Transit passage

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Transit passage is a concept of the law of the sea, 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 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). [1]

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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. [2] Although not all countries have ratified the convention, [3] most countries, including the US, [4] [5] 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. [4]

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. [4] Transit passage rights do not extend to any state's internal waters within a strait. [2]

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, [6] 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. [4] [1]

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 and the Suez Canal. [4]

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. [7]

UNCLOS III also added the archipelagic sea lanes passage (ASLP) regime that is similar to the transit passage, [8] but applies to the sea lanes passing through the archipelagic waters.

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<span class="mw-page-title-main">1988 Black Sea bumping incident</span> Episode in the Cold War

The Black Sea bumping incident of 12 February 1988 occurred when American cruiser USS Yorktown tried to exercise the right of innocent passage through Soviet territorial waters in the Black Sea during the Cold War. The cruiser was bumped by the Soviet frigate Bezzavetny with the intention of pushing Yorktown into international waters. This incident also involved the destroyer USS Caron, sailing in company with USS Yorktown and claiming the right of innocent passage, which was intentionally shouldered by a Soviet Mirka-class frigate SKR-6. Yorktown reported minor damage to its hull, with no holing or risk of flooding. Caron was undamaged.

<span class="mw-page-title-main">1986 Black Sea incident</span> Ship incident in the Black Sea

On March 13, 1986, the American cruiser USS Yorktown and the destroyer USS Caron tried to exercise the right of innocent passage under international law through Soviet territorial waters in the Black Sea near the southern Crimean Peninsula. They were confronted by Soviet frigate Ladny and border guard vessels Dozorny and Izmail.

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An international strait is a narrow natural waterway connecting two parts of the high seas or exclusive economic zones, used for international navigation. Per the United Nations Convention on the Law of the Sea (UNCLOS), a transit passage regime prevails in such straits for both ships and aircraft with few exceptions, even when the territorial waters of bordering country or countries overlap. Worldwide, more than 200 straits might satisfy the criteria of an international strait. Notable international straits include Bosporus and Dardanelles, Strait of Magellan, Strait of Gibraltar, Strait of Dover, and Danish straits, with the most famous being probably the Strait of Hormuz.

References

  1. 1 2 Bugajski, Dariusz R. (2021). Navigational rights and freedoms in the international law and practice. Polish Naval Academy. pp. 146, 305–308. ISBN   978-83-961549-1-0. OCLC   1267382284.
  2. 1 2 United Nations Convention on the Law of the Sea, Part III, Article 38
  3. ↑ "Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements as at 3 June 2011". Division for Ocean Affairs and the Law of the Sea. UN. Retrieved 2 January 2011.
  4. 1 2 3 4 5 Jon M. Van Dyke (2 October 2008). "Transit Passage Through International Straits" (PDF). The Future of Ocean Regime-Building. University of Hawaii. pp. 178, 179, 186–187, 194–197. doi:10.1163/ej.9789004172678.i-786.50. ISBN   9789004172678. Archived from the original (PDF) on 2013-11-05. Retrieved 6 July 2019.
  5. ↑ Reagan, Ronald (10 March 1983). "Presidential Proclamation 5030" (PDF). United States Department of State . Retrieved 2 January 2011.
  6. ↑ Bugajski, Dariusz (2006). "The special status of the Strait of the Aland Islands as an exception of the transit passage principle (Art. 35 of the Convention on the Law of the Sea)". Prawo Morskie (12). The Gdańsk Branch of the Polish Academy of Sciences: 81–97. ISSN   0860-7338 . Retrieved 28 May 2024.
  7. ↑ López Martín 2010, p. xv, Foreword by Luis Ignacio Sánchez  [ es ].
  8. ↑ Priestnall 1997, p. 10.

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