Evolution of International Law
| Pages | 47-117 |
Page 47
McDougal and Burke in the late 1950s recognized that "[t]he historic function of the international law of the sea has long been that of achieving an appropriate balance between the special exclusive demands of coastal States and other special claimants and the general inclusive demands of all other States in the world arena."156 The balance flagged by McDougal and Burke has indeed been critical and is most relevant to this study.
For LLS, historically the most important and almost exclusive concern has been freedom of access to the sea. For that, they have demanded that the international community recognize a fundamental right of access and vouch for a universal convention on this matter.157 Due to the contrasting views and claims associated with the issue, the evolution of positive law,158 which essentially started with the Barcelona Convention159 and continued with a series of international instruments both specific and general, has often been accompanied by controversies, challenges, and disappointment. That is not surprising. Public international law generates an environment of confusion because it is an evolving body of norms constantly undergoing change; each new question is likely to complicate the discussions and keep the issue unsettled by positive law.
For that reason, continuous attempts have been made to clarify and improve the shape of international law. During the twentieth century several international instruments were prepared, discussed, and aborted or adopted. Some treaties had general coverage, referring to the status and rights of LLS by implication; some dealt with the rights of LLS from a variety of technical perspectives; and some attempted to deal exclusively with the problems of LLS in a specific context. Page 48
When the Treaty of Versailles was concluded, a provision about an eventual general regime of transit freedom on navigable waterways was inserted.160
The Covenant of the League of Nations required member States to make provisions to secure and maintain freedom of communication and transit.161 The Covenant also imposed equitable treatment for trade on all members of the League. To bring this about, a conference was held in Barcelona under the auspices of the League. There, a new technical organ-the Organization of Communication and Transit (OCT)-was charged with proposing measures to ensure freedom of communication and transit. As a result of the OCT's work, the First General Conference on Communication and Transit (the Barcelona Conference) adopted a series of conventions. Among the legal instruments prepared by this conference was the Convention of 1921 (the Barcelona Convention) concerning navigable waterways. This Convention, while introducing the principle of freedom of access by assimilating riparian and nonriparian categories, substituted for the classical denomination "international river" the terminology "waterways of international concern." The second document was the Barcelona Statute of 1921, which related to freedom of transit.162 Actually, the statute was adopted primarily to alter the economic consequences of the principle of nationalities, which had been adopted as strictum jus in the Versailles Treaty. It had become necessary to prepare an international regime of transit to guarantee communication among the European LLS that had emerged after the dismemberment of the Austro- Hungarian Empire. Page 49
The Barcelona Statute provides a framework for agreements dealing with transit. It requires that all contracting states facilitate freedom of transit by rail or internal navigable waterways, including routes in use across territories under their jurisdiction that are convenient for international transit.163 But a noteworthy aspect of the Barcelona Statute is that it concerns only water and rail transport; it does not apply to overland or air transport. The contracting states are permitted to apply reasonable tariffs on traffic in transit, regardless of its point of departure or destination,164 but the tariffs must be fixed so as to facilitate international traffic.165 Moreover, the taxes, facilities, or restrictions may not depend, directly or indirectly, on the nationality or ownership of the vessels or other means of transport used.166
Although the Barcelona Statute requires observance of the principle of freedom of transit by all possible means, signatories to the Barcelona Convention can depart from that principle. When serious events affect the security or vital interests of the transit country, for instance, it may disregard the Statute for a limited time.167 A State may also refuse to allow transit of goods or passengers for public health or public security reasons, or under the authority of general international conventions, or pursuant to decisions of the League of Nations.168
The Barcelona Statute refers not to a "right" but only to "freedom" of access. It thus appears that the Statute tried, within the framework of a treaty, to establish equilibrium between the principles of freedom and sovereignty of states.169 With regard to that, one scholar noted that this illustrated the contradictions of a fragile legal regime built in a protectionist context in which transit is presented as a privilege rather than a real right.170
The Barcelona Statute, which came into force on October 21, 1921, constitutes the basis of most of the trade agreements dealing with transit that were signed after the 1930s. Though not all these agreements refer specifically to the Barcelona Convention, in most the expressions "freedom of transit" and "free transit of goods" are considered to comply with the spirit of the Convention. Page 50
Soon after it was signed, several important agreements were added to the Barcelona Convention: the Convention on the regime of navigable waterways of April 20, 1921,171 and the Conventions of Geneva of December 9, 1923, on the international regimes of rail and of maritime ports.172 These conventions-in particular, the Geneva Convention on the international regime of maritime ports, which recognized that LLS had rights of access to the ports equal to those of coastal States-are important for LLS and were significantly influenced by the Barcelona Statute. In addition, the PCIJ, in an Advisory Opinion regarding the Railway Case,173 had to consider some of the principles established by the Barcelona Convention (see section 3.2 below). In view of that, the Convention, despite its insufficiency, can be considered an important step for the international community toward the formation of a universal law as well as a set of minimum standards.
The Landwarow-Kaisiadorys railway sector (LKS), which formed part of the railway from Vilna to Libau, was destroyed in World War I; at the time, neither the State of Lithuania nor the State of Poland existed. After the two States were formed and during the hostile operations of Russia against Poland, the line was temporarily repaired from time to time for local traffic, but it was again destroyed after the Polish occupation of Vilna on October 9, 1920. After that, for more than ten years there was no change in the situation. Before World War I, when all these regions formed part of the Russian Empire, the railway from Vilna to Libau, including the LKS, had been crucial for traffic with the Russian naval port of Libau, the Russian commercial port of Riga, and the German commercial port of Königsberg.
After the war, the whole of this part of Europe was thrown into confusion by political events: Libau, the former Russian naval port, became a Latvian Page 51 commercial port; frontiers were established between new and old States-Latvia, Lithuania, Poland, and Germany-where formerly German and Russian territory had been contiguous; events in Russia had ramifying political and economic consequences. Thus trade exchanges were profoundly modified with regard to both their importance and the routes they formerly followed.
Such was the situation when, on October 15, 1927, Lithuania brought the railways dispute before the Council of the League of Nations. As a result, the Council adopted a Resolution recognizing the dispute on December l0, 1927, with the concurrence of the two parties concerned.174
Negotiations between the Governments of Poland and Lithuania on the question of railway communication proved fruitless. On being so informed, the Council on December 14, 1928, adopted a Resolution noting that the two Governments Page 52 had signed a provisional arrangement for according certain facilities for local traffic, and that they were agreed on the advisability of continuing the negotiations with a view to...
To continue reading
Request your trial