SOME LEGAL PROBLEMS OF INTERNATIONAL WATERWAYS, WITH PARTICULAR REFERENCE TO THE STRAITS OF TIRAN AND THE SUEZ CANAL

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1 SOME LEGAL PROBLEMS OF INTERNATIONAL WATERWAYS, WITH PARTICULAR REFERENCE TO THE STRAITS OF TIRAN AND THE SUEZ CANAL THE fact that the recent six-day war in the Middle East began with an attempt to close the Straits of Tiran and ended with those Straits reopened to shipping, but the Suez Canal closed for the second time in eleven years, has drawn attention once again to the law affecting international waterways. Because the problem is less well known, this article will concentrate for the most part on the Straits of Tiran. A few remarks will, however, be made about the Suez Canal towards the end of the article. INTERNATIONAL WATERWAYS-GENERAL REMARKS What is an international waterway? The question is not easy to answer. According to the leading authority, ( For purposes of analysis, international waterways must be considered to be those rivers, canals, and straits which are used to a substantial extent by the commercial shipping or warships belonging to States other than the riparian nation or nations..., The international character of a waterway, thus conceived, rests upon factual considerations, for it is only by examination of the actualities of international usage that any conclusions about the requisites of international character become possible. Nevertheless, the term ( international waterway appears to be one to which the British Government attaches significance. Speaking in the General Assembly of the United Nations on March 4, 1957, the British delegate stated : It is the view of Her Majesty s Government in the United Kingdom that the Straits of Tiran must be regarded as an international waterway through which the vessels of all nations have a right of passage. This view was endorsed by the Prime Minister, during the recent Arab-Israeli crisis, when he told the House of Commons on May 81 that the Gulf of Aqaba is an international waterway and that the Straits of Tiran do provide an international waterway into which and through which the vessels of all nations have a right of passage. 1 R. R. Baxter, The Law of ZntemationaZ Waterways (1964), p th Plenary Meetin 8, p H.C.Deb., Vol. 747, so. 200, cols Vor.. 31

2 154 THE MODERN LAW REVIEW VOL. 81 The starting point for any consideration of this branch of the international law of the sea must be the conventions adopted at the Geneva Conference on the Law of the Sea 1958-particularly the Convention on the Territorial Sea and the Contiguous Zone and the Convention on the High Seas.4 Behind these conventions lay not less than seven years preparatory work by the International Law Commission, during which the views of governments were repeatedly taken into account and culminating in seventy-three draft articles prepared by the Commission in the summer of ; a protracted debate in the Sixth Committee of the General Assembly of the United Nations in the autumn of 1956; and certain further preparatory work conducted by or on behalf of the Secretariat of the United Nations during the period s As part of the preparatory work just referred to, the Secretariat of the United Nations requested Commander R. H. Kennedy, o.b.e., R.N. (Retd.) to undertake two studies. The fist, Preparatory Document No. 6, was A Brief Geographical and Hydrographical Study of Straits which constitute Routes for International Traffic. The second, Preparatory Document No. 12, was A Brief Geographical and Hydrographical Study of Bays and Estuaries, the Coasts of which belong to Different States. 8 The Secretariat itself also prepared, as Preparatory Document No. 11, a Guide to Instruments affecting the Legal Status of Straits. These studies are invaluable to an elucidation of the problems now to be considered. Generally speaking, the Geneva codification of 1958 eschewed unnecessary definitions. The following key provisions must, however, be noted. FROM THE CONVENTION ON THE TERRITORIAL SEA AND THE CONTIoUOTI6 ZONE Article 1 1. The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea. 4 Cmnd The other two conventions, dealing respectively with Fishing and Conservation of the Living Resources of the High Seas, and the Continental Shelf, are not immediately relevant. All four conventions are now in force. 5 Report of the International Law Commission Covering the Work of its Eighth Session. General Assembly Official Records : Eleventh Session. Supplement No. 9 (A/3159). 8 See the article by the present writer, The Preparation of the 1958 Geneva Conference on the Law of the Sea (1959) 8 I.C.L.Q A/Conf. 13/6. 8 A/Conf. 13/15. 9 A/Conf. 13/14. Attention shouldaplso he drawn to two other studies, namely, Preparatory Document No. I, Memorandum concerning Historic Hays, prepared by the Secretariat itflelf (A/Conf. 13/1), and Preparatory Document No. 15, a paper on Certain Legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagos. prepared at the request of the Secretariat by Mr..Jene Evensen, Advocate at the Supreme Court of Norway.

3 hhn PROBLEMS OF INTERNATIONAL WATERWAYS 155 Article 2 The sovereignty of a coastal State extends to the air space over the territorial sea as well as to its bed and subsoil. Article 5 1. Waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. Articles 3 and 4 laid down technical rules concerning the drawing of base lines. It is these base lines which separate internal waters from territorial sea. The legal difference is that, whereas a coastal state is entitled to exclude foreign shipping from its internal waters,1 it must afford to such shipping a right of innocent passage through its territorial sea. Article 7 was a lengthy article concerning bays. It defined a bay as a well-marked indentation whose penet.ration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. It also provided that if the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters ; and further that where the distance between the lowwater marks of the natural entrance points of a bay exceeds twentyfour miles, a straight base line of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible wit,h a line of that length. However, Article 7 related only to bays the coasts of which belong to a single State ; whilst its provisions were not to apply to historic bays or to bays where, for the reasons given in Article 4, a straight baseline system along an entire coast, as opposed to closing lines across the mouths of individual bays, was envisaged. The implication of this was presumably that (i) where there is a hay the coasts of which belong to more than one state, a closing 1 Save for one exception provided for in Art. 5 (2). 11 No agreed list of historic bags has ever been drawn up, although a fairly clear example is Conception Hay in Newfoundland. See Direct U.S. Cable CO. v. Anglo-American Trlegmph Co. (1877) I! 4pp. Cas An example-and pmsihly the only example-of a I historic hay the coasts of which belong to more than one state is the Gulf of lponseca. In a judgment given on March 9, 1917, in a case brought by El Salvador against Nicaragua, the Central American Court of Justice held that the Gulf,pf E onseca was an Iiidoric bay possessed of the characteristics of a closed sea and that El Salvador, Ilonduras and Nicaragua were co-owners of its waters, except as to the lilt.oral marine leagiie which was the exclusive property of each (Amc:rican Journal of International Law, 11 (1917), p. 693). With regard to hietoric hays it may he pointed out that, at a time when three miles wag generally considered the maximiini hreadt,h of t,he territorial sea and six miles (or at the niod 10) as tht, perrnissible leugth of closing lines across hays, the notion of a hktoric hay as a special category exempted from any restriction as to the length of the closing line was considcrahly more important that it now is if the 24 mile closing lines allowed by Art. 7 of the Geneva Convention are to become the general rule. The Tnternational Law Commission had recomuiendcd a maxirniiin closing line of 15 miles.

4 156 THE MODERN LAW REVIEW VOL. 81 line may not be drawn at all, except in the case of a historic bay ; and (ii) in the case of historic bays, whether the coasts of such bays belong to one or more states, the closing line is not restricted to twenty-four miles. Articles 14 to 28 wrestled with the difficult problem of innocent passage. Although these articles bravely attempted to define both innocent and passage, it cannot be said that any unambi- guous conclusion emerges as to what constitutes an ( innocent passage. If the coastal state and the state of the vessel concerned differ as to whether a particular passage is innocent or not, belated reference to international adjudication is always possible, if both sides agree. But clearly this is one of the most difficult issues in international law today, quite apart from the problem which arises if one or more of the states involved is, or claims to be, at war. If the coastal state is at war, it enjoys belligerent rights under which it may take certain steps against its enemy s ships, as well as neutral ships carrying cargoes to or from enemy ports.12 These rights may be exercised even on the high seas; a fortiori they may also be exercised in the coastal state s own territorial sea. If, on the other hand, the coastal state is neutral, it may close its territorial sea to belligerent warships and their prizes, but it is not bound to do so. The following further points need to be made on the Convention on the Territorial Sea and the Contiguous Zone. (i) The convention is completely silent on the breadth of the territorial sea. An attempt was made to remedy this defect at a second conference held in Geneva in 1900, but this too failed.18 On this critical point all that the International Law Commission had been able to say was that 6 international law does not permit an extension of the territorial sea beyond twelve miles and that the Commission, without taking any decision as to the breadth of the territorial sea up to that limit, notes, on the one hand, that many states have fixed a breadth greater than three miles and, on the other hand, that many states do not rccognise such a breadth when that of their own territorial sea is less. It remains broadly true that a claim to more than twelve miles has no hope of meeting with general acceptance. A considerable number of claims up to twelve miles are put forward, but except where a claim can be justified on historic grounds (e.g., Norway s claim to four miles) the states favouring three miles decline to accept such claims. (ii) The convention has no general article on the question of straits. This is remarkable considering the attention devoted to 12 This Rtatement ici made on the acisumption that, despite the,$hartejr of the United,,Nations, it is dill possible for states to be engaged in war and to enjoy belligerent rights. This assumption is doubtful, hut that question is too large to be discussed here. 18 D. W. Bowett, The Second United Nations Conference on the Law of the Sea (1960) 9 I.C.L.Q. 415.

5 MU PROBLEMS OF INTERNATIONAL WATERWAYS 157 straits in the literature of international law. however, provide the following : Article 16 (4) does, " There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State." l4 There can be no doubt that the Conference had the Straits of Tiran very much in mind when it adopted this provision and that its adoption was sufficient to explain the refusal of the Arab states to sign the convention. According to the leading authority mentioned above, " in geographic terms, a strait is normally a narrow passage connecting two sections of the high seas." ls Legally, the rcgime of a strait is affected by its breadth, in particular by the fact whether or not passage through it is possible without passing through the territorial waters of one or other of the littoral states. Thus, on the assumption that the maximum breadth of territorial waters is three miles, no special rcgime will in principle be required if a strait is more than six miles wide.l8 Indeed, it may be asked why, even in the case of a narrow strait, a special rcgime is necessary seeing that the waters in such a strait are territorial waters and that there is an undoubted right of innocent passage through such waters. The idea of a special rcgime for straits seems first to have arisen through the claim of littoral states to regard some straits that were more than six miles wide as territorial." Now, however, the question is seen more from the opposite point of view, namely, the right of warships of non-littoral states to pass through narrow straits. Thus, in the Corfu Channel case, the International Court of Justice affirmed that " States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorisation of a coastal State, provided that the passage is innocent." l7 The Court evaded in that case the question whether there is a similar right for foreign warships to pass through the territorial sea as such, even where there is no strait. Hence the importance in certain circumstances of determining whether there is a strait or not. There was bitter controversy at the Geneva Conference of 1058 on the question whether warships have a right to pass through the territorial sea. On that question Professor Sorensen comments : " The actual text of the Convention would... warrant the conclusion that warships have the same right in this respect 14 Art. 16 (4) follows immediately after A,?. 16 (3) which permits a coastal state in certain circumstances to suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships." Such suspension, however, must be " without discrimination amongst foreign ships." 1s Baxter, op. cit., p Of course it is not as simple as that. Navigational considerations may make it necessary to keep close to one or other shore. 1' Z.C.J. Reports 1949, p. 4 at p. 28. Italics in original.

6 158 TEE MODERN LAW REVIEW VOL. 81 as other ships, but the proceedings of the Conference leave no room for doubt that this was not the intention of the majority of delegations. ls Because of this uncertainty it may, as already stated, be important to decide whether a particular stretch of water is a strait or not. In talking of a special rcgime for straits, however, it is necessary to guard against a further confusion. Some straits have been subjected to a special regime in the sense of a rkgime actually laid down by treaty. But there are very few of these. Indeed the Sccretariat s Guide, referred to above (Preparatory Document No. ll), mentions only five. These are (a) the Straits of the Dardanelles, the Sea of Marmora and the Bosphorus; (b) the Straits of Gibraltar; (c) Fuca s Straits; (d) the Straits of Magellan; and (e) the Danish Straits. The special rkgime-such as it isenvisaged by the International Court of Justice in the Corfu Channel case depends solely upon factual considerations, namely, that the straits in question are used for international navigation between two parts of the high seas. FROM THE CONVENTION ON THE HIGH SEAS Article 1 defines the high seas as all parts of the sea that are not included in the territorial sea or in the internal waters of a State. Article 2 mentions freedom of navigation ) as one of the freedoms of the high seas. During the course of the discussions at the Geneva Conference the Israeli delegate in the Second Committee (which was dealing with the rkgime of the high seas) advanced certain general criticisms of the manner in which the International Law Commission had approached its task. The Commission, he felt, had maintained an unduly rigid distinction between the r6gime of the territorial sea and that of the high seas. Its draft articles should be redrafted or regrouped so as to include both innocent passage and passage on the high seas within the framework of freedom of navigation. To over-emphasise the distinction between the territorial sea and the high seas was to assume that when a ship sailed from one port to another it crossed an invisible frontier, some miles from the shore, beyond which freedom of navigation existed. In actual fact, however, a ship 18 Law of the Sea (International Conciliation. No. 520, November 1958), p This curious result arose in this way. The International Law Commission had proposed that coastal states might require notification of the passage of warships or even make it bubject to previous authorisation. In the First Committee of the Geneva Conference the I.L.C. draft W ~ E adopted, but in plenary the Western Powers succeeded in securing the deletion of the requirement of prior autho7iration. A number of delegations were not content with prior notification only, and the entire article was lost. As Arts. 14 to 17 (the general articles concerned with the right of innocent passage) appear under a subsection entitled I Rules applicable to All ships, it is argued that warships enjoy exactly the same rights 88 merchant ships.

7 Mu PROBLEMS OF INTERNATIONAL WATERWAYS 159 passing through the territorial sea enjoyed the right of innocent passage, which was independent of the sovereignty of the coastal state and which formed an integral part of freedom of navigation. The fact that passage through the territorial sea might be subject to qualifications did not alter the basic fact that innocent passage was exercised as a right, and not on sufferance ; suspension of such passage within the territorial sea could not be arbitrary, even as a state could not arbitrarily interfere with freedom of navigation on the high seas. Moreover, qualifications of the right of innocent passage did not always exist, as in the case of international straits and bays and free access to ports." Rather, in the Israeli delegate's view, one should lay stress on " the concept of the unity of the voyage." THE STRAITS OF TIRAN AND THE GULF OF AQABA The description that follows is taken from the Secretariat Study of '' Bays and Estuaries, the Coasts of Which belong to Different States " referred to above.2o " The Gulf of Aqaba is a long narrow gulf on the eastern side of the Sinai Peninsula. The western shore is Egyptian,21 the eastern shore is Saudi Arabian and the head of the Gulf is Israeli and Jordanian territory. The islands of Tiran and Sinafar front the entrance. The length of the gulf is about ninety-six miles." The Study goes on to explain that the breadth of the Gulf at the entrance is five and three-quarter miles; that at its widest part the Gulf is fourteen and a half miles wide but that further up the average breadth is between eight and a half and eleven miles; and that the Gulf narrows to between three and four miles wide towards the head. There are two feasible passages. One of these is the Enterprise Passage, 1,800 yards wide, between the Sinai coast and a 19 Official Records of the Second Committee (A/Conf. 13/40), Twelfth Meeting, paragraphs 6-8;' Similar views were expressed by the Netherlands delegate when he said: The right to use the high seas for purposes of navigation had legal consequences that went beyond the concept of the high seas in the geographical sense of the term. No purpose would be served by proclaiming freedom of navigation on the high Beas if that freedom could be enjoyed only in the geographical area of the high seas t,o the exclusion of territorial and internal waters. The ' freedom of navigation ' concept should imply the right of ships of all flags to engage in international trade, because in principle it covered the right to carry goods and passengers between various ports throughout the world." (Fourth Meeting, para. 10.) 20 p. 154, supra. The demription of the Straits of Tiren and the Gulf of Aqaha is a combined description appearing in this Study (i.e., Preparatory Document No. 12). The Study covers no fewer than 48 such bays and estuaries, including Lough Carlingford and Loyph Foyle. In the other Study (Preparatory Document No. 6), devoted to Straits which constitute Routes for International TraEc," 33 straits are described. 21 At the time of writing Israel is in possession of the Sinai Peninsula. At this time, however, her rights and duties are thoee of a'military occupant, not a sovereign.

8 160 THE MODERN LAW REVIEW VOL. a1 line of drying coral reefs. The other is the Grafton Passage, 950 yards wide, between these reefs and Tiran island. The legal position of Tiran and Sinafar is obscure. It appears that Egypt occupied these islands in 1950 with Saudi Arabian consent. The Egyptian delegate informed the Security Council on February 15, 1954, that the two islands had constituted Egyptian territory since But in a memorandum attached to a letter dated April 12, 1957, from the Permanent Representative of Saudi Arabia to the United Nations to the Secretary-General, it was stated that '' these two islands are Saudi Arabian "; and Egypt apparently raised no objection.22 Having regard to the width of the Gulf, and having regard also to the dispute over the breadth of territorial waters, it is not clear whether there are any high seas inside the Straits of Tiran. Obviously, if international law imposes a maximum breadth of three miles for the territorial sea, quite a considerable part of the Gulf of Aqaba constitutes high seas. If, on the other hand, international law accepts as valid claims to a territorial sea of twelve miles, as formulated by the Arab states and many others, then no part of the Gulf of Aqaba constitutes '( high seas," and the status of the Straits of Tiran is affected too, since it can no longer be said of those Straits that they " connect two sections of the high seas." In that eventuality, on whatever theory any right to enter the Gulf of Aqaba-and in particular to reach the Israeli port of Eilath-may rest, it can no longer rest on the proposition that the " Straits of Tiran '' are a strait in the sense of " a narrow passage connecting two sections of the high seas." It may be necessary to draw a distinction between merely entering the Gulf of Aqaba on the one hand and navigating as far as Eilath-or for that matter the Jordanian port of Aqaba-on the other hand. If, for example, the Gulf of Aqaba constitutes " high seas," then there would be no reason why a foreign warship, enjoying its right of innocent passage through the Straits of Tiran under the COT~U Channel decision, should not enter the Gulf and stay for some time therein on a surveillance mission, without ever intending to reach Eilath or Aqaba. If, on the other hand, there are no high seas within the Gulf, then a mission of that kind would seem to be excluded, but it would not necessarily follow that a foreign merchant ship would not be entitled to pass through the Straits of Tiran, sail up the Gulf, and dock at Eilath or Aqaba despite any objection by the main littoral states, Egypt and Saudi Arabia. Leaving aside the problem of defining " innocence," Article 14 of the Geneva Convention on the Territorial Sea and the Contiguous Zone states that '( Passage means navigation through the territorial 22 See C. B. Selak, " A Consideration of the Legal Status of the Gulf of Aqaba," Amefican Journal of International Law, 52 (1958), p. 660; and also L. Gross, " The Geneva Conference on the Law of the Sea and the Right of Innocent Passage through the Gulf of Aqaba," :bid. 53 (1959). p. 564.

9 hfan PROBLEMS OF INTERNATIONAL WATERWAYS 161 sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters. Vessels bound to or from Eilath could therefore be said to be exercising the right of passage not merely through the Straits of Tiran but also through the Egyptian and/or Saudi Arabian portions of the Gulf of Aqaba. Under the general rules of international law these states would be entitled to regulate such shipping, and possibly on occasions to suspend it temporarily, although the fact has to be faced that Israel will always tend to regard any such suspension as a threat to her security warranting an armed response in self-defence. But it is difficult to see how under general international law Egypt and Saudi Arabia could claim any permanent right to exclude such shipping altogether. That the Arab claim to exclude ships bound to and from Eilath is weak under general international law is no more convincingly evidenced than by the heavy reliance placed on such other Arab claims as that Israel has no right to exist as a state or that the Arab states are at war with Moreover, if the Arab claim were good under general international law, there might be serious repercussion upon the right of navigation in other areas where international boundaries converge, such as the Shatt A1 Arab, the Gulf of Trieste and the Rio de la Plata, to mention only a few. It may be as well also to comment upon the Israeli contention that the principle of the freedom of the seas implies in itself the right to navigate to and from the Israeli port of Eilath. This contention sounds plausible because it is certainly true that, for Israel, the freedom of the seas would be a much diminished prize if navigation were excluded from the Gulf of Aqaba. Nevertheless, it is doubtful if one principle of international law, the freedom of the seas, is of itself sufficient to generate rights that are entitled to take precedence over rights enjoyed under another principle of international law, in this case the principle of the territorial sovereignty of the intervening coastal states. This question of freedom of the seas versus territorial sovereignty was much discussed at Geneva in 1058 in relation to the problem of landlocked states. On that question Article 8 of the Convention on the High Seas asserted that States having no sea coast should have free access to the sea. But, even in the case of landlocked states, such access was made dependent upon agreements with the intervening coastal states. Whatever geographical disadvantages she may suffer from in the Gulf of Aqaba, Israel has a Mediterranean coast as well. She cannot therefore claim any special privilege as a landlocked 23 There ir a certain inconsirtency between the refusal of the Arab states to recognifie Israel and their claim to be at war with Iarael nonetheless. The inconsislency is, however, not absolute because international law admits of the porrihility of belligerent communities not recognised a8 states (e.g., the Confaderacy in the American Civil War).

10 162 THE MODERN LAW REVIEW VOL. a1 state. In practice, Israel must like all other states take her geographical position as she fmds it. She is entitled to the benefits of the general rules of international law, no more and no less. So far as Israel s rights in the Gulf of Aqaba are concerned, these rules are the rules relating to bays, straits and passage through the territorial sea which it has been attempted to elucidate above. There is one other question relating to the Gulf of Aqaba which needs to be considered. This is whether the littoral states, acting in agreement, are entitled to close the Gulf to foreign shipping. The question is of course academic since the littoral states are not likely to agree on such a course, Israel in particular being determined to keep the Gulf open. Nevertheless it is necessary to consider this matter as part of the general Arab contention that the Gulf of Aqaba is an Arab Sea on which Israel, even if it is entitled to exist at all, has no right to maintain a presence.24 As already indicated, Article 7 of the Geneva Convention on the Territorial Sea and the Contiguous Zone suggests that a closing linewhich has the effect of turning the waters inside it into internal waters from which foreign shipping may be totally excluded-may not be drawn at all across the mouth of a bay the coasts of which belong to more than one state, unless the bay is an historic bay. It is doubtful, however, if this restriction would apply in the case of a bay with as narrow an entrance as the Gulf of Aqaba. On any conceivable view of the breadth of territorial waters, the Gulf of Aqaba, if it belonged to a single state, could be closed. In principle, then, it would seem that the littoral states of the Gulf of Aqaba, provided they are all acting in agreement, can do what any one of them could do if it controlled the whole area-that is, close the Gulf to foreign shipping. This being so, it is scarcely necessary to consider the Arab claim that the Gulf of Aqaba is an historic bay. The claim rests on the long period of Arab domination of the area between 700 and 1517 and on its control by the Ottoman Empire between 1517 and But the essence of any claim on historical grounds is lack of interruption, and the sequence of events since 1917 has been too chequered to permit of the continued recognition of any historic right. (To mention only a few of these events, the Treaty of San Remo of April 25, 1920, awarded to Great Britain a Mandate for Palestine, which then included Transjordan. In 1922 a separate Mandate was created for Transjordan, which was placed under the Amir Abdullah. In 1924 Abdullah s father, King Husayn of the Hejaz, was forced to abdicate by the King of Nejd, Ibn Saud, who 24 This particular Arab contention appears to he that, although Eilath was in the manda,ted territory of Palestine and although Eilath was also in the area awarded to the Jewish State under the United Nations Partition Plan of 1947, the Israeli occupation of Eilath was illegal because it took place on March , after the Israeli-Egyptian Armistice Agreement (February 24, 1948) though before the signature of the Israeli-Jordan Armistice Agreement (April 3, 1949).

11 MAE PROBLEMS OF INTERNATIONAL WATERWAYS 163 in 1926 incorporated the Hejaz into his dominions, forming the present Kingdom of Saudi Arabia in As for Egypt, having been a vassal state of Turkey, she became a protectorate of Great Britain in Her independence was recognised in 1922 by Great Britain, whilst in lw28 Turkey by the Treaty of Lausanne renounced all her rights and titles over Egypt as from November 5, 1914.) THE SUEZ CANAL 25 Apart from the familiar contention that Israel has no right to exist, Egypt's claim to close the Suez Canal at all times to Israeli ships and cargoes destined to Israel, and from time to time to ships of all nations, rests essentially on the thesis that Egypt is at war with Israel and is entitled to take these measures in self-defence. Article I of the Constantinople Convention of October 29, 1888, respecting the Free Navigation of the Suez Maritime Canal states that " The Suez Maritime Canal shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag." Obviously this principle could not always be carried out in so bold a form, and in fact Articles IV, V, VII and VIII impose certain restrictions upon maritime belligerent Powers. Article X, however, states that " the provisions of Articles IV, V, VII and VIII shall not interfere with the measures which His Majesty the Sultan and His Highness the Khedive,2e in the name of His Imperial Majesty, and within the limits of the Firmans granted, might find it necessary to take for securing by their own forces the defence of Egypt and the maintenance of public order." Article X also provided that " It is likewise understood that the provisions of the four Articles aforesaid shall in no case occasion any obstacle to the measures which the Imperial Ottoman Government may think it necessary to take in order to insure by its own forces the defence of its other possessions situated on the eastern coast of the Red Sea." From the passage in italics it seems possible to deduce that the Constantinople Convention, although primarily concerned with the Suez Canal, might have some bearing upon the Gulf of Aqaba problem as well. On April 24, 1957, Egypt made a Declaration, deposited with 25 The reader is referred to tho following: L. Gross, " Passage through the Suez Canal of Israel-Bound Cargo and Israel Ships," American Journal of 1nte.mutional Law. 51 (1957). p. 510; " The Suez Canal," A Selection of Documents relating to the International Status of the Suez Canal and the Position of the Suez Canal Company, November 30, lr5ajuly 26, 1956, published under the auspice& of Ihe Society of Comparative Legislation and International Ilaw (London, Stevens, 19%) and to " The Suez Canal Settlement," A Selection of Document6 relating to the Settlement of the Suez Canal Dispute, the Clearance of the Suez Canal and the Sottlerrient of Disputes between the United Kingdom, France and the United Arab Republic, October 1056-March 1959, published under the auspices of the BritirJh Institute of International and Comparative Law (London, Stevens, 1960). *e Tn 1888 Egypt was a vassal state of the Ottoman Empire, although under military occupation by Great Britain.

12 164 TEE MODERN LAW REVIEW VOL. 81 the United Nations, in which she undertook to respect the terms and the spirit of the Constantinople Convention of 1888 and the rights and obligations arising therefrom. She further undertook that ( differences arising between the parties to the said convention in respect of the interpretation or the applicability of its provisions, if not otherwise resolved, will be referred to the International Court of Justice. A Declaration in furtherance of this obligation was made on July 18, The possibility therefore exists of bringing before the International Court of Justice at least some of the legal issues arising from the present closing of the Suez Canal. The right to seize the Court is, however, carefully limited in the Egyptian Declarations to the parties to the Constantinople Convention and further to states who have made declarations under Article 36 (2) of the Statute of the International Court of Justice (Le., the Optional Clause). The parties to the Constantinople Convention were Great Britain, Germany, Austria, Hungary, Spain, France, Italy, Netherlands, Russia and the Ottoman Empire. Of these, the following only have made declarations under Article 36 (2): Great Britain, France, Netherlands, Turkey. D. H. N. JOHNSON.* * MA.; r,r..d.; Professor of International and Air Law, University of London.