April 29, 2012

What is the difference between innocent passage and right 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.
          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 overflight 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).
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.
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.  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.  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 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.”[1]
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 suspendable as it is should it stand alone.[2]  In other words, Article 45 provides a safety net for straits that may arguably fall outside of the right of transit passage regime.
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. 




[1] Brownlie, at 284.
[2] Oppenheim’s International Law, (9th ed.) at 641.