[ICJ] Correspondence to Signatories of the 1888 Convention of Constantinople

[Global Assembly]

INTERNATIONAL COURT OF JUSTICE​

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Bcc: Emma Ryan, Secretary of State for Foreign and Commonwealth Affairs, United Kingdom of Great Britain and Northern Ireland (Jamie); Lucie Albrecht, Minister of Foreign Affairs, Russian Federation (Jay); Sophie Dubois, Ministry of Foreign Affairs, Empire of France (Alexander); Emilia von der Leyen, Minister of Foreign Affairs, Kingdom of Germany (Danny); Bernard Bot, Minister of Foreign Affairs, Kingdom of the Netherlands (Dutchy); José Manuel Albares, Minister of Foreign Affairs, Kingdom of Spain (Zak) From: Silvester Pearce, Registrar of the Court Subject: Request for Advisory Opinion on the Right of Passage Through the Suez Canal for Vessels of the Republic of Thailand

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January, 2005
PRIVATE & SECURE​

Your Excellency,

The Court wishes to inform you of the receipt of a Request for an Advisory Opinion from the Republic of Thailand concerning the matter between the Sultanate of Egypt and the Republic of Thailand regarding the right of passage through the Suez Canal. The Republic of Thailand has submitted before the Court two questions pertaining the the matter, namely:

1. Does the Republic of Thailand have the legal right to navigate its vessels through the Suez Canal under the current international legal framework, despite the non-recognition of its sovereignty by the Sultanate of Egypt?
2. Does the refusal by the Sultanate of Egypt to allow the passage of Thai vessels through the Suez Canal constitute a breach of its international obligations, particularly under the Constantinople Convention of 1888 and customary international law?​

The Registry has invited the Republic of Thailand and the Sultanante of Egypt and the Sudan to submit written statements clarifying their positions on the two questions that have been raised before the Court.

Additionally, the Court invites the current governments of the signatories to the 1888 Convention of Constantinople—namely, the United Kingdom of Great Britain and Northern Ireland, the Russian Federation, the Empire of France, the Kingdom of Germany, the Kingdom of the Netherlands, and the Kingdom of Spain—to submit written statements clarifying your positions on the two questions as they specifically pertain to the Convention of Constantinople.

The Court grants a four-week deadline to submit its written statement.

Yours faithfully,
His Excellency the Chief Justice of the International Court of Justice
On his behalf,

Silvester Pearce
Registrar of the Court
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Digital Diplomatic Communication​

 

[Jay]

Минюст России Ministry of Justice​

AUTHENTIC COMMUNIQUE OF THE OFFICE OF FOREIGN AFFAIRS Security Clearance: Secure and Encrypted​

[Recipient]: Clerk of the Office for the International Court of Justice < Global Assembly > [Sender]: Minister of Justice, Russian Federation < NAShayk@MOJ.ru.gov > [Subject]: Written Statement on the Right of Passage Through the Suez Canal for Vessels of the Republic of Thailand

May it please the court, To the Honorable Registrar of the Court, To the Registrar of the International Court of Justice, the undersigned, being duly authorized by the Government of the Russian Federation, state as follows: In accordance with Articles 10 and 12 of the Statute of the Court and Article 14 of the Rules of Court, I have the honour to submit this Written Statement clarifying the position of the Russian Government on the two questions brought before the court. Introduction​ Pursuant to the provisions delineated in the statute of the International Court of Justice (ICJ), the Russian Federation, a sovereign state located in Eurasia, as provided by Article 10, and as requested by the Chief Justice submits its formal Written Statement on the 1888 Convention of Constantinople. The applicant raises two issues: Does the Republic of Thailand has the legal right to navigate its vessels through the Suez Canal under the current international legal framework, despite the non-recognition of its sovereignty by the Sultanate of Egypt? Whether the refusal by the Sultanate of Egypt to allow the passage of Thai vessels through the Suez Canal constitutes a breach of its international obligations, particularly under the Constantinople Convention of 1888 and customary international law. The Court has been asked to review the Constantinople Convention of 1888 which set out the rights and obligations of High Contracting Parties, which the Republic of Thailand is not, with regards to the transit of vessels, civilian and military, through the Suez Canal. The Constantinople Convention of 1888 guarantees the free passage of ships, through the Suez Canal, of the High Contracting Parties. Article I of the Convention explicitly states that the Canal shall be open in both directions to ships of all nations. The aforementioned article clarifies that such right shall flow whether it is a vessel of war or commerce. The Republic of Thailand as a non-party to the treaty relies on norms and customs of International Law as opposed to expressed rights, privileges, and obligations as a High Contracting Party. Customary law reinforces the principle of freedom of navigation in international waters wherein those rights are not abridged or subject to the provisions of a treaty. The Russian Federation views the issue of non-recognition as nonjusticiable and represents a political distinction that falls within the purview of traditional state actions that each sovereign state is responsible for. Instead, the Russian Federation applies an analysis of Thailand as a belligerent nation and strips Thailand of the customary rights and norms given to innocent parties. Such an analysis is more appropriate given that the substance of the dispute is not whether Thailand is recognized or unrecognized but if Thailand is entitled to innocent passage under customary international law. If the Court were to apply an innocent passage assumption and engage with the issue of recognized or unrecognized then it would erre in assuming a power that falls within the rights of states, not the Court. Such an assumption would factually be incorrect and afford Thailand rights and privileges it should not be entitled to vis-a-vis Egypt. The Russian Federation relies on the assassination of Egypt’s Foreign Minister, as seen by live video footage provided by CNN, Moustafa Asker. The assassination of the Minister along with the arbitrary detention of Egyptian diplomats and officers is a direct violation of not only the customs of civilized nations but also the GA’s laws on diplomacy. As such the Russian Federation urges the Court to answer the two questions with the issue of belligerency in mind. Thailand, as a non-state party to the Convention, relies on customary rights as opposed to contractual rights. As such, had Thailand been a Contracting Party it would have been afforded the rights under the Treaty under Articles I and VI which provide the right to free transit whether in times of peace or war or for vessels of commerce or war. However, Thailand is not a signatory of the agreement and as such should not be afforded binding rights and obligations as the High Contracting Parties. Such an imposition by the Court would permit States to go beyond inferring rights to being given rights and privileges whether they were intended or unintended by the High Contracting Parties. With the two questions asked Thailand relies on customary rights which rely on the free passage of ships under the codified idea of innocent passage. As stated above, the Russian Federation does not believe Thailand is entitled to that right. Thailand’s rights under the treaty should be limited and not to the degree of the High Contracting Parties as Thailand relies on customary international law and not its rights under the Treaty. Instead, the Russian Federation turned to Articles VIII, X, and XII, which provided for the rights and privileges of Egypt. These articles affirm the sovereignty of Egypt and the rights of a sovereign nation over the canal. The articles also provide that “in any event threatening the security or the free passage of the Canal… in order that Government may take proper steps to ensure the protection and the free use of the Canal. [Article VIII] The Government of Egypt, as every sovereign state is entitled to, has the powers of a sovereign state when the security of the canal. Article X goes further and clarifies that the convention’s articles shall not interfere with the measures that the government of Eygpt deems necessary for the security of the defense of Egypt and the maintenance of public order. Having already established that Thailand as a belligerent power is not entitled to the innocent passage normally afforded states, irrespective of their political recognition by others, the Russian Government argues that Egypt did not violate Thailand’s customary rights. Egypt is within its rights if it feels that Thailand’s presence would reasonably cause public disorder or if it reasonably concludes that Thailand’s commercial or wartime transit would place Egypt in a state of concern or be threatened. Such a distinction will require the Court to confer with information that Egypt is privy to. However on information that Russia is privy to and in the public space, a rogue state such as Thailand which seizes property and knows no respect for the rights of nations presents a threat to the free passage of the canal and Egypt. Thailand’s crimes include assassinating foreign officials, permitting attacks on diplomatic missions, and attempting to kidnap foreign officials all under diplomatic protect is a serious affront to international law. Thailand’s erratic actions including illegally re-selling vessels, harassing foreign ships, and violating the sovereignty of its neighbors demonstrate the regime’s contempt for international law, norms, and the rights of nations. Based on this information the Russian Federation can induce why Egypt may feel that forbidding Thai vessels of commerce and war is a matter of national defense. Even more so the emotional toll of Thailand’s assassination of an Egyptian official, kidnapping and arbitrarily detaining its diplomats, and a refusal to apologize may enrage the public as to cause public disorder. For these reasons, the Russian Federation views that No, the Republic of Thailand does not have the legal right to navigate its vessels through the Suez Canal as it has no rights under the 1888 Constantinople Convention. The Russian Federation further holds that no, the refusal by the Sultanate of Egypt to allow the passage of Thai vessels through the Suez Canal does not constitute a breach of its international obligations under either the 1888 Convention or Customary International Law. The Russian Federation further submits its Written Comment on the application of CLOS, the Convention of the Law of the Sea. 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. 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. most cases, however, the regime of passage through the strait will be determined in accordance with the Law of the Sea. In such a case as the one before us the use of customary international law infers rights codified in the CLOS. The Russian Federation holds that when a strait is in territorial waters meaning it falls within the 6 nautical miles limit under CLOS, a vessel passing through the strait will be found at any given moment within the territorial waters of one of the banks. In contrast, Russia holds that if the strait is wider than 6 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. The Gulf of Aqaba, Gibraltar Straits, and Corfu Chanel under this view would be considered areas where the High Seas are present. Indeed this was the Court’s holding under the Corfu Channel Case. The Law of the Sea examines the status of a strait in a technically substantial manner not the degree of its strategic or functional importance Under the Constantinople Convention regarding the Suez Canal, Egypt has the authority to use force to protect it, maintain public order, and ensure freedom of movement therein. 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. That nationalization gave Egypt absolute control and sovereignty over the canal. The Suez Canal should fall under Article 40 regarding innocent passage and not Article 38. This is because transit here would not be in the high seas or exclusive economic zone, or part thereof, but through internal waters which Article 17 and Article 40 govern. Article 17 provides: Right of innocent passage Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.​ Article 19 provides: Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: Any threat or use of force against the sovereignty, territorial integrity, or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations. Any exercise or practice with weapons of any kind. Any act aimed at collecting information to the prejudice of the defense or security of the coastal State. Any act of propaganda aimed at affecting the defense or security of the coastal State. The launching, landing, or taking on board of any aircraft. The launching, landing, or taking on board of any military device. The loading or unloading of any commodity, currency, or person contrary to the customs, fiscal, immigration, or sanitary laws and regulations of the coastal State. Any act of wilful and serious pollution contrary to this Convention. Any fishing activities. The carrying out of research or survey activities. Any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State. Any other activity not having a direct bearing on passage. Article 25 provides: The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published. Article 38 provides: 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​ Article 40 provides: The regime of innocent passage, in accordance with Part II, section 3, shall apply in straits used for international navigation: excluded from the application of the regime of transit passage under article 38, paragraph 1; or between a part of the high seas or an exclusive economic zone and the territorial sea of a foreign State. There shall be no suspension of innocent passage through such straits. Under CLOS the Republic of Thailand is entitled to innocent passage through the Suez Canal so long as it is not engaged in any of the activities prohibited under 19(2)(a:i). The coastal state, Egypt in this case, should be permitted to exercise under Article 25 in its territorial sea to prevent passage which is not innocent. Even under Article 38 if the Court applies such a governing provision it would be undue and improper to require Egypt to permit unfettered Thai vessels which may violate innocent passage and in light of Thailand’s actions as a rogue state engaging in erratic actions and actions unbefitting of civilized states the Court would unduly harm Egypt’s interests as a sovereign state. In conclusion, the Russian Federation holds that on the two questions presented, the Republic of Thailand does not have the legal right to navigate its vessels through the Suez Canal as it has no rights under the 1888 Constantinople Convention. The Russian Federation further holds that no, the refusal by the Sultanate of Egypt to allow the passage of Thai vessels through the Suez Canal does not constitute a breach of its international obligations under either the 1888 Convention or Customary International Law. Furthermore, under CLOS the Court should examine the issue of innocent passage in light of Thailand’s conduct and not impose additional duties upon it. Russia reserves the right to revise, supplement, or amend the terms of this Written Comment. Russia has designated His Excellency Ambassador Vladimir Tarabin, Ambassador Extraordinary and Plenipotentiary of the Russian Federation to the Kingdom of the Netherlands as its point of contact for this Written Statement. I have the honor to assure the Court of my highest esteem and consideration, Alyona Arshinova Minister of Justice Russian Federation

 

[Alexander]

Empire de France
Ministère de l'Europe et des Affaires étrangères

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From: Sophie Dubois, Ministre de l'Europe et des Affaires étrangères, France
To: Silvester Pearce, Registrar of the Court
CC: Her Excellency Claire Martin, Ministre de la Justice, France
Classification: Public

Subject: Advisory Opinion

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May it please the court,

As part of our advisory opinion on this matter I have consulted the Minister of Justice along with a range of legal scholars in international law.

The Court has been presented with two vital questions.

1. Does the Republic of Thailand have the legal right to navigate its vessels through the Suez Canal under the current international legal framework, despite the non-recognition of its sovereignty by the Sultanate of Egypt?
2. Does the refusal by the Sultanate of Egypt to allow the passage of Thai vessels through the Suez Canal constitute a breach of its international obligations, particularly under the Constantinople Convention of 1888 and customary international law?

The question raises a broad scope of matters, while the 1888 Constantinople Convention is clear in its intent, events since then have complicated the legal status of the Suez Canal.

The Rights to free passage under the 1888 Constantinople Convention
Article 1 of the Convention states the following:

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.

This article places upon the sovereign state in control over the Suez Canal as well as the High Contracting Parties the obligation to guarantee free passage through the Suez Canal for vessels of commerce or war.

Furthermore Article 4 of the Convention states:

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.
Vessels of war of belligerents shall not re-victual or take in stores in the Canal and its ports of access, except in so far may be strictly necessary. The transit of the aforesaid vessels through the Canal shall be affected with the least possible delay, in accordance with the Regulations in force, and without any intermission than the resulting from the necessities of the service.
Their stay at Port Said and in the roadstead of Suez shall not exceed twenty-four hours, except in case if distress. In such case they shall be bound to leave as soon as possible. An interval of twenty-four hours shall always elapse between the sailing of a belligerent ship from one of the ports of access and the departure of a ship belonging to the hostile Power.

This article can only be read as imposing on the sovereign state an obligation to grant passage even to vessels from states the sovereign state may be at war with. This right is in no way restricted to the High Contracting parties only.

Finally, when it comes to whether the rights under the Convention apply to the high contracting parties only, beyond the text of article 1, the Convention also contains an accession clause under article 16:

The High Contracting Parties undertake to bring the present Treaty to the knowledge of the States which have not signed it, inviting them to accede to it.

This article clarifies the intent of the High Contracting parties to grant open and unrestricted access to any state under the terms of the Convention.

Beyond the Convention, there are also previous statements by the Khedive of Egypt and the Sultan of the Ottoman Empire concerning free access to the Canal. In particular, the acts of concession of 1854, 1856, and 1866 apply in this matter.

The Rights of the sovereign state under the 1888 Constantinople Convention
Article 10 of the Convention states the following:

Similarly, the provisions of Articles IV, V, VII and VIII 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.
In case His Imperial Majesty the Sultan, or His Highness the Khedive, would find it necessary to avail themselves of the exceptions for which this article provides, the Signatory Powers of the Declaration of London shall be notified thereof by the Imperial Ottoman Government.
It is likewise understood that the provisions of the four Articles aforesaid shall in no case occasion any obstacle to the measures which the Imperial Ottoman Government may think it necessary to take in order to insure by its own forces the defense of its other possessions situated on the eastern coast of the Red Sea.

This article grants the right to the sovereign state to take any reasonable measures for its national defence as well as the neutrality of the Suez Canal. Any power that seeks to interfere with the neutrality of the Canal or is in active hostilities with the sovereign state can thus by interpreting this treaty be denied access to the Suez Canal.

Events since the signing of the 1888 Constantinople Convention
Following the signing of the Convention, its terms have been violated by High Contracting parties on three occasions. During World War I the United Kingdom of Great Britain and Ireland barred access to the Suez Canal to the Central Powers. Similarly during World War II the United Kingdom of Great Britain and Northern Ireland denied access to the Axis Powers. During the latter part of the 20th century Egypt denied Israel access to the Suez Canal. It should be noted however that multiple United Nations Security Council resolutions were made calling on Egypt to open the Suez Canal to Israel once again. As such we can only assume that the international community at the time considered the closure of the Canal in violation of international law.

As there have been no Court cases on these three events we can not reasonably derive legal precedent from these and must assume that the rights and obligations under the Convention remain in force.

Applicability of other treaties, in particular the Convention on the Law of the Sea
It is the opinion of the Third French Empire that other treaties, in particular the CLOS, do not apply to the Suez Canal or for that matter any other waterways subject to prior treaties. It has long been held that the predecessor of the CLOS did not apply to these cases. Examples of such other cases are the Montreux Convention concerning the Bosphorus and Dardanelles and the Kiel Canal which remains under the regulations of the Treaty of Versailles of 1919 amongst others. In particular the Convention on the Law of the Sea under Article 35 states:

Nothing in this Part affects:
(a) any areas of internal waters within a strait, except where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such;
(b) the legal status of the waters beyond the territorial seas of States bordering straits as exclusive economic zones or high seas; or
(c) the legal regime in straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits.
This clearly states that long-standing international conventions shall take priority over any provision in the Convention.

Applicability of the prior arguments to the Egyptian-Thai situation
It can be argued the the Republic of Thailand has engaged in violent actions against the Sultunate of Egypt and the Sudan, as well as other activities that may deem it a state with a questionable commitment to international law. However, it should be noted that in none of these cases any action has been taken under the frameowrk of the Global Assembly or the International Court of Justice. As such without a judgement by the ICJ or a resolution by the Global Assembly, no state can reasonably consider the Republic of Thailand a rogue actor.

The 1888 Constantinople Convention was signed by powers holding control over the territory of Egypt as well as stakes in the Suez Canal Company. As such these terms continue to be binding on Egypt, and prior incarnations of the Egyptian state post independence have declared their continued commitment to the terms of the Convention.

Even if the prior derogations from the obligations under the treaty are to be considered valid and legal precedent, which we dispute, they only occurred during active states of war. Despite the actions Thailand has taken, there exists no state of war between Egypt and Thailand. It is also our belief that it is a stretch to extend the death of an official to constitute a direct threat to Egyptian security,, especially in light of long-standing Thai passage through the Suez Canal prior and following the incident without problem.

The spirit of customary international law is in favour of the preservation of the freedom of movement. All treaties and conventions signed in the latter half of the 20th and the 21st century have shown this trend. Combined with the international obligations under prior conventions we answer the stated questions as follows.

1. Does the Republic of Thailand have the legal right to navigate its vessels through the Suez Canal under the current international legal framework, despite the non-recognition of its sovereignty by the Sultanate of Egypt?
Yes. International law is clear that the right of free passage through the Suez Canal applies to all nations regardless of flag. Egyptian non-recognition of Thailand as such under the spirit and terms of the Convention does not constitute a valid reason to block access.

2. Does the refusal by the Sultanate of Egypt to allow the passage of Thai vessels through the Suez Canal constitute a breach of its international obligations, particularly under the Constantinople Convention of 1888 and customary international law?

Yes. Outside of a state of active war or a credible threat to Egyptian security there exists no right to block access to the Suez Canal. The spirit of the Convention and precedent in the 20th century holds that a security threat to Egypt must be on the level of a direct violation of its sovereign territory. Thailand has no precedent of engaging in such activities within the Suez Canal, Egyptian territory, or for that matter any other international waterway.

The Empire of France hopes that this advisory opinion will aid the Court in coming to a fair ruling.

Sincerely,
Sophie Dubois,
Ministre de l'Europe et des Affaires étrangères.

Global Assembly