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Kaliningrad Transit: Why to facilitate?

Kiseleva, Ekaterina (2011) JIL702 20101
Department of Law
Abstract
Kaliningrad transit: Why to facilitate? As well as the title, this study is divided into two parts: the first one is about Kaliningrad transit assessed against the wide historic and socio-economic background, and the second one presents reasoning of general international law, as well as of international human rights law in favour of Kaliningrad transit facilitation. Here the Kaliningrad transit stands for the regulation of private passenger movement by rail between the Kaliningrad region and the rest of Russia via Lithuania and Belarus.

Kaliningrad is one of 89 federal units of the Russian Federation. It is situated on the coast of the Baltic Sea, separated from the rest of the country with territories of two sovereign states (Lithuania... (More)
Kaliningrad transit: Why to facilitate? As well as the title, this study is divided into two parts: the first one is about Kaliningrad transit assessed against the wide historic and socio-economic background, and the second one presents reasoning of general international law, as well as of international human rights law in favour of Kaliningrad transit facilitation. Here the Kaliningrad transit stands for the regulation of private passenger movement by rail between the Kaliningrad region and the rest of Russia via Lithuania and Belarus.

Kaliningrad is one of 89 federal units of the Russian Federation. It is situated on the coast of the Baltic Sea, separated from the rest of the country with territories of two sovereign states (Lithuania and Latvia, Lithuania and Belarus, or Poland and Belarus depending of the route of transit).

Kaliningrad is subject to undisputed sovereignty of Russia.

In the regulation of rail passenger connection between the region and the rest of the state, three periods are singled out: soviet, post-soviet and European.

During the first one, de facto restrictions on freedom of intrastate movement based on peculiarities of soviet passport system were gradually lifted by 1974. Since that time, access to the region was free of any formalities.

Independence of Lithuania in 1991 (the post-soviet period) did not change the regime of freedom. Bilateral agreements between Lithuania and Russia prescribed for the liberal mode of transit even when in 1995 Lithuania introduced visas for visits and road transit transportation.

However, in the view of Lithuania’s accession to the European Union (the European period) the future of the liberal Kaliningrad transit was questioned and caused hot debates, primarily, between Russia and the EU (whom Lithuania delegated its sovereign rights to legislate on short-term border crossing). The EU demanded establishment of a visa transit mode, while Russia insisted on preservation of the existing visa-free scheme.

The compromise was reached and took the form of the Facilitated Transit Documents. Also, a feasibility study regarding a visa-free transit by high-speed non-stop transit train was launched.

So, the question was solved, and solved first and foremost on the basis of the European Communities’ law. Russia accepted the scheme.

But the general international law (in contradistinction to regulations, mainly in the framework of the European Union) could strengthen the position of Russia and help her to carry her point regarding freedom of Kaliningrad transit. The arguments of general international law are threefold. Firstly, free access to exclaves exists as a general principle of law. Secondly, doctrine of servitudes can be applied to the transit issue at hand. Finally, non-stop transit train can be implemented as a practical mechanism of solution.

Exclave is defined in political geography as a part of the state, which does not have direct land connection with its mainland.

State practice witnessed different solutions of enclaves’ access problems. The European experience is the most positive one in this regard. It is suggested that the fate of Kaliningrad should be decided according to the best traditions of Europe.

General principles of law, as stated in para. 1 (c) Art. 38 of the Statute of the International Court of Justice, do cover the right to freedom of connection between an exclave and its motherland, be they understood as either principles of international law itself, or provisions common to all municipal legal systems, or principles embracing both international and domestic law alike.

Further, the concept of international or state servitudes can be used in addition or in alternative to the proposition of the general principles.

The doctrine and results of contentions between states throughout the twentieth century where the theory of servitudes was used as a ground for claims shows that, if applied cautiously, servitudes can substantiate the demands for the facilitation of transit at hand.

The specific situation of Kaliningrad complies with the requirements of servitudes applicability. The servitude existed, not being named, in the consecutive agreements between Russia and Lithuania and implied the minimum of sovereignty abstention on the part of Lithuania.

The freedom of Kaliningrad transit can also be secured through the high-speed non-stop transit train. Against the background of the previous use of similar scheme, high-speed non-stop transit train is being proved to fulfil the criteria of feasibility and legal appropriateness.

As for the human rights dimension two elements are put forward. On the one hand, the Constitution of the Russian Federation is not a proper authority to appeal to. On the other hand, international standards regarding the freedom of movement, while not in unison, provide arguments against barriers on the way between Kaliningrad and mainland Russia (Less)
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author
Kiseleva, Ekaterina
supervisor
organization
course
JIL702 20101
year
type
H2 - Master's Degree (Two Years)
subject
keywords
Public International Law
language
English
id
1761741
date added to LUP
2011-01-11 16:50:44
date last changed
2011-01-11 16:50:44
@misc{1761741,
  abstract     = {Kaliningrad transit: Why to facilitate? As well as the title, this study is divided into two parts: the first one is about Kaliningrad transit assessed against the wide historic and socio-economic background, and the second one presents reasoning of general international law, as well as of international human rights law in favour of Kaliningrad transit facilitation. Here the Kaliningrad transit stands for the regulation of private passenger movement by rail between the Kaliningrad region and the rest of Russia via Lithuania and Belarus.

Kaliningrad is one of 89 federal units of the Russian Federation. It is situated on the coast of the Baltic Sea, separated from the rest of the country with territories of two sovereign states (Lithuania and Latvia, Lithuania and Belarus, or Poland and Belarus depending of the route of transit). 

Kaliningrad is subject to undisputed sovereignty of Russia.

In the regulation of rail passenger connection between the region and the rest of the state, three periods are singled out: soviet, post-soviet and European.

During the first one, de facto restrictions on freedom of intrastate movement based on peculiarities of soviet passport system were gradually lifted by 1974. Since that time, access to the region was free of any formalities. 

Independence of Lithuania in 1991 (the post-soviet period) did not change the regime of freedom. Bilateral agreements between Lithuania and Russia prescribed for the liberal mode of transit even when in 1995 Lithuania introduced visas for visits and road transit transportation.

However, in the view of Lithuania’s accession to the European Union (the European period) the future of the liberal Kaliningrad transit was questioned and caused hot debates, primarily, between Russia and the EU (whom Lithuania delegated its sovereign rights to legislate on short-term border crossing). The EU demanded establishment of a visa transit mode, while Russia insisted on preservation of the existing visa-free scheme.

The compromise was reached and took the form of the Facilitated Transit Documents. Also, a feasibility study regarding a visa-free transit by high-speed non-stop transit train was launched.

So, the question was solved, and solved first and foremost on the basis of the European Communities’ law. Russia accepted the scheme.

But the general international law (in contradistinction to regulations, mainly in the framework of the European Union) could strengthen the position of Russia and help her to carry her point regarding freedom of Kaliningrad transit. The arguments of general international law are threefold. Firstly, free access to exclaves exists as a general principle of law. Secondly, doctrine of servitudes can be applied to the transit issue at hand. Finally, non-stop transit train can be implemented as a practical mechanism of solution.

Exclave is defined in political geography as a part of the state, which does not have direct land connection with its mainland. 

State practice witnessed different solutions of enclaves’ access problems. The European experience is the most positive one in this regard. It is suggested that the fate of Kaliningrad should be decided according to the best traditions of Europe.

General principles of law, as stated in para. 1 (c) Art. 38 of the Statute of the International Court of Justice, do cover the right to freedom of connection between an exclave and its motherland, be they understood as either principles of international law itself, or provisions common to all municipal legal systems, or principles embracing both international and domestic law alike.

Further, the concept of international or state servitudes can be used in addition or in alternative to the proposition of the general principles. 

The doctrine and results of contentions between states throughout the twentieth century where the theory of servitudes was used as a ground for claims shows that, if applied cautiously, servitudes can substantiate the demands for the facilitation of transit at hand. 

The specific situation of Kaliningrad complies with the requirements of servitudes applicability. The servitude existed, not being named, in the consecutive agreements between Russia and Lithuania and implied the minimum of sovereignty abstention on the part of Lithuania.

The freedom of Kaliningrad transit can also be secured through the high-speed non-stop transit train. Against the background of the previous use of similar scheme, high-speed non-stop transit train is being proved to fulfil the criteria of feasibility and legal appropriateness.

As for the human rights dimension two elements are put forward. On the one hand, the Constitution of the Russian Federation is not a proper authority to appeal to. On the other hand, international standards regarding the freedom of movement, while not in unison, provide arguments against barriers on the way between Kaliningrad and mainland Russia},
  author       = {Kiseleva, Ekaterina},
  keyword      = {Public International Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {Kaliningrad Transit: Why to facilitate?},
  year         = {2011},
}