Influence of International Law on State Practice
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Page 118
For decades, LLS on different continents concluded bilateral treaties dealing with the question of access to the sea and transit. This chapter attempts briefly to describe how the regime relating to LLS evolved and to assess the influence of multilateral conventions on a variety of bilateral relations.
Before World War I, Switzerland, feeling the great disadvantage of not having ships under its own flag to safeguard supplies for its population, was the first LLS to ask for the right to have a maritime flag.485 Previously, also for the first time, through a treaty on March 16, 1816, it had tried to solve its transit problem with the kingdom of Sardinia, then its neighbor.486 From World War I onward, the number of treaties in Europe grew significantly, mainly because so many States without maritime access emerged from the dismemberment of the Austro- Hungarian Empire.
On April 21, 1921, Germany, Poland, and the Free City of Danzig signed a Convention on transit freedom between Eastern Prussia and the rest of Germany.487The "corridor of Danzig," which allowed Poland and Danzig to freely approach the sea, separated East Prussia from the rest of Germany, making East Prussia a German enclave within a foreign territory. On its side, Germany granted to Poland and to Danzig the same transit freedom throughout its territory.
Article 2 of the agreement exempted all goods in transit from all customs or similar duties. Trains containing goods traveled under seal (Article 9), and persons in transit, along with their baggage, were exempted from all customs duties.
Poland had also concluded, on November 9, 1920, an Agreement with the Free City of Danzig.488 According to that Agreement, Poland was authorized to establish in Danzig Polish administrative services for the inspection of the condition of navigability of Polish vessels (Article 8). Danzig granted to Polish vessels the Page 119 same treatment as it granted to its own (Article 10). It also agreed to grant a free zone in port (Article 18).
In fact, this zone had existed before the agreement. Its maintenance was placed under the Jurisdiction of the Council of Ports and Waterways of Danzig (Article 19). The Council was in charge of ensuring Poland "free use, service, and means of communication" (Article 29). The means of communication covered by the agreement were waterways and railways.489
A legal instrument granting facilities to a State without access to a port in a transit State was the Agreement dated March 23, 1921, between Czechoslovakia and Italy that related to concessions and facilities granted by Italy in the port of Trieste.490 This Agreement aimed at facilitating transit between the two States. Czechoslovakia obtained the right to install its own customs office in the port of Trieste, and the Italian administration authorized the transit of Czech vehicles originating at the port through Italian territory. Czechoslovakia also obtained the right to use a hangar to facilitate loading and unloading of goods through the railways. Interestingly, another Convention dated March 8, 1923, between Czechoslovakia and Hungary, two LLS sharing the same kind of difficulties regarding free access to the sea, guarantees similar facilities.491
These agreements demonstrate a relatively liberal attitude on the part of transit States. This evolution in the direction of further liberalization of transit continued on the European continent. In the period after World War II, the contribution of the Economic Commission for Europe (ECE) became determinative. Its Committee of Internal Transport facilitated the adoption of two Conventions concerning overland and railway transit.
The two Conventions signed on January 10, 1952, each had a specific ambit: one to exempt from taxes and duties at the frontiers goods transported by railway; and the other to facilitate transit of passengers and baggage on railways at the frontiers. These conventions entered into force on April 1, 1953. The ECE also took into consideration overland transport: It prepared a draft convention relating to international transport of goods covered under TIR (Transport International Routiers) Carnets. Commonly known as the TIR Convention, it was signed in Geneva on January 15, 1959, and entered into force on January 7, 1960.492 Page 120
The TIR regime, which concerns transport of goods in overland vehicles or containers loaded on such vehicles, is the simplest system for customs and police formalities.493 Transit States party to this Convention agreed to introduce simplification through their own legislation. In view of its innovative approaches, the TIR Convention played a considerable role in stimulating overland transport in European States, which led Marion to emphasize that "without TIR, life would be impossible in Europe."494
Most European States, among them six LLS, adhered to the TIR Convention, which is an example of a multilateral solution to the transit problems of a continent. It facilitated and liberalized international transport among European States without creating any obstacle to the conclusion of agreements on, for instance, customs unions or economic zones. After the TIR Convention was adopted, many other international legal instruments dealing with specific issues were signed in Europe, each increasingly more liberal.
Here it is appropriate to mention that there are in Europe several economic organizations facilitating free exchange between member States. All European LLS belong to one or several of these. For instance, Luxembourg is a member of BENELUX, which is itself integrated into the European Union (EU); Switzerland is a member of the European Free Trade Association (EFTA), as was Austria until 1995; Hungary and Czechoslovakia were long members of the Council of Mutual Economic Assistance (CMEA) and have joined the EU. All these organizations, which are highly integrated, create a particularly advantageous position for European LLS compared to those on other continents.
Almost all of sub-Saharan Africa became independent after 1956; until then, only Liberia and Ethiopia were independent. Until 1956, most bilateral agreements were between colonial powers seeking free access to the sea for their colonies; for instance, aTreaty signed between Great Britain and Portugal on November 14, 1890, Page 121 guaranteed free navigation on the Zambezi.495 In Article 3 of this Agreement, the King of Portugal agreed to improve the means of communication between Portuguese ports and territories that were in the British zone of influence. A similar example is the Treaty of March 15, 1921, between Great Britain and Belgium,496dealing with the measures taken to facilitate Belgian trade in the East African territories by allowing access to British ports on the Indian Ocean.
Ethiopia, at the time the only independent African LLS, concluded an agreement with Italy on August 2, 1929,497 that dealt with construction of a route linking Assab to Dessia. Italy granted Ethiopia a free zone in the port of Assab where Ethiopia could construct warehouses. Another agreement, signed on May 15, 1902, in Addis Ababa and concerning the demarcation of boundaries between Ethiopia and Sudan,498 had already granted Great Britain the right to construct a railway through Ethiopian territory to link Sudan and Uganda.
The convention of June 17, 1950, between Great Britain and the Republic of Portugal concerned the port of Beira (now in Mozambique).499 This agreement ensured access to the sea for the British colonies of Northern Rhodesia (Zambia), Bechuanaland (Botswana), Swaziland, and Basutoland (Lesotho). The contracting States also agreed to avoid any discrimination in applying railway tariffs within these territories.
After decolonization began, the African LLS began signing their own bilateral agreements with transit neighbors. A great number of these concerned overland public transport500 and applied to transport of both goods and passengers.
With regard to port installations, Mali and Senegal501 on June 8, 1963, signed an agreement that seems to be highly significant. It stated that the port installations Page 122 of Dakar and Kaolack for transit of goods to or from Mali form distinct free zones within these ports, with the customs authorities of both states supervising entry and exit. By creating a free zone for an LLS in the port of a transit State, the agreement seems more generous than the bilateral agreements that merely provide warehousing facilities. A more recent example is the Protocol between Rwanda and Kenya regarding warehousing facilities at Maritini (Mombasa).502Page 123
Besides bilateral agreements, a number of international organizations, generally regional or subregional, facilitate exchange between African States. Most of these were created as instruments of economic cooperation among States in the area. Within these institutions have been created organizations facilitating transit among member States. Such African organizations have been perceived as less efficient than the European ones, perhaps simply because they are of more recent origin.
Both the LLS in South America, Bolivia and Paraguay, have established special relations with their neighbors through agreements.
Bolivia, which in former times was part of the Inca Empire, was attached to the Vice Royalty of Peru during the Spanish dominion from the sixteenth century to the beginning of the nineteenth. It acquired its independence in 1824.503 After Bolivia lost its war with Chile in October 1904, the two countries signed a treaty on peace, friendship, and trade.504 The treaty granted Chile permanent possession
In addition, its article 5 reads:
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