Transit passage is a concept of the
law of the sea
Law of the sea (or ocean law) is a body of international law governing the rights and duties of State (polity), states in Ocean, maritime environments. It concerns matters such as navigational rights, sea mineral claims, and coastal waters juris ...
, which allows a vessel or aircraft the freedom of navigation or overflight solely for the purpose of continuous and expeditious transit of a
strait between one part of the
high seas or
exclusive economic zone
An exclusive economic zone (EEZ), as prescribed by the 1982 United Nations Convention on the Law of the Sea, is an area of the sea in which a sovereign state has exclusive rights regarding the exploration and use of marine natural resource, reso ...
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. The transit passage may be exercised regardless of the nationality (flag) of the ship, its form of ownership, the merchant or government status of a ship or warship, the private or government status of an aircraft (under
the Convention on International Civil Aviation of 1944).
Within such straits (article 37 of UNCLOS), including Arctic straits, all ships and aircraft enjoy the right of transit passage (article 38 of UNCLOS), in accordance with Part III of UNCLOS, which means the right of navigation and overflight 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.
This navigation rule is codified in Part III of the
United Nations Convention on the Law of the Sea
The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the Sea Convention or the Law of the Sea Treaty, is an international treaty that establishes a legal framework for all marine and maritime activities. , 169 sov ...
.
[United Nations Convention on the Law of the Sea]
Part III, Article 38 Although not all countries have ratified the convention,
most countries, including the US,
accept the 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.
[
Transit passage exists throughout the entire strait, not just in the area overlapped by the territorial waters 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.][ Transit passage rights do not extend to any state's internal waters within a strait.]
The legal regime of transit passage exists for all straits used for international navigation where there is not a simple alternative route, and excluding those instances where there is a long-standing international convention governing the straits, namely the Danish straits, the Sea of Åland, the Turkish straits, the straits of Tiran, the Strait of Magellan and the Beagle Channel. The major international trade routes of the Strait of Gibraltar, Dover Strait, Strait of Hormuz, Bab-el-Mandeb and Strait of Malacca are covered by the transit passage provisions.
In contrast, the artificial maritime canals such as the Corinth Canal are generally not covered by the UNCLOS and fall instead under the respective national laws, with the three notable exceptions of the globally important canals due to their prior treaties: the Kiel Canal, the Panama Canal
The Panama Canal () is an artificial waterway in Panama that connects the Caribbean Sea with the Pacific Ocean. It cuts across the narrowest point of the Isthmus of Panama, and is a Channel (geography), conduit for maritime trade between th ...
and the Suez Canal
The Suez Canal (; , ') is an artificial sea-level waterway in Egypt, Indo-Mediterranean, connecting the Mediterranean Sea to the Red Sea through the Isthmus of Suez and dividing Africa and Asia (and by extension, the Sinai Peninsula from the rest ...
.[
]
Related rights
Innocent passage is a similar right which applies to the entire territorial sea (and certain grandfathered internal waters) of states – not just straits – and has more restrictive requirements for passing vessels. Freedom of navigation is a similar right which applies to international waters.
Introduction of transit passage in UNCLOS III made the right of innocent passage in the straits relatively unimportant due to sheer dominance of the straits covered by the transit passage regime in terms of both numbers and importance.
UNCLOS III also added the archipelagic sea lanes passage (ASLP) regime that is similar to the transit passage, but applies to the sea lanes passing through the archipelagic waters.
References
Sources
*
* {{cite journal , last=Priestnall , first=Graham , title=The Regimes of Archipelagic Sea Lanes Passage and Straits’ Transit Passage – Similarities and Differences , journal=Maritime Studies , volume=1997 , issue=96 , date=1997 , issn=0726-6472 , doi=10.1080/07266472.1997.10878494 , pages=1–12
Law of the sea