Foreign Relations of the United States, 1955–1957, Suez Crisis, July 26–December 31, 1956, Volume XVI

167. Memorandum From the Assistant Secretary of State for Near Eastern, South Asian, and African Affairs (Rountree) to the Secretary of State¹

Washington, September 4, 1956.

SUBJECT

• New Proposal for the Suez Canal²

In collaboration with L, E and IO, we have examined your new proposal from several angles as follows:

Legal Considerations

Article 1 of the 1888 Treaty provides that the Canal “shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag.” There are several other articles which refer to “free passage” of the Canal. It is not believed, however, that the word “free” as used in this text is to be construed as meaning “without charge”. The 1888 Convention was written with the knowledge of the 1856 Concession to the Canal company, Article 17 of which specifically provided: “In order to indemnify the company for expenses of construction, maintenance and management … we authorize [the company] …³ to establish and collect for the right of passing through the canals and the ports belonging, navigation, all pilotage, towage, or anchorage dues, according to tariffs to be modified by the company at all times.” Nothing in the Convention of 1888 modified this provision for charging dues to meet the costs of construction, maintenance and management. Such charges have continuously been imposed and paid without objection. All of this negates any thought that the Convention of 1888 provided for passage without charge.

It should also be noted that the Hay-Pauncefote Treaty relating to the Panama Canal⁴ adopted in Article 3 “the following rules substantially as embodied in the Convention of Constantinople, signed the 28th October 1888, for the free navigation of the Suez Canal … (1) the Canal should be free and open to the vessels of commerce and war of all nations … on terms of entire equality so that there should be no discrimination … in respect of the conditions or charges of traffic, or otherwise”. It would seem clear that the expression “free and open” was used in the same sense in both cases, but in both cases contemplating appropriate charges.

“Free” should be construed as meaning “without impediment”. Such impediment might be physical, operational, or even created by excess charges over and above what would be fair and reasonable to meet the expenses of construction, maintenance and management.

Should there be an impediment to the free passage of the Suez Canal, in the sense just described, by operational failure through lack of pilots, there would seem to be no legal objection to alternative arrangements being provided by the interested parties to assure a supply of pilots.

Practical Considerations

There is raised the question of “traffic pattern” and the suggestion is made that there is no reason why Egypt has any right to direct this. Without going into the question of who has the right to direct it, the chief point is that the Canal is physically the type of facility which on practical grounds must have centralized direction and control, and authority over the movement of ships within it, if it is not to become completely jammed as a result of uncontrolled voluntary actions. The Canal is not wide enough for a steady flow of ships to pass each other at all times and at all places. There are places where ships can pass each other, but control must be exercised to see that ships do not encounter each other at other places. A voluntarily organized control over ship movements, not based on Egyptian soil or operating under Egyptian authority, might well obtain compliance from the great majority of the ships operating through the Canal, but could certainly not enforce its will on Egyptian ships or on ships of other nations which did not choose to cooperate, such as the Soviet Union. The failure of a single ship to cooperate could block the entire facility.

In the short term, the problem of physical obstructions arising from sand storms, cave-in of banks, or silting up is probably not urgent. Nevertheless, over the longer term, work to correct any hydrographical deficiencies would have to be related to and coordinated with whatever centralized control over traffic was in effect, simply because important dredging or earthmoving work could not be undertaken while ships were passing the spot where the work was being done. Furthermore, if there were a “voluntary” control authority over ship movements (not under Egyptian control) and if there were need for dredging or work on the banks, the question of sovereignty would arise if the external “voluntary” authority sought to put personnel and equipment on the shore, which is Egyptian territory.

Opinions differ on pilotage. Presumably, experienced pilots could be assembled to pilot ships through the Canal without being subject to the jurisdiction of the Egyptian Government, but this does not mean a resolution of the problem of centralized control of the facility covered in the first paragraph above. Pilots are not legally responsible for the movement of the ships on which they are stationed but the masters of the ships must, for practical reasons, be subject to some central traffic authority. A set of pilots operated by an external “voluntary” organization might well give one set of instructions to masters at a time when masters were receiving contrary instructions from the Egyptian Government authority which would still be trying to run the Canal. This leads to the conclusion that from a practical standpoint, the operation of the Canal by any kind of duality in authority or without the assent of the Egyptian Government is an impossibility.

Political Considerations

At the present time, 18 nations support the 5-power proposal. If the work of the Committee of 5, which is discussing this proposal with Nasser, reaches no conclusion, it is possible that some of the 18 nations would support the new proposal. It would appear to them to be an alternative to more forceful action which the British and French would almost certainly be advocating. It is believed, however, that most of the 18 nations would immediately make the point that steps taken to implement the new proposal would probably result in the threat of an aggressive Egyptian response or an incident itself. Security Council consideration would undoubtedly follow because of the Egyptian threat or action. Most of the 18 nations might therefore prefer to proceed to the Security Council directly following a breakdown of the work of the Committee of 5 than to take an intervening step which seemed certain to result in an incident. They would argue that direct reference to the Security Council might avoid hostilities entirely.

An announcement of the new proposal, based on the Treaty of 1888, would have the psychological effect of deflating Nasser momentarily. As previously indicated, it would not have been possible to implement the proposal which would have been referred to the Security Council. Nasser would claim that those favoring the new proposal were infringing upon Egyptian sovereignty and that he would be forced to respond to protect Egyptian interests. During the ensuing Security Council consideration, Nasser’s popularity would be restored and he would be depicted as the defender of the Arabs against the West. Mossadeq did not lose his position of popularity and support throughout the years of the Iranian dispute preceding his deposal.

Conclusions

The legal, practical and political considerations set forth above would indicate there is substantial doubt that the proposal could in fact be implemented over Egyptian opposition, particularly if there were not virtual unanimity among all users of the Suez Canal and unless the action was sanctioned by some recognized authority such as the United Nations.

There may, however, be advantages from the psychological viewpoint to an announcement or some other indication that the users of the Canal were considering an alternative of this nature if satisfactory arrangements with the Government of Egypt could not otherwise be achieved.

If it were decided to pursue this course, an announcement of a proposal for a voluntary international association to operate the Suez Canal containing the following points might be made:

1. The actual operation of the Canal presently being a matter of dispute and the status of the concession of the Canal Company yet to be settled, the nations which constitute the majority users of the Suez Canal have taken cognizance of the fact that the Egyptian Government has asserted that it will continue to respect the Constantinople Convention. They expect the Government of Egypt to continue to abide by this pronouncement. For their part, they are determined to ensure that their rights under the Convention shall be maintained and fully exercised.

2. To this end they have agreed that they will establish an international shipping control association for the purpose of transitting the Canal. The association will be set up with headquarters to be determined. It will employ pilots who will be fully qualified to effect passage through the Suez Canal. It will establish a traffic and convoy system for those ships using its facilities so that the Canal shall continue to be operated with maximum efficiency. It will collect tolls from ships using the association for the sole purpose of a) paying the pilots; b) paying operational and administrative expenses of the association and c) establishing a fund to be used whenever it is determined that construction and repair work should be undertaken on the Canal.

3. The services and facilities of the association will be unqualifiedly available to ships of any nation at all times.

4. The association will stand ready at all times to cooperate with the Egyptian authorities and ensure that the Canal remains free and unobstructed to shipping.

If it should be necessary to go to the Security Council, Mr. Wilcox’ memorandum of September 3⁵ sets forth a possible course of action under article 40.

1. Source: Department of State, NEA Files: Lot 58 D 545, Egypt. Top Secret. The source text also indicates Raymond, Armstrong, Ludlow, and Wilkins as drafting officers. No indication has been found that the memorandum was forwarded to Dulles.
2. Reference is presumably to Dulles’ memorandum of September 2, Document 161
3. All ellipses and brackets in this document are in the source text.
4. For text, see 12 Bevans 258–260.
5. Not printed. (Department of State, UNP Files: Lot 58 D 244, Suez–1956)