On 26 July 1956, Egypt nationalized the Suez Canal. The Egyptian President promised to respect the terms of the 1888 Constantinople Convention guaranteeing the freedom of navigation through the Canal to ships of all nations. But Israel was to be excluded. In October 1956, all efforts to reach an agreement with Nasser regarding the future operation of the Canal failed. The Great Powers turned to the Security Council and sought a Resolution ensuring freedom of navigation and a measure of international supervision of that major waterway. A Resolution containing six points was unanimously adopted by the Council (Document 10). On 13 October 1956, Ambassador Eban presented a memorandum to the Council containing the Israeli case. Excerpts follow:
1. The Egyptian Blockade in Practice
A discussion of Egypt's current practice in the Suez Canal requires an allusion to two statements of its legal obligations.
Article 1 of the 1888 Convention reads:
"The Suez Maritime Canal shall always be free and open in time of war as in time of peace to every vessel of commerce or of war without distinction of flag. "Consequently, the high contracting parties agree not in any way to interfere with the free use of the Canal in time of war as in time of peace. "The Canal shall never be subjected to the exercise of the right of blockade."
On 1 September 1951, the Security Council, having examined an Israel complaint and an Egyptian counter-argument, called upon Egypt:
". . . to terminate the restrictions on the passage of international commercial ships 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. "
In May 1948, during a military intervention, launched and maintained in defiance of Security Council resolutions for a cease-fire, Egypt established a general blockade against Israel and began to visit and search ships of all nations passing through the Suez Canal. The Egyptian Government established a long list of items including ships, important categories of goods, and particularly petroleum, as subject to seizure as "contraband" if found destined for Israel. Vessels transporting or suspected of transporting such goods were detained for visit and search. Cargoes of certain categories were removed and confiscated. These enactments were later formalized in an official decree on 6 February 1950.
In September 1950, these restrictions were enlarged by a decree requiring a guarantee by ships' captains, and, in particular, by captains of oil tankers, that their ships would not ultimately discharge any of their cargo at any Israeli port. Another regulation, still in force, calls for the submission of log books by tankers intending to proceed southward through the Suez Canal. Vessels found to have called at any port in Israel are placed on a blacklist and denied stores, fuel and repair facilities in Egyptian ports, including those at each end of the Suez Canal.
The threat of forcible interference acts as a deterrent to the great bulk of the normal trade which would otherwise pass through the Suez Canal to or from Israel For example, the hundreds of oil tankers which pass annually through the Canal are allowed transit only on condition that they avoid any destination in Israel. Thus the blockade operates in two forms: primarily, through the deterrent effect of Egyptian Decrees and regulations; and secondarily, through active interference with vessels, in the few cases where the regulations themselves have not been sufficient to deter the attempted voyage.
The basic legislation under which the Egyptian authorities obstruct free navigation in the Suez Canal is to be found in the decree of 6 February 1950, the Arabic text of which was published in the Egyptian Official Journal (No. 36) dated 8 April 1950. Article I reads:
"The searching of ships for purposes of seizing war contraband shall take place in accordance with provisions hereunder."
Article III provides:
"Force may at all times be used against any ship attempting to avoid the search. Where necessary by firing so as to force it to stop and submit to the search. Where the search subsequently reveals that the ship is not carrying any contraband, it shall be permitted to continue its voyage. "
This language should be compared with that of the 1888 Convention requiring free passage, in time of war or peace, for all vessels without distinction of flag.
Article IV of the Egyptian decree states:
"If the crew of the ship resists the search by force, the ship shall be deemed to have lost its neutrality by reason of the hostile act. In that event, a ship may be seized even if the search reveals that it was not carrying contraband and the cargo may be impounded for that reason."
It is instructive to compare the language of these sordid enactments with the lofty terms of the 1888 Convention, consecrating the Suez Canal as an international waterway open to navigation by all ships on the highest level of universality and equality. But the 1950 decrees are not the end of the legislative history. They are followed by other regulations, all tending to aggravate the original resolution.
Thus, an amendment to the decree of 6 February 1950 was published on 28 November 1953, adding the following paragraph to the list of goods liable to seizure as contraband:
The maritime Powers which use the Canal have expressed their revulsion at these arbitrary restrictions. Most of them have protested against them either in the Security Council, or in their direct relations with the Egyptian Government. None of them recognizes any legality in these decrees. But they remain in force. To resist them would require more resolution than the maritime community has yet shown. This becomes apparent when we record the stringency with which these regulations are applied.
The decree of 6 February 1950 established a blacklist of ships which, having transgressed or been suspected of transgressing against the Egyptian blockade practices, are to be denied the free use of the Suez Canal. The latest available edition of this list contains 104 ships, inscribed between 1950 and 1955 for the "offence" of having exercised their rights under the 1888 Convention to trade freely through the Suez Canal. The ships are of British, United States, Swedish, Greek, Norwegian, Dutch, Danish, Panamanian, Liberian, Swiss, Costa Rican and Italian nationality. Thus, all these nations have been deprived of an essential part of their rights under the 1888 Convention. Under an Egyptian law, which constitutes the standing orders of Egyptian officials in the Suez Canal, cargo carried on these ships shall "be deemed intended for the enemy" and subject to confiscation and seizure, while the ships themselves would be denied the essential facilities necessary for passage through the Suez Canal. The existence of the blacklist is, therefore, the most stringent of the deterrents whereby Egypt has prevented trading with Israel through an international waterway.
As a result of these illicit enactments imposed on the maritime Powers, some ninety per cent of the trade which would have normally flowed through the Canal to or from Israel in the past eight years has been effectively obstructed.
Notwithstanding the Egyptian decrees, some ships have attempted to exercise the rights conferred on them by the 1888 Convention.
On 31 October 1952, a cargo of meat on the Norwegian vessel Rimfrost proceeding from Massawa to Haifa through the Suez Canal was confiscated. Under international pressure the cargo was returned in useless condition three months later.
On 2 September 1953, the Greek ss Parnon, with a cargo of 500 tons of asphalt and a number of Israel-assembled cars, was detained in the Canal under threat of confiscation of cargo and ship. Under intensive pressure by the interested Powers the ship was allowed to proceed, having lost 12 days of its journey.
On 4 November 1953, the Norwegian vessel Rimfrost was again detained in the Canal and two boats destined for Italy were removed.
On 16 December 1953, the Italian ship Franca Mari, with a cargo of meat and hides, was stopped on the way from Massawa to Haifa. The cargo was confiscated. The ship was eventually permitted to proceed.
On 22 December 1953, the Norwegian vessel Triton, bound from Melbourne to Genoa via Israel, with a cargo of clothing and motorcycles, was stopped in the Canal and its cargo confiscated.
On 28 September 1954, the Israel freighter Bat Galim, bound from Eritrea to Haifa with 93 tons of meat, 42 tons of plywood and 30 tons of hides, was detained in the Canal and exposed to the following treatment: its cargo was confiscated, and its crew was thrown in jail under a fictitious charge of having opened fire on Egyptian fishermen at the entrance to the Canal. False names for the alleged fishermen were fabricated. The Egyptian-Israel Mixed Armistice Commission dismissed the Egyptian story as a total fiction. By this time, the fabrication had been widely published by high officials of Colonel Nasser's Government, and had even been proclaimed in the Security Council of the United Nations. Under the influence of Security Council discussions, the Egyptian Government released the crew from prison, transferred them by land to the Egyptian-Israel frontier, and dismissed them across the boundary. The Egyptian representative in the Security Council then gave an undertaking that the ship and its cargo would be returned. This undertaking was violated. The Egyptian Government appropriated the cargo to itself, and has now commissioned the confiscated ship to the Egyptian Navy.
It is difficult to think of a larger aggregate of offences against international law and maritime tradition than those which Egypt compressed into the single episode of the Bat Galim. There is obstruction of free navigation; piratical seizure of a ship in an international waterway; physical violence against the persons of mariners exercising innocent passage; fabrication of charges against sailors in transit; unlawful imprisonment; the bearing of false witness from the highest tribunals of international security; dishonourable nonfulfilment of a pledge given by a member nation at the table of the Security Council. All this was done by a Government which claims to be an adequate custodian of universally established maritime rights.
On 8 July 1955, the Dutch ship Fedala was detained en route from Massawa to Haifa. Part of its cargo was confiscated and the vessel held against its master's will for three days.
On 25 May 1956, the Greek ship Pannegia, en route from Haifa to Eilat, was detained in the Suez Canal with a cargo of 520 tons of cement. The crew was not allowed ashore for three months despite the spread of sickness amongst its members. Its water provisions were cruelly limited. In a statement made at Haifa on 10 September 1956, the Greek captain, Mr. Koutales Costa, has given a full account of the inhuman harassments to which he and his crew were subjected.
It will be seen that those few ships which are not frightened off the Israeli route by the deterrent effects of Egypt's blockade legislation have been subjected, at the whim and fancy of the territorial State, to acts of force against their flag, their cargoes, the authority of their masters and the persons of their crews.
Egypt has confiscated and held goods of the value of $5,600,000 seized from ships exercising innocent passage in the Suez Canal.
Not one of the immunities prescribed by the Constantinople Convention has been held in honour by the Egyptian Government in the record of these eight years
It is legitimate for Israel to invite the Security Council to read the language of the Egyptian blockade laws; to scan the blacklist of ships warned by Egypt off an international highway; to think of the ordeals of the peaceful vessels and crews listed above; and then to ask itself how all this compares with the Egyptian Foreign Minister's quotation on 8 October to the effect that the Canal "shall always be open as a neutral passage to every merchant ship crossing from one sea to another without any distinction, exclusion or preference of persons or nationalities. "
The ships which have attempted to pass through the Canal to Israel are few in number; but this fact aggravates and does not diminish Egypt's offence. The blockade works principally through the existence of the regulations and their deterrent effects and only secondarily through active assault and confiscation. With tanker traffic entirely intimidated by the inclusion of some 75 tankers on the blacklist and with Israeli flagships confiscated at sight two categories which would account for the great bulk of normal traffic have been entirely excluded from the waterway. The more traffic passing through the Canal for non-Israeli destinations, and the fewer for Israeli destination, the more effective and drastic is the blockade proved to be....
III. The Future
The Security Council has no more urgent task in the Suez Canal problem than to secure the implementation of its existing decision. If the Security Council and the chief maritime Powers had shown greater zeal in resisting the violations of the 1888 Convention during the past eight years they would be in a stronger position to defend its integrity today.
I invite the Security Council to consider some of the grave implications which will arise if these abuses are allowed to endure:
If the violation is any longer condoned, it is bound to spread over a larger field. No nation has a greater or a lesser right than Israel to the free use of the Suez Canal. If Egypt is entitled to interfere with ships, cargoes or crews bound for Israel, it is equally entitled to interfere with the ships, cargoes or crews of every other State. This is clear from the fact that any distinction between Israel's rights and those of other States has been specifically repudiated by the Security Council itself. Those who have now understood the dangers of Egypt's policy on navigation in the Canal will, no doubt, agree that no nation can effectively assert its own rights, if it condones the denial of an equal and identical right to other nations.
The Egyptian violations inflict a great injury on Israel, which it is not bound passively to endure. The extent of this injury can be illustrated by one item alone. About 70 percent of the traffic through the Suez Canal consists of oil tankers. If Egypt obeyed the international law these tankers would be as free to sell their oil at the Israeli port of Haifa as anywhere else. But owing to Egypt's punitive measures, which have put 75 tankers on the blacklist, these vessels refrain from attempting to serve the Israeli market. Israel has thus found it necessary to purchase its fuel from other sources than the tanker traffic, and then to convey it without using the Suez Canal. Since the Security Council's Resolution of 1951, it is estimated that Israel has paid 44 million dollars more for its fuel supply than it would have paid if a situation of law prevailed in the Suez Canal. This takes no account of the incidental losses to Israel through handicaps inflicted on the petro-chemical and refining industries, the obstruction of Israeli flagships from inter-oceanic voyages and the increased cost to Israel of its growing trade with African and Asian nations.
Many countries have a much greater fuel import requirement than Israel; and others depend even more than it on the Suez Canal. Israel's experience illustrates the economic outrage to which they may be exposed, and from which they have no present guarantee except the dubious one of Egypt's sufferance.
Israel itself has no obligation to suffer this abuse. Much has been said in the Security Council's debate on the need to base peace on foundations of justice and international law. Such peace as now exists in the Suez Canal is based in large measure on acquiescence in the violation of justice and international law. To endure an injury passively is, in effect, to encourage its repetition and its aggravation.
The Egyptian violations would be serious enough if they deprived only one nation of its rights under the 1888 Convention. When universality is violated in one instance it ceases to exist at all. In fact, however, many nations have suffered encroachments on their sovereignty through the impact of Egypt's restrictions.
In discussing Egypt's practices in the Suez Canal, mention has been made above of some 20 nations whose rights Linder the 1888 Convention have been violated. A country which desires to trade with Israel through the Suez Canal and is prevented from so doing by Egypt thereby suffers prejudice to its sovereign rights. Egypt itself has a formal right not to trade with Israel. But Egypt has no right to prevent other nations from trading with Israel through the Suez Canal or in any other way. The maritime nations are not colonies of Egypt. Their commercial policies are not subject to Egypt's control. What they sell to Israel, or what Israel sells to them, whether through the Suez Canal or by any other route, is a matter for their and Israel's exclusive sovereign discretion. Thus, so long as Egyptian restrictions persist, all nations are in practice, or in potentiality, deprived of some of their sovereign rights.
The Security Council itself observed this fact when in its 1951 Resolution it stated that:
"The restrictions on the passage of goods through the Suez Canal to Israeli ports are denying to nations at no time connected with the conflict in Palestine valuable supplies required for their economic reconstruction, and these restrictions together with sanctions applied by Egypt to certain ships which have visited Israeli ports represent unjustified interference with the rights of nations to navigate the seas and to trade freely with one another, including the Arab States and Israel. "
It is true that this violation of international law has existed for several years and does not derive specifically from the action taken by Egypt on 26 July. But the long duration of this abuse makes its removal not less, but more, urgent. It would be illogical for the international community to insure itself against future illegalities, while allowing existing ones to continue on their perilous course.
In any new projects designed to ensure and guarantee respect for the 1888 Convention, the Government of Israel claims specific guarantees for its own rights. It has been gratifying in recent weeks to observe a strong surge of world opinion in favour of guaranteeing freedom of navigation in the Suez Canal for the ships of all nations without distinction of flag. But in view of the special experience of the past eight years the general statement of this doctrine is not adequate, unless it is specified that the principle must be applied to Israel as to any other State. Similarly, the experiences of the past eight years conclusively prove the necessity for effective measures of implementation to prevent or correct violations.
Israel's rights are fully established in law and do not stand in need of further adjudication. On the basis of the 1888 Convention, of the 1951 Resolution, and of the overwhelming consensus of international opinion, Israel's right to free passage exists as an axiom and prior assumption in international law. The Government of Israel is at this moment endowed with full legal competence to exercise this right. It does not lie under the onus of proving the legality of its rights either in general or in any particular case. If Egypt desired any relief from the full application of the 1888 Convention the onus would be upon it to seek it, and, in any case, to avoid any interference with navigation through the Suez Canal, whether bound for Israel or anywhere else. It is important that in any future provisions for the adjudication of violations nothing should be done which would throw any doubt on the existing jurisprudence with respect to the 1888 Convention and the Security Council Resolution of 1951. On 8 October the Egyptian Foreign Minister reaffirmed his Government's long-standing declaration stating that the Suez Canal "shall always be open as a neutral passage to every merchant ship crossing from one sea to another without any distinction, exclusion, or preference of persons or nationalities, on payment of dues and observance of the regulations established." If this declaration is sincere, Egypt cannot continue to maintain its discrimination against Israel in the Suez Canal.
The maritime nations have one, obvious method of vindicating their own rights, and those of others, under international law. This would be by refusing to submit to the restrictions which they have frequently condemned. To show deference to the Egyptian restrictions; to refrain meekly from doing lawfully things which those regulations unlawfully forbid; to exclude Israel from normal patterns of trade through the Suez Canal in deference to Egypt's blockade practices to do this is to become associated, beyond any right or necessity, with Egypt's violations of international law.
The maritime nations, under the 1888 Convention and the 1951 Resolution have the right to trade freely with Israel through the Suez Canal. It is surely their legal and moral duty now to exercise that right in practice, and to lay upon Egypt the responsibility for any violation.
On 12 October 1956, the Secretary-General of the United Nations read to a meeting of the Security Council a list of six principles to which Egypt, as well as France and the United Kingdom, had agreed. These principles include the following:
"1. There shall be free and open transit through the Canal without discrimination overt or covert."
"2. The operation of the Canal shall be insulated from the politics of any country."
These formulations cannot possibly be reconciled with the continuation, for a single day, of Egypt's overt discrimination against Israel in pursuance of a purely national policy condemned by the international community.
If this statement does not mean the immediate end of discrimination against Israel in the Suez Canal, it means nothing at all.