Foreign Relations of the United States, 1955–1957, Arab-Israeli Dispute, 1957, Volume XVII

291. Telegram From the Department of State to the Embassy in Egypt¹

Washington, April 18, 1957—7:29 p.m.

3475. Re Suez. Now that US has decided defer for a few days call for SC meeting, we believe important Egyptians give concrete evidence their desire to move expeditiously towards satisfactory international agreement. We believe Egyptians should be pressed at this juncture meet most important suggestions made by US re Egyptian declaration.

SYG gave GOE comments on Suez Declaration and requested GOE submit them to you for US reaction (USUN 787, Rptd info Cairo 3).² If GOE has shown you SYG’s comments, give US position as indicated below. If GOE has not shown you SYG’s comments, indicate that they have been made available to us.

Suggest you request early meeting Fawzi to make following points:

(1) In effort to meet Egyptian desire we have managed defer calling SC meeting for few days to see whether any further progress can be made. However we do not feel we can continue discussions much longer in absence real progress on crucial outstanding points.

(2) Registration (Para 2 SYG’s letter and further comments in USUN 789, rptd info Cairo 4):³ Reiterate US belief that in order be registerable under Article 102 of Charter, Declaration must be binding international “agreement”. US continues believe Declaration should be transmitted by Egypt and handled by SYG in such a way as to be capable of “acceptance” and thus convertible into “agreement” which can be registered, and which will be binding on Egypt, and under which user states will have rights legally secured. This belief is reinforced by statements Committee IV/2 of San Francisco Conference quoted USUN 789, rptd info Cairo 4. SYG’s analogy to unilateral declarations accepting obligations of Charter and recognizing compulsory jurisdiction of ICJ is not persuasive in this context. Such declarations constitute “agreement” because state making declaration accepts obligations vis-à-vis only those states that have already accepted same obligations, and because those treaties contain what are in effect adherence clauses. See UN Charter, Article 4(1); Statute ICJ, Article 36(2).⁴

US certainly agrees with SYG that Declaration should include provisions for adjudication or arbitration of disputes regarding interpretation and application of Declaration, but does not think that inclusion such provisions would transform it into “agreement” of kind mentioned in Article 102. Nor do we think that “noting” by GA of exchange of letters between SYG and GOE would have that effect.

(3) Six Principles (Para 2 SYG’s letter): Dept continues to believe it necessary to include in Preamble statement that Declaration is to give effect to six principles (see Deptel 3342).⁵ Such inclusion would not in any way commit GOE to acceptance of any particular interpretation of six principles.

(4) User Cooperation (Para 3 SYG’s letter): US finds SYG’s suggested addition to para 5 of Declaration re user cooperation inadequate. US believes it essential that Declaration include provision identifying or giving UN or similar body power to identify user organization with which GOE is to deal. Cooperation between users and GOE in sense envisaged SYG’s letter October 24, 1956 (S/3728) can only, as practical matter, be effected by governmental representation of users. Where Declaration carries international commitments by Egypt toward other countries, machinery for implementing Declaration should be governmental. Furthermore, agency representing only private shipowners would be inadequate to represent interests of countries not having substantial shipping but whose commerce relies on Suez Canal.

(5) Egyptian Declaration as Interim Arrangement (Para 4, SYG’s letter): We endorse strongly SYG suggestion Egyptian declaration, if issued, be regarded as interim document pending development more auspicious circumstances in which international agreement satisfactory Egypt and users can be achieved.

(6) Re SYG’s suggestion GA take note declaration, we wish reserve our judgment and believe you should not discuss this point with GOE.

In addition to foregoing make following comments on revised Egyptian draft Declaration (Cairo 3201)⁶ as being of vital interest to US:

(7) Para 3(B): US regrets GOE’s failure to include provision for litigation or arbitration of disputes arising out of Declaration and to include express acceptance by GOE of compulsory jurisdiction of ICJ. Inclusion of such provisions in this para and of word “undertakes” in para 4 would go far toward convincing rest of world that Egypt intended to assume enforceable obligations re its operation of Canal in accordance with the 1888 Convention.

(8) Para 4(B):GOE’s failure to include provision for user agreement on toll increases is inconsistent with Security Council Resolution October 13, 1956 in which it was stated that manner of fixing tolls “should be decided by agreement between Egypt and the users”.

(9) Para 7: User agreement to changes in Canal Code is necessary to assure that no discriminatory practices are instituted. Provisions for notice and arbitration are not an adequate substitute for prior agreement.

(10) Para 8(B): Use of word “disagreement” in last sentence this para may make it possible for party to dispute to defeat any arbitration simply by refusing to name an arbitrator. US concern is that arbitration shall not be subject to frustration in any case where dispute is not otherwise resolved. Para 8 is also incomplete in that it does not provide any means by which users can obtain evidence necessary to fair arbitration of their complaints.

(11) Para 9: This para fails to include binding undertaking to arbitrate or litigate question of compensation and claims with Suez Canal Maritime Company in connection with GOE’s nationalization of its property. Such undertaking essential if GOE to be in position seek funds for future Canal development. Threat of suit by old Company might otherwise serve to inhibit new financing.

(12) Re New Delhi’s 2840 to Department repeated Cairo 77⁷ we note Menon’s view that Hare–Nasser memorandum as presently amended is actually negotiated document since USG has kept principal interested parties informed of conversations. Without making reference to Menon you should take appropriate occasion to make clear once again to Fawzi that US discussing this matter with Egypt pursuant GOE invitation and without any mandate from any other users. For this reason US has not kept other users informed of substance these discussions beyond bare fact we making suggestions re manner in which six requirements might be given effect.

(13) USUN—You should inform SYG generally our reactions to his suggestions.

Dulles

1. Source: Department of State, Central Files, 974.7301/4–1857. Confidential; Priority. Drafted by De Palma, Sisco and Ford (L/UNA); cleared by Rountree, Raymond, Jones, Dillon, and Wilcox; and approved by Dillon who signed for Dulles. Repeated to USUN.
2. Hammarskjöld’s message is printed as Document 288.

3. Telegram 789 from USUN, April 16, transmitted the text of the following additional comments which Hammarskjöld made to Fawzi concerning the registration question on April 16:

   “The stand taken in this part of the message [paragraph 2B of Document 288] is tentative and has not been subject to any consultation. Dr. Fawzi certainly is well aware of the fact that it treats a controversial point. For that reason the suggestion in the text, if accepted by Egypt, should be checked from a strictly legal point of view. The “acceptances’ referred to in the text, and their nature and implications, can be judged only by Egypt, as I obviously have no direct knowledge of this side of the situation.

   “The decisive principle was given by Committee IV/2 of the San Francisco Conference and reads as follows:

   “‘The Committee has proposed the adoption of the term “agreement” in preference to the term “engagement” which may fall outside the strict meaning of the word “agreement”. An “agreement” must be understood as including unilateral engagements of an international character which have been accepted by the state in whose favour such an engagement has been entered into.’

   “In practice unilateral declarations accepting the obligation of the Charter by new members and of the declarations of the acceptance of the optional clause recognizing the compulsory jurisdiction of the International Court have been registered as instruments constituting international agreements.” (Department of State, Central Files, 974.7301/4–1657)

4. 3 Bevans 1155 and 1186–1187.
5. Document 277.
6. Document 280.
7. Telegram 2840 from New Delhi, April 17, contained a summary of a conversation among Menon, Ambassador Ellsworth Bunker, and other U.S. and Indian officials. (Department of State, Central Files, 974.7301/4–1757)