The 1964 Principles and the Ensuing Debate

As a compromise the subcommittee adopted eight principles that were later adopted first by the Fifth Committee and then by UNCTAD in its 1964 plenary session.²²⁵The principles were inspired by, and for the most part repeated, those

222Seegenerally UN ECAFE 20th Session (March 2–17, 1964), Tehran (E/CN 11/657) at 2.

223Seegenerally the Proceedings of the Meetings of the Subcommittee. Also the first UNCTAD conference was termed a “forum of expression of discontent.” Wielding a clear majority of voting power and then showing considerable solidarity and voting as a group, the developing countries assured adoption of a large number of resolutions favorable to their position. The effects of such resolutions, not predictable at the time, were considered problematic by some scholars. SeeHenry J. Steiner & Detlev F. Vagts, Transnational Legal Problems Materials and Text1162 (Foundation Press 1976).

224See id., Proceeding of the Meeting of the Sub-committee.

225The Principles Relating to Transit Trade of Landlocked Countries were the following:

Principle I

The recognition of the right of each land-locked State of free access to the sea is an essential principle for the expansion of international trade and economic development.

Principle II

In territorial and on internal waters, vessels flying the flag of land-locked countries should have identical rights, and enjoy treatment identical to that enjoyed by vessels flying the flag of coastal States other than the Territorial State.

Principle III

In order to enjoy the freedom of the seas on equal terms with coastal States, States hav-ing no seacoast should have free access to the sea. To this end, States situated between the sea and a State having no sea coast shall, by common agreement with the latter and in conformity with existing international conventions, accord to ships flying the flag of that State treatment equal to that accorded to their own ships or to the ships of any other State as regards access to sea ports and the use of such ports.

established by the preliminary conference of LLS in Geneva in 1958.²²⁶They contained only a few new ideas, essentially focusing on the problems of trade and economic development of LLS. However, there are two notable differences: The UNCTAD Resolution states that, in order to encourage the economic develop-ment of LLS, it is essential to give LLS facilities that allow them to mitigate the repercussions that their enclave position inflicts upon their trade. The sixth prin-ciple recommends a universal approach to solving the special problems of trade and development of LLS in different geographical regions by encouraging con-clusion of regional and international agreements on transit.²²⁷

The text of the 1958 preliminary conference obligated a transit State to grant freedom of transit for the persons and goods of LLS. In contrast, the fourth prin-ciple of 1964 states that the right of free transit may be granted to LLS by all other States “on a reciprocal basis.”²²⁸By subordinating the right of access to

Principle IV

In order to promote fully the economic development of the land-locked countries, the said countries should be accorded by all States, on the basis of reciprocity, free and unrestricted transit in such a manner that they have free access to regional and inter-national trade in all circumstances and for every type of goods. Goods in transit should not be subject to any customs duty. Means of transport in transit should not be subject to special taxes or charges higher than those levied for the use of means of transport of the transit country.

Principle V

The State of transit, while maintaining full sovereignty over its territory, shall have the right to take all indispensable measures to ensure that the exercise of the right of free and unrestricted transit shall in no way infringe its legitimate interests of any kind.

Principle VI

In order to accelerate the evolution of a universal approach to the solution of the spe-cial and particular problems of trade and development of land-locked countries in the different geographical areas the conclusion of regional and other international agree-ments in this regard should be encouraged by all States.

Principle VII

The facilities and special rights accorded to land-locked countries in view of their spe-cial geographical position are excluded from the operation of the Most Favored Nation clause.

Principle VIII

The principles which govern the right of access to the sea of the land-locked State shall in no way abrogate existing agreements between two or more contracting parties con-cerning the problems, nor shall they raise an obstacle as regards the conclusion of such agreements in future, provided that the latter do not establish a regime which is less favorable than or opposed to the above mentioned provisions.

See International Law of Development: Basic Documentsvol. 2, 801–02 (A. P. Mutharika, ed., Oceana Publications 1978).

226See supra n. 205.

227SeePrinciple VI,supra n. 225.

228SeePrinciple IV,supra n. 225.

reciprocity, the principles laid down by UNCTAD are regressive compared to those adopted in 1958. Indeed, having the principles of free access and reci-procity in the same text is paradoxical. The right of free access is based on the particular geographical position of LLS, a position differing from that of its transit partners. In contrast, the principle of reciprocity can be established between equal partners only. In practice the subordination of the right of free access to the reciprocity clause results in de facto cancellation of the first right by the second.

To complicate the picture further, an interpretative note with a recommenda-tion was added to the principles. The note stated that the principles were interde-pendent and that each was to be interpreted with due consideration of the other.

The recommendation asked the UN Secretary General “to constitute a Commit-tee of Twenty-Four members, chosen on the basis of equitable geographical distribution” to prepare a new draft convention on the transit trade of LLS.²²⁹

The Committee of Twenty-Four²³⁰was mandated to refer to the propositions presented to the 1964 UNCTAD Conference by the African and Asian LLS; the principles of international law, conventions, and agreements already in force;

and the solutions proposed by individual governments. Finally, the recommen-dation invited the UN to organize a conference in 1965 to examine the draft pre-pared by the Committee of Twenty-Four and adopt a convention on the transit trade of LLS. This Committee, which met in October and November of 1964 in New York under the presidency of Paul Ruegger, the delegate from Switzerland, essentially based its work on the Afro-Asian draft,²³¹transforming it into a draft Convention.

The Conference of Plenipotentiaries on Transit Trade of Landlocked Countries met in New York on June 7, 1965, and completed its work one month later. There were participants from 58 States, 23 of them LLS. During the conference, the dis-cussions about the legal nature of the freedom of access were vigorous. Delegates discussed whether free access to the sea was a natural right of LLS, to be reaf-firmed by the Transit Trade Conference, or whether the duty of the Conference was merely to solve their technical problems of transit transport. As in Geneva,

229SeeAnnex A VI.1 on Preparation of a Convention Relating to the Transit Trade of Landlocked Countries, in Proceedings of the UNCTAD, Geneva March 23-June 16, 1964, vol. I. Final Act and Report, UN Doc. E/CONF 46/39, E/CONF 46/141 Vol.1.

230This Committee, appointed by the UN Secretary General in response to a request from the 1964 UNCTAD Conference (UNCTAD I), comprised 24 members representing land-locked, transit, and other interested states. The Committee was mandated to prepare a new draft convention dealing with the transit trade of LLS. The members were: Afghanistan, Argentina, Austria, Bolivia, Burkina Faso (formerly Upper Volta), Chile, Côte d’Ivoire, Czechoslovakia, India, Japan, Liberia, Mali, Nepal, Netherlands, Niger, Nigeria, Pakistan, Paraguay, Senegal, Switzerland, USSR, UK, USA, and Yugoslavia.

231See supra n. 220 and accompanying text.

the LLS asked that an unrestricted right of free access be recognized and that this was necessary to comply with the principle of freedom on the high seas and so that LLS could benefit from the sea like coastal States. Instead, the New York Convention tried to establish equilibrium between the principles of freedom of the sea and territorial sovereignty. This happened probably because the New York Convention derived the tenet of free access from economic principles rather than general principles of international law.²³²

When the Afro-Asian draft was examined in the Committee of Twenty-Four, the representatives of Bolivia and Paraguay proposed to insert a new article in the draft to be submitted to the New York meeting.²³³The proposed insertion aimed at reaffirming the right of all LLS to free access to the sea and to “unrestricted”

transit throughout the territory of States situated between the LLS and coasts.

In demanding that these principles be included either in the preamble or in the main body of the New York Convention, the Bolivian delegate declared that UNCTAD had clearly recognized the importance of these principles.²³⁴The del-egate maintained that the LLS expected the principles to be incorporated into an international convention that would establish them as elements of positive law.²³⁵ In support, some members of the Committee of Twenty-Four stated that these principles were already recognized by international law and had been codified in general international conventions, namely the Convention on the High Seas.²³⁶ But other delegates, mostly from transit States, opposed inclusion of the phrase

“as recognized principles of international law”; they held that these were only economic principles, not principles of international law. Moreover, for them, mere repetition of identical clauses in a number of treaties did not constitute a general rule of international law.²³⁷

232Indeed, although the 1965 Convention is built upon the concept and content of earlier agreements, it reflects a special concern with economic development and with the partic-ular development problems arising from the absence of ocean access. The Preamble to the Convention quotes the United Nations General Assembly Resolution 1028 (XI) on LLS, which recognized “the need of LLS for adequate transit facilities in promoting interna-tional trade” and the “future requirements resulting from the economic development of the LLS.” See alsoPrinciple I,supra n. 225.

233Text of the amendment in UNCTAD: Report of the Committee on the Preparation of a Draft Convention Relating to Transit Trade of Landlocked Countries(March 12, 1965) UNGA Doc. A/5906, E/CONF. 46/AC 2/L, 7/Rev 1, at 18.

234See id.

235See id. at 19.

236SeeReport of the Committee,supra n. 233, at 20.

237Seegenerally the Proceedings of the Meetings of the Committee of Twenty-Four in UNCLOS: Fifth Committee Report (Questions of Free Access to the Sea of Landlocked Countries) UN GAOR, Summary Records of Meeting and Annexes, Geneva, Doc.

A/CONF.13/43, February 24, 1958 (hereinafter Fifth Committee Summary Records).

The opposition of transit States was relatively strong during both the 1958 and 1965 conferences. The Pakistani delegate went so far as to declare, in the Com-mittee of Twenty-Four, that the draft presented by the two Latin American LLS was based on a fallacious hypothesis: “It invokes principles of international law which do not exist. It confuses the principles of economic cooperation with legal principles.”²³⁸In the end, under pressure by the transit States, the LLS had to withdraw their claim that the right of free access was a recognized principle of international law.

The New York Transit Trade Conference adopted, inter alia, three instruments:

• A resolution recognizing that the Convention facilitating international maritime traffic (and its annex, adopted by the international conference in London in 1965) concerned the maritime trade of LLS,²³⁹ by virtue of paragraph II, Article II, of the Convention

• A resolution inviting the Intergovernmental Maritime Consultative Organi-zation to take measures to facilitate the transit traffic of LLS within the framework of the Convention

• Finally, the Convention on the Transit Trade of Landlocked States,²⁴⁰which entered into force on June 9, 1967.