Legality of Arab Position
The New York Times
June 11, 1967
Written by Roger Fisher
The Arab states have consistently refused to accept the existence of Israel, have subjected it to military harassment, and have threatened to exterminate it. This does not, however, mean that everything that they do is wrong or that everything Israel does is right. The chance for Israel to live in peace will be improved if the United States better understands how things may look to the Arabs. It will also be improved if the United States now demands of Israel the same standard of conduct that we were demanding of the Arab states.
United States press reports about the Gulf of Aqaba situation were grossly one-sided. The United Arab Republic had a good legal case for restricting traffic through the Strait of Tiran.
First, it is debatable whether international law confers any right of innocent passage through such a waterway. Despite an Israeli request, the International Law commission in 1956 found no rule which would govern the Strait of Tiran. Although the 1958 Convention on the Territorial Sea does provide for innocent passage through such straits, the United States representative, Arthur Dean, called this 'a new rule' and the UAR has not signed the treaty.
There are, of course, good arguments on the Israeli side too, and an impartial international court might well conclude that a right of innocent passage through the Strait of Tiran does exist.
Innocence of Passage
But a right of innocent passage is not a right of free passage for any cargo at any time. In the words of the Convention on the Territorial Sea: "Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state."
In April, Israel conducted a major retaliatory raid on Syria and threatened raids of still greater size. In this situation was Egypt required by international law to continue to allow Israel to bring in oil and other strategic supplies through Egyptian territory - supplies which Israel could use to conduct further military raids? That was the critical question of law.
The exercise by Israel of the belligerent right of retaliation on Syria in April may have been morally justified (although the Untied Nations found that it was not and censured Israel). Even so, it provided a fair basis for the UAR to assert the right to exercise a comparable (and less bloody) belligerent right - namely, to close the Strait of Tiran to strategic cargo for Israel.
The UAR would have had a better case if it had announced that the closing was temporary and subject to review by the International Court, but taking the facts as they were I, as an international lawyer, would rather defend before the International Court of Justice the legality of the UAR's action in closing the Strait of Tiran than to argue the other side of the case, and I would certainly rather do so than to defend the legality of the preventive war which Israel launched this week.
Equal Application
Looking ahead one can see that it may be difficult to convince the Arabs that the United States does not decide issues on grounds of race or religion but on the grounds of principle.
Arabs may think that if we hold Egypt to its implied promise to let ships through the Gulf of Aqaba we should hold Israel to its express promise not to extend its territory.
Arabs may think that if we plan to establish some international agency on Egyptian territory to see that the waters of Suez and Aqaba are available for fair international use we should plan to establish a similar agency on Israeli territory to see that the waters of the Jordan River are available for fair international use. Arabs may think that a firm United State guarantee of the borders of the Middle East ought to apply to them as well as to Israel.