International Studies Journal (ISJ)

International Studies Journal (ISJ)

Transit Passage of Landlocked Countries from the Perspective of International Law of Seas

Document Type : Original Article from Result of Thesis

Authors
Manoochehr Safari 1
Atefeh Amininia 2
Mojtaba Nazif 3
1 Ph.D. Student of Public International Law Dep., UAE Branch, Islamic Azad University, Dubai, United Arab Emirates
2 Assistant Professor, Department of Law, Central Tehran Branch, Tehran Islamic Azad University, Iran
3 Assistant Professor, Department of Law, Central Tehran south, Tehran Islamic Azad University, Iran
10.22034/isj.2024.421465.2085
Abstract
Landlocked countries face various obstacles for their international trade by sea due to the fact that they have no sea coast. And they are dependent on one or more coastal countries through transit for their commercial transactions. This business method has led to an increase in business costs, and this situation becomes worse when a transit country wants to prohibit or limit this access according to Article 125 of the Convention on the Law of the Sea. This descriptive-analytical article examines the maritime rights of landlocked countries for trade and tries to answer the question, what is the transit of landlocked countries for trade by sea? According to the international documents, this article concludes that the right of access provided in the international documents under the title of transit passage is actually an "imperfect" right of access and suggests that based on the principle accepted as the common heritage of humanity, the right of access to the sea should be recognized as a legal right. Such right cannot be denied or limited unless it creates a real and verifiable security risk for a transit country.

Highlights

Introduction

Being landlocked is a geographical hindrance to maritime trade, a problem which is imposed on some states by nature. In other words, a country is considered a “landlocked country” if it has no coastline. Currently, there are 44 landlocked countries, 30 of which are developing countries deprived of international trade due to having no coastline. Landlocked states must cross a coastal country to conduct maritime trade and exploit the sea. The case in which a landlocked country should have transit to reach the sea is called the transit passage. Therefore, a transit state is a coastal state whose territory welcomes inbound traffic. Transit routes via transit countries might be long, and the existing transportation infrastructure might be substandard, increasing transportation costs. The security of transit depends on the national security of each transit country; therefore, security challenges in transit countries can seriously affect the shipping of goods via ports.

 

These problems of maritime trade in landlocked countries cause formidable challenges to international trade and hinder the national development of countries. Consequently, landlocked countries have tried to draw international attention to their problems. Not only have landlocked countries sought the right to enter and exit the sea freely to participate in international trade, but they have also tried to reach a global convention on the matter. However, international law is faced with the daunting challenge of recognizing different ideas, contradictory readings, and diverse meanings. Therefore, international documents concerning international law were codified to address the right of landlocked countries to access the sea. The United Nations Convention on the Law of the Sea (UNCLOS) is the latest example in this case. Relying on international documents, this paper examines the hypothesis that landlocked countries have the right to access the sea in accordance with international documents, e.g., UNCLOS, that allow them lawfully to trade via the sea.

 

Methodology

The methodology of this paper is based on international relations and international law. Therefore, documentation methods were adopted to collect data from books, papers, websites, and online references regarding the research subject on international law and international relations.

 

Findings

The right to free transit is granted to a landlocked country through its sovereignty. The claim of landlocked countries is mainly based on the principles of natural law. Accordingly, oceans are open to all coastal and landlocked nations that should have the right to free passage to benefit from their equal rights within the boundaries of their countries. Another theory that supports this right originates from the concept of the limited property right. Based on this theory, the proprietor of a piece of land is entitled to use the land in any way possible until no rights of neighbors are violated. Since they have no coastline, landlocked countries face many obstacles to international trade via the sea and depend on one or several coastal countries via transit. This method of trade increases commercial costs. The situation worsens when a transit country wishes to prohibit or constrain this access by Article 125 of the UNCLOS. In this paper, a descriptive-analytical method is employed to analyze the maritime rights of landlocked countries to trade. The paper also aims to investigate the transit passage of landlocked countries for maritime trade. Considering international documents, we can conclude that the right recognized in international documents as transit passage is a “defective” access right. Therefore, based on a peremptory norm recognized as the common heritage of humanity, this paper proposes that landlocked countries be granted the legal right to access the sea. Such a right cannot be rejected or constrained unless it imposes an actual, confirmable security threat to a transit country.

 

Conclusion

Every country must have access to the sea and maritime resources. Due to the inequality of geographical regions and resources, states must research mutual development through reciprocal trade. Causing several obstacles to trade, being landlocked imposes a serious challenge to countries with no coastline. International efforts to guarantee the right to access the sea have failed to grant landlocked countries the real right that can be enforced and expanded. Particularly, the negotiations in the Third Conference on the UNCLOS were expected to guarantee the right of landlocked countries to access the sea. The “right” to access the sea via transit countries was recognized first in Article 125 of the UNCLOS. However, other regulations of this convention have diminished the nature of this access right by exposing it to other decisions made by transit countries. As a result, landlocked countries are faced with the limited right to access the sea. In conclusion, transit countries can still prohibit or constrain the access of landlocked countries to the sea by using their inherent interests. As mentioned earlier, landlocked countries, especially developing landlocked countries, face a variety of commercial challenges due to the lack of coastline. Therefore, their challenges are overshadowed by the total deprivation of transit countries for the reasons that are currently authorized in the UNCLOS.

 

 

Keywords
Landlocked countries
international law of the seas
maritime trade
transit passage
right of access to the sea

Subjects

  1. 11 of the 1979 Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 5 December, 1979
  2. 125 UNCLOS
  3. 125(2) UNCLOS
  4. 136 UNCLOS
  5. 2 Statute of Barcelona.
  6. 23e Covenant of the League of Nations.
  7. 24(1)(b) UNCLOS.
  8. 3 Convention on the High Seas, 1958.
  9. 62(2) UNCLOS
  10. 87 UNCLOS
  11. 9(4), Annex III, United Nations Convention on the Law of the Sea, 1982 (hereinafter ‘UNCLOS’)
  12. Buckland, W. & Mcbair, A.D. (1936). Roman Law and Common Law. A Comparative in Outline, 103.
  13. Carcamo-Diaz, R. (2004). Towards Development in Landlocked Economies, Santiago: United Nations.
  14. Done at New York on 8 July 1965 and entered into force on 9 June 1967.
  15. Grotius, H. (1996). the freedom of the seas 9-10 (R. Van Deman Magoffin trans. 1996) (quoting Bladus de Vebaldis, Consilia III, 9 n. 7).
  16. Iwunze, V. (2018). ‘A Critical Examination of the Benefits Accruing to Third World Countries under the United Nations Convention on the Law of the Sea, 1982’ (Ph. D Thesis, University of Uyo, 2018) 59. On common heritage of mankind, see further J Frakes, ‘The Common Heritage of Mankind and the Deep Seabed, Outer Space and Antarctica: Will Developed and Developing Countries Reach a Compromise? (2003). Wisconsin International Law Journal, 409-434.
  17. Lauterpacht, H. Freedom of Transit in Internation l Law, in transactions of the Grotius socity 320 (1958- 44, 313-356.).
  18. Makil, R. (1970). Transit Rights of Land-locked Countries.  World Trade L., 4, 35.
  19. Mpazi Sinjela, A. (2020). Freedom of Transit and the Right of Access for Landlocked States. The Evolution of Principle and Law, 12(13) ga. j. intel & comp. l, 31, 40
  20. Rana, R.K. (2010). Right of Access of Landlocked States to the Sea by the Example of Bilateral Agreement between Landlocked State – Nepal and Port State – India, LLM Thesis, University of Tromso, 15.
  21. Reid, H.D. (1932). International servitudes in law and practice11 (quoting H. Lauterpacht, pravit law sorces and analogis of international law.
  22. See art. 5, paragraph 7 GATT
  23. See preamble to the GATT
  24. Tabibi, A. H. (1966). The Right of Free Access to the Sea. Kabul.
  25. The Convention was adopted in Montego Bay, Jamaica in 1980 at the end of the Third United Nations Conference on the Law of the Sea (UNCLOS III).
  26. The Convention was done at Geneva on 29 April 1958 and entered into force on 30 September 1962
  27. Upreti, B. C. (2016). India-Nepal relations: Complexities, misperceptions and irritants. Indian Foreign Affairs Journal, 11(2), 107-113.
  28. Uprety, D. (2020). The impact of international trade on migration by skill levels and gender in developing countries. International Migration, 58(4), 117-139.
  29. Uprety, K. (2003). ‘From Barcelona to Montego Bay and Thereafter: A Search for Landlocked States’ Right to Trade through Access to the Sea- A Retrospective Review’ (2003) 7 Singapore Journal of International & Comparative Law, 201
  30. Uprety, K. (2006). The transit regime for landlocked states: international law and development perspectives. World Bank Publications.
  31. Uprety, S., &etl (2023). Factors associated with self-care behaviours among people with hypertension residing in Kathmandu: a cross-sectional study. BMJ open, 13(6).