Transit passage
The UNCLOS Part III right of transit passage through straits used for international navigation, its scope, its exceptions and its limits.
Transit passage is the right of continuous and expeditious passage through a strait used for international navigation, set out in Part III Section 2 of the United Nations Convention on the Law of the Sea. Article 44 provides that states bordering straits shall not hamper transit passage and that there shall be no suspension of it, which makes it a stronger right than innocent passage in the territorial sea.
The regime does not reach every strait. Article 37 sets its scope, Article 36 removes Part III where a route of similar convenience exists through the strait, Article 38(1) removes transit passage where an island of a bordering state creates an alternative seaward route, and Article 35(c) preserves the regime of straits governed by long-standing conventions.
The Strait of Malacca is the worked example of the regime in operation, and of the Article 41 mechanism by which the littoral states propose routeing measures and IMO adopts them. Malaysia’s declaration on ratification, which reiterates its position on Article 233 as applied to those straits, is the standing illustration of a bordering state reserving its enforcement power.
The full article will cover the scope provisions, the duties of ships in transit, the four subjects on which a bordering state may legislate under Article 42, the Article 233 enforcement power, the Article 41 routeing mechanism that runs through IMO, the distinction from archipelagic sea lanes passage , and the disputed question whether transit passage binds states that are not party to the Convention.