The second batch of documents from the Attorney General’s 1956 Suez file (reproduced with permission of the image library of the National Archives) consists of the Lord Chancellor, Lord Kilmuir’s reply to the Attorney, dated October 15 1956; and his memorandum setting out his own opinion that the use of force over Suez would be legal.
Kilmuir thanks the Attorney for his memo, but says
I cannot agree with all your conclusions. I have therefore enlarged it to cover my views and send a copy for the consideration of the Solicitor General and yourself.
He seems to mean he’s rewritten the Attorney’s memo to reflect his, opposite, view.
In his memorandum Kilmuir argues first (paragraph 3) that the Kellogg-Briand Pact permits resort to war in self-defence and to enforce international obligations.
The nub of the question
he says (in the erroneously numbered second paragraph “3”)
is what is covered by self-defence to-day.
Kilmuir argues (para. 4) that force may be used in self-defence if a state’s rights are illegally and forcibly denied and no other remedy is available; he also argues for pre-emptive self-defence.
Kilmuir accepts that Egypt had neither used nor threatened force in breach of international law but argues (para. 7) that
It cannot be right, or good international law, that international territory could be annexed by invasion and that the countries affected are powerless to act if the use of the veto has prevented the Security Council directing any method for righting the wrong.
At para. 8, Kilmuir argues that the international character of the Suez canal was admitted by Egypt in the 1888 Convention of Constantinople—but someone at the Attorney General’s chambers points out in a handwritten marginal note that Egypt was not a party to that agreement. Those notes are in fact one of the main points of interest in the document, showing that Kilmuir’s view was met with deep legal scepticism in the Attorney’s team.
Kilmuir’s argument concludes by comparing Nasser’s behaviour to Hitler’s over the Rhineland:
Just as the Rhineland was re-militarised, the Canal was de-internationalised. Egypt … has been guilty of a crime of aggression … If Egypt refuses to restore [the canal’s international] character, then the nations affected can use force to defend it.