2. Introduction:Transit passage is a concept of the Law of the Sea which allows a vessel or aircraft thefreedom of navigation or over flight solely for the purpose of continuous and expeditioustransit of a strait between one part of the high seas or exclusive economic zone and another.The requirement of continuous and expeditious transit does not preclude passage through thestrait for the purpose of entering, leaving or returning from a state bordering the strait, subjectto the conditions of entry to that state.With the definitions of and differences between the two regimes in mind it becomes easier tounderstand the conflict between the right of transit passage and the right of innocentpassage. Specifically, the problem arises in situations where Coastal State perceives a vesselunder continuous and expeditious transit as prejudicial to the security of the Coastal State.Transit passage refers to right of a vessel or airplane. This right helps in exercising freedomof navigation and over flight. It is governed under international law. This right is granted forthe purpose of continuous and expeditious transit between one part of the high seas or anexclusive economic zone. It is also known as right of transit passage.Transit passage exists throughout the entire strait and not just the area overlapped by theterritorial sea of the coastal nations. The ships and aircraft of all nations, including warships,auxiliaries, and military aircraft, enjoy the right of unimpeded transit passage in such straitsand their approaches. Submarines are free to transit international straits submerged, since thatis their normal mode of operation. The legal regime of transit passage exists in the mostimportant straits for the international trade exchange and security (Strait of Gibraltar, DoverStrait, Strait of Hormuz, Bab-el-Mandeb, Strait of Malacca).This navigation rule is codified in Part III of the United Nations Convention on the Law ofthe Sea. Although not all countries have ratified the convention, most countries, including theU.S. accept these customary navigation rules as codified in the Convention. This navigationrule took on more importance with UNCLOS III as that convention confirmed the wideningof territorial waters from three to twelve nautical miles, causing more straits not to have anavigation passage between the territorial waters of the coastal nations.
3. Nature and Scope of Transit Passage:The substance of the right of transit passage is provided in Article 38. This important articlehas earned the equivocal disguise during the compromising process. It reads; "Transit passagemeans the exercise, in accordance with this Part, of the freedom of navigation and over-flightsolely for the purpose of continuous and expeditious transit of the strait." The term of "thefreedom of navigation and over-flight" makes the transit passage quite different frominnocent passage. And it is further asserted that with this term, the transit passage should bedeemed as something which ought to be sorted as free passage in the high seas, and quitenaturally, includesthe submerged passage without any explicit terms18. This line of contention seems to havebecome, ever more confident But as far as the strict textual interpretation were to bemaintained, the legal reasoning for the above-mentioned contention could not be sustainedagainst the following contradiction. As professor Riesman has aptly pointed out, transitpassage defined with the term of "freedom of navigation" in Article 38 para.2 has thecharacteristics which are incompatible with the high sea notion of freedom of navigation20.This term "freedom of navigation" is used in Article 58 para.1 also. But it is emphasized withthe clarifying words, "referred to in Article 87." Here, we can simply admit that the right ofnavigation exercised by all states in EEZ is the freedom of navigation as they do on the highseas. But in Article 38 para.2, the term, "freedom of navigation" is not emphasized and is notclarified either. If it were the intention of the treaty to guarantee the freedom of navigationjust as available on the high seas in the straits used for international navigation, should it nothave some more explicit clarifying words than those used in the article 58 para.1? Of course,the legal status of the waters forming the straits used for international navigation, that is theterritorial sea of the coastal states shall never be affected by transit passage regime.(Article34) Needless to say, it is far more exclusive than that of the EEZ.
4. Definition of Transit Passage:Transit passage is a concept of the Law of the Sea which allows a vessel or aircraft thefreedom of navigation or over flight solely for the purpose of continuous and expeditioustransit of a strait between one part of the high seas or exclusive economic zone and another.The non suspend able right of continuous and expeditious navigation and/or over flight in thenormal mode through an international strait linking one part of the high seas (or exclusiveeconomic zone) with another. (Dictionary and Military term US Department of defense2005).
5. Rights of Transit Passage:The right of transit passage and the right of innocent passage appear to concern the samematters on a first reading. Generally, each right provides foreign vessels the opportunity tonavigate through territorial waters free from interference of the Coastal State. However, acloser examination reveals that the two rights are rather distinct in that each provides varyingdegrees of navigational freedom. This essay will examine some of the major differencesbetween the two regimes in order to highlight the rights accorded under each regime andillustrate where the regimes conflict. It is that conflict where it can be said the rights are co-terminus.(1)Next, it is useful to consider more substantive and specific differences between the tworegimes. First, all ships and aircraft enjoy the right of transit passage while the right ofinnocent passage is reserved to ships. Second, submarines are not required to navigate on thesurface under the right of transit passage, while submarines must navigate on the surfaceunder the right of innocent passage. Third, the right of transit passage cannot be suspendedwhile the right of innocent passage can under certain circumstances.Lastly, it is important that the differences creating conflict between the right of transitpassage and the right of innocent passage not be interpreted as meaning the regimes havenothing in common. First, each regime allows the Coastal State to prescribe sea lanes topromote safe passage. Second, each regime restricts research and survey activities by foreignvessels. Third, each regime includes language restricting any threat or use of force. Suchsimilarities indicate the two regimes do have fundamentally common goals – to providenavigational freedom to vessels while limiting infringement on the rights of Coastal States togovern territorial waters. Hence, the conflict existing where the two regimes are co-terminuscan also be looked at in terms of the right of transit passage providing broader navigationalfreedoms in international straits then the right of innocent passage does in the territorial sea.As a starting point it is helpful to compare the definitions of transit passage and innocentpassage. Transit passage can be defined as the exercise of the freedom of navigation andover flight solely for the purpose of continuous and expeditious transit of the strait betweenone area of the highs seas or an EEZ and another area of the high seas or an EEZ. (UNCLOSArticle 38). Innocent passage can be defined as passage which is not prejudicial to the peace,good order or security of the Coastal State. (UNCLOS Article 19).A prime example of this would be the Corfu Channel Case where British warships passedthrough an international strait while Albania considered the ships to be prejudicial to itssecurity. In Corfu, Britain was acting under a right of transit passage while Albania wasprotesting that the presence of a warship violated its influence permitted by the right ofinnocent passage. This point of conflict exists at the place where the right of transit passageis co-terminus with innocent passage.(1). http://www.lawsurance.com/2012/04/is-right-of-transit-passage-co-terminus.htmlTo prevent such conflicts arising from this “co-terminus point” and to ensure mobility forwarships, maritime powers have supported the right of transit passage in international
straits. As a result the right of transit passage is arguably superior to the right of innocentpassage and today places “severe limitation[s] on the powers of some coastal states.”A discussion of this “co-terminus point” would not be complete without addressing UNCLOSArticle 45 which provides that the regime of innocent passage shall coincide with that oftransit passage. The reason for structuring the right of transit passage to include a referenceto innocent passage is: (1) to ensure rights of territorial sea innocent passage though straitsused for international navigation where the transit regime does not apply; (2) to ensuresimilar innocent passage rights in straits between high seas or exclusive economic zone andthe territorial sea of a foreign state; and (3) to provide that innocent passage is not suspendable as it is should it stand alone. In other words, Article 45 provides a safety net for straitsthat may arguably fall outside of the right of transit passage right.5.1.In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage,which shall not be impeded; except that, if the strait is formed by an island of a Statebordering the strait and its mainland, transit passage shall not apply if there exists seaward ofthe island a route through the high seas or through an exclusive economic zone of similarconvenience with respect to navigational and hydrographical characteristics.5.2. Transit passage means the exercise in accordance with this Part of the freedom ofnavigation and over flight solely for the purpose of continuous and expeditious transit of thestrait between one part of the high seas or an exclusive economic zone and another part of thehigh seas or an exclusive economic zone. However, the requirement of continuous andexpeditious transit does not preclude passage through the strait for the purpose of entering,leaving or returning from a State bordering the strait, subject to the conditions of entry to thatState. Any activity which is not an exercise of the right of transit passage through a strait5.3.remains subject to the other applicable provisions of this Convention.(Article-38 of Convention onthe Law of Sea)6. Duties of ships and aircraft during transit passage:6.1. Ships and aircraft, while exercising the right of transit passage, shall:(a) proceed without delay through or over the strait;(b) refrain from any threat or use of force against the sovereignty, territorial integrity orpolitical independence of States bordering the strait, or in any other manner in violation of theprinciples of international law embodied in the Charter of the United Nations;(c) refrain from any activities other than those incident to their normal modes of continuousand expeditious transit unless rendered necessary by force majeure or by distress;(d) comply with other relevant provisions of this Part.6.2. Ships in transit passage shall:(a) comply with generally accepted international regulations, procedures and practices forsafety at sea, including the International Regulations for Preventing Collisions at Sea;
(b) comply with generally accepted international regulations, procedures and practices for theprevention, reduction and control of pollution from ships.6.3. Aircraft in transit passage shall:(a) observe the Rules of the Air established by the International Civil Aviation Organizationas they apply to civil aircraft; state aircraft will normally comply with such safety measuresand will at all times operate with due regard for the safety of navigation;(b) at all times monitor the radio frequency assigned by the competent internationallydesignated air traffic control authority or the appropriate international distress radiofrequency.(Article-39 of Convention on the Law of Sea)7. Research and survey activities:During transit passage, foreign ships, including marine scientific research and hydrographicsurvey ships may not carry out any research or survey activities without the priorauthorization of the States bordering straits.(Article-40 of Convention on the Law of Sea)8. Sea lanes and traffic separation schemes in straits used for internationalnavigation:8.1. In conformity with this Part, States bordering straits may designate sea lanes andprescribe traffic separation schemes for navigation in straits where necessary to promote thesafe passage of ships.8.2. Such States may, when circumstances require, and after giving due publicity thereto,substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separationschemes previously designated or prescribed by them.8.3. Such sea lanes and traffic separation schemes shall conform to generally acceptinternational regulations.8.4. Before designating or substituting sea lanes or prescribing or substituting trafficseparation schemes, States bordering straits shall refer proposals to the competentinternational organization with a view to their adoption. The organization may adopt onlysuch sea lanes and traffic separation schemes as may be agreed with the States bordering thestraits, after which the States may designate, prescribe or substitute them.8.5. In respect of a strait where sea lanes or traffic separation schemes through the waters oftwo or more States bordering the strait are being proposed, the States concerned shallcooperate in formulating proposals in consultation with the competent internationalorganization.8.6. States bordering straits shall clearly indicate all sea lanes and traffic separation schemesdesignated or prescribed by them on charts to which due publicity shall be given.8.7. Ships in transit passage shall respect applicable sea lanes and traffic separation schemesestablished in accordance with this article.(Article-41 of Convention on the Law of Sea)
9. Laws and regulations of States bordering straits relating to transitpassage:9.1. Subject to the provisions of this section, States bordering straits may adopt laws andregulations relating to transit passage through straits, in respect of all or any of the following:(a) the safety of navigation and the regulation of maritime traffic, as provided in article 41;(b) the prevention, reduction and control of pollution, by giving effect to applicableinternational regulations regarding the discharge of oil, oily wastes and other noxioussubstances in the strait;(c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishinggear;(d) the loading or unloading of any commodity, currency or person in contravention of thecustoms, fiscal, immigration or sanitary laws and regulations of States bordering straits.9.2. Such laws and regulations shall not discriminate in form or in fact among foreign shipsor in their application have the practical effect of denying, hampering or impairing the rightof transit passage as defined in this section.9.3. States bordering straits shall give due publicity to all such laws and regulations.9.4. Foreign ships exercising the right of transit passage shall comply with such laws andregulations.9.5. The flag State of a ship or the State of registry of an aircraft entitled to sovereignimmunity which acts in a manner contrary to such laws and regulations or other provisions ofthis Part shall bear international responsibility for any loss or damage which results to Statesbordering straits. .(Article-42 of Convention on the Law of Sea)10. Navigational and safety aids and other improvements and theprevention, reduction and control of pollution User States and Statesbordering a strait should by agreement cooperate:(a) in the establishment and maintenance in a strait of necessary navigational and safety aidsor other improvements in aid of international navigation; and(b) for the prevention, reduction and control of pollution from ships.(Article-43 of Convention onthe Law of Sea)11. Duties of States bordering straits:States bordering straits shall not hamper transit passage and shall give appropriate publicityto any danger to navigation or over flight within or over the strait of which they haveknowledge. There shall be no suspension of transit passage..(Article-44 of Convention on the Lawof Sea)
12. The transit passage regime accepted as a customary rule of law:Some U.S. ocean policy expert insisted that the transit passage through straits is a nearuniversally accepted navigational right enshrined in customary international law, quoting thefact that U.S. military aircrafts over fly an average of one international strait, 24 miles wideor less, per day worldwide33. Nevertheless, most important states bordering straits do notseem to accept this assertion as a reality of the world practice.On the contrary, there have been a few cases of arbitrary restrictions on straits transit passageby the States bordering straits. Late September in 1988, Indonesia announced brief closure ofthe Sunda and Lombok Strait34 is temporary closure of the important international straits wascommitted for what it said were the Indonesian Navys live firing exercises. With thisinexplicable act, the Indonesia seemed to violate its obligation not to defeat the object andpurpose of a treaty prior to its entry into force35 because Indonesia had already been 26thratifying State to the 1982 LOS Convention at that time36, and the LOS Convention clearlyprescribes that there shall be no suspension of transit passage.(Article 44) After all theIndonesian temporary closure of the straits cannot be invoked as a precedent to advocate anyformulation of modifying state practices which allow the States bordering straits any right tosuspend transit passage. Nevertheless, this incident has vividly demonstrated the amplepossibility of arbitral interpretation of the regime of transit passage. Even among thecontracting parties of LOS Convention, there has not been formulated any "universalacceptance" of the concrete norms of transit passage regime, without mentioning among thestates which are not the parties to LOS Convention.
References:1. http://www.lawsurance.com/2012/04/is-right-of-transit-passage-co-terminus.html2. en.wikipedia.org/wiki/Transit_passage3. www.thefreedictionary.com/transit+passage4. www.asil.org/insights120503.cfm5. The Law of Sea By Prof. Md. Altuf Hossain6. http://works.bepress.com