chapter 18

Forgotten Rights? Landlocked States and the Law

of the Sea

Helmut Tuerk*

I Introduction1

On 10 December 2012 the thirtieth anniversary of the opening for signature of

the 1982 United Nations Convention on the Law of the Sea (unclos)2 was
commemorated at United Nations Headquarters in New York. This occasion
was a most propitious moment to look back at past achievements as well as to
reflect on the future evolution of the law of the sea. In this context the rights of
landlocked States recognized by the Convention, their historical development
and their realization over the last three decades also merit particular consider-
ation. In particular, the question needs to be asked whether these rights, or at
least some of them, have perhaps fallen into oblivion.
unclos, which entered into force on 16 November 1994, has rightly been
called a ‘Constitution for the Oceans’,3 as it provides a comprehensive legal
framework to regulate all ocean space, its uses and resources. As of 1 February
2013, 165 States, including 28 landlocked countries and the European Union,
were parties; another eight landlocked States have signed the Convention but

* Judge of the International Tribunal for the Law of the Sea in Hamburg, serving as Vice-
President from 2008 to 2011; Member of the Austrian delegation to the Third United Nations
Conference on the Law of the Sea, representing his country also at subsequent meetings and
negotiations in the field.
1 This article is essentially based on H. Tuerk, Reflections on the Contemporary Law of the Sea,
Publications on Ocean Development, Chapter iv, Vol. 71, V. Lowe, R. Churchill (gen. eds.),
Martinus Nijhoff Publishers, Leiden/Boston (2012) and H. Tuerk, “The Landlocked States and
the Law of the Sea”, 40(1) Revue Belge de Droit International, pp. 91–112 (2007). Opinions
expressed are strictly personal.
2 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3 (hereinafter
referred to as unclos), available at: <http://www.un.org/Depts/los/convention_agreements/
texts/unclos/unclos_e.pdf> (1 February 2013).
3 T.T.B. Koh, “A Constitution for the Oceans, Remarks made by the President of the Third
United Nations Conference on the Law of the Sea”, in: Official Text of the United Nations
Convention on the Law of the Sea with Annexes and Index, at xxxiii (1983).

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004245624_019

338 Tuerk

so far have not adhered to it.4 At present, the total number of landlocked States
with United Nations membership stands at 445 – 17 in Africa, 13 in Europe, 12 in
Asia and two in South America.6 It is to be noted that none of the Central Asian
landlocked States has become a party to unclos.
Although the Convention tries to strike a careful balance between the rights
of coastal States and the freedoms enjoyed by all States, whether coastal or
landlocked, it is quite obvious that the pendulum has clearly swung from the
principle of mare liberum to that of mare clausum by the recognition of sub-
stantial sovereign rights and jurisdiction of coastal States over the most valu-
able areas of the seas.7 unclos in fact constitutes the greatest expansion of
sovereign rights and jurisdiction in history,8 substantially limiting the rights of
landlocked States to maritime resources.
It should be recalled that the oceans and their marginal seas cover almost
71 per cent of the Earth’s surface and have since earliest times played a significant
role in the development of humanity, not only as a means of communication,
but also as a source of living and non-living resources as well as an important
object of scientific research.9 The fact is, however, often overlooked that not
just coastal but also landlocked States have maritime interests. Thus, it is by no
means general knowledge that besides having pleasure craft flying their flags
on the seas, quite a number of landlocked countries10 – Azerbaijan, Bolivia,
Czech Republic, Ethiopia, Kazakhstan, Laos, Luxembourg, Moldova, Mongolia,
Paraguay, Slovakia, Switzerland and Turkmenistan – also have ocean-going
merchant vessels under their own flags, and Bolivia furthermore has a small

4 See status of the Convention, available at: <http://www.un.org/Depts/los/reference_files/

chronological_lists_of_ratifications.htm> (1 February 2013).
5 See landlocked States with un membership: <http://www.un.org/en/members/>
(1 February 2013).
6 See status of the Convention (note 4).
7 See S. Kaye, “Freedom of Navigation in a Post 9/11 World: Security and Creeping
Jurisdiction”, in: The Law of the Sea – Progress and Prospects, D. Freestone, R. Barnes &
D.M. Ong (eds.), Oxford University Press, Oxford/New York, pp. 347–348 (2006).
8 See also J.N. Moore, “Conservatives and the Law of the Sea Time Warp”, The Wall Street
Journal (8 July 2012).
9 See R.N. Hass, “Foreword” to: S.G. Borgerson, The National Interest and the Law of the Sea,
Council on Foreign Relations, Council Special Report No. 46, at vii (May 2009), ­available at:
<http://www.cfr.org/content/publications/attachments/LawoftheSea_CSR46.pdf>
(1 February 2013).
10 World Fleet Statistics 2011 (compiled by Lloyd’s Register – ihs Fairplay), Table 1A –
Merchant Fleets of the World – by Country of Registration, available at: <http://www
.emsa.europa.eu> (1 February 2013).