International Law On Sea Access To Landlocked Countries: The Case Of Afghanistan And Pakistan – OpEd

Historically, it has been evident that trade through sea is a very lucrative one. The cost of transit through sea has always been less than both air and sea routes. So, the regions or states having coastline always remained more prosperous than those having no access to the sea.

With the evolution of International Law the need of sea access to landlocked states started to become a pressing issues. With the advent of the UN the issue started to become more and more mainstream. So, the efforts to address the issue on International forums in the regime of International started. Today, 44 Internationally recognized and 4 partially recognized landlocked states exist in the world (1). One such landlocked state is the state of Afghanistan.

Afghanistan has been a landlocked state through out its history. It always depended on its neighbouring states to get sea access and do its trade. The most feasible routes for Afghanistan were always used to be either through Persia or India. So, both of the routes were used by the traders to conduct the trade. In 20th century with the conclusion of second Anglo-Afghan war, the British Empire made a transit agreement with the government of the Afghanistan. This agreement allowed the Afghans to trade freely through British India and also, import goods duty free. But with the partition of India into India and Pakistan in 1947 this agreement also ceased to exist. No new agreement was made with Pakistan even after a decade of establishment of new nation. Although bilateral agreement on transit was signed by the two neighboring states in 1965 to give sea access to Afghanistan but still it was not under the regime of International Law.

This research article is aimed to analyze the International Law perspective on sea access to landlocked states. This article focuses, that what obligations International Law impose on International community in providing sea access to LS and how International Law enabled Afghanistan to get sea access through Pakistan?

Evolution of International Law

The legal status of sea access to landlocked states was first addressed on the platform of League of Nations. As the charter of League of Nations was signed the right to raise flag on vessels was also given to landlocked states along with states having coastline. LS were allowed to have naval vessels and raise their flag over them thus, giving jurisdictional right over them to the state they belonged to. The 1921 Barcelona Conference (2) was held to further discuss the mater of sea access to the landlocked states. In this conference, agreement of free trade was signed. The treaty signed at the conference dictated that no import duty to be levied on goods of landlocked states by the states through which the LS is importing its goods. It stated that the state providing the sea access to LS should not impose any extra fee or levy tax on using the ports of the host state. Further, it also stated that the host state will not get any transit fee from LS and will allow goods to be transported back to LS by road without leiving any road fee too. But the treaty was never implemented as it failed to get the required accessions of ratifications for it to be enforced.

In 1947 the regime of  GATT was signed by many states. It was aimed to promote free trade between different states of the world. It established the status of Most Favoured Nation. When a state declares the MFN status for any other state then the MFN state gets many privileges of trade with the host state. The MFN status allow the state to evade most of the taxes while doing trade with the host which otherwise would be implemented on it too like any other state by the host. On providing sea access to landlocked states, this regime established that the host should receive minimum taxes from LS. The host should only receive road and port facility tax from landlocked state on to the extent that it would receive from its own traders for using the same facilities.

Then in 1965, the New York Conference (3) under UNCTAD occurred. It gave the moral right to landlocked states to have sea access. It was discussed in the conference that the coastal state should give sea access to landlocked states. But no treaty was signed at the conference so the legal right still lagged. So, in 1982 UNCLOS was signed by most the members of the UN. This treaty was about laws of the sea. In this treaty the Internal waters, Exclusive Economic Zone and International Waters were defined. Also, for the first time the legal right of sea access to landlocked states was recognized and it was made compulsory for the states to give sea access to landlocked states although it was conditioned to bilateral treaty. Landlocked states gained jurisdictional right to have sea access through transit states under the regime. The treaty stated that:

1. Land-locked States shall have the right of access to and from the sea for the purpose of exercising the rights provided for in this Convention including those relating to the freedom of the high seas and the common heritage of mankind. To this end, land-locked States shall enjoy the freedom of transit through the territory of transit States by all means of transport.

2. The terms and modalities for exercising freedom of transit shall be agreed between the land-locked States and transit States concerned through bilateral, sub regional or regional agreements.

3. Transit States, in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for in this Part for land-locked States shall in no way infringe their legitimate interests.

This form the bases for International Law on providing sea access to landlocked states albeit subject to bilateral agreement between the landlocked and transit state. This is considered a milestone in the history of International Law.

The case of Afghanistan

Afghanistan being a landlocked state almost in its entire history depended on its neighbours for sea access. Although Afghanistan can access sea through Iran, the rugged terrain makes it a very difficult and expansive route. So, naturally it tends to use route of Pakistan to get sea access and conduct its trade. As the Afghan and British agreement ceased to exist with the partition of India in 1947 no new agreement was signed immediately between Afghanistan and now its neighbouring state of Pakistan that has sea access. In this regard in 1965 a bilateral agreement was signed between the two states. This agreement was Afghanistan Transit Trade Agreement better known as ATTA (4). It enabled the Afghanistan to use Pakistani road infrastructure and its ports to exports its product to outside world and also to import goods into its boundaries all duty free. Afghanistan has just to give taxes levied on any Pakistani trader using the same facilities. No extra import duty or transit fee was charged to Afghanistan. But this agreement was limited to transit between the two states. No state was allowed to use the transit to export or import goods from neighbouring states of transit state. So, the prospect of trade were limited. ATTA remained enforced till 2010.

In 2010 after a long negotiation a new trade and transit treaty was signed between Afghanistan and Pakistan. It was named APTTA (5) and was according to the provisions of UNCTAD and acted as a treated necessary to enforce international law regime on sea access. This treaty allowed the free trade of goods from and to Afghanistan to pass through Pakistan without any duty or extra tax. Pakistan only charged the regular taxes and fee that costs to use its infrastructure. This treaty was more based on reciprocity. While in previous treaty only Afghanistan was allowed to use Pakistan as a transit state, in this new treaty Pakistan also gained access to Afghan markets.

This agreement also allowed the parties to use land access of each other to trade with neighbouring states of transit states. Due to this Afghanistan started to send its goods in India through Pakistan while Pakistan was allowed to send its products to Tajikistan through the route of Afghanistan. However, this treaty do not allow the parties to receive the products from neighbouring states of each other.

Problems and Limitations 

Although the sea access regime give jurisdictional right to landlocked states to have sea access, the necessity of bilateral treaty to get the access proves to be a bottle neck. Many states refuses to give the access as they have no bilateral treaty with landlocked states. Similarly, as the regime allowed to deny the access by transit state under the pre-requisite of security, any state can use it to deny to give the access. Transit state can use this as bargaining chip to force the landlocked state to do an agreement with it based on their demands. Even in case of Pakistan and Afghanistan, Pakistan has denied the access to Afghanistan at a number of occasions under the pretext of security concerns. Also, such free trade can also leads to smuggling of things in transit state. As seen in past a lot of smuggling was done by Afghans in Pakistan. 

The regime of  APTTA has its own limitations too. Although Pakistan allows Afghanistan to use its ports and export to India thorough land, it restricts to import products from India through its land. Similarly, Afghanistan refused to allow Pakistan to import products from Tajikistan through the territory of Afghanistan. Both states have concerns that it will thrive black market of products in their states.

Conclusion

It is evident that the necessity of bilateral agreement between landlocked and transit state is a caveat in International Law’s regime on sea access and it is International Law that provided the right to landlocked states to raise their flags over their naval vessels. Also, first time in history it set the precedent to have jurisdictional right of landlocked states to have sea access. Further, the UN organizations has facilitated landlocked states under the International Law to gain this access.

Notes:

1.  United Nations Conference on Trade and Development 1965, retrieved from: https://unctadstat.unctad.org
2.  Barcelona Conference Convention, 1921, League of Nation treaties, (Geneva: UN archives) CRID118/323-324.
3.  United Nations Conference on Trade and Development 1965, UN Treaty series, (UN digital library, 1966)
4.  Seddon and David, A Political and Economic Dictionary of the Middle East, (London: Routledge, 2004), 15.
5.  APPTA 2010, retrieved from: APTTA.pdf (commerce.gov.pk)