Background. Measures that should be taken by land-locked states. Action by law ministers. Report. Introduction. Activity by the commonwealth secretariat. Does UNCLOS help land-locked states?. (i) Affirmation of Existing Rights. (ii) Creation of New Rights. Giving effect to the law of the sea convention. Conclusion.
1. In 2004 the Secretariat prepared a report to inform Senior Officials of the rights of Land-locked States under the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Following the October 2004 meeting of Senior Officials, the Secretariat held a seminar for the Land-locked States of Africa in June 2005 with a view to sensitising these states as to the benefits to be derived from being fully on stream with UNCLOS. From discussions at the seminar certain issues emerged which the Secretariat wishes to bring to the attention of Law Ministers. These issues, outlined in greater depth in the Report that follows, are:
* the perception that benefits from UNCLOS through ratification are a distant hope; and
* the view that ratification will give rise to costs.
Measures that should be taken by land-locked states
2. The Report outlines three distinct measures which developing Land-locked States that wish to obtain full advantage of the benefits contemplated in UNCLOS will generally need to undertake.
I. Accession to the UNCLOS pursuant to Article 307.
II. Consideration of the need for enabling legislation to bring the provisions of the Convention into force in local law.
III. Consideration of the need to enter into bilateral or regional agreements with other countries to secure access to the sea and to foreign exclusive economic zones.
Action by law ministers
3. In light of the information outlined in the Report, Law Ministers are asked to:
(a) consider the position of Land-Locked States and the possibilities granted to them under UNCLOS to achieve access to the sea and living resources so as to foster and encourage sustainability;
(b) endorse the efforts of the Commonwealth Secretariat to sensitise member states to the immediate need to accede to UNCLOS for those states which have not done so;
(c) encourage Land-locked States to enact enabling legislation to implement, the provisions of Part V of UNCLOS;
(d) encourage both Land-locked States and their coastal neighbouring states to utilise the provisions of UNCLOS to foster relations and simultaneously recognise the benefits of entering into regional arrangements for access to the sea.
Commonwealth land-locked states and the law of the sea
1. The Commonwealth Secretariat informed the meeting of Senior Officials of Law Ministries in London, last October, of the rights of land-locked states under the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Rights of land-locked states are generally, but not exclusively, derived from UNCLOS. Thus, as a starting point, any attempt by land-locked states to improve their access to the sea, and their access to the resources of the sea, should take the relevant provisions of UNCLOS fully into account. In some cases, too, rights for land-locked states may be derived from customary international law and, to a lesser extent, from the 1958 Geneva Conventions on the Law of the Sea. The treaties that were opened for signature and ratification in Geneva in 1958 were: the Convention on the Territorial Sea and Contiguous Zone, the Convention on the Continental Shelf, the Convention on the High Seas, and the Convention on Fishing and Conservation of Resources of the High Seas. The Convention on Fishing and Conservation of Resources of the High Seas has had comparatively little impact on the development of the law of the sea, and no impact in respect of land-locked states, so its provisions will not be given consideration in this Report.
2. Still as a general proposition, whether or not a particular land-locked country may derive rights directly from UNCLOS will, of course, depend on its ratification of or accession to the treaty. At the present time, the following African land-locked member states of the Commonwealth are parties to UNCLOS: Botswana (became a party on May 2, 1990); Uganda (became a party on November 9, 1990); and Zambia (became a party on March 7, 1983). The following African land-locked member states of the Commonwealth have not become parties to the Convention: Lesotho (signed, but not ratified); Malawi (signed, but not ratified); Swaziland (signed, but not ratified). Zimbabwe, which has been suspended from the Commonwealth, ratified UNCLOS on February 24, 1993.
3. Having regard to the fact that three of the six Commonwealth African land-locked states are not parties to UNCLOS, one of the first strategic recommendations is that the non-parties to the Convention should seriously consider ratifying it. As will be discussed below, developing land-locked countries could benefit from the Law of the Sea Convention: this possibility informs the present recommendation.
Activity by the commonwealth secretariat
4. Since the October 2004 meeting of Senior Officials, the Commonwealth Secretariat held a seminar for the land-locked states of Africa with a view to sensitising those states to the benefits to be derived from being fully on stream with UNCLOS.
5. That seminar was held in Swaziland from 13 to 15 June, 2005 and was attended by senior officials of the respective countries. From discussions at the seminar, certain issues emerged which the Secretariat wishes to bring to the attention of Law Ministers.
(a) The perception that benefits from UNCLOS through ratification is a distant hope.
Because land-locked states have no coastline, and are generally remote from the sea, policy-makers may take the view that any benefits to be gained from ratifying a treaty on the law of the sea are too distant. This position may be understandable at first sight, for with respect to some aspects of the sea, land-locked states have traditionally not had rights. This is so, for example, in matters concerning the continental shelf, a legal concept that has essentially been associated with coastal states. For this reason, in the North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands)(ICJ Reports 1969, p. 4), the International Court of Justice noted that land-locked states would not have an interest in the 1958 Geneva Convention on the Continental Shelf. The perception that land-locked states have nothing to gain in law of the sea matters is also based on the fact that the typical land-locked state - and certainly the typical African land-locked state - has no important seafaring tradition and no offshore fishing industry.
Although it is true that land-locked states have no direct interests in some areas of the sea, the perception that nothing is to be gained from ratifying UNCLOS is built on the incorrect assumption that the treaty as a whole ignores the concerns of land-locked states. Some of the main ways in which UNCLOS takes into account the interests of land-locked states will be discussed below.
(b) The view that ratification will give rise to costs. When a state ratifies the Law of the Sea Convention, the state incurs an obligation to contribute to the operation of the International Seabed Authority, on a pro rata basis, having regard to the state's normal level of contribution to the United Nations. For the typical developing land-locked country, this level of contribution is not likely to be prohibitive, as it will be less than one per cent of the costs pertaining to the International Seabed Authority. The ratifying state will also incur the costs of diplomatic representation and participation in the work of the Authority. The expenses of a small delegation for these purposes are likely to be a relatively insignificant portion of the foreign affairs budget of the typical land-locked country. Generally, though, the question of costs must also be seen in light of the prospective benefits that may accrue to land-locked states through their participation in diplomatic initiatives concerning the law of the sea.
6. Naturally, in considering whether to ratify the Law of the Sea Convention, the typical land-locked state will bear in mind the costs of ratification. There are, however, a number of other background policy matters that point in favour of ratification. These include:
(c) The state of customary international law. For a country that has not ratified UNCLOS, customary international law provides the legal foundation concerning rights and duties. Alternatively, for countries that have ratified the Geneva Conventions, those treaties will set out the prevailing law. Customary international law does not completely disregard the aspirations of land-locked countries in law of the sea matters. At the same time, however, customary international law tends to be less precise than the terms of UNCLOS; also, as is set out further below,
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