Submerged Passage Through Straits: Interpretations of the Proposed Law of the Sea Treaty Text

Among numerous important problems before the Conference, one of the most critical is the right of transit passage through straits, those narrow passageways which would fall within the territorial sea when nations generally agree on a twelve-mile limit. The right of submarines to pass submerged through straits (and of airplanes to overfly) is at the center of the transit passage issue. This is a key issue because the two major naval powers, the United States and the U.S.S.R., insisted early in the Conference's preparatory work on the necessity of an assured right of transit for all vessels and aircraft through and over straits. As negotiations proceeded, it was made plain to all concerned that this question was paramount for these two powers.

It is the purpose of this article to consider provisions in the Revised Text dealing with passage through straits and especially to comment on interpretations thereof which contend that the Revised Text does not secure a right of submerged passage for submarines. Before proceeding to this task, it is useful to provide a brief background of the development of the issue, focusing on the reasons for its emergence.