The 1982 UN Convention on the Law of the Sea.

        In addition, restrictions or threatened restrictions on the movement of naval forces and military aircrafts may endanger the security of lines of communication considered vital by states such as U.S.A because of the strategic importance of the Straits3.

        On the other hand, some coastal States believe that traffic in straits endanger certain of their security interests. Such claims apparently result either from fears of attack, infiltration or military intelligence activities conducted by transiting vessels and aircrafts, or from fears of military confrontations centering on strategic straits4.

Furthermore, coastal states became more concerned about the dangers of pollution and catastrophic accidents in the straits and particular attention was focused on these dangers by the wreck of the Torrey Canyon5 and that of the Ocean Eagle6.

So, the objective of the UNCLOS III to reconcile on a global basis the interests of all states directly or indirectly affected by passage through straits used for international navigation has been achieved by introducing the “transit passage” through the international straits, since this new right allows less coastal state control over passing vessels than does innocent passage, but also provides provisions which differentiate it from the regime of the high seas and give to the coastal state the right to implement international safety and pollution standards7.

Transit passage is the exercise of freedom of navigation and overflight solely for the continuous and expeditious transit of the strait between one area of high seas or economic zone and another, or in order to enter or leave a state bordering the strait (LOSC, art.38(2)). Three categories of strait are excluded from this definition. The first is the category of straits through which there is a high-seas route, or a route through an EEZ , of similar convenience with respect to its navigational and hydrographical characteristics (LOSC, art. 36)8. The second category is that of straits formed by an island bordering the strait and its mainland, where a route of similar navigational and hydrographic convenience exists through the EEZ or high seas seaward of the island (LOSC,art.38(1))9. The third category is that of straits connecting an area of the high seas or an exclusive economic zone with the territorial sea of a third state ( LOSC,art.45)10.

The concept of the transit passage is wider than that of innocent passage. One can easily enumerate the differences between innocent passage regime and transit passage regime. Apart from the difference in concept, which is appreciable, the more important differences lie in the various provisions, or absences thereof, governing the two regimes. It has been demonstrated that certain prohibited activities under Articles 39 and 40 of the LOSC do not render passage non-transit, since there is absence of any explicit provision which render the coastal states the right to take necessary steps in straits area to prevent passage that is non-transit, whereas similar activities in the context of innocent passage may render passage non-innocent. Thus, certain activities which are prohibited for innocent passage according to article 19(2) of the LOSC appear not to be inconsistent with transit under article 38(2) of the LOSC. For example, a passage becomes non-innocent if, during passage, an exercise or practice with weapons is carried out11. Such an activity is not expressly prohibited for transit passage and could be consistent with transit passage under article 38(2) of the LOSC.

Further to that, in case of non-compliance with the laws and regulations of the coastal states, warships may be required to leave the territorial sea under the art.30 of the LOSC while there is no provision that warships may be required to cease transit passage for the same reason.  

Coastal states may legislate for passing vessels only in respect of fishing and the taking on board or putting overboard for any commodity, currency or person in violation of local customs, fiscal, immigration or sanitary regulations (art.42(1), LOSC) in comparison with the more comprehensive restrictions that are imposed with the implementation of art. 21,23 and 25 of the LOSC in innocent passage regime.

Moreover, in transit passage regime, aircraft enjoy the right of overflight according to the art.38(1) of the LOSC, while there is no provision permitting such a right in innocent passage regime.

Straits of Malacca

Without any due scrunity, this transit passage regime seems to have been passed as having created some new rights of free passage, including submerged passage, through, over and under the territorial sea of the state bordering the straits. More precisely, while in innocent passage regime, submarines and other underwater vehicles must navigate on the surface and show their flag (art.20 of the LOSC), in transit passage appears that submarines and other underwater vehicles may navigate submerged since there is no provision prohibiting that. This, at least, is the interpretation adopted by the maritime States, and it is consistent with the travaux preparatoires of UNCLOS III.

One more difference between these two regimes, is the requirement by the states which are bordering straits to submit proposals on sea lanes and traffic separation schemes in the strait, that must first have been adopted by the competent international organization- that is to say the IMO (LOSC, art.41).  In what concerns innocent passage, there is no requirement that coastal states submit proposals on sea lanes and traffic separation schemes to an external authority. The states may just take into account the recommendations of competent international organizations in the designation of sea lanes and the prescription of traffic separation schemes. (LOSC,art.22).

But the most substantial difference, to my opinion, is the lack of any explicit provision which would render the coastal state the right to take necessary steps in straits area to prevent “non transit ” passage, as it may happen in the territorial sea under the art.25 of the LOSC for the protection of its security. Conversely, States bordering straits shall not intentionally hamper or suspend transit passage (LOSC, art. 44).  Of course, in extreme cases coastal state action might be justifiable on the basis of the right of self-defence or the somewhat wider rights to take counter-measures apparently admitted by the International Court of Justice in the Nicaragua case12.

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