THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROJECT
On
Analyzing landlocked states' transit rights: Nepal's case via the Nepal-India transit
treaty.

submitted by
Payal More
Enrolment Number: A-2357
2021BALLB60
VI-Semester
B.A.LL.B.(Hons.)

submitted to
Asst. Professor Amit Kumar
Date of submission: 11th March 2024
 DECLARATION

“I, Payal More D/o Dhyan Singh More Roll Number 2021BALLB60 Enrolment Number A-
2357 do hereby declare that the Project titled "Analyzing landlocked state’s transit rights:
Nepal case via the Nepal-India transit treaty " is an outcome of my own independent research
endeavour and has been carried out under the guidance of. Literature relied on by me for the
purpose of this Project has been fully and completely acknowledged in the footnotes and
bibliography. The Project is not plagiarised and all reasonable steps have been taken to avoid
plagiarism. Similarity Index as per the Turnitin Report is____%. In case, my Project is found
to be plagiarised, the course teacher shall have the full liberty to ask me to revise the Project.
If I fail to comply with the instructions of the teacher, my Project may be referred to the
Committee Against Use of Unfair Means and I will comply with the decision of the said
Committee.”

Date: 11th March, 2024 Payal More

Place: Bhopal Enrolment Number: A-2357
Roll Number: 2021BALLB60”
 TABLE OF CONTENTS

DECLARATION......................................................................................................................I

TABLE OF CONTENTS.........................................................................................................2

INTRODUCTION:..................................................................................................................2

STATEMENT OF PROBLEM...............................................................................................4

HYPOTHESIS..........................................................................................................................4

METHODOLOGY...................................................................................................................4

RESEARCH QUESTION.......................................................................................................4

OBJECTIVE OF STUDY........................................................................................................5

REVIEW OF LITERATURE.................................................................................................6

SUBSTANTIVE ANALYSIS AND DISCUSSION...............................................................7

1. Juridical Elements Concerning Unrestricted Sea Access And Transit Liberty For
Landlocked States....................................................................................................................8

1.1 Juristic Approach To Freedom Transit Rights Of Landlocked States...........................8

1.2 Transit Rights Under International Law In Customary International Law...................9

2. Transit Rights Of Landlocked States In International Law And Their Implications:

A Case Study Of Nepal Through Bilateral Agreements With India.................................11

2.1 Unrestricted Access And Transit Freedom According To The United Nations
Convention On The Law Of The Sea, 1982.............................................................................11

2.2 Nepal’s Transit Treaty With India................................................................................12

CONCLUSION.......................................................................................................................16

BIBLIOGRAPHY..................................................................................................................17
 INTRODUCTION:

Since its inception, international law has aimed to foster relationships among nations, with
the overarching objective of preserving peace, security, and progress for all peoples.
Cooperation in shared matters has become increasingly vital due to modern developments
and globalization, rendering states interdependent and eliminating the possibility of isolation.
This interdependence is influenced by a state's geographical makeup; for instance, landlocked
states rely on cooperation from coastal states for transit facilities to facilitate their economy
and international trade.

Progress in international law has ensured equal transit rights, including free access to and
from the sea, as the sea is recognized as the common heritage of humanity. Regardless of a
state's coastal or landlocked status, the principles of accessibility, fair distribution, and
efficient utilization of maritime resources are upheld.

A landlocked state is defined as one lacking a sea coast, with 44 such states worldwide,
distributed across Africa, Asia, Europe, and South America. Despite various international
efforts to secure transit rights for landlocked states, the United Nations Convention on the
Law of the Sea stands out as the most comprehensive framework, incorporating provisions
for free sea access and equal treatment for vessels from both landlocked and coastal states.

Nepal, situated in Asia and lacking direct sea access, benefits from the right of free access to
and from the sea based on convenience to the nearest coast, approximately 1127 km away in
Kolkata, India. While Nepal could potentially utilize ports in Bangladesh, its geographical
separation from Bangladesh by Indian territory necessitates reliance on India for sea access
and market connectivity. Consequently, Nepal has negotiated a separate transit treaty with
renewal provisions to exercise its transit rights under international law, although this right is
contingent upon the principle of reciprocity rather than solely due to its landlocked status.

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 STATEMENT OF PROBLEM

Does the Nepal-India transit treaty, despite Nepal's UNCLOS-mandated sea access right as a
landlocked nation, rely on reciprocity? Whether questions arise regarding the justification for
reciprocity, especially considering India's non-landlocked status with independent sea access.
Despite securing multiple transit routes, does uncertainty linger over the effectiveness and
sustainability of Nepal's transit arrangements?

HYPOTHESIS

The Nepal-India transit treaty, based on reciprocity, might not be essential for Nepal's access
to global trade routes. It could limit Nepal's autonomy, relying heavily on India for sea
access. The study investigates its impact on Nepal's sovereignty and trade ties, suggesting
unilateral measures and international law provisions as alternatives to secure Nepal's transit
rights effectively.

METHODOLOGY

This Project is conducted through a method of literature review and research that is the
analysis, criticism and commentary upon the author's book and taking into account some
articles related to the topic as well as secondary sources mentioned therein.

RESEARCH QUESTION

1. Does international law recognize the transit rights of landlocked states, specifically
regarding free access to and from the sea?
2. Whether landlocked states have transit rights regardless of the existence of a formal
transit treaty?
3. Whether India is obligated under international law to provide transit facilities to
Nepal?
4. Whether the Transit Agreements between Nepal and India have effectively secured
Nepal's transit rights?

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 OBJECTIVE OF STUDY

1. UNCLOS recognizes transit rights for landlocked countries, detailing provisions for
access to maritime territories.
2. Nepal-India transit agreements showcase practical implementation of Nepal's transit
rights.
3. Comparisons between UNCLOS and bilateral agreements reveal similarities,
differences, and areas for improvement.
4. Challenges faced by Nepal in exercising transit rights highlight limitations and
complexities.
5. Recommendations aim to enhance transit rights protection, drawing insights from
Nepal's experiences and bilateral arrangements.

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 REVIEW OF LITERATURE

1. Glassner, Martin Ira, “TRANSIT RIGHTS FOR LAND-LOCKED STATES AND THE
SPECIAL CASE OF NEPAL.”1: Glassner's paper examines transit rights, with a focus on
Nepal's circumstances as a landlocked nation. It delves into legal frameworks governing
transit, challenges for landlocked states, and implications for Nepal's trade. The study aims to
provide insights and recommendations to enhance Nepal's transit arrangements and foster its
economic development.

2. Taneja, Nisha; Bimal, Samridhi; Dayal, Isha, “AN ANALYSIS OF NEPAL'S

TRANSIT THROUGH INDIA” (2016)2: The literature review examines transit treaties
between Nepal and India, identifying issues like documentation, transhipment, sensitive
items, bank guarantees, and infrastructure. It discusses the relevance of the WTO Trade
Facilitation Agreement and proposes recommendations to streamline transit, aligning
arrangements with international standards for smoother trade and economic growth in Nepal.

3. Khanal, G. (2017). “RIGHT OF ACCESS OF LAND-LOCKED STATES TO AND

FROM THE SEA: CASE OF NEPAL.”3 The literature highlights challenges faced by
landlocked developing countries (LLDCs) in accessing international markets due to lack of
sea access, high transit costs, and dependency on transit states. Legal frameworks like the
LOSC provide rights, but their implementation depends on political will, as seen in Nepal's
reliance on India for sea access.

1
Glassner, Martin Ira. “Transit Rights for Land-Locked States and The Special Case Of Nepal.” World Affairs,
Vol. 140, No. 4, 1978, Pp. 304–14. Jstor
2
Taneja, Nisha; Bimal, Samridhi; Dayal, Isha (2016): “An analysis of Nepal's transit through India”, Working
Paper, No. 316, Indian Council for Research on International Economic Relations (ICRIER), New Delhi
3
Khanal, G. (2017). “Right Of Access Of Land-Locked States To And From The Sea: Case Of Nepal.”
In United Nations – The Nippon Foundation Of Japan Fellowship Programme.

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 SUBSTANTIVE ANALYSIS AND DISCUSSION

The transit rights of landlocked states, exemplified by Nepal's case and its transit treaty with
India, unveil a complex legal and geopolitical landscape. Being geographically landlocked
poses inherent challenges for accessing international trade routes and maritime resources, as
demonstrated by Nepal's situation, surrounded by India on three sides.

The Nepal-India transit treaty acts as a crucial legal framework governing Nepal's access to
sea ports and transit routes for international trade. However, a deeper analysis of the treaty
reveals several complexities and implications for Nepal's transit rights. The treaty emphasizes
reciprocity, tying Nepal's access to transit routes to India's provision of similar facilities.
While theoretically equitable, this principle presents practical challenges for landlocked states
like Nepal, disproportionately reliant on India's goodwill for transit rights.

Furthermore, the treaty's provisions may not fully align with international legal standards
regarding landlocked states' transit rights. While recognizing Nepal's landlocked status, the
treaty may not guarantee unconditional transit rights as per customary international law and
UNCLOS. The duration and renewal terms of the treaty introduce uncertainties for Nepal's
transit rights and economic planning, potentially influenced by geopolitical dynamics and
bilateral relations between Nepal and India. Additionally, transit route provisions may not
adequately address Nepal's needs, potentially impeding trade flows and economic growth.

In conclusion, analyzing Nepal's transit rights through the Nepal-India transit treaty
underscores the challenges faced by landlocked states in securing equitable access to sea
routes and transit facilities. Addressing issues such as reciprocity, treaty renewal, and transit
route accessibility is essential to ensure fair and effective transit rights for landlocked states
like Nepal. Continued review and potential reforms are crucial to navigate the complexities of
transit rights for landlocked nations.

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 1. JURIDICAL ELEMENTS CONCERNING UNRESTRICTED SEA ACCESS AND TRANSIT
LIBERTY FOR LANDLOCKED STATES.

1.1 JURISTIC APPROACH TO FREEDOM TRANSIT RIGHTS OF LANDLOCKED STATES

The juristic approach to the freedom of transit rights for landlocked states encompasses a
comprehensive examination of legal principles governing the movement of goods and people
across territories. This legal framework is crucial for landlocked states, which lack direct
access to the sea, as it determines their ability to engage in international trade and access
essential resources.

Central to this approach are the principles advocated by prominent legal scholars throughout
history. Hugo Grotius, often hailed as the Father of International Law, laid the groundwork
by championing concepts such as Res communis – Property of the community, Res nullius –
Property of none, Res publica – Public property and Mare Liberum (free sea), which
underscored the idea of open access to the sea as a common heritage. Grotius's principles
emphasized the communal ownership of maritime resources, highlighting the importance of
ensuring equitable access for all states, regardless of their geographic location.

Expanding upon Grotius's groundwork, later legal theorists like Charles Cheney Hyde
elaborated on the notion of transit freedom. Hyde's concept of non-invasive passage stressed
fair and respectful movement of goods and individuals across borders, grounded in principles
of fairness and international respect.

Furthermore, George Scelle emphasized landlocked states' inherent rights under public law,
affirming their indisputable right to cross neighboring territories to access the sea. This
viewpoint underscores landlocked states' legal entitlement to transit routes, regardless of
formal treaties or agreements.

Moreover, the writings of Ulpian, Celsus, and Marcel Sibert further underscore the
universality of access to maritime resources. Their assertions that the sea is open to all by
nature and belongs to humanity as a whole emphasize the fundamental principle of collective
ownership and shared access to vital resources.

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In contemporary legal discussions, scholars such as E. Lauterpacht have stressed the need to
justify transit rights by considering necessity and convenience, while also ensuring that their
exercise does not harm or disadvantage transit nations. This viewpoint mirrors a modern
comprehension of the intricate balance between landlocked states' rights and transit nations'
interests.

In summary, the juridical examination of transit rights for landlocked states encompasses
diverse legal principles and scholarly viewpoints, all aimed at guaranteeing fair access to
crucial maritime routes and resources in our interconnected world.

1.2 TRANSIT RIGHTS UNDER INTERNATIONAL LAW IN CUSTOMARY INTERNATIONAL LAW

Transit rights under customary international law are crucial in defining the legal status of
landlocked states regarding their sea access and transit freedom. These rights have developed
to hold significant weight within customary international law, imposing binding
responsibilities on all states. This viewpoint gained prominence during the United Nations
Convention on the Law of the Sea (UNCLOS) III, where several landlocked states, including
Nepal, pushed for the acknowledgment of transit rights.

Supporting this stance, legal scholar Lauterpacht asserted that transit rights are inherent in
international law, provided that the claiming state can justify them based on considerations of
necessity or convenience, without causing harm or prejudice to transit states. Importantly, he
emphasized that such rights exist independently of formal treaties, underlining their
foundational status in international legal norms.

Additionally, Article 125(1) of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS) specifically guarantees the right of transit through the territory of transit states
using all modes of transportation. With UNCLOS ratified by 160 states and reinforced
through bilateral, regional agreements, and state practice, this provision has firmly
established itself as a fundamental element of customary international law.

In essence, transit rights under customary international law represent a codified framework
that ensures equitable access to maritime routes and territories for landlocked states. By

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recognizing these rights as part of customary international law, the international community
reaffirms its commitment to fostering cooperation and facilitating the economic development
of landlocked nations.

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 2. TRANSIT RIGHTS OF LANDLOCKED STATES IN INTERNATIONAL LAW AND THEIR
IMPLICATIONS: A CASE STUDY OF NEPAL THROUGH BILATERAL AGREEMENTS
WITH INDIA.

2.1 UNRESTRICTED ACCESS AND TRANSIT FREEDOM ACCORDING TO THE UNITED

NATIONS CONVENTION ON THE LAW OF THE SEA, 1982.

The United Nations Convention on the Law of the Sea, 19824, specifically Part X, addresses
the critical issue of freedom of access and freedom of transit for landlocked states. This
provision, entitled "Right of Access of Land-locked States to and from the Sea and Freedom
of Transit," establishes fundamental principles and procedural safeguards to ensure the
realization of transit rights for landlocked nations.

Key provisions of Article 25 of UNCLOS outline the following effects:

1. It affirms the inherent entitlement of landlocked states to unrestricted passage to and

from the sea.

2. It guarantees freedom of transit across transit states' territories for all modes of
transportation without any prerequisites.

3. While the specific terms and procedures for exercising transit freedom are subject to
agreements between landlocked and transit states, the actual right to exercise this
freedom does not rely on bilateral agreements.

4. It mandates that transit traffic shall not be subjected to customs duties, taxes, or other
charges, except for particular services provided.

Furthermore, it ensures that landlocked states' means of transport and facilities are not
subjected to higher taxes or charges compared to those imposed in transit states.

Additionally, the Convention permits the establishment of free zones or customs facilities at
entry and exit ports in transit states to facilitate transit traffic. In cases where existing
4
United Nations. (n.d.). United Nations Convention on the Law of the Sea. In United Nations Convention on
the Law of the Sea (p. 21). https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf

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transportation infrastructure is insufficient, collaboration between transit and landlocked
states is encouraged for constructing or enhancing facilities.

Transit states must implement suitable measures to prevent delays or technical complications
in transit traffic. Cooperation between competent authorities of transit and landlocked states
is essential for the prompt resolution of any such issues.

Moreover, the Convention ensures equal treatment for ships under the flag of landlocked
states in maritime ports, ensuring parity with other foreign vessels.

Crucially, the Convention does not diminish existing transit facilities agreed upon by states or
granted by a state party, nor does it prevent the provision of enhanced facilities in the future.
It eliminates the need for reciprocity, aligning with the Barcelona tradition.

In conclusion, the provisions of UNCLOS regarding freedom of access and transit establish a
comprehensive framework to protect the transit rights of landlocked states, fostering fair
access to maritime routes and facilities vital for their economic development and international
trade.

2.2 NEPAL’S TRANSIT TREATY WITH INDIA

a) Background
Nepal's transit association with India dates back to the British colonial era and was
formalized through the Friendship Treaty of 1923. Later, in 1950, Nepal and India established
a comprehensive bilateral agreement covering trade and transit, with subsequent renewals in
1960 and 1971 to ensure continuous transit arrangements.

However, tensions arose when the treaty expired in October 1970. Nepal aimed to separate
transit rights from bilateral trade agreements, especially following the 1965 New York
Convention on Trade and Transit of Landlocked States, which emphasized transit as a
fundamental right for landlocked nations. India, however, insisted on addressing both issues
within a single treaty, arguing for their interconnectedness.
Failing to resolve these differences, Nepal suggested maintaining the expired treaty's status

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quo for another year to facilitate further negotiations. India rejected this proposal, leading to
strained relations characterized by what Nepal perceived as an "economic blockade" due to
trade restrictions and the withholding of essential goods.

In reaction, Nepal separated the trade and transit treaty, concluding a distinct transit
agreement in 1978. This fresh treaty explicitly recognized the transit rights of landlocked
nations as separate and enduring, independent of bilateral trade agreements.

However, in 1989, India unilaterally terminated the 1978 transit treaty, declining to sign a
separate accord. Despite this setback, Nepal and India eventually resumed separate transit
arrangements in 1991, with provisions for renewal. The 1999 transit treaty included an
automatic renewal clause every seven years.

The Treaty of Transit was extended for an additional seven years, starting from January 5,
2006, and renewed again in January 2013 without introducing new provisions. This bilateral
Transit Treaty between Nepal and India has now been renewed for the fourth time, for
another seven years from January 2020.

b) Key Provisions of Transit Treaty 19915

The Transit Treaty signed on December 6, 1991, represented the second distinct transit
agreement between Nepal and India, following the dissolution of Nepal's Panchayat system.
The preamble of the treaty underscores the mutual aspiration to enhance friendly relations
and cooperation between the two nations, acknowledging Nepal's status as a landlocked
country and the significance of facilitating its international trade through sea access.

The treaty's major provisions, outlining Nepal's transit rights, are as follows:

o Article 1 of the treaty provides transit facilities to Nepal but fails to acknowledge
Nepal's intrinsic right of unrestricted passage to and from the sea. This absence of
acknowledgment transforms Nepal's transit rights into a reciprocal matter,
conflicting with the notion of unconditional access for landlocked states as

5
Treaty of Trade and Transit. (n.d.). Ministry of External Affairs, Government of
India. https://www.mea.gov.in/bilateral-documents.htm?dtl/6379/Treaty+of+Trade+and+Transit

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 outlined in international law.6

o Article 2 of the treaty includes provisions for India to take measures necessary to
protect its legitimate interests and essential security. However, the vague language
used in this article, such as "all indispensable measures" and "legitimate interests
of any kind," leaves room for arbitrary restrictions on Nepal's transit rights,
especially during periods of bilateral tension. Clarity and specificity in defining
these measures are essential to prevent unnecessary limitations on Nepal's transit
rights.

o Article 3 elucidates the term "traffic in transit," while Article 4 exempts such
traffic from customs duties and transit charges, except for reasonable
transportation charges and fees for services rendered.

o Article 5 pertains to the points of entry and exit for transit traffic, aligning with
mutual agreements and existing laws and regulations.

o Article 6 outlines procedures for traffic in transit, as prescribed by the protocol

annexed to the treaty and mutual agreement between the contracting parties.

o Article 7 provides Nepal with the opportunity to benefit from freedom of the high
seas, subject to Indian laws and regulations, ensuring treatment no less favorable
than that afforded to ships of any other foreign country.

o Articles 8 and 9 impose several restrictions on transit traffic, including measures

to safeguard public morality and human, animal, and plant health, as well as to
prevent illegal activities such as drug trafficking.

While these restrictions are deemed reasonable and justifiable for maintaining international
peace and security, clarity and transparency in their implementation are crucial to ensure the
smooth and efficient functioning of Nepal's transit rights under the treaty.

6
Art.125 of the UNCLOS

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 c) Analysis of Transit Treaty
As a landlocked nation and a signatory to the United Nations Convention on the Law of the
Sea (UNCLOS), ratified on November 2nd, 1998, Nepal inherently possesses the right of free
access to and from the sea, as recognized by the convention itself. Consequently, there is no
inherent need for India to formally acknowledge Nepal's landlocked status or for Nepal to
rely on India's recognition for its international trade or sea access. However, the provisions of
the transit treaty between Nepal and India appear to hinge on the principle of reciprocity,
which may not be justifiable given India's non-landlocked status and lack of dependence on
Nepal for sea access.

Nevertheless, Nepal has managed to secure 15 transit routes for transit traffic7, although it
currently utilizes only 7 of these routes. Additionally, India has demonstrated a degree of
liberalism by facilitating transit through Radhikapur, enabling Nepal to engage in
international trade with Bangladesh and other countries.

Furthermore, a significant achievement for Nepal lies in the separation of transit provisions
from other bilateral issues, ensuring clarity and focus on transit-related matters. The inclusion
of an automatic renewal provision every 7 years further solidifies Nepal's transit rights and
provides a framework for continued cooperation between the two nations in facilitating
transit traffic.

CONCLUSION

7
Protocol to the Treaty of Transit between India and Nepal, with reference to Article 6.

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In summary, this paper affirms that the transit rights of landlocked states, concerning free
access to and from the sea, are indeed safeguarded under international law, recognizing the
sea and its resources as the shared heritage of humanity. The UNCLOS serves as a
comprehensive framework for ensuring fair and equitable access to these resources and
facilitating international trade and relations, regardless of a nation's geographical location as a
coastal or landlocked state.

However, the principle of reciprocity remains a notable gap within the UNCLOS, posing
challenges in securing transit rights for landlocked states. Nepal, being one such landlocked
nation, heavily relies on India's sea ports for transit facilities due to its geographical
constraints. While Nepal benefits to some extent from transit agreements with India, the
reciprocity principle dictates that both nations provide similar transit facilities, even though
India does not reciprocate this in practice.

Consequently, Nepal faces the challenge of negotiating for comprehensive transit rights based
on the principle of free access to and from the sea, within the realm of international
diplomacy, while also maintaining cordial relations with India. This balancing act
underscores the complexity of securing transit rights for landlocked states within the current
international legal framework.

BIBLIOGRAPHY

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Books:

1. Arrawal, H.O.,” International Law and Human Rights” (Allahabadh: Central Law
Publications 17th Ed. 2010).

2. Uprety K, “The Transit Regime for Landlocked States: International Law and
Development Perspectives” (World Bank Publications 2006)
3. Rothwell D and others, “The Oxford Handbook of the Law of the Sea” (Oxford
Handbooks in Law 2015)
4. Klein N, “Dispute Settlement in the UN Convention on the Law of the Sea”
(Cambridge University Press 2005)
5. Bala I, “Compulsions of a Land-Locked State: A Study on Nepal-India Relations”
(Batra Book Service 2001)

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