Principles, Doctrines, and Theories Influencing the Right of Access to the Sea
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Page 27
Public international law is an evolving and dynamic, not a static, institution. The growing participation of developing countries in international activities further underscores its conflicting yet malleable nature. Whenever more or less coherent solutions are proposed to a particular problem, new questions arise, along with economic, political, and sociological data that complicate the discussions and keep the questions unresolved by positive law.92
Since the evolution of international law relating to access to and from the sea is based on a variety of concepts and practices, there exists a great disparity of doctrinal sources, and there has been much theoretical controversy over the nature and basis of international law as it applies to LLS. Simply put, however, the problem of free access to the sea rests at the juncture of two principles of law: sovereignty of a State and freedom of communication among people. Several interesting theories derived therefrom, all rooted in international law, provide the basis for laws relating to LLS. Before analyzing the positive law, therefore, a brief discussion of the doctrines seems appropriate. Page 28
The right of communication involves more than a right of entry and sojourn in a given state. Worldwide commerce also requires the transit of goods through states. The eminent French jurist P. Reuter noted that the problem of transit specifically concerns communication by land, mainly for countries that are geographically disadvantaged by lack of all or certain types of access to the sea.93The ECA emphasized that the problem of free access to the sea of countries deprived of coast was one of the aspects of important problems concerning freedom of transit which relate to the fundamental economic interests and comprise the juridical guarantees for the countries concerned.94
Views and opinions are divided about whether there is a general duty on the part of States to grant the right of transit through their national territory to neighboring States that suffer from an unfavorable geographic position. Those rejecting this idea defend their theory with the argument that freedom of transit is subordinated to the fundamental principle of State sovereignty. Transit cannot violate the sovereignty of the coastal State. According to them, the exercise of the transit right is subject to approval of the coastal State, which has sole authority to grant passage.
Leading international lawyers like McNair and Hyde believe that the transit right of LLS is not a principle recognized by international law but rather a right governed by agreements concluded with coastal States. This thesis, also defended by a number of transit States, argues that the transit right lies on the consent of the transit State. In an international conference in the 1950s, the Pakistani delegate declared that a State had no obligation at all to grant to others the privilege of transit upon its territory.95
Another school of thought suggests that the theory of the economic interdependence of States offers an important juridical basis for recognizing transit rights. The proponents of this theory argue that placing transit rights arbitrarily within the sovereignty of a State, allowing that State to block the passage of goods, is restricted by treaties in such a way that absolute denial of such rights seems obsolete. Jurists over the past six decades have definitely favored the view that States whose economic life and development depend on Page 29 transit can legitimately claim it. Such dependence is most evident in the case of LLS.96
Lauterpacht, too, confirmed that certain states may legitimately claim "the right of transit" when there exist two fundamental conditions. First, the State claiming the right of transit must be capable of proving the merits and necessity of the right. Second, the exercise of the right must not cause disturbance or prejudice to the transit State. Lauterpacht concludes that the Covenant of the League of Nations, the Barcelona Convention, and similar instruments recognize the principle of free transit. They require transit States "to negotiate and conclude, on reasonable bases, transit agreements."97
For Charles de Visscher, freedom of transit implies that a means of transport that is obliged to use foreign territory to traverse the distance separating its departure point from its destination should not encounter, within this obligatory crossing of an intermediary State, any obstacle, charge, or difficulty that would have been avoided if the travel were completed entirely within the same State.98
Freedom of transit through the territory of a "neighbor-State" may represent an advantage of convenience for a coastal State, but for the LLS it is a question not of convenience but of survival. Therefore, the LLS can legitimately demonstrate necessity and oblige the transit State to conclude an agreement.99
In light of the above, it may be argued that under certain conditions, the grant of transit freedom for LLS is an obligation of the State of passage, independent of all international agreements. Freedom of transit is thus not a "right" that any State can exercise in other transit States without their consent. To be eligible to claim this right, the demanding State must fulfill certain eligibility criteria. The criteria are considered fulfilled for LLS specifically due to their geographical position and economic dependence, which together create a presumption in their favor of a right of transit. Page 30
A leading French authority on international law, George Scelles, wrote that the essential juridical norm related to freedom of the high seas is the principle of freedom of utilization-utilization comprising not only navigation and trade but also such accessory utilities as fishing, laying cables, and scientific research. Consequently, this view opposes the idea that a government should insist on reserving to itself the exclusive use of all or part of the ocean, or tolerate freedom of the seas only under certain conditions.100 For Scelles, "the high sea-a public international domain-comes only under the jurisdiction of international law. The sea-res communis-is for the common use of all navigators of the international community. One of the consequences is that it is accessible for navigation, even for nationals of an enclave State."101
The legitimacy of the right of LLS to free access to the sea was also emphasized by M. Sibert, for whom the high seas are a property the use of which is common to all. The right to freely navigate must belong to all members of the international community, including those without a seacoast.102 Later Pounds, affirming that access to the sea derives from the principle of freedom of the seas, noted: "If the ocean is open freely for all humanity (res communis), it is reasonable to suppose that each will have access to the shore of the ocean and the right to navigate and discharge the goods on all navigable rivers, since they are only but natural prolongation of the free high sea."103
Charles Cheney Hyde seems to share this view, but with a slight variation. For him, the principle of the international society calling for the territory of each of its members to be linked to the sea is sufficiently general to be applied to all relevant means of communication; it is in fact valid for overland transit modes as well as transit by water.104 Recognizing as a parallel the validity of free access to the sea, Hyde believes that the principle derives not from general international law but from treaties. Page 31 M. Thierry, representative of France to the International Conference on the Law of the Sea (1958), emphasized that LLS have, in accordance with the principle of equality of States, the same rights as others with regard to the use of the maritime public domain.105
A. H. Tabibi, member of the International Law Commission, emphasized a strict correlation between the rights of innocent passage on land and by sea, stating that "recognizing the right of innocent passage in favor of LLS is the only means to render the principle of the freedom of the seas effective for them."106 Tabibi suggested extending the right to innocent passage on the territory of coastal States as a logical consequence of the principles of the freedom of seas and the equality of States. He quoted a number of texts to support this view but gave special emphasis to the doctrinal authority of Grotius, who he believed had already envisaged extension of the right of innocent passage in connection with the relations between neighboring properties based on the doctrine of necessity.107 Tabibi concluded that, for LLS, the right of innocent passage on the sea and in the air is inviolable, and without it the principle of freedom of the sea would lose all significance.
To sum up, the high seas, as a public international domain, must be accessible to all. It is thus possible to conclude that the principle of free access to the sea derives from the principle of the freedom of the high seas. Without the right of access to the seas, freedom of the sea would be deprived of its universality. If the right of access of LLS were not initially guaranteed for them, freedom of the high seas would simply be meaningless.
An international servitude is a right, based on an agreement between two or more States, by which the territory of one State is subjected to the permanent use of another State...
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