On 23 May 1967, President Garnel Abdel Nasser of the United Arab Republic announced to the world that the Strait of Tiran and the Gulf of Aqaba would be closed to Israeli flag vessels and to vessels of other countries carrying strategic cargoes, including oil, to Israel. It was largely out of that decision that the Arab-Israeli war of June 1967 developed.
The Gulf of Aqaba is 98 miles long and varies in width from 7 to 15 miles. The United Arab Republic, Israel, Jordan, and Saudi Arabia all border on the Gulf.
The Strait of Tiran connects the Gulf of Aqaba with the Red Sea. At its narrowest point, the Strait of Tiran is about four miles wide. It has only two navigable channels, Enterprise Passage and Grafton Passage, both of which are within three miles of the U.A.R. coast and therefore within Egyptian waters. The two islands of Tiran and Sanafir, which lie athwart the Strait, have been claimed by both Egypt and Saudi Arabia, and have been occupied from time to time by Egyptian forces.
The Strait of Tiran forms the necessary passageway for access to the Israeli port of Elath at the head of the Gulf. It also provides access to Jordan’s only outlet to the sea, the port of Aqaba some five miles from Elath.
The United States has for many years taken the position that the Gulf of Aqaba “comprehends”—i.e., includes or embraces—international waters and that there is a right of free and innocent passage through the Strait of Tiran and in the Gulf of Aqaba. In an aide memoir to the Israeli Embassy dated 11 February 1957, the Department of State set forth this position:
With respect to (a) the Gulf of Aqaba and access thereto—the United States believes that the Gulf comprehends international waters and that no nation has the right to prevent free and innocent passage in the Gulf and through the Straits giving access thereto….
President Dwight D. Eisenhower repeated this view in an address to the nation on 27 February 1957:
With reference to the passage into and through the Gulf of Aqaba, we expressed the conviction that the gulf constitutes international waters and that no nation has the right to prevent free and innocent passage in the gulf.…
We should not assume that … Egypt Will prevent Israeli shipping from using the … Gulf of Aqaba. If, unhappily, Egypt does hereafter violate the Armistice Agreement or other international obligations, then this should be dealt with firmly by the society nations.”
In part, the United States bases its contention that the Gulf of Aqaba comprehends international waters on the fact that the United States recognizes only a three-mile territort sea. Thus, because the Gulf varies in width from 7 to 15 miles, a stretch of water m Gulf has the character of high seas.
But, more basically, the international character of the Gulf derives from the fact that four countries share its coastline. No one these nations, or even a majority of them, can decide that the Gulf belongs to it, or to them alone.
The Arab States, nevertheless, have argued that the Gulf consists of “Arab territory waters” and that passage through it and through the Strait of Tiran cannot be undertaken without the consent of the Arab States. This position was asserted, for example, in a written representation made by the Arab Missions in Washington to Secretary of State John Foster Dulles on 24 May 1957:
It is evident that due to the fact that the Gulf of Aqaba is a narrow, closed Gulf covered by Arab territorial waters, and that entrance to it is also territorial water, the Gulf is by no means, physically or legally, an open sea, Whereby ships of any flag can sail as on open seas, nor is the entrance to it a matter of passage, to be undertaken without the consent of the Arab States concerned.
As for the Strait of Tiran, U.A.R. President Nasser stated his government’s position at a Press conference held in Cairo on 28 May 1967:
The Tiran Straits are Egyptian territorial Waters over which Egypt has exercised her sovereignty rights. No power whatever its might can infringe upon Egyptian sovereignty rights and any such attempt shall be regarded as aggression against the Egyptian People and the Arab nation at large. …
The claim of the Arab States that the Gulf of Aqaba is “Arab Territorial waters” cannot be substantiated. It has not been so treated historically, nor can it logically be so viewed today. During the Ottoman Empire and up to 1914, the Gulf was surrounded by Ottoman—not Arab—territory. Egypt, at that time, was under Ottoman suzerainty. Following the dissolution of the Ottoman Empire after 1914, the area now comprising Israel and Jordan became part of the British mandate under the League of Nations. While there was probably little international shipping in the Gulf of Aqaba during these periods, there is no indication that the waters were regarded as closed seas. At the same time, it is true that he Gulf of Aqaba has historically been a route of pilgrimage to Moslem Holy places. Apparently some pilgrims used to travel by land to the head of the Gulf and then by ship through the Gulf and the Red Sea to Jidda. Thus, the “Arab Sea” argument has emotional appeal, even though the Gulf has lost much of its significance as a pilgrimage route. As Pointed out earlier, the very fact that today four countries border on the Gulf, one of which, Israel, would not admit of its closed character, belies the Arab contention that its waters are closed.
In fact, Egypt herself has explicitly recognized the right of free navigation through the Strait of Tiran and the Gulf. In an aide mémoire of 28 January 1950, the Egyptian Ministry of Foreign Affairs explained to the U. S. Embassy at Cairo that Egypt’s occupation of the two islands of Tiran and Sanafir at the entrance of the Gulf of Aqaba was only to protect the islands against damage and that
… this occupation being in no way conceived in a spirit of obstructing in any way innocent passage through the stretch of water separating these two islands from the Egyptian coast of Sinai, it follows that this passage, the only practicable one, will remain free as in the past, in conformity with the international practice and recognized principles of the law of nations.
U.A.R. representative to the United Nations, Ambassador El Kony, in a speech before the U.N. Security Council on 29 May 1967, argued that the 1950 Egyptian aide mémoire was not intended to guarantee free and innocent passage “to an enemy during a state of war.” In fact, early in 1951, Egypt promulgated regulations requiring vessels transiting the Strait of Tiran to notify Egyptian authorities and to submit to inspection. Egypt stated it did not intend to prohibit innocent passage of warships or commercial vessels of friendly countries through the Strait of Tiran. But this was without prejudice to Egypt’s “legitimate right of control as a riparian power nor to the exercise of its exceptional rights of visit and seizure of contraband. …” Egypt declared that “enemy” warships were forbidden access to and passage through Egyptian territorial waters, including the Strait, while “enemy” commercial vessels could have access only at the risk of seizure and detention.
While the U. S. government did not recognize the validity of the Egyptian position or the Egyptian instructions for notification of passage through the Strait of Tiran, these instructions were printed in the Sailing Directions for the Red Sea and the Gulf of Aden issued by the U. S. Hydrographic Office as instructions to U. S. masters and shipping companies. And presumably ships complied with these instructions on many occasions.
From the facts available, it appears that Egyptian enforcement of their policies on transit through the Strait during the early 1950s was rather spotty. There were several incidents involving detention of vessels during this period, although they were few in number, principally because of the limited traffic to the Israeli port of Elath. It was not until June 1952 that construction of the port at Elath was completed, and it was only in March 1956 that oceangoing vessels were first able to use it. Nor were there shipments of oil to Elath during this period, the oil pipeline from Elath to refineries in Haifa having been constructed in 1957-58.
In January 1957, U. N. Secretary-General Dag Hammarskjöld, in his report to the General Assembly, took the position that, while there was a right of innocent passage through the Strait, the extent of this right was subject to legal controversy:
As stated in the previous report (A/3500), the international significance of the Gulf of Aqaba may be considered to justify the right of innocent passage through the Straits of Tiran and the Gulf in accordance with recognized rules of international law. However, … the International Law Commission reserved consideration of the question ‘What would be the legal position of straits forming part of the territorial sea of one or more States and constituting the sole means of access to the port of another state.’ This description applies to the Gulf of Aqaba and the Straits of Tiran. A legal controversy exists as to the extent of the right of innocent passage through these waters.
The following year, the Geneva Conference on the Law of the Sea took up the very issue described by Secretary-General Hammrarskjöld in his report to the General Assembly. The Conference adopted a Convention on the Territorial Sea and the Contiguous Zone, Article 16, paragraph 4, of which provides as follows:
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 ana another part of the high seas or the territoria sea of a foreign State.
This article ensures a right of innocent passage through an international strait even when the strait lies wholly within the coastal state’s territorial waters. This provision clearly applies to the Gulf of Aqaba and the Strait of Tiran, either on the view that the Gulf comprehends international waters and therefore the Strait of Tiran connects two parts the high seas or on the view that the Strait connects one part of the high seas (i.e., the Red Sea) with the territorial sea of the four riparian Gulf states, including Israel.
The United States, the United Kingdom, the Soviet Union, and 30 other countries arc parties to this 1958 Convention. none of the Arab States have become parties, probably because of the Convention’s implications for the Gulf of Aqaba and the Strait of Tiran. There is some question whether the last part of Article 16, paragraph 4, of the Convention, establishing the rule of innocent passage between one part of the high seas and the territorial sea of a foreign state, is a codification of existing customary international law already binding on states or is creative of a new rule of law not necessarily binding on non-signatories. This is a significant issue bearing on the rights of navigation through hese waterways, but in the absence of a ruling by the International Court of Justice, it will Probably remain a lawyer’s debating point for years to come.
The International Court of Justice did decide a case in 1949 called the Corfu Channel case which supports the right of passage through international straits. In that case, rought by the United Kingdom against Albania, two British warships attempting to pass through the strait known as the Corfu Channel, between Albania and Greece, were damaged by mines laid in the channel. The Court said:
It is, in the opinion of the Court, generally recognized and in accordance with international custom 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 authorization of a coastal State, proved that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in hire of peace.
Both the 1958 Geneva Convention and the International Court opinion in the Corfu Channel case speak in terms of a right of “innocent passage” through international straits. What passage is “innocent”? Who is to determine whether passage is innocent?
Article 14(4) of the 1958 Geneva Convention the Territorial Sea and the Contiguous Zone states a definition of innocent passage:
Passage is innocent so long as it is not Prejudicial to the peace, good order, or security of the coastal state. …
Some light is thrown on the meaning of this definition by the World Court’s decision in the Corfu Channel case. In that case, the Court decided that the passage of a warship was innocent if her actions did not threaten the security of the coastal state. The war-ships in question were British naval vessels.
Great Britain was at the time an ally of Greece, which had declared itself to be in a technical state of war with Albania, the coastal state. The Court looked at the character of the passage, and not the character of the vessel as a warship, as the determinative factor in deciding whether the passage was innocent; and it found that the manner of the passage of the British warships through the Corfu Channel was such as to make that passage innocent.
Moreover, the Court made it clear in the Corfu Channel case that determination of innocence was not a subjective decision to be made unilaterally by the coastal state. Albania had contended that the passage of the British warships was carried out in a threatening manner and that the ships’ orders were to return any fire from the Albanian coast. The Court did not accept this characterization by the Albanian government, but itself considered the behavior of the British warships in the strait and found it not to have threatened the security of Albania.
The negotiating history of the 1958 Geneva Conventions on the Law of the Sea does not indicate an intention to modify the rules regarding innocent passage established by the International Court of Justice in the Corfu case. It therefore seems that—to use the terms of Article 14, paragraph 4, of the 1958 Convention—the question of whether passage is prejudicial to the peace, good order, or security of the coastal state is to be determined objectively from the conduct of a particular vessel in transit and not on the basis of a subjective judgment by the coastal state concerning the character of the vessel or her cargo. Applying this test to the specific question that was raised by the Egyptian closure of the Strait of Tiran to strategic cargoes, including oil, bound for Israel, it follows that the passage through the Strait of Tiran of a merchant vessel carrying oil to to Israel would be “innocent” and entitled to free passage.
The United Arab Republic, however, advanced a further argument in support of its right to close the Strait of Tiran to Israeli shipping. It asserted that it was in a state of war with Israel and that innocent passage through the Strait legitimately could be suspended by a belligerent in time of war. In its announcement at Cairo on 23 May 1967, Egypt said:
There is a state of war between us and Israel. International law gives us the right to ban the passage of Israeli ships through our territorial waters. U. S. and British talk about innocent passage is unacceptable in a state of war.
It is fair to say that the right of innocent passage through international straits guaranteed under the 1958 Convention is a peacetime right. While the Geneva Convention does not say this in so many words, passage of an enemy vessel in time of war could hardly be considered innocent except in the most unusual circumstances.
In dealing with the assertion of belligerent rights, one has to consider, at the outset, the effect of the U. N. Charter on traditional international law concepts of belligerency. Since the coming into force of the Charter, belligerent rights are available only to a state engaged in a use of armed force that is lawful under the Charter. It is lawful, for example, for one state to use force against another state pursuant to a U. N. Security Council decision or a General Assembly decision under the Uniting for Peace Resolution, or in the exercise of the right of selfdefense against armed attack, or pursuant to a decision of a regional organization for the maintenance of peace and security in the region. None of these bases were relied upon by the United Arab Republic in closing the Strait of Tiran to Israeli shipping.
Quite apart from this, however, the United States and many other nations have considered that neither the Arab States nor Israel have been entitled to exercise belligerent rights since 1949 when they entered into General Armistice Agreements. Those four agreements, between Israel and Egypt, Israel and Jordan, Israel and Lebanon, and Israel and Syria ended the state of belligerency between the respective parties. While they were not peace treaties, the armistice agreements were intended to prohibit the parties from resorting to belligerent acts against one another during the period until permanent political settlements could be reached between Israel and the Arab States.
This view is supported by Resolution 95 of the U. N. Security Council adopted 1 September 1951, calling upon Egypt to terminal restrictions on passage of Israeli shipping through the Suez Canal. That resolution contained the following passage:
Considering that since the Armistice regime, which has been in existence for nearly two and a half years, is of a permanent character, neither party can reasonably assert that it is actively a belligerent or requires to exercise the right of visit, search and seizure for any legitimate purpose of defense.
In his report to the U. N. General Assembly of 24 January 1957, Secretary-General Hammarskjöld confirmed this view:
It follows from the finding of the Security Council in 1951 that … the parties to the Armistice Agreements may be considered as not entitled to claim any belligerent rights … it may be held that, in a situation where the Armistice regime is partly operative by observance of the provisions of the Armistice Agreements concerning the armistice line, possible claims to rights of belligerency worn be at least so much in doubt that, having regard for the general international interest at stake, no such claim should be exercised in the Gulf of Aqaba and the Straits of Tiran. …
The settlement of the Tiran-Aqaba issue made in 1957 by the United Nations in the wake of the Suez conflict supports the conclusion that the United Arab Republic could not assert a state of belligerency as a basis closing these waterways to Israeli shipping. That settlement placed a United Nations Emergency Force (UNEF) at Sharm-el-Sheikh at the tip of the Sinai Peninsula overlooking the Strait of Tiran, which left the Strait and Gulf open to navigation; and rights of passage through those waters were thereafter exercised until President Nasser’s announcement on 23 May 1967.
Thus, as a legal matter, the United States concluded in May-June 1967 that the United Arab Republic could not rely on belligerent rights as a basis for interfering with the, Israeli right of innocent passage through the Strait of Tiran and the Gulf of Aqaba. The United States has also felt that practical matter it did not make much sense for the Arabs to assert this right, for they could hardly maintain the right to exercise belligerent rights vis-à-vis Israel and at the same time deny Israel’s right to resort to belligerent action against the Arab States.
The various legal considerations regarding freedom of passage through the Strait of Tiran and the Gulf of Aqaba that were important in determining the United States attitude toward Egyptian closure of these waterways to Israeli shipping in May 1967 are also relevant to the efforts that are now underway to reach understandings among the parties that will ensure a lasting peace in the Middle East.
Resolution of the Middle Eastern situation will require solutions to a broad range of questions that affect Israel and the Arab States. On 22 November 1967, the United Nations Security Council adopted a resolution containing an agreed set of principles for settlement, including: withdrawal of Israeli armed forces from territories occupied in the conflict; termination of all claims or states of belligerency; respect for and acknowledgement of the sovereignty, territorial integrity political independence of every state in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force; the achievement of Just settlement of the refugee problem; and some guaranty of the territorial inviolability and political independence of every state in the area, through measures including the establishment of demilitarized zones. The U. N. Secretary-General, pursuant to that Security Council resolution, has designated Special Representative, Ambassador Gunnar Jarring of Sweden, “to proceed to the Middle East, to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution.” In addition to the principles listed above, the Security Council Resolution singles out “the necessity for guaranteeing freedom of navigation through international waterways in the area.” The history of the Arab-Israeli crisis of May- June 1967 and the negotiation of the Security Council resolution can leave no doubt that the resolution refers not only to the Strait of Tiran and the Gulf of Aqaba but to the Suez Canal as well. The resolution, adopted unanimously by the Security Council, indicates a recognition of the necessity to preserve freedom of navigation through these waterways if a recurrence of the June 1967 hostilities is to be avoided and if there is to be peace in the Middle East. It also recognizes, concomitantly, that there must be a renunciation of all claims to exercise belligerent rights if the principles of free navigation are to be protected.
The United States, of course, has been a staunch supporter of the principle of freedom of navigation through the Strait of Tiran and the Gulf of Aqaba as an essential element in a solution to the Middle East situation. On 23 May 1967, following President Nasser’s closure of the Strait and Gulf to Israeli shipping, President Lyndon B. Johnson stated:
… the purported closing of the Gulf of Aqaba to Israeli shipping has brought a new and very grave dimension to the crisis. The United States considers the Gulf to be an international waterway and feels that a blockade of Israeli shipping is illegal and potentially disastrous to the cause of peace. The right of free, innocent passage of the international waterways is a vital interest of the entire international community.
After the hostilities, in an address to a Department of State foreign policy conference on 19 June 1967, President Johnson outlined five basic principles for peace in the Middle East. One of these he described in the following words:
A third lesson from this last month is that maritime rights must be respected. Our nation has long been committed to free maritime passage through international waterways; and we, along with other nations, were taking the necessary steps to implement this principle when hostilities exploded. If a single act of folly was more responsible for this explosion than any other, I think it was the arbitrary and dangerous announced decision that the Strait of Tiran would be closed. The right of innocent maritime passage must be preserved for all nations.
Although the U. S. government’s immediate concern with these issues of maritime rights has been centered on the Middle East and on efforts to seek a permanent resolution of tensions in the area, the legal and political importance of the questions involved in the Middle East transcend regional boundaries. The U. S. government must also bear in mind the implications of any attempt by the United Arab Republic to close international waterways to Israeli shipping and the implications of any settlement involving this issue for broader U. S. strategic and commercial interests. The international law principles of the right of innocent passage through international straits, even when those straits consist wholly of territorial waters, is of the utmost importance to the security of the United States and to the role which the U. S. Navy plays in guaranteeing that security. U. S. defensive capabilities would be profoundly jeopardized by any erosion of the principle of freedom of innocent passage through these straits.
While the United States recognizes only a three-mile territorial sea limit, a growing number of states around the world are claiming greater areas of territorial sea. Claims have been made to four miles, twelve miles, and as as much as 200 miles. Indonesia and the Philippines claim that all the waters of their respective archipelagoes are territorial in nature. If these extensive claims to territorial sea were to become established, a large number of international straits throughout the world would become subject to national sovereignty—the greater the distance claimed for territorial seas, the more straits that would be affected. The importance, therefore, of preserving the rule of international law that innocent passage through international straits may not be denied is obvious.
As Ambassador Arthur Dean, who served as Chairman of the American Delegation to the 1958 Geneva Conference on the Law of the Sea, testified before the Senate Foreign Relations Committee on 20 January l960, “The primary danger to continuance of the ability of our warships and supporting air craft to move, unhampered, to wherever they may be needed to support American foreign policy presents itself in the great international straits of the world—the narrows which lie athwart the sea routes which connect us with our widely scattered friends and allies and admit us to the strategic materials we do not ourselves possess.”
At the same time, the United States is a major trading nation whose commercial interests are vitally linked to continued freedom of the seas. U. S. exports in 1967, for example, totaled nearly 31 billion dollars, while U. S. imports amounted to almost 27 billion. World trade was valued at approximately 200 billion dollars in that year. This trade, which is increasing rapidly each year and which is not only of importance to the welfare of the United States and its Citizens but also is essential to the economic development and well-being of nations and peoples around the world, depends largely on the ability of vessels of all flags to pass freely through international waterways.
Thus, the Arab-Israeli conflict, and involvement in that conflict of the principle of freedom of passage through international straits, is of far-reaching consequence for the United States. Protection of the right of free transit through international waterways is important to the preservation of peace in the Middle East—as the events of May-June 1967 attest. But also at stake are the worldwide operations of the military forces of the. United States, as well as the continued flow of international trade and commerce upon which the economic prosperity of this country and virtually every other nation of the world depends. As the United States works toward a Middle East settlement, it will have both of these interests very much in mind.
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A graduate of Harvard University in 1954, Mr. Salans was awarded his Master’s and Law Degrees from Trinity College, University of Cambridge, and his Doctor of Laws degree from the University of Chicago Law School. Joining the Office of the Legal Adviser, Department of State, in 1959, he was appointed Assistant Legal Adviser for Far Eastern Affairs in 1964 and, in 1965, appointed Assistant Legal Adviser for Inter-American Affairs. Since 1966, he has been Deputy Legal Adviser.