Lithuania did not have any obligation under the Memel Convention to restore and open for traffic the railway sector in question.
After examining the engagements invoked with regard to the reopening for traf-fic of the LKS, the Court concluded that the obligation alleged to be incumbent on Lithuania did not exist in the present circumstances. It was unanimously of the opinion that international engagements did not oblige Lithuania to take steps to open the LKS for all or certain categories of traffic.178
From the position of the Court in this case, it may be concluded that transit is not necessarily considered a right inherent to the geographic position of an LLS, but is only a freedom to be enjoyed upon the benevolence of the transit State, one that needs to be ensured through specific bilateral arrangements.
hardly possible to draw, even in a general manner, a common line of conduct for the UN.180
Soon after the UN came into existence, the Economic and Social Council (ECOSOC), which is charged with coordinating economic and social cooperation activities of member States within the framework of the UN, held an international conference in London to consider creation of an international trade organiza-tion.181 The London conference prepared a draft proposal to establish the UN International Trade Organization, which was submitted in August 1947 to another conference held in Geneva.182At a follow-up conference in Havana from November 21, 1947 to March 24, 1948, a definitive text was drafted. With 106 Articles, the Havana Charter was relatively detailed. The aim of the Charter183 was to create an organization to supervise the world trade system largely on the basis of the principles of free competition and free enterprise. It set certain goals for signatory States; they had to agree to “favor the possibility of access on the basis of equality in the market, in the supply sources, and in the production facilities necessary for their prosperity and economic development.”184
The Charter needed 27 instruments of ratification to come into force, but only 2 States ratified it. The International Trade Organization foreseen in the 1947 draft was therefore never realized.185
Given its merits, although it did not enter into force, the Havana Charter may well be considered as having constituted an additional step in the process of granting free and secure access to the sea because it laid the groundwork for adoption of the General Agreement on Tariffs and Trade (GATT). In contrast to the Havana Charter, the GATT, which was a simplified-form (self-executing) agreement not subject to ratification, came into force on January 1, 1948, in
180See Marion,supra n. 170, at 382; see also The History of UNCTAD 1964–198453–56 (United Nations 1985).
181The conference was held in London during October and November 1946. The later conference that produced the Charter was the United Nations Conference on Trade and Employment.
182See D. Carreau et al., Droit International Economique95 (Librairie Générale de Droit et Jurisprudence 1990).
183SeeCharter of the International Trade Organization, UN Conference on Trade and Employment, UN Doc. E/CONF.2/78 (1948) (hereinafter Havana Charter). Article 33 of the Charter contained detailed provisions on freedom of transit that were later borrowed by the GATT.
184See id.,art. 1.
185See UN Conference on Trade and Employment, UN Doc. E/CONF.2/78 (1948), at 95–96; see alsoAndreas F. Lowenfeld, Public Controls on International Trade15–21 (Matthew Bender 1983).
conformity with the terms of the Protocol for Provisional Application dated October 30, 1947.186
Article V of the GATT deals with freedom of transit. In so doing, although not specifically dealing with LLS, it reaffirms the principles laid down by the Barcelona Statute. But Lọc Marion has noted one important difference between GATT and the Barcelona Statute: “The word sovereignty does not appear at all in the seven paragraphs of the Article, while at each moment, the Barcelona Statute recalls the sovereign right of states.”187The UN Secretariat, in its study on “Ques-tion of free access to the sea of LLS,” summarized the principal provisions of GATT Article V as related to LLS this way:
(a) Goods including baggage and also vessels and other means of trans-port shall be deemed to be in transit when the passage across the ter-ritory of one of the contracting parties constitutes only one portion of the complete itinerary starting and terminating beyond the borders of the said country.
(b) There shall be freedom of transit throughout the territories of contract-ing parties for goods gocontract-ing to or originatcontract-ing from the other contractcontract-ing party. The principle of non-discrimination is clearly established.
(c) Although a declaration at the customs for goods in transit may be asked for, these properties shall be exempt from customs duties and all other
186During the second session of the Preparatory Committee for the United Nations Con-ference on Trade and Employment (Geneva, April 10–October 30, 1947), which had drafted the Charter for the ITO, the participating States had simultaneously conducted multilateral trade negotiations for the reciprocal reduction of customs tariffs. At the end of the session, it was decided to put the part of the draft charter dealing with multilateral trade relations into operation separately and provisionally, to serve as the treaty basis for the agreed tariff concessions. The articles of that part of the draft charter, together with the schedules of the tariff concessions made by each State, were put into a separate treaty (the GATT) and attached to the Final Act of the session, which was signed by the partici-pating States on October 30, 1947. On the same day the twenty-three signatories of the Final Act drew up a Protocol of Provisional Application of GATT, which was later accepted by the signatories of the Final Act and went into effect for those states on Janu-ary 1, 1948, or after acceptance, if that came later. Thereafter, participation in GATT was effected in each case by accession to the Protocol of Provisional Application, which required the prior consent of two-thirds of the parties to the Protocol. However, the GATT itself was never ratified (or accepted) by the parties to the Protocol of Provisional Appli-cation, except Haiti. The binding force of GATT continued to remain with the Protocol (an anomaly in practice), but the effective application of GATT did not suffer from this formal imperfection. Seefor detail, Gunther Jaenicke, General Agreement on Tariff and Trade (1947),inEncyclopedia of Public Law, vol. 3, 502–503 (North-Holland 1997). On the transformation of the ITO into the GATT, see Raj Bhala, International Trade Law:
Theory and Practice127–128 (LexisNexis 2001).
187See Marion,supra n. 170, at 387.
transit rights or duties except the transportation charges corresponding to the administrative expenditures made by the transport or to the cost of services rendered.
(d) The duties and the regulation applied on transit traffic must be equitable.
(e) The contracting parties mutually guarantee MFN treatment on transit traffic and applicable tariffs.
(f ) Without being applicable for aircraft in transit, the above men-tioned rules shall be applicable for goods transiting by air including baggage.188
Factors that account for the high cost of trade to LLS—including inadequate infrastructure, imbalance of trade, inefficient transport, poor utilization of assets, and a proliferation of cumbersome government regulations in both landlocked and transit developing countries—clearly frustrate the objective of Article V, which stipulates that “there shall be freedom of transit through the territory of each contracting party via the routes most convenient for international transit, for traffic in transit to or from the territory of other contracting parties.”
Note that Article 2 of the Barcelona Statute limited freedom of transit to rail-ways and waterrail-ways, but Article V of the GATT also covered overland transport.
It thus gave contracting States greater facilities than those provided by the Barcelona Statute. Article V did not include the transit of persons; the exclusion is justifiable due to the limited objectives of GATT and its priority, which was trade in general.189
The Barcelona Statute, the Havana Charter, and the GATT share the same objective: general regulation of transit. Among these three instruments, two have not only entered into force but also have obtained the status of customary law;
their influence on the issue of free access to the sea, and thus on promoting inter-national trade, is considerable.