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Afghanistan’s Right of Access and Transit under International Law

By Zia Nezam

According to international law, land-locked countries, such as Afghanistan, have the “right of access”  to sea portsand “freedom of transit through the territory of transit states.” United Nations Convention of the Law of the Sea (hereafter the “Convention”), Article 125. This Convention, which is also known as the “Constitution of the Sea,” defines the rights and responsibilities of member states with respect to the world’s oceans. By establishing a right of access to the sea and right of transit, the Convention recognized the historical disadvantage land-locked countries face due to their geographic position. The drafters of the Convention created a remedy for this geographic disadvantage by allowing land-locked countries to have free access to sea in neighboring countries.

To date in 2020, 168 states, including Pakistan, have signed and ratified the Convention. There are also an additional 14 countries, including Afghanistan and Iran, that have signed the Convention, but have not ratified it. As a land-locked country, the benefits for Afghanistan to ratify this Convention greatly outweigh the risks. Once Afghanistan ratifies the Convention, Afghanistan can submit a dispute regarding the application and interpretation of this Convention to the International Tribunal for the Law of the Sea in Hamburg, Germany, which is authorized to make final and binding decisions.

Afghanistan’s neighboring countries must respect the agreed principle of free access to the sea and take prompt steps to facilitate the Afghan transit of persons and goods. This Convention provides Afghanistan the right to demand from its neighbor to negotiate in good faith the terms regarding the inland transit of goods through the transit country. Under this Convention, the transit state cannot charge customs duties and taxes, and “shall take all appropriate measures to avoid delays or difficulties of a technical nature in traffic in transit.” Convention, Art. 127(1) and Art 130. At present unfortunately, Afghanistan’s eastern neighbor has been disregarding the important commitments it agreed to by ratifying this Convention.

Despite the Convention and other international law, Afghanistan’s transit trade is stifled by frequent border closures and harassment at the sea ports. As a result, Afghan businesses and economy have suffer greatly from these closures. Previous efforts have been made, such as the Afghanistan–Pakistan Transit Trade Agreement (APTTA), but such efforts have fallen short because of a lack of political will for implementation and difficult requirements for Afghan traders. Additionally, the action of shutting down the border has been used as political tactic to dictate influence over Afghanistan, which is against the right of access to sea and right of transit principles of international law.

Arbitrary border closures on both side of the border is regrettable. In other parts of the world, neighborly nations are working together to eliminate barriers and borders to increase international trade. Various examples have shown that enhanced regional trade greatly speeds up economic growth. Unfortunately, borders in our region are restricted when it comes to legitimate trade, but borders are porous when it comes to violence and achieving political goals.

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