emphasized
-'that "the recognition of the right of each land-locked State of free access to the
sea is an essential principle for the expansion of international trade and economic
development". Principle VII already reflected the idea that the right of free access
of land-locked countries to the sea originated from their disadvantaged position in
relation to the sea, for it stated that "the facilities and special rights accorded to
land-locked countries in view of their special geographical position are excluded
from the operation of the most-favoured-nation clause'".
The principles concerning land-locked countries adopted at the first UNCTAD
Conference have much significancefor a full recognition and implementation of the
right of free access to and from the sea, a right which the land-locked countries
urgently need if they are to compensate for the adverse effects of their disadvantaged
geographical situation depriving them of any sea coast.
Moreover, the first UNCTAD Conference inspired the preparatory work for and
the convocation of, a Conference on Transit Trade of Land-Locked Countries which
was held in New York. In the Convention, drawn up at this Conference and adopted on
8 July 1965, the UNCTAD principles including a full recognition of the right of each
land-locked State of free access to the sea, were incorporated. Furthermore, specific
questions of the freedom of transit were settled in 16 substantive articles of the
Convention.
The solutions offered by the Convention may be qualified as'a compromise between
the needs of land-locked countries and the interests of their transit partners. In
some aspects, however, the interests of transit States prevailed. This is evident
especially from article 15 of the New York Convention which states that "the provisions
of this Convention shay. be applied on a basis of reciprocity". The Convention thus
made no difference between the needs for transit arising from the geographical location
of States having no sea coast, and any other transit serving only to facilitate
transport and communication in general.
4/ Final Act of UNCTAD, document E/CONF.46/428, Annex A.I.2.
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(a) Fundamental principles
The draft articles relating to land-locked States begin with definitions of the
notions "traffic in transit", "person in transit", "transit State" and "means of
transport" which are based on the definitions of the Barcelona Statute and New York
Convention.
It is evident from the definition of "means of transport" that the draft articles
are intended to regulate transit by rail, road and waterways, and under special
arrangements by pipelines, gaslines and storage tanks. They shall not, however,
affect the conditions of transport by air which, though being undoubtedly one of the
means of transport serving the land-locked countries in their speediest access to
and from the sea and therefore quite indispensable, shall remain, due to its special
character, subject to bilateral or multilateral agreements relating to air transport,
as explicitly stated in paragraph 3 of article XX of the draft.
The term "traffic in transit" also includes, beside transit of baggage, goods
and means of transport, across the territory of one or more transit States, transit
of persons as in the 1921 Barcelona Statute. However, the transit of persons is
limited to passage of persons "whose movement is not prejudicial to security, law and
order of the transit State".
The principles inserted in articles II and III may be qualified as corner-stones
of the whole draft:
Article II characterizes the right of land-locked States to free access to and
from the sea as "one of the basic principles of the law of the sea" and "an integral
part of the principles of international law". In this way it is emphasized that the
realization of the rights of land-locked countries in the uses of the sea is the
concern of the international community as a whole and shall be considered as an
inseparable part of the new Codification of the Law of the Sea.
The fundamental right of free access to and from the sea is declared in
paragraph 2 of article II: land-locked States, irrespective of the origin and
characteristics of their land-locked conditions, shall have this right "in order to
enjoy the freedom of the seas and to participate in the exploration and exploitation
of the sea-bed and its resources on equal terms with coastal States".
In article III the stipulation of the main instrument that permits the exercise
of the right to free access to and from the sea is inserted, i.e. the obligation of
transit States to accord "free and unrestricted transit for traffic in transit of
land-locked States, without discrimination among them, to and from the sea by all
means of transport and communication". Needless to say, without the right of free and
unrestricted transit, and the corresponding obligations on the part of transit States,
fundamental right of States having no sea coast to free access to and from the
sea, as well as their equal rights to enjoy the benefits from the uses of the sea
would remain ineffective, a nudism ius without any practical significance.
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Both principles are based on several relevant documents. Their present wording
is abstracted from Principles Enunciated by the 1958 Preliminary Conference of
Land )??keil Countries (in particular Principle V); from article 3 of the 1958 Convention
on the High Seas; from UNCTAD Principles of 1964 (in particular Principle IV); and
from article 2 of the.1965 Convention on Transit Trade of Land-hocked Countries.
Of course, both the right of free access to and from the sea and the freedom of transit
are spelled out in a manner which corresponds to contemporary conditions and to the
aims of the new Codification of the Law of the Sea.
Without any doubt, the right of free access to and from the sea, as well as the
freedom of transit originating from this right, shall be exercised in accordance with
the provisions of the future Convention on the Law of the Sea.
(b) Position of land-locked States on the high seas and in maritime ports
The two fundamental articles are followed by a group of provisions confirming the
traditional rights of land-locked countries arising from their right of-free access to
and from the sea, and'their equal position on the high seas, in the territorial sea
and in internal waters
Article IV deals first with 'the rights of flags of land-locked States which was
recognized as early as in 1921 by a special declaration unanimously adopted by the.
Barcelona Conference. In accordance with a generally recognized principle of
ini.ernational law, which is reflected in article 2 of the 1958 Convention on the
High Seas, vessels, flying the flag of a, land-locked State shall have identical rights
co those eiaj?:)yed by: vessels of coastal States. Similarly, in the territorial sea and
in internal waters, their vessels shall have identical rights and enjoy treatment
equal to that enjoyed by vessels flying the flags c?i coastal States.
Article V declares the right of vessels of land-locked States to use maritime
port's under the most favoured treatment, and article VI provides that traffic in
transit shall not be subject to.any custom' duties; taxes or other charges, except
charges levied for specific services rendered in coune'don with such traffic.
As to their substance all these articles are based on provisions of previous
doctunents, in particular on paragraph 1 of article 3 of the 1958 Convention on-the
High Seas; article 14.of the 1958 Convention on the Territorial Sea and the.Contiguous
Zone; principles II - _X of the UNCTAD Principles as included in the 1965 New York
Convention; and article It of the New York Convention.
A new element is, however, included in paragraph 2 of article VI, according to
which "if the port installations and equipments or the means of transport and
communication or both existing in a transit State are primarily used by one or more
land-locked States, tariffs, fees or other charges for services rendered shall be
subject to agreement between th3 States concerned". The adoption of such a provision
and its application in particular cases is justified by the extent of use of some
ports and communications by certain land-locked States.
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For the purposes of these draft articles "maritime port" is understood to signify
any port receiving sea-going vessels and serving international economic relations or
transit of land-locked States. The granting of most favourable conditions to
land-locked States, as provided in draft articles V and VI should balance the very
considerable disadvantages of States having no sea coast or maritime ports.
Also belonging to this group of articles are rules concerning free zones and
other facilities which may be provided, according to article VII, at the ports of
entry and exit in the transit States, of course by agreement between those States
and the land-locked States concerned. Such zones, which will be needed most'y in
those maritime ports where a free port does not exist, shall be exempted from the
customs regulations of the coastal States; they remain, however, subject to their
Jurisdiction with regard to police and public health regulations.
It should be recalled that the main provision of article VII of the draft is
identical with article 8, paragraph 1 of the 1965 New York Convention.
As provided in article VIII of the draft, in the ports of transit or free zones,
land-locked States shall have the right to appoint customs officials of their own,
empowered in accordance with practice of States to make necessary arrangements and
supervise operations and services for movement of traffic in transit. This draft
provision reflects practice existing in different coastal States on the,basis of
their bilateral agreements with neighbouring land-locked countries. It is believed
that such practice should become a general standard. -
(c) Provisions relating to luestions of transport and communications
Articles IX-XIII of the draft include provisions regulating different questions
of transport and communications.
According to article IX, transit States shall provide adequate means of transport,
storage and handling facilities at the points of entry and exit, and at intermediate
stages for the smooth movement of traffic in transit. This draft article corresponds
again to a similar provision of paragraph 1 of article 4 of the 1965 New York
Convention.
Article X may be considered as an innovation according to which the land-locked
Mates, in agreement with the transit State or States concerned, shall have the right
to construct, modify or improve means of transport and communications or the port
installations and equipment in the transit States when such means are inadequate or
may be improved in any respect. Such principle, however, is justified by the need to
develop and improve the means of transport and communications which, in the second
half of the twentieth century are much greater than in previous periods.
Article XI, dealing with delays or difficulties in traffic in transit, is
identical with article 7 of the 1965 New York Convention.
Some additional provisions to the general principle of freedom of transit are
included in articles XII and XIII:
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In the first of these provisions, the right of land-locked States to access to
and from the sea through navigable rivers wlich pass through their territories and the
territories of transit States or which form a commc'n boundary between those States
? and the land-locked States, should be recognized. This provision concerns all
navigable rivers which may be used for traffic in transit, be they declared as
international in a special legal instrument or not.
It should be recalled that from the historical point of view navigable rivers
were the first means of communication used for international transit and that in
.the 1921 Barcelona Statute on Freedom of Transit its contracting parties assumed the
obligation "to facilitate free transit by rail or waterway on routes in use convenient
for international transit".
By the second of the. above mentioned articles is provided the right of land-locked
States to use one or more of the alternative routes or means of transport for purposes
of access to and from the sea. Though an innovation, this provision. is justified by
the need to ensure the speedy and smooth movement of traffic in transit that might be,
in fact, hindered or made more expensive when limited to a single route'of access
to the sea.
(d) Sovereignty of transit States and protection of their rights
Land-locked States, while possessing the rights provided for in the draft articles,
which are derived from the principle of their free access to and from the sea, are
well aware that transit States maintain sovereignty over their respective. territories.
However, this provision shall not be construed as prejudicing territorial
disputes of any kind.
Therefore, in article I the inclusion of pipelines, gaslines, and storage,tanks
when they are used for traffic in transit and other means, of transport in the definition
of "means of transport" shall remain "subject to appropriate arrangements as and
when necessary". According to article VII free zones and/wt-other facilities at the
ports of entry and exit in the transit States may be provided, but it shall be done
by agreement between those States and the land-locked States. Any improvement of the
means of transport and communications that would be made . by the land-locked States
under the scope of article X should be subject to agreement with the transit State or
States concerned.
Moreover, the draft articles include a general clause safeguarding the rights of
transit States against eventual.. infringements of. any kind: according to article XIV
the transit State shall have the right to take all indispensable measures to ensure
that the exercise of the right of free and unrestricted transit shall in no way
infringe its legitimate interests.
Furthermore, the 1973 draft articles include in article XV a special provision
concerning "temporary deviations.in exceptional cases". This provision is identical
with the language of article 7 of the 1921 Barcelona Statute and analogical to
article 12 of the 1965 New York Convention.
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(e) Question of reciprocity
The land-locked States attach a great importance to a just solution of the
question of reciprocity.
As is known the 1958 Geneva Convention on the High Seas in its article 3, and
in similar terms the 1965 New York Convention on the Transit Trade of Land-Locked
Countries in its article 15, have secured to land-locked States the freedom of transit
"on a basis of reciprocity". These provisions were apparently based on a wrong
supposition that both the land-locked and the transit States have comparable positions
and identical needs for transit. This is however not the case, for the purpose of
free transit of land-locked countries is just that of ensuring them the exercise of
their right of access to and from the sea.
The present draft declares therefore that "reciprocity shall not be a condition
of free transit of land-locked States" the fulfilment of which might be required by
transit States in favour of their own transit to any other country, for it would not
be necessitated by the need for access to the sea. Such condition would not be just,
in particular, in relation to those land-locked countries which are surrounded by
several transit States.
At the same time article XVI of the draft does not exclude the possibility of
providing reciprocal transit facilities under special agreements, if the level of
relations between the partners concerned or their other interests lead them to such
arrangements. Certainly, exact economic data would permit to recognize in each
individual case whether at all, or to what degree, both sides might derive benefits
from reciprocity, or a strict application of this condition would create an unbalanced
burden for the land-locked State alone.
(f) Position of land locked States in the regime of the sea-bed and their participation
in the Sea-Bed Machinery
The draft articles submitted by land-locked States also contain, in the form of
general guidelines, certain provisions concerning their participation in the exploration
and exploitation of the sea-bed and its resources.
Article XVII.first declares that land-locked States shall have the right of free
access to and from the area of the sea-bed, a principle which was already raised in
discussions on the regime of the sea-bedin the Sea-Bed Committee. For this purpose
the land-locked States shall have the right to use all means and facilities provided
with regard to traffic in transit.
It is obvious from the language of this provision that land-locked States do not
require some privileges in this respect, but only equal rights and opportunities in
the framework of the regime to be established for the area of the sea-bed beyond the
limits of national jurisdiction. The aim of this article is to ensure that
land-locked St tes wi ex se free and unrestricted transit across the territory
of one or moreA'' ~ S ~ ~eAt~t 2 1 1 8 rQ4dg6)PoVIRQO@300IBaOBflS-7surface
and waters of the sea for purposes of its traditional uses, such as navigation,
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P.ae 11
fisheries and others, but as well to its newly accessible areas of the sea-bed and
subsoil thereof. Of course, their activities in this area shall be governed by
principles and provisions of the Convention concerning the r4gime of .the sea-bed and.,,
.its machinery.
Furthermore, article XVIII includes some guidelines regarding representation of
land-locked States in organs of the future international organization of the sea-bed
in which not all member-States would be represented, in particular in. its Council. In
such organs there should be an adequate and proportionate number of land-locked States,
both developing and developed.
Article XIX deals with the very crucial point of decision-making in the machinery.
It is understandable why the land-locked States, as a group of countries facing special
problems arising from their disadvantaged geographical position in relation to the seas,
insist on observing the principle that decisions of substance shall be made with due
regard to their special needs and problems. It means that on questions of substance
which affect the interests of land-locked State's; decisions shall not be made without
their participation or even against them. In this connexion the land-locked States
maintain the view that they shall have equal rights in the decision-making process of
the.machinery.
(g) Relation of the general regulation to special agreements and question of
most-favoured-nation clause
As has been already stc.ted, a general regulation of the problems of land-locked
countries would not at all exclude the possibility. of concluding bilateral, regional
or multilateral agreements in which special arrangements would be.made. On the
contrary, the draft. requires the settlement of specific questions between the
land-locked and transit States concerned in such agreements. Therefore, article XX
of the draft states that the provisions of the future Convention governing the right
of free access to and from the sea shall not.abrogate existing special agreements
between two or more States, nor shall they raise an obstacle as regards the conclusion
of such agreements in the future.
On the other hand, the regulatory role of the new Convention, which will introduce
a general standard, must be preserved. The same article XX provides therefore that
in case existing special agreements ensure less favourable conditions than-those
which will be contained in the Convention, the States concerned will undertake that
they shall bring them in accord with the present provisions at the earliest occasion.
A similar undertaking is usual in conventions dealing with a general regulation.
It was also provided in article 10 of the 1921 Barcelona Statute on Freedom of Transit.
Of course, the future Convention, as the 1965 New York Convention, shall not
preclude providing greater facilities in special agreements.
/.-..
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Since the new Convention would establish rights and facilities in view of the
special geographical position of land-locked States and their fundamental right to
free access to and from the sea, its provisions, as well as provisions of special
agreements regulating the exercise of the right of free access to and from the sea
and the area of the sea-bed, should be excluded from the application of the most-
favoured-nation clause in favour of any third State. This principle, included in
article XXI of the draft, is analogical to article 10 of the 1965 New York Convention.
Similarly, it does not prevent the extension of facilities and special rights
that would be accorded to land-locked States under the new Convention or special
agreements in favour of a land-locked State which would not become a party to this
Convention on the basis of the most-favoured-nation clause of a treaty between that
land-locked State and a contracting State of the Convention which have arranged such
facilities and special rights.
The last provision of the-draft (article XXII) includes a principle concerning
settlement of disputes that would arise frown the interpretation acd application of the
articles relating to land-locked countries. This principle, too, is drafted in general
terms, stating that any such dispute "shall be subject to the procedures for the
settlement of disputes provided for in the Convention".
Therefore, it is no way prejudicial to a later agreement on procedures that
would govern the settlement of disputes arising from the inter 4rtation and application
of other provisions of the future Convention on the Law of the Sea.
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