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Published online by Cambridge University Press: 27 February 2017
The Gulf of Aqaba is a long, narrow body of water on the eastern side of the Sinai Peninsula. The western shore is Egyptian, the eastern shore is Saudi Arabian, and the head of the Gulf is Israeli and Jordanian territory. The islands of Tiran and Sanafir front the entrance and have been under Egyptian occupation since 1950. Saudi Arabia, however, maintains the claim that the two islands are Saudi Arabian territory. The length of the Gulf is about 96 miles; the breadth at the entrance to the Gulf is 5¾ miles; at its widest the Gulf measures 14½ miles. The entrance to the Gulf is through the Strait of Tiran (about 3 miles wide), between Tiran Island and the Egyptian coast. There are two passages in the Strait; Enterprise Passage and Grafton Passage, 1,300 and 950 yards wide, respectively. Enterprise Passage, which lies close to the Sinai Peninsula coast, is the principal navigation channel into the Gulf, and the only channel that can be navigated safely by vessels of substantial size. On the coastline, Egypt and Saudi Arabia each have over 100 miles of territory; also Jordanian territory encompasses about 3½ miles and the territory of Israel about 6 miles.
1 See Kennedy, , A Brief Geographical and Hydrographical Study of Bays and Estuaries the Coasts of Which Belong to Different States, 1 United Nations Conference on the Law of the Sea, Official Records 198, 208–09 (1958)Google Scholar [hereinafter cited as UNCLOS I, Off. Rec.]; Salek, , A Consideration of the Legal Status of the Gulf of Aqaba , 52 AJIL 660 (1958)Google Scholar; Melmaid, , Legal Status of the Gulf of Aqaba , 53 id. at 412 (1959)Google Scholar.
2 Strohl, M., The International Law of Bays 375 (1963)Google Scholar. In the first case, communication with the high seas is of very limited nature and is only possible during a certain period of the year. In the other two cases, navigation is guaranteed for all coastal states by either a judicial decision (Gulf of Fonseca) or agreement between them. See Bouchez, L., The Regime of Bays In International Law 138–40, 158–59, 209–13 (1963)Google Scholar.
3 On the question of the legal status of the Gulf of Aqaba and the Strait of Tiran, see generally Bloomfield, L., Egypt, Israel and The Gulf of Aqaba in International Law (1957)Google Scholar; Porter, P., The Gulf of Aqaba: an International Waterway; Its Significance to International Trade (1957)Google Scholar; Eckert, , The Strait of Tiran: Innocent Passage or an Endless War? , 22 U. Miami L. Rev. 873 (1968)Google Scholar; Gross, , The Geneva Conference on the Law of the Sea and the Right of Innocent Passage through the Gulf of Aqaba , 53 AJIL 564 (1959)Google Scholar; Hammad, , The Right of Innocent Passage in the Gulf of Aqaba , 15 Rev. Egyptienne Droit Int’l 118 (1959)Google Scholar; Hashem, , Rationale of the Theory of Historic Bays with Special Reference to the International Status of the Gulf of Aqaba , 25 id. at 1 (1969)Google Scholar; Johnson, , Some Legal Problems of International Waterways with Particular Reference to the Strait of Tiran and the Suez Canal , 31 Mod. L. Rev. 153 (1968)Google Scholar; Salek, supra note 1; Lapidoth, , Le Passage par le détroit de Tiran , 73 Rev. Générale Droit Int’l Public 30 (1969)Google Scholar; Murti, , The Legal Status of the Gulf of Aqaba , 7 Indian J . Int’l L. 201 (1967)Google Scholar.
4 On the role of the United Nations Emergency Force, see 1 Higgins, R., United Nations Peacekeeping 1946–1967, at 221–526 (1969)Google Scholar. For Egypt’s reassertion of its right to restrict passage through the Gulf of Aqaba, see 22 UN SCOR (1341st–1346th mtgs.), UN Docs. S/PV.1341–1346 (1967).
5 “Israel will complete withdrawal of all its armed forces and civilians from the Sinai not later than three years from the date of exchange of instruments of ratification of this Treaty.” Treaty of Peace, Egypt–Israel, Mar. 26, 1979, Ann. 1, Art. I, reprinted in 18 ILM 362 (1979) [hereinafter cited as Treaty of Peace].
6 Id., Art. V(2).
7 L. Bouchez, supra note 2, at 20.
8 See 1 Bruel, I., International Straits 54–55 (1947)Google Scholar; McDougal, M. & Burke, W., The Public Order of the Oceans 197 (1962)Google Scholar.
9 See Colombos, J., The International Law of the Sea §72 (6th rev. ed. 1967)Google Scholar; Hall, W., A Treatise on International Law 185–87 (8th ed. Higgins 1924)Google Scholar.
10 See Phillimore, R., Commentaries Upon International Law §§197–98 (3d ed. 1879)Google Scholar; Twiss, T., The Law of Nations Considered as Independent Political Communities § 179 (2d rev. ed. 1884)Google Scholar; Wheaton, H., Elements of International Law 225 (3d ed. 1846)Google Scholar.
11 3 Gidel, G., Le Droit international public de la mer 195 (1932–34)Google Scholar. By the end of the 19th century the right seemed to be firmly established in the practice of states. “[E]n temps de paix, s’opposer au passage, au transit d’un navire ami, constituerait une atteinte aux convenances internationales.” H. Bonfils, Manuel de droit international public 284 (4th ed. P. Fauchille 1905).
12 I. Bruel, supra note 8, at 102.
13 Compare Wheaton’s statement that the exclusive claim of the coastal state over territorial straits “is controlled by the right of other nations to communicate with the sea thus connected,” H. Wheaton, supra note 10, at 229 (emphasis added), with his statement that claims over other parts of territorial seas have been “sometimes extended to exclude other nations from the innocent use of the waters washing the shores of a particular state, in peace and war. . . . This exclusive claim is sanctioned both by usage and convention, and must be considered as forming part of the positive law of nations,” id. at 239 (emphasis added).
14 “Les détroits sont des passages pour communiquer d’une mer à1’autre; si l’usage des mers, domaine commun de l’humanité, est libre, la communication entre elles doit l’être également, ou autrement la liberté de ces mêmes mers ne serait qu’une chimère.” G. De Ryneval, Institutions de droit de la nature des gens, bk. 2, ch. 9, §7 (1803).
15 See the draft convention on the Régime des détroits et des canaux maritimes, [1914] Annuaire de L’Union interparlementaire 142. See also the proposal for a general straits convention prepared by Laun for the Conference of Neutrals held in Stockholm in 1916, reprinted in I. Bruel, supra note 8, App. 2, at 238.
16 Schücking, , Le Développement du Pacte de la Société des Nations , 20 Recueil des Cours 353, 447 (1927 V)Google Scholar.
17 “Straits which connect two parts of the high seas are considered—irrespective of their width, and of the territorial sovereignty—as part of the high seas and therefore free for the international community.” Gareis, K., Institutionen des Völkerrechts 86 (2d ed. 1901)Google Scholar (trans, by author). See also Moye, M., Le Droit de gens moderne 269–70 (2d ed. 1928)Google Scholar; Hautefeuille, L., Des Droits et des devoirs des nations neutres en temps de guerre maritime 97–99 (2d ed. 1858)Google Scholar. The majority of commentators, however, were cognizant of the diversity of interests involved. And while the importance of straits for freedom of communication led to the commentators’ conclusion that straits should not be closed, the security interests of coastal states led to their other conclusion that straits are part of the territorial sea of the coastal states and that freedom of navigation is limited only to passage which is innocent. See 1 Cobbett, P., Leading Cases of International Law 153 (4th ed. 1922)Google Scholar; Harvard Research in International Law, Territorial Waters, Arts. 8–12, 23 AJIL Supp. (1929) [hereinafter cited as Harvard Research].
18 Hyde, C., International Law Chiefly as Interpreted and Applied by the United States 279 (1922)Google Scholar.
19 1 Westlake, J., International Law 193 (1904–13)Google Scholar. See also 1 Oppenheim, L., International Law §195 (4th ed. McNair 1928)Google Scholar; Hershey, A., The Essentials of International Law and Organization §198 (1927)Google Scholar. The Strait of Kertch leading to the Sea of Azov, both surrounded by Russian territory, has often been cited as an application of this rule. Some commentators made a distinction between inland seas in terms of their width:
When a body of inland waters, whatever its extent, and whether called a sea or bay or by any other name, communicates directly with the ocean, then the question of whether it falls within the category of “territorial waters” would seem to depend primarily on whether it is by its local configuration appurtenant to the land; and possibly also on whether it is bounded by the territory of more than one state. The former is probably the dominant consideration.
P. Cobbett, supra note 17, at 249. (It should be noted that the term “territorial waters” was used by Cobbett to denote “internal waters” where no right of passage exists.) Other commentators such as Fiore and Fauchille recognized only a territorial sea belt within the inland sea irrespective of its width or the number of coastal states bordering it. See Fiore, P., International Law Codified 186 (1918)Google Scholar; 1 Fauchille, P., Traité de droit International Public, pt. 2, at 211 (8th ed. 1921–26)Google Scholar.
The question of passage through the Strait of Canso leading to the Gulf of St. Lawrence was the subject of controversy between the United States and Great Britain. The British Government submitted the question to the legal officers of the Crown, who answered as follows:
By the treaty of 1818 it is agreed that American citizens should have the liberty of fishing in the Gulf of St. Lawrence, within certain denned limits, in common with British subjects; and such treaty does not contain any words negativing the right to navigate the passage of the Gut of Canso, and therefore it may be conceded that such right of navigation is not taken away by that convention; but we have now attentively considered the course of navigation to the Gulf by Cape Breton, and likewise the capacity and situation of the passage of Canso, and of the British dominions on either side, and we are of opinion that, independently of treaty, no foreign country has the right to use or navigate the passage of Canso. . . .
1 J. Moore, A Digest of International Law 790 (1906) (emphasis added). The question remained controversial for nearly a century owing to the disagreement between the United States and the United Kingdom on the legal status of the Gulf of St. Lawrence, which was considered by the former to be part of the high seas, and by the latter to be part of the British territory. The issue was settled by the Permanent Court of Arbitration in 1910, which recommended that the parties conclude an agreement to the effect that “[i]n every bay not hereinafter specifically provided for the limits of exclusion shall be drawn three miles seaward from a straight line across the bay in the part nearest the entrance at the first point where the width does not exceed ten miles.” The North Atlantic Coast Fisheries case, Hague Ct. Rep. (Scott) 141, 188 (Perm. Ct. Arb. 1916). This recommendation was accepted and an agreement to this effect was concluded by representatives of Great Britain and the United–States on July 20, 1912. 4 Whiteman, M., Digest of International Law 215–16 (1965)Google Scholar.
20 1 Nys, E., Le Droit international 448 (1904)Google Scholar.
21 G. Gidel, supra note 11, at 595–96.
22 4 Moore, J., History and Digest of International Arbitrations to Which the United States Has Been a Party 43-44 (1898)Google Scholar.
23 P. Fauchille, supra note 19, at 384.
24 Republic of El Salvador v. Republic of Nicaragua, trans, in 11 AJIL 674, 693 (1917).
25 Despite the Court’s holding that the gulf is a closed sea, entirely owned by the riparian states, it nonetheless considered the waters outside the coastal belt of each state as a “zone of maritime inspection” where a right of innocent passage existed. See id. at 714–15. Commenting on this decision Gidel stated: “L’arrêt de la Cour de Justice Centre–Américaine . . . n’attribue pas aux eaux de ce golfe le caractère d’eaux interieures comme l’exigerait ce caractère de baie historique, mais le caractère d’eaux territoriales. C’est là une anomalie tout à fait notable dans le système logique des baies historiques.” G. Gidel, supra note 11, at 627. For the concept of historic waters and historic bays and the different theories for the acquisition of historic titles, see Blum, Y., Historic Titles in International Law (1965)Google Scholar; Historic Bays, Memorandum by the Secretariat of the United Nations, 1 UNCLOS I, Off. Rec. 1–38.
26 C. Hyde, supra note 18, at 475 (2d ed. 1945). See also Jessup, P., The Law of Territorial Waters and Maritime Jurisdiction 476 (1927)Google Scholar; ASIL, Project No. 10 (National Domain), Art. 6, 20 AJIL Supp. 319 (1926); Harvard Research, Art. 6 and commentary, supra note 17, at 274–75.
27 C. Hyde, supra note 18, at 484 (2d ed. 1945).
28 Bases of Discussion for the Conference for the Codification of International Law Drawn up by the Preparatory Committee, Basis of Discussion No. 17, League of Nations Doc. C.74.M.39.1929.V.2, at 60 [hereinafter cited as Bases of Discussion].
29 Ibid. The assimilation of the regime of inland seas to that of bays was in conformity with the views of the majority of states as expressed in their replies to the questionnaire of the Preparatory Committee of the Conference. See id. at 66 (Denmark); id. at 55 (Germany); id. at 57 (India); id. at 58 (New Zealand and Norway); id. at 55 (South Africa); id. at 58–59 (Sweden); id. at 57 (United Kingdom).
30 1 Acts of the Conference for the Codification of International Law, Plenary Meetings, Ann. 10 (Report of the Second Committee: Territorial Sea, App. 2), at 134, League of Nations Doc. C.351.M.145.1930.V [hereinafter cited as Report of the Second Committee].
31 See Bases of Discussion, supra note 28, at 39–45.
32 Id. at 45, Bases of Discussion Nos. 7, 8.
33 Ibid., Basis of Discussion No. 9. The majority of states regarded bays surrounded by more than one state as subject to the regime of territorial waters. See id. at 39 (Australia); ibid. (Germany); id. at 42 (India); ibid. (Japan); id. at 43 (the Netherlands); ibid. (New Zealand); id. at 42–43 (United Kingdom). But see Denmark, Sweden, and the United States who expressed the view that bays surrounded by more than one state could be subject to the regime of internal waters. Id. at 40 (Denmark); id. at 44 (Sweden); Report of the Second Committee, supra note 30, at 132 (United States).
34 Report of the Second Committee, supra note 30, at 131.
35 Just as the case of bays which lie within the territory of more than one coastal State, it has been thought better not to draw up any rules regarding the drawing of the line of demarcation between the respective territorial seas in straits lying within the territory of more than one coastal State and of a width less than the breadth of the two belts of territorial sea.
Report of the Second Committee, supra note 30, at 134 (emphasis added).
36 Reeves, , Codification of the Law of Territorial Waters , 24 AJIL 486, 498 (1930)CrossRefGoogle Scholar.
37 It should be noted that straits connecting two parts of the high seas were regarded during the conference deliberations as a special category of straits subject to a nonsuspendable right of innocent passage applicable to merchant vessels and warships. The rule adopted by the Second Sub–Committee states: “Under no pretext whatever may the passage even of warships through straits used for international navigation between two parts of the high sea be interfered with.” Report of the Second Committee, supra note 30, at 134. The identification of straits connecting two parts of the high seas as a special category of straits was confirmed by the International Court of Justice in the Corfu Channel case:
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.
Corfu Channel Case, [1949] ICJ Rep. 3, 28. It should be noted further that the geographical function of straits subject to the above–mentioned right of passage was regarded by the Court as the decisive criterion. This is clear in the authoritative French text: “Le critère décisif parâit plutôt devoir être tiré de la situation géographique du Détroit, en tant que ce dernier met en communication deux parties de haute mer, ainsi que du fait que le Détroit est utilisé aux fins de la navigation international.” Ibid. See also Rousseau, C., Droit international public 446 (1953)Google Scholar.
38 Report of the International Law Commission on its third session, [1951] 2 Y.B. Int’l L. Comm’n 123, 140, UN Doc. A/CN.4/SER.A/1951 (1957). The Commission considered the subject during its fourth, sixth, seventh, and eighth sessions; at the end of the latter, it drew up its final report consisting of 25 articles. Report of the International Law Commission covering the work of its eighth session, [1956] 2 Y.B. Int’l L. Comm’n 253, 254–59, 265–77, UN Doc. A/CN.4/SER.A/1956/Add.1 (1956).
39 ILC 8th session report, supra note 38, at 277–78.
40 Id. at 278.
41 Id. at 55–56. The Israeli comments were made in connection with the rule adopted by the Commission, in reliance on the ICJ decision in the Corfu Channel case, to govern straits connecting two parts of the high seas. “There must be no suspension of the innocent passage of foreign vessels through straits normally used for international navigation between two parts of the high seas.” Report of the International Law Commission covering the work of its seventh session, [1955] 2 Y.B. Int’l L . Comm’n 19, 39, UN Doc. A/CN.4/SER.A/1955/Add.1 (1960).
42 Summary record of the 336th meeting (June 13, 1956), [1956] 1 Y.B. Int’l L. Comm’n 202, UN Doc. A/CN.4/SER.A/1956 (1956).
43 Ibid.
44 For a summary of the discussion, see id. at 202–03.
45 Id. at 203.
46 ILC 8th session report, supra note 38, at 273. Bays surrounded by one state were considered to be internal waters if their width did not exceed 15 miles. Id. at 268–69.
47 Id. at 269.
48 The conference was held in Geneva from Feb. 24 to April 28, 1958, and was attended by 85 states. It adopted four Conventions dealing with: (1) the Territorial Sea and the Contiguous Zone, 516 UNTS 205; (2) the High Seas, 450 UNTS 82; (3) Fishing and Conservation of the Living Resources of the High Seas, 559 UNTS 285; and (4) the Continental Shelf, 499 UNTS 311. See 2 UNCLOS I, Off. Rec. at 132–43.
49 3 UNCLOS I, Off. Rec. at 231.
50 Id. at 79.
51 Id. at 88. On the question of access to ports, see C. Hyde, supra note 18, at 581–82 (2d ed. 1945). It should be noted that access of landlocked states to the internal waters of other states, as provided in Art. 3 of the Geneva Convention on the High Seas, 13 UST 2312, TIAS No. 5200, 450 UNTS 82, was made dependent upon agreement with the coastal state.
52 3 UNCLOS I, Off. Rec. at 93.
53 Id. at 96. See also the statement of the delegate of Indonesia, id. at 93–94.
54 The result of the vote was 31 in favor to 30 against, with 10 abstentions. Id. at 100.
55 2 UNCLOS I, Off. Rec. at 65.
56 Ibid.
57 Ibid.
58 The motion was defeated by 34 votes to 32, with 6 abstentions. And Art. 17, which contained the amended provision, was adopted by 62 votes to 1, with 9 abstentions. Ibid.
59 Id. at 134.
60 Søreensen, M., Law of the Sea 236 (Int’l Conciliation No. 520, 1958)Google Scholar. See also Dean, , The Geneva Conference on the Law of the Sea: What Was Accomplished , 52 AJIL 607, 621 (1958)Google Scholar.
61 3 Verzijl, J., International Law in Historical Perspective 27 (1968–72)Google Scholar. The result, according to Verzijl, was that
no legal solution of any kind was reached either as regards the closing line of such bays towards the high seas, or as regards their possible legal status of either themselves forming part of the high seas, or, alternatively, of being subject to a co-imperium of the riparian States, or as regards the frontier delimitation between the latter inside the bay concerned, should it neither belong to the high seas nor fall under their co-sovereignty.
Id. at 28. Verzijl uses the term “inlets from the sea” to mean:
a variety of widely differing aqueous formations which have one feature in common, namely, that they are all situated on the inner side of the general coastline, base-line of the territorial sea, and are in open communication with the sea, whatever denomination is applied to them: bays, gulfs, fiords, seas, haffs, firths, lagoons, limans, estuaries, and so on.
Id. at 27; see also M. Strohl, supra note 2, at 375.
62 L. Bouchez, supra note 2, at 170.
63 For the complexities of the issues involved in the formulation of a regime applicable to bays and inland seas surrounded by more than one state, and the practice of states in this respect, see id. at 116–98; J. Verzijl, supra note 61, at 590–610; M. Strohl, supra note 2, at 371–97.
64 J. Verzijl, supra note 61, at 294.
65 Ibid. Verzijl further stated that “the only rule in force is that there is no general rule and that all depends on the particular features of the case in question.” Id. at 592.
66 Tunisia, the only Arab state that signed the Convention, made a reservation to the effect that it “does not consider itself bound by the provisions of article 16, paragraph 4 of this Convention.” United Nations, Multilateral Treaties in Respect of Which the Secretary–General Performs Depositary Functions, UN Doc. ST/LEG/SER.D/5, at 373 (1972).
67 Dean, supra note 60, at 623; Fitzmaurice, , Some Results of the Geneva Conference on the Law of the Sea , 8 Int’l & Comp. L.Q. 73, 79, 100–02 (1959)Google Scholar; Gross, supra note 3, at 293–94. But see Lapidoth, supra note 3, at 38–40. It should be noted that even if the Arab coastal states were to have become party to the Convention, the Geneva provision could have been of no practical significance. Passage through the Gulf could possibly have been interdicted without an apparent violation of the Geneva provision, which merely regulates access to the Strait at the entrance of the Gulf, while remaining completely silent on the legal regime applicable to the Gulf itself. Verzijl, whose delegation was one of the sponsors of the Geneva provision, states:
The only subject that was discussed and resolved [with respect to the legal status of pluristatal bays] was the right of innocent passage from the high seas into such pluristatal bays—and vice versa—through the territorial sea of one or more States which dominate their entrance, and even that only in the somewhat disguised formula of a general principle . . . a provision which in its final words clearly covers situations such as that of the Gulf of Aqaba.
J. Verzijl, supra note 61, at 27–28. He failed, however, to explain how the question of passage through the entrance to the Gulf could be separated from the larger question of access to the Gulf itself, especially in view of his statement that the legal regime of gulfs and inland seas surrounded by more than one state is extremely uncertain and that in the particular case of the Gulf of Aqaba, “it is uncertain what exactly is the legal regime of the Gulf from the point of view of territorial sovereignty.” Id. at 602.
68 See text accompanying note 4 supra.
69 22 UN SCOR, Res. & Dec. 8, UN Doc. S/INF/22/Rev.2 (1967), reprinted in 17 ILM at 1469.
70 Ibid.
71 27 UN SCOR, Res. & Dec. 10, UN Doc. S/INF/129 (1973), reprinted in 17 ILM at 1470.
72 Goodrich, L., Hambro, E., & Simons, A., Charter of the United Nations 259 (3d rev. ed. 1969)Google Scholar.
73 See, e.g., paragraph 3 of Resolution 242, which requested that the UN Secretary–General designate a special representative “in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles of the resolution.” 22 UN SCOR, Res. & Dec. 8, supra note 69 (emphasis added).
74 [1949] ICJ Rep. at 29. “[T]he Court has arrived at the conclusion that the North Corfu Channel should be considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace.” Ibid.
75 Moore, , The Regime of Straits and the Third United Nations Conference on the Law of the Sea , 74 AJIL 77, 113 (1980)Google Scholar (footnote omitted).
76 L. Goodrich, E. Hambro, & A. Simons, supra note 72, at 208–09.
77 See, e.g., preambular paragraph 1 of the Treaty of Peace in which Egypt and Israel expressed their conviction “of the urgent necessity of the establishment of a just, comprehensive and lasting peace in the Middle East in accordance with Security Council Resolutions 242 and 338.” Treaty of Peace, supra note 5.
78 Id., Art. 5.
79 The Third United Nations Conference on the Law of the Sea was convened in 1973 by a General Assembly resolution that defined the mandate of the conference to be the adoption of a “convention dealing with all matters relating to the Law of the Sea.” GA Res. 3067, 28 UN GAOR, Supp. (No. 30) 13, UN Doc. A/9030 (1973).
80 Draft Convention on the Law of the Sea, UN Doc. A/CONF.62/L.78, Art. 37 (1981) [hereinafter cited as Draft Convention].
81 Id., Art. 38(2). Two major issues were at stake in the negotiation of the regime of straits: (1) the, rights of submerged passage by submarines and overflight by airplanes regarding straits falling within the territorial sea of coastal states, a right that does not exist under the concept of innocent passage in customary international law; and (2) the discretionary competence of coastal states under the concept of innocent passage to exclude passage on the ground that it is not innocent. It was because of these two issues, perceived to be of vital strategic importance to the two major maritime powers, that the novel concept of transit passage was introduced by the United States and the Soviet Union. Both of them made it clear that a satisfactory solution to the question of straits is a key to a new law of the sea treaty. See Burke, , Submerged Passage Through Straits: Interpretation of the Proposed Law of the Sea Treaty Text , 52 Wash. L. Rev. 193 (1977)Google Scholar.
82 See, e.g., the statement of the Soviet Union’s delegate: “The regime covering straits used for international navigation should not be extended to straits linking the high seas with the territorial sea of any state. Navigation in straits of that kind, such as the Straits of Tiran . . . should be governed by the rules for innocent passage.” Sub-Committee II of the Committee on the Peaceful Uses of the Sea–bed and the Ocean Floor Beyond the Limits of National Jurisdiction, UN Doc. A/AC.138/SC.II/SR.58, at 125 (1973).
83 Draft Convention, supra note 80, Art. 45. This article was regarded as applicable to the Head Harbor Passage, the Strait of Georgia, and the Gulf of Honduras besides the Strait of Tiran. See Moore, supra note 75, at 112.
84 Draft Convention, supra note 80, Art. 122.
85 Id., Art. 123.
86 Draft Articles on Enclosed and Semi–Enclosed Seas, 3 Third United Nations Conference on the Law of The Sea, Official Records 237, UN Doc. 62/C2/L.72 (1975).
87 See Verzijl’s statement that an agreement inter se between coastal states to close a bay or an inland sea by drawing a straight baseline, while guaranteeing one another freedom of access,
would certainly be valid and could not be challenged by third States which desire to have free access to the bay contrary to the common decision of the adjacent States. The general rule, enunciated by Gidel with a view to protecting the interests of one or more less favourably situated riparian States, would therefore seem to need qualification to the effect that it ceases to operate when the riparian States themselves collectively agree on a closing line, on the understanding that this line does not exceed the length of twenty–four miles, just as in the case of a unistatal bay.
J. Verzijl, supra note 61, at 595.
88 Draft Convention, supra note 80, Art. 5.
89 Compare Art. 25(3) with Art. 45(2), id.
90 The necessity for such a norm is not limited to cases such as the Gulf of Aqaba where the inland sea falls in its entirety within the territorial sea of coastal states; it extends to other cases such as the Arab/Persian Gulf where there are large areas of high seas. In the latter case, passage in certain areas of the gulf has to be effected, because of navigational requirements, through the territorial sea of Iranian islands. No agreement, however, existed during the UNCLOS informal negotiations on the nature of such passage. While some states expressed the view that passage under these circumstances should be subject to the regime of transit passage applicable to the strait at the entrance of the gulf, others maintained that such passage should be subject to the regime of innocent passage applicable in the territorial sea, which could be subject to suspension; see ibid.
91 Treaty of Peace, supra note 5. The language of the Peace Treaty dealing with the regime of the Gulf of Aqaba is based on the similar language of the Framework for the Conclusion of a Peace Treaty Between Egypt and Israel, dated Sept. 17, 1978: “the Strait of Tiran and the Gulf of Aqaba are international waterways to be open to all nations for unimpeded and nonsuspendable freedom of navigation and overflight.” Camp David Agreements, reprinted in 17 ILM 1463, 1470 (1978).
92 See text accompanying note 70 supra.
93 Convention on the Territorial Sea and the Contiguous Zone, supra note 48, 15 UST 1606, TIAS No. 5639, 516 UNTS 205; Draft Convention, supra note 80.
94 Convention on the Territorial Sea and the Contiguous Zone, supra note 48, Arts. 14–23; Draft Convention, supra note 80, Arts. 17–32, 45.
95 Reisman, , The Regime of Straits and International Security: An Appraisal of International Lawmaking , 74 AJIL 48, 57 (1980)Google Scholar. See also Burke, supra note 81, at 201.
96 Draft Convention, supra note 80, Arts. 34–44.
97 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 area of the high seas or an exclusive economic zone and another area of the high seas or an exclusive economic zone.
Draft Convention, supra note 80, Art. 38(2).
98 Draft Convention, supra note 80, Arts. 39–43.
99 Reisman, supra note 95, at 70.
100 Cf. Reisman’s interpretation of the language of the Camp David Framework for a Peace Treaty, supra note 95, at 76.
101 See Treaty of Peace, supra note 5, Ann. 1, Art. IV(3).
102 “Egyptian civil police equipped with light boats, lightly armed, shall perform normal police functions within the territorial waters of Zone C.” Ibid. Zone C is bounded by the international boundary and the Gulf of Aqaba on the east. Id., Ann. 1, Art. II(1)(C).
103 Id., Ann. 1, Arts. III, IV.
104 The intention of the parties to establish a regime for the Gulf that goes beyond the regime of innocent passage is confirmed by Article VIII of Annex III: “Without prejudice to the provisions of Article V of the Treaty of Peace each Party recognizes the right of the vessels of the other Party to innocent passage through its territorial sea in accordance with the rules of international law.” Id., Ann. III, Art. VIII (emphasis added).
105 Id., Ann. I, Art. VI(2)(d). The parties agreed to ask the United Nations to provide forces and observers to supervise the implementation of Annex I to the Treaty concerning Israeli withdrawal and security arrangements, and to employ their best efforts to prevent any violation of its terms. Id., Ann. I, Art. VI(1). In identical letters accompanying the Peace Treaty, and addressed to the President of Egypt and the Prime Minister of Israel, the President of the United States indicated that if the UN Security Council failed to establish and maintain the arrangements called for in the Peace Treaty, “the President will be prepared to take those steps necessary to ensure the establishment and maintenance of an acceptable alternative multinational force.” Id., Letters Accompanying the Peace Treaty, 79 Dep’t State Bull., No. 2026, May 1979, at 14, 15. In view of the Security Council disagreement on the establishment of a UN force, a Multinational Force has been assembled to undertake the tasks assigned in the Peace Treaty to UN forces and observers.
106 “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” UN Charter art. 103. See also Treaty of Peace, supra note 5, Art. VI(5).
107 Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27 (1969), Art. 53, reprinted in 8 ILM 679 (1969), 63 AJIL 875 (1969).
108 “An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing,” Vienna Convention on the Law of Treaties, supra note 107, Art. 35.
109 See text accompanying note 1 supra.
110 This is due to the geographical location of the main navigational channel in the Strait of Tiran, supra note 1, which makes it almost certain that it would continue to be part of Egypt’s territorial sea under any delimitation agreement.
111 Treaty of Peace, supra note 5, Art. V(2), 2d sentence. See also Agreed Minutes to Art. V: “The second sentence of paragraph 2 of Article V shall not be construed as limiting the first sentence of that paragraph. The foregoing is not to be construed as contravening the second sentence of paragraph 2 of Article V. . . .”18 ILM at 392.
112 Treaty of Peace, Art. V(2), 1st sentence.
113 See Vienna Convention on the Law of Treaties, supra note 107, Art. 36(1).
114 Id., Art. 36(2).
115 L. Bouchez, supra note 2, at 117.
116 See Draft Convention, supra note 80, Arts. 34–44.
