Group Within a Group: LLS Versus Transit States

During the Seventh Session,²⁹⁹ the Second Committee (later commonly referred to as a voting bloc) was tasked to negotiate LLS rights of access to the

294SeeA/CONF 62/S 143.

295The principal grounds of dissatisfaction stated by the Reagan Administration are dealt with in The Guide to American Law(West Publishing Company 1985); see alsogenerally, for more detail, Steven R. Davis & Peter Digeser, The United States and the Law of the Sea Treaty, Foreign Policy Institute Case Study No. 14 (Johns Hopkins University 1989);

and Sweeney et al., supra n. 276, at 163.

296SeeLa Convention des Nations Unies sur le Droit de la Mer,supra n. 278, at 22.

297The United States, Great Britain, the Federal Republic of Germany, Italy, Belgium, and Luxembourg did not sign. The fact that the U.S. did not become a signatory had preoccu-pied some. SeeTreves,supra n. 280, at 309. See also, for details about the different steps before arriving at the conclusion of the Convention, Wang,supra n. 83, at 27–37.

298SeeLa Convention des Nations Unies sur le Droit de la Mer, supra n. 278, at 22.

299See supran. 293 and accompanying text.

sea. This section deals succinctly with the evolution within this particular group.³⁰⁰

In the Committee discussions, the main issue was recognition of the right of access of LLS as a principle of international law. Some transit States were in favor of access: The representative of the USSR proposed that the right of free access be recognized as a general principle of international law, especially because the economic situation of LLS was compounded by their lack of access to the sea.³⁰¹The representative of the German Democratic Republic agreed, say-ing the right of LLS to free access to the sea and the seabed should be a generally recognized principle of international law embodied in the Convention.³⁰²

While some transit States were sympathetic to the LLS during the discussions on the New York Convention, many opposed accepting the right of access as a principle of international law. The Iranian delegate said vividly that the 1965 Convention on Transit Trade of Landlocked Countries recognized that those countries should have free access to the sea—within the framework of bilateral agreements. He further added that, although Iran could not be considered a tran-sit State, it had accorded its landlocked neighbors trantran-sit facilities to the Persian Gulf and the Sea of Oman. For the Iranian delegation, while it was necessary at all times to observe the principle of reciprocity of the right of transit, no State could grant privileges that might be construed as a sort of servitude prejudicial to its territorial sovereignty.³⁰³

The remarks of the Pakistani delegate were along the same lines. As a devel-oping country, Pakistan appreciated the aspirations of develdevel-oping LLS to improve the life of their peoples and had always extended full transit facilities to neigh-boring LLS under bilateral agreements. However, its delegation saw no justifica-tion for making transit facilities independent of agreements between the parties concerned. The right of transit was subject to the principle of reciprocity as laid down in the 1965 Convention.³⁰⁴

The representative of Indonesia, although recognizing the vital interests of LLS in having access to the sea, preferred that modalities for access be negoti-ated with transit States, since it was only by their cooperation that those rights could be effectively exercised.³⁰⁵

300SeeUN Law of the Sea,supran. 276, at 34;see alsogenerally, Vasciannie,supran. 1. The LLS, along with the other GDSs, were initially viewed as a potential source of pressure to maintain high seas freedom because they had little or nothing to gain by increased zones of coastal state jurisdiction.SeeCharney,supran. 279, at 608.

301SeeUN Law of the Sea,id.,at 37.

302See id.

303See id.

304See id.at 43.

305See id.at 46.

The LLS were on the defensive. The Czechoslovakian delegation stated that it was necessary that the right of free access to the sea be affirmed as a legally bind-ing principle in the Convention.³⁰⁶The Zambian delegation considered it vitally important for landlocked states to have a guaranteed right of transit and access to the sea;³⁰⁷the delegate added that, although that right had been incorporated into international conventions and bilateral and regional agreements and therefore qualified as part of positive international law, it was essential to embody it in any convention resulting from the Conference.³⁰⁸

The representative of Lesotho pointed out that his country was perhaps in the most difficult position because it was completely surrounded by the Republic of South Africa.³⁰⁹Lesotho attached great importance to the right of free access to the sea, which entailed the right of transit. Both were basic to the very survival of Lesotho as an independent sovereign state, and their exercise should not be sub-ject to the unilateral discretion of a transit State.

The Third through the Eleventh Sessions discussed primarily terminology in the draft, including definitions of transit passage and transit State, although it dealt to some extent with other questions, such as reciprocity and right of access versus freedom of access to the sea.³¹⁰

During this evolutionary process, as early as the spring of 1974, the group of LLS, along with the GDS group with which they had formed an alliance, formu-lated some basic negotiating positions at Kampala. The Kampala Declaration presented nine principles representing the essential rights and interests of the combined group:

1. The right of LLS to free and unrestricted access to and from the sea 2. The right of GDS to free and unrestricted access to and from the high sea 3. The right of LLS to transit rights and facilities from the transit States 4. The right of LLS/GDS to free access to and from the seabed

5. The right of LLS to use, on an equal basis, facilities, equipment, and all other installations in ports

6. The right to be exempt from duties or taxes while in transit, except service charges in connection with traffic in transit

7. The right of LLS/GDS representation in the organs of international seabed machinery, the decisions of which were to be made with due regard to their special needs and problems

306See id. at 40.

307See id.

308See id. at 41.

309See id.

310See id.

8. The right of LLS/GDS to deep seabed resources, and to governance of the exploitation of such resources by the concept of common heritage

9. The equal rights of LLS/GDS with other states in the exercise of jurisdic-tion over resources in areas adjacent to the territorial sea.³¹¹

The Declaration of the principles of Kampala was endorsed by 17 LLS (Afghanistan, Bhutan, Bolivia, Botswana, Burkina Faso [formerly Upper Volta], Burundi, Czechoslovakia, Hungary, Lao PDR, Lesotho, Mali, Mongolia, Nepal, Paraguay, Swaziland, Uganda, and Zambia). It made a significantly useful con-tribution to the process of concluding negotiations of the text of the Convention.

In UNCLOS III, the clarity of the difference between the views of transit States and LLS largely depended on how much weight was placed on functional aspects in defining access. The transit State view was predicated on established rules, such as territorial sovereignty or security interests. The opposite view tended to minimize these in favor of freedom of the high seas, trade, or correction of geographical inequality.