The Convention on the High Seas
3.6 Right to Secure Access Under UNCLOS III
3.6.6 Absence of New Rights and Guarantees
UNCLOS III has been referred to as “a triumph of the conscience of mankind in the field of international law” and as “a historic milestone in the progressive development of international law.”347In the past, the rules of international law to be observed by all the nations of the world were framed and dictated by only a few countries, the major powers. For the first time in the history of the interna-tional law, a Convention presented a set of rules formulated by the combined will of the great majority of States (130 votes for, 4 against, and 17 abstentions), regardless of size or power, in an assembly where equality and freedom in deci-sion making prevailed as a guiding principle.348
Some scholars consider UNCLOS III “not a mere codification of established principles or a compilation of the contents of various documents” but
one of the most important innovations in contemporary international law, which is now at a stage of comprehensive regime with its objective of guaranteeing the interests of all people, in accordance with the principles of justice, equity and protection of the economic conditions of all states, especially the developing countries and those in special circumstances.349 In essence, UNCLOS III codifies modern customary international law; it reflects the law of the sea in written form.350Similarly, it implies the requirement that the transit States cooperate with LLS. Most provisions of UNCLOS III contemplate regulation between the LLS and transit States.351
Some articles provide expressly for cooperation. Article 129 foresees cooper-ation between transit States and LLS in constructing means of transport to give effect to the freedom of transit of LLS.352Article 130 requires such cooperation in the expeditious elimination of delays or other technical difficulties of traffic in transit.353However, pragmatic analysis of the provisions of UNCLOS III shows
347Milan Bulajic, Principles of International Development Law310 (Martinus Nijhoff Publishers 1986).
348See id. On implementation, see alsogenerally, Allan G. Kirton & Stephen C. Vasciannie, Deep Seabed Mining Under the Law of the Sea Convention and the Implementation Agree-ment: Developing Country Perspective,51 Social and Economic Studies 63–115 (2002).
349See, Bulajic,supra n. 347, at 311.
350SeeJanis,supran. 277, at 153.
351Seearts. 124(2), 125(2) and 128 of the Convention.
352UNCLOS III, art. 129.
353SeeM. C. W. Pinto, The Duty of Cooperation and the United Nations Convention on the Law of the Seain Realism In Law-Making140 (A. Bos & H. Siblesz, eds., Martinus Nijhoff Publishers 1986).
that most of the rules set by the Convention could already be found in the earlier Conventions (the Barcelona Convention, the GATT, the Geneva Convention, or the New York Convention). Such is the case, for instance, of the exclusion of application of the MFN clause;354exemption from custom duties, taxes, or other charges355; equal treatment in maritime ports;356the grant of greater warehousing facilities;357and assignment of the free zones or other customs facilities to bilat-eral agreements.358
In some respect, LLS lost ground with UNCLOS III. The 1958 Convention gave to the ships flying the flag of an LLS MFN or national treatment, whichever was more advantageous,359but Article 131 of UNCLOS III only gives “equal treatment.” The interpretation of Article 131, which specifies that “ships flying the flag of landlocked states shall enjoy treatment equal to that accorded to other foreign ships in maritime ports,” can easily be used to give leastfavored treat-ment to LLS. It should have said “either most favored nation treattreat-ment or national treatment, whichever is more favorable.”360
The contested rules laid down in previous Conventions were not reformulated;
thus there is still potential for conflict, primarily with regard to means of trans-port and the other legitimate interests of transit States. The problem of interpre-tation had been raised by the Pakistani delegation: “Another area that causes us concern is the possible interpretation of the question of access to the sea, which we believe is only a notional right and will be governed by bilateral agreements regarding transit.”361
Views about UNCLOS III are mixed, particularly in connection with the right of access to the sea of LLS. J. Monnier thinks it is positive because for him, “the recognition of the right to access to and from the sea . . . has corrected, from a juridical angle, a factual inequality that subsisted for a long period of time in the positive international law.”362For L. Lucchini and M. Voelckel, “The Convention, although not fulfilling all the demands of the landlocked States, is certainly an improved compromise.”363
354UNCLOS III, art. 126.
355See id., art. 127.
356See id., art. 131.
357See id., art. 132.
358See id., art. 128.
359Seeart. 3(2) of the Geneva Convention on the Law of the Sea, supra n. 194.
360Seefor detail, Caflisch,supra n. 318.
361See id.
362Quoted in Tavernier,supra n. 15, at 741.
363See id.
Most LLS viewed the achievements of UNCLOS III negatively. The represen-tative of Lesotho said of the draft that there was still room for improvement.364 The delegate of Zimbabwe seemed unhappy about the provisions dealing with access to the sea and the delimitation of the EEZ.365Similarly, for the representa-tive of Paraguay, even after eight intensive negotiations, the text of UNCLOS III satisfied the expectations of LLS only in part,366though he agreed it reflected a great advance over former documents.367A more or less similar opinion was expressed by Mongolia:368The provisions relating directly to the rights and ben-efits of LLS were not entirely satisfactory, but Mongolia was prepared to accom-modate its own interests to those of the international community as a whole.369
Czechoslovakia was one of the few LLS to express a positive view of UNCLOS III.370Its delegate said that for LLS the Convention
. . . clearly grants the right of access to the sea through the territory of tran-sit States. Despite the fact that the granting of this right is largely of a sym-bolic nature, it is the end-result of 50 years of efforts to codify the law in a universal international convention, and as such, is of great political and moral significance for the entire group of 30 landlocked states.371
Whatever may be the views of the delegates, satisfied and dissatisfied, in inter-national forums, UNCLOS III offers little that is new for the transit rights of LLS.
As many authors have already noted, UNCLOS III failed in particular to clarify the status of LLS; they are still to be considered losers in the context of UNCLOS III.
They went through a long and difficult period of negotiation merely for a renewal of previously recognized rights. This explains why the representatives of a num-ber of developing countries have criticized part of the UN Convention on the Law of the Sea because it gives “some states much too much and others little or nothing at all.”372More precisely, and from the viewpoint of redistribution of oceanic resources, the biggest losers are noncoastal developing countries.373
364Seefor detail, UN Law of the Sea,supra n. 276, at 94.
365See id.
366See id. at 96.
367See id.
368See id. at 94.
369See id.
370See id. at 96.
371See id.
372See Bulajic,supra n. 347, at 310.
373Seefor detail, Magus Wijkman, UNCLOS and Redistribution of Ocean Wealth, in Inter-national Law: A Contemporary Perspective(R. Falk, F. Kratochwil & S. H. Mendlovitz, eds., Westview 1985); see alsoWani,supra n. 342, at 651.
Possibly UNCLOS III may be advantageous for some LLS that are also transit States,374but for most of the LLS in Africa, Asia, and South America, it is a disap-pointment. In general, the LLS had a vital interest in the attempt of UNCLOS III to improve their transit position, but their hopes were in vain.375
Finally, UNCLOS III cannot be viewed in isolation. It came into force on November 16, 1994, one year after the 60th ratification but 12 years after it was concluded.376As of February 2005, only 148 countries have ratified or acceded to the Convention.377It may well require changes before it is fully accepted by all the States.378