By Bahman Aghai Diba, PhD International Law of the Sea
Land-locked states or coast-less states are the states that have no free access to the open waters of the world. At the moment, there are 42 land-locked States and out of these, a considerable number are in the area that Iran is situated: Afghanistan, Azerbaijan, Kazakhstan, Tajikistan, Turkmenistan, Uzbekistan, Armenia, and Kirgizstan. These countries along with other geographically disadvantaged countries have been trying to achieve the right of access to the high seas through the countries which are situated in the distance between them and the free seas, (the transit states), such as Iran. Also, they have been active in getting a share of the resources of the Exclusive Economic Zone of the close countries. Therefore, the positions of a country like Iran, as an important transit country, with dangers and opportunities that such concepts create, is very important.
The official view of Iran on this, based on the statement of Iran on the signing of the 1982 UN Convention on the Law of The Sea (by 2014, Iran has not yet adopted the convention, but it has not made any indication regarding detrainment from its approval and it is committed to it in the framework of the legal obligations of states in the distance between signing and adoption of a treaty) is that: passage is not an absolute right and it is a kind of a concession to the land-locked States and therefore, the coastal or transit state can demand something in return for facilities that they provide to the land-locked States. The access of the land-locked States to the sea is based on the parts of Article 125. The transit states can take all measures for ensuring that its sovereign rights are not violated through the transit passage of the land-locked States and these call for conclusion of specific agreements between the two sides and the agreements should be based on reciprocity.
The UN Convention of 1982 (Article 69) has been devoted to the right of landlocked states to participate in exploitation of the surplus of living resources in the EEZ. The other articles of the convention that are related to the landlocked states are Articles 61, 62, and 297. These articles provide that the landlocked states can participate in a suitable manner in exploitation of the surplus resources in the EEZ of the same “region”. It is necessary to point out that according to the convention, the coastal states should determine their capacity for exploitation of the living resources in the EEZ and they can define a level of surplus for exploitation of the landlocked states.
The regulations for this type of exploitation should be agreed by bilateral or multilateral agreement, of the concerned states. In the Convention of 1982, there are 9 articles (124 to 132) in chapter 10 on the “Right of access of the landlocked states to the sea and freedom of transit for them.”
However, the conditions for passage of the landlocked states from the transit state for access to the sea is left for agreement of the two sides or regional and sub-regional agreements. Part one of Article 125 of the 1982 Convention does not make the right itself dependent on those kinds of agreements. It simply recognizes the right. At the same time, it seems this is not an absolute right and it should be considered along with paragraphs 2 and 3 of the same article.
In fact, the 1982 UN Convention has left the landlocked states in confusion. Article 125 provides that “reasonable” regulations should be used for arranging the freedom of transit of the landlocked states, but it does not specify those regulations. At the same time, the convention does not put a commitment on the transit states to refrain from creating constraints for landlocked states. Paragraph 3 of the same article gives complete rights to the transit states to take all measures necessary to ensure that the rights and facilities provided in this part for land-locked states shall in no way infringe on their legitimate interests.
This means that passage of the land-locked states should not harm the laws and regulations of the transit state and should not be against its security and financial interests. Therefore, the transit state can take necessary measures to prevent the smuggling activities through its territory and transportation of arms. The questions of what else can be considered as the legitimate right or is it possible to totally stop passage or on certain occasions, or as far as certain types of items are concerned, are not clear.
In addition to the 1982 Convention, there are other documents about the land-locked States. Among them are Versay Treaty, GATT (1947), Havana Charter (1984), 1958 Convention on the High Seas, and 1965 Convention on transit trade of the land-locked States. Also, we should refer to the Resolution 10282 (11) and Resolution 1015 (11) of the UNGA on 20 and 21 February 1957, the 1981 UN Convention on the least developed countries, UNCTAD, TD/B/AC.39/3 dated September 1985 of the experts for transit passing of the land-locked States.
The 1965 Convention (New York Convention) on Transit Trade of the land-locked States has emphasized on the agreement between the two sides. At the same time, it has not made the right itself dependent on others and it requires only that the method of enforcement be determined by the agreement.
Unlike the European land-locked States that have practically solved their problems with the transit states, the issue is still subject to many problems in the Middle East and Central Asia regions. The situation in the European region has benefited from modern communications, mutual trade ties and geographical characteristics of the concerned countries which are in the heart of Europe. The geographical situation of the African and Asian land-locked States is not similar to the European ones and for the same reason; the European pattern is not a formula that can be used in these cases. At the same time, the most important point in the agreements between the European countries and the land-locked States is their “principle of reciprocity” .
Iran recognizes the right of land locked states for having access to the high seas but using these rights requires an agreement in which the landlocked states accept certain commitments. As far as sharing the living resources of the exclusive economic zones are concerned, the rights of landlocked states is limited to first determination of the sustainable lev
Bahman A Diba, PhD International Law of the Seas, is the author of several books. His latest books were published in 2011:
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