Passage Through the Suez Canal of Israel-Bound Cargo and Israel Ships

Leo Gross

doi:10.2307/2195062

¹ See remarks made by the representatives of France, New Zealand, Iran, Netherlands and India. The Suez Canal Problem, July 26–September 22, 1956, pp. 91, 112, 128, 145, 164 (State Dept. Pub. 6392).

² Secretary of State John Poster Dulles at the news conference Aug. 28, 1956. Ibid. 298. The statement by Mr. Dulles, which is inaccurate in part, was in response to the following question: “Mr. Secretary, was Israel’s right of passage through the Suez (Canal) in any way discussed at the London Conference?”

³ Ibid. 308.

⁴ As adopted by the Security Council, principle (3) is phrased as follows: “The operation of the Canal should be insulated from the politics of any country.” In this connection principle (1) is also directly relevant: “There should be free and open transit through the Canal without discrimination, overt or covert”this covers both political and technical aspects.” Security Council, Official Records, 743rd Meeting, Oct. 13, 1956, p. 18, par. 105, and Doc. S/3671.

⁵ Resolution 997 (ES–I). General Assembly, Official Records, First Emergency Spec. Sess., Supp. No. 1, p. 2 (Doc. A/3354).

^5a 36 Dept. of State Bulletin 390 (1957).

⁶ New York Times, March 2, 1957, p. 10.

⁷ U.N. Doc. A/3527, Annex I: Aide-mémoire dated Feb. 4, 1957, transmitted to the Secretary General by the Permanent Representative of Israel to the United Nations.

⁸ U.N. Doc. A/3527, Feb. 11, 1957, p. 6. Resolution 997 (ES–I), referred to above, urged “the parties to the armistice agreements promptly to withdraw all forces behind the armistice lines, to desist from raids across the armistice lines into neighbouring territory, and to observe scrupulously the provisions of the armistice agreements.” Official Records, First Emergency Spec. Sess., Supp. No. 1, p. 2 (Doc. A/3354).

⁹ Official Records, 6th Year, 558th Meeting, Sept. 1, 1951, p. 2.

¹⁰ See, e.g., the statement by Secretary of State Dulles at his news conference March 26, 1957. 36 Dept. of State Bulletin 596 (1957).

¹¹ This paper is not concerned with the question of passage through the Straits of Tiran and the Gulf of Aqaba. Insofar as the restrictions practiced by Egypt in that area hinge juridically on the “state of war” doctrine, the arguments advanced with reference to the Suez Canal are equally applicable to it.

¹² The Flying Trader, Egypt, Prize Court of Alexandria, Dec. 2, 1950, Lauterpacht (ed.), International Law Reports 1950 (hereafter cited as 1950 Int. Law Rep.), p. 444. See also cablegram from the Minister of Foreign Affairs of Egypt to the President of the Security Council dated May 15, 1948, U.N. Doc. S/743; Security Council, Official Records, 3rd Year, No. 66, 292nd Meeting, May 15, 1948, p. 2.

¹³ The Fjeld, Egypt, Prize Court of Alexandria, Nov. 4, 1950, 1950 Int. Law Rep. 345 at 346.

¹⁴ Text published in the Journal Officiel, No. 36, April 8, 1950. The English translation was submitted to the Security Council by the representative of Israel on Feb. 15, 1954, U.N. Doc. S/3179; Security Council, Official Records, 9th Year, Supp. Jan.-March, 1954, p. 6. The representative of Egypt referred to this decree as dated Feb. 9, 1950, Security Council, Official Records, 549th Meeting, July 26, 1951, p. 18, par. 69. He also listed there the regulations promulgated earlier by Military Proclamations No. 5 of May 15, 1948, No. 13 of June 6, 1948, No. 38 of July 8, 1948, and one of Nov. 4, 1949.

¹⁵ Security Council, Official Records, 9th Year, Supp. Jan.–March, 1954, p. 9.

¹⁶ See remarks by the representatives of New Zealand, Official Records, 662nd Meeting, March 23, 1954, p. 3, par. 10; Brazil, ibid., 664th Meeting, March 29, 1954, p. 5, par. 17; Israel, ibid., 659th Meeting, Feb. 15, 1954, p. 17, par. 94; and Egypt, ibid., 661st Meeting, March 12, 1954, p. 6, par. 28.

¹⁷ 1950 Int. Law Rep. 345 at 347.

¹⁸ Ibid. 348.

¹⁹ The Fjeld, Prize Court of Alexandria, Nov. 4, 1950. Ibid. 345 at 348 ff.

²⁰ The Fjeld, loc. cit. 347.

²¹ In Art. 10 of the Convention.

²² In order to avoid a possible misunderstanding of the Court’s argument, reference must be had to Art. 4 of the Constantinople Convention:

“The Maritime Canal remaining open in time of war as a free passage, even to ships of war of the belligerents, under the terms of Article I of the present Treaty, the High Contracting Parties agree that no right of war, act of hostility or act having for its purpose to interfere with the free navigation of the Canal, shall be committed in the Canal and its ports of access, or within a radius of 3 nautical miles from those ports, even though the Ottoman Empire should be one of the belligerent Powers.” The Suez Canal Problem, op. cit. 17; 3 A.J.I.L. Supp. 124 (1909). It will be seen that contrary to a possible implication in the Court’s language, Art. 4, far from authorizing Egypt to take any action in the Canal, expressly prohibits the exercise of any right of war.

²³ The Court referred here to 2 Oppenheim, International Law 187 (1944 ed.).

²⁴ Art. 1 of the Convention:

“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.”

“The Canal shall never be subject to the exercise of the right of blockade.” Op. cit. 17; 3 A.J.I.L. Supp. 123 (1909).

²⁵ 1950 Int. Law Eep. at 446 ff.

²⁶ Art. II, par. 1, of the Egyptian–Israeli General Armistice Agreement, Rhodes, Feb. 24, 1949. U.N. Doc. S/1264/Rev. 1; Security Council, Official Records, 4th Year, Spec. Supp. No. 3, p. 2.

²⁷ The following articles of the General Armistice Agreement are relevant in this context: Art. I, par. 2: “No aggressive action by the armed forces—land, sea, or air—of either Party shall be undertaken, planned, or threatened against the people or the armed forces of the other”; Art. II, par. 2: “No element of the land, sea or air military or para-military forces of either Party, including non-regular forces, shall commit any warlike or hostile act against the military or para-military forces of the other Party, or against civilians in territory under the control of that Party.” Ibid.

²⁸ Mr. Fawzi (Egypt) stated in the Security Council: “Most of the protests were lodged with the Egyptian Government even while the hostilities in Palestine were still taking place.” Official Records, 553rd Meeting, Aug. 16, 1951, p. 24, par. 101.

²⁹ Referring to the Egyptian contention that a dispute existed between the protesting Powers and Egypt, Sir Gladwyn Jebb (United Kingdom) said: “If there were any dispute within the meaning of the Charter between one of the five delegations mentioned and Egypt, the Armistice Agreement and the whole question of Palestine would be quite irrelevant.” Official Records, 555th Meeting, Aug. 27, 1951, p. 3, par. 10.

³⁰ Cf. Leo Gross, “States as Organs of International Law and the Problem of Auto-Interpretation,” in George A. Lipsky (ed.), Law and Politics in the World Community, pp. 59–89 (1953).

³¹ The first debate took place in October–November, 1950, in connection with the Israeli complaint: “Violations by Egypt of the Egyptian–Israeli General Armistice Agreement through the maintenance for seventeen months of blockade practices inconsistent with the letter and spirit of the armistice agreement,” U.N. Doc. S/1794, Sept. 16, 1950. The second debate took place at several meetings held between July 26, 1951, and Sept. 1, 1951, following the Israeli complaint: “Eestrictions imposed by Egypt on the Passage of Ships through the Suez Canal,” U.N. Doc. S/2241, July 11, 1951, Official Records, 6th Year, Supp. July–Sept., 1951, p. 9. The third debate occurred at several meetings between Feb. 5 and March 29, 1954, regarding the Israeli complaint: “Enforcement by Egypt of Restrictions on the Passage of Ships trading with Israel through the Suez Canal,” U.N. Doc. S/3168, Jan. 28, 1954, Official Records, 9th Year, Supp. Jan.–March, 1954, p. 1. The final debate was concerned with the complaint by Israel arising from “the illegal arrest and detention of the Israel vessel, the Bat Galim, on 28 September 1954” and was spread over meetings held Nov. 3, 1954–Jan. 13, 1955, U.N. Doc. S/3300, Official Records, 9th Year, Supp. Oct.–Dec, 1954, pp. 1 ff.

³² Official Records, 553rd Meeting, Aug. 16, 1951, p. 23, par. 98. Similarly, the representative of the United Kingdom said: “During the past two years a number of maritime countries have made almost continuous representations to the Egyptian Government through the diplomatic channels, but all these have been of no avail.” Official Records, 552nd Meeting, Aug. 16, 1951, p. 4, par. 12.

³³ Official Records, 549th Meeting, July 26, 1951, p. 3.

³⁴ Letter dated Oct. 13, 1956, from the representative of Israel to the President of the Security Council, U.N. Doc. S/3673, p. 6.

³⁵ Ibid. The blacklist includes 75 tankers. Ibid. 10. Blacklisting of ships is provided for in Art. 11 of the Royal Decree of 1950: Cargo shall be “deemed intended for the enemy whenever … (2) It is being shipped indirectly to such persons or institutions (on Palestinian territory occupied by the enemy). This shall be presumed in any of the following circumstances: … (g) If the consignor or consignee is listed on the “black list kept for that purpose as a carrier of contraband for the Zionists.”

³⁶ Ibid. 7.

³⁷ Ibid. 9. For a list of some of these ships, cf. ibid. 7–9. The representative of Israel said in the Security Council that “about 95 per cent of Israel’s normal trade in products other than oil has been throttled through these restrictions, and, in the case of oil, 100 per cent of that aspect of Israel’s import trade has been completely set at naught.” Official Records, 661st Meeting, March 12, 1954, p. 31, par. 152.

³⁸ Official Records, 549th Meeting, July 26, 1951, p. 21, par. 79.

³⁹ Ibid., 553rd Meeting, Aug. 16, 1951, p. 15, par. 62.

⁴⁰ Ibid., 550th Meeting, Aug. 1, 1951, p. 3, par. 11.

⁴¹ Ibid., 549th Meeting, July 26, 1951, p. 20, par. 75.

⁴² Official Records, 661st Meeting, March 12, 1954, p. 17, pars. 88–89.

⁴³ Ibid., p. 18, par. 91.

⁴⁴ Ibid., 659th Meeting, Feb. 15, 1954, p. 24, par. 130; 661st Meeting, March 12, 1954, p. 20, par. 105; 662nd Meeting, March 23, 1954, p. 12, par. 43.

⁴⁵ Ibid., 664th Meeting, March 29, 1954, p. 23, par. 157.

⁴⁶ Ibid., p. 24, par. 164.

⁴⁷ The Israeli complaint of Sept. 16, 1950 (U.N. Doc. S/1794), referred to “blockade practices.” See also statements by the representative of Israel at 433rd Meeting, Aug. 4, 1949, p. 16; 517th Meeting, Oct. 30, 1950, p. 10 f.; 522nd Meeting, Nov. 13, 1950, p. 23; 549th Meeting, July 26, 1951, p. 13; 658th Meeting, Feb. 5, 1954, p. 12, par. 49; 659th Meeting, Feb. 15, 1954, p. 14, pars. 80, 88, 89. See also statement by the representative of the United Kingdom in which he referred to the “blockade practices in the Suez Canal,” ibid., 522nd Meeting, Nov. 13, 1950, p. 17.

⁴⁸ Ibid., 658th Meeting, Feb. 5, 1954, p. 31, par. 163. See also 659th Meeting, Feb. 15, 1954, p. 24, pars. 127, 128; 661st Meeting, March 12, 1954, p. 6, par. 27 f., p. 15, par. 77.

⁴⁹ Arts. 1 and 3 of the Royal Decree of Feb. 6, 1950, see supra, p. 533. Another representative of Egypt stressed strongly the right of confiscation, saying: “To judge whether Egypt is entitled to practise the right of visit, search and confiscation of war contraband, reference must be made to the rules of international law. A state of war gives the belligerents certain rights. Foremost amongst these is the incontestable right of visit and search of ships in territorial waters, in ports, in mid-ocean, and in enemy waters, with a view to the confiscation of what is legally considered war contraband.” Official Records, 659th Meeting, Feb. 15, 1954, p. 3, par. 9.

⁵⁰ The Egyptian representative quoted C. John Colombos, The International Law of the Sea, p. 539: “Blockade is the interception by sea of the approaches to the coasts or ports of an enemy with the purpose of cutting off all his overseas communications. Its object is not only to stop the importation of supplies but to prevent export as well.” Official Records, 661st Meeting, March 12, 1954, p. 6, par. 29.

⁵¹ Report dated Nov. 25, 1954, by the Chief of Staff of the United Nations Truce Supervision Organization in Palestine to the Secretary General concerning the Bat Galim incident, U. N. Doc. S/3323; Official Records, 9th Year, Supp. Oct.–Dec, 1954, p. 30 at p. 32, par. 8.

⁵² Ibid, at 30, par. 2.

⁵³ Ibid. at 40, 41, pars. 34, 40. The Egyptian delegate appealed against this decision to the Special Committee provided for in the Armistice Agreement. This committee decided on Nov. 25, 1954, as follows: “The Special Committee finds that the words in the resolution, ‘the Egyptian complaint regarding the Bat Galim case to be unfounded and’ should be omitted, for the following reasons: The Mixed Armistice Commission should not adopt resolutions defining a complaint as ‘unfounded,’ as this may appear as restricting the right of either side to submit any complaint it may deem necessary; furthermore, it is unnecessary to describe a complaint in such terms after the non-adoption of the complaining party’s resolution. This decision is not intended as a judgment on the facts of this particular case, as to which the Special Committee has no competence, nor is it intended as a reversal of the findings of the Mixed Armistice Commission in the resolutions as to the facts.” Ibid. at 42 f., par. 48.

⁵⁴ Ibid. at 41, par. 41.

⁵⁵ See U.N. Docs. S/3326 and 8/3335, ibid. at 44, 45.

⁵⁶ See U.N. Doc. S/3673, p. 8: “The Egyptian Government appropriated the cargo to itself, and has now commissioned the confiscated ship to the Egyptian Navy.”

⁵⁷ Statement by Egyptian representative at 686th Meeting, Dec. 7, 1954, p. 16, par. 79.

⁵⁸ Said the representative of Egypt: “… in the state of belligerency which in our opinion still exists between Egypt and Israel, how can we allow Israel vessels to pass through the Suez Canal without interference, as the Israel representative demands?” Ibid. 24, par. 132.

⁵⁹ Said the representative of Egypt: “What guarantee have we that an Israel merchant vessel passing through the Canal will not be tempted to scuttle itself and thus obstruct the Canal for a considerable period, causing material losses and gravely damaging the interests of maritime Powers in general? Who can say that Israel vessels passing through the Canal will not be tempted even to lay mines in Egyptian territorial waters, either before reaching the Suez Canal or in the Canal itself? Lastly, who can say that Israel nationals on such a vessel will not try to find a way of landing in Egypt in order to damage the Canal or commit acts of sabotage in Egyptian territory?” Ibid., par. 133.

⁶⁰ Ibid. 20, par. 100, and 21, par. 113.

⁶¹ Ibid., pars. 101, 103, 113.

⁶² Ibid. 20, par. 104, and 21, pars. 105–111.

⁶³ Ibid. 23, par. 123. See also pars. 124–131.

⁶⁴ Security Council, Official Records, 549th Meeting, July 26, 1951, p. 10, pars. 10–36.

⁶⁵ This intervention has been regarded as aggression. Said the representative of the United States in the Security Council: “Probably the most important and best evidence we have on that subject is contained in the admissions of the countries whose five armies have invaded Palestine that they are carrying on a war. Their statements are the best evidence we have of the international character of this aggression; it is a word which is not included in the text but which has been mentioned in the statements of these aggressors.” Official Records, 3rd Year, No. 72, p. 41. The former Secretary General of the United Nations said: “The invasion of Palestine by the Arab States was the first armed aggression which the world had seen since the end of the war.” Trygve Lie, In the Cause of Peace 174 (1954)Google Scholar; cf. also 178 ft.

⁶⁶ Julius Stone, Legal Controls of International Conflict 639 (1954).

⁶⁷ Colonel Levie, Howard S., “The Nature and Scope of the Armistice Agreement,” 50 A.J.I.L. 880–906 at 906 (1956).Google Scholar This day, however, in the view of the author, has not yet come. Ibid. 884.

⁶⁸ Stone, op. cit. 641.

⁶⁹ Art. 12, par. 1, U.N. Doc. S/1264/Rev. 1; Official Records, 4th Tear, Spec. Supp. No. 3, p. 8.

⁷⁰ Preamble, ibid., p. 1.

⁷¹ See supra, p. 536.

⁷² Art. 1, par. 3.

⁷³ Sir Frederick Maurice, The Armistices of 1918, p. 98 (1943).

⁷⁴ U.N. Doc. 8/3079, Aug. 7, 1953; reprinted in 47 A.J.I.L. Supp. 186 (1953). It has been said that this “is probably one of the most complete naval provisions ever included in an armistice agreement.” Levie, loc. cit. 906.

⁷⁵ U.N. Doc. S/3185; Official Records, 9th Year, Supp. Jan.–March, 1954, p. 40 at 42.

⁷⁶ Official Records, 4th Year, No. 36, p. 6. See also Shabtai Rosenne, Israel’s Armistice Agreement with the Arab States 45 (1951).

⁷⁷ Official Records, 4th Year, No. 36, pp. 16, 19, 25, 27, 33.

⁷⁸ U.N. Doc. A/3512, Jan. 24, 1957, p. 5, par. 15.

⁷⁹ U.N. Doc. S/1367; Official Records, 4th Year, No. 37, p. 2 f., No. 38, p. 13.

⁸⁰ General W. E. Riley, Chief of Staff, Truce Supervision Organization, in Security Council, Official Records, 516th Meeting, Oct. 30, 1950, p. 22.

⁸¹ Ibid., and Official Records, 518th Meeting, Nov. 6, 1950, p. 20.

⁸² U.N. Doc. S/1907; Official Records, 524th Meeting, Nov. 17, 1950, p. 15.

⁸³ U.N. Doc. S/2194: Cablegram dated June 12, 1951, to the Secretary General from the Chief of Staff of the Truce Supervision Organization, transmitting a report to the Security Council; Official Records, 6th Year, Supp. April-June, 1951, pp. 162–164.

⁸⁴ The representative of Egypt claimed that these findings relate “exclusively to his activities as a self-appointed jurist and as a gentleman-at-large.” Official Records, 549th Meeting, July 26, 1951, p. 17. The United Kingdom representative, on the contrary, believed that “any opinion which he expresses should command great respect in this Council.” Ibid., 550th Meeting, Aug. 1, 1951, p. 20 f, par. 95 f.

⁸⁵ Ibid., 553rd Meeting, Aug. 16, 1951, p. 13, par. 52, and p. 25, par. 108.

⁸⁶ Ibid., 661st Meeting, March 12, 1954, p. 9, par. 43 f. and p. 13, par. 64.

⁸⁷ Ibid., 549th Meeting, July 26, 1951, pp. 9–11, and 661st Meeting, March 12, 1954, p. 29, par. 144. Israel’s representative, after referring to Dr. Bunche’s view, quoted supra, p. 545, and the Report of the Chief of Staff, declared: “… all these are unanimous in asserting that whatever may be the character of other armistice agreements, this Armistice Agreement is not compatible with active belligerency or with the exercise by either party of visit, search or seizure.” See also statement by Peruvian delegate, Official Records, 688th Meeting, Jan. 13, 1955, p. 7, par. 27.

⁸⁸ As well as by a majority of members of the Security Council in voting in 1954 for the reaffirmation of the 1951 resolution.

⁸⁹ The Egyptian representative stated in the Security Council that “this decision of 12 June 1951 was taken after consultation with the United Nations Secretariat, particularly with the Legal Department.” Official Records, 662nd Meeting, March 23, 1954, p. 9, par. 34. This consultation does not appear in public documents of the United Nations.

⁹⁰ See, e.g., the remarks by the American representative: “My Government believes that this may be technically correct, but it is difficult to consider the Egyptian actions as thereby justified merely because the officials who enforce the restrictions cannot be classified as military or para-military forces of Egypt.” Official Records, 552nd Meeting, Aug. 16, 1951, p. 10, par. 45. See also remarks by the New Zealand delegate, ibid., 662nd Meeting, March 23, 1954, p. 5, par. 19.

⁹¹ Cf. supra, pp. 535–536.

⁹² Official Records, 661st Meeting, March 12, 1954, p. 15, par. 74, and p. 17, par. 87.

⁹³ See supra, p. 537.

⁹⁴ Cf., e.g., the remarks of the Netherlands representative, Official Records, 553rd Meeting, Aug. 16, 1951, p. 5, pars. 16–17; of the representative of Ecuador, ibid., p. 27, par. 123.

⁹⁵ [1949] I.C.J. Rep. 4 at 29; 43 A.J.I.L. 558 at 577 (1949).

⁹⁶ Also, and for the same reason, an analysis is omitted of the regime established for the Canal by the United Kingdom in two World Wars, a matter which was raised at some length, though inconclusively, by the representatives of Egypt. See Official Records, 555th Meeting, Aug. 27, 1951, p. 8 f. On this aspect see Baxter, R. R., “Passage of Ships through International Waterways in Time of War,” 31 Brit. Yr. Bk. of Int. Law 187–216 at 196, 206–208 (1954).Google Scholar

⁹⁷ The representative of Egypt said: “It is Article 8 which you should bring into operation, not the Security Council. Apply to the signatories’ representatives in Cairo. You are perfectly entitled to complain of obstacles to the free passage of shipping through the Canal. I believe you know that the signatories are France, Germany, Austria-Hungary, Spain, Great Britain, Italy, The Netherlands, Russia and the Ottoman Empire. These countries exist. They even have successors. … You can find three to call together the signatories’ representatives in Cairo. Take your complaint to them. But to raise the question of free passage through the Suez Canal in the Security Council is Wrong. It is completely at variance with Article 24 of the United Nations Charter.” Official Records, 662nd Meeting, March 23, 1954, p. 14, par. 47. For the remarks of the Soviet representative see ibid., 664th Meeting, March 29, 1954, p. 10, pars. 52–56.

⁹⁸ The Egyptian representative said: “For so far as the Egyptian Government is concerned, the State of Israel has nothing to do with the 1888 Convention. It was not a signatory to the Convention; at the time the Convention was signed it was not yet in existence.” Ibid., 659th Meeting, Feb. 15, 1954, p. 23, par. 123.

⁹⁹ Official Records, 687th Meeting, Jan. 4, 1955, p. 10, pars. 56–57. See also the French statement ibid., 663rd Meeting, March 25, 1954, p. 8, pars. 34–35. Italics supplied.

¹⁰⁰ On the first point, the representative of Belgium stated: “As has been pointed out, the Security Council is clearly not competent to enforce the observance of the Constantinople Convention as such. It does, however, possess such competence through the Charter, insofar as it has to carry out the provisions of the Charter in order to ensure the maintenance of peace and international security. The 1951 resolution was therefore the outcome of a proper use of the Council’s powers, and was not ultra vires.” Ibid., 688th Meeting, Jan. 13, 1955, p. 3, par. 9.

¹⁰¹ This may well have been due to the belief that a resolution would be opposed by the Soviet Union.

¹⁰² Official Records, 549th Meeting, July 26, 1951, p. 21, par. 78.

¹⁰³ Ibid,., 550th Meeting, Aug. 1, 1951, p. 8, par. 42. See pp. 6–8 for authority cited by the representative. See also the representative’s observation ibid., 661st Meeting, March 12, 1954, p. 14, pars. 67–73; 659th Meeting, Feb. 15, 1954, p. 9, par. 50.

¹⁰⁴ See remarks by the British representative ibid., 550th Meeting, Aug. 1, 1951, p. 20, par. 93.

¹⁰⁵ Ibid., 553rd Meeting, Aug. 16, 1951, p. 4, par. 15.

¹⁰⁶ U. N. Doc. S/3596, May 9, 1956: Report of the Secretary General to the Security Council pursuant to the Council’s resolution of April 4, 1956, on the Palestine Question, pp. 13, 14.

¹⁰⁷ See remarks by the Egyptian delegate in Official Records, 686th Meeting, Dec. 7, 1954, p. 25, par. 136 et seq.

¹⁰⁸ Said the Brazilian representative: “Should we accept the Egyptian thesis, we would be bound to recognize any measures of reprisal adopted by the Israel Government.” Official Records, 552nd Meeting, Aug. 16, 1951, p. 12, par. 56.

¹⁰⁹ U. N. Doc. 8/1899; Official Records, 522nd Meeting, Nov. 13, 1950, p. 15, and 524th Meeting, Nov. 17, 1950, p. 15.

¹¹⁰ U.N. Doc. S/2194; Official Records, 6th Year, Supp. April-June, 1951, pp. 162–164.

¹¹¹ Cf. supra, pp. 546 ff.

¹¹² The amendment, which was adopted, related to par. 3 of the draft resolution, the original text of which was: “Noting that the Chief of Staff of the Truce Supervision Organization in his report to the Security Council of 12 June 1951 considered interference with the passage through the Suez Canal of goods destined for Israel to be a hostile and aggressive act, and contrary to the spirit of the Armistice Agreement, the effective functioning of which is thereby jeopardized.” The Yugoslav delegate found this passage to be of exceptional gravity, and the American representative introduced the revision which was adopted. Official Records, 553rd Meeting, Aug. 16, 1951, p. 30, par. 142; p. 31, par. 145, and note 3.

¹¹³ On one occasion, for unexplained reasons, the Soviet Union insisted on a postponement of the debate for 48 hours. Official Records, 556th Meeting, Aug. 29, 1951, p. 6.

¹¹⁴ U.N. Doc. 8/2298/Rev. 1; Official Records, 558th Meeting, Sept. 1, 1951, p. 2. The resolution was subsequently issued as a separate document under the symbol S/2322.

¹¹⁵ See supra, p. 547. Commenting on this on behalf of the three sponsoring Powers, the British delegate said: “The Armistice Agreement was meant to terminate all hostile acts, and it was so understood both by the parties and by the Security Council itself. … The restrictions which applied to Egypt were terminated by the Security Council resolution (S/1376) of August, 1949, and there can be no justification for the attempt by Egypt to maintain against Israel restrictions similar to those from which Egypt itself was released two years ago.” Official Records, 552nd Meeting, Aug. 16, 1951, p. 4, par. 12.

¹¹⁶ In commenting upon it the British delegate expressed himself as follows: “Egypt claims that there is a state of war and that it is therefore entitled to exercise belligerent rights. It is not necessary, in our view, for the Council to pronounce on this. Even if it were self-evident that a state of war existed—which is by no means the case, of course—this would in itself afford no justification for the maintenance of the restrictions at the present time and in the light of the present situation. What matters is not whether there is some technical basis for the restrictions, but whether it is reasonable, just and equitable that they should be maintained. This is the principle on which the draft resolution before the Council has been formulated, and it is on this issue that we consider the Council should pronounce.” Ibid., p. 3, par. 7. Adverting to the same theme later in his speech, he said: “For the reasons which I have already stated, the draft resolution does not attempt to say whether or not Egypt can technically claim to be entitled to belligerent rights. What the draft resolution does say is that, in the light of the Armistice Agreement and of what has taken place since it was signed, the maintenance of the present restrictions is unjustified and unreasonable and must be held to constitute an abuse of any rights which Egypt may claim to possess.” Ibid., par. 10.

¹¹⁷ Ibid., p. 3, par. 11.

¹¹⁸ After the adoption of the resolution, the French representative recalled that several postponements were granted “to give the Egyptian Government time to find a way of adapting its behavior to the obligations incumbent upon it, on the one hand under the Armistice Agreement which it had concluded with Israel, and on the other hand under the international statute of the Suez Canal,” and expressed disappointment that Egypt had failed to do so. Ibid., 558th Meeting, Sept. 1, 1951, p. 5, pars. 18–19.

¹¹⁹ Ibid., p. 7, pars. 28–29.

¹²⁰ Ibid., 553rd Meeting, Aug. 16, 1951, p. 22, pars. 94–95. The Egyptian representative referred to Art. 1, par. 1, which states as one of the purposes “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The sentence referred to in par. 2 of Art. 24 reads: “In discharging these duties the Security Council shall act in acccordance with the purposes and principles of the United Nations.”

¹²¹ Official Records, 687th Meeting, Jan. 4, 1955, p. 10, par. 56. The French representative referred to the Council as the “guardian” of the Armistice Agreement. Ibid., 663rd Meeting, March 25, 1954, p. 8, par. 35.

¹²² With respect to the Constantinople Convention, it is relevant to recall the following statement by the Belgian delegate: “The 1951 resolution was therefore the outcome of a proper use of the Council’s powers, and was not ultra vires. It could not, indeed, be represented in that light, since it contained nothing new and merely restated the provisions of the Convention of 1888. Actually, it restated them only in part, for it referred only to commercial shipping, whereas the Convention was also applicable to warships. Even if the resolution itself were not binding, its provisions would be, since they correspond to provisions which have been binding since 1888.” Ibid., 688th Meeting, Jan. 13, 1955, p. 3, par. 9.

¹²⁸ U.N. Docs. S/3168 and S/3168/Add. 1; Official Records, 9th Year, Supp. Jan.–March, 1954, p. 2, par. 2 and p. 3, par. 4. The aggravation, that is, the extension of confiscatory measures to the Gulf of Aqaba and the inclusion of food among the items to be regarded as “war contraband” was instituted, said the Israeli representative, on Jan. 25, 1954. Ibid., p. 3, par. 3. The decision referred to declares that “Egypt has to take sterner measures to attain the desired end” (ibid., pp. 4, 5), and contrasts sharply with the alleged voluntary relaxation of the restrictive measures by Egypt. See also statement by Israel’s representative, Official Records, 658th Meeting, Feb. 5, 1954, pp. 1 ff.

¹²⁴ He went on to say: “Thus Egypt accepted the Security Council’s decision of 1 September 1951, within the limits of that statement, which made it clear that Egypt was not convinced that the discussion was ended, that in its view the question was not closed and that the decision did not rest on fixed and final foundations. That was our conviction in September 1951. That is still our conviction and we accordingly maintain the same viewpoint and the same position. It is therefore beside the point to state now that Egypt is acting in a manner incompatible with the decision taken by the Security Council on 1 September 1951. Egypt will continue to maintain the same position because it is convinced, as its representative said at the very moment the decision was taken, that the decision was not based on exhaustive studies or on clear opinions.” Official Records, 659th Meeting, Feb. 15, 1954, p. 25, par. 135, and p. 26, par. 136. For the Egyptian representative’s statement at the Sept. 1, 1951, meeting see supra, p. 558.

¹²⁵ See remarks by British and French representatives, Official Records, 663rd Meeting, March 25, 1954, p. 5, par. 23, and p. 7, par. 31. For Egyptian restatements see ibid., 658th Meeting, Feb. 5, 1954, p. 26; 659th Meeting, Feb. 15, 1954, pp. 1 ff., 23 ft.; 661st Meeting, March 12, 1954, pp. 2 ff.

¹²⁶ Ibid., 662nd Meeting, March 23, 1954, p. 4, par. 17.

¹²⁷ Ibid., 663rd Meeting, March 25, 1954, p. 3, par. 12. He continued as follows: “All Member States in ratifying the Charter agreed to a limitation of their sovereignty. If the Council accepted that a Member State that disagreed with one of its decisions, by calling such decisions illegal was not bound by the decision, the work of the Council would become chaotic. For any State ready to shoulder the responsibility for aggression surely would be only too willing to accuse the Council of acting illegally. We might then foresee an entire technique of evasion develop. The smaller nations cannot possibly want such developments to take place.” (p. 4, par. 13.)

¹²⁸ Ibid., 662nd Meeting, March 23, 1954, p. 3, par. 9. See also remarks by the U. S. representative, ibid., 663rd Meeting, March 25, 1954, p. 1, par. 1, p. 2, par. 5; the French representative, ibid., p. 7, par. 31, p. 9, par. 41; the Brazilian delegate, ibid., 664th Meeting, March 29, 1954, p. 5, par. 16; and the Colombian delegate, ibid., p. 5, par. 22.

¹²⁹ Statement by the New Zealand representative, ibid., 662nd Meeting, March 23, 1954, p. 5, par. 21.

¹³⁰ U.N. Doc. S/3188 and Corr. 1; Official Records, 9th Year, Supp. Jan.-March, 1954, p. 44. The final paragraph of the draft resolution refers, “without prejudice to the provisions of the resolution of 1 September 1951,” Israel’s complaint regarding passage through the Gulf of Aqaba to the Mixed Armistice Commission. According to statements by the American, French, and British representatives, the passage of ships through the Gulf was covered by the same principles already enunciated with respect to the Suez Canal. As the question had not yet been considered by the Commission and in order to maintain the normal procedure, it was proposed to refer the question first of all to the Commission. Official Records, 663rd Meeting, March 23, 1954, p. 2, par. 6; p. 6, pars. 27, 28; p. 9, pars. 38, 39.

¹³¹ Ibid., p. 9, par. 41.

¹³² Ibid., 664th Meeting, March 29, 1954, p. 11, par. 61; see also 663rd Meeting, March 25, 1954, p. 6, par. 26, for a similar statement.

¹³³ And for the same reason: “It is convinced that the two texts do not deal with the question as it should be dealt with. The legal element, which is fundamental to this dispute, is completely ignored in both.” Ibid., 662nd Meeting, March 23, 1954, p. 15, par. 49.

¹³⁴ This challenge, based on Art. 8 of the Constantinople Convention, has already been dealt with. See supra, p. 551.

¹³⁵ Official Records, 664th Meeting, March 29, 1954, p. 9, pars. 45–50; p. 10, pars. 52–56.

¹³⁶ Ibid., p. 12, par. 69.

¹³⁷ The first Soviet veto occurred in connection with the question of water from the River Jordan, at the 656th Meeting, Jan. 22, 1954, p. 27, par. 135.

¹³⁸ Ibid., 664th Meeting, March 29, 1954, p. 18, par. 113.

¹³⁹ Ibid., p. 21, par. 141.

¹⁴⁰ The facts of this incident are discussed above, pp. 541 ff.

¹⁴¹ U. N. Doc. S/3323; Official Records, 9th Year, Supp. Oct.-Dec. 1954, p. 30 at 41.

¹⁴² Official Records, 687th Meeting, Jan. 4, 1955, p. 8, par. 46. He went on to say: “Though it would, of course, have left all the questions of principle untouched, this would at least have settled the adventures of this particular ship in a more or less satisfactory manner.”

¹⁴³ Ibid., p. 9, par. 52, and p. 10, pars. 58–59. The Egyptian statement will be found ibid., pp. 5 ff., pars. 33–34.

¹⁴⁴ Ibid., p. 12, pars. 69–70.

¹⁴⁵ “The Belgian delegation cannot but assume that this suggestion is inspired by a desire to bring about a settlement in conformity with the Constantinople Convention.” Ibid., 688th Meeting, Jan. 13, 1955, p. 4, par. 11.

¹⁴⁶ “May I say, quite frankly, that for Israel to set out deliberately to damage the Canal would be an act so patently against its own interests as to put the possibility beyond serious consideration. … There is no justification, therefore, for an Egyptian policy of exclusion against Israel ships desiring to pass through the Canal—a policy which we regard as entirely inconsistent with the intent of the 1951 resolution.” Ibid., p. 10, par. 46. For statements made by Peru, which endorsed the 1951 resolution, and Iran, which avoided the issue, see ibid., p. 7, par. 27, and p. 8, pars. 35–37.

¹⁴⁷ The Brazilian delegate said: “In any case we cannot accept a breach of the Constantinople Convention, any more than we can pass over in silence the fact that a Security Council resolution is being ignored.” Ibid., 687th Meeting, Jan. 4, 1955, p. 14, par. 81.

¹⁴⁸ Ibid., 686th Meeting, Dec. 7, 1954, pp. 22 ff., pars. 120–133.

¹⁴⁹ Official Records, 688th Meeting, Jan. 13, 1955, p. 16, par. 77.

¹⁵⁰ Ibid., p. 20, pars. 99–100.

¹⁵¹ Official Records, 514th Meeting, Oct. 20, 1950, p. 17.

¹⁵² General Assembly Resolution 377 A (V), Official Records, 5th Year, Supp. 20, pp. 10–12 (Doc. A/1775).

¹⁵³ See Official Records, 552nd Meeting, Aug. 16, 1951, p. 12, par. 56 (Brazil); ibid., p. 10, par. 45 (U.S.A.) ; 553rd Meeting, Aug. 16, 1951, p. 3, par. 9 (Netherlands); 663rd Meeting, March 25, 1954, p. 8, par. 34 (France).

¹⁵⁴ Ibid., 663rd Meeting, March 25, 1954, p. 2, par. 6. See also the British statement, ibid., p. 6, par. 27, and the French statement, ibid., p. 9, par. 39.

¹⁵⁵ Report by the Secretary General in pursuance of the resolution of the General Assembly of Jan. 15, 1957. U. N. Doc. A/3512, Jan. 24, 1957, p. 9, pars. 27–28; 36 Dept. of State Bulletin 278 (1957).

¹⁵⁶ See e.g. his statement: “Under these circumstances, it is indicated that whatever rights there may be in relation to the Gulf and Straits, such rights be exercised with restraint on all sides. Any possible claims of belligerent rights should take into account the international interests involved and, therefore, if asserted, should be limited to clearly non-controversial situations.” Ibid., p. 8, par. 25. Under the Armistice Agreement, what would be “clearly non-controversial situations” in which belligerent rights could be asserted?

¹⁵⁷ General Assembly Resolution 273 (III), Official Records, 3rd Sess., Pt. II, p. 18 (Doc. A/900).

¹⁵⁸ Official Records, 686th Meeting, Dec. 7, 1954, p. 21, par. 113.

^158a “The primary issue is not what rights Egypt could exercise as a belligerent under international law, but whether it could assume the status of a belligerent at all without thereby violating fundamental obligations of the United Nations Charter.” Lawyers’ Committee on Blockades: The United Nations and the Egyptian Blockade of the Suez Canal, p. 18 (New York, 1953). See also Rosenne, op. cit. 82 ff.

¹⁵⁹ The question of recognition of Israel by Egypt and the other Arab States is irrelevant with regard to rights and duties of membership. By Egypt’s own admission, legal relations—namely a state of war—exist between Egypt and Israel which are governed by international law.

¹⁶⁰ Art. 103: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

¹⁶¹ Hans Kelsen, The Law of the United Nations 113 (1951).

¹⁶² See also statements by the Israeli representative, Official Records, 516th Meeting, Oct. 30, 1950, p. 11, and 549th Meeting, July 26, 1951, p. 11; and statement by Peruvian delegate, 688th Meeting, Jan. 13, 1955, p. 7, par. 27.

¹⁶³ Stone, Legal Controls of International Conflict 644 (1954): “Certain rules seem to be established with regard to violations of armistice agreements. First, a serious breach, engaging the responsibility of the State which has committed it, gives the other belligerent state a right of withdrawal, if it so elects, and in urgent cases a right of re-opening hostilities.”

¹⁶⁴ See Wright, Quincy, “Intervention, 1956,” 51 A.J.I.L. 257–277 (1957).Google Scholar

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