Memorandum by the Special Adviser on Geography ( Boggs )1 to the Director of the Office of Near Eastern Affairs ( Jones )
Subject: Access to the Ports in the Gulf of Aqaba
This memorandum is in fulfillment of an assurance given at a conference on problems relating to the Gulf of Aqaba held February 21, 1951, in Room 3022 NS. The meeting was attended by Mr. Robert Thayer (NE), Mr. S. N. Crowe (L/NEA), Mr. Victor Wallace (L/E), and Mr. S. W. Boggs and Mrs. Saucerman (OIR/GE). Mr. Wells Stabler (NE) has discussed the matter by telephone with this office.
The Problem of the Gulf of Aqaba
The Gulf of Aqaba lies at the north end of the Red Sea, and is bordered by Egypt (Sinai peninsula), Israel, Jordan and Saudi Arabia. It is nearly 100 nautical miles long in a NNE–SSW direction, with widths of seven to 14 nautical miles toward the middle and lower parts of the gulf. Its relatively steep shores owe their characteristics to its rift valley structure, as the Gulf of Aqaba lies in the extensive fault system that produced the great rift valley to the south through the Red Sea and east Africa, including Lake Tanganyika, and its continuation to the north through the Wadi el Araba, the Dead Sea, and the Jordan River valley.
At the mouth of the Gulf the distance between the Sinai peninsula and the Arabian mainland is approximately eight nautical miles. Tiran Island, in the middle of the entrance to the Gulf, is a little more than three miles from the mainland on either side. The main channel into the Gulf of Aqaba is “Enterprise Passage”, close to the Egyptian coast. This Passage lies between the Sinai peninsula and Gordon reef, which are only about ⅔ naut. mi. apart. Tiran Island (even without its neighboring islets and reefs) with the territorial sea of Tiran and the mainland shores (assuming a 3-mile limit), thus appears to provide a legal basis for closing the entrance to the Gulf of Aqaba. (Egypt and Saudi Arabia claim a 6-mi. limit, which is of course not recognized by the United States.)
The sovereignty of Tiran and Senafir Islands seems to be in question. A recent London telegram states: “Claimant to islands since Turks not clear. Foreign Office understood they passed to Saudi Arabia” (No. 4455, Feb. 15, 1951).2 Certain foreign atlases indicate the islands as belonging to Saudi Arabia. Egypt, however, occupied them in March 1950 and is reported to have mounted guns at Ras Nuzerani on the mainland peninsula, near the entrance to Enterprise Passage. The islands had been reported to be uninhabited.[Page 586]
The head of the Gulf of Aqaba presents a problem distinctly different. Israel and Jordan possess short coasts, between that of Egypt, on the west, and that of Saudi Arabia on the east, both of which extend the full length of the Gulf and beyond into the Red Sea. The exact lengths of the coasts of Israel and Jordan are uncertain, as their boundary termini on the coast have not been clearly defined. But apparently, by ordinary principles and techniques of delimitation, and assuming a 3-mile limit, the territorial waters belonging to Israel and to Jordan would be “pinched off” by the territorial waters of Egypt and Saudi Arabia, which would probably meet just to the south of those of Israel and Jordan.
In an article entitled “Delimitation of Seaward Areas under National Jurisdiction”, which will appear in the April issue of The American Journal of International Law,3 I have dealt systematically with all geographical and geometrical types of delimitation problems which can arise the world over, and have appended the following footnote which specifically refers to the Gulf of Aqaba.
“An additional category was originally planned: Zones of access to the high seas, by surface and air, for states apparently denied access from relatively short coasts on bays or gulfs, because the usual delimitation techniques would pinch them off from the high seas. Problems would have been considered such as those of the Gulf of Aqaba (underscore added), where both Israel and Jordan have very short coasts, between those of Egypt and Saudi Arabia, and where there are differences of navigability by surface ships and maneuverability of airplanes within zones of access that might be delimited by special techniques that should be taken into account. But each case is almost unique; general principles could be stated, but perhaps no techniques of wide applicability could be evolved.”
The problems of access through the Gulf of Aqaba are, therefore, apparently unique. They are of interest from both the legal and geographical points of view.
Israel is developing a new port called Elath (Ailat). Jordan has a seaport at the village of Aqaba (sometimes said itself to be the site of biblical Elath). It might be helpful to have fresh, first-hand information regarding the precise location of these two ports, their traffic, and present development and facilities.
I have considered various possible geographical analogies to passageway to the ports within the Gulf of Aqaba, and have concluded that the most relevant is the passageway to the Baltic Sea and the Gulf of Finland through the waters of the Sound and the Belts between Denmark and Sweden, Here are States bordering the Baltic, whose only access to the high seas is through navigable channels, all [Page 587] less than six miles minimum width, which pass between the mainland of Denmark, islands of Denmark, and the mainland of Sweden. The problems of access through those territorial waters have already been resolved, over a period of many decades. The early initiative of the United States in declaring these channels free passageways by public right is particularly relevant. The history of the Sound and the Belts, as well as the geographical factors involved, are significant in the current problems of the Gulf of Aqaba.
The Sound and the Belts. The principal channels are the Sound (minimum width 2 miles), the Little Belt (least width 600 yards), and the Great Belt (minimum width about 3.5 miles). For more than four centuries Denmark collected dues on traffic passing through these waters, in later decades from “privileged” (treaty) nations. The United States paid such dues under the U.S.-Danish Convention of 1826 (Miller, Treaties 4 … Vol. 3, pp. 239–43).
The United States became critical of this “tribute”, known as “the Sound dues”, as early as 1837, and on October 14, 1848, Secretary of State Buchanan took the position that
“Under that law [public law of nations] the navigation of the two seas connected by this Strait [actually the Sound and the Belts] is free to all nations; and therefore the navigation of the channel by which they are connected ought, also, to be free.” (Miller, Treaties … Vol. 7, p. 530.)
In 1856 the convention of 1826 was abrogated by the United States.
The instructions to Mr. Bedinger, U.S. Chargé d’Affaires to Denmark, dated July 18, 1853, are pertinent in recalling that “the principle upon which those dues are collected, cannot be defended” … “a ‘principle’ so flagrantly at variance with the established right of each of the nations of the earth to the liberum mare.” (Miller, Treaties … Vol. 7, p. 534.)
A general treaty for the reduction of the Sound dues was signed by Denmark and 13 other States, including Great Britain and France, March 14, 1857 (English text in Hertslet, Map of Europe by Treaty, Vol. 2, pp. 1301–09.)5
The United States was not a party to this treaty, since negotiations had long been under way for a separate treaty with Denmark. Ratification of the general treaty of March 14, 1857, had been exchanged on the following March 31, and therefore prior to the separate U.S.-Danish treaty of April 11, 1857.6[Page 588]
By the U.S.-Danish treaty concluded April 11, 1857, the United States agreed to pay to Denmark “once and for all” the sum of $393,011 (Art. 3). That sum with interest was paid in London in March 1858. Torben Bille, Danish Chargé d’Affaires, who signed the U.S.-Danish convention for Denmark, wrote that “navigation of the Sound and Belts has thus been rendered as free and open to the shipping of the world as the ocean itself” (D.S., 2 Notes from the Danish Legation, July 4, 1857. See Miller, Treaties … Vol. 7, p. 585).
It is respectfully suggested that the United States adopt the viewpoint that access to the ports within the Gulf of Aqaba should be free to all nations—as free as the access to the Baltic Sea and the Gulf of Finland is through the territorial waters of Denmark and Sweden. Egypt and Saudi Arabia should be presented with such an interpretation of the geographical and legal situation. Admittedly, the Gulf of Aqaba is small, and traffic to ports on its shores is extremely small in comparison with that of the Baltic Sea. But the concern of Israel and Jordan, in possessing sea coasts at the head of the Gulf of Aqaba, is clearly that they may have access to the high seas through the Red Sea. Israel and Jordan might well be parties to a settlement relating to all questions of access to the Gulf of Aqaba.
It is further suggested that an effort be made to find a principle for the delimitation of the territorial sea of all four countries in the waters at the head of the Gulf of Aqaba, so as to give both Israel and Jordan direct access to the high seas portion of the Gulf, if possible. I should be glad to work on that unusual problem, and to show the application of such a principle on a map, if requested to do so.
- In the Office of Intelligence Research.↩
- Not printed. (674.84A/2–1551)↩
- Vol. 45, p. 240.↩
- Hunter Miller (ed.), Treaties and Other International Acts of the United States of America. 8 volumes (Washington, Government Printing Office, 1931–1948). All ellipses in this document appear in the source text.↩
- Sir Edward Hertslet, The Map of Europe by Treaty, 4 volumes (London, Butterworths (etc.), 1875–1891).↩
- The convention for the discontinuance of the Sound dues, signed at Washington. For text, see 11 Stat. 719.↩