CYIL vol. 9 (2018)

CYIL 9 ȍ2018Ȏ LAW OF THE SEA: IS IT RELEVANT FOR THE CZECH REPUBLIC? obligations regarding the access to the sea on the coastal States that expressed their intent to be bound by the UNCLOS. The key provision is its Article 125: 1. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind. To this end, land- locked States shall enjoy freedom of transit through the territory of transit States by all means of transport. 2. The terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States concerned through bilateral, subregional or regional agreements. 3. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests. Although the first paragraph fully reflects the needs of the landlocked States by stating that “Land-locked States shall have the right of access to and from the sea …”, the following two paragraphs “water-down” this right to some extent. The second paragraph presupposes that the “terms and modalities for exercising freedom of transit shall be agreed” through an international agreement. In this context, an interpretation of this provision was put forward that the UNCLOS as such (being pactum de contrahendo ) does not guarantee anything and in order to obtain the right of access, a landlocked State needs to conclude this agreement with a transit State. 10 The author of this article believes, however, that such interpretation does not take into account the normative treaty language of the first paragraph: “shall have”. The same conclusion was made by Professor Caflisch, an active participant of the Third UN Conference on the Law of the Sea and a former chairman of the International Law Commission, who expressly stated that Article 131 of the UNCLOS “confers an effective right [of the access to the sea] on land-locked States as it dispenses with the requirement of a special agreement.” 11 Another weakening of the right of access to the sea can be found in the third paragraph that confirms to the transit States, in rather vague language, “that the rights and facilities…for land-locked States shall in no way infringe their legitimate interests.” As such, the UNCLOS – while guaranteeing to the landlocked States the right of access to the sea and freedom of transit – retained to the coastal States the control over the exercise of this right. Article 300 of the UNCLOS 12 requires, however, its States Parties to “fulfil in good faith the obligations assumed under this Convention and… exercise the rights… recognized in this Convention in a manner which would not constitute an abuse of right”, so the coastal States should not use “their legitimate interests” mentioned in Article 125(3) of the UNCLOS as a pretext to curtail the right of access of the landlocked States to the sea. In light of Article 300 of the UNCLOS, the solution reached in Article 125 thereof looks – from the point of view of 10 ČEPELKA, Č., ŠTURMA, P.: Mezinárodní právo veřejné (Public International Law), 1st Edition, Prague 2008, pp. 271-272. 11 CAFLISCH, L. Land-locked and Geographically Disadvantaged States, in: Encyclopedia of Public International Law , Vol. III, 1997, p. 128. 12 Article 300 of the UNCLOS (Good faith and abuse of rights): “States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.”

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