The Convention on the High Seas
3.4.1 The Geneva Conference and the Problem of Access
The pressure of the delegates of a few LLS—particularly Afghanistan, Bolivia, and Czechoslovakia—was decisive. The General Assembly, in paragraph 3 of its Resolution proposing the meeting of the conference on the law of the sea,192 rec-ommended that the conference examine the question of free access to the sea as established by international practice and bilateral treaties. Shortly before the
190UN Doc. E/CN, 11/425.
191UN General Assembly Resolution 1028 (XI): Landlocked Countries and the Expan-sion of International Trade, 656th plenary meeting, February 20, 1957.
192UN General Assembly Resolution 1105 (XI): International Conference of Plenipoten-tiaries to Examine the Law of the Sea, 658th plenary meeting, February 21, 1957.
Geneva Conference opened, a preliminary conference of thirteen LLS, held to prepare the proposal, prescribed a list of seven general principles (see n. 205 infra).
During its eleventh session, the UN General Assembly recommended to the Conference of Plenipotentiaries that a study be carried out on the problem of free access to the sea for LLS.193The Geneva Conference of 1958194established a committee for that purpose, the Fifth Committee. Confronted with several pro-posals from LLS asking for recognition of a “general law of access to the sea,”
the Conference asked the Fifth Committee to examine the regime of free access to the sea195and to draft a convention that might be part of a general codification of rules relating to the regime of the sea.196
This Committee had two documents on which to base its work. The first was a memorandum prepared by the UN Secretariat,197the first two chapters of which included the earlier deliberations of the UN on the questions of free access to the sea of LLS and the different theories about the right of access to the sea.198The last chapter listed bilateral and multilateral treaties dealing with problems of access to the sea faced by states deprived of a coastline.199The second document was an excerpt of the Final Act of the Economic Conference of the Organization of American States, held at Buenos Aires in September 1957, which described how American states stood on the question of access to the sea.200
The Chair of the Fifth Committee was Jaroslav Zourek, a delegate from Czechoslovakia.201The Bolivian representative was named Vice-President and
193SeeGlassner,supra n. 1, at 29.
194The UN Conference on the Law of the Sea, held at Geneva from February 24 to April 27, 1958. It resulted in the Geneva Convention on the High Seas. See Convention on the High Seas,done at Geneva, April 29, 1958. 450 U.N.T.S. 82; T.I.A.S No. 5200; 13 U.S.T. 2312;
450 U.N.T.S. 82; 54 Am. J. Int’l L. 751 (1958).
195See supra n. 188.
196See id.
197See supra n. 192, at 54.
198See Question of Free Access to the Sea of Land-locked Countries: Memorandum by the Secretariat,UNCLOS 5th Comm., UN Doc. A/Conf.13/29 and Add.1 (1958).
199Acts of the UN Conference on the Law of the Sea(Preparatory Document, 1958), vol. 1 (hereinafter Acts of the Conference), 308.
200Seegenerally, Transportation and Economic Growth: The Plata River System, Eco-nomic Conference of the Organization of American States, Buenos Aires, Argentina, Doc.
July 11, 1957.
201M. R. Simmonet, La Convention sur la Haute Mer(Librairie Générale de Droit et de Jurisprudence 1966). Not surprisingly, this prompted discomfort among transit States. It was noted that “the Chairman of the Fifth Committee was both judge and party, which always is a hindrance for the well functioning of a Committee.”
the representative from Afghanistan Rapporteur. Although they constituted a majority at the Conference, the littoral States were not represented in the Bureau of the Fifth Committee. This might explain the distrust transit States manifested with regard to the draft report presented later in the plenary session.202Indeed, the Fifth Committee asked that the draft report be opened for discussion and insisted the Rapporteur change several elements.203
The discussions of the Fifth Committee centered on two draft texts. The first, proposed by 19 states (11 of which were LLS), reconsidered the principles dealt with by the preliminary conference.204The LLS asserted that the seven principles proclaimed by the preliminary conference of LLS205had to be part of the future convention. While the second and the third principles specifically were admitted by transit States without protest to be positive law, the first and fifth principles were rejectedin toto.Coastal States were not prepared to recognize a real right of access to the sea for LLS.
202See id.
203See id.
204Seefor detail, Acts of The Conference,supra n. 199, at 84–85.
205These principles were the following:
(i) The right of access to the sea of LLS derives from the fundamental principle of freedom of the sea.
(ii) All LLS possess treatment equal to coastal States, including the right of flag of their vessels duly registered in a place of their own jurisdiction.
(iii) The vessels flying the flag of an LLS, in high seas benefit from a regime identi-cal to that of the vessels of coastal States in the territorial and internal waters.
They benefit from the regime identical to that of the vessels flying the flag of coastal States, other than territorial States.
(iv) Regarding access to maritime ports, all LLS have the right to MFN treatment and in no case to treatment less favorable than that granted to vessels of coastal States.
(v) The transit passage of persons and goods originating from an LLS toward the sea and vice versa through all means of communication and transport must, under special agreements and conventions in application, be freely granted. The traffic in transit shall not be subject to any customs duty nor any special tax excepting those perceived in remuneration of services rendered in particular.
(vi) The transit States, while conserving complete jurisdiction over the means of communications and all facilities agreed to, have the right to take necessary and indispensable measures so that the exercise of the right of free access to the sea does not violate their legitimate interests of any kind, especially security and public health.
(vii) Provisions codifying the principles governing the right of free access of LLS shall not abrogate any agreements in force between two or several contracting parties on the questions of the proposed codification, nor constitute an obstacle to the conclusion of such an agreement in future, provided that these latter do not introduce a regime less favorable and are not contrary to it.
The second text was proposed by three coastal States: Italy, the Netherlands, and the United Kingdom.206This text, which reflected the reluctance of coastal States to recognize a real right of access, made two suggestions. The first was to apply the Convention equally to both coastal and noncoastal States, thereby considering every State, even coastal States, to be without access. The second suggestion was that the Conference adopt a nonbinding resolution on the free access to the sea of LLS, rather than a binding convention.