A Study On The Regime Of Transit Passage

The thesis consists of introduction,6 chapters and concluding remarks,with a total of more than 200 thousand characters.Introduction:Some scholars study the regime of transit passage from the perspectives of political and military will ignore its nature of as a maritime passage system in international law.Actually,in accordance with the international law as the main evidences of claims,it will not only enhance the country’s power of discourses in international community,but also occupy the commanding height of international morality.The current domestic literatures in the regime of transit passage seem weak,there is no monograph or PhD thesis specialized on it,which is not corresponded to the status of China ’ s international position as an important user State.There are mainly 5 English monographs in dealing with the regime of straits abroad:Bruel(1947)’s International Straits,Koh(1982)’s Straits in International Navigation,Jia(1998)’s The Regime of Straits in International Law,Martin(2010)’s International Straits and Caminos(2014)’s The Legal Regime of Straits,but the analysis of regime of transit passage has been insufficiently examined by foreign scholars.The questions with such a regime will persist long,not only in literature but also in practice.Therefore,the need for a content-rich PhD thesis on the transit passage regime,that provides legal analysis to contemporary dilemmas and that re-assesses problems the solutions of which have been left unresolved in legal literature is well established.Chapter 1:The development of transit passage system.There was a trend of extending the breadth of the territorial sea by many coastal States in the 1960s and 1970s,the number of coastal States claiming territorial sea of 12 nautical miles or more increased from 18 per cent to 43 per cent.When the balanced relationships of benefits between the user States and States bordering a strait are finally broken by the extending of breadth of the territorial sea,the legal regime of straits seemed intractable at the UN Sea-Bed Committee and UNCLOS Ⅲ.The inherent tension between the rights of passage that seek to approximate freedom of navigation and overflight by the user States and the sovereignty and jurisdiction of the coastal States is obvious,as a result,the regime of transit passage is created in Part Ⅲ of the UNCLOS.Transit passage means the exercise of the freedom 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,it is applicable to the territorial straits used for international navigation and eligible non-territorial straits,there are at least 93 famous straits,they are especially important in the transportation of global oceans.Chapter 2:The rights and duties of the relevant States of transit passage system.Firstly is the rights and duties of States bordering straits.The legislative jurisdiction of such States is restricted in the Article 42(1)(a)-(d)of the UNCOLS,these States do not have the enforcement jurisdiction,shall not impede,deny,hamper,impair or suspend the right of transit passage,shall not require of authorization or notification as a pre-condition to passage,shall not discriminate in form or in fact among foreign ships,shall give due publicity to relevant matters.Secondly is the rights and duties of user States.The ships and aircraft of user States enjoy the right of transit passage in normal modes in accordance with the Article 38 of the UNCLOS,simultaneously,they bear the corresponding duties under the Article 39(1)-(3),however,the breach to the legal duties does not mean the losing of right of transit passage.Thirdly is the co-operation of user States and States bordering a strait.It is stipulated that these States should by agreement co-operate in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation,and for the prevention,reduction and control of pollution from ships in accordance with Article 43(a)-(b)of the UNCLOS.Chapter 3:The applicable rules of transit passage system.Firstly,the recipients of the right of transit are all ships and aircraft.It means the right applies to any type of ships and aircraft.The Article 38(1)of the UNCLOS makes no distinction between categories of ships and aircraft,their nationality or ownership,their status as warships or merchant ships,or civil or State aircraft.Secondly,the legal regime of transit passage applies to the territorial straits used for international navigation,does not apply to the straits which exists a route through the high seas or EEZ of similar convenience with respect to its navigational and hydrographical characteristics.Thirdly,transit passage means the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait.Continuity means that the passage shall not be interrupted.This excludes stopping and anchoring,unless stopping and anchoring are rendered necessary by force majeure or distress,or are incidental to normal navigation for the purpose of transit.Expeditiousness means that the passage has to be undertaken as soon as practically possible under the circumstances,shall not hover,loiter or cruise around.Fourthly,there exist significant differences between the regime of transit passage and the freedom of navigation and overflight,the regime of archipelagic sea lanes passage and the regime of innocent passage in application.Chapter 4:The applicable exceptions of transit passage system.Firstly,there exist the international straits which apply to specifical conventions under the Article 35(c)of the UNCLOS.The regime of transit passage does not affect the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits,such as the Turkish Straits,the Danish Straits,and the Strait of Magellan.Secondly,there exist the international straits which different parts apply to their respective regimes under the Article 36 of the UNCLOS.The internal waters,the territorial sea,the EEZ or high seas in such international straits respectively apply to the discretionary power of the coastal States,the regime of innocent passage and the freedom of navigation and overflight.However,where the establishment of a straight baseline has the effect of enclosing as internal waters areas which had not previously been considered as such,the regime of innocent passage shall exist in those waters.Thirdly,there exist the international straits which apply to the regime of innocent passage which shall be no suspension under the Article 45 of the UNCLOS.They are the Messina Strait Exceptions and Dead End Strait Exceptions.The internal waters,the territorial sea,the EEZ or high seas of such straits respectively apply to the discretionary power of the coastal States,non-suspended innocent passage system and the freedom of navigation and overflight.Chapter 5:The customary status of transit passage system.After verification in detail,it is well-accepted that the transit passage system has satisfied the four conditions of treaty law transferring into the custom law,has become a part of customary law.Firstly is the creativity of the treaty rules.The theory and practice of the transit passage system did not exist before it was proposed by the draft articles on the territorial sea and straits of United Kingdom in 1974,it was finally created into the Part 3 of the UNCLOS in 1982 and became a norm of treaty international law after the arguments and compromises of international community.Secondly is the universality of the treaty rules.The contracting States of UNCLOS achieved 164 as of 10 February 2017,has accounted for 85 per cent of the total number of United Nations.Thirdly is the state practice.The transit passage system has satisfied the requirements of universality,constancy,timeliness and obligation.Fourthly is the opinio juris.The compulsory action and declare of the interested States are the reflection of their legal belief,rather than the responsibility of the Convention,which means that the opinio juris is real.Chapter 6:The relationship between China and transit passage system.China’s official standpoint has changed from the advocacy that the international strait shall apply to the regime of innocent passage in UNCLOS Ⅲ to the advocacy that the transit passage system shall be observed by every State in 2006.The communication of China and the world need to pass through plentiful straits which apply to the transit passage system,such as the Straits of Malacca,the Strait of Hormuz,the Strait of Bab al Mandab,the Strait of Gibraltar,the Tokara Strait,and so on.Taiwan Strait is one international strait which different parts apply to their respective regimes,Qiongzhou Strait belongs to the Messina Strait Exceptions,both of them do not apply to the regime of transit passage.Therefore,as a strait State,China shall not bear the duties of such a system,and should advocate and defend the application of the transit passage system in international community.Concluding remarks.In his magisterial treatise on straits in 1947,Briiel concluded:...the part of the territorial waters which is an international strait,even if otherwise on principle placed on par with the territorial waters,to the greatest possible extent in respect of the right of passage ought to be placed on the same footing as the high seas.His proposal was not followed at the First Geneva Conference.The UNCLOS Ⅱ did not reach any agreement.However,his exhortation was followed during UNCLOS Ⅲ:the transit passage system which means the exercise of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the relevant strait was made after the compromises of international community.It is an unprecedented accomplishment in international co-operation and in treaty-making process.The trend towards an effective overall oceans governance will in all probability increasingly transform the seas beyond the limits of national jurisdiction into a genuine res communis for the benefit of all nations,whether coastal or landlocked,developing or developed.