Thailand to the ICJ | Second Advisory Opinion

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To: <State Chamber of the International Court of Justice> Global Assembly From: <Sarabun@mot.mail.go.th> Subject: Request for Advisory Opinion on the Right of Passage Through the Suez Canal for Vessels of the Republic of Thailand Security Type: NSST 1.0 Architecture

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Dear Esteemed Chief Justice David J. Knight,

The Ministry of Justice of the Republic of Thailand respectfully submits this request for an advisory opinion on a matter of significant international importance concerning the right of passage through the Suez Canal. This request is prompted by the recent actions of the Sultanate of Egypt, which has denied passage to vessels of the Republic of Thailand on the grounds of non-recognition of our sovereignty. We seek clarity on the legal implications of such actions under international law, particularly in the context of the established legal status of the Suez Canal as an international waterway.

The Republic of Thailand, a recognized member of the international community, has encountered a situation where the Sultanate of Egypt has refused to allow Thai vessels to pass through the Suez Canal. This refusal is based solely on Egypt’s non-recognition of Thailand’s sovereignty following our diplomatic disagreement and breakdown. Despite this political stance, the Republic of Thailand has been recognized by the vast majority of states and is an active participant in various international organizations, including the Global Assembly. We maintain that Egypt’s actions are in violation of established international norms governing the use of international waterways, particularly the Suez Canal.

The Suez Canal, as established by the Constantinople Convention of 1888, is an international waterway open to vessels of all nations, regardless of the political relationships between states. This principle of neutrality and free passage is a cornerstone of the Canal’s legal status and has been upheld consistently in international practice. The Ministry of Justice submits that the refusal by Egypt to allow Thai vessels to pass through the Canal represents a breach of these established legal principles. Under customary international law, the Suez Canal’s status as international waterway obligates Egypt to allow the passage of all vessels, including those of states with which it does not maintain diplomatic relations.

Thailand’s position is firmly grounded in the principle of freedom of navigation, a fundamental tenet of international law that applies to all international waterways. This principle is enshrined in multiple international treaties and conventions and is recognized as customary international law. We assert that Egypt’s non-recognition of Thailand’ sovereignty does not negate Thailand’s right to navigate through the Suez Canal. The Canal’s legal regie, as established by the Constantinople Convention, overrides bilateral political disputes, ensuring that all vessels, regardless of their flag state, have the right to free passage.

While the Sultanate of Egypt has the sovereign right to determine its diplomatic relations, it cannot invoke non-recognition to justify actions that contravene its obligations under international law. The Suez Canal’s status as a neutral and internationally accessible waterway imposes specific duties on Egypt, including the obligation to permit passage to vessels of all states. By denying Thai vessels access to the Canal, Egypt is not only violating the principle o Constantinople Convention but is also undermining the broader norms of international law that protect freedom of navigation and the rights of all states to access global commons.

The Republic of Thailand maintains a significant naval presence in international waters, consistent with our commitment to global peace and stability. The denial of passage through the Suez Canal hinders our ability to fulfill our international obligations and maintain stability in the regions where our naval forces operate. We emphasize that our naval activities are strictly defensive and are conducted in accordance with international law. The refusal of passage by Egypt disrupts the established order of international navigation and poses risks to the stability and security of the regions that depend on the free flow of maritime traffic through the Suez Canal.

In light of the above considerations, the Republic of Thailand respectfully requests that the International Court of Justice provided an advisory opinion on the following questions:

1. Right to Passage: 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. Legality of Egypt’s Actions: 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 Ministry of Justice of the Republic of Thailand believes that a clear and definitive advisory opinion from the International Court of Justice on these issues is crucial for maintaining the integrity of international law. Such an opinion would reaffirm the principle governing international waterways and ensure that political disputes do not undermine the rights of states to access these critical global resources. Furthermore, we believe that this case has broader implications for the international community. A ruling in favor of Thailand’s position would strengthen the norms of free navigation and ensure that international waterways remain accessible to all states, regardless of their diplomatic relations.

The Republic of Thailand remains committed to the peaceful resolution of international disputes and the upholding of international law. We seek the guidance of the International Court of Justice to ensure that the principles of freedom of navigation and the legal status of the Suez Canal are respected by all states, including those that may not recognize the sovereignty of others.

We thank the Court for its consideration of this matter and await its advisory opinion with great anticipation.

Respectfully submitted,

Piyabutr Saengkanokkul
Minister of Justice
Republic of Thailand

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Digital Diplomatic Communication​

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[Global Assembly]

INTERNATIONAL COURT OF JUSTICE​

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To: Piyabutr Saengkanokkul, Minister of Justice, Republic of Thailand (Bossza007) 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 acknowledges receipt of your Request for an Advisory Opinion concerning the matter between the Sultanate of Egypt and the Sudan and the Republic of Thailand regarding the right of passage through the Suez Canal. The Court invites the Republic of Thailand to submit a written statement clarifying its position on the two questions it has presented to the Court.

The Registry has notified the Sultanate of Egypt of the submission of the Request for an Advisory Opinion. The Court has similarly invited the Sultanate of Egypt and the Sudan to submit a written statement clarifying its position on the two questions it has raised before the Court.

Additionally, the Registry has informed 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—of the submission of the Request for an Advisory Opinion. The Court invites these States to submit written statements clarifying their positions on the two questions as they pertain to the Convention of Constantinople.

The Court grants the Republic of Thailand 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​

 

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To: <State Chamber of the International Court of Justice> Global Assembly From: <Sarabun@moj.mail.go.th> Subject: THAILAND v. EGYPT (2005): THAILAND’s WRITTEN STATEMENT Security Type: NSST 1.0 Architecture

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Dear Honorable Registrar of the Court,

The Republic of Thailand, as a sovereign state and recognized member of the international community, asserts that its legal status and concomitant rights under international law are not contingent upon recognition by any single state, including the Sultanate of Egypt. This position is firmly grounded in the well-established principle of international law that state recognition is declaratory, not constitutive, as affirmed by the Montevideo Convention on the Rights and Duties of States (1933) and subsequent state practice.

Article 3 of the Montevideo Convention explicitly states: "The political existence of the state is independent of recognition by the other states." This principle has been consistently upheld in international jurisprudence, including in the advisory opinion of the Badinter Arbitration Committee (Opinion No. 1, 29 November 1991) concerning the dissolution of Yugoslavia, which reaffirmed that the existence of a state is a question of fact and not of recognition by other states.

Furthermore, the International Court of Justice (ICJ) has implicitly endorsed this view in several cases, notably in the North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands, 1969), where the Court considered the rights of states arising from their inherent sovereignty, rather than from recognition by other states.

The Republic of Thailand contends that its rights under international law, including the fundamental right of passage through international waterways such as the Suez Canal, exist independently of bilateral recognition. This position is supported by the principle of sovereign equality of states. The denial of passage through the Suez Canal based solely on non-recognition constitutes a violation of this principle and undermines the fabric of international law that governs relations between states. It is imperative to note that the right of passage through international waterways is not derived from bilateral relations but from the collective agreement of the international community as reflected in customary international law and codified in various international instruments.

The Republic of Thailand acknowledges that it is not a signatory to the Constantinople Convention of 1888. However, we emphatically assert that our rights of passage through the Suez Canal are not solely dependent on this specific treaty. Rather, these rights are firmly established in customary international law, which has evolved significantly since 1888 to encompass the principle of freedom of navigation through international straits as a fundamental norm applicable to all states.

The principle of freedom of navigation through international straits has crystallized into a jus cogens norm of international law, as evidenced by consistent state practice and opinio juris. This evolution is reflected in numerous international instruments and judicial decisions:

1. The Corfu Channel Case (United Kingdom v. Albania, 1949): The ICJ recognized the right of innocent passage through international straits, stating 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.”
2. The United Nations Convention on the Law of the Sea (UNCLOS, 1982): Although not directly applicable to the Suez Canal due to its artificial nature, UNCLOS codifies the customary international law principle of transit passage through straits used for international navigation (Part III, Section 2). This codification represents the culmination of decades of state practice and legal development.
3. The International Maritime Organization (IMO) Resolution A.747(18) (1993): This resolution reaffirms the right of transit passage through straits used for international navigation, demonstrating the international community’s commitment to freedom of navigation.
4. Consistent state practice: Since the opening of the Suez Canal, there has been a consistent practice of allowing passage to vessels of all nations, including during periods of political tension or non-recognition between states. This practice has solidified into a customary norm that transcends the specific provisions of the Constantinople Convention.

The Republic of Thailand contends that the principle of freedom of navigation through international straits, including artificial waterways of critical importance to international navigation such as the Suez Canal, has attained the status of customary international law. This principle is binding on all states, regardless of their status as parties to specific treaties.

The International Court of Justice has consistently recognized the importance of customary international law in governing international relations, as exemplified in the North Sea Continental Shelf Cases (1969) and the Nicaragua v. United States case (1986). In the latter, the Court stated that customary international law continues to exist alongside treaty law, even when the two categories of law have identical content.

Therefore, even in the absence of treaty obligations, the Sultanate of Egypt is bound by customary international law to allow passage to vessels of all nations, including those of the Republic of Thailand, through the Suez Canal. Any denial of this right based on non-recognition or political disagreements contravenes established principles of international law and threatens the stability of the global maritime order.

The Republic of Thailand asserts its unequivocal right to navigate through the Suez Canal, a right derived not only from its status as a sovereign state but also from the well-established norms of customary international law that have evolved to ensure freedom of navigation through international waterways. Any action to impede this right constitutes a breach of international law and undermines the principles of peaceful coexistence and cooperation among nations.

In addressing the characterization put forth by certain parties that Thailand may be considered a “belligerent nation,” the Republic of Thailand categorically rejects such assertions as unfounded and contrary to the facts. We submit that any attempt to label Thailand as a belligerent state is a mischaracterization that disregards Thailand’s longstanding commitment to international peace, security, and the rule of law.

Primarily, Thailand has consistently demonstrated its peaceful intentions and actions in international waters. As a maritime nation with significant coastlines and dependence on seaborne trade, Thailand has a national stake in maintaining the freedom of navigation and the security of sea lanes. Our naval operations have been conducted in full compliance with international law, including the United Nations Convention on the Law of the Sea (UNCLOS). These operations are defensive in nature and aimed at protecting our legitimate maritime interests, as well as contributing to regional stability.

Thailand’s naval forces have actively participated in multinational efforts to combat piracy, particularly in the Gulf of Thailand and the Strait of Malacca. These efforts have included joint patrols, information sharing, and capacity-building initiatives with neighboring countries. Such cooperation underscores Thailand’s commitment to collective security and its role as a responsible maritime stakeholder.

Furthermore, Thailand has been a key contributor to global maritime security through its participation in the Thai-led humanitarian deployment to New Caledonia involving the Kingdom of Poland, the United Kingdom, the Portuguese Republic, the United States of America, the Commonwealth of New Zealand, and the Commonwealth of Australia. Thai naval personnel have been deployed in various humanitarian crises, most of time alone, including the Congolese Civil War, the Swedish-South African War, the Mass Assassination in Tokyo using prohibited chemical weapons, and most recently in New Caledonia Insurgency. These contributions demonstrate Thailand’s dedication to upholding international peace and security beyond its immediate region.

In the realm of international trade, Thailand has consistently advocated for and practiced open and free maritime commerce. As a major exporter and a hub for regional trade, Thailand has invested significantly in port infrastructure and has implemented policies to facilitate smooth and efficient maritime trade. Our commitment to free trade and open sea lanes is evidenced by our active participation in regional and international diplomatic talks to discuss maritime cooperation and trade facilitation.

Thailand emphatically stresses its unwavering compliance with international maritime laws and norms. Our domestic legislation and maritime policies are aligned with international conventions, including UNCLOS, the International Convention for the Safety of Life at Sea (SOLAS), and the International Ship and Port Facility Security (ISPS) Code. Thailand has ratified and implemented these conventions, demonstrating our commitment to adhering to the established international maritime order.

Moreover, Thailand has been at the forefront of regional efforts to establish a Code of Conduct in the South China Sea, advocating for peaceful resolution of maritime disputes and the importance of freedom of navigation. This diplomatic initiative has proven effective with the Chinese Transitional Government has agreed to relinquish all its claims in the South China last year. This achievement further illustrates Thailand's constructive role in promoting stability and cooperation in potentially contentious maritime areas.

It is crucial to note that Thailand's military exercises and naval operations are conducted with full transparency and in accordance with international norms. We regularly notify relevant international bodies and neighboring states of our naval activities, as required by international conventions. These exercises are defensive in nature and designed to enhance our capabilities in areas such as search and rescue, disaster relief, and environmental protection – all of which contribute to the common good of the international community.

In light of these facts, any suggestion that Thailand should be characterized as a "belligerent nation" is not only inaccurate but also potentially harmful to the principles of international law and the freedom of navigation. Such characterization, if accepted, would set a dangerous precedent wherein states could arbitrarily deny the rights of innocent passage based on unilateral and unfounded accusations.

Thailand maintains that its right to innocent passage through international straits, including the Suez Canal, is firmly grounded in both customary international law and the specific provisions of UNCLOS. Article 17 of UNCLOS clearly states that "ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea." This right is not contingent upon the political relations between states or subjective characterizations of a state's behavior in other contexts.

Furthermore, Article 19 of UNCLOS provides a specific and exhaustive list of activities that would render passage non-innocent. Thailand asserts that its vessels have not engaged in any of these prohibited activities in their transit through the Suez Canal or any other international strait. Our vessels have consistently complied with the regulations set forth by the Suez Canal Authority and have not posed any threat to the peace, good order, or security of Egypt or any other coastal state.

Thailand strongly refutes any attempt to characterize it as a "belligerent nation" and rejects any argument that such a characterization could justify the denial of innocent passage rights. We maintain that our actions in international waters have been consistently peaceful, our contributions to global maritime security have been significant, and our adherence to international maritime laws and norms has been exemplary. Thailand stands ready to defend its rights under international law and calls upon the International Court of Justice to affirm the fundamental principle of freedom of navigation, which is essential for the maintenance of international peace, security, and economic prosperity.

Thailand respectfully submits that the Suez Canal’s status as an international waterway is of paramount importance in this case. The canal’s unique legal regime, established by the Constantinople Convention of 1888 and reinforced by subsequent international practice, creates a sui generis status that transcends ordinary concepts of territorial sovereignty. While Egypt undoubtedly possesses sovereignty over the physical territory of the canal, this sovereignty is fundamentally constrained and qualified by the international obligations that Egypt has assumed with respect to the canal’s operation and accessibility.

The principle of free passage through the Suez Canal is not merely a contractual obligation arising from the Constantinople Convention, but has evolved into a fundamental norm of customary international law. This norm has been consistently upheld and reinforced through state practice and opinio juris over more than a century. The international community has repeatedly affirmed the essential character of the Suez Canal as a global maritime chokepoint whose unimpeded operation is crucial to world trade and navigation.

It Is a well-established principle of international law that certain waterways, by virtue of their geographic location and historical usage, acquire a special status that limits the extent to which coastal states can restrict passage. The Suez Canal, like other crucial maritime straits such as the Strait of Gibraltar or the Danish Straits, falls squarely within this category. The right of free passage through such waterways is not contingent upon the political relations between states, but exists as an objective legal reality that benefits the entire international community.

Thailand contends that Egypt’s attempt to deny passage based on non-recognition of Thailand’s sovereignty represents an impermissible conflation of political and legal considerations. The right of passage through the Suez Canal is not a privilege granted by Egypt on a discretionary basis, but a legal entitlement that accrues to all nations as a matter of international law. This right exists independently of bilateral diplomatic relations or political recognition.

Furthermore, the principle of free passage through international straits has been codified in the United Nations Convention on the Law of the Sea (UNCLOS), particularly in Part III dealing with straits used for international navigation. While the Suez Canal’s regime predates and in some ways differs from the UNCLOS provisions, the Convention’s articulation of the importance of unimpeded transit through crucial waterways reflects and reinforces the customary international law applicable to the Suez Canal.

Thailand submits that any attempt by Egypt to restrict passage based on political considerations would set a dangerous precedent that could undermine the stability and predictability of international maritime law. If coastal states were permitted to deny passage through crucial waterways based on political disagreements or non-recognition, it would introduce an unacceptable level of uncertainty into global shipping and potentially disrupt vital trade routes.

Thailand respectfully urges the Court to reaffirm the Suez Canal’s status as an international waterway whose regime of free passage operates independently of bilateral political relations. This status, we submit, creates an obligation erga omnes that Egypt must respect regardless of its political stance towards individual states. To hold otherwise would be to fundamentally misunderstand the nature of the Suez Canal's legal regime and to potentially destabilize a cornerstone of the international maritime order.

Thailand categorically rejects the baseless accusations and mischaracterizations put forth regarding recent events occurring from the publication of our request for advisory opinions from the ICJ. We feel compelled to address these allegations directly and provide accurate information to the Court:

Regarding the Incident Involving the Egyptian Foreign Minister, the Republic of Thailand deeply regrets the tragic incident that occurred during the Egyptian Foreign Minister's visit to the Thai Government House. However, we strongly refute any characterization of this as an "assassination." The facts are as follows:

1. The incident resulted from a serious breach of established diplomatic and security protocols by the Egyptian delegation.
2. As is standard procedure for all visiting dignitaries, the Egyptian delegation was required to pass through metal detectors upon entering the secured area of the Government House.
3. The metal detectors alerted security personnel to the presence of a firearm carried by the Egyptian Foreign Minister. This was in direct violation of the clearly communicated prohibition on weapons within the demilitarized diplomatic zone.
4. The detection of an unauthorized firearm in such close proximity to the Thai Prime Minister triggered an immediate security response, as per established protocols designed to protect officials from potential threats.
5. In the ensuing confusion, a member of the National Intelligence Agency's security detail reacted to what was perceived as an imminent threat. This resulted in the Minister's death.
6. Prime Minister Thaksin Shinawatra, who was present, was visibly shocked by the incident. His genuine surprise and distress were evident and widely reported by eyewitnesses and media present at the scene.
7. A full investigation was immediately launched, involving both Thai authorities and independent observers. This investigation concluded that the incident, while deeply regrettable, was the result of a tragic misunderstanding stemming from the Egyptian delegation's violation of security protocols.
8. The Republic of Thailand has expressed its profound condolences to the people and government of Egypt. Although we have also offered substantial compensation to the Minister's family as a gesture of our sincere regret over this unfortunate incident, such an overture was aggressively refuted and rejected by Egypt without any veil of diplomatic decorum.

It is crucial to emphasize that this was not a premeditated act or "assassination" as has been falsely claimed. The Republic of Thailand has always been and remains committed to upholding the highest standards of diplomatic protocol and the safety of all foreign dignitaries on our soil.

Regarding claims of arbitrary detention, the allegations of arbitrary detention of Egyptian diplomats are entirely without merit. We wish to clarify the following points:

1. No Egyptian diplomats were detained at any point during or after the incident at the Government House as the Egyptian delegation was not made up of diplomats other than its Foreign Minister.
2. In the immediate aftermath of the incident, several individuals accompanying the Egyptian delegation, as they did not possess diplomatic credentials according to the Global Assembly Resolution on International Diplomacy, were briefly held for questioning. This was a standard security procedure given the unprecedented nature of the event.
3. These individuals were treated with full respect for their rights under both Thai and international law. They were provided with legal counsel, access to Egyptian consular officials, and all necessary amenities during their brief detention that would be considered excessive and extravagant even by the high-income living situation of our country during that time.
4. The detention was reviewed by the Thai judicial system within 24 hours, as required by Thai law. The court ruled that there was insufficient evidence to justify continued detention after a significant period of investigation.
5. Immediately following the court's decision, all detained individuals were released and allowed to return to Egypt without any restrictions, and all the costs were covered by the Thai Government of that time.
6. The entire process, from initial detention to release, was conducted with full transparency. International observers were invited to monitor the proceedings to ensure compliance with international standards.
7. The Republic of Thailand has provided full documentation of these events to the public available in governmental websites, including detailed timelines, judicial records, and statements from the individuals involved.

We categorically reject any characterization of these actions as "arbitrary detention." The Republic of Thailand acted in full compliance with domestic and international law, respecting due process and individual rights throughout.

The Republic of Thailand categorically rejects all accusations of wrongdoing. We stand firm in our commitment to international law, diplomatic norms, and the principles of peaceful coexistence. We urge the Court to view these baseless allegations with the skepticism they deserve and to recognize them for what they are: attempts to distract from the core legal issues at hand regarding the right of passage through the Suez Canal. The Republic of Thailand remains committed to resolving all disputes through peaceful means and in accordance with international law.

The Republic of Thailand asserts that the United Nations Convention on the Law of the Sea (UNCLOS) provides a comprehensive legal framework that governs the rights and obligations of states concerning maritime navigation, including the passage through international straits such as the Suez Canal. Thailand contends that the principles of UNCLOS, particularly those pertaining to the right of innocent passage and transit passage through straits used for international navigation, apply directly to the situation at hand and have been universally recognized as part of customary international law.

The Suez Canal, as an International strait, falls under the provisions of Part III of UNCLOS, specifically under Articles 37 to 44, which address the regime of transit passage. Article 38(1) of UNCLOS defines transit passage as “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.” This provision ensures that the rights of all states, whether coastal or land-locked, to navigate freely through such straits are preserved.

Thailand acknowledges that the Suez Canal is a man-made waterway within Egyptian territorial waters; however, its status as an international strait means that the right of transit passage is not subject to the same restrictions as innocent passage through a coastal state’s territorial sea. The transit passage through the Suez Canal is not contingent upon the political recognition of the state whose vessels are transiting but rather is a universally recognized right under both UNCLOS and customary international law. This distinction is crucial in maintaining the principle of freedom of navigation, which is a cornerstone of international maritime law.

Moreover, Thailand emphasizes that the principle of innocent passage, as codified in Article 17 of UNCLOS, applies even to territorial seas, ensuring that ships of all states have the right to pass through without being hindered, provided that such passage is not prejudicial to the peace, good order, or security of the coastal state. The restrictions that may be placed on innocent passage, as outlined in Article 19 of UNCLOS, are specific and pertain to actions that are inherently harmful or aggressive. Thailand categorically rejects any characterization of its actions or intentions as prejudicial or harmful to the peace, good order, or security of Egypt or any other state. Thailand’s maritime activities in the Suez Canal have been conducted in full compliance with international law, and there is no evidence or justification for labeling its passage as non-innocent.

Thailand further asserts that the Suez Canal’s unique legal status, as codified in the 1888 Constantinople Convention, guarantees free passage “in time of war as in time of peace” for vessels of all nations. This convention reinforces the applicability of the right of passage through the Suez Canal, irrespective of the recognition or non-recognition of a state’s sovereignty. The Republic of Thailand invokes this principle to support its claim that its vessels are entitled to passage through the canal, notwithstanding any bilateral or political disputes.

In response to potential arguments that Egypt, as a sovereign state, may exercise its rights under UNCLOS to prevent passage that it deems non-innocent, Thailand asserts that such rights must be exercised in strict accordance with international law. Any suspension or prevention of passage must be based on clear and present threats to the coastal state’s security, as provided under Article 25 of UNCLOS. Thailand unequivocally denies engaging in any activities that could be construed as prejudicial to Egypt’s security or public order. Therefore, any denial of passage would constitute an unjustified and unlawful restriction on Thailand’s rights under both UNCLOS and customary international law.

Thailand also preemptively addresses any potential references to its status as a non-signatory to certain treaties or conventions. It asserts that while it may not be a High Contracting Party to the 1888 Constantinople Convention, the principles enshrined in that convention, particularly those concerning free passage through the Suez Canal, have been universally accepted and have crystallized into customary international law. Therefore, these principles are binding on all states, including non-signatories like Thailand.

Thailand underscores that the Law of the Sea, as codified in UNCLOS, represents a balanced and universally accepted framework that governs maritime navigation and the rights of coastal and non-coastal states alike. The application of UNCLOS to the Suez Canal situation is not only appropriate but necessary to ensure that the principles of free and unfettered navigation are upheld in accordance with international law. Thailand respectfully requests that the Court recognize its right to transit the Suez Canal under these principles and reject any arguments to the contrary that are based on political considerations rather than legal obligations.

The Republic of Thailand asserts that under UNCLOS and customary international law, it has the unequivocal right to navigate its vessels through the Suez Canal, and any refusal by the Sultanate of Egypt to permit such passage would constitute a breach of its international obligations. Thailand maintains that its conduct has been consistent with the principles of innocent passage and transit passage, and it urges the Court to affirm these rights in its Advisory Opinion.

Thailand draws upon established principles of international law and state practice to demonstrate that the right of passage through international straits and canals has been consistently upheld, even during periods of strained diplomatic relations or conflict. The Suez Canal, as a vital international waterway, has historically been subject to principles enshrined in international agreements, including the Constantinople Convention of 1888, which codified the obligation to allow free passage for vessels of all nations, regardless of the political status or diplomatic relations between states.

Historically, the passage of vessels through the Suez Canal has been granted to states, irrespective of their recognition or the existence of diplomatic ties with the coastal state controlling the canal. Thailand refers to several precedents where nations, despite ongoing disputes or lack of formal diplomatic relations, were permitted passage through the canal. For instance:

• The Arab-Israeli Conflict and Suez Canal Passage: During the height of the Arab-Israeli conflict, Israel and Egypt had no formal diplomatic relations and were, in fact, engaged in hostilities. Despite this, under the provisions of the Constantinople Convention and customary international law, Israeli vessels were at times permitted to transit through the Suez Canal. This underscores the principle that the right of passage is not contingent upon diplomatic relations but is a right derived from the international character of the canal.
• Indo-Pakistani Tensions: Despite recurrent tensions and lack of sustained diplomatic engagement between India and Pakistan, vessels from both nations have continued to navigate international straits, such as the Strait of Hormuz and the Strait of Malacca, under the principle of innocent passage. These instances affirm that the right of passage for civilian and commercial vessels remains inviolable, regardless of the broader political context.
• Cold War Practices: During the Cold War, vessels from the United States and the Soviet Union frequently transited through international waterways, including the Turkish Straits, despite the lack of friendly relations. The passage was granted under international law, reinforcing the notion that access to international straits and canals cannot be unilaterally obstructed by the coastal state, even during periods of heightened geopolitical tension.

In the context of the Suez Canal, the Republic of Thailand asserts that the refusal by the Sultanate of Egypt to allow Thai vessels passage violates established state practice and the legal obligations arising from the Convention of Constantinople. The Canal, by its very nature, serves as a neutral corridor for international navigation, and Egypt’s unilateral denial of passage, based on non-recognition of Thailand’s sovereignty, contradicts the fundamental principles of international law.

The Invocation of the right of innocent passage, as codified under the United Nations Convention on the Law of the Sea (UNCLOS), further strengthens Thailand’s position. Under UNCLOS, the concept of innocent passage is broad and includes the navigation of vessels through a state’s territorial waters, provided that such passage does not threaten the peace, security, or public order of the coastal state. Egypt’s denial, based solely on the status of diplomatic relations or political recognition, falls outside the legitimate grounds for restricting passage as outlined under international law.

The Republic of Thailand recognizes the importance of security concerns for any sovereign state, particularly regarding strategic assets such as the Suez Canal. However, Thailand contends that the blanket refusal by the Sultanate of Egypt to allow passage of Thai vessels is both disproportionate and unnecessary under established principles of international law, including those of proportionality and necessity.

Under customary international law, measures taken by a state must be proportional to the perceived threat or harm. The principle of proportionality requires that any action taken to protect national security or public order must be narrowly tailored to address the specific threat without unduly infringing on other legitimate interests, such as the freedom of navigation. The refusal to allow Thai vessels passage through the Suez Canal fails this test of proportionality.

The Republic of Thailand argues that even if the Sultanate of Egypt has legitimate security concerns, these concerns could be addressed through less restrictive measures. For example, Egypt could implement enhanced inspection protocols for Thai vessels, or provide for naval escorts to ensure that the passage of these vessels does not pose a threat to the security or public order of Egypt. These measures would be more consistent with the requirements of proportionality, as they would allow for the protection of Egypt’s interests while still upholding the principles of free passage and navigation.

Thailand also emphasizes the doctrine of innocent passage, as enshrined in the United Nations Convention on the Law of the Sea (UNCLOS), and recognized as customary international law. The principle of innocent passage, which allows vessels of all nations to traverse territorial seas provided they do not threaten the peace, good order, or security of the coastal state, is a cornerstone of international maritime law. Even if Thailand’s vessels were to be scrutinized under this doctrine, there is no evidence to suggest that Thai vessels, whether commercial or military, have engaged in activities that would be considered non-innocent or prejudicial to the security of the Sultanate of Egypt.

The blanket denial of passage disregards the International legal standard that any restriction on innocent passage must be based on concrete and specific threats. The Republic of Thailand asserts that no such threats have been substantiated with respect to Thai vessels. Therefore, a total prohibition is neither justified nor necessary under international law.

The Republic of Thailand submits that the legal framework governing the Suez Canal must be analyzed in the context of the behavior and policies of the Sultanate of Egypt, particularly its declaration and enforcement of the Egyptian Interdiction Zone (EIZ). The EIZ, as publicly proclaimed by Egypt, is a policy that flagrantly violates international law, including principles of state sovereignty, non-interference, and freedom of navigation. This policy is not merely a statement of Egypt’s intentions but an ongoing action that has already resulted in significant disruptions to international peace and security.

The EIZ covers vast regions across two continents and more than a dozen countries, declaring these areas off-limits to any form of foreign military influence, under the threat of retaliation by Egypt. The policy is divided into CORE and PERIPHERAL regions, with restrictions that effectively allow Egypt to exercise extraterritorial control over sovereign nations within these zones. The CORE classification, in particular, prohibits any foreign involvement in conflicts within these regions, including legitimate acts of self-defense by the affected states.

Thailand contends that such a policy is inherently illegal under international law. The EIZ represents a blatant breach of the principles enshrined in the United Nations Charter, including the prohibition on the use of force, the respect for sovereign equality, and the non-interference in the internal affairs of other states. Furthermore, the EIZ’s restrictions on foreign governments, particularly the prohibition of self-defense, which affirms the inherent right of individual against armed attacks.

The EIZ exemplifies the unpredictable and aggressive nature of the current Egyptian regime, raising serious doubts about its adherence to international obligations, including those under the 1888 Constantinople Convention. Egypt’s actions under the EIZ indicate a propensity to unilaterally impose its will on the international community, disregarding established norms of international law. Such behavior undermines the foundational principles of the Suez Canal’s status as an International waterway open to vessels of all nations.

Thailand argues that the ICJ must take into account Egypt’s rogue conduct in its assessment of the legal questions before it. The Suez Canal, under international law, is intended to be a neutral and open passageway for all nations, regardless of their political or military status. Egypt’s EIZ, however, creates a de facto blockade, allowing Egypt to arbitrarily decide which vessels may or may not pass based on its own self-declared security concerns.

This conduct not only violates the spirit and letter of the 1888 Convention but also poses a severe threat to international navigation rights under customary international law. The EIZ policy is a clear manifestation of Egypt’s willingness to disregard international obligations and impose its own unlawful restrictions on global commerce and navigation. In light of such actions, the Court must consider whether Egypt can be trusted to uphold its obligations under international law, including the principle of innocent passage through the Suez Canal.

The Republic of Thailand acknowledges that the Sultanate of Egypt may attempt to challenge the universality of the principles governing the Suez Canal’s operation or argue for exceptions based on unique circumstances. However, we contend that such arguments would be legally unsound and contrary to established international law and practice. We preemptively address these potential counterarguments as follows:

Firstly, regarding the universality of the principles enshrined in the Constantinople Convention of 1888 and the United Nations Convention on the Law of the Sea (UNCLOS), it is imperative to note that these principles have not merely remained static treaty obligations but have evolved into customary international law. The concept of customary international law, as recognized by the International Court of Justice in numerous cases, including the North Sea Continental Shelf Cases (1969) and the Nicaragua v. United States case (1986), is based on consistent state practice and opinio juris. The principle of free passage through international straits, including man-made canals of critical importance to global navigation, has been consistently upheld by states for over a century, demonstrating both the necessary state practice and the belief that such practice is legally obligatory.

Moreover, the universality of these principles is further evidenced by their incorporation into numerous national legislations, bilateral treaties, and multilateral conventions beyond the Constantinople Convention and UNCLOS. For instance, the Convention on the Territorial Sea and the Contiguous Zone (1958) and the Convention on the High Seas (1958), both precursors to UNCLOS, affirmed the right of innocent passage. The subsequent widespread ratification of UNCLOS, with 168 parties as of 2023, further demonstrates the global acceptance of these navigational rights. Even states not party to UNCLOS have declared that they consider the navigational provisions of UNCLOS to reflect customary international law.

Furthermore, the principle of free passage through the Suez Canal has been reaffirmed in various international forums and declarations. The United Nations Security Council Resolution 242 (1967), while primarily addressing the Arab-Israeli conflict, implicitly recognized the importance of maintaining international waterways, including the Suez Canal, open for navigation by all states. Similarly, the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration, 1972) emphasized the importance of freedom of the seas, which by extension includes critical international waterways.

The Republic of Thailand anticipates that Egypt might argue for exceptions based on unique circumstances, possibly citing national security concerns or the current political climate. However, we contend that such arguments would be legally untenable for several reasons.

Firstly, the principle of rebus sic stantibus, or fundamental change of circumstances, as codified in Article 62 of the Vienna Convention on the Law of Treaties, cannot be invoked in this case. The International Court of Justice has set a very high bar for the application of this principle. The Court held that a fundamental change of circumstances must have been unforeseen by the parties and must radically transform the extent of obligations still to be performed. The current political situation, however strained, does not meet this high threshold, particularly given that the Constantinople Convention explicitly provides for free passage “in time of war as in time of peace.”

Additionally, any argument for exceptional treatment based on unique circumstances must be reconciled with the principle of good faith in international law. As affirmed by the ICJ in the Nuclear Tests cases (Australia v. France, 1974), states are bound to fulfill their obligations in good faith. Egypt’s obligations under the Constantinople Convention and customary international law regarding the Suez Canal cannot be unilaterally abrogated without violating this fundamental principle.

Furthermore, the doctrine of abuse of rights, recognized in international law and articulated by the ICJ in the Certain German Interests in Polish Upper Silesia case (1926), prohibits states from exercising their rights in a way that impedes the enjoyment by other states of their own rights or causes injury to them. Egypt’s denial of passage to Thai vessels, if justified as an exercise of its sovereign rights, would constitute such an abuse, as it disproportionately impairs Thailand’s rights under international law and causes significant economic and strategic injury.

The Republic of Thailand also draws the Court's attention to the principle of estoppel In international law. Egypt has consistently allowed passage through the Suez Canal to vessels of nations with which it has had serious political disagreements or even armed conflicts. This consistent practice has created a legitimate expectation under international law that such passage would be granted regardless of political relations. As the ICJ held in the Temple of Preah Vihear case (Cambodia v. Thailand, 1962), a state may be precluded from contesting a situation when its previous conduct would make this contrary to good faith.

The Republic of Thailand firmly asserts that the Suez Canal Is a vital international waterway, governed by established international law, specifically the Constantinople Convention of 1888. The argument presented by Egypt that the Suez Canal constitutes internal waters under its exclusive sovereignty is inconsistent with both historical precedent and the principles of international law. The Suez Canal, as an artificial waterway, was constructed not solely as a national project but as a conduit for global maritime commerce, intended to serve the interests of the international community. It is for this reason that the Constantinople Convention was established, binding its signatories and subsequent states to uphold the neutrality and free passage through the canal.

The Republic of Thailand strongly contests Egypt’s assertion that it is not bound by the Constantinople Convention of 1888. Although Egypt was not an independent state at the time of the Convention’s adoption, the doctrine of state succession in international law dictates that obligations and rights under such treaties are inherited by successor states, particularly when the subject matter concerns a permanent international regime, such as the Suez Canal. Furthermore, Egypt has benefited from the application of this treaty throughout its history and cannot selectively choose to ignore its obligations while continuing to benefit from the Canal’s operation under international norms.

The principle of pacta sunt servanda—that treaties are to be honored—remains a cornerstone of international law, and this principle applies universally, including to the obligations enshrined in the Constantinople Convention. Egypt’s argument that the Convention does not bind it due to the lack of initial consent fails to recognize the prevailing norm that treaties establishing international regimes, especially those governing international straits and canals, transcend the narrow confines of bilateral or multilateral state consent. Such treaties are integral to the maintenance of global order and peace, and their dissolution cannot be entertained without endangering the stability of the international legal system.

Moreover, while Egypt might invoke jus cogens norms of self-determination and territorial integrity, these norms do not supersede the established rights and obligations under an international regime, particularly when these obligations have been universally recognized and respected for over a century. The rights of states to navigate the Suez Canal, as articulated in the Constantinople Convention, constitute a customary international law that Egypt, as a member of the international community, is bound to respect.

Thailand preemptively rejects any Egypt’s reliance on Articles 29 and 34 of the Vienna Convention on the Law of Treaties to argue against the applicability of the Constantinople Convention. These provisions do not permit a state to unilaterally opt out of an established international regime governing an international waterway of such global significance. The intent behind the Suez Canal’s regime was to ensure its neutral status and accessibility, irrespective of changes in the territorial sovereignty of the region. As such, Egypt cannot invoke these articles to negate its obligations under the Constantinople Convention or any other established international legal principle.

Thailand underscores that the Suez Canal is not merely a national asset of Egypt but a critical artery for global maritime trade and security. Any attempt by Egypt to unilaterally impose restrictions on the passage of vessels based on its own political considerations would set a dangerous precedent, undermining the very fabric of international maritime law. The global community has a vested interest in ensuring that the Suez Canal remains open and neutral, free from the influence of any single state’s political or military ambitions.

Finally, Thailand urges the International Court of Justice to recognize that Egypt’s attempt to dissolve the Constantinople Convention and reframe the Suez Canal as its internal waters represents a profound threat to the rule of law in international relations. Such a move would not only undermine the legal rights of Thailand and other states but would also destabilize the entire system of international treaties and conventions that underpin global peace and security.

Thailand respectfully requests that the Court affirm the binding nature of the Constantinople Convention, reject Egypt’s claims to exclusive sovereignty over the Suez Canal as internal waters, and uphold the right of passage for all nations through this critical international waterway. In doing so, the Court will reinforce the principles of international law that protect the rights and interests of the global community.

Respectfully submitted,

Piyabutr Saengkanokkul
Minister of Justice
Republic of Thailand

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