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Middle East Economic Survey A weekly review of news and views on Middle East Oil

VOL. X NO. 31 2 JUNE 1967

THE STATUS OF THE STRAIT OF TIRAN

by Fayez A. Sayegh

(In the following art icle - exclusive to MEES - Dr. Fayez A. Sayegh examines the status of the Strait of Tiran at the entrance to the Gulf of Aqaba, which has become a focal point of tension in the current Middle East c r i s i s .

Dr. Sayegh is currently Associate Professor of Political Studies at the American University of Beirut. He has been visiting Lecturer at Yale University, visiting Associate Professor in Political Science at Stanford University, and Professor of International Studies at Macalester College.

Professor Sayegh has served at various t imes as adviser or counsellor to the delegations of Lebanon, the Yemen and the Arab League to the United Nations. He was Chairman of the Palestine National Congress in Beirut in 1959; a member of the Executive Committee of the Palestine Liberation Organization (PLO) in 1965-66; and Founder and Director General of the PLO Research Center in Beirut in 1965 and 1966.

He has published seven monographs and books on the Palestine question, in English and Arabic, as well a s books on Arab Unity and on The Dynamics of Neutralism in the Arab World, both in English.)

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The waters of the Strait of Tiran form a par t of the " terr i tor ia l waters" of the United Arab Republic.

The doctrine of " terr i tor ia l waters" in International Law recognizes that the sovereignty of a state extends beyond its land terr i tory to those a r eas of the sea which lie immediately off i ts coast, making a continuous belt of " ter r i tor ia l waters" and forming a par t of i ts domain.

While the doctrine of " terr i tor ia l waters" as such is universally accepted by all members of the international community and recognized in the practice of all states, differences exist over the delimitation of the area of sea recognized as " terr i tor ia l" . The two latest international conferences which dealt with the question of the width of a s ta te 's " t e r r i t o -r ia l waters" (the Geneva conferences of 1958 and 1960) failed to establish a uniform standard acceptable to the majority of s tates . However, there i s no dispute over the minimum width claimed by all states - namely, the traditional three-mile width of " terr i tor ia l waters" -

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though many states have claimed for themselves a reas of sea reaching four, six, nine, twelve or more mi les .

The United Arab Republic a s se r t s i ts sovereignty over a twelve-mile-wide belt of " te r r i tor ia l waters" . But, even if the minimum standard of three miles were to be applied, the waters of the Strait of Tiran would still fall in their entirety within the terr i tor ia l belt thus defined.

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In addition to being an indivisible part of the continuous belt of United Arab Republic " ter r i tor ia l waters" , and, therefore, an integral par t of i ts terr i tory, the a rea between the Island of Tiran and the coast of Sinai at Sharm al-Shaikh (i. e . , the Strait of Tiran, at the mouth of the Gulf of Aqaba) has the additional quality of being a " ter r i tor ia l strai t" under International Law.

Oppenheim-Lauterpacht sums up the universally-recognized rules of International Law governing such situations in the following words:

"All s t ra i t s which are not more than six miles wide are certainly t e r r i to -r ia l . Therefore, s t ra i t s of this kind which divide the land of one and the same state belong to the terr i tory of such state. Thus the Solent, which divides the Isle of Wight from England, and the Menai Strait, which divides Anglesey from Wales, are British; the Straits of Messina a re Italian; and the Great Belt, which divides the islands of Fyn and Sjaelland, is Danish." (L. Oppenheim's International Law; A Trea t i s e , edited by H. Lauterpacht, Volume I, Eighth Edition, Sixth Impression, 1962, paragraph 194, page 510.)

The rules governing passage through such " ter r i tor ia l s t ra i ts" are summed up in the same authoritative source in the following words:

" . . . . the rule that foreign merchantmen cannot be excluded from passage through ter r i tor ia l s t ra i t s applies only when they connect two par t s of the open sea. Where a ter r i tor ia l s t ra i t belonging to one and the same state connects a par t of the open sea with a ter r i tor ia l gulf or bay . . . foreign vessels can be excluded." (Ibid., paragraph 195, page 512.)

The crucial question, then, i s whether tiie Gulf of Aqaba is a " ter r i tor ia l gulf", or whether it i s a pa r t of the "open* sea", under the general rules of the Law of Nations.

HI

The Gulf of Aqaba is a " te r r i tor ia l gulfM. and is possessed of the charac-te r i s t ics of a "closed sea".

Its three li t toral states a re the Arab states of the United Arab Republic, the Kingdom of Saudi Arabia, and the Hashemite Kingdom of Jordan. Its status i s thus analogous to that of the Gulf of Fonseca, which was the subject of a decision by the

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mternational Court of the Central American Republics in 1917. According to that decision, the Court, taking into consideration the geographical and historical conditions, as well as the situation, extent, and configuration of the Gulf of Fonseca, decided that the Gulf must be regarded as "an historic bay possessed of the character is t ics of a closed sea", and that i t therefore was par t of the territories of San Salvador, Honduras, and Nicaragua. (Ibid., paragraph 192, page 508.)

IV

The occupation of the Arab village of Umm Rashrash, on the Gulf of Aqaba, by Israel i forces in 1949, and the establishment of a port there under the new name of Elath, does not alter the Arab territorial character of the Gulf nor deprive it of the characterist ics of an Arab "closed sea".

For, entirely apart from the fundamental question of the legitimacy or illegitimacy of the State of Israel as such, and assuming (solely for the sake of the argument) that this question does not ar i se in the present context, three other considerations govern the status in law of the Israel i occupation of Umm Rashrash and therefore of the Israeli presence on the Gulf of Aqaba:

(1) Umm Rashrash was not allocated to the "Jewish State" in the final apportionment of Palestinian territory recommended by the General Assembly.

(2) The occupation of Umm Rashrash occurred after the issuance, by the Security Council of the United Nations, of several decisions declaring such acts of occupation unlawful, and therefore incapable of creating legal r ights.

(3) The occupation of Umm Rashrash occurred after the conclusion of the Egyptian-Israeli General Armistice Agreement which, inter alia, reaffirmed the said decisions of the Security Council and proclaimed similar prohibitions by the mutual consent of the two par t ies .

It follows from these three considerations, which will be discussed separately below, that the unlawful Israeli presence on the northern tip of the Gulf, being incapable of forming a valid basis for new rights or obligations, in no way affects the status of the Gulf in International Law as an Arab " terr i tor ia l gulf" possessed of all the attributes of a "closed sea".

(1) Although, in its initial recommendations pertaining to the readjustment of the status of Palestine by way of partition (contained in the resolution of 29 November 1947), the General Assembly did envisage the allocation of Southern Palestine, down to the tip of the Gulf of Aqaba, to the proposed "Jewish State", in i ts subsequent action, taken at its Second Special Session in 1948, the General Assembly in effect repealed the partition recommendation.

The Assembly, it will be recalled, held i ts Second Special Session against the background of the refusal of the Security Council to endorse the partition recommendation or to adopt measures to enforce i t Chastened by this fact, the Assembly turned a deaf ear in 1948 to all proposals to reaffirm the 1947 partition recommendation. In fact, a formal draft resolution, specifically embodying such reaffirmation, was withdrawn by its sponsor.

The resolution which was finally adopted (Resolution 186 (S-2) of 14 May 1948, adopted by a vote of 31 to 7, with 16 abstentions) was tantamount to de facto repeal of the partition resolution by the General Assembly. Its most significant features are the following:

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Council on 15 July 1948. The principles governing this truce were enunciated by the Council in i ts Resolution of 19 August 1948 (Resolution S/983), paragraph 3 of which stated:

"Decides pursuant to its Resolution of 15 July 1948, and so informs the Govern-ments and authorities concerned, that:

"(e) No party i s entitled to gain military or political advantage through violation of the t r u c e . "

(b) In i ts resolution S/1045, adopted on 19 October 1948, the Security Council reminded the par t ies of the principles governing the truce. Paragraph 4 of this resolution reads as follows:

"Reminds the Governments and authorities concerned that all the obligations and responsibilit ies of the par t ies set forth in i ts resolutions of 15 July (S/902) and 19 August 1948 (S/938) are to be discharged fully and in good faith."

(c) On 4 November 1948, in Resolution S/1070, the Security Council once again rei terated the principle f i rs t enunciated on 19 August 1948; paragraph 2 of Resolution S/1070 reads:

"Having decided on 19 August that no party is permitted to violate the truce on the ground that it is undertaking repr i sa l s or retaliations against the other party, and that no party is entitled to gain military or political advantage through violation of the t r u c e . "

(d) Finally, in Resolution S/1080, adopted on 16 November 1948, the Security Council "reaffirmed" (in paragraph 1) " i ts previous resolutions concerning the establishment and implementation of the truce in Pa les t ine ."

(3) While the General Assembly did not lend its authority to the Israeli occupation of the Negev (including Umm Rashrash), and while the Security Council repudiated in advance any such occupation, the General Armistice Agreement added the solemn under-taking by Israel that no such occupation would take place.

The Egyptian-Israeli Armistice Agreement, signed on 24 February 1949, stated clearly in Article IV the affirmation of the following principles:

" 1 . The principle that no military or political advantage should be gained under the truce ordered by the Security Council is recognized.

"It i s also recognized that the basic purposes and spiri t of the Armistice would not be served by the restoration of previously held military positions, changes from those now held other than as specifically provided for in this Agreement, or_by_ the advance of the forces of either side beyond positions held at the time this Armistice Agreement i s signed."

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Yet, notwithstanding the suspension of the recommendation of the General Assembly, the decisive prohibition of the Security Council, and the solemn undertaking of Israel , the armed forces of Israel proceeded, on 10 March 1949, to occupy Umm Rashrash.

Such unlawful occupation cannot create legal rights for Israel; it cannot impose legal obligations on the United Arab Republic; and it cannot introduce legal changes into the status of the Aqaba Gulf (and therefore the status of the Strait of Tiran) under the Law of Nations.

Unlike many other s t rai ts , the Strait of Tiran has never been the object of an international convention or treaty restr ict ing the sovereign rights of the littoral state in any manner, or declaring the Strait an "international waterway". In any case, no such convention would be binding on the littoral state without i ts specific consent, under the Law of Nations.

Any declarations now made by any state, or any group of states, to the effect that the Tiran Strait is an "international waterway" or that the Gulf of Aqaba is an "international gulf" or a par t of the "open sea", is in fact no more than a unilateral expres-sion of opinion, which has no effect under International Law on the status of the Strait or the Gulf or on the rights of the littoral state.

VI

The littoral state - namely, the United Arab Republic - has never sur -rendered, by proclamation or in practice, i ts sovereignty or i ts rights over the Strait of Tiran, and has never acquiesced in any claim by any state that the Strait is an "interna-tional waterway".

VH

On the contrary. The practice of Egypt in exercising its full sovereignty in the Strait of Tiran, and in effectively blocking the passage of Israeli shipping as well as non-Israeli shipping carrying strategic goods to Israel through the Strait, from 1949 onwards (without interference by any other power), is further confirmation of the territorial status of the Strait and the Gulf.

It is well known, however, that Egypt's exercise of full, sovereign control over the Strait of Tiran and over the passage of Israeli or Israel-bound shipping through that Strait, was forcibly interrupted in 1956 - when the invasion of Egypt by Britain, France and Israel eventuated in the withdrawal of Egyptian forces from Sharm al-Shaikh and in the stationing therein (after a brief Israeli occupation) of contingents from the United Nations Emergency Force . During the period in which these contingents occupied Sharm al-Shaikh and controlled the Strait of Tiran, Egypt's exercise of i ts sovereign rights in that a rea was perforce suspended. But this temporary and involuntary suspension of the exercise of Egyptian sovereign rights bears no legal effect whatsoever on those rights - the full exercise of which has now been effectively resumed - for the following reasons:

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(1) At no time, during the absence of Egyptian forces from Sharm al-Shaikh, did Egypt (subsequently the United Arab Republic) surrender any of i ts sovereign rights in the Strait.

(2) In as much as the United Nations Emergency Force was assigned, upon i ts establishment by the General Assembly, one sole function (namely, "to secure and supervise the cessation of hostilities" - according to paragraph 1 of Resolution 1000 (ES-1) of 5 November 1956), no action or inaction by the Force could be binding upon the United Arab Republic, or could be construed as altering existing rights or as creating new rights in the area .

VIII

The scope of the sovereign rights which the United Arab Republic can, under International Law, exercise in its " terr i tor ia l wate rs" in the "terr i tor ial Strait of Tiran" with respect to Israeli or Israeli-bound shipping is determined by the crucial fact that the United Arab Republic and Israel are in a state of war.

Far from being terminated by the Armistice Agreement, this state of war i s in effect confirmed by the facts that an Armistice Agreement has been concluded by the two

UlcLl J.L iicto n u t u e c u i c p i a i ; c u uy a. p c a w tXcelty u t iw t & n u i ^ m .

The Armistice Agreement defined those rights of belligerency which the two par t ies undertook to abstain from; all other rights of belligerency, the exercise of which was neither specifically prohibited nor regulated by the Armistice Agreement, remain unaffected by that agreement.

In as much as the Egyptian-Israeli General Armistice Agreement of 24 February 1949 is completely silent about, and does not prohibit or r e s t r i c t the exercise by Egypt of i ts sovereign rights in i ts " ter r i tor ia l waters" and in the " terr i tor ia l Strait of Tiran", Egypt remains completely free to exercise those rights to the extent permitted under the general rules of the Law of Nations. The blocking of Israeli shipping and Is rae l i -bound shipping carrying strategic goods falls within the scope of those rules .

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Finally, it must be stated that at least one aspect of the practice of the United Arab Republic has been specifically concurred in by Israel itself, in the Armistice Agreement of 1949. Article II, paragraph 2, of that agreement stipulates that: "No element of the land, sea or air , mili tary or para-mil i tary forces of either Party, including non-regular forces, shall . . . enter into or pass through the air space of the other Party or through the waters within three miles of the coastline of the other P a r t y . "

The importance of this provision cannot be over-emphasized. At least the following aspects of that importance are relevant to the present discussion:

(1) The prohibition of the passage of mili tary or para-mil i tary Israeli forces through the Strait of Tiran is accepted by Israel itself, and is solemnly announced as an undertaking on its par t .

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(2) No distinction is made between "the waters within three miles of the coastline" of Egypt at Sharm al-Shaikh and the three-mile belt at any other point along the Egyptian coastline. The Strait is not excluded from the general rule governing the entire territorial belt.