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Rhetoric and Reality: A Study of Contemporary Official Egyptian Attitudes Toward the International Legal Order

Published online by Cambridge University Press:  28 March 2017

Kathryn B. Doherty
Kathryn B. Doherty*
Affiliation:
Princeton University
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Extract

While there has been general agreement among writers on international law and polities that the recent rapid increase in the number of independent states is significant for the international system, debate about the actual and potential consequences of that increase for the contemporary international legal order continues. Since that debate, which focuses on the attitude of the “new states” toward the existing international legal order, the reasons for that attitude, and the extent to which changes in that order are consequently inevitable, likely or desirable, has so far been conducted primarily on the basis of impressionistic generalities, it appears essential to investigate more closely and empirically the attitudes and behavior of the new states. Egypt has been selected as an important case study because of its leadership in the Arab world, its strategic position in the Afro-Asian world, and its active rôle in the anti-colonial and non-alignment movements, as well as because of its particular yet representative problems and goals.

Type
Research Article
Information
American Journal of International Law , Volume 62 , Issue 2 , April 1968 , pp. 335 - 364
Copyright
Copyright © American Society of International Law 1968

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References

1 The term “new states” has usually been used to refer not only to states which became independent after World War II, but also to all states which fall into one or more of the following categories: Afro-Asian, underdeveloped, or non-aligned states or states whose attitudes toward colonialism, regionalism, and the reform of the existing international system are similar to those of the newly independent states. On problems of classification see P. Hassner, “Le système international et les nouveaux Stats,” in J. Duroselle (ed.), La Communaute’ internationale face aux jeunes fitats 12-13 (1964); and Kichard Falk, “The New States and International Legal Order,” 6-11 MS., Hague Academy, Becueil des Cours, 1966 (forthcoming).

2 The non-European cultural heritage of the new states has been stressed by some writers as an important factor in explaining the attitudes of the new states and in arguing that present-day “Eurocentric” international law should be supplemented by principles taken from non-European legal systems. See Bernard Röling, International Law in an Expanded World 15 (1960); F. S. C. Northrop, The Meeting of East and West (1946), and The Taming of the Nations (1952); J. J. G. Syatauw, Some Newly Established Asian States and the Development of International Law 222-226 (1961). The factor of cultural diversity has been discounted both by those who maintain that the present international legal order embodies principles adequate for an international system of global scope and by those who assert that differing stages of economic development account for differences between new states’ and other states’ attitudes toward international law. For the former, see C. Wilfred Jenks, The Common Law of Mankind 92 (1958); for the latter, Wolfgang Friedmann, the Changing Structure of International Law 321-322 (1965). Interestingly enough, international lawyers from the new states often argue that, although the new states’ goals may differ, their actions and attitudes to international law do not differ substantially from those of older members of the international community. Shihata, Ibrahim, “The Attitude of New States toward the International Court of Justice,” 19 International Organization 203 (1965)CrossRefGoogle Scholar; George Abi-Saab, “The Newly Independent States and the Scope of Domestic Jurisdiction,” 1960 Proceedings, American Society of International Law 84-90; Anand, E. P., “The RÔ1e of the ‘New’ Asian-African Countries in the Present International Legal Order,” 56 A.J.I.L. 388, 405-406 (1962)Google Scholar.

3 “Egypt” has been used instead of “United Arab Republic” because the latter term was adopted only in 1958, while the article deals with earlier periods as well as with the post-1958 period.

4 U.N. Doc. A/C.6/SR.811, 18th Sess., 1963, par. 21. See also Doc. A/C.6/SR.768, 17th Sess., 1962, par. 20; and Security Council, 2nd Yr., Official Records, 175th meeting, Aug. 5, 1947, p. 1753, for the statement by Egyptian Prime Minister Nokrashy that: “Whatever may have been the purpose of international law in the past, we now have the Charter as a solid basis for dealing with a dispute between two Members of the United Nations.“

5 The term “international system” as used in this article denotes a describable pattern of elements and linkages persisting over time abstracted from the myriad phenomena involving interaction between or among official representatives of two or more states. The coming into existence of a new international system, i.e., system transformation, is considered to have occurred when the abstracted pattern no longer corresponds to empirical reality. Eor different ways of abstracting and conceptualizing international systems, see Stanley HofPman, “International Systems and International Law,” in Klaus Knorr and Sydney Verba (eds.), The International System: Theoretical Essays 205-237 (1961); Richard Rosecrance, Action and Reaction in World Politics: International Systems in Perspective (1963); and Morton A. Kaplan, System and Process in International Politics (1957),

6 Security Council, 2nd Tr., Official Kecords, 175th meeting, Aug. 5, 1947, p. 1767.

7 Doc. A/C.6/SB.768, 17th Sess., 1962, par. 21.

8 General Assembly, 20th Sess., Official Becords, 1351st Plenary Meeting, Oct. 7, 1965, par. 56.

9 Inaugural speech by President Nasser at the 1962 Cairo Conference on the Problems of Economic Development, cited in United Arab Republic, The Conference on the Problems of Economic Development 20, 22 (1962).

10 On action by the new states, including Egypt, in connection with S.U.N.F.E.D., see Samaan Boutros Farajallah, Le Groupe Afro-asiatique dans le cadre des Nations Unies 373-390 (1963).

11 United Arab Republic, The Conference on the Problems of Economic Development 323 (emphasis supplied). Using the word “ tax “ indicates a transfer to the international sphere of the welfare-state concept. See also Docs. A/5746, p. 167; A/AC. 119/SB.35, p. 10.

12 Doc. A/C.6/SE.768, 17th Sess., 1962, par. 27, where reference is made to the same point having been stated in the introduction to the Secretary General's Annual Report (Doc. A/5201/Add.l).

13 Doc. A/C.6/SE.811, 18th Sess., 1963, par. 23.

14 For an outline of proposed Egyptian amendments to the Charter to include a strong and explicit statement on revision of treaties, see The Egyptian Society of International Law, Egypt and the United Nations 19-20 (1957) (cited below as Egypt and the UN). Both arguments in favor of treaty revision were used by Egypt in the 1947 Security Council debates on the presence of British troops in Egypt; Egypt maintained that the 1936 treaty was an anachronism in the new world of the Charter and, additionally, that Egypt had agreed to it under coercion and threat of force. Security Council, 2nd Yr., Official Becords, 175th meeting, Aug. 5, 1947, pp. 1747-1767, and 179th meeting, Aug. 11, 1947, pp. 1862-1873; and letter of July 8, 1947, from the Government of Egypt to the Secretary General, U.N. Doc.S/410.

15 Egypt was one of the nine states which submitted the following amendment in the 1966 United Nations Special Committee on Principles of International Law concerning Friendly Belations and Co-operation among States: “Every State shall fulfill, in good faith, its obligations ensuing from international treaties, concluded freely and on the oasis of equality, as well as obligations ensuing from other sources of international law.” (Doc. A/AC.125/L.35, emphasis supplied.) The Egyptian delegate advanced the view that the principle pacta sunt servanda should not entail perpetuation or justification of unjust or advantageous positions “secured by certain colonial Powers or powerful States to the detriment of weak entities, peoples, or small States.” (Doc. A/AC.125/SB.49, par. 16.) In the Sixth Committee Egypt expressed the view that “a sound theory regarding the vitiation of consent could greatly contribute to the solution of the problem of unequal treaties” and that the International Law Commission had done well to recognize and formulate the principle of fundamental change of circumstances as an objective rule of international law. Doc. A/C.6/SB.791, 18th Sess., 1963, pars. 15, 17.

16 Egypt has often expressed the view that the “presence of foreign troops within the territory of a member of the United Nations Organization, in time of peace and without its free consent, constitutes an offence to its dignity, a hindrance to its normal development, as well as an infringement of the fundamental principle of sovereign equality…. “ (U.N. Doc. S/410.) See also Security Council, 2nd Sess., Official Becords, 179th meeting, Aug. 11, 1947, p. 1868, where Egypt argued that the General Assembly resolution of 1946 endorsed the principle that no foreign forces could be stationed in a country without that country's consent “freely and publicly expressed in treaties or agreements consistent with the Charter…. “ In the Special Committee Egypt submitted an amendment stating that “each State has the right to remove any foreign military base from its territory,” apparently regardless of its conventional status. Doc. A/AC.125/L.9, amending A/5746, par. 329/1/1.

17 Doc. A/AC.125/L.21; see also A/AC.125/L.16. On the renunciation of the use of force to settle international disputes, see General Assembly, 3rd Spec. Emergency Sess., Official Eecords, 733rd meeting, Aug. 13, 1958, par. 137. On the question of selfdefense against economic coercion, Egypt has taken the position that the right of selfdefense does not extend to the use of armed force (Eeport of the 1964 Special Committee on Principles of International Law of Nov. 16, 1964, citing the Egyptian statement from the Summary Becords of the 8th Meeting, Docs. A/5746, p. 57; A/AC.119/SB. 8, pp. 8-9). The prohibition against the use of force does not, however, extend to measures of individual or collective self-defense under Art. 51 or to the execution of decisions of authorized organs of the United Nations which are in conformity with the Charter, according to the Egyptian position.

18 Doc. A/AC.119/SE.30, p. 22; also A/AC.125/L.21.

19 Doc. A/AC.125/SB.29, p. 34.

20 In the 1966 Special Committee, Egypt and nine other states submitted an amendment on the principle of equal rights and self-determination of peoples in relation to use of force against the territorial integrity of a state: “Territories under colonial rule do not constitute parts of the territories of States exercising colonial rule.” (Doc. A/AC.125/L.31.) Thus, military aid to anti-colonial movements does not fall under the purview of norms prohibiting use and threat of force. In addition, an amendment to the chapter on intervention stated: “ A i d and assistance given to peoples under any form of foreign domination does not constitute intervention.“ (Doc. A/AC.125/L.12.) Egypt also proposed the following provision for inclusion in the chapter on equal rights: ‘ ‘ Consequently peoples who are deprived of their legitimate right of self-determination and complete freedom are entitled to exercise their inherent right of self-defence, by virtue of which they may receive assistance from other States.” (Doc. A/AC.125/L.31.)

21 Egypt and the U.N. 29, 101-102; Docs. A/C.6/8E.634, 14th Sess., 1959, par. 27; A/C.6/SE.708, 16th Sess., 1961, par. 26; A/C.6/SE.748, 17th Sess., 1962, par. 44.

22 General Assembly, 11th Sess., Official Records, 629th Plenary Meeting, Dec. 20, 1956, pars. 2, 5; Docs. A/C.6/SE.37, 1st Sess., 2nd pt., 1947, p. 6; A/C.6/SE.483, 11th Sess., 1956, pars. 32, 34; A/AC.119/SE.24, p. 5; A/AC.125/SE.29, p. 34.

23 General Assembly, 20th Sess., Official Records, 1351st Plenary Meeting, Oct. 7, 1965, par. 65. The Egyptian position on this question has changed over time. On the question of placing the matter on the agenda of the General Assembly, Egypt abstained in 1950, 1951, 1954 and 1955; voted against placing the question on the agenda in 1952; and voted for doing so from 1956 to 1960 (Farajallah 364). At the 13th Session in 1958, Egypt was a co-sponsor of the resolution to admit mainland China to the United Nations (ibid, at 358).

24 Docs. A/C.6/SE.627, 14th Sess., 1959, par. 4; A/CN.4/175, p. 225. Egypt also suggested that the opening of treaties to adherence by additional states “should be accompanied by a thorough evaluation of the treaties in case of any changes needed to meet new circumstances.” Doc. A/C.6/SE.797, 18th Sess., 1963, par. 17.

25 General Assembly, 20th Sess., Official Eecords, 1351st Plenary Meeting, Oct. 7, 1965, par. 97; Docs. A/C.6/SE.574, 13th Sess., 1958, par. 29; A/C.6/SE.590, 13th Sess., 1958, par. 44.

26 Egypt and the U.N. 27-28; Doc. A/C.6/SE.37, 1st Sess., 2nd pt., 1947, p. 6; on the efforts of the Afro-Asian group to expand membership in the Security Council and Economic and Social Council, see Farajallah 391-412.

27 Doc. A/AC.125/L.35.

28 Docs. A/AC.119/SE. 35, p. 10; A/AC.125/L.9.

29 Letter of Sept. 9, 1956, from President Nasser to the Chairman of the Suez Committee, Cmd. 9856; cited in D. C. Watt (ed.), Documents on the Suez Crisis, 26 July to 6 November 1956, p. 58 (1957).

30 The furtherance of human rights is also linked to peace in the Egyptian view. ” T h e concept of international peace and security and the concept of the individual's welfare from [sic] a single reality.” General Assembly, 20th Sess., Official Eecords, 1351st Plenary Meeting, Oct. 7, 1965, par. 99.

31 Doc. A/C.6/SE.669, 15th Sess., 1960, par. 11.

32 Doe. A/C.6/SB.723, 16th Sess., 1961, par. 1.

33 General Assembly, 20th Sess., Official Becords, 1351st Plenary Meeting, Oct. 7, 1965, par. 97; Doe. A/C.1/SE.1095, 15th Sess., 1960, par. 31.

34 Ibid, at pars. 94-96; Doc. A/C.l/SB. 1182, 16th Sess., 1961, par. 17.

35 Doe. A/C.1/SB.1110, 15th Sess., 1960, par. 38.

36 General Assembly, 20th Sess., Official Becords, 1351st Plenary Meeting, Oct. 7, 1965, par. 72.

37 Doc. A/AC.125/SB.29, par. 34.

38 Doc. A/AC.119/SR.35, p. 10; see also Doc. A/AC.125/L.9.

39 Doc. A/5746, p. 167, on SB.35, p. 12.

40 U.N. Doc.A/1338, p. 7.

41 Doc. A/C.6/SE.559, 13th Sess., 1958, pars. 48-50, on arbitration; Doc. A/AC.125/ SB.29, par. 32, on direct negotiations; on belligerent rights under armistice agreements, Security Council, 6th Tr., Official Becords, 550th meeting, Aug. 1, 1951, pars. 19-33.

42 This interpretation is supported by the Egyptian view that many states, especially the new states, were reluctant to accept the Court's compulsory jurisdiction because “they feared that they would be made subject to customary rules of international law which they did not recognize.” Doc. A/AC.125/SB.29, par. 29.

43 General Assembly, 2nd Sess., Official Becords, 179th meeting, Aug. 11, 1947, p. 1862.

44 Doc. A/AC.125/SE.13, par. 10.

45 General Assembly, 20th Sess., Official Becords, 1351st Plenary Meeting, Oct. 7, 1965, par. 69.

46 Doc. A/AC.125/L.17 (emphasis supplied).

47 Egypt's representative cited Bosalyn Higgins, The Development of International Law through the Political Organs of the United Nations (1963), in support of this interpretation of the Assembly's competence. Doc. A/AC.125/SB.8, par. 30.

48 Australia, Canada, France, Italy, the United Kingdom and the United States proposed to substitute for the portion of the Egyptian resolution beginning with the words “reflects a universal legal conviction … “ the phrase “reflects, inter alia, a large area of agreement among States on the scope and content of the principle of nonintervention.“ Doc. A/AC.125/L.19.

49 Security Council, 6th Yr., Official Eecords, 555th meeting, Aug. 27, 1951, par. 76.

50 Ibid., 553rd meeting, Aug. 16, 1951, par. 97.

51 Egypt and the TJ.N. 85; General Assembly, 2nd Sess., Official Eecords, Ad Hoc Committee on the Palestinian Question, 30th meeting, Nov. 24, 1947, pp. 185-186.

52 Egypt and the U.N. 22-25, 27-28.

53 Doc. A/C.6/SE. 623, 14th Sess., 1959, par. 10.

54 Docs. A/AC.125/SR.29, par. 35; A/AC.119/SE.24, p. 5.

55 Doc. A/AC.119/SE.30, p. 21.

56 Security Council, 19th Yr., Official Eecords, 1174th meeting, Dec. 14, 1964, pars. 6,

57 Doc. A/C.6/SR.44, 1st Sess., 2nd pt., 1947, p. 50.

58 Doc. A/C.6/SR.52, 1st Sess., 2nd pt., 1947, pp. 95-96.

59 Security Council, 6th Yr., Official Records, 555th meeting, Aug. 27, 1951, par. 72. In 1947 Egypt had also requested that the Court be asked to pronounce on the General Assembly's competence to decide on a partitioning of Palestine. General Assembly, 2nd Sess., Official Records, Ad Hoc Committee on the Palestinian Question, 30th meeting, Nov. 24, 1947, pp. 185-186.

60 In 1957 Egypt accepted the compulsory jurisdiction of the Court for the purposes of Art.9(b) of the unilateral Declaration of April 24, 1957, on the Suez Canal, which provides that Egypt will accept the Court's jurisdiction for the purposes of the 1888 Convention on the Suez Canal and the 1957 Declaration. Texts of the Declaration and of Egyptian acceptance of the Court's jurisdiction are in U.N. Docs. A/3576 and A/3576/Add.l, respectively; reprinted in 51 A.J.I.L. 673 (1957) and 52 ibid. 14 (1958).

61 Doc. A/C.6/SR.574, 13th Sess., 1958, par. 26.

62 Doc. A/C.6/SR.559, 13th Sess., 1958, pars. 48-50. In 1955, the Egyptian representative recalled Egypt's reservations on Arts. 2, 28, 29 and 31 of the I.L.C. draft declaration on arbitration and listed points requiring further clarification. Doc. A/C.6/ 8R.466, 10th Sess., 1955, pars. 44-45.

63 Docs. A/AC.125/SR. 29, par. 32; A/AC.119/SR.24, pp. 4-5. At the same meeting (pp. 5-6), the Egyptian representative opposed an appeal by the Committee to states to accept the compulsory jurisdiction of the I.C.J., but did not object to including a reference to the Court in connection with judicial settlement, as he did again in 1966. Doc. A/AC.125/SR.29, par. 33.

64 Egypt and the U.N. 15.

65 Assertions of willingness to negotiate were frequent during the dispute over Egyptian nationalization of the Suez Canal, e.g., President Nasser's letter of Sept. 9, 1956, to the Chairman of the Suez Committee, Cmd. 9856, text in Watt 56-57; letter of Sept. 24, 1956, from the Permanent Representative of Egypt to the United Nations requesting the Security Council to consider actions against Egypt (U.N. Doc.S/3650); and Security Council, 6th Yr., Official Records, 555th meeting, Aug. 27, 1951, par. 57, concerning negotiations on the question of Egyptian restrictions on shipping in the Suez Canal, as well as ibid., 11th Yr., 736th meeting, Oct. 8, 1956, pars. 17-19, concerning negotiation on nationalization of Suez.

66 Docs. A/C.6/SR.669, 15th Sess., 1960, par. 9; A/C.6/SE.723, 16th Sess., 1961, par. 2.

67 Doc. A/C.6/SR.52, 1st Sess., 2nd pt., 1947, p. 160.

68 Doc. A C.6/SR.608, 14th Sess., 1959, par. 8.

69 Doc. A/C.6/SR.513, 12th Sess., 1957, par. 15.

70 Doc. A/C.6/SR.679, 15th Sess., 1960, par. 34.

71 Doc. A/C.6/197.

72 Doc. A/C.6/SR.723, 16th Sess., 1961, par. 3, where Egypt also suggested several other topics.

73 Doc. A/C.6/SR.661, 15th Sess., I960, par. 3.

74 Doc. A/C.6/SR.40, 1st Sess., 2nd pt., 1947, p. 27.

75 Doc. A/C.6/SR.580, 13th Sess., 1958, par. 17.

76 Doc. A/C.6/SR.513, 12th Sess., 1957, par. 16.

77 Doc. A/C.6/SR.552, 13th Sess., 1958, par. 6.

78 Doc. A/C.6/SR.669, 15th Sess., 1960, par. 9.

79 Doc. A/C.6/SE.768, 17th Sess., 1962, par. 28.

80 Doe. A/C.6/SE.744, 17th Sess., 1962, par. 12.

81 On the formation and structure of the group, see Farajallah 1-138; for the degree of congruence in voting on a wide range of issues, see Thomas Hovet, Bloc Politics in the United Nations (1960). Since 1945 the Arab group has met almost daily during General Assembly sessions and intermittently at other times to co-ordinate policy on questions related to the Middle East and to the principle of self-determination. Egypt voted with the Arab majority in all but 1.16% of the votes from 1945 to 1954 and in all cases from 1955 through 1959 (Hovet 57, 61). From 1955 onward, the Afro-Asian group has had frequent meetings to discuss issues of common concern, and has more recently adopted a system of special committees to deal with particular issues. Farajallah 127-134.

82 Farajallah 139-412. He stresses (p. 453) the importance of the group in moderating the policies of its members through the give and take required to arrive at a common position.

83 Farajallah thinks it likely that the Afro-Asian group will divide into smaller interest groups once the issue of colonialism is no longer salient (pp. 456-457), but the cohesiveness displayed at the United Nations Conference on Trade and Development suggests the contrary conclusion.

84 For statements by representatives of the United Kingdom, France, and the United States, respectively, accepting that principle, see Security Council, 11th Yr., Official Eecords, 735th meeting, Oct. 5, 1956, pars. 44, 106, 108; and ibid., 738th meeting, Oct. 9, 1956, pars. 49-50.

85 Ibid., 736th meeting, Oct. 8, 1956, pars. 25-43.

86 Ibid., 735th meeting, Oct. 5, 1956, pars. 22-31, 107.

87 Huang, Thomas T. F., “Some International and Legal Aspects of the Suez Canal Question,” 51 A.J.I.L. 307 (1957).Google Scholar

88 U.N. Doe. A/3576.

89 It is generally believed that withdrawal of proffered American aid to build the Aswan High Dam precipitated Egyptian nationalization of the Canal, and in his speech announcing the nationalization President Nasser alluded to United States withdrawal of aid. Yet, while economic considerations were certainly important, the deeper motivation appears to be political: the attainment of full territorial sovereignty and national dignity. In announcing the nationalization on July 26, 1956, President Nasser said in part: “Now O citizens, as the rights revert to their owners, now that our rights in the Suez Canal have reverted to us after one hundred years, we are building the real foundations of sovereignty and the real edifice of grandeur and dignity.” (Watt 48.) In his letter of Sept. 9, 1956, to the Chairman of the Suez Committee, Nasser stated: “Furthermore, the principle of sovereignty, the right of ownership and the dignity of nations are all deeply involved in this problem.” (Watt 56.)

90 General Assembly, 3rd Spec. Emergency Sess., Official Records, 733rd meeting, Aug. 13, 1958, par. 133: “The conclusion of the final agreement bears out the declarations which have been made by my government from the very outset that adequate compensation would be paid to the shareholders of the former Universal Suez Maritime Canal Company, which has been nationalized.” (Emphasis supplied.)

91 The agreement concluded between the Government of the United Arab Republic and the Compagnie financiere de Suez on July 14, 1958, provides in Art. 3 for payment of 28.3 million Egyptian pounds as compensation to the stockholders of the former Universal Suez Maritime Canal Company and stipulates retention by the Company of assets and liabilities located abroad. (Text in U.N. Doc.A/3898 and 54 A.J.I.L. 498- 505 (I960).) The Company estimated its total assets at $233 million, and the British government estimated the value of the stock of the Company at about 78 million pounds sterling. Huang, loc. cit. 305.

92 Ibid 306-307, referring to a body of opinion at the 1952 Siena Session of the Institute of International Law. See 44 Annuaire de I'Institut de Droit International (Session de Sienne, 1952, II) 251-323

93 In the recent Sabbatino case in the United States courts there was unwillingness to assert the “prompt, adequate, and effective” norm. Relevant sections of the opinions of the District Court, the Circuit Court of Appeals and the Supreme Court are cited in Richard A. Palk and others, The Aftermath of Sabbatino at 115, 129-135, and 163 respectively (1965). Congress responded, however, by passing the Sabbatino Amendment, which instructed the courts to apply the norm in future cases. Text in ibid, at 206.

94 Especially since there was some doubt about Egypt's ability to pay compensation in any case. Huang, loc. cit. 304.

95 In connection with the sequestrations of 1956, the British Government claimed that the value of affected British property was £ (Egyptian) 110 million; the Egyptian estimate was £ (Egyptian) 60 million (12 Chronique de Politique Strangle 391-392 (1959)). The Anglo-Egyptian Agreement of Feb. 28, 1959, stipulated a lump-sum payment of 27.5 million pounds sterling and the return of property not sold. The Franco-Egyptian Agreement of Aug. 22, 1958, provided for “the lifting of sequestration and the restoration of properties and rights to the persons entitled thereto or the payment of an equivalent” (Art. 5) to “cover the whole value” (Art.l(d) of Protocol No. 2.) Texts are in 54 A.J.I.L. 511-518 and 506-510, respectively (1960). The French agreement also provided for resumption of financial, commercial and cultural relations between France and Egypt (Arts. 1 and 2); and the Anglo-Egyptian agreement, for the removal of British Exchange Control restrictions on Egyptian banks and companies (Art. II (a)).

96 The 1961 nationalizations were carried out under Laws Nos. 117-119 of July 19-21, 1961. The first nationalized all banks and insurance companies and “42 large industrial, transport, commercial, financial, and land reclamation companies“; the second, partial nationalization of 82 companies which were to become Arab joint-stock companies in which a public organization would own at least 50% of the shares; the third law prohibited ownership by any person or corporate entity of shares with a market value of more than £ (Egyptian) 10,000 in 148 Egyptian companies. The market value of the stocks affected by these laws was officially estimated at £ (Egyptian) 258 million, of which £ (Egyptian) 33 million was held by foreigners. All three laws provided for compensation in the form of 15-year negotiable bonds bearing 4% interest and redeemable after ten years. No distinction was made between nationals and foreigners with respect to compensation. Issawi, Egypt in Bevolution: An Economic Analysis 58-60 (1963).

97 France and the United Kingdom claimed that many of their subjects were affected by these measures and voiced their complaints through the United Nations. See U.N. Docs. A/3400 and A/3444, France, letters concerning Egyptian treatment of French nationals; and Docs. A/3399 and A/3445, United Kingdom, letters concerning Egyptian treatment of British subjects.

98 U.N. Doc. A/3444.

99 Lassa Oppenheim, International Law: A Treatise 693 (8th ed., Lauterpacht, 1955)

100 Egyptian Jews were also deported and deprived of Egyptian nationality as a consequence of the invasion; by April 12, 1957, it was reported that 12,500 Jews were refugees from Egypt (11 Middle East Journal 285 (1957)). Although under traditional international law the Universal Declaration of Human Eights of 1948, which states that “no one shall be arbitrarily deprived of his nationality,” is not binding upon states, it may be considered at least an expression of relevant community expectations. Egypt would probably contend, however, that the deprivation was not arbitrary, thus identifying “Jews” and “Zionists” and equating the latter with enemy aliens. The tenability of the equation in spirit, if not in letter, is increased by the fact that Israel reacted as though the Egyptian Jews were in fact its nationals. See U.N. Docs. A/3398, A/3412, and A/3457, Israel, letters concerning the situation of Jews in Egypt.

101 For figures on private foreign holdings in Egypt from 1914 to 1948, see Charles Issawi, Egypt at Mid-Century: An Economic Survey 39, 63, 155, 206-208 (1954); on foreign aid, see Said al-Najjar, Foreign Aid to United Arab Republic (n.d.).

102 Israeli complaints have brought the question before the Council on four occasions: Oct.-Nov. 1950; July-Sept. 1951; Eeb.-March 1954; and Nov. 1954-Jan. 1955. Text of the 1951 resolution, U.N. Doc. S/2298/Rev. 1, in Security Council, 6th Tr., Official Records, 558th meeting, Sept. 1, 1951, par. 5. Par. 10 of the resolution states that the commercial shipping and goods through the Suez Canal wherever bound, and to cease all interference with such shipping beyond that essential to the safety of shipping in the Canal itself and to the observance of the international conventions in force.“

103 This argument was presented by Ibrahim Shihata in a conversation with the author in May, 1967.

104 This view was further developed by the contention that the agreement was not sui generis and must be read in the light of the traditional international law governing armistice agreements, and that its provisions, as restrictions on state sovereignty, must be strictly interpreted. Security Council, 6th Yr., Official Records, 550th meeting, Aug. 1, 1951, pars. 19-32; see also 549th meeting, July 26, 1951, pars. 64-68; ibid., 9th Yr., 686th meeting, Dec. 7, 1954, pars. 100-103.

105 Security Council, 6th Yr., 550th meeting, Aug. 1, 1952, pars. 34-43.

106 Ibid, pars. 11-12; and 549th meeting, July 26, 1951, pars. 74, 79.

107 For the interpretation of the effect of the agreement given by Dr. Ralph Bunche, United Nations Acting Mediator on Palestine in 1949, see Security Council, 4th Yr., Official Records, No. 30, Aug. 4, 1949, p. 6. See also the Security Council resolution of Aug. 11, 1949 (U.N. Doc. S/1367), and the interpretation given by General Riley as Chief of Staff of the Truce Supervision Organization, Security Council, 5th Yr., Official Records, 516th meeting, Oct. 30, 1950, p. 22.

108 Ibid., 6th Yr., 550th meeting, Aug. 1, 1951, pars. 33, 42-43, 75. On the distinction between self-defense and self-preservation, see D. W. Bowett, Self-Defence in International Law 10, 22 (1958). Bowett argues that there is no right of self-preservation as such, but only a right of self-defense against illegal aggression. Whether such aggression is confined to the case of “armed attack” is still controversial.

109 “Egypt is the sole judge of the existence of a state of danger menacing her existence and rendering necessary certain acts…. “ The F ild, Prize Court of Alexandria, Nov. 4, 1950, in 1950 Int. Law Rep. at 446. Egypt's non-compliance with the Council's 1951 resolution is a more general indication of its assertion of a claim to auto-interpretation of the requirements of self-defense.

110 Thus, in connection with the passage of Israeli ships through the Canal, Egypt's representative asked: “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 … 1 “ Security Council, 9th Yr., Official Records, 686th meeting, Dec. 7, 1954, par. 133.

111 Ibid., 659th meeting, Feb. 15, 1954, par. 136. Consequently, in 1951, Egypt fully reserved ‘ ‘ its rights in connection with the present debate,'’ and reiterated that position in 1954. Ibid., 6th Yr., 558th meeting, Sept. 1, 1951, pars. 28-29; and Ibid., 9th Yr., 659th meeting, Feb. 15, 1954, pars. 135-136.

112 Note on ‘ ‘ The Security Council and the Suez Canal,'’ 1 Int. and Comp. Law Q. 91 (1952).

113 Gross, Leo, “Passage through the Suez Canal of Israel-bound Cargo and Israel Ships,” 51 A.J.I.L. 568 (1957).Google Scholar

114 Middle East Journal 91 (1966).

115 From a more traditional perspective, however, the two cases are similar, and to the extent that one case is illegal under international law, the second would be so as well.

116 “Basic Chronology for a History of the Yemen,” 17 Middle East Journal 150 (1963); The Economist (London), Dec. 29, 1962, p. 1280.

117 The Economist (London), Oct. 20, 1962, p. 213.

118 17 Middle East Journal 150 (1963).

119 It appears that Saudi intervention was limited to supplying training bases, money, arms and supplies to the royalists. There is no evidence of participation by Saudi troops in the actual fighting.

120 See Report of the Secretary General of the United Nations on the situation in Yemen, April 29, 1963 (V.N. Doe. S/5298), where reference is made to Egyptian troops “sent on the request of the new Government.” (par. 4.) See also the statement by the Soviet representative on the Security Council: “As is well known, military aid was supplied to the Yemen Arab Republic, at its request, by the Government of the United Arab Republic.” Security Council, 18th Yr., Official Records, 1038th meeting, June 11, 1963, par. 13.

121 Until the Egyptian offensive against Harib and Marib in February, 1963, the republicans held only the triangle formed by the major cities of Sana, Taiz and Hbdeida, an area containing about one third of Yemeni territory and two thirds of its population. Harold Ingrams, The Yemen 135 (1963).

122 The United States recognized the republican regime on Dec. 19, 1962; the following day, the Credentials Committee of the General Assembly voted to seat the republican rather than the royalist delegation as the legitimate representative of Yemen, and the Assembly accepted its recommendation. [1962] U.N. Yearbook 148-149; General Assembly Res. 1871 (XVII) of Dec. 20, 1962.

123 Falk, Richard A., “International Law and the United States Role in the Viet Nam War,” 75 Yale Law Journal 1123 (1966)CrossRefGoogle Scholar; Halpern, Manfred, “The Moralityand Politics of Intervention,” in Eosenau, James N. (ed.), International Aspects of Civil Strife 269 (1964).Google Scholar

124 President Nasser's speech of Jan. 9, 1963, in which he accused King Saud and Prince Faysal of originating aggression against the Yemeni Republic. 17 Middle East Journal 152 (1963).

125 On the impermissibility of expanding the territorial scope of an internal war, and the importance of “objective” limits on conflict like international boundaries and recourse to nuclear weapons, see Richard A. Talk, loo. cit. note 123 above, at 1123, 1125-1126, 1132, 1136, and “ Janus Tormented: The International Law of Internal War,” in Rosenau (ed.), op. cit. note 123 above, at 221, note 55, 222, note 58 (1964).

126 An analogous argument about proportionality is made by Falk concerning United States intervention in Viet-Nam, 75 Yale Law Journal 1144-1146 (1966). On the requirement of proportionality, see Myres McDougal and Plorentino Feliciano, Law and Minimum World Public Order 35, 217-218, 241-244 (1961).

127 This statement reportedly appeared in Al-Ahram, Egypt's semi-official newspaper, in 1966. 20 Middle East Journal 385 (1966).

128 On reciprocal self-restraint as the necessary condition of stability in the present international system, see Falk, in Eosenau, op. cit. 235, 248, where he also suggests the inadequacy of reliance on self-restraint and the need for supranational mechanisms.

129 Persians, Macedonians, Romans, Arabs, North Africans, Turks, the French, an Albanian, and finally the British, came to make themselves masters of the “ g i f t of the Nile.” Even the Egyptian dynasty in the nineteenth and twentieth centuries was of foreign origin.

130 This pattern of interaction has been abstracted and discussed at length by Manfred Halpern, Politics in a Traditional Society: Conflict and Change in Islam (mimeographed, 1966); and Toward a Theory of Modernization (mimeographed, 1967).

131 In the ease of negotiations for independence and for the withdrawal of British troops, for example, intransigeance and pressure through demonstrations was a rational and ultimately effective tactic. On the other hand, it is perhaps significant that the experience of long struggle with the United Kingdom led to stress on compulsion rather than persuasion as a technique for goal attainment. ‘’ This was the basic way in which evacuation was achieved—by struggle, sweat, blood, exertion, and the martyrdom of the people who died…. This was the true reason, and not the talks and the negotiations.“ President Nasser's speech of July 26, 1956, announcing nationalization of the Suez Canal Company (Watt 45).

132 Yigael Yadin in “How to Speak to the Arabs: A Maariv Bound Table,” 18 Middle East Journal 149 (1964); see also Joseph Johnson, “Arab vs. Israeli: A Persistent Challenge to Americans,” ibid. 4.

133 For an elaboration of some of these points, see Anwar G. Chejne, ‘ ‘ Arabic: Its Significance and Place in Arab-Muslim Society,” 19 ibid. 447 (1965).

134 Anderson, J. N. D., ‘ ‘ The Significance of Islamic Law in the World Today,'’ 9 Am. J. Comp. Law 187 ff., 198 (1960)CrossRefGoogle Scholar; Liebesny, Herbert J., “Impact of Western Law in the Countries of the Near East, “ 22 Geo. Washington Law Rev. 133 ff. (1953)Google Scholar; Jasper Y. Brinton, The Mixed Courts of Egypt (1930); and Sfeir, George N., “The Abolition of Confessional Jurisdiction in Egypt,” 10 Middle East Journal 248 (1956)Google Scholar. All discuss aspects of this evolution.

135 So pervasive was the French legal tradition in Egypt by the time of British occupation in 1882, that efforts to introduce British law encountered strong resistance. Liebesny, loc. cit. 133-134.

136 However, in connection with the question of definition, it should be noted that Egypt has expressed the view that it is impossible to define the concept ‘ ‘ intervention.'' (Doc. A/AC.119/SR.30, p. 21.) On the other hand, definition of the concept “aggression“ has been emphasized. Doc. A/C.6/SR.661, 15th Sess., 1960, par. 5.

137 For example, with reference to Art. 6 of the Draft Declaration on the Rights and Duties of States (Annex to Assembly Res. 375 (IV) of Dec. 6, 1949), which provided that no distinction should be made on the basis of race, sex, language or religion, Egypt commented that “certain categorical provisions of Moslem law in certain matters relating to personal status, such as the right to contract marriage” are such that “men and women are subject to different rules.” Consequently, the Egyptian Government expressed a reservation on Art. 6 (TJ.N. Doc. A/1338, p. 7). Likewise, Egypt at first objected to any reference to the right to change one's belief or religion, although it later accepted such a provision. Egypt and the TJ.N. 103.

138 Islamic law blurs the distinction between religion, ethics and law, and classifies human acts by dividing them into enjoined, recommended, permitted, disapproved, and forbidden. The basis of jurisdiction in Islamic law is religious rather than territorial. Abdel-Wahab, Salah-Eldin, “Meaning and Structure of Law in Islam,” 16 Vanderbilt Law Rev. 115 (1962)Google Scholar; Khadduri, Majid, “Nature and Sources of Islamic Law,” 22 Geo. Washington Law Rev. 1 (1953)Google Scholar; and Sehacht, Joseph, “Islamic Law in Contemporary States,” 8 Am. J. Comp. Law 133 (1959)CrossRefGoogle Scholar. These articles discuss additional salient differences between the Western and Islamic legal traditions as well.

139 The course of the struggle was marked by Britain's unilateral declaration of Egypt's independence in 1922, the Anglo-Egyptian Treaty of 1936 (173 League of Nations Treaty Series No. 4031, pp. 401-424), the Montreux Convention of 1937, and the 1954 Agreement on withdrawal of British Forces (210 United Nations Treaty Series No. 2833, pp. 3-60). A survey of events with special attention to the negotiations from 1919 to 1936 is Mahmud Y. Zayid, Egypt's Struggle for Independence (1965).

140 Egypt and the U.N. 16-19, 46, 76.

141 It has been suggested that the memory of a golden age of Arab dominion and high civilization, coupled with the still-fresh memory of Ottoman and European domination, make's acute the sense of frustration and inferiority felt by Arabs today. Wilfred C. Smith, Islam in Modern History 93-160 (1957).

142 See the citations at note 89 above.

143 One of the causes of the Revolution was the disillusionment with the regime engendered among Army officers by the Palestine debacle. See Gamal Abdel Nasser, Philosophy of the Revolution (1952).

144 por statistics on birth and death rates from 1935 to 1960 and on population growth during that period, with projections to 1982, see United Arab Eepublie, Maslahat al-'Isa wa-al-Ta'dad, Basic Statistics (1962). Annual population growth is currently close to 3%. For statistics on arable and cultivated land, see ibid, at 5; United Arab Eepublie, Overall Five Year Plan for Economic and Social Development 1960-1965, pp. 330-331 (n.d.); and Doreen Warriner, Land Eeform and Development in the Middle East (1957).

145 For information on laws regulating foreign investments, see Issawi, Egypt at Mid-Century 91; and United Nations, Investment Laws and Eegulations in Africa, U.N. Doc. E/CN.14/INE/28/Eev.2(1965).

146 For specifics, see Cotran, Eugene, ‘ ‘ Some Legal Aspects of the Formation of the United Arab Republie and the United Arab States,” 8 Int. and Comp. Law Q. 347–372 (1959)CrossRefGoogle Scholar.

147 the first four “Eightly-Guided Caliphs” of the Islamic Community and has been most strikingly embodied in the Order of Assassins. Tor a chronicle of such political violence, see Philip K. Hitti, History of the Arabs (1943). Examples of modern political violence include the assassination of Prime Minister Ahmed Maher in the Egyptian Chamber of Deputies in February, 1945 (Egypt and the U.N. 16-17); the 1948 assassination by government agents of Hassan al-Banna, leader of the Muslim Brotherhood; and the assassination attempts against Nasser in 1954 and 1965. It is noteworthy, however, that the Revolution of 1952 was practically bloodless, and that the death sentences of most of those tried by revolutionary military tribunals were first commuted to life imprisonment, then to release after a relatively short period. Robertcommuted to life imprisonment, then to release after a relatively short period. Bobert St. John, The Boss: The Story of Gamal Abdel Nasser 148-149 (1960).

148 In connection with all attempts to establish causal connections, however, it is essential to note that, without comparative analysis of a large number of cases, no firm conclusions can be drawn.

149 the policies of the Iraqi Government and those of Colonel NASSER is clear now: the first, in order to secure scientific know-how, aligned themselves with the Western Great Powers first and then tried to get the Arab people to accept this alignment; the second, in order to secure scientific know-how, leaned on the solidarity of the Arab people and enlisted it in his service first, and then compelled the Great Powers to come down and meet him on his own terms.” G. Moussa Dib, The Arab Bloc in the United Nations 122 (1956). See also al-Najjar, cited note 101 above.

150 E.g., Richard A. Falk, The New States and International Legal Order.

151 Issawi, Egypt in Revolution 308; Manfred Halpern, The Politics of Social Change in the Middle East and North Africa 375 (1963). In Halpern's view: “For Egypt, Arab unity is an issue involving not only political status but economic survival.“

152 See The Economist (London), Oct. 20, 1962, p. 213.

153 Fatouros, A. A., “International Law and the Third World,” 50 Virginia Law Rev. 811–816 (1964)CrossRefGoogle Scholar.

154 On May 8, 1966, President Nasser stated that Egypt was considering development of nuclear weapons because “ Israel is working in this field.” 20 Middle East Journal 383 (1966).

155 A phrase used to refer to all general propositions about international relations by Bull, Hedley, “International Theory: The Case for a Classical Approach,” 18 World Politics 361 (1966)CrossRefGoogle Scholar.

156 The more general usefulness of this insight from psychology is suggested by David Singer, J., “ The Relevance of the Behavioral Sciences to the Study of Internationa] Relations,” 6 Behavioral Science 331 (1961)Google Scholar.

157 On the need for transformation of the international system to cope with modernization and for a sobering picture of the future in the absence of such transformation, see Manfred Halpern, “The Rate and Costs of Political Development,” 358 Annals of the American Academy of Political and Social Science 27-28 (1965).