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Read the Full PDF Job Name:2222943 Date:15-04-22 PDF Page:2222943pbc.p1.pdf Color: PANTONE 122 C PANTONE 653 C THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH, established in 1943, is a publicly supported, nonpartisan research and educational organization. Its purpose is to assist policy makers, scholars, businessmen, the press and the public by providing objective analysis of national and international issues. Views expressed in the institute's publications are those of the authors and do not necessarily reflect the views of the staff, officers or trustees of AEI. Institute publications take tbree major forms: 1. Legislative and Special Aualyses--balanced analyses of current legislative proposals and special policy issues prepared with the help of specialists from the academic world and the fields of law and government. 2. Studies--in-depth studies and monographs about government programs and major national and international problems, written by independent scholars. 3. Rational Debates and Symposla--proceedings of debates, seminars, and conferences where eminent authorities with contrasting views discuss controversial issues. ADVISORY BOARD Paul W. McCracken, Chairman, Edmund Ezra Day University Professor of Business Administration, University of Michigan R. H. Coase, Professor of Economics, University of Chicago Milton Friedman, Paul S. Russell Distinguished Service Professor of Economics, University of Chicago Gottfried Haberler, Resident Scholar, American Enterprise Institute for Public Policy Research C. Lowell Harriss, Professor of Economics, Columbia University Paul G. Kauper, Henry M. Butzel Professor of Law, University of Michigan George Lenczowski, Professor of Political Science, University of California, Berkeley Robert A. Nisbet, Professor of Sociology, University of California, Riverside James A. Robinson, President, Maca/ester College Joseph T. Sneed, Dean, School of Law, Duke University George E. Taylor, Professor of Far Eastern History and Politics, Far Eastern & Russian Institute, University of Washington EXECUTIVE COMMI'ITEE Herman J. Schmidt, Chairman of the Board William J. Baroody, President William G. McClintock, Treasurer Richard J. Farrell Dean Fite SENIOR STAFF Sam S. Crutchfield, Assistant to the President for Administration Earl H. Voss, Assistant to the President for Special Programs Thomas F. Johnson, Director of Research Joseph G. Butts, Director of Legislative Analysis Anne BrunsdaJe, Director of Publications Waldo H. Dubberstein, Director of International Studies MAJOR MIDDLE EASTERN PROBLEMS IN INTERNATIONAL LAW Presented by the American Enterprise Institute for Public Policy Research as the eighth study within the framework of its Middle East Research Project, George Lenczowski, director. MAJOR MIDDLE EASTERN PROBLEMS IN INTERNATIONAL LAW EDITED BY MAJID KHADDURI American Enterprise Institute for Public Policy Research Washington, D.C. Distributed to the Trade by National Book Network, 15200 NBN Way, Blue Ridge Summit, PA 17214. To order call toll free 1-800-462-6420 or 1-717-794-3800. For all other inquiries please contact the AEI Press, 1150 Seventeenth Street, N.W., Washington, D.C. 20036 or call 1-800-862-5801. CDNTRIBUTDRS JOHN ANTHONY is assistant editor of the Middle East Journal. HERBERT DIXON is assistant professor, American University of Cairo, Egypt. MAJID KHADDURI, distinguished research professor, School of Advanced Interna­ tional Studies, The Johns Hopkins University, also is president of the Shaybani Society of International Law. MICHAEL VAN DUSEN is staff consultant to the Committee on Foreign Affairs, House of Representatives, U.S. Congress. QUINCY WRIGHT was professor emeritus of international law, University of Chicago, and also, in a distinguished career, served as president of the American Society of International Law. Foreign Affairs Study 3, June 1972 Price $4.00 per copy © 1972 by American Enterprise Institute for Public Policy Research, Washington, D.C. Permission to quote from or to reproduce materials in this publication is granted when due acknowledgment is made. Library of Congress Catalog Card No. L.C. 72-85050 To the students and alumni of the Middle East Studies program at the School of Advanced International Studies, The Johns Hopkins University who in pursuit of a deeper understanding of Middle Eastern Affairs have prepared themselves for a better world order CONTENTS PREFACE I. THE EVOLUTION OF MODERN SOVEREIGNTY AND COLLECTIVE SECURITY IN THE MIDDLE EAST ............ 1 Majid Khadduri The Islamic State ...................................... 1 Western vs. Traditional Concepts of International Law. 2 Former Ottoman Territories Gain Their Independence 3 The Independence of Egypt and Sudan ..................... 6 Regional Security Pacts ................................. 8 The Baghdad Pact and CENTO 9 The Arab League .................................... .. 10 II. THE PALESTINE CONFLICT IN INTERNATIONAL LAW 13 Quincy Wright, with the assistance of Majid Khadduri Historical Background 13 Meaning of the Security Council Resolution ................. 18 Conclusion ......................................... .. 34 III. JERUSALEM, THE OCCUPIED TERRITORIES, AND THE REFUGEES.................................... 37 Michael Van Dusen Jerusalem: Background 37 The Occupied Territories in International Law .......... .. 42 Claims Relating to Jerusalem and the Occupied Territories ......................... .. 49 The Palestine Refugees 54 IV. PASSAGE THROUGH INTERNATIONAL WATERWAyS....... 65 Majid Khadduri and Herbert Dixon The Turkish Straits " 65 The Suez Canal " 72 The Straits of Tiran and the Gulf of Aqaba ................ .. 78 Bab el Mandeb ...................................... .. 86 Shatt al-Arab 88 V. OTHER TERRITORIAL AND JURISDlCfIONAL ISSUES. '" .,. 95 Majid Khadduri, Herbert Dixon and John Anthony The Bahrain Islands 95 Egypt and the Sudan ................................. .. 105 The River Jordan and Its Tributaries 108 Allocation of the Nile Waters. .......................... .. 112 The Euphrates River ................................. .. 115 The Cyprus Problem ................................. .. 121 Air Navigation ...................................... .. 126 VI. CONCLUSION.. ....................................... .. 133 Majid Khadduri LIST OF MAPS Jordan Valley. ........................................... .. 15 Turkish Straits .......................................... .. 67 Suez Canal ............................................. .. 73 Suez Canal and Aqaba " 79 Bab el Mandeb 87 Shatt aI-Arab ........................................... .. 89 Bahrain and the Persian Gulf States 97 Egypt-Sudan Nile ........................................ .. 106 Middle East and the Nile .................................. .. 113 Euphrates Basin ......................................... .. 116 INDEX 137 PREFACE he Middle East is renowned as the birthplace of the oldest legal codes in the Tworld. These codes-Jewish, Christian and Islamic, as well as the ancient Egyp­ tian, Babylonian and Persian-were founded on religion and held to be sanctioned by God. In them, the spirit of the Middle Eastern peoples may be said to be enshrined. Seen as originating from sacred sources, the law held a high place in the eyes of peoples who lived under divine guidance. Small wonder that the ancient sages were viewed as prophets communicating not only God's will and justice but also His divine law. Although this law-at least certain parts of it-has been replaced or superseded by modern legislation, its prestige is still very high in that part of the world and ancient legal traditions continue to provide the basis for judicial decisions. In modern times the Middle East has been confronted with an influx of foreign ideas and pressures which have undermined ancient legal heritages. Moreover, the conflicts resulting from clash of foreign and domestic interests have often been approached on political rather than legal grounds. As a result, some of the problems that have arisen under the impact of foreign pressures have become too complex to solve by legal methods. In addition, the task of separating the political and legal elements of these problems has become exceedingly difficult. It is not our purpose in this volume to provide a highly technical and exhaustive treatment of all contemporary Middle Eastern legal problems. Rather, we present here a survey that seeks to elucidate the juridical and diplomatic elements of major problems within the framework of international law and to indicate possibil­ ities for peaceful methods of settlement. This being the case, we do not address problems arising from oil concessions. Further, it should be noted that this volume is designed with the general reader in mind, not the specialist. Finally, the system of transliteration used here is the one followed in the press and not the one to which the editor has conformed in his other published works. The editor and contributors wish to thank all who helped in the preparation of this volume. In particular, they wish to acknowledge the contribution of the late Professor Quincy Wright who prepared the main part of Chapter 2, on which he was working at the time of his death in October 1970. Professor Wright was the dean of American international lawyers and a true friend of peace in the Middle East throughout a distinguished career that spanned half a century. In addition, a special note of appreciation is due to David Finnie, a member of the New York Bar, who served as a special consultant on this volume and who provided invalu­
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