Sayef Amin 01924122222

1. 2. Introduction:
Transit passage is a concept of the Law of the Sea which allows a vessel or aircraft the
freedom of navigation or over flight solely for the purpose of continuous and expeditious
transit 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 the
strait for the purpose of entering, leaving or returning from a state bordering the strait, subject
to the conditions of entry to that state.
With the definitions of and differences between the two regimes in mind it becomes easier to
understand the conflict between the right of transit passage and the right of innocent
passage. Specifically, the problem arises in situations where Coastal State perceives a vessel
under 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 freedom
of navigation and over flight. It is governed under international law. This right is granted for
the purpose of continuous and expeditious transit between one part of the high seas or an
exclusive 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 the
territorial 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 straits
and their approaches. Submarines are free to transit international straits submerged, since that
is their normal mode of operation. The legal regime of transit passage exists in the most
important straits for the international trade exchange and security (Strait of Gibraltar, Dover
Strait, 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 of
the Sea. Although not all countries have ratified the convention, most countries, including the
U.S. accept these customary navigation rules as codified in the Convention. This navigation
rule took on more importance with UNCLOS III as that convention confirmed the widening
of territorial waters from three to twelve nautical miles, causing more straits not to have a
navigation passage between the territorial waters of the coastal nations.

2. 3. Nature and Scope of Transit Passage:
The substance of the right of transit passage is provided in Article 38. This important article
has earned the equivocal disguise during the compromising process. It reads; "Transit passage
means the exercise, in accordance with this Part, of the freedom of navigation and over-flight
solely for the purpose of continuous and expeditious transit of the strait." The term of "the
freedom of navigation and over-flight" makes the transit passage quite different from
innocent passage. And it is further asserted that with this term, the transit passage should be
deemed as something which ought to be sorted as free passage in the high seas, and quite
naturally, includes
the submerged passage without any explicit terms18. This line of contention seems to have
become, ever more confident But as far as the strict textual interpretation were to be
maintained, the legal reasoning for the above-mentioned contention could not be sustained
against the following contradiction. As professor Riesman has aptly pointed out, transit
passage defined with the term of "freedom of navigation" in Article 38 para.2 has the
characteristics 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 with
the clarifying words, "referred to in Article 87." Here, we can simply admit that the right of
navigation exercised by all states in EEZ is the freedom of navigation as they do on the high
seas. But in Article 38 para.2, the term, "freedom of navigation" is not emphasized and is not
clarified either. If it were the intention of the treaty to guarantee the freedom of navigation
just as available on the high seas in the straits used for international navigation, should it not
have 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 the
territorial sea of the coastal states shall never be affected by transit passage regime.(Article
34) Needless to say, it is far more exclusive than that of the EEZ.

3. 4. Definition of Transit Passage:
Transit passage is a concept of the Law of the Sea which allows a vessel or aircraft the
freedom of navigation or over flight solely for the purpose of continuous and expeditious
transit 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 the
normal mode through an international strait linking one part of the high seas (or exclusive
economic zone) with another. (Dictionary and Military term US Department of defense
2005).

4. 5. Rights of Transit Passage:
The right of transit passage and the right of innocent passage appear to concern the same
matters on a first reading. Generally, each right provides foreign vessels the opportunity to
navigate through territorial waters free from interference of the Coastal State. However, a
closer examination reveals that the two rights are rather distinct in that each provides varying
degrees of navigational freedom. This essay will examine some of the major differences
between the two regimes in order to highlight the rights accorded under each regime and
illustrate 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 two
regimes. First, all ships and aircraft enjoy the right of transit passage while the right of
innocent passage is reserved to ships. Second, submarines are not required to navigate on the
surface under the right of transit passage, while submarines must navigate on the surface
under the right of innocent passage. Third, the right of transit passage cannot be suspended
while the right of innocent passage can under certain circumstances.
Lastly, it is important that the differences creating conflict between the right of transit
passage and the right of innocent passage not be interpreted as meaning the regimes have
nothing in common. First, each regime allows the Coastal State to prescribe sea lanes to
promote safe passage. Second, each regime restricts research and survey activities by foreign
vessels. Third, each regime includes language restricting any threat or use of force. Such
similarities indicate the two regimes do have fundamentally common goals – to provide
navigational freedom to vessels while limiting infringement on the rights of Coastal States to
govern territorial waters. Hence, the conflict existing where the two regimes are co-terminus
can also be looked at in terms of the right of transit passage providing broader navigational
freedoms 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 innocent
passage. Transit passage can be defined as the exercise of the freedom of navigation and
over flight solely for the purpose of continuous and expeditious transit of the strait between
one area of the highs seas or an EEZ and another area of the high seas or an EEZ. (UNCLOS
Article 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 passed
through an international strait while Albania considered the ships to be prejudicial to its
security. In Corfu, Britain was acting under a right of transit passage while Albania was
protesting that the presence of a warship violated its influence permitted by the right of
innocent passage. This point of conflict exists at the place where the right of transit passage
is co-terminus with innocent passage.
(1). http://www.lawsurance.com/2012/04/is-right-of-transit-passage-co-terminus.html
To prevent such conflicts arising from this “co-terminus point” and to ensure mobility for
warships, maritime powers have supported the right of transit passage in international

5. straits. As a result the right of transit passage is arguably superior to the right of innocent
passage 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 UNCLOS
Article 45 which provides that the regime of innocent passage shall coincide with that of
transit passage. The reason for structuring the right of transit passage to include a reference
to innocent passage is: (1) to ensure rights of territorial sea innocent passage though straits
used for international navigation where the transit regime does not apply; (2) to ensure
similar innocent passage rights in straits between high seas or exclusive economic zone and
the territorial sea of a foreign state; and (3) to provide that innocent passage is not suspend
able as it is should it stand alone. In other words, Article 45 provides a safety net for straits
that 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 State
bordering the strait and its mainland, transit passage shall not apply if there exists seaward of
the island a route through the high seas or through an exclusive economic zone of similar
convenience with respect to navigational and hydrographical characteristics.
5.2. Transit passage means the exercise in accordance with this Part of the freedom of
navigation and over flight solely for the purpose of continuous and expeditious transit of the
strait between one part of the high seas or an exclusive economic zone and another part of the
high seas or an exclusive economic zone. However, the requirement of continuous and
expeditious 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 that
State.
Any activity which is not an exercise of the right of transit passage through a strait
5.3.
remains subject to the other applicable provisions of this Convention.(Article-38 of Convention on
the 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 or
political independence of States bordering the strait, or in any other manner in violation of the
principles 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 continuous
and 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 for
safety at sea, including the International Regulations for Preventing Collisions at Sea;

6. (b) comply with generally accepted international regulations, procedures and practices for the
prevention, 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 Organization
as they apply to civil aircraft; state aircraft will normally comply with such safety measures
and 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 internationally
designated air traffic control authority or the appropriate international distress radio
frequency.(Article-39 of Convention on the Law of Sea)
7. Research and survey activities:
During transit passage, foreign ships, including marine scientific research and hydrographic
survey ships may not carry out any research or survey activities without the prior
authorization 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 international
navigation:
8.1. In conformity with this Part, States bordering straits may designate sea lanes and
prescribe traffic separation schemes for navigation in straits where necessary to promote the
safe 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 separation
schemes previously designated or prescribed by them.
8.3. Such sea lanes and traffic separation schemes shall conform to generally accept
international regulations.
8.4. Before designating or substituting sea lanes or prescribing or substituting traffic
separation schemes, States bordering straits shall refer proposals to the competent
international organization with a view to their adoption. The organization may adopt only
such sea lanes and traffic separation schemes as may be agreed with the States bordering the
straits, 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 of
two or more States bordering the strait are being proposed, the States concerned shall
cooperate in formulating proposals in consultation with the competent international
organization.
8.6. States bordering straits shall clearly indicate all sea lanes and traffic separation schemes
designated 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 schemes
established in accordance with this article.(Article-41 of Convention on the Law of Sea)

7. 9. Laws and regulations of States bordering straits relating to transit
passage:
9.1. Subject to the provisions of this section, States bordering straits may adopt laws and
regulations 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 applicable
international regulations regarding the discharge of oil, oily wastes and other noxious
substances in the strait;
(c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishing
gear;
(d) the loading or unloading of any commodity, currency or person in contravention of the
customs, 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 ships
or in their application have the practical effect of denying, hampering or impairing the right
of 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 and
regulations.
9.5. The flag State of a ship or the State of registry of an aircraft entitled to sovereign
immunity which acts in a manner contrary to such laws and regulations or other provisions of
this Part shall bear international responsibility for any loss or damage which results to States
bordering straits. .(Article-42 of Convention on the Law of Sea)
10. Navigational and safety aids and other improvements and the
prevention, reduction and control of pollution User States and States
bordering a strait should by agreement cooperate:
(a) in the establishment and maintenance in a strait of necessary navigational and safety aids
or other improvements in aid of international navigation; and
(b) for the prevention, reduction and control of pollution from ships.(Article-43 of Convention on
the Law of Sea)
11. Duties of States bordering straits:
States bordering straits shall not hamper transit passage and shall give appropriate publicity
to any danger to navigation or over flight within or over the strait of which they have
knowledge. There shall be no suspension of transit passage..(Article-44 of Convention on the Law
of Sea)

8. 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 near
universally accepted navigational right enshrined in customary international law, quoting the
fact that U.S. military aircrafts over fly an average of one international strait, 24 miles wide
or less, per day worldwide33. Nevertheless, most important states bordering straits do not
seem 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 passage
by the States bordering straits. Late September in 1988, Indonesia announced brief closure of
the Sunda and Lombok Strait34 is temporary closure of the important international straits was
committed for what it said were the Indonesian Navy's live firing exercises. With this
inexplicable act, the Indonesia seemed to violate its obligation not to defeat the object and
purpose of a treaty prior to its entry into force35 because Indonesia had already been 26th
ratifying State to the 1982 LOS Convention at that time36, and the LOS Convention clearly
prescribes that there shall be no suspension of transit passage.(Article 44) After all the
Indonesian temporary closure of the straits cannot be invoked as a precedent to advocate any
formulation of modifying state practices which allow the States bordering straits any right to
suspend transit passage. Nevertheless, this incident has vividly demonstrated the ample
possibility of arbitral interpretation of the regime of transit passage. Even among the
contracting parties of LOS Convention, there has not been formulated any "universal
acceptance" of the concrete norms of transit passage regime, without mentioning among the
states which are not the parties to LOS Convention.

9. References:
1. http://www.lawsurance.com/2012/04/is-right-of-transit-passage-co-terminus.html
2. en.wikipedia.org/wiki/Transit_passage
3. www.thefreedictionary.com/transit+passage
4. www.asil.org/insights120503.cfm
5. The Law of Sea By Prof. Md. Altuf Hossain
6. http://works.bepress.com