Keywords

On November 16, 1869, the Suez Canal was inaugurated, and on the following day, it was officially opened to ships.1 More than 70 years ago, on April 9, 1949, the International Court of Justice delivered its first judgment in the Corfu Channel Case.2

This chapter examines the status of international canals and straits connecting two bodies of water under maritime law. The two types differ in that a strait is a natural phenomenon, while a canal is artificial.3 At the same time, having a similar role and designation—a passage between seas—one could assume that their legal status, as far as freedom of navigation is concerned, would be the same. In reality, straits have been extensively and comprehensively dealt with over the years by littoral nations, and today there is a complete and innovative chapter on this subject in the 1982 United Nations Convention on the Law of the Sea.4 However, the Convention is silent on canals.

Within Egypt there are two strategically important waterways that were also at the center of crises5: the Suez Canal, located west of the Sinai Peninsula and connecting the Gulf of Suez to the Mediterranean, and the Straits of Tiran, which connect the Red Sea and the Gulf of Aqaba. Opinions vary on the question of whether a canal is included in the definition of straits (channels).6 On the one hand, throughout legislative processes on conventions on the Law of the Sea, some countries have asked to include the word “canals” explicitly and in addition to “straits.”7 On the other hand, some scholars believe that the passage of water between seas must be part of the natural geological formation and not an artificial creation, meaning that man-made canals cannot be considered straits.8 The prevailing view today among scholars is that in dealing with straits, the Convention on the Law of the Sea includes canals that connect seas,9 unless there is a specific convention that regulates their mode of operation.10 Thus, for the purpose of our discussion regarding freedom of navigation, these are two different maritime passages. The straits are usually discussed under the purview of the Convention on the Law of the Sea whereas the Suez Canal is subject to a dedicated treaty regime set specifically for it.

In the first part of the chapter, the terms “strait” and “canal” will be defined, with an emphasis on the Suez Canal with regard to the right to freedom of navigation. The second part will describe the development of the right to freedom of navigation in the Suez Canal and the straits. One can see that while with straits there has been, over the years, a process of development with regard to navigation rights in the Law of the Sea, this is not the case with regard to canals subject to specific conventions, and specifically, the Suez Canal. The third part of the chapter will be devoted to a discussion leading to some conclusions on the differences between the two passages, which will assess whether these differences have future significance in the particular context of the Suez Canal.

“Strait” and “Canal”: Definitions under the Law of the Sea

Freedom of navigation in the open sea would be meaningless if similar freedom were not allowed through the passages leading to it. While it is clearly important to regulate the sailing through straits for all, the countries lining the straits could become vulnerable if accidents or mishaps occur. Hence, they want to exert their influence and control the straits they border and clarify the laws of passage.11 The friction between the coastal state and the international community is highlighted when the straits are narrow and sailing takes place within the territorial waters of the coastal state.12 Indeed, there are a number of straits that are under a regime of international agreements that seek to resolve the tension between the coastal state and the freedom of navigation in the strait within its borders.13 In most cases, however, the regime of passage through the strait will be determined in accordance with the Law of the Sea.

Initially, when territorial waters were three nautical miles wide there was a tendency to determine that a strait would be considered a waterway that is less than six miles wide. Thus, in practice, a vessel passing through the strait will be found at any given moment within the territorial waters of one of the banks.14 If the strait is wider than six nautical miles, then the area that does not fall within the territorial waters of one of the banks would be considered “High Seas” by definition even though it is within the geographical formation of the strait. Over the years and with the expansion of territorial waters to 12 nautical miles, it became clear that the width of the strait could not be the criterion for defining what constitutes an international strait. As mentioned above, international agreements at the beginning of the twentieth century created a situation in which freedom of navigation in the waters of the straits was granted even when the ships passed within the territorial waters of states.15

The preliminary ruling of the International Court of Justice in the 1949 Corfu Channel Case determined what an international strait is:

It may be asked whether the test is to be found in the volume of traffic passing through the Strait or in its greater or lesser importance for international navigation. But in the opinion of the Court the decisive criterion is rather its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation.16

Therefore, a strait is a geographical area that connects two seas and is used for international navigation. Although in the Corfu Channel Case there were other sea passages (west of the island of Corfu), the essential test is the fact that international navigation is taking place therein.17 The Law of the Sea examines the status of a strait in a technically substantial manner but not the degree of its strategic or functional importance. The number of straits that can be considered strategic is relatively small compared to the number of straits the Law of the Sea deals with.18

There are hundreds of straits in the world,19 some are located along international waterways and some between islands or within archipelagos. The definition of a strait, for the purpose of this discussion, shall be in accordance with Article 37 of the Convention on the Law of the Sea that states: “This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”20

As for the definition of the term “canal” under the Law of the Sea, there are many different types.21 This chapter focuses on canals of international importance that connect the seas (interoceanic).22 The canals must meet the geographical element of the International Court of Justice‘s definition in the Corfu Channel Case: the canal, like a strait, connects two high seas.23 In addition, the function of these canals is determined by the volume of international traffic and the multiplicity of countries that use them.24

Development of the Right to Freedom of Navigation in the Suez Canal and the Straits

The Right to Freedom of Navigation in the Suez Canal

Under customary international law, in the absence of any other agreement, a canal shall be subject to the exclusive jurisdiction of the state in whose territory it passes.25 If the canal passes through the territory of several countries, each has authority over the canal located in its territory. The canals discussed in this article are all under the authority of specific agreements and treaties that prevail over conventions on the Law of the Sea. The Suez Canal, in this case, operates under the Constantinople Convention of 1888.26

The Constantinople Convention was signed by the great powers at that time: Austro-Hungary, Italy, the United Kingdom, Germany, the Netherlands, Spain, France, Russia, and the Ottoman Empire.27 Article 1 of the Convention states that the canal will remain open and free for navigation in peacetime as in wartime, including to warring countries. The signatory states also agreed that no action would be taken to prevent sailing in the Canal and within a radius of three nautical miles from the ports of access.28 Articles 4 and 5 of the Convention set out the constraints on ships of warring countries as they pass through the canal, for example, a ban on the unloading and loading of equipment or forces.29 The Constantinople Convention forbids the signatory powers from mooring ships in the waters of the canal itself and also forbids more than two warships in the areas of access thereto. Warring countries were strictly prohibited from mooring in access ports.30 Representatives of the powers that signed the Constantinople Convention are responsible for overseeing its implementation, and Egypt is obliged to ensure its implementation.31

Thus, the Constantinople Convention regarding the Suez Canal guarantees freedom of navigation for merchant ships at any time without restriction; freedom of navigation for warships in times of peace and war, when in times of war they must do so while navigating with the least possible delay; the Suez Canal will be neutral; Egypt has the authority to use force to protect it, maintain public order, and ensure freedom of movement therein.32

During World War I, freedom of navigation was honored even though the Central Powers (Germany, Austro-Hungary, and the Ottoman Empire) attempted to attack the Suez Canal as part of the war against the United Kingdom but failed. The canal was attacked also during World War II by the Axis Powers and the United Kingdom defended and fortified it. Freedom of navigation was sometimes violated by the British who even used the access ports despite the prohibition in the Constantinople Convention.33

On July 26, 1956 Egypt nationalized the Suez Canal. The nationalization effectively abolished the concession granted to it by the great powers for the purpose of operating the canal but this was not a direct violation of the Constantinople Convention.34 The events that led to this, as well as the results of this move on the geo-strategic level, are beyond the scope of this chapter.35 The focus here is that nationalization gave Egypt absolute control and sovereignty over the canal, hence the question of the right to navigate therein from under the Law of the Sea in light of this change.36

According to Egypt, the nationalization of the Suez Canal was not intended to infringe on the freedom of navigation therein.37 This was reflected in both the Egyptian declarations and the Security Council resolution of October 13, 1956, laying down six principles for the operation of the canal: freedom of navigation must be maintained in the canal without any political or technical discrimination; the sovereignty of Egypt must be respected; the question of freedom of passage in the canal must be separated from political questions; the transit fees for the canal will be determined in consultation between Egypt and the countries utilizing the canal; some of the proceeds from the canal will be used for its development; in the event of a dispute between Egypt and the canal management company, it should be settled by way of arbitration.38

On April 24, 1957 following the Sinai Campaign, Egypt submitted a declaration to the UN Secretary General, which at its request was recorded with the UN Secretariat as an official international document. In the declaration, Egypt undertook, inter alia, to honor and uphold free, uninterrupted navigation to all countries in accordance with the provisions of the Constantinople Convention:

It remains the unaltered policy and firm purpose of the Government of Egypt to respect the terms and the spirit of the Constantinople Convention of 1888 and the rights and obligations arising therefrom. The Government of Egypt will continue to respect, observe and implement them.39

In the declaration, Egypt pledged to grant freedom of navigation to all,40 as well as to cooperate fully with the Suez Canal Authority, which manages its operations.41 The canal is operated in accordance with the Authority’s regulations (Canal Code).42 Thus, the Constantinople Convention and Egypt’s declaration are the normative basis on which the freedom of navigation in the canal has been determined ever since—and hence, it must be open to all.43 According to scholars, the Constantinople Convention, despite the changing or disappearing of the parties initially signing it, is in effect in the sense that it has become a customary law that is binding.44 In fact, in their view, the freedom of navigation in the canal remains as it was in the Constantinople Convention despite all the geostrategic changes that have taken place since then.

However, in practice, since the establishment of the State of Israel more than seventy years ago, the canal has often been blocked to Israeli usage or to ships that were supposed to sail to Israel or carry goods to or from Israel despite the provisions of the Constantinople Convention and the Egyptian undertakings.45 Although the legal norm was intended to guarantee freedom of navigation in the Canal to all, in practice, Egypt violated this right several times. In these cases, Egypt’s sovereignty and its interests prevailed over the freedom of navigation, and therefore, the guarantee of freedom of navigation in cases of breach of the Constantinople Convention by Egypt, can be cured by way of international coercion, which means the expropriation of its sovereignty over the Suez Canal.46

The Right to Freedom of Navigation in the Straits

Two opposing worldviews underlie the attitude toward the right of passage in straits, which generally derive from the history of understanding the right of navigation on the high seas.47 One approach comes from the thinking expressed as early as the seventeenth century in the writings of the Dutch scholar Hugo Grotius, who wrote a book called Mare Liberum (Open seas), in which it was argued that the sea could not be conquered or owned by a state or any other body. Seeking to harmonize the laws dealing with sovereignty on land and sea, Grotius wrote that if land, rivers, or the open sea have become someone’s property, they must still be open to those who seek, for worthy reasons, to pass through them. Subsequently, and on this basis, scholars laid the foundations for modern thought regarding the freedom of navigation in the maritime domain due to its belonging to the world community (res communes),48 and from it derives the universal right to freedom of navigation in the seas,49 or the straits that are open to all.50 This approach was advocated by the maritime powers that had the ability and vested interests to sail across all seas, and therefore sought the maritime domain to express their freedom of navigation therein—in other words, Freedom of the Seas.

The second approach was rooted in national authority over the seas, or what was called the “closed sea” (mare clausum). This approach is based on the argument that the sea can be conquered just as the land can be conquered, and sovereignty over occupied sea areas can be exercised just as sovereignty over occupied land can be exercised. This approach later created, and without expanding beyond what is required here, the concept of Territorial Waters that created constraints and limitations to the concept of freedom of navigation.51 Accordingly, states that did not have large fleets or aspirations to control the seas were primarily concerned with the protection of their territorial waters. These countries regarded the straits as part of their sovereign waters and the right of passage in those areas as a right that should be in accordance with the law of the sea of their territorial waters and within the accepted limits.52

Over the years, and in accordance with these two approaches to the right to freedom of navigation in the seas, the right of passage through straits has evolved. The concept of Innocent Passage began to develop in the late nineteenth century.53 Between 1919 and 1939, the rulings of the Permanent Court of Arbitration established the necessary balance between the state’s sovereignty over the maritime area near its shores and the right of ships to innocent passage therein.54 Warships posed a special challenge to this idea of innocent passage because their mere presence at sea symbolizes sovereignty and power, which can appear to be not innocent.

The ruling in the Corfu Channel Case mentioned above symbolizes the “watershed” in the attitude of international law toward straits.55 This is where the principle of freedom of navigation in straits was established. With regard to warships, the Court ruled that they have the right deriving from customary law to sail through straits in peacetime, without giving prior notice, provided that the voyage is indeed innocent:

It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace.56

The ruling in the Corfu Channel Case influenced and served as a basis for the states’ discussions leading up to the drafting of the First Maritime Convention on the Territorial Sea and the Contiguous Zone 1958.57 As for straits, Article 16(4) therein states that in a strait connecting two seas, the navigation regime shall be innocent passage: “There shall be no suspension of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State.”58

From all we have seen so far, it is clear that every ship has the right to innocent passage in the territorial waters of the coastal state, including in straits.59 Innocent passage means passing without threatening the coastal state. That is, continuous and expeditious without stops or moorings permitted only for emergency purposes.60 The state can prevent crossings that are not innocent passage, and it can prevent the innocent passage of ships for a limited time and without discrimination, but only if it is essential for its security.61 There is no obligation for a ship to notify of the crossing in advance for innocent passage to be in effect.

The situation for warships is more complex. If there is an agreement on the strait then it supersedes the Convention on the Law of the Sea as we have seen thus far.62 The Convention on the Territorial Sea 1958 stipulates that warships must obey the instructions of the state in whose territorial waters they pass, otherwise the state can demand them to leave and the warship must obey.63 There is no prohibition on requesting warships to notify in advance of their intention to cross the strait.64 The implication is that in the same Convention on the Territorial Sea, warships were not permitted unrestricted innocent passage in straits during peace and war, in contrast to the ruling in the Corfu Channel Case.

The idea of a Transit Passage in the straits was first introduced by the United States and Soviet delegations in the early 1970s as part of the discussions on the formulation of the 1982 United Nations Convention on the Law of the Sea.65 These discussions reflected the abovementioned differences between the “closed sea” and the “open sea” approaches. The starting point was the right to freedom of navigation on the high sea and the attempt to liken the passage through the straits as much as possible to the existing situation in the two high seas between which the straight is located.66 The “transit passage” right is a new concept that extends innocent passage to a little less than the right to freedom of navigation on the high seas.67

The third part of the1982 United Nations Convention on the Law of the Sea deals with straits between two open seas.68 Article 38 defines transit passage as follows: “Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”69

Subject to a strait not having a specific treaty regulating the navigation regime therein, and therefore superseding the Convention on the Law of the Sea,70 transit passage has two conditions: first, subordination to the additional clauses in that part, and second, the passage must be continuous and expeditious. Accordingly, moorings, maneuvers or any other delays are prohibited, as set out in Articles 39 and 40 (unlike the high seas navigation regime).71 The significant innovation in this article is that transit passage, as opposed to innocent passage, applies to all ships, including warships in peacetime and wartime.72

Discussion and Conclusion

The substantial legal aspect that has changed over the last 150 years in the Suez Canal is the sovereignty over the canal. Egypt is the sole sovereign, operates the canal through a national company, and is obliged to uphold the rights therein under the specific treaty, international law, and in accordance with international practice. In this sense, the freedom of navigation that was supposed to be broad, free, and impartial has become, over the years, limited—at least as far as the State of Israel is concerned. When the Constantinople Convention stood on its own and the great powers ruled the Suez Canal, the Constantinople Convention had the decisive and final power.73

The historical process with regard to canals, and specifically the Suez Canal, demonstrates that in the balance between a specific treaty on the one hand and sovereignty on the other hand, the latter becomes increasingly decisive. In any case of ambiguity, tension, or conflict of interest, the sovereign interest of the state will prevail. In line with these developments at the global level, the Constantinople Convention has also lost its power, and in the future, there is no guarantee that sovereignty will not prevail in the future over freedom of navigation in the Suez Canal, and it will be closed again. In this sense, the only way to ensure freedom of navigation in the Suez Canal would be subject to an infringement of Egyptian sovereignty, for all that that implies.

A different picture emerges over the years in relation to the freedom of navigation in straits. Starting with the Corfu Channel Case, the right is expanding, from a right to innocent passage to transit passage, which is unlimited for all ships. The international community has spoken clearly over the years. Straits are a passage artery like the open sea and the sovereign right of the state retreats from the right of passage. Thus, for example, at the end of 2019, countries cooperated to preserve the freedom of navigation in the Straits of Hormuz.

In conclusion, in case of violation of the right to freedom of navigation in straits or canals one should expect different behavior on the part of the international community. Whereas in straits, states will do what is required to ensure freedom of navigation as this is enshrined in international legal norms and is possible. With respect to canals, the meaning of ensuring that freedom of navigation will require intervention through international institutions to the point of occupying the region and abolishing sovereignty. Is this likely to happen? It is difficult to assess whether states would agree to do so today.

Notes

  1. 1.

    Ruth Lapidoth, “Freedom of Movement in the Suez Canal” [in Hebrew], Ha’Praklit 24 (1968): 28.

  2. 2.

    International Court of Justice—Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) (1949) (hereinafter: the Corfu Channel Case). The case involved the United Kingdom’s claim against Albania in the matter of the channel between Albania and the Greek island of Corfu and had to do with the meaning of Innocent Passage. The complaint pertained to a series of incidents that occurred between May and November 1946. In one of them two British warships were damaged on October 22, 1946, in the channel as a result of an explosion of naval mines and 45 British sailors were killed. The United Kingdom claimed that Albania placed the mines. Albania claimed that it has the authority to determine the right of passage in a channel within its territorial waters. The Court was required, among other things, to decide whether the passage of the two warships violated Albanian sovereignty, and ruled that in peacetime warships have the right to Innocent Passage in international channels. The Court instituted and expanded the meaning of Innocent Passage. For more information, see also: Bing Bing Jia, The Regime of Straits in International Law (Oxford: Clarendon Press, 1998), 36–47; Laurence W. Maher, “Half Light between War and Peace: Herbert Vere Evatt, the Rule of International Law, and the Corfu Channel Case,” Australian Journal of Legal History 9 (2005): 47.

  3. 3.

    Lapidoth, “Freedom of Movement in the Suez Canal,” 27.

  4. 4.

    United Nations Convention on the Law of the Sea, signed December 10, 1982, entered into force November 16, 1994, 1833 UNTS 397, Part III in Articles 34–45 (https://treaties.un.org/doc/Publication/UNTS/Volume%201833/volume-1833-A-31363-English.pdf). See Jeanine B. Womble, “Freedom of Navigation, Environmental Protection, and Compulsory Pilotage in Straits Used for International Navigation,” Naval Law Review 61 (2012): 135.

  5. 5.

    On the history of the Suez Canal in general, see, for example, Lapidoth, “Freedom of Movement in the Suez Canal”; Leo Gross, “Passage through the Suez Canal of Israel-Bound Cargo and Israel Ships,” American Journal of International Law 51, no. 3 (1957): 530; Robert Delson, “Nationalization of the Suez Canal Company: Issues of Public and Private International Law,” Columbia Law Review 57, no. 6 (1957): 755. On the history of the Tiran Strait, see Ruth Lapidoth (Eschelbacher), “Freedom of Passage in the Tiran Straits” [in Hebrew], in HaPraklti: Jubilee Book, ed. Arnan Gabrieli and Miguel Deutch (Tel Aviv: Israel Bar Association, 1994), 224; Leo Gross, “Passage through the Strait of Tiran and in the Gulf of Aqaba,” Law & Contemporary Problems 33 (1968): 125.

  6. 6.

    Hugo Caminos and Vincent P. Cogliati-Bantz, The Legal Regime of Straits: Contemporary Challenges and Solutions (Cambridge: Cambridge University Press, 2014), 109–11.

  7. 7.

    Ibid., Thus, for example, during the discussions on the First Convention on the Law of the Sea in 1958 (UNLOS I), which discussed territorial waters, Chile sought to include the word “canals.”.

  8. 8.

    Caminos and Cogliati-Bantz, The Legal Regime of Straits, 109.

  9. 9.

    Ibid., 111.

  10. 10.

    Ibid.

  11. 11.

    Ruth Lapidoth, Freedom of Navigation, with Special Reference to International Waterways in the Middle East (Jerusalem: Leonard Davis Institute for International Relations, 1975), 38; George W. Grandison and Virginia J. Meyer, “International Straits, Global Communications, and the Evolving Law of the Sea,” Vanderbilt Journal of Transnational Law 8 (1974–1975): 404.

  12. 12.

    Lapidoth, Freedom of Navigation, 38.

  13. 13.

    Ibid., 38–39. See, for example, the 1936 Montreux Treaty, which regulates the passage through the Bosporus and Dardanelles under Turkish control. As well as the Buenos Aires Agreement governing the passage in the Magellan Straits.

  14. 14.

    R. R. Baxter, The Law of the International Waterways: With Particular Regard to Interoceanic Canals (Cambridge, MA: Harvard University Press, 1964), 4.

  15. 15.

    Ibid., 4–9. This was the case, for example, in Gibraltar in an Anglo-French declaration of 1904 that banned the fortification of the coast on the Moroccan side to ensure freedom of navigation and in the case of Japan and Taiwan (then still Formosa) when the former declared the strait to be high seas.

  16. 16.

    The Corfu Channel Case, 28, emphasis added.

  17. 17.

    Baxter, The Law of the International Waterways, 9.

  18. 18.

    Ibid., 9–10.

  19. 19.

    Jia, The Regime of Straits in International Law, 2. There are various lists of the number of straits in the world that stem from the definition. Thus, the British navy indicates 32 and in various other lists there are 35 straits and even 265 or 274—see the details therein.

  20. 20.

    UN Convention on the Law of the Sea, Article 37.

  21. 21.

    Baxter, The Law of the International Waterways, 10–12. Resulting from the fact that the discussion deals with canals between seas, it excludes all land canals in Europe or other continents from the discussion. In Europe, for example, some of the canals are linked to the rivers to which they are connected, such as the Elbe, the Oder, and the Danube. In some cases, the canals are designed to improve the navigability of rivers and allow larger ships to pass or for ships to pass in two directions at the same time—upstream and downstream. This can lead to some rivers having extensive infrastructure work being carried out to improve the passage so that it has become in practice an artificial river—a canal. For example, the St. Lawrence Canal from the United States to Canada. Not all canals connecting seas can be considered important international canals. For example, the Baltic-White Sea Canal, which is active only part of the year and serves as passage for a small number of low-decker ships or the Volga Don Canal, which connects the two rivers between the Baltic Sea and the Black Sea. This canal also carries a relatively low volume of ships and cannot be considered an important international canal. The Corinth Canal in Greece can in some ways meet the criteria of a canal. It is man-made, connects seas and the volume of activity is not insignificant. Nevertheless, it is a relatively small canal that has less international significance.

  22. 22.

    Baxter, The Law of the International Waterways, 10; Lapidoth, “Freedom of Movement in the Suez Canal,” 27. The list actually includes the Suez Canal, Panama Canal, and Kiel Canal.

  23. 23.

    Lapidoth, “Freedom of Movement in the Suez Canal,” 27.

  24. 24.

    Baxter, The Law of the International Waterways, 12–13.

  25. 25.

    Lapidoth, “Freedom of Movement in the Suez Canal,” 27. For example, the Corinth Canal located in Greece’s territory is under its sovereignty and it may, in theory, close it to foreign countries at any time.

  26. 26.

    Lapidoth, “Freedom of Movement in the Suez Canal,” 28–29; Charles B. Selak, Jr., “The Suez Canal Base Agreement of 1954,” American Journal of International Law 49 (1955): 488–91. After the Canal was opened in 1869, it was managed by the Compagnie Universelle du Canal Maritime de Suez, an economic company founded by the French entrepreneur Ferdinand de Lesseps, which was given the concession for the operation of the Canal for 99 years. Britain initially opposed the Suez Canal but eventually understood its value. When Britain learned that the rulers of Egypt (subordinate to the Ottoman Empire) needed money and wanted to sell their shares, Britain purchased, in 1875, 44% of the company’s shares. In 1882, Britain took over Egypt at the request of the local ruler who sought its protection against the Ottoman Empire. Egypt thus became a protectorate of Britain. Subsequently, the states having naval forces demanded that the passage through the canal be regulated by an international agreement signed on October 29, 1888. Britain demanded that the treaty maintain its status as the region’s ruler and eventually after recognizing French rule in Morocco, the latter recognized Britain’s right to the Suez Canal. After this recognition, the two states ratified the treaty that became the treaty by virtue thereof and according to whose clauses the Suez Canal operated.

  27. 27.

    Thomas T. F. Huang, “Some International and Legal Aspects of the Suez Canal Question,” American Journal of International Law 51 (1957): 278–80.

  28. 28.

    Constantinople Convention, 1888, in Article 1: “The Suez Maritime Canal shall always be free and 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.”.

  29. 29.

    Ibid., Articles 4, 5.

  30. 30.

    Ibid., Article 7.

  31. 31.

    Ibid., Articles 8 and 9.

  32. 32.

    Lapidoth, “Freedom of Movement in the Suez Canal,” 29.

  33. 33.

    Ibid., 30.

  34. 34.

    Ibid., 31.

  35. 35.

    On the moves that led to the nationalization of the Suez Canal, the reactions and significance at the geostrategic level, see, for example, Gross, “Passage through the Suez Canal of Israel-Bound Cargo and Israel Ships,” 530–32; Lapidot, “Freedom of Movement in the Suez Canal,” 30–38; Huang, “Some International and Legal Aspects of the Suez Canal Question,” 277–89.

  36. 36.

    This situation has also existed in the Panama Canal since the agreement between the United States and Panama in 1977.

  37. 37.

    Lapidoth, “Freedom of Movement in the Suez Canal,” 31.

  38. 38.

    Ibid.

  39. 39.

    Declaration on the Suez Canal and the Arrangements for Its Operation: Letter dated April 24, 1957, from the Minister for Foreign Affairs of Egypt, addressed to the Secretary-General, U.N. Doc. A/3576, S/3818, in Article 1; Lapidoth, “Freedom of Movement in the Suez Canal,” 31.

  40. 40.

    Declaration on the Suez Canal, Article 3(a).

  41. 41.

    Ibid., Article 4; Baxter, The Law of the International Waterways, 90.

  42. 42.

    Declaration on the Suez Canal, Article 6: “The regulations governing the Canal, including the details of its operation, are embodied in the Canal Code which is the law of the Canal.”

  43. 43.

    Baxter, The Law of the International Waterways, 89–90.

  44. 44.

    Ruth Lapidoth, “The Reopened Suez Canal in International Law,” Syracuse Journal of International Law 4, no. 1 (1976): 41.

  45. 45.

    Lapidoth, “Freedom of Movement in the Suez Canal,” 32–38; Delson, “Nationalization of the Suez Canal Company,” 780–84; Gross, “Passage through the Suez Canal of Israel-Bound Cargo and Israel Ships,” 538–43.

  46. 46.

    Lapidoth, “Freedom of Movement in the Suez Canal,” 33–34.

  47. 47.

    Edwin Egede, “Law of the Sea, Era of Codification,” Oxford Research Encyclopedia of International Studies, 2–3, International Law Online Publication Date: December 2017. https://doi.org/10.1093/acrefore/9780190846626.013.254.

  48. 48.

    Ibid., 2.

  49. 49.

    Luke T. Lee, “Legal Aspects of Internationalization of Interoceanic Canals,” Law and Contemporary Problems 33 (1968): 160.

  50. 50.

    Jia, The Regime of Straits in International Law, 36.

  51. 51.

    Egede, “Law of the Sea, Era of Codification,” 3–4.

  52. 52.

    Ibid., 3.

  53. 53.

    Jia, The Regime of Straits in International Law, 82–83; Sarah Weiss Maudi, “Law of the Sea” [in Hebrew], in International Law, 3rd ed., ed. Robbie Sabel and Yael Ronen (Tsafririm, Israel: Nevo, 2016), 530. Innocent passage means without the passage constituting a threat to the coastal state. And the right is also for passage only and it must be continuous and direct. Vessels passing by innocent passage may stop or anchor only in an emergency. Innocent passage does not include passage for fishing, research, or any action not necessary for the passage. The right does not require prior notice, permission, or payment.

  54. 54.

    Jia, The Regime of Straits in International Law, 83.

  55. 55.

    Ibid., 36.

  56. 56.

    Corfu Channel Case, 28; Baxter, The Law of the International Waterways, 10; Jia, The Regime of Straits in International Law, 97, emphasis added.

  57. 57.

    Jia, The Regime of Straits in International Law, 100.

  58. 58.

    Convention on the Territorial Sea and the Contiguous Zone 1958, Article 16(4) (hereinafter: Convention on the Territorial Sea 1958), emphasis added.

  59. 59.

    Jia, The Regime of Straits in International Law, 106.

  60. 60.

    Weiss Maudi, “Law of the Sea,” 530.

  61. 61.

    Convention on the Territorial Sea 1958, footnote 58 supra, Article 16(1)–(3).

  62. 62.

    Ibid., Article 25.

  63. 63.

    Ibid., Article 23: “If any warship does not comply with the regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance which is made to it, the coastal State may require the warship to leave the territorial sea”; Jia, The Regime of Straits in International Law, 107.

  64. 64.

    Jia, The Regime of Straits in International Law, 107; Weiss Maudi, “Law of the Sea,” 530. For example: China, Romania, and Algiers.

  65. 65.

    Jia, The Regime of Straits in International Law, 132–33.

  66. 66.

    Ibid., 138–39.

  67. 67.

    Weiss Maudi, “Law of the Sea,” 532.

  68. 68.

    The Convention on the Law of the Sea, Article 37.

  69. 69.

    Ibid., Article 38(2), emphasis added.

  70. 70.

    Jia, The Regime of Straits in International Law, 143, 145–46.

  71. 71.

    The Convention on the Law of the Sea, Article 38(2), 39–40; Jia, The Regime of Straits in International Law, 138–43, 147–48.

  72. 72.

    The Convention on the Law of the Sea, Article 38(1); Jia, The Regime of Straits in International Law, 150–51.

  73. 73.

    Baxter, The Law of the International Waterways, 82–85.