CHAPTER
IV – Historic Title and Other Historical Considerations
114.
Article 2 of the Agreement for Arbitration enjoins the Tribunal to decide
territorial sovereignty in accordance with applicable international law
"and on the basis, in particular, of historic title." The Tribunal
has thus paid particular attention both to the arguments relating to ancient
titles and reversion thereof proposed by Yemen and arguments relating to
longstanding attribution of the Mohabbakahs to the colony of Eritrea and to
early establishment of titles by Italy pronounced by Eritrea. An important
element of Yemen's case is that of an asserted "historic title" to
the Islands, and this is indeed reflected in the very language of both the
Agreement on Principles and the Arbitration Agreement. Thus the Tribunal fully
recognises that the intention of Article 2 is that, among all the relevant
international law, particular attention should be accorded to such elements.
Notwithstanding its analysis of how the principles, rules and practices of
international law generally bear on its decision on territorial sovereignty,
the Tribunal has had the most careful regard to historic titles as they bear on
this case.
115.
For its part, Eritrea makes no argument for sovereignty based on ancient title,
in spite of the undeniable antiquity of Ethiopia. Rather, Eritrea in part
asserts an historic consolidation of title on the part of Italy during the
inter-war period that resulted in a title to the Islands that became
effectively transferred to Ethiopia as a result of the territorial dispositions
after the defeat of Italy in the Second World War. This argument will naturally
fall to be dealt with in the chapters below dealing with the inter-war periods
and the armistice and related proceedings at the end of the Second World War.
116.
Yemen has asserted an historic or "ancient title" running back in
time to the middle ages, under which the islands are asserted to have formed
part of the Bilad el-Yemen. This ancient title predated the several
occupations by the Ottoman Empire, asserts Yemen, and reverted to modern Yemen
after the collapse of the Ottoman Empire at the end of the First World War.
117. It
is thus only Yemen that has raised substantial questions of an
"historic" or "ancient" title that existed before the
second Ottoman occupation of the nineteenth century; it is therefore to an
appreciation of the historical background necessary for an understanding of that
claim to an early title that the Tribunal now turns. This chapter will consider
the ways in which the overall history of the Arabian peninsula must be
understood in then contemporary legal terms, as a preface to the Tribunal's
ultimate conclusion on the legal questions concerning "historic
titles". In addition, this chapter will address Yemen's theory of
"reversion," which is critical to any decision as to the legal effect
of an "historic title."
118.
Yemen's arguments on historic and ancient title touch upon several important
historical considerations. One relates to the identity of historic Yemen and
whether it comprised the islands in dispute. A second questions the existence
of a doctrine of reversion recognized in international law, and a third relates
to the place of continuity within a concept of reversion of ancient title.
Those claims advanced by Eritrea that are based on both history and
international law are addressed elsewhere. This chapter further addresses such
important historical matters as the tradition of joint use of the Islands'
waters by fishermen from both sides of the Red Sea, and the Ottoman allocation
of administrative jurisdiction between the two coasts.
119.
Yemen's claim is based essentially on an "ancient" or
"historical" title pursuant to which the Imam's inherent and
inalienable sovereignty extended over the entirety of what historically has
been known as Bilad el-Yemen, which existed for several centuries and is
alleged by Yemen to have included the southern Red Sea islands. This
sovereignty is further characterized by Yemen as having remained unaffected by
and having survived the Ottoman annexation of Yemen, in spite of the Sublime
Porte's having declared Yemen to be one of the vilayets falling under
Ottoman rule.
120.
The arguments advanced by Yemen in this respect must be evaluated within the
historical and legal context that prevailed during the relevant period,
extending from the end of the 19th Century until the dissolution of
the Ottoman Empire.
121.
The particularity of the relationship between the Ottoman Empire and Yemen
should be taken into account as an important historical factor. In spite of the
Treaty of Da'an, concluded in 1911, which granted the Imam of Yemen a greater
degree of internal autonomy, he remained a suzerain acting within Ottoman
sovereignty until the total disintegration of the Ottoman Empire and the loss
of all its Arabian possessions, including the vilayet of Yemen.(9) It was only in 1923, by virtue of Article 16 of the
Treaty of Lausanne, that the Ottoman Empire not only recognized the
renunciation of all its sovereignty rights over Yemen, but explicitly renounced
its sovereign title over the islands that had previously fallen under the
jurisdiction of the Ottoman wali in Hodeidah.
122.
The territorial extent of Imamic Yemen as an autonomous entity must be
distinguished from that of the Ottoman vilayet of Yemen. During the
entire period from the second half of the 19th Century until 1925,
the Imam of Yemen had neither sovereignty nor jurisdiction over the Tihama and
the Red Sea coasts. Under his agreements with the Ottoman sultan, the Imam
administered an exclusively land-locked territory, limited to the high
mountains. The Ottoman wali exercised exclusive jurisdiction over the
coasts until 1917. Thereafter, the coasts came under the control of the Idrisi,
a local tribal ruler supported first by the Italians, and later by the British
Government. The coast came under the Imam's rule only in 1926. As will be seen
later, this fact has negative legal implications for the "reversion"
argument advanced by Yemen, as well as for the application of certain other
rules of international law, including the concept of ancient "historic
title" in its full classical sense.
123.
There can be no doubt that the concept of historic title has special resonance
in situations that may exist even in the contemporary world, such as
determining the sovereignty over nomadic lands occupied during time immemorial
by given tribes who owed their allegiance to the ruler who extended his
socio-political power over that geographic area. A different situation exists
with regard to uninhabited islands which are not claimed to be falling within
the limits of historic waters.
124. In
the present case, neither party has formulated any claim to the effect that the
disputed islands are located within historic waters. Moreover, none of the
Islands is inhabited on other than a seasonal or temporary basis, or even has
the natural and physical conditions that would permit sustaining continual human
presence. Whatever may have been the links between the coastal lands and the
islands in question, the relinquishment by the Ottoman Empire of its
sovereignty over the islands by virtue of Article 16 of the 1923 Treaty of
Lausanne (discussed in greater detail in Chapter V) logically and legally
adversely affects any pre-existing title.
125. It
was recognized in the course of the oral hearings that, by the law in force at
the time, Ottoman sovereignty over the regions in question was lawful. The fact
that Yemen was not a party to the Treaty of Lausanne, and that it perceived
both the British and the Italians as having been usurpers in the Red Sea, does
not negate that legal consequence. It has not been established in these
proceedings to the satisfaction of the Tribunal that the doctrine of reversion
is part of international law. In any event, the Tribunal concludes that on the
facts of this case it has no application. No "reversion" could
possibly operate, since the chain of titles was necessarily interrupted and
whatever previous merits may have existed to sustain such claim could hardly be
invoked. During several decades, the predominant role was exercised by the
western naval powers in the Red Sea after its opening to international maritime
traffic through the Suez Canal, as well as through the colonization of the
southern part of the Red Sea on both coasts. An important result of that
hegemony was the maintenance of the status quo imposed after the First World
War, in particular that the sovereignty over the islands covered by Article 16
of the Lausanne Treaty of 1923 remained indeterminate at least as long as the
interested western powers were still in the region. As long as that colonial
situation prevailed, neither Ethiopia nor Yemen was in a position to
demonstrate any kind of historic title that could serve as a sufficient basis
to confirm sovereignty over any of the disputed islands. Only after the
departure of the colonial powers did the possibility of a change in the status
quo arise. A change in the status quo does not, however, necessarily imply a
reversion.
126.
This should not, however, be construed as depriving historical considerations
of all legal significance. In the first place, the conditions that prevailed
during many centuries with regard to the traditional openness of southern Red
Sea marine resources for fishing, its role as means for unrestricted traffic
from one side to the other, together with the common use of the islands by the
populations of both coasts, are all important elements capable of creating
certain "historic rights" which accrued in favour of both parties
through a process of historical consolidation as a sort of "servitude
internationale" falling short of territorial sovereignty.(10) Such historic rights provide a sufficient legal
basis for maintaining certain aspects of a res communis that has existed
for centuries for the benefit of the populations on both sides of the Red Sea.
In the second place, the distinction in terms of jurisdiction which existed
under the Ottoman Empire between those islands administered from the African
coast and the other islands administered from the Arabian coast constitutes a
historic fact to be taken into consideration.
127.
According to the most reliable historical and geographical sources, both
ancient and modern, the reported data clearly indicate that the population
living around the southern part of the Red Sea on the two opposite coasts have
always been inter-linked culturally and engaged in the same type of socio-economic
activities. Since times immemorial, they were not only conducting exchanges of
a human and commercial nature, but they were freely fishing and navigating
throughout the maritime space using the existing islands as way stations (des
îles relais) and occasionally as refuge from the strong northern winds.
These activities were carried out for centuries without any need to obtain any
authorizations from the rulers on either the Asian or the African side of the
Red Sea and in the absence of restrictions or regulations exercised by public
authorities.
128.
This traditionally prevailing situation reflected deeply rooted cultural
patterns leading to the existence of what could be characterized from a
juridical point of view as res communis permitting the African as well
as the Yemeni fishermen to operate with no limitation throughout the entire
area and to sell their catch at the local markets on either side of the Red
Sea. Equally, the persons sailing for fishing or trading purposes from one
coast to the other used to take temporary refuge from the strong winds on any
of the uninhabited islands scattered in that maritime zone without encountering
difficulties of a political or administrative nature.(11)
129.
These historical facts are witnessed through a variety of sources submitted in
evidence during the arbitral proceedings. A comprehensive evaluation of the
evidence submitted by both Parties reveals the presence of deeply-rooted common
patterns of behaviour as well as the continuation, even in recent years, of
cross-relationships which are marked by eventual recourse to professional
fishermen's arbitrators (aq'il) in charge of settling disputes in
accordance with the local customary law. Such understanding finds support in
the statements attributed to fishermen from both coasts of the Red Sea, taken
as a whole, which have been submitted by both Parties.
130.
The socio-economic and cultural patterns described above were perfectly in
harmony with classical Islamic law concepts, which practically ignored the
principle of "territorial sovereignty" as it developed among the
European powers and became a basic feature of 19th Century western
international law.(12)
131.
However, it must be noted that the Ottoman Empire, which directly or through
its suzerains governed the quasi-totality of the countries around the Red Sea
during the first half of the 19th Century including Bilad El-Yemen and
what became known thereafter as Eritrea, started after the end of the Crimean
War in 1856 to abandon the communal aspects of the Islamic system of
international law and to adopt the modern rules prevailing among the European
concert of nations to which the Sublime Porte became a fully-integrated party
during the Berlin Congress of 1875. According to this new modern international
law, the legal concept of "territorial sovereignty" became a
cornerstone for most of the state powers, and the situation in the Red Sea
could no longer escape the juridical consequences of that new reality.
132.
Hence, it is understandable that both Parties are in agreement that the islands
in dispute initially all fell under the territorial sovereignty of the Ottoman
Empire. Within the exercise of the Ottoman's sovereignty over these islands, it
has to be noted that the Sublime Porte granted to the Khedive of Egypt the
right to administer the Ottoman possessions (vilayet) on the African
Coast which at present form "the State of Eritrea", and this
delegation of power included jurisdiction over islands off the African Coast,
including the Dahlaks and eventually the Mohabbakahs.
133.
The sovereignty of the Ottoman Empire over both coasts of the Red Sea is
undisputed up to 1880 and this remained the case with regard to the eastern, or
Arabian, coast until the First World War. Among the various documents
introduced in support of this historical fact, Eritrea has submitted the
French-language version of a memorandum dated 6 December 1881, issued by the
Egyptian Khedival Ministry of Foreign Affairs, which indicates that in May
1871, Italy recognised that the Ottoman flag had been flying since 1862 over
the African Coast at a point going beyond the south of Assab. The Egyptian
memorandum added that until 1880 the Egyptian Government believed the
affirmation of the Italian Government that the Italian presence had been
essentially of private and commercial character. Consequently, the entire
African coast and the islands off that coast remained until then under the
Khedive's jurisdiction. At the same time, all other islands were, and continued
to be, under the jurisdiction of the Ottoman wali stationed in Hodeidah
and appointed by the Sublime Porte.
134.
Hence, a clear distinction has to be made between the Red Sea islands which
were under jurisdiction of the Khedive of Egypt acting on behalf of the Ottoman
Empire until 1882 and the other Red Sea islands which remained under the
Ottoman vilayet of Yemen until the dissolution of the Empire after the
First World War.
135. A
British Foreign Office Memorandum dated 10 June 1930, relying expressly on the
Hertslet memorandum of 1880, indicates that the Khedive of Egypt exercised
jurisdiction off the African coast over the "Mohabakah Islands, Harbi and
Sayal". With regard to the other category, the British Memorandum describes
"the Great Hanish group as being off the Arabic Coast and consequently
under the sovereignty and within the exclusive jurisdiction of the
Sultan".
Paragraph
16 of the same Memorandum emphasised that:
Great
Hanish, Suyal Hanish, Little Hanish, Jebal Zukur, Abu Ail, being nearer to the
Arabian Coast, appear before the war to have been considered as under both the
jurisdiction and sovereignty of Turkey.
136.
Furthermore, Eritrea has submitted Italian Colonial Ministry documents,
including a note dated October 11, 1916, entitled "The Red Sea
Islands", reflecting the findings of an inquiry conducted on the islands
themselves. After devoting Part I to "Farsan" and Part II to
"Kameran", Part III of the note deals with "the other
islands", which included what is referred to as "Gebel Zucur".
This heading included not only the "group of 12 sizeable rocks", but
also "the two great and small Hanish islands". With regard to these
islands, it was noted that "[t]he Ottoman authorities kept a small
garrison of 40 there under the command of a Mulazim to monitor the movement of
importation vessels to the Yemen Coast from Gibut.", and further that,
"faced with the difficulties of supplying water and victuals on account of
a shortage of resources, the Ottoman authorities withdrew the garrison."
After the bombardment of Midi by Italian warships, the Ottoman authorities are
said to have "restored the garrison in 1909 and increased the number of
askaris to 100."
137.
These Italian colonial documents, which confirm Ottoman sovereignty over the
Hanish-Zuqar islands and assert that they continued in 1916 to be administered
by the vilayet of Yemen, are consistent with the views expressed in a
telegram addressed by the Governor of the Eritrean Colony to the Italian
Minister of the Colonies and transmitted on October 18, 1916 to the Italian
Minister of Foreign Affairs. A Foreign Ministry note entitled: "The Red
Sea Islands", dating back to July 31, 1901, is attached thereto as
"Appendix II". The 1901 Note bases the division of the islands into
three groups:
The
most northerly islands, which are of little or almost no relation to the Colony
of Eritrea on account of the distance, those facing Massaua and the most
southerly islands which are opposite the Eritrean Coasts of Beilul and Assab.
Almost all are found on the eastern coast of the Red Sea, except the Dahalac
islands, which are under our rule, and a few others of much less importance.
With
regard to the second group, the Italian note indicates:
Leaving
aside the archipelago of the Dahalac islands B
which is under the sovereignty of Italy and which include the biggest islands
in the Red Sea B Cotuma, Diebel Tair and
Camaran are notable in this second group of the archipelago; all of which under
Turkish rule.
The
note explicitly characterizes as "Turkish": "Cotuma",
"Djebel. . . called Gebel Sebair" and "Camaran".
Turning to the third group, the 1901 Italian note refers to a:
. . .
group of islands known as Hanish or Harnish (Turkish). It comprises the island
of Gebel Zucar, large and small Hanish islands and the other minor islands of
Abu-ail, Syul-Hanish, Haycoc and Mohabbach, and a few islets amounting to large
rocks.
138.
Contemporary British documents also reflect the view that the islands in
question, with the exception of Mohabbakahs, formed part of the vilayet
of Yemen, and appear to link their future disposition to this historical
attachment to the Arabian Coast.
139. A
Foreign Office Memorandum dated 15 January 1917 and entitled "Italy and
the Partition of the Turkish Empire" provides in paragraph 38:
Lastly,
everyone seems to be agreed that the islands in the Red Sea which were
previously under Turkish sovereignty pass naturally to the Arab State, though
some special regime will be necessary in Kamaran Island in view of the pilgrim
traffic.
140.
Lord Balfour, in a 13 March 1919 letter to Lord Curzon, indicated that the
solution envisaged for "Abu Ail, Zabayir and Jebel Teir" as well as
"Kamaran, Zukur and the Hanish Islands (Great Hanish, Little Hanish and
Suyul Hanish group)" was either "to annex them" to the British
Empire or "to claim that they should be handed over to some independent
Arab rulers on the mainland other than the Imam of Sanaa or the Idrisi".
141.
Lord Curzon's letter addressed to Lord Balfour on 27 May 1919 linked the
subject of any handover to Arab rulers with the essentially political question
of the area's future, "the whole question of the future of the Red Sea
Islands" was to be considered "ultimately bound with that of the
future status of Arabia". Therefore, Lord Curzon indicated that:
[t]he
policy of his Majesty's Government should in the first place be directed
towards the recognition by the High Contracting Parties of the fact that the
islands form a part of the mainland and will accordingly become the property of
the Arabian rulers concerned; and that these rulers are to be in special
relation with His Majesty's Government.
142. As
will be expanded upon later, the allocation of administrative powers over the
Red Sea islands, whether by the Ottoman Empire acting as sovereign power on
both coasts or only as exercising jurisdiction from the Arabian Coast alone,
represents an historic fact that should be taken into consideration and given a
certain legal weight.
143.
Before leaving this study of the historical considerations, it is necessary to
recall the question of ancient or historic Yemeni title, to which Yemen gave
such crucial importance in the presentation of its case. It has been explained
in this chapter that there are certain historical problems about this argument.
First, there is the historical fact that medieval Yemen was mainly a mountain
entity with little sway over the coastal areas, which were essentially
dedicated to serving the flow of maritime trade between, on the one hand, India
and the East Indies, and on the other, Egypt and the other Mediterranean ports.
Second, the concept of territorial sovereignty was entirely strange to an
entity such as medieval Yemen. Indeed, the concept of territorial sovereignty
in the terms of modern international law came late (not until the 19th
Century) to the Ottoman Empire, which claimed, and was recognized as having,
territorial sovereignty over the entire region.
144.
But there are other problems with the Yemeni claim to an ancient title, in
particular the effect of Article 16 of the Treaty of Lausanne and the necessity
of establishing some doctrine of continuity of ancient title and of reversion
at the end of the Ottoman Empire. This subject is explored in detail in the
following chapter,
and the final view of the Tribunal on this question of ancient title is
expressed in Chapter X.
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Notes -
Chapter IV
9. See,
in particular, John Baldry, One Hundred Years of Yemeni History: 1849-1948,
in L'Arabie du Sud Vol. II at 85 (J. Chelhod et al., eds.1984); Roger Joint
Daguenet, Histoire de la Mer Rouge: de Lesseps à nos jours, 113-116, 186-190,
240-241(1997).
10. See
in this respect, Yehuda Z. Blum, Historic Rights, in 7 Encyclopedia of
Public International Law 120 et seq.; and Historic Titles in International
Law 126-129 (1965)
11. See
in particular, Charles Forster, The Historical Geography of Arabia, Vol. 1 at
113, Vol. II at 337 (1984) (first published in 1844); Joseph Chelhod et al.,
L'Arabie du Sud - Histoire et Civilisation, Vol. I, at 63, 67-69, 252-255
(1984); Roger Joint Daguenet, Histoire de la Mer Rouge: De Moïse a Bonaparte
20-24, 86-87 (1995); and Yves Thoraval et al., Le Yemen et la Mer Rouge 14-16,
17-20, 35-37, 43-47, 51-54 (1995).
12. See
in particular, A. Sanhoury, Le Califat, 22, 37, 119, 163, 273, 320-321 (1926);
Majid Kadouri, Islamic Law, 6 Encyclopedia of Public International Law,
227 et seq.; and Ahmed S. El Kosheri, History of Islamic Law, 7
Encyclopedia of Public International Law, 222 et seq.