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2 JUNE 1967

THE STATUS OF THE STRAIT OF TIRAN

by Fayez A. Sayegh
(In the following article - 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 c u r r e n t 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 times a s 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, a s well a s books on Arab Unity and on The Dynamics of Neutralism in the
Arab World, both in English.)

The w a t e r s of the Strait of Tiran form a p a r t of the " t e r r i t o r i a l w a t e r s " of

the United Arab Republic.
The doctrine of " t e r r i t o r i a l w a t e r s " in International Law recognizes that the
sovereignty of a state extends beyond its land territory to those a r e a s of the sea which lie
immediately off its coast, making a continuous belt of " t e r r i t o r i a l w a t e r s " and forming a p a r t
of its domain.
While the doctrine of " t e r r i t o r i a l w a t e r s " as such is universally accepted by
all m e m b e r s of the international community and recognized in the practice of all states,
differences exist over the delimitation of the a r e a of sea recognized as " t e r r i t o r i a l " . The two
latest international conferences which dealt with the question of the width of a state's " t e r r i t o r i a l w a t e r s " (the Geneva conferences of 1958 and 1960) failed to establish a uniform standard
acceptable to the majority of states. However, there i s no dispute over the minimum width
claimed by all states - namely, the traditional three-mile width of " t e r r i t o r i a l w a t e r s " p>
p

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Lebanon, L. L. 500; North and South

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though many states have claimed for themselves a r e a s of sea reaching four, six, nine,
twelve or m o r e m i l e s .
The United Arab Republic a s s e r t s its sovereignty over a twelve-mile-wide
belt of " t e r r i t o r i a l w a t e r s " . But, even if the minimum standard of three m i l e s were to be
applied, the w a t e r s of the Strait of Tiran would still fall in their entirety within the t e r r i t o r i a l
belt thus defined.

n
In addition to being an indivisible part of the continuous belt of United Arab
Republic " t e r r i t o r i a l w a t e r s " , and, therefore, an integral p a r t of its territory, the a r e a
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 " t e r r i t o r i a l strait" under
International Law.
Oppenheim-Lauterpacht sums up the universally-recognized rules of
International Law governing such situations in the following words:
"All s t r a i t s which a r e not more than six miles wide a r e certainly t e r r i t o rial. Therefore, s t r a i t s of this kind which divide the land of one and the same state
belong to the t e r r i t o r y 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 r e Italian; and the Great Belt, which divides
the islands of Fyn and Sjaelland, i s Danish." (L. Oppenheim's International Law;
A T r e a 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 " t e r r i t o r i a l s t r a i t s " a r e summed
up in the same authoritative source in the following words:
" . . . . the rule that foreign merchantmen cannot be excluded from passage
through t e r r i t o r i a l s t r a i t s applies only when they connect two p a r t s of the open sea.
Where a t e r r i t o r i a l s t r a i t belonging to one and the same state connects a p a r t of the
open sea with a t e r r i t o r i a l gulf or bay . . . foreign v e s s e l s can be excluded." (Ibid.,
paragraph 195, page 512.)
The crucial question, then, i s whether tiie Gulf of Aqaba is a " t e r r i t o r i a l
gulf", or whether it i s a p a r t of the "open* sea", under the general rules of the Law of
Nations.

HI
The Gulf of Aqaba is a " t e r r i t o r i a l gulfM. and i s possessed of the c h a r a c t e r i s t i c s of a "closed sea".
Its three littoral states a r e 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, a s well as
the situation, extent, and configuration of the Gulf of Fonseca, decided that the Gulf must
be regarded a s "an historic bay possessed of the characteristics of a closed sea", and that
it therefore was p a r 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 Israeli 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 characteristics
of an Arab "closed sea".
For, entirely apart from the fundamental question of the legitimacy or
illegitimacy of the State of Israel a s such, and assuming (solely for the sake of the argument)
that this question does not a r i s e in the present context, three other considerations govern the
status in law of the Israeli 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 rights.
(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 p a r t i e s .
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 a s an Arab " t e r r i t o r i a 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 its 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 its Second Special Session against
the background of the refusal of the Security Council to endorse the partition recommendation
or to adopt m e a s u r e s to enforce i t Chastened by this fact, the Assembly turned a deaf e a r
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 a r e the
following:

-5Council on 15 July 1948. The principles governing this truce were enunciated by the
Council in its 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 Governments 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 its resolution S/1045, adopted on 19 October 1948, the Security Council reminded
the p a r t i e s of the principles governing the truce. Paragraph 4 of this resolution r e a d s
a s follows:
"Reminds the Governments and authorities concerned that all the obligations and
responsibilities of the p a r t i e s set forth in its 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
reiterated the principle first enunciated on 19 August 1948; paragraph 2 of Resolution
S/1070 r e a d s :
"Having decided on 19 August that no party is permitted to violate the truce on the
ground that it is undertaking r e p r i s a 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) "its previous resolutions concerning the establishment
and implementation of the truce in P a l e s t i n e . "
(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 undertaking 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 spirit of the Armistice
would not be served by the restoration of previously held military positions, changes
from those now held other than a s 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."

s
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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 straits, the Strait of Tiran has never been the object
of an international convention or treaty restricting 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 its 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 p a r t of the "open sea", i s in fact no more than a unilateral e x p r e s 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 s u r rendered, by proclamation or in practice, its sovereignty or its rights over the Strait of
Tiran, and has never acquiesced in any claim by any state that the Strait is an "international 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 a s well a s
non-Israeli shipping carrying strategic goods to Israel through the Strait, from 1949 onwards
(without interference by any other power), i s further confirmation of the territorial status of
the Strait and the Gulf.
It i s 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 F o r c e . During the period in which these contingents occupied Sharm al-Shaikh
and controlled the Strait of Tiran, Egypt's exercise of its sovereign rights in that a r e a was
perforce suspended. But this temporary and involuntary suspension of the exercise of
Egyptian sovereign rights b e a r s no legal effect whatsoever on those rights - the full exercise
of which has now been effectively resumed - for the following reasons:

-7-

(1) At no time, during the absence of Egyptian forces from Sharm

al-Shaikh, did Egypt (subsequently the United Arab Republic) surrender any of its sovereign
rights in the Strait.
(2) In as much as the United Nations Emergency Force was assigned,
upon its 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 a s altering existing rights or as creating new rights
in the a r e a .

VIII
The scope of the sovereign rights which the United Arab Republic can,
under International Law, exercise in its " t e r r i t o r i a l w a t e r s " in the "territorial Strait of
Tiran" with r e s p e c t to Israeli or Israeli-bound shipping i s determined by the crucial fact
that the United Arab Republic and Israel a r e 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 p a r t i e s 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 a s much a s the Egyptian-Israeli General Armistice Agreement of
24 February 1949 i s completely silent about, and does not prohibit or r e s t r i c t the exercise
by Egypt of its sovereign rights in its " t e r r i t o r i a l w a t e r s " and in the " t e r r i t o r i a 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 I s r a e l i bound shipping carrying strategic goods falls within the scope of those r u l e s .

rx
Finally, it m u s t 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, military or para-military forces of either Party, including nonregular forces, shall . . . enter into or pass through the a i r space of the other Party or
through the w a t e r s within three m i l e s 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 a r e relevant to the present discussion:
(1) The prohibition of the passage of military or para-military Israeli
forces through the Strait of Tiran is accepted by Israel itself, and is solemnly announced as
an undertaking on its part.

-8-

(2) No distinction is made between "the w a t e r s 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.