The International Status of the Suez Canal

146 Pages·1960·4.894 MB·English

by  Joseph A. Obieta S.J. (auth.)

THE INTERNATIONAL STATUS OF THE SUEZ CANAL
THE INTERNATIONAL STATUS
OF THE SUEZ CANAL
by
JOSEPH A. OBIETA, S. J.
s. J. D. (Harvard)
Professoy of International Law
University of Deusto (Bilbao)
WITH A FOREWORD BY
RICHARD R. BAXTER
Professor of International Law
Harvard Law School
THE HAGUE
MARTINUS NI]HOFF
1960
ISBN 978-94-015-0384-6 ISBN 978-94-015-0973-2 (eBook)
DOl 10.1007/978-94-015-0973-2
Copyright 1960 by Martinus Nijhoff, The Hague, Netherlands
All rights reserved, including the right to translate or to
reproduce this book or parts thereof in any form
FOREWORD
At the turn of the century, a definitive history of the Suez Canal
by Charles-Roux, L'Isthme et le Canal de Suez, listed in its bibliogra
phy 1499 items on this major interoceanic waterway. A conservative
estimate would probably set at double, treble, or quadruple this
number the notes and studies on the Suez Canal which have been
published since 1901. A word of explanation about a further work
on the Canal may therefore be called for.
Throughout its history the Suez Canal has been the focus of con
troversy and conflict, arising out of attempts to control this crucial
point on the sea passage linking Europe with the east coast of Africa,
India, the Far East and Australasia. Much of this troubled history
yields more readily to political than to legal analysis. The most
important single legal question about the Canal concerns the dimen
sions of the right of free passage. That question has become of grave
concern to the entire world community only with the war between
the Arab States and Israel and the short-lived conflict of 1956-57
between France, Great Britain, and Israel on the one hand and
Egypt on the other.
The legal literature on Suez which appeared in the period termi
nating with the close of the Second World War was very largely
descriptive and historical, concerned with precedents for passage
under various circumstances, with the peculiar juridical position of
the Compagnie Universelle du Canal Maritime de Suez, and with the
relationships of Egypt with other Powers. The disputed questions
of the post-War period - the closure of the Canal to Israeli vessels
and to ships carrying cargo to and from Israel, the effect of the
Armistices of 1949, the nationalization of the Suez Canal Company,
and the ensuing conflict between Egypt and other States - have not
for the most part been analyzed with that balance and detachment
which the just and consistent solution of legal problems demands.
Many of the scholarly writings may justifiably be characterized as
special pleadings for one party or another. When the problems of
VI FOREWORD
Suez have been discussed in legal terms, as contrasted with the
political utterances which exist in such abundance, the attempted
solution of the legal dispute has suffered from references to such
amorphous concepts as "internationalization" or the quality of being
an "international public utility." The existence of what an American
would refer to, in concepts borrowed from the Constitution of the
United States, as a "case or controversy" has thus been both a
stimulus and a deterrent to accurate legal thinking about the prob
lem of Suez - a stimulus in terms of making the problem both im
mediate and important and a deterrent in making the legal rights
and duties which make up the legal regime of the Suez Canal a
matter of the weightiest political and economic importance.
The central legal problem of the Suez Canal has been and con
tinues to be the extent of the right offree passage through the water
way. The Convention of Constantinople of 1888 and the Egyptian
Declaration of April 24, 1957 have spoken unequivocally and un
ambiguously only as to the free passage of vessels of the signatories
to the Convention of Constantinople under normal conditions pre
vailing in time of peace. There is no unanimity of opinion as to two
other matters of far graver concern to all those nations which rely
in one way or another upon the Suez Canal. The first of these is the
open question of the rights and remedies of States which are not
parties to the Convention in the event their ships should be denied
passage or the Convention modified to their detriment. The second
is the extent of the powers of the United Arab Republic to place
restrictions on passage in the interests of its national security, by
way of closing the Canal, of excluding certain vessels, or of seizing
various categories of ships and cargo found in the Canal.
In this volume, Father Obieta expresses the view that the Con
cession of 1856, seen in its diplomatic context, was a unilateral
declaration which, through acceptance by the international com
munity, imposed on Egypt and its successor, the United Arab Re
public, a duty to afford free passage to the merchant ships of all
nations in time of peace. A corresponding right to freedom of passage
for warships he finds only in the terms of the Convention of Con
stantinople and then only as to the warships of parties to the treaty,
since other nations neglected to adhere to the Convention. These
views are deserving of particular attention, representing as they do
a departure from the commonly held, and perhaps unthinkingly
accepted, view that the rights and duties of all nations find their
FOREWORD VII
origin and their measure in the Convention of 1888. The author
identifies the Egyptian Declaration of 1957 as being, at least tenta
tively and temporarily, the current source of the right of free passage.
The author considers that, as to the second question - the defensive
rights of the territorial sovereign - the practice of States, and more
particularly that of Great Britain and of Egypt as acquiesced in by
others, has given recognition to the right ofthe United Arab Repub
lic to limit passage or to close the Canal in time of war, even as
against signatories to the Convention of Constantinople.
These views and other important conclusions reached by Father
Obieta are based upon a careful examination of the diplomatic
history of the Suez Canal and are judiciously related to the general
fabric of international law. The freshness of vision and the objec
tivity which the author has brought to this study should commend
it to all who are interested in the legal status of Suez and in the
wider question of the manner in which a legal regime is established
through the conduct and agreement of States.
R. R. Baxter
The Law School of Harvard University
Cambridge, Massachusetts
January, 1960
TABLE OF CONTENTS
Foreword. . . . . . . . . . . . . . . . . . . . . .. v
List of Abbreviations. xi
Introduction . . . . . . . . . .
CHAPTER I. Historical Background . . . . . 4
Section I: The Construction of the Canal 5
Section II: The First Years of the Canal. 8
Section III: The Canal under British Occupation 10
Section IV: The Canal under Egyptian Control 18
CHAPTER II. International Canals 22
Section I: Definition . . . 22
Section II: The Establishment of the International
Regime. . . . . . . . . . . . . . .. 26
Problems raised when full consent is given. 27
Problems raised when consent is given in a
Treaty of Peace . . . . . . . . . .. 36
Problems raised when no consent is given 37
Section III: Legal Nature. . . . 39
Section IV: Legal Consequences. . . . . . . . .. 43
CHAPTER III. The Suez Canal from 1854 to 1888: The Inter-
national Canal. . . . . . . . . . 48
Section I: The Intention of the Sovereign . 49
Section II: The Regime of Internationality. 57
Section III: The Other Regimes. . . . . . 61
TABLE OF CONTENTS IX
CHAPTER IV. The Suez Canal from 1888 to 1956: The Neutra-
lized Canal . . . . . 66
Section I: The New Regime . 66
Section II: Legal Effects of the Convention 70
Section III: The Convention in the Practice of States. 78
Section IV: Legal Consequences. . . . . . . . .. 87
CHAPTER v. The Suez Canal since 1956: The Nationalized
Canal. . . . . . . . . . . . . . . . • .. 90
Section I: Legal Character of the Canal Company .. 91
Section II: Effects of Nationalization on the Legal
Regime ofthe Canal . . . . . . . . .. 103
Section III: Legal Guarantees Concerning the Interna
tional Regime . . . . . . . . . . . .. 107
CONCLUSION : The Future . . 111
ApPENDIX A : The Concession of 1856 114
ApPENDIX B : The Constantinople Convention of 1888. .. 119
ApPENDIX C : Security Council's Resolution of October 13,
1956 . . . . . . . . . . . . . . . 123
ApPENDIX D : Egyptian Declaration of April 24, 1957 124
Bibliography 128
Index . . . . . . . . . . . . . . . . . . . . . . .. 132
LIST OF ABBREVIATIONS
A.F.D.I.: Annuaire Franc;ais de Droit International.
A.J.I.L.: American Journal of International Law.
ANNUAIRE: Annuaire de l'Institut de D. International.
ANNUAL DIGEST: Annual Digest and Reports of Public Inter
national Law Cases.
B.C. PRIZE CASES: British and Colonial Prize Cases.
B.F. St. PAP.: British and Foreign State Papers.
DOCUMENTS: Documents on International Affairs. Royal
Institute of International Affairs.
DOC. DIPL.: France, Ministere des Affaires Etrangeres,
Documents Diplomatiques.
I.C.]. : International Court of Justice.
].D.I.P.: J oumal du Droit International Prive
(Clunet).
L.N.T.S.: League of Nations Treaty Series.
PARL. PAP.: Great Britain, Parliamentary Papers.
P.C.I.]. : Permanent Court of International Justice.
RECUEIL: Recueil des Cours. Academie de Droit Inter
national, La Haye.
RD.I.L.C. : Revue de Droit International et de Legis
lation Comparee.
RD.I.S.D.P. : Revue de Droit International, de Sciences
Diplomatiques et Politiques.
RG.D.I.P. : Revue Generale de Droit International
Public.
SURVEY: Survey of International Affairs. Royal
Institute of International Affairs.
U.N.T.S.: United Nations Treaty Series.
U.S. FOR. REL.: Papers relating to the Foreign Relations of
the United States.
INTRODUCTION
On November 17, 1869, amid the splendour of celebrations and in
the presence of royal families and dignitaries from practically all
countries of the world, the Suez Canal was officially opened to the
navigation of vessels of all nations present and future.
The event marked the beginning of a new era in the field of inter
national communications. During the next half century three more
interoceanic canals were inaugurated, the Corinth Canal in 1893, the
Kiel Canal in 1895 and the Panama Canal in 1914.
The impetus thus given to the construction of interoceanic canals
had also its counterpart in the field of legal theory. An increasing
interest in the study and regulation of international waterways was
made manifest not only by the resolutions passed by the learned so
cieties, such as the Institut de Droit International1 or the Inter-Par
liamentary Union,2 but above all by the Conventions and interna
tional Treaties concluded by the great Powers, among which the
Constantinople Convention of 18883 and the Barcelona Conventions
of 1921' are the most conspicuous illustrations.
The important effects, both practical and legal, that followed the
opening of the Suez Canal, were primarily the result of two factors:
first, the extraordinary commercial success which the canal has almost
always enjoyed during its life time; and second, the very peculiar
circumstances which have surrounded its whole history.
Among the reasons that account for the success of the Suez Canal,
its geographical location should be mentioned first. Lying, as it does,
at the cross-roads between East and West, and between the markets
of industrialized Europe and the raw materials of under-developed
Asia, the Suez Canal was necessarily bound to attract the bulk of the
commercial traffic of the world. In 1870, the first year after the Canal
1 Sessions of September 1878. Annuaire, v. 3 (1), pp. 111-118 and 328-350.
2 Conference de La Haye, 1913. Union Inter-Parlementaire, Resolutions de Con
ferences et Decisions Principales du Conseil, II (1911-1934) 13 and 168-170.
8 Parl. Pap., Commercial No.2 (1889), C.5623. See also Appendix B, below.
4 L.N.T.S., 7 (1921-1922) 11.