CYIL vol. 9 (2018)

PETR VÁLEK CYIL 9 ȍ2018Ȏ a landlocked State – as an acceptable compromise. As pointed out by others: “the law of the sea regime today represents a great victory of coastal states… although the regime of transit passage suggests it is not an undiluted victory”. 13 The same cannot be said of the access of the landlocked States to the living marine resources of the exclusive economic zone that is subject to the limiting conditions contained in Article 69 of the UNCLOS, 14 mainly to an agreement with “the States concerned” specified in the second paragraph, and to additional restrictions for “developed land-locked States”. Not surprisingly, there is no access under the UNCLOS to these resources located in the territorial sea. On the high seas, there are no legal restrictions for fishing by the landlocked States under Article 87 of the UNCLOS, 15 nevertheless, most of them probably have no fishing fleet to exercise this right (certainly not the Czech Republic). The access of the landlocked States to the marine resources located on the seabed beyond the limits of national jurisdiction is covered separately in the next part of this article. The access of the landlocked States to the sea is closely linked with the freedom of navigation of these States that formed part of customary international law even before the adoption of the UNCLOS. 16 Therefore, its provisions – confirming to the landlocked States the right of innocent passage through the territorial sea (Article 17 17 ), freedom of navigation in the exclusive economic zone [Article 58(1) 18 ] and in the high seas [Article 87(1)(a) 19 ], the right to sail ships flying its flag on the high seas (Article 90 20 ), as well as the access to maritime ports (Article 131 21 ) – can be considered a codification of customary international law. When it comes to the last-mentioned issue, i.e., the access to ports, there is a special legal regime (lex specialis) between the Czech Republic and Germany related to some areas within 13 DUNOFF, J. L., RATNER, S. R., WIPPMAN, D.: International Law: Norms, Actors, Process: A Problem- Oriented Approach, New York 2002, p. 701. 14 Article 69 of the UNCLOS (Right of land-locked States): “1. Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62. 2. The terms and modalities of such participation shall be established by the States concerned through bilateral, subregional or regional agreements taking into account, inter alia: …” 15 Article 87 of the UNCLOS (Freedom of the high seas): “1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII.” 16 See supra note 9, p. 434. 17 Article 17 of the UNCLOS (Right of innocent passage): “Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.” 18 Article 58 of the UNCLOS (Rights and duties of other States in the exclusive economic zone): “1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87…” 19 See supra note 15. 20 Article 90 of the UNCLOS (Right of navigation): “Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.” 21 Article 131 of the UNCLOS (Equal treatment in maritime ports): “Ships flying the flag of land-locked States shall enjoy treatment equal to that accorded to other foreign ships in maritime ports.”

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