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        Security Council
13 March 1955

688th Meeting
Held on 13 January 1955, at 3 p.m.
Provisional agenda

1. Adoption of the agenda.

2. The Palestine question:
Complaint by Israel against Egypt concerning:

(a) Enforcement by Egypt of restrictions on the passage of ships trading with Israel through the Suez Canal.

Adoption of the agenda

The agenda was adopted.

The Palestine question

Complaint by Israel against Egypt concerning: (a) enforcement by Egypt of restrictions on the passage of ships trading with Israel through the Suez Canal (S/3296, S/3297 and Corr.1, S/3298, S/3300, S/3302, S/3309, S/3310, S/3311, S/3315, S/3323, S/3325, S/3326, S/3333, S/3335)

At the invitation of the President, Mr. Loutfi, repre-sentative of Egypt, and Mr. Eban, representative of Israel, took places at the Council table.

1. Mr. VAN LANGENHOVE (Belgium) (translated from French): The Belgian delegation is anxious to become acquainted with the various facets of this matter, and listened attentively to the speeches made here on 4 January last [687th meeting]. Those speeches dealt Mostly with the principles governing the situation. My delegation has carefully verified the accuracy of those statements of principle. As a result of its study it has arrived at the following conclusions.

2. The Suez Canal is an integral part of Egypt. It connects two open seas. It is an artificial waterway, and therefore not governed in all respects by the rules of ordinary international law concerning natural straits. Its status was accordingly covered by a treaty, the Convention respecting the free navigation of the Suez Maritime Canal, signed at Constantinople on 29 October 18881/. This is not the only case in which the status of such a waterway, i.e. an artificial canal establishing communication between open seas, has been affected by a convention. According to the provisions of the parti-cular treaty, regulation may be more or less complete and the sphere of national jurisdiction left to the coastal State may be more or less extensive. Examples of such variations were given by the Permanent Court of Inter-national Justice in its famous judgment in the Wimbledon case.2/

3. With regard to the Suez Canal, no one is maintaining here that the Convention of Constantinople is not applicable. It is consequently necessary to determine the meaning and scope of that Convention. Article I 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."

4. The judgment of the Permanent Court of International Justice to which I have just referred lays down that this provision covers even ships, of countries at war with the territorial sovereign. The Court states that in fact, under the r6gime of the Constantinople Convention, belligerent men-of-war and ships carrying contraband have been permitted to pass freely through the Canal. It adds, however, that the right of self-defense is reserved to the coastal State 11 up to a certain point ". The Court does not explain what it means by the expression "up to a certain point ". This is not surprising, since its judgment is concerned with the Kiel Canal and deals with the Suez Canal only in passing and for purpose of compa-rison.

5. This being so, we should apparently refer, first to article IX of the Constantinople Convention, which provides that the coastal State shall take the necessary measures for ensuring the execution of the treaty, and secondly to article X, which provides that the provisions of the treaty shall not interfere with the measures which that State might find it necessary to take for securing the defense of Egypt and the maintenance of public order. But, though articles IX and X are indeed the relevant provisions, we are then faced with article XI, which expressly provides that:

"The measures which shall be taken in the cases provided for by articles IX and X of the present treaty shall not interfere with the free use of the canal. "

6. Having regard to these provisions, which seem clear, the Belgian delegation considers that it was the aim of the Constantinople Convention to ensure in all circumstances
the free passage of ships of war or of commerce of any nationality through the Canal both in war and in peace.

7. Mention has been made of the resolution adopted by the Security Council on 1 September 1951 [S/2322]. This is a different aspect of the question. The facts now before us is relate to a problem that has been before the Council for a number of years. I can remember dealing with it when I was a member of the Council eight years ago. One result of the action taken by the Council was of the armistice agreements. Those agreements cite the provisions of the Charter in virtue of which they were concluded, their purpose being to bring about a real and lasting peace.

8. The resolution of 1 September 1951 calls for the termination of “the restrictions on the passage of inter-national commercial shipping and goods through the Suez Canal wherever bound ", and the cessation of “all interference with such shipping beyond that essential to the safety of shipping in the Canal itself and to the observance of all the international conventions in force ".

9. As has been pointed out, the Security Council is clearly not competent to enforce the observance of the Constantinople Convention as such. It does, however, possess such competence through the Charter, in so far as it has to carry out the provisions of the Charter in order to ensure the maintenance of peace and international security. The 1951 resolution was therefore the outcome of a proper use of the Council's powers, and was not ultra vires. It could not, indeed, be represented in that light, since it contained nothing new and merely restated the provisions of the Convention of 1888. Actually, it restated them only in part, for it referred only to commercial shipping, whereas the Convention was also applicable to warships. Even if the resolution itself were not binding, its provisions would be, since they correspond to pro-visions which have been binding since 1888.

10. At the beginning of the new phase which opened on 4 January 1954, the parties were given an opportunity of informing the Council of their present positions of principle. They preferred not to do so and thus compelled the members of the Council to express views in ignorance of evidence which might have influenced their conclusions. The parties will no doubt clarify the matter later in the debate.

11. Like the other delegations we have heard during the present month, I should like to end on an optimistic note, which seems to be justified by a number of facts. When charges were brought against the crew of the Bat Galim the Egyptian Government referred the matter to the courts, which found the evidence to be insufficient. The Government bowed to that decision and released the crew members, who have returned to Israel. That was a significant gesture, a demonstration of good faith, of a desire to avoid arbitrary action and to act in accordance with law. The Egyptian Government has also officially announced its willingness to release the cargo and the ship. It has proposed that a sub-committee of the Mixed Armistice Commission should be set up to deal with the matter. The Belgian delegation cannot but assume that this suggestion is inspired by a desire to bring about a settlement in conformity with the Constantinople Con-vention. It supports the suggestion in principle, while considering that the agreement both of the Mixed Armis-tice Commission and the Israel Government must also be obtained.

12. The Suez Canal is a communication link of world-wide importance, and its free use is vital to all nations. As has recently been pointed out here, Egypt is responsible for its protection. It is fully aware that, in doing so, it is rendering a service to the world as a whole, a service which is, moreover, in keeping with its traditions. Under the agreement with the United Kingdom which it signed on 19 October 1954, it affirmed its resolve to respect the provisions of the Constantinople Convention, which guarantees freedom of navigation in the Canal.

13. Belgium's relations with Egypt are most cordial, and date back a long time. The experience thus acquired fills the Belgian delegation with confidence as to the future.

14. Mr. BELAUNDE (Peru) (translated from Spanish): The complaint submitted by the Government of Israel against Egypt and now before the Security Council constitutes one aspect of the problem of peace in the Middle East, with which all mankind is concerned. In spite of the armistice signed and maintained under the auspices of the United Nations, there is evidence of a state of tension. Incidents such as the one we are concerned with today are symptoms of that tension, and such symptoms may in turn cause the present situation to deteriorate. Hence the first duty of the Security Council is to appeal to the countries involved in this case, pointing out the urgency of doing whatever they can to reduce the tension and to avoid anything that may add to it.

15. As for the substance of the question before us, the Peruvian delegation considers that the best proof of friendship towards the countries concerned and the best contribution towards a solution would be to make an objective and unbiased study of the case, taking into account the circumstances and the applicable rules of law.

16. The principles contained in the Constantinople Convention form a true international statute governing the freedom and, by implication, the neutrality of the Suez Canal. The Canal must remain open to all shipping both in time of war and in time of peace, and may never, under the Convention, be subject to any sort of blockade.

17. Article IV stipulates that 11 no right of war, no act of hostility, nor any act having for its object to obstruct the free navigation of the Canal, shall be committed in the canal and its ports of access... even though the Ottoman Empire should be one of the belligerent Powers ". The sole exception to these provisions is contained in article X, which deals with the measures that may be taken for securing the defense of Egypt and the maintenance of public order. Article XI then adds that such measures interfere with the free use of the Canal”.

18. The status of the Suez Canal has never been amended or altered by direct action of the contracting parties or by the signing of any general agreement which would have the effect of amending it. Neither in the Covenant of the League of Nations nor in the Charter of the United Nations is there any provision incompatible with the principles agreed upon concerning the freedom and neutrality of the Suez Canal. On the contrary, it might be said that both the League-the first attempt at an inter-national legal organization, provided for by the Treaty of Versailles and the present Organization, which was established to secure a permanent peace and to eliminate the use of force, have reiterated, with the seal of international authority, the rights established and the legal situation agreed upon in the Constantinople Convention.

19. Although this fact is incontrovertible in theory, it cannot be denied that in the First World War, and to an even greater extent in the second, circumstances created a situation different from that envisaged at the time by the signatories to the Convention. The very preservation of the Canal, which was exposed to enemy action, induced the allied nations, with the collaboration of Egypt-which took part on their side in the Second World War-to I adopt measures which barred passage through the Canal to the vessels of enemy countries. This was really an exceptional situation resulting from the universal and totalitarian nature of the war, its extent and the methods I employed in it, and from the measures required to protect the Canal as such.

20. The United Nations Charter establishes a universal legal order which excludes the old concept of belligerency. The legal organization of the United Nations in so far as the functioning of its organs, and chiefly those which, like the Security Council and the General Assembly, are intended to secure the maintenance of peace, is not impeded-implies that the states of belligerency and neutrality are abolished, and consequently the use of force by States or groups of States, except of course in the case of self-defense covered by Article 51 of the Charter; and action in self-defense must in any case be taken with the knowledge of the United Nations and without preju-dice to its authority. Thus the right of self-defense creates a preliminary and provisional situation, pending final action by the United Nations to complete and ratify it.

21. This right of self-defense, which authorizes the use of force in accordance with the principles which governed such use under the classical system of international law, of course also exists when the United Nations is paralyzed, that is to say, when for any reason it is unable to discharge its specific functions of defending law and maintaining Peace. That would be the case if the Security Council Were paralyzed by the veto, or if the Assembly, when seized of a matter, were unable to secure the effective collaboration of the countries which it called upon to render it.

22. In such a situation, according to Professor Julius Stone, belligerency and hostilities are permissible under the Charter. We agree, though with a different hierachy of values, but we recognize this permissibility only within well-defined limits, that is to say, in an exceptional situation, for instance, when the right of self-defense is exercised before action is taken by the Security Council or the General Assembly to maintain peace, or after one or other of these organs has proved unable to act.

23. The Peruvian delegation has maintained on other occasions that the concepts of classical international law with regard to belligerency, the use of force, legitimate hostilities, volunteers and neutrality are not applicable where the Charter of the United Nations is in full force and operation. During the discussion on the intervention of Communist China in the Korean conflict on the pretext that its forces were volunteers-permitted by the Hague Convention of 1907-the delegation of Peru pointed out that between 1907 and 1945 there had been a radical change in the outlook of mankind, and especially in its juridical concepts.

24. In 1907 it was possible to refer to just and unjust wars, or simply to legitimate wars, without reference to the concepts of justice and injustice. It was also possible to refer to neutrality in the strict sense of the term. But since the setting up, in 1945, of an organization of universal scope, and the establishment of standards of law and of the obligation to maintain peace-an obli-gation which is binding on all nations, both on those which signed and on those which did not sign the Charter, because we who signed it consider ourselves entitled, on behalf of mankind as a whole, to require those who did not do so to respect the obligations which we ourselves have undertaken-the Security Council and the General Assembly have been directly responsible for the maintenance of peace. Any war, therefore, would be an unjust war, since, should a conflict break out and an appeal be made to the belligerents, the party which refused to comply with this appeal would presumably be declared the aggressor.

25. This legal position, of course, presupposes the full application of the machinery envisaged in the Charter, and hence the immediate adoption in every case by the Security Council of measures to preserve peace or, failing such action, the taking of fully effective action by the General Assembly or by existing regional organizations called upon to restore the status quo. If that condition is not fulfilled, the right of legitimate individual and collec-tive self-defense and the legitimate use of force, in accordance with the classical principles of law, regains validity, since the only contingency which could deprive it of validity has failed to occur.

26. The concepts of belligerency, of the use of force, and of legitimate individual or collective self-defense are not applicable if the United Nations machinery is fully in operation. They are even less applicable-save provi-sionally and exceptionally in cases where a conflict has already given rise to United Nations intervention and where hostilities have been terminated as a result of a general armistice concluded under United Nations auspices.

27. It is true that some writers, including Oppenheim, have held perhaps as part of classical law that a partial, and even a general armistice is not incompatible with the exercise of the right of visit and of search, which they do not regard as an act of war. It is equally true that other writers, such as Hautefeuille and especially the Institute of International Law, take the opposite view. The establishment of an armistice presupposes the intention to make peace and constitutes a necessary step towards peace; by its very nature, even without reference to the Charter, it is incompatible with hostile acts, even if they are allowed by classical law. An armistice concluded under United Nations auspices establishes a legal situation in which the provisions of the Charter have been applied. The concept of belligerency is clearly inapplicable in the context of such an armistice. That, indeed, was the view taken by the Security Council in its resolution of 1 September 1951 [S/2322], the substance and effects of which the Peruvian delegation must accept in accordance with the theory it has advanced.

28. It follows from all this that, within the general framework of the armistice and the application of the 1951 resolution, Egypt may take certain steps to protect the security of the Canal in accordance with article X of the Constantinople Convention concerning the defense of Egypt's territorial integrity, and in accordance with Article 51 of the Charter. It must, however, take duly into account, first, the spirit of the Constantinople Con-vention and, secondly, the recommendations made in the Security Council resolutions. The correct interpretation of the armistice entails bringing these measures to the notice of the organ established by virtue of the armistice itself.

29. The Peruvian delegation wishes to record the satis-faction it felt at learning that, by the agreement concluded in Cairo on 19 October 1954 with the United Kingdom, Egypt had assumed full control of the Suez Canal Zone in full consciousness that the new situation conferred upon it not only an honor but also a new responsibility.

30. Accordingly, that instrument, which replaces the Treaty of Alliance concluded between Egypt and the United Kingdom in 1936, contains the following clause:

" The two Contracting Governments recognize that the Suez Maritime Canal, which is an integral part of Egypt, is a waterway economically, commercially and strategically of international importance, and express the determination to uphold the Convention guaranteeing the freedom of navigation of the Canal signed at Constantinople on the 29th of October 1888."3/

31. The Peruvian delegation also notes with deep satisfaction that the Egyptian Government has carried out this solemn undertaking, proving that it has guaranteed the free use of the Suez Canal.

32. The delegation of Peru is also very pleased that the Egyptian Government, as it stated in its communications to the Council of 4 December 1954 [SI3326] and 23 December 1954 [S/3335], and as it repeated through its representative at the 687th meeting of the Council, has decided to release the crew of the Bat Galim and to return the ship's cargo to its owners, thereby helping to reduce the existing tension. That decision was taken as soon as the Egyptian judicial authorities had established that the accusations which had led to the detention of the ship were unfounded.

33. The Peruvian delegation is therefore confident that the two countries, in their wish to diminish international tension and to observe the truce strictly, will avoid any action or measure that might prevent the restoration of a sound and durable peace in the Middle East, and that they will co-operate in any measure designed to restore a normal situation.

34. In this spirit the Peruvian delegation suggests and hopes that its suggestion will be accepted by the members of the Council and by both parties that the Chief of Staff of the Truce Supervisory Organization, as the representative of the United Nations, should offer his services to the parties to arrange for the delivery of the cargo, the release of the vessel, and any other measure on which the parties may agree.

35. Mr. ENTEZAM (Iran) (translated from French): As a new member of this Council, I do not wish to go into the details of a discussion much of which took place before Iran became a member of the Security Council.

36. I shall therefore confine myself to noting with satis-faction the results achieved. We have learnt that the members of the crew of the Bat Galim have been freed and happily restored to their homes in Israel. As to the ship itself, if I understood the Egyptian representative correctly when he spoke at the 687th meeting, he told us that his Government was prepared to discuss with a sub-committee of the Mixed Armistice Commission the procedure for freeing the ship and its cargo.

37. In my delegation's view, the Mixed Armistice Com-mission is the organ best qualified to settle this case, both because it will act for the Council and because the parties will be represented on it. For that reason I consider this suggestion both wise and practical, and I have the honor to support it on my delegation's behalf.

38. The PRESIDENT: As no other member of the Council wishes to speak, I should like, in my capacity as representative of NEW ZEALAND, to add my comments to those made by other delegations.

39. I shall refer first to the specific complaint concerning the Bat Galim. I note with satisfaction that, following the Council’s meeting of 11 November 1954 [685th meeting], at which the President summed up the Council's view that priority should be given by the Mixed Armistice Commission to the consideration of this incident, both parties Co-operated in accelerating that consideration. The report of the Chief of Staff of the Truce Supervision Organization on the Commission's examination of the question is before us in document S/3323. It seems to me unnecessary to examine that report in detail. We may take note, however, that the Chairman of the Mixed Armistice Commission followed his vote on the resolution adopted by the Commission with the statement that he would "call on both parties to come quickly to an agreement for the release of the Bat Galim and its crew" [S/3323, para. 41].

40. The Council received from the representative of Egypt a letter dated 23 December 1954 [SI3335], in which it was stated that the Egyptian authorities were taking the necessary steps to deliver the crew of the Bat Galim to the Israel authorities on 1 January 1955. We have since been informed that the release has, in fact, been effected. The letter further stated that the Egyptian Government was prepared to release both the ship and the cargo. I would recall that the Chairman of the Mixed Armistice Com-mission had specified that the parties should seek 4greement on this matter. This would, of course, include agreement on the manner of release of ship and cargo. We strongly consider that the ship should be released as soon as possible and, equally, that agreement should be reached without delay on the manner of release, in order that this incident may be terminated. I hope that both parties will approach this question in a spirit of mutual accom-modation.

41. 1 turn now to the question of broad principle which underlies the specific complaint which we have been considering. There should be no room left for doubt as to the position of my delegation on the principles involved. I am glad to note that previous speakers share this position. In the first place, the New Zealand Government attaches the utmost importance to the maintenance of freedom of navigation in recognized international water-ways, and specifically in the Suez Canal. As Sir Pierson Dixon pointed out on 7 December last [686th meeting, Para. 146], this is a vital principle not merely for his Government or mine but for the Commonwealth as a whole. Indeed, it is a vital matter for all nations.

42. In the second place, my delegation, like others which have spoken before me, regards the Council's resolution of I September 1951 [S/2322] as in full force and effect. We have noted the statement by the late Mr. Azmi, on 14 October 1954, that:

" Egypt has ... observed absolute silence and has refrained from any interference with vessels conveying goods to Israel or coming from Israel ports and passing through the Suez Canal" [682nd meeting, para. 146].

Again, on 7 December 1954, Mr. Loutfi made the. following statement:

“In practice, the Egyptian Government has never tried to prohibit the passage of ships through the Suez Canal. If there is no prohibition of passage, it cannot be said that use of the Canal is being obstructed [686th meeting, para. 111).

43. We should have been glad to interpret these statements as reflecting an Egyptian policy of unqualified compliance with the Council's resolution of September 1951. We are indeed glad to note the statement of Mr. Azmi that between 11 February and 19 September 1954-a few days, that is, before the seizure of the Bat Galim-no ship passing to or from Israel through the Suez Canal had been molested, seized or confiscated [682nd meeting, para. 147].

44. At the same time, we cannot ignore the clear impli-cation in Mr. Loutfi's speech of 7 December 1954 [686th meeting] that Egypt does not regard the 1951 resolution as applying to the passage of Israel ships through the Canal. That resolution called upon Egypt “to terminate the restrictions on the passage of international 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".

45. The representative of Egypt, it seems to me, seriously weakened his argument that Israel ships were excepted from this injunction by his own admission that " the first part of the sentence seems to have a general application " [686th meeting, para. 129]. He then further weakened his case, in my view, by relying on the exception in the second part of the paragraph relative to restrictions 11 essential to the safety of shipping in the Canal itself " as justifying, apparently, the complete exclusion of Israel ships [ibid., paras. 131 and 132].

46. May I say, quite frankly, that for Israel to set out deliberately to damage the Canal would be an act so patently against its own interests as to put the possibility beyond serious consideration. Let it be remembered that the Canal is not a private, but an international, waterway. An act of sabotage in the Canal would be an act not primarily against any one country but against the inter-national maritime community as a whole. It would certainly merit, and bring about, appropriate international action. It cannot be said, however, that there exists a reasonable apprehension that such an act would be committed. There is no justification, therefore, for an Egyptian policy of exclusion against Israel ships desiring to pass through the Canal a policy which we regard as entirely inconsistent with the intent of the 1951 resolution.

47. My delegation sincerely trusts that in the future all cargoes and all ships, whatever their nationality and wherever they may be bound, will be permitted to pass through the Canal without let or hindrance. We trust also that a settlement of the Bat Gatim incident will be reached without delay. The avoidance of violent or provocation is the equal responsibility of each side. Only by the constant exercise of that responsibility can the objective of the General Armistice Agreement-the promotion of a return to permanent peace in Palestine-be brought measurably nearer accomplishment.

48. As the general debate has been concluded, I think it is proper for me at this stage, as PRESIDENT, to ask the representatives of Israel and Egypt whether they desire to address the Council.

48. Mr. EBAN (Israel): Israel's viewpoint on the problem now under discussion has been expounded on many occasions and is amply recorded in the proceedings the Security Council and the Egyptian-Israel Mixed Armistice Commission. I would therefore propose to submit Israel's case by way of brief summary rather than exhaustive review.

50. On 1 September 1951, the Security Council recorded its decision calling for the termination by Egypt of all interference with the passage of international commercial shipping through the Suez Canal, with special reference to shipping bound to and from Israel [S/2322]. At the same time, the Security Council categorically denied the Egyptian claim to discriminate against Israel ships or cargoes on the grounds of belligerency, and asserted that the Egyptian-Israeli General Armistice Agreement4/ far from sanctioning belligerent practices, as Egypt contended, actually required the total cessation of those practices. The importance of this resolution should be envisaged in the light of Article 25 of the Charter, under which the Security Council's decisions on matters affecting international peace and security have a special and unique force, being, indeed, obligatory on all Member States by virtue of the latter's signature of the Charter.

51. The Egyptian Government, however, opposed the 1951 decision and maintained in full force the system of decrees and regulations whereby the greater part of the traffic which would normally have Rowed to and from Israel was effectively intimidated and deterred. The deterrent effect of the Egyptian decrees was reinforced by the occasional seizure and detention of ships bound for Israel, and sometimes, indeed, by the opening of fire on ships sailing or suspected of sailing to Israel ports. A black list of about 120 vessels, mostly oil tankers, was established. Those vessels have been penalized for having exercised their right of innocent passage through the Canal in order to trade with Israel. The maritime Powers of the world, including most of those which signed the Constantinople Convention, have repeatedly protested against these restrictions.

52. On 28 September 1954, the Israel merchant vessel Bat Galim, sailing from Massawa to Haifa, was seized by Egyptian authorities after having peacefully entered the Suez Canal and complied with all due formalities of routine inspection. The crew was held first in military custody and then in civil imprisonment. Charges were proclaimed in the United Nations and in Egyptian courts, accusing the Bat Galim of having opened fire on Egyptian fishing boats, killing two fishermen and wounding others. The crew of the Bat Galim thus had the ominous experience of hearing themselves arraigned for murder in a foreign land.

53. The Security Council will recall that the charge of shooting on 28 September 1954 was the only cause adduced by Egypt at that time to justify the seizure of the Bat Galim or any interference with its journey. On 14 October 1954 [682nd meeting], the representative of Egypt in the Security Council clearly implied that, but for this alleged incident, there would have been no grounds for impeding the voyage of the Bat Galim. The Security Council was given every reason to believe that, if the charges were exposed as unfounded, all interference with or discrimination against the Bat Galim would be brought to an end.

54. On 19 November 1954, the Mixed Armistice Commission ruled and decided, first, that the Bat Galim had committed no violation of the General Armistice Agreement on 28 September 1954, as alleged in the Egyptian complaint, and, secondly, that there was no validity in the Egyptian doctrine that the entry of the Bat Galim into the Suez Canal was equivalent to the entry of an Israel vessel into Egyptian territorial waters.

55. I pointed out during a previous Security Council meeting [686th meeting] that this ruling, differentiating sharply between the Suez Canal, on the one hand, and Egyptian territorial waters, on the other, was of great juridical importance and was in full accord with established international doctrine. Territorial waters are the realm of national sovereignty; the Suez Canal is the domain of international law, and no single government has a right to apply in that international waterway the particular sentiments or predilections underlying its national political ideas.

56. Now, since the Mixed Armistice Commission has ruled that the journey of the Bat Galim was legitimate, innocent and peaceful, there was, again, moral and logical reason to expect that Egypt would facilitate the onward journey of the Bat Galim to Haifa a journey which should never have been impeded in the first place.

57. The Egyptian Government on 4 December 1954 withdrew, in its own courts, the accusation of assault against the crew of the Bat Galim. A subsequent charge that the crew of the Bat Galim had trespassed in Egypt's territorial waters was also annulled. Nothing now remained, then, to distinguish the rights of the Bat Galim from those belonging to any other ship exercising innocent passage in the Suez Canal. The particular incident of the Bat Galim should therefore have been assimilated to the general principles of international law applying to the ships of all nations. Accordingly, it has been gravely disappointing for my Government to observe that Egypt continues to exercise dictation by force in an effort to break up and frustrate an innocent and legitimate journey in an international waterway.

58. The crew of the Bat Galim was separated from its ship. The ship has been held and is still held apart from the control of its master. Egypt has proclaimed a distinction specifically rejected by the Security Council in 1951, and again rejected by a majority of the members of the Security Council at the beginning of 1954, between neutral and belligerent shipping.

59. It is clear from the Security Council resolution of 1951, and, indeed, from all international instruments affecting the Suez Canal, that the right of free passage to the ships of all nations, to all flags and to all not merely to ships on which Egypt confers this facility at the behest of its own national policy. Free passage for any State is not a function of that State's relations with Egypt at any given time; it is an unconditional international right which the coastal State may not modify, least of all against the express will of the Security Council and of other maritime nations.

60. The Government of Israel regards free passage in the Suez Canal as an important element of its welfare and security. It cannot in any degree renounce its full right to exercise innocent passage on a level of equality with all other nations.

61. On 1 January 1955, the crew of the Bat Galim, still separated from their ship, were brought to the frontier between Israel and Egyptian territory and sent to walk into Israel. The Government and people of Israel have had occasion to acclaim the courageous and honorable discharge by those men of their duty in the service of their country and, indeed, of the cause of maritime freedom and international law. The Egyptian Government, prior to 1 January 1955, had addressed a letter to the Chief of Staff of the United Nations Truce Supervision Organization asking for the co-operation and presence of United Nations observers at the transfer of the Bat Galim crew from Egyptian to Israel territory. The Chief of Staff of the United Nations Truce Organization correctly declined to associate himself with a procedure opposed to the principles of the Security Council's decision of 1951. The presence of United Nations observers at that scene might have appeared to give sanction to the Egyptian refusal to allow the voyage of the Bat Galim, with its crew and cargo, to continue northward without hindrance. Thus, the absence of United Nations representatives from the frontier on 1 January 1955 is a tangible demonstration that the method proposed by Egypt to terminate the Bat Galim incident was not one that the United Nations could endorse or condone.

62. It remains Israel's position that we can co-operate only in such procedures for settling the Bat Galim episode as would vindicate and not dishonor the Security Council resolution of 1 September 1951 [S/2322], embodying Israel's rights of free passage through the Suez Canal. To avoid the establishment of a precedent which would tend to weaken, to undermine or to evade the terms of that resolution is, for us, a consideration paramount over any other material considerations.

63. The facts which I have enumerated-as dispassion-ately as I can-prove I think, a clear violation of Israel's international rights, of normal maritime practice, of the Egyptian-Israeli General Armistice Agreement, and of the Security Council resolution of 1 September 1951.

64. The present debate in the Security Council, together with that held early in 1954, has emphatically confirmed and clarified the jurisprudence of the United Nations on the question of Israel's right of free passage in the Suez Canal. The force of the 1951 resolution emerges conside-rably strengthened from this debate. Several points at issue have been emphasized and made clear. It has been made abundantly evident that freedom of navigation in the Suez Canal is a right which belongs to Israel shipping and cargoes, as well as to the shipping and cargoes of other nations.

65. In this spirit, the representative of the United States told the Security Council on 4 January 1955:

" We cannot fail to state our view that Egyptian restrictions on ships passing through the Suez Canal, whether bound to or from Israel, or whether flying the Israel or some other flag, are inconsistent with the spirit and intent of the Egyptian-Israeli General Armistice Agreement, contrary to the Security Council resolution of I September 1951, and a retrogression from the stated objectives to which both sides commit-ted themselves in signing the armistice agreement [687th meeting, para. 68].

66. In the same spirit, the representative of France said that there was no doubt in his mind that " the exercise by one of the parties, on the high seas, of the right of visit, search and seizure of vessels of the other party, would constitute a serious breach of the armistice agree-ments " [ibid., para. 57]. He went on to point out how the spirit of this doctrine applied also to seizure in the inter-national waterway.

67. Another point which has been made abundantly clear is that, in the view of a majority of the members of the Security Council the body qualified to interpret the general armistice agreements-the practice of these restrictions is a violation of those agreements. In that spirit, the representative of the United Kingdom pointed out, at the last meeting of the Security Council, that the fact that the Government of Egypt had not yet seen its way to complying fully with the Council's resolution of 1951 was not only regrettable, but even dangerous [687th meeting, para. 42]. He went on to say that if the authority of the Council were undermined, “by the action of the parties or for some other reason, the consequences might well be disastrous all round " [ibid., para. 43].

68. It has been further clarified, in the erudite speeches made on the juridical issues involved by the representative of Belgium and Peru, that Egypt is not entitled, within the terms either of the Constantinople Convention or of the Security Council resolution of 1951, to practice discrimination or obstruction on the grounds of belligerency.

69. Again, when this question was discussed from the viewpoint of the Constantinople Convention, it was established in this debate that that important international convention was prejudiced by those practices. In that spirit the representative of Brazil stated:

“In any case we cannot accept a breach of the Constantinople Convention, any more than we can pass over in silence the fact that a Security Council resolution is being ignored" (687th meeting, para. 81].

70. In discussing the question of the Constantinople Convention, my Government is convinced that decisive weight must be attached not to the unilateral inter-pretation, however sincere, of one of the interested parties, but to the volume, the consensus of opinion, of the majority of the extant governments which established and signed the Constantinople Convention. If the Govern-ment of Egypt, a has been reported, has recently, in an international treaty, reaffirmed its fidelity to the Constan-inople Convention, then surely that means fidelity to the Convention as interpreted by a majority of its members, and not as interpreted in a dissident opinion by the Government of Egypt alone.

71. My Government expresses the earnest hope that this impressive volume of international opinion and jurisprudence will have a decisive effect on Egypt's atti-tude and will influence that Government in favor of abolishing and eliminating these restrictions on the innocent passage of commercial shipping of all nations through the Suez Canal.

72. The weight of this international opinion is not completely comprehended by reference only to the past two meetings of the Security Council. This discussion is in itself a continuation of a debate which had its origin a few months ago. From that discussion, in its early stages, there comes the recollection of the following view expressed by the representative of Denmark on 25 March 1954:

" In the view of my Government, the measures decided upon by the Egyptian Government and the Practice applied by it cannot be reconciled with the armistice agreement, with the general rules of inter-national law concerning the freedom of navigation and commerce, with the Convention of 1888 respecting the free navigation of the Suez Maritime Canal, with the Security Council resolution of 1 September 1951, or, finally, with the Charter " [663rd meeting, para. 17].

73. On 29 March 1954, the representative of Colombia expressed his view as follows:

" The principle of international law which was reaffirmed in the Security Council resolution of 1 September 1951 ... is fully consonant with the need to keep international canals open to free traffic and with the provisions of the Convention of Constan-tinople..." [664th meeting, para. 28].

74. In the same spirit, the representative of Turkey stated that the Council had no alternative but to request compliance with its previous resolutions.

75. The position is, therefore, that the representatives of ten governments have made statements round this table of the Security Council in favor of the principle of compliance with the 1951 resolution, or in support of the other considerations which have been adduced in favour of a cessation of Egypt's restrictions on free passage in the Suez Canal.

76. In conclusion, then, I would remind the Security Council of the breadth and the scope of the international issues here at stake. Is the General Armistice Agreement binding on Egypt as well as upon Israel? Shall the relations between the two countries adjacent to the Suez Canal area be based on their duty of peace or upon a discredited theory of belligerency and war? Can a government whose case is rejected in the Mixed Armistice Commission proceed to act exactly as though its case had been sustained? Is the unconditional right of all nations peacefully to navigate upon and between the high seas to be supplanted by a new doctrine under which the riparian State shall unilaterally determine what shipping shall pass, and what shall not? Finally, does the Security Council expect Member States to abide by their own treaties and by the judgments which the Security Council gives on matters affecting international peace and security?

77. In the light of these issues, my Government hopes that the Security Council will decide to reaffirm its 1951 resolution and will continue to oppose any interference with or discrimination against the ships or cargoes of any nation or flag, including Israel. In so doing, the Security Council would manifest its desire to see peaceful relations emerge, on land and sea, between two neighboring countries whose national collaboration could bring such abundant blessings to the tormented Middle East.

78. We have been encouraged by the messages of soli-darity and support which have reached us from so many maritime countries outside the Security Council. In our view, maritime nations everywhere will contribute to a solution of this problem by actually exercising the right of free passage to and from Israel through the Suez Canal. The juridical rights which have been established and confirmed can best be vindicated by their normal and constant exercise and by the cessation of obedience to Egypt's restrictions, which have been so emphatically rejected by the community of nations.

79. By reaffirming its established policy in this matter, the Security Council would be upholding rights which are of great moment to the security, the enterprise and the welfare of all nations in the world community.

80. Mr. LOUTFI (Egypt) (translated from French): I thank the President for kindly allowing me to speak again on the Bat Galim case. As the Council is fully informed on this matter, I shall be brief.

81. My delegation has followed closely the state-ments made by the representatives who spoke at the 687th meeting, on 4 January 1955, and at today's meeting. We have noted with keen satisfaction that almost all delegations have fully appreciated the conciliatory spirit have shown and the constructive attitude we have taken in seeking a solution to the Bat Galim case. In order to settle the question, the Egyptian Government has adopted a moderate and conciliatory position, with the result that today the crew is free and the cargo ready for handing over; the Bat Galim itself is to be freed, and the necessary arrangements will be made to effect this.

82. At the 687th meeting of the Council, we stated that no we had objection to a sub-committee of the Mixed Armistice Commission discussing the question. This method is often employed to settle questions concerning ships seized by one or other party. Since this, which was put forward purely as a suggestion, has not met with the reception I expected, I shall not insist on it. My Government seems to have gone to the limit of conciliation to settle this problem.

83. With regard to the question of navigation in the Suez Canal, I would remind the Council that my Govern-ment has recently confirmed, through the new agreement between Egypt and the United Kingdom signed at Cairo on 19 October 1954, its intention to respect the provisions of the Convention of Constantinople of 29 October 1888. Thus we too uphold the principle of free navigation in the Canal established by that Convention. My delegation cannot but regret, however, the existence of a dis-agreement between ourselves and the representatives of the great maritime Powers as to the interpretation of this convention.

84. The representative of France made the following statement on 4 January 1955:

" In his statements to the Security Council, the representative of Egypt based this position of the Egyptian Government on article X of the Constanti-nople Convention. Under that article, ‘the provisions Of articles IV, V, VII and VIII shall not interfere with the measures which [the Egyptian Government] might find it necessary to take for securing by [its] own forces the defense of Egypt and the maintenance of public Order'.

" I shall confine myself to pointing out, as the French delegation has already done in the Council on several occasions, that in our view article XI of the same Constantinople Convention seems to us to settle the question in a sense opposed to the Egyptian argument.

Article XI, in fact, says:

"The measures which shall be taken in the cases provided for by articles IX and X of the present Treaty shall not interfere with the free use of the Canal.'

" The provisions to which I have referred contain no limitation on such free use " [687th meeting paras. 53 to 55].

85. In his noteworthy speech today, the representative of Belgium also mentioned article X1 of the Convention.

86. I feel, therefore, that I must give some explanations.

87. It is true that, to uphold its contention, Egypt invokes articles IX and X of the Constantinople Con-vention. Under article 1 of the Convention, admittedly, the Canal 11 shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war "; and under article IV of the Convention 11 no right of war, no act of hostility, nor any act having for its object to obstruct the free navigation of the Canal, shall be committed in the Canal "; but articles IX and X of the Convention provide for exceptions.

88. Article IX provides that 11 the Egyptian Government shall, within the limits of its powers. . ., take the necessary measures for ensuring the execution of the... treaty ", and hence the security of the Canal. This article also stipulates that the provisions of articles IV, V, VII and VIII shall not interfere with the measures which shall be taken in virtue of article IX. Article X provides for the same exception when the defense of Egypt and the maintenance of public order are at stake.

89. Consequently the Egyptian Government is entitled, in exceptional circumstances, to take measures prohibited to other States to ensure its own security and that of the Canal. These exceptions have been provided for Egypt, the territorial sovereign. As the representative of France has pointed out, article XI provides that such measures shall not interfere with the free use of the Canal. Although the text of the article seems to set no limits on the free use of the Canal, Egypt could not reasonably be required to permit the free use of the Canal by enemy shipping, since the security of the Canal would be threatened together with that of Egypt. Under the Convention of Constantinople, no formal obligation is imposed on Egypt to grant free passage to enemy shipping. In view of the serious consequences it might entail, such an obligation would have had to be expressly included in the Convention, which is not the case. In those circumstances, is Egypt not entitled to invoke the right of self-defense, since it fears that the security of the Canal and its own security are endangered?

90. At the 686th meeting, on 7 December 1954, we gave examples to illustrate this point. We pointed out that a mine could be laid and a ship deliberately sunk. This could be done, even without the knowledge of the Israel Government, by Israeli extremists or terrorists, who can easily infiltrate into Egyptian territory and commit acts of espionage and sabotage. In the interests of the mari-time Powers, we are anxious to prevent obstruction or damage to the Canal.

91. 1 regret that the New Zealand representative does not share our views on this matter and, above all, our apprehensions. Details were recently given in the Press of an accident which occurred on 31 December 1954 and which delayed traffic in the Canal for several days. It was moreover, on the basis of this principle, because of the danger of a direct attack on the Canal itself, that the free use of the Canal was denied to enemy shipping during the first and second world wars. Clearly Israel's present conduct towards Egypt and the Arab States justifies our fears, gives grounds for our anxieties, and in the circum-stances has obliged us to adopt this attitude towards the free passage of Israel ships through the Suez Canal. Israel has unceasingly violated the General Armistice Agreement, and the Israelis have committed many acts of aggression, sometimes actually with their armed forces.

92. In our view, therefore, Egypt has not violated the Convention of Constantinople, which regulates navigation in the Suez Canal. It is difficult to maintain that in observing the Constantinople Convention we are violating the spirit of the General Armistice Agreement of 1949 and even the resolution adopted by the Security Council on 1 September 1951 [S/2322]. Paragraph 10 of that reso-lution calls upon Egypt “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”.

93. I do not think it will serve any purpose to explain our position, which is known to all, at any greater length. I must, however, make one more observation.

94. In his statement on 4 January [687th meeting], the representative of Brazil spoke of an error committed, of the deprivation of liberty suffered by the members of the crew, of material damage, and of the right of blockade. I would remind the Brazilian representative that our attitude on the Bat Galim question is in sharp contrast with that adopted by Israel in the similar situations which we described at the 686th meeting, on 7 December 1954. As to the term “ blockade ", I have already explained in a previous statement that this has a very definite meaning in international law; that Egypt has never blockaded the Suez Canal; and that no one is seeking to cut all Israel's sea communications, which would be the case if any sort of blockade were imposed. It is plain that the Brazilian representative, who speaks for a country with which we enjoy friendly relations, has appraised the Bat Galim case separately from the Palestine problem, even though he expressed the desire to find a final solution to the Palestine question.

95. I should also like to make an observation with regard to the statement just made by the Israel representative. He maintained that the Mixed Armistice Commission had found against Egypt on this matter. But the Mixed Armistice Commission declared itself incompetent in the case. I have no intention of reading all the decisions which appear in the report, but will merely quote the paragraph which states:

" However, in the present instance the SS Bat Galim was bound for the Suez Canal. But the Security Council is seized of a complaint by Israel concerning this general question, which is outside the competence of this Mixed Armistice Commission " (S/3323, para. 24].

96. Lastly, the Israel representative regards the notion of territorial waters and that of the Suez Canal as utterly opposed. I would merely point out that the Suez Canal lies in Egyptian territory; it is an integral part of Egypt and is subject to Egyptian sovereignty. The fact that the ports of Suez and Port Said are ports of access to the Canal does not alter the fact that they are Egyptian ports,
under Egyptian sovereignty, and that the area of the territorial sea along their coasts is also under Egyptian sovereignty.

97. During this discussion we have taken a conciliatory attitude. We have done our utmost to co-operate with the Security Council in order to find a suitable solution to this problem. We propose to continue doing so. We shall always strive after tolerance. We shall maintain the same attitude in so far as our security and that of the Canal permit.

98. The PRESIDENT: The debate on this item appears to be exhausted. Since that is the case, and since there is no draft resolution before the Council, I think it might be useful for me as President to sum up the general trend of the discussion before we adjourn.

99. In addition to the statements of the parties, we have heard statements from eight members of the Council. Although not all members of the Council have spoken, and although it must be recognized that the representative of Iran has limited himself to the Bat Galim incident, it is evident that most representatives here regard the resolution of 1 September 1951 as having continuing validity and effect, and it is in this context and that of the Constantinople Convention that they have, considered the Bat Galim case.

100. In so far as steps have been taken by Egypt towards a settlement-for example, the release of the crew and the announcement by the Egyptian Government of its willingness to release the cargo and the ship itself these steps have been welcomed by representatives round this table. Hope has been expressed that a continued attitude of conciliation on both sides will speedily bring about an agreement on the arrangements for the release of the ship and the cargo.

101. It has been suggested by the representative of Peru that, if this is desired by the parties, the Chief of Staff of the Truce Supervision Organization might be prepared to extend his good offices to expedite the conclusion of such arrangements. I have no doubt that, if requested by the parties, he would be prepared to do this.

102. On this note of hope and expectation, I propose to adjourn this meeting of the Council.

The meeting rose at 5.15 p.m.

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