Transit Right of Landlocked States under International

Law:"With Reference to Nepal's Transit Right via India

based on Transit Treaty between Nepal and India"

Term Paper in the subject of Public International Law

L.L.B. 3rd Year

11 May 2011

Hema Pandey

Kathmandu School of Law

Purbanchal University
Table of Contents

Table of Abbreviations

Table of Statutes

1. Introduction.............................................................................1
1.1. Background...................................................................1
1.2. Research Question.........................................................2
1.3. Rationale....................................................................... .2
1.4. Methodology.................................................................3
1.5. Limitations....................................................................3
1.6. Organization of study....................................................3
2. Jurisprudential Aspects of Free of Access to Sea and Freedom of
Transit of Land-locked State................................4
2.1. Juristic approach to Freedom Transit Right of Landlocked
States............................................................................................4
2.2. Transit right under International law is Customary International
Law...............................................................................................5
3. Transit Rights of Landlocked States under International Law and
Its Implication in case of Nepal based on Bilateral Agreements
with India.............................................................6
3.1. Free of Access and Freedom of Transit as per the United Nations
Convention on the Law of Sea, 1982...........................................6
3.2. Nepal's Transit Agreement with India..........................................8
a) Background..................................................................................8
b) Major Provisions of Transit Treaty 1991.....................................9
c) Analysis of the Transit Treaty....................................................11
4. Conclusion.............................................................................12
5. Bibliography
Table of Abbreviations

Art. : Aricle

Ed. : Edition

UNCLOS: United Nations Convention on Law of Sea, 1982

Table of Statutes

1) Transit Treaty between Government of India and His Majesty's Government

of Nepal, 1991
2) UNCLOS, 1982
3) Protocol to Transit Treaty between Government of India and His Majesty's
Government of Nepal, 1991

Bibliography
§ Arrawal, H.O., International Law and Human Rights (Allahabadh: Central Law
Publications 17th Ed. 2010).
§ Bhandari, Surendra, Indo-Nepal Trade Dynamics (2010), SSRN:
http://papers.ssrn.com/abstract=1630604 (accessed on 5 May 6, 2011).
§ Nepal, Vidya Nath, Policy Representation study on Transit Trade Policy of Nepal
(Singha Darbar Kathmandu: Economic Policy Network Ministry of Finance Oct 2006).
§ Rana, Ramesh Kumar, 'Right of access of land-locked state to the sea by the example of
bilateral agreement between land-locked state Nepal and port state-India' (University of
Tromso: A small Master's Thesis 2010).
§ Sharma, Gopal, International Law in Nutshell (Putalisadak, Kathmandu: Pairabi
Prakashan6th Ed. 2066).
§ Surya P. Subedi, Dynamics of Foreign Policy and Law 'A Study of Indo- Nepal
Relations'(New Delhi: Oxford University Press 2005).

1. Introduction
1.1.Background

International law from the very beginning of its development seems to maintain the
relations among the nations whose ultimate goal is to maintain peace, security and
progress for all people for which cooperation of them in common matters is the most.
 Modern developments and increasing globalization has made states independent upon
one-another's because of which no any nation can remain in isolation. Further, the
independency has been determined by the geographical construction of t he state as well.
For example, landlocked state needs cooperation of the costal state to enjoy the transit
facilities to promote its economy or international trade. Whereas, the progress in
International Law, has guaranteed the same right of transit in rel ation to free access to
and from the sea since the Sea has been accepted as the Common Heritage of all Mankind
and accessibility, equitable distribution and effective utilization of such common
resources irrespective of the geographical construction whethe r costal or landlocked is
the spirit of the same.

Landlocked state is defined as a state which has no sea -coast.1 There are 44 landlocked
states in the world, Africa has 15 states, Asia has 12 states, Europe has 15 states and
South America has 2 states. 2 Despite of several attempts made in international level for
securing the Transit rights of the landlocked states, the UN on the Law of Sea seems to be
more comprehensive and existing document for securing the same right and the rights
relating to access to and from the sea. The Convention in the part X, has incorporated the
provisions regarding the right of free access of sea also provides it in various forms such
as in the form of right to access to sea, identical treatment for vessels flying the flag of
land locked states to those of costal states, free and unrestricted transit, however it is once
3
again on the basis of principle of reciprocity. Nepal is also one of the la ndlocked state
located in Asia having no sea coast has right of free access to and f rom the sea based on
convenience to the nearest sea cost. The nearest seaport to Nepal is 1127km away in
Kolkata, India. Nepal could potentially use some of Bangladesh's ports, but Indian
Territory separate Nepal from Bangladesh. This makes Nepal virtually dependent on
India for her access to the sea and market. 4 Therefore, Nepal for the enjoyment of right of
free access to and from the sea and ultimately to exercise its transit right under
International Law has concluded the separate transit treaty with the renewal provision,

1
The UN Convention on the Law of Sea (10 December 1982), Art.124, 1(a).
2
http://www.wisegeek.com/what-countries-are-landlocked.htm (accessed on 7th 2011).
3
http://www.ub.uit.nomuninbitstreamhandle100373239thesis.pdfsequence=1(accessed on 5th May 2011).
4
Surya P. Subedi, Dynamics of Foreign Policy and Law 'A Study of Indo- Nepal Relations'(New Delhi: Oxford
University Press 2005),101.
however , Nepal has not been able to exercise the transit right solely being the landlocked
state but right is based on the principle of reciprocity.

1.2.Objective
The objective of this research paper is to explore the transit right of the landlocked
country under the UNCLOS and to observe the same right in case of Nepal based on
the Transit Agreements between Nepal and India.

1.3.Research Question
The Researcher while preparing this paper in the concerned subject matter has to deal
with the following research problems:
§ Whether the transit right of landlocked states in relation to the right of free access
to and from the sea exists in the international law or not?
§ Whether the transit r ight of landlocked state is entitle to the transit treaty or it
operates even in the absence of the transit treaty?
§ Whether the India is obliged to provide transit facilities to Nepal under
International Law or not?
§ Whether the Transit Agreements in betwee n Nepal and India has secured Nepal's
Transit right or not?

1.4.Rationale

The rationale behind the studying in the concerned subject matter is the solely
the interest of the researcher as being the student of Public International Law to
observe the Nepal's transit right under it as being a landlocked country.

1.5.Methodology
The researcher while preparing the paper has followed completely doctrinal research
methodology and has analyzed the fact.

1.6.Limitations
 The researched has prepared this paper on the ground of following limitations:
§ This paper has been prepared within very limited time, thus detail research could
not be done from the side of researcher.
§ This paper only gives the conceptual ideas about the subject matter.
§ This paper is based on reference only to the UN Convention on Law of Sea, 1982
while discussing the transit right of landlocked state under International Law
§ Nepal's transit right in relation to free access to and from the sea is only
discussed with the Transit Agreements in be tween Nepal and India, especially
focused on Transit Treaty, 1991.

1.6.organization of study

In this paper;

§ Chapter 1 deals with introductory part of the study,

§ Chapter 2 deals with the jurisprudential aspect of the free access to sea and
freedom of transit.

§ Chapter 3 deals with the transit right of landlocked state under International Law
and Its implication to Nepal.

§ Chapter 4 deals with conclusion.

2. Jurisprudential Aspects of Free of Access to Sea and Freedom of

Transit of Land-locked State

2.1.Juristic approach to Freedom Transit Right of Landlocked States

 Hugo Grotius (Father of International Law) advocated the rights of landlocked
states based on these major principles of Freedom of sea:

§ Res communis – Property of the community

§ Res nullius – Property of none
§ Res publica – Public property
§ Mare Liberum – Free sea / High sea / Open sea5

(Note: Though these principles have not guaranteed the freedom of transit or freedom of
access to sea, it refers the conception of freedom of transit and access to sea that is of
landlocked states.)

Likewise, Charles Cheny Hyde defended the right of landlocked country through the
conception of inoffensive passage based on principle of equity and justice.

George Scelle is of view that under public law landlocked st ates are provided “with an
unquestionable right of passage over territories separating them from the sea without
need of any treaty or in theory even of an international agreement.”

Ulpian says," The Sea is open to everybody by nature."

Clesus says," Sea like the air is common for all mankind."

Marcel Sibert says," High Sea is a common property for all to use."

E. Lauterpacht has focused the free transit right of the landlocked states with two
prospective, which are:

§ The state claiming the right must be abl e to justify it under considerations of
necessity or convenience.
§ The exercise of the right must cause 'no harm' or 'prejudice' to the transit state. 6

5
http://mohanbanjade.wordpress.com/2008/12/31(accessed on 22 April 2011).
6
Ibid.
 2.2.Transit right under International law is Customary International
Law

Customary International law is one of the important aspect in light of which

the legal status of the land-locked states in exercising the right to access to sea
and right of freedom of transit can be observed. Freedom of transit right of
land-locked country is now a part of customary inter national law, binding on
all states. This was the view advanced by several landlocked states including
Nepal, during UNCLOS III. 7 Supporting the view, Lauterpacht says, the right
of transit exists in international law provided that the state claiming the r ight
is able to justify it by reference to considerations of necessity or convenience
and exercise of the right does not cause harm or prejudice to the transit state.
Further he states, 'when circumstances warranting a claim to transit exist, the
legal right to freedom of transit then arises. It exists independently of treaty 8.'

Furthermore, art 125(1) of UNCLO S, 1982 having the provision of freedom

of transit through the territory of transit States by all means of transport and
reason of the world impleme ntation of the Convention as till the date ratified
9
by 160 states and has been enforced through the bilateral, regional
agreements and state practice, can now be said unquestionably as a part of
Customary International Law.
3. Transit Rights of Landlocked St ates under International Law and Its
Implication in case of Nepal based on Bilateral Agreements with
India

3.1.Free of Access and Freedom of Transit as per the United Nations

Convention on the Law of Sea, 1982.

7
Subedi (n 4), 102.
8
Ibid.
9
http://www.absoluteastronomy.com/topics/United_Nations_Convention_on_the_Law_of_the_Sea (accessed on 6
May 5, 2011).
 United Nations Convention on the Law of the Sea, 1982 - Part X has incorporated
the provision regarding the freedom of transit with the topic "Right of Access of
Land-locked States to and from the Sea and Freedom of Transit". The transit rights
with the su bstantial and procedural safeguards, which have been recognized by the
Convention, can be listed as follows:
v 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 incl uding those relating to the
freedom of the high seas and the common heritage of mankind. To this end, land -
locked States shall enjoy freedom of transit through the territory of transit States by
all means of transport.10
v 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.11
v 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.12
Comment: These above mentioned provisions of Article 25 of UNCLOS does four
key effects. First , it guarantees the right of free access to and from the sea to land -
locked states. Second, it also guarantees to them freedom of transit without any
prerequisites if this freedom is to be exercised in relation to the right of free access to
and from the sea. Third, it does not require a bilateral treaty with the transit state to be
able to exercise the right of free access and freedom of transit. Only the derailed
provisos of the technical character regarding the terms and modalities for exercising
freedom of transit have to be agreed upon with the transit state. However, actual right
to exercise this freedom is itself no longer dependent on a bilateral agreement with
the transit state, forth, breaking from the Barcelona tradition, it eliminates the
requirement of reciprocity.13

10
United Nations Convention of the Law of Seas (10 December 1982),art.125(1)
11
Ibid, art.125(2)
12
Ibid, art.125(3)
13
Subedi (n 4), 68.
 v Traffic in transit shall not be subject to any customs duties, taxes or other charges
except charges levied for specific services rendered in connection with such traffic. 14
v Means of transport in transit and other facilities provided for and used by land -locked
States shall not be subject to taxes or charges higher than those levied for the use of
means of transport of the transit State.15
v For the convenience of traffic in transit, free zones or other customs facilities may be
provided at the ports of entry and exit in the transit States, by agreement between
those States and the land-locked States.16
v Where there are no means of transport in transit States to give effect to the freedom of
transit or where the existing means, including the port installations and equipment,
are inadequate in any respect, the transit States and land -locked States concerned may
cooperate in constructing or improving them.17
v Transit States shall take all appropriate measures to avoid delays or other difficulties
of a technical nature in traffic in transit.18
v Should such delays or difficulties occur, the competent authorities of the transit States
and land -locked States concer ned shall cooperate towards their expeditious
elimination?19
v Ships flying the flag of land -locked States shall enjoy treatment equal to that
accorded to other foreign ships in maritime ports.20
v This Convention does not entail in any way the withdrawal of tra nsit facilities which
are greater than those provided for in this Convention and which are agreed between
States Parties to this Convention or granted by a State Party. This Convention also
does not preclude such grant of greater facilities in the future. 21

3.2.Nepal's Transit Agreement with India

14
Ibid, art.127(1)
15
Ibid, art.127(2)
16
Ibid, art. 128
17
Ibid, art.129
18
Ibid, art.130(1)
19
Ibid, art.130(2)
20
Ibid, art.131
21
Ibid, art.132.
 d) Background
Nepal had got the nearest transit point through India since the British
22
regime as per the Friendship treaty of 1923. Nepal and India signed a
bilateral comprehensive treaty including trade and transit in the year 1950.
The Trade and Transit treaty was renewed in the year 1960 and 1971.
When this treaty expired on 31 Oct 1970, Nepal wished to conclude two
Treaties, one go verning the right of transit and the other dealing with
bilateral trade. This was after the adoption of the 1965 New York
Convention on Trade and Transit of Landlocked States, which recognizes
in its preamble transit as a right of landlocked states. India, however,
wanted both these subjects to be dealt with within a single treaty,
maintaining that both were interrelated . As the differences could not be
sorted out, Nepal proposed that the status quo of the expired treaty be
maintained for another year to en able both sides to hold more talks
towards concluding a new treaty. India declined this plea too and,
according to Nepalese officials resorted to pressure tactics by imposing
restrictions on the export -import trade with Nepal and even stopped the
supply of essential commodities to her. This action on India's part was
characterized in Nepal as 'economic blockade'.23

The trade a nd transit treaty was bifurcated and separate transit treaty was
signed in year 1978. The new transit treaty recognized the transit right of
landlocked country which was separate and permanent in nature than
bilateral trade. In the year 1989, the transit treaty of 1978 was unilaterally
abrogated by India refusing to sign separate transit treaty. However, in
1991 Nepal and India continued separate transit treaty with the major
provisions of renewal. In 1999 the transit treaty was signed with the

22
Bhandari, Surendra, Indo-Nepal Trade Dynamics (2010). Available at SSRN:
http://papers.ssrn.com/abstract=1630604 (accessed on 5 May 6, 2011).
23
Subedi (n 4), 109.
 provision of automatic renewal after every seven years. 24 The treaty of
transit was last renewed for seven years in March 2006 25 .

e) Major Provisions of Transit Treaty 1991

The Treaty of Transit signed on 6 Dec 1991 was second separate transit treaty
concluded by Nepal with India and the first one con cluded after the overthrow
of the Panchayet system. The 1978 transit treaty was the first treaty between
these two countries solely concerned with transit. In the preamble, it has been
mentioned that the government of India and Nepal animated by the desire to
maintain, develop and strengthen the existing the friendly relations and
cooperation between two countries, recognizing that Nepal as a land -locked
country access to and from the sea to promote its international trade and the
need to facilitate the traffic in transit through their territories 26 have concluded
Treaty of Transit, 1991. The major Provisions which confer Nepal's transit
rights by the treaty are discussed as follows:

Article 1 27 of the treaty though has conferred the transit facility to Nepal has
lacked to recognize that Nepal as a landlocked country has right of free access
to and from the sea or needs access to and from the sea to enjoy the self -
determination of the high sea. This has made Nepal's transit right as matter of
reciprocity which is not reliable with the concept of right free of access of
land-locked state. According to art. 125 of the UNCLOS, the right of free
access to and from the sea is not subject to reciprocity but is unilaterally and
solely available to land -locked states. 28 Whereas Article 2 29
additionally has

24
http://www.mof.gov.np/economic_policy/pdf/Policy_Reorientation.pdf(accessed on 6 May 6, 2011).
25
http://www.indianembassy.org.np/trade-and-commerce/trade(accessed on 30 April 20)
26
Treaty of Transit between Government of India and His Majesty's Government of Nepal(6 December 19191).
27
The contracting parties shall to 'traffic in transit' freedom if transit across their respective territories through routes
mutually agreed upon. No distinction shall be made which is based on flag of vessels, the places of origin, departure,
entry, exit, destination, ownership of goods and vessels.
28
http://www.ub.uit.nomuninbitstreamhandle100373239thesis.pdfsequence=1 (accessed on 5 May 7, 2011).
29
(a)Each Contracting Part shall have the right to take all indispensible measures to ensure that suchfreedom,
accorded by it on its territory does not in any way infringe its legitimate interests of any kind.
(b) Nothing in this treaty shall prevent either Contracting Party from taking any measures which may be necessary
for the protection of its essential security interests.
 incorporated the provision regarding taking all indispensable measures for its
legitimate interest and taking necessary measures for the protection of its
essential security interests. Use of the vague words in this art. 'all
indispensable measures' and 'legitimate interests of any kind' might allow an
obdurate government, especially during friction between two countries, to
impose unnecessary limitations on Nepal's transit rights : they should be more
specific in 'measures'. In the lack of any sign of what may be regarded as
'indispensable measure' and 'legitimate interests', India may reflect on itself
free to impose any restrictions deemed 'necessary' by it to defend its
'legitimate interests'. In reality, the limitations imposed under a rt. 2 (b)
suffices to cover the key purpose of limitations. It is arbitrary, undesirable
and ambiguous, the limitation imposed under art. 2 (a). As the boundaries
imposed under art. 8 and 9 of the transit treaty are intended to protect those
interests of India which could properly be called 'legitimate interests'. It is not
30
apparent what other interests are intended to be protected under art. 2 (a).

31
Article 3 of the treaty defines the term 'traffic in transit'; however, the
definition has not included the persons, accompanied baggage, and most
essentially the means of transport. Article 4 of the treaty explains about
'traffic in transit' which exempts from custom duties and from all transit duties
or other charges except reasonable charges for transportation and such other
charges as are commensus with the cost of services rendered in respect of
such transit.

30
Subedi (n 4), 112.
31
The term 'traffic in transit' means the passage of goods including unaccompanied baggage across the territory of a
contracting party when the passage is the portion of a complete journey which begins or terminates within a territory
of other contracting party. The transshipment, warehousing, breaking bulk and change in the mode of transport of
such goods as well as the assembly ,dis-assembly or re-assembly of machinery and bulky goods outside the
definition of 'traffic in transit' provided any such operation is undertaken solely for the convenience of
transportation. Nothing in this article shall be construed as imposing an obligation on either contracting party to
establish or permit the establishment of the permanent facilities on its territory for suchassembly, dis- assembly or
re-assembly.
 Article 5 32 of the treaty has incorporated provi sion regarding the points of
entry or exists as per the agreement done by contracting parties and also as per
the laws and regulations prevailing in either country for the convenience of
traffic in transit. Article 6 of the treaty has provision regarding t he procedure
on traffic in transit which can be as prescribed by Protocol annexed by the
treaty and mutual agreement in contracting parties.
33
Article 7 of the treaty has provided opportunity to Nepal to enjoy the
freedom of high sea where the condition is provided that merchant ship sailing
under the flag of Nepal shall be accord ed, subject to Indian laws and
regulations, treatment no less favorable than that accord to ships of any other
foreign country.
34 35
Article 8 and Article 9 have made several restrictions in enjoying the
freedom of transit accord to traffic in transit however, t hese restrictions are
reasonable, justifiable which is for the maintenance of the international peace
itself since it talks about the protection of th e public morality, human,
animals, plants and also for preventing the illegal activities which accounts
crime, like exporting and importing narcotics and psychotropic substances.
f) Analysis of the Transit Treaty
Nepal as being the landlocked country and also the signatory country
to the UNCLOS and has ratified the same convention 2nd November

32
For convenience of traffic in transit the contracting parties agree to provide at point or points of entry or exit, on
such terms as may be mutually agreed upon and subject to theirrelevant laws and regulations prevailing in country,
warehouses or sheds, for the storage of traffic in transit awaiting customs clearance before onward transmission.
33
In order to enjoy the freedom of high seas, merchant ships sailing under the flag of Nepal sha ll be
accorded, subject to Indian laws and regulations, treatment no less favorable than that accorded to ships of
any other foreign country in respects of matter relating to navigations, entry in to and departure from the
ports, use of ports and harbor facilities as well as loading and unloading dues, taxes and other levies except
that the provision of this Article shall not be extend to coastal trade.
34
Notwithstanding the foregoing provisions, either Contracting Party may maintain or introduce such measures or
restrictions as are necessary for the purpose of: i) protecting public morals, ii) protecting human, animal and plant
life, iii) safeguarding and implementation of the laws relating to import and export of gold and other silverbullion;
and safeguarding such other interests as may be mutually agreed upon.
35
Nothing in this Treaty shall prevent either Contracting Party from taking any measures which may be necessary in
pursuance of general international conventions, whether already in existence or concluded hereafter, to which it is a
party relating to transit, export or import of a particular kinds of article such as narcotics and psychotropic
substances or in pursuance of general international conventions intended to prevent infringement of industrial,
literary, or artistic property or relating to false marks, false indication of foreign or other methods of unfair
competition.
 1998. As mentioned earlier that right of free access to and from the
sea has already been recognized as the right provided without any
prerequisites by the Conventi on itself, there is no need of any India
recognizing Nepal as a land-locked state in one hand and in other hand
it is not to be based on principle of reciprocity since India is not a
landlocked country and it is has not to be dependent upon Nepal for its
international trade of for access to sea. The provisions of the treaty
seem to be based on the same principle which is not justifiable for
India that Nepal's right of free access to and from the sea or in fact
transit right to be dependent on Nepal's granti ng parallel facilities to
India which is not landlocked. 36 However, Nepal has secured 15 transit
routes for traffic in Transit 37 though Nepal has exercised only 7 routes
presently. And, also India somehow has shown its liberalism by
providing transit facilities through Radhikapur to Nepal by which
Nepal has access to International Trade with Bangladesh and other
countries. Moreover, separate transit treaty from other bilateral issues
is one of the important achievements of Nepal with the provis ion of
automatic renewal provision in every 7 years as mentioned.

4. Conclusion
In conclusion of this paper, it can be said that the transit right of the landlocked
state in relation to the right of free access to and from the sea has been guaranteed

36
http://www.mof.gov.np/economic_policy/pdf/Policy_Reorientation.pdf (accessed on 6 May 6, 2011).
37
Protocol to the Treaty of Transit between India and Nepal, with reference to Article 6.
under International Law, where the sea and its resources are recognized as the
common heritage of all humankind. For the propose of f air and equal access to
such resources and for the maintenance of international trade and other relations
among the nations irrespective of geographical location whether costal state or
landlocked one, the UNCLOS seems to be more comprehensive however, the
principle of reciprocity is still shortcoming aspect within it to secure the transit
rights of the landlocked state. Nepal, one of the landlocked states has to be fully
dependent on India's sea ports for the convenience of its enjoyment of the transit
facilities because of its geographical location. Nepal, in lesser or greater extend
enjoying the transit right through the Indian sea port and territories based on
Transit Agreement however it is in the form of reciprocity principle which seems
unjustifiable that India providing transit facilities to Nepal with the same
condition Nepal also provide the same though practically India is not doing so.
Thus, it seems challenge to Nepal to secure the full fledged transit right in relation
to right of free access to and from the sea that is to be based on negotiation in
international forum but maintaining the friendly relationship with India at the
same time.