All of the 193 km of the Suez Canal go through Egyptian territory. In accordance with international law, “Canals are in principle subject to the territorial sovereignty and jurisdiction of the state or states which they separate or traverse.”1 Such canals are considered internal waters with no rights of navigation to foreign vessels unless the territorial state agrees to a special regime.

The 1888 Constantinople Convention

In the case of the Suez Canal, Turkey, which at the time ruled Egypt, agreed in the 1888 Constantinople Convention to apply a special regime to the Suez Canal. The clauses of the Constantinople Convention relevant to freedom of passage are

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.

Article 4

The Maritime Canal remaining open in time of war as a free passage, even to ships of war of belligerents, according to the terms of Article I of the present Treaty, the High Contracting Parties agree that no right of war, no act of hostility, nor any act having for its object to obstruct the free navigating of the Canal, shall be committed in the Canal and its ports, even though the Ottoman Empire should be one of the belligerent Powers.

Article 9

The Egyptian Government shall, within the limit of its powers resulting from the Firmans, and under the conditions provided for in the present Treaty, take the necessary measures for insuring the execution of the said Treaty.

Article 10

Similarly, the provisions of Articles 4, 5, 7, and 8, shall not interfere with the measures which His Majesty the Sultan and His Highness the Khedive, in the name of His Imperial Majesty, and within the limits of the Firmans granted, might find it necessary to take for securing by their own forces the defense of Egypt and the maintenance of public order.

Article 11

The measures which shall be taken in the cases provided for by Articles 9 and 10 of the present Treaty shall not interfere with the free use of the Canal.2

From 1923 until 1954, Britain, as the de facto sovereign of the Suez Canal, succeeded to the rights and obligations that Turkey had under the Constantinople agreement.3 In a 1954 agreement, Egypt and Great Britain agreed

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, 1888.4

On July 26, 1956, Egypt nationalized the Suez Canal Company but did not repudiate the international status of the Canal. Subsequently, Britain and France introduced a Security Council resolution that resolved

  1. 1.

    There should be free and open transit through the Canal without discrimination, overt or covert—this covers both political and technical aspects;

  2. 2.

    The sovereignty of Egypt should be respected; and

  3. 3.

    The operation of the Canal should be insulated from the politics of any country.5

After the 1956 Suez crisis where Britain and France seized the Canal and then withdrew, Egypt made a public unilateral declaration, which contained the following statement:

Reaffirmation of 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.

Freedom of navigation, tolls, and development of the Canal

The Government of Egypt are more particularly determined:

To afford and maintain free and uninterrupted navigation for all nations within the limits of and in accordance with the provisions of the Constantinople Convention of 1888.

This Declaration, with the obligations therein, constitutes an international instrument and will be deposited and registered with the Secretariat of the United Nations.6

Egypt further accepted “as compulsory ipso facto, on condition of reciprocity and without special agreement, the jurisdiction of the International Court of Justice in all legal disputes that may arise under the said paragraph 9 (b) of the above Declaration, dated April 24, 1957,7 with effect as from that date.”8

Egyptian Legal Justifications for Preventing Israeli Use of the Canal

From 1948 onward, Egypt, by a series of decrees and decisions of Egyptian prize courts, prevented Israeli ships and in some cases, Israel-bound cargoes from using the Suez Canal. Egypt based its claim on the fact that it was in a state of war with Israel.

As to the question of whether the practice violated the Constantinople Convention, Egypt justified this practice by claiming that they were entitled to take steps to maintain the security of the Canal. Egypt, perhaps, could have relied on the fact that Britain had prevented Axis shipping from using the Canal during World War II, but Egypt refrained from raising this issue publicly. Regarding the 1888 Convention, Majid Khadduri writes, “No surrender of any sovereign rights was ever contemplated. Israel attacked Egypt, had not respected the neutrality of the Canal as it carried out her military operations to its very eastern bank thus Egypt would be empowered to close the Canal in self-defense, no less by general law than by the very provisions of the Convention of 1888.”9 Egypt also argued that, technically and juridically, Egyptian practices were not a “blockade” but visit, search, and seizure.10 Khadduri adds that the “Six Point” UN Security Council Resolution of October 13, 1956, which called for “free and open transit through the Canal” also called for “Respect for Egypt’s Sovereignty,” which means that Egypt should not be denied the right of self-defense.11 The Egyptian delegate to the UN explained to the Security Council in January 1955:

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. Although the text of the article [Article 11] 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?

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 maritime Powers, we are anxious to prevent obstruction or damage to the Canal.

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.12

The Relevance of the 1949 Egypt-Israel Armistice Agreement

In 1949, Egypt and Israel signed a general armistice agreement.13 A legal question arose as to whether this agreement prohibited Egypt from blocking Israeli shipping. Egypt claimed that the state of war continued despite the 1949 Armistice agreement and thus Egypt had rights of belligerency, including the right of visit, search, and seizure of enemy shipping. Egypt further claimed that there was no clause in the 1949 Armistice Agreement that allowed Israel use of the Canal. The Egyptian delegate to the Security Council explained in 1954

The question of the existence of Egypt's right of visit and of search was therefore raised even before the armistice negotiations were started. The fact that the Armistice Agreement is silent on this point, although it is fairly common practice to include a provision on this subject in armistice agreements, shows, as indeed the Mixed Armistice commission has confirmed, that the armistice agreement of classical type concluded between Egypt and Israel expressed the joint will of the signatories and left them free to exercise their legitimate right of visit and search.14

Israel’s position was that Egypt had no right to commit acts of belligerency. Israel claimed that the 1949 Egypt-Israel Armistice Agreement ended the state of war, if there was one. Louis M. Bloomfield reflects this Israel position when he writes, “Egypt and Israel are both member states of the United Nations and by virtue of their membership are not and cannot be in a state of war with each other.”15 Israel’s position would not appear to have been correct law, as armistice agreements do not end a state of war. Leo Gross writes that, as a general rule, armistice agreements indeed do not end the state of war, but the Egypt-Israel Armistice Agreement “has been interpreted authoritatively as prohibiting belligerent acts of visit, search and seizure.”16 According to Gross, “Even assuming the correctness of the Egyptian contention namely, that a state of war continues to exist, Israeli ships have a right of passage through the Canal.” Gross bases his statement on the clause in the Constantinople Convention that Egyptian measures should “not interfere with the free use of the Canal.”17 Gross also relies on the Corfu judgment ruling that Albania could issue regulations for passage in the Straits but not prohibit such passage.18 “Egypt is authorized to take ‘reasonable and necessary’ measures but these measures must not interfere with the ‘free use’ of the Canal,” he writes, adding that the Egyptian practice in the Canal in regard to its claim that it was only visit, search, and seizure was, in fact, more akin to “blockade.”19

Israel relied on an interpretation by Ralph Bunche, the UN Mediator who had informed the UN Security Council in 1949, “There should be free movement for legitimate shipping, and no vestiges of the wartime blockade should be allowed to remain as they are inconsistent with both the letter and the spirit of the Armistice Agreements.”20 The Chief of Staff of the UN Truce Supervision Organization, General Riley, reached the conclusion that it was not clear that the blockade was a violation of the 1949 Armistice Agreement and the Mixed Armistice Commission was therefore not authorized to deal with the issue. The Chief of Staff added, however,

It is quite clear to me that action taken by Egyptian Authorities in interfering with passage of goods destined for Israel through the Suez Canal must be considered an aggressive action and interference with the passage of goods destined for Israel is a hostile act, entirely contrary to the spirit of the General Armistice Agreement and does, in fact, jeopardize its effective functioning. It was certainly never contemplated at Rhodes that what, is, in effect, an act of blockade or at least an act undertaken in the spirit of a blockade and having the partial effect of one, would be continued by one of the parties to the General Armistice Agreement more than two years after it had been signed.21

The Role of the UN as Regards Navigation in the Canal

In 1950, Israel submitted a draft proposal to the UN Security Council that called upon Egypt “to abandon blockade practice and to restore the free movement of shipping through the Suez Canal.” The Resolution was not adopted.22 However, in 1951 the UN Security Council adopted a resolution, stating in the preamble that “Since the armistice regime, which has been in existence for nearly two and a half years, is of a permanent character, neither party can reasonably assert that it is actively a belligerent or requires to exercise the right of visit, search and seizure for any legitimate purpose of self-defense.” The operative part called for 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.23

In 1954, Israel submitted a complaint that Egypt was not complying with the 1951 Security Council Resolution.24 The Egyptian delegate to the Security Council reacted, surprisingly candidly for a diplomat, that “Egypt is taking action which is perhaps not in conformity with the Security Council’s decision of 1 September 1951,” explaining that “[t]he Council, in adopting that resolution, had based it on considerations other than the essentially legal aspects of the case.”25 New Zealand consequently submitted a draft resolution to the Security Council that called upon Egypt to comply with the 1951 Security Council Resolution.26 The resolution was vetoed by the Soviet Union and subsequently not adopted. Israel received Western support for its right to navigation, particularly from the maritime nations,27 however Egypt continued to bar Israeli shipping and goods, basing its actions on the right of preserving the safety of the Canal.

The Canal Post-1967

During the June 1967 war, Israel troops reached the east bank of the Canal and Egypt scuttled ships in the Canal blocking its use. After the 1973 Yom Kippur war, the parties signed a disengagement of forces agreement of 197428 and Egypt, with international help, began clearing the Canal. The 1975 “Interim Agreement between Egypt and Israel” stipulated, “Non-military cargoes destined for or coming from Israel shall be permitted through the Suez Canal.”29 The 1979 Treaty of Peace between Egypt and Israel on this issue reads

Ships of Israel, and cargoes destined for or coming from Israel, shall enjoy the right of free passage through the Suez Canal and its approaches through the Gulf of Suez and the Mediterranean Sea on the basis of the Constantinople Convention of 1888, applying to all nations, Israeli nationals, vessels and cargoes, as well as persons, vessels and cargoes destined for or coming from Israel, shall be accorded non-discriminatory treatment in all matters connected with usage of the canal.30

This clause was drafted by Israel, it spells out explicitly that the 1888 Constantinople Convention allows Israeli ships and cargoes to use the Canal. Israel was also apprehensive that Israeli ships would be denied access to the Canal through Egyptian waters, hence the language “and its approaches through the Gulf of Suez and the Mediterranean Sea.” Israel was also apprehensive that Egypt might apply discriminatory charges on the pretext that special security measures were needed. Hence the language, “Non-discriminatory treatment in all matters connected with usage of the canal.” Subsequent to the entry into force of the Egypt Israel Peace Treaty, there has been no interference with the passage of Israeli ships through the Canal.31

The actions of all the parties concerned with passage through the Canal—Egypt, Israel, and the maritime powers—were clearly dictated by strategic and commercial interests. Nevertheless, all the States attempted to base their actions on international legal norms. It was important for them to claim international legitimacy for their positions. This was particularly so since the UN Security Council was involved and the language of the relevant resolutions was the language of international law.


  1. 1.

    James Crawford, Brownlie’s Principles of Public International Law, 9th ed. (2019), 325.

  2. 2.

    The parties to the Convention were Turkey, Great Britain, Austria-Hungary, France, Germany, Holland, Italy, Spain, and Russia. W. A. White, Calice Radowitz, Miguel Florez y Garcia, G. de Montebello, A. Blanc, Gus. Keun, Nélidow, and M. Saïd, “Convention Respecting the Free Navigation of the Suez Maritime Canal. Signed at Constantinople, October 29, 1888,” American Journal of International Law 3, no. S2 (1909): 123–27.

  3. 3.

    The Treaty of Lausanne, 1923. The Treaty of Alliance between Egypt and Great Britain, 1936.

  4. 4.

    Egypt and United Kingdom of Great Britain and Northern Ireland: Agreement (with annexes and appendices). Signed at Cairo, on 19 October 1954. United Nations Treaty Series 210, No. 2833: 3–61, Article 8.

  5. 5.

    Situation Created by the Unilateral Action of the Egyptian Government in Bringing to an End the System of International Operation of the Suez Canal, which Was Confirmed and Completed by the Suez Canal Convention of 1888, UN Doc. 8/3675, October 13, 1956.

  6. 6.

    UN Doc. A/3576, 24 April 1957.

  7. 7.

    Paragraph 9 (b) dealt with disputes or disagreements arising out of the 1888 Convention or the Egyptian Declaration.

  8. 8.

    Mahmoud Fawzi, “Declarations Recognizing the Jurisdiction of the Court as Compulsory,” International Court of Justice, 18 July 1957.

  9. 9.

    Majid Khadduri, “Closure of the Suez Canal to Israeli Shipping,” 33 Law and Contemporary Problems (Winter 1968): 147, 148, 154.

  10. 10.

    UN Doc. S/PV.658, February 5, 1954, para. 163.

  11. 11.

    Khadduri, “Closure of the Suez Canal to Israeli Shipping,” 147, 148, 154.

  12. 12.

    UN Doc. S/PV 688 13 January 1955 paras. 89, 90, 96.

  13. 13.

    “Egyptian-Israeli General Armistice Agreement. Signed at Rhodes, on 24 February 1949.” United Nations Treaty Series 42, no. 654: 252–84.

  14. 14.

    UN Doc. S.Pv.661 para. 64.

  15. 15.

    Louis M. Bloomfield, Egypt, Israel and the Gulf of Aqaba in International Law (Toronto: Carswell, 1957), 53.

  16. 16.

    Leo Gross, “Passage through the Suez Canal of Israel-Bound Cargo and Israel Ships,” American Journal of International Law 51 (1957): 530, 546, 549, 567.

  17. 17.


  18. 18.

    Corfu Channel Case (United Kingdom v. Albania) [1949] ICJ Reports 4, at 29.

  19. 19.

    Gross, “Passage Through the Suez Canal,” 530, 537, 542.

  20. 20.

    Ralph Bunche, Security Council Official Records, Fourth Year, 433rd meeting, No. 36, 4 August 1949, p. 6.

  21. 21.

    Cablegram dated 12 June 1951, From the Chief of Staff of the Truce Supervision Organization, addressed to the Secretary General, transmitting a Report to the Security Council, S/2194, June 13, 1951.

  22. 22.

    UN Doc. S/1900, 13 November 1950.

  23. 23.

    Security Council Resolution S/2322, 1 September 1951.

  24. 24.

    UN Doc. S/3168 and Add.1, 28 January 1954.

  25. 25.

    The Egyptian delegate to the UN Security Council, UN Doc. S/PV.659, 15 February 1954, paras. 65.135.

  26. 26.

    New Zealand Draft Resolution UN Doc. S/3188, Corr. I, 19 March 1954.

  27. 27.

    For example, “So far as free passage of ships through the Canal is concerned, we have always held that under the 1888 Convention there was freedom for all shipping of all nations, including Israel, through the Suez Canal,” Earl Home, House of Lords Hansard HL Deb 14 May 1957 vol. 203 cc 633–42. The representative of the United States to the UN told the Security Council on January 4, 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 1 September 1951, and a retrogression from the stated objectives to which both sides commit-ted themselves in signing the armistice agreement.” UN Doc S/PV.687 para. 681.

  28. 28.

    Egyptian-Israel Agreement on Disengagement of Forces in Pursuance of the Geneva Peace Conference, January 18, 1974 UN Doc. S/11198 (1974).

  29. 29.

    Interim Agreement between Israel and Egypt, September 4, 1975, Article VII,

  30. 30.

    Peace Treaty between Israel and Egypt, March 26, 1979, Article V (1)

  31. 31.

    The Egypt Israel Peace Treaty entered into force April 25, 1979.