CHAPTER
V – The Legal History and Principal Treaties and Other Legal Instruments
Involved; Questions of State Succession
145.
The series of major instruments engaging, in various combinations, the maritime
users of the Red Sea form an important backdrop to the legal claims of the
parties in this arbitration. Their binding nature or otherwise, their status as
directly legally significant or as res inter alios acta, and the meaning
of their terms, have all engaged the attention of the Parties.
146.
The so-called Treaty of Da'an of 1911 was in fact an internal instrument by
which the Imam of Yemen obtained for himself greater internal powers of
autonomy within the Ottoman Empire. However, sovereignty over all the Ottoman
possessions, including the islands in dispute, remained vested in the Empire
itself until it was legally divested of its Arabian possessions after the First
World War.
147.
The Principal Allied Powers (the British Empire, France, Italy and Japan)
agreed at Mudros an armistice with Turkey on 30 October 1918. The 1918
Armistice of Mudros was a vehicle for ending hostilities and indeed for
permitting belligerent occupation. It was not an instrument for the transfer of
territory. It is not disputed that immediately before the signing of the
Armistice of Mudros title to all the islands was Ottoman. It was further agreed
in these proceedings that Ottoman title had been secured by military
occupation, which was lawful by reference to the international law of the day.
An essential component of sovereign title is the right to alienate. Just as the
Ottoman Empire would have been free to cede title to the islands to a third
state at any time during the period 1872 to 1918, so it still had the legal
right itself to determine where title should go after 1918. Its freedom in this
regard was curtailed not by the operation of a doctrine of reversion which
would spring into operation upon any divesting of title by Turkey, but by the
realities of power at the end of the War.
148. It
cannot be the case therefore that title passed in 1918 to the Imam. Accordingly
the Tribunal is not able to accept that sovereignty over the islands in dispute
reverted to Yemen.
149. It
was intended that a treaty of peace, containing the future settlement of
Turkish territory in Europe and elsewhere, should follow the 1918 Armistice of
Mudros. To that end, the Principal Allied Powers (forming together with
Armenia, Belgium, Greece, the Hedjaz, Poland, Portugal, Roumania, the Serb-Croat-Slovene
State and Czechoslovakia the "Allied Powers") on the one hand, and
Turkey on the other, signed a Treaty of Peace at Sèvres on August 10, 1920. The
long and detailed provisions contained but a single clause that might have had application
to the islands in the Red Sea in dispute in the present case. Article 132
provided:
Outside
her frontiers as fixed by the present Treaty Turkey hereby renounces in favour
of the Principal Allied Powers all rights and title which she could claim on
any ground over or concerning any territories outside Europe which are not
otherwise disposed of by the present Treaty.
Turkey
undertakes to recognize and conform to the measures which may be taken now or
in the future by the Principal Allied Powers, in agreement where necessary with
third Powers, in order to carry the above stipulation into effect.
150. In
the event, the Treaty of Sèvres was not ratified by Turkey and did not enter
into effect. Accordingly, title to the Red Sea islands in dispute must thus
have remained with Turkey - even though it knew that it would in due course be
required to divest itself of such title. Indeed, Great Britain had been
occupying certain islands since 1915 to forestall Italian activity, and had
been displaying the flag but without claiming title.
151.
The initial position of Great Britain at the peace talks at Sèvres was that the
islands lying east of the South West Rocks off Greater Hanish island should be placed
under the sovereignty of the independent chiefs of the Arabian mainland. The
British appreciated that reasons of history and geography would make the Arab
mainland rulers strong claimants when Turkey finally relinquished title and
future sovereignty had to be determined, and indeed that their desire to
exclude any European Power from establishing themselves on the east coast would
make the passing of title to a "friendly Arab ruler" a desirable
outcome.(13) But that is a different matter from
title passing automatically by reversion from Turkey to Yemen. In the event, a
different proposal was agreed in Article 132 of the Treaty of Sèvres.
152.
Much has been made by Yemen of the fact that throughout the years that ensued,
the Imam protested to Great Britain that "the islands" had not been
returned. These "islands" were not specified. While this may indeed
support allegations of the existence of a Yemeni claim, there is no evidence
that it was either intended, or interpreted, to include the islands in dispute
in the present case. Furthermore, a state's protests about the refusal of
others to allow it to exercise effective control over what it maintains in its
own territory have little legal significance if the protesting state does not,
in fact, have title. More relevant is the fact that Turkey undoubtedly had
title in 1918 and failed to divest itself in 1920. The instrument by which it
did finally divest itself was the Treaty of Lausanne in 1923.
153.
The Imam was not a party to the Treaty of Lausanne and in that technical sense
the Treaty was res inter alios acta as to Yemen. If title had lain with
Yemen at that time, the parties to the Treaty of Lausanne could not have
transferred title elsewhere without the consent of Yemen. But, as indicated
above, title still remained with Turkey. Boundary and territorial treaties made
between two parties are res inter alios acta vis-à-vis third parties.
But this special category of treaties also represents a legal reality which
necessarily impinges upon third states, because they have effect erga omnes.
If State A has title to territory and passes it to State B, then it is legally
without purpose for State C to invoke the principle of res inter alios acta,
unless its title is better than that of A (rather than of B). In the absence of
such better title, a claim of res inter alios acta is without legal
import.
154.
These are the legal realities with which an analysis of the Treaty of Lausanne
must be approached. Two further realities are, as stated just above, that the
Imam had asserted claims during this period though without specificity as to
which particular islands his claims attached, and that Italy, by its conduct,
had also revealed its aspirations for the islands. The formulation of the Treaty
of Lausanne was undoubtedly agreed upon in full knowledge both of the position
of the Imam and the ambitions of Italy.
155.
Great Britain (which had briefly in 1915 sent troops to Jabal Zuqar and the
Hanish islands) had been interested at one stage in an amendment to Article 132
of the Treaty of Sèvres which would have added to the rather general Turkish
renunciation of all "rights and title" a specific clause which
referred to "any islands in the Red Sea". As the first paragraph of
this proposal referred to rights and title in the Arabian peninsula, it may be
assumed that Great Britain thought the islands were not encompassed in that
reference, but that some particular provision was needed if they too were to
pass out of Turkish title. The Treaty of Lausanne, signed in 1923, did make
reference to islands as well as to territories though by now the earlier
proposal that underlay the abortive Treaty of Sèvres (that Turkish title should
pass to the Allied Powers,(14) whether as a condominium
or otherwise) was dropped.
156.
Article 6 provided that, in the absence of provisions to the contrary, islands
and islets lying within three miles of the coast are included within the
frontier of the coastal state. While some of the Dahlaks and some of the Assab
islands would have fallen outside the three-mile limit, they were generally
regarded as appurtenant to the African littoral and thus belonging to Italy.
The Mohabbakahs (the nearest being almost six miles away) and the Haycocks did
not fall within the provisions, though, as will be shown below, Italian jurisdiction
over them had been acknowledged. Whether or not the Mohabbakahs are islets
rather than islands, and notwithstanding that Article 6 refers to islets,
whereas Article 16 did not, the Mohabbakahs were not islets transferred to
Italian title by virtue of Article 6.
157.
Article 15 provided for the renunciation, in favour of Italy, of certain
specified and named islands in the Aegean. Article 16 provided as follows:
Turkey
hereby renounces all rights and title whatsoever over or respecting the
territories situated outside the frontiers laid down in the present Treaty and
the islands other than those over which her sovereignty is recognized by the
said Treaty, the future of those territories and islands being settled or to be
settled by the parties concerned . . .
158.
Although "territories" and "islands" are separately
mentioned, their treatment under Article 16 is identical. These phrases
presumably covered also those islets not transferred by operation of Article 6.
What was intended by "the parties concerned" is not wholly clear,
but, given the knowledge of the claims of the Imam, as well as the hopes of
Italy, and given further that the phrase used elsewhere in the Treaty is
"The High Contracting Parties", it is not unreasonable to conclude
that what was envisaged was a settlement of the matter in the future by all
those having legal claims or high political interest in the islands, whether
Treaty of Lausanne High Contracting Parties or not. A 1923 British Foreign
Office document acknowledges, for example, the likelihood of France, Italy and
Yemen being "interested parties". This interpretation accords with
the assurances that Italy gave the Imam, at the time of the signature of the 1938
Anglo-Italian Agreement, that Yemen's "interests" had been "kept
in mind", and with the working assumptions of the British Board of Trade
with respect to the 1923 Treaty of Lausanne, that the "local Arab rulers
on the mainland might put in their claim to be "'interested'
parties".
159. It
is not certain whether in 1923 either Great Britain or Italy would have
regarded the reference to islands in the Red Sea over which Turkey had title as
including the Haycocks. This was because Italian jurisdiction in those islands
had already been acknowledged. Until the very end of the 19th
century the Ottomans treated those living in Eritrea as being of Turkish
nationality and subject to Ottoman jurisdiction. But certain accommodations
were being reached. Italy had in 1883, 1887 and 1888 entered into a series of
agreements with local Eritrean leaders. The Treaty of 1888 with the King of
Shoa provided that "Italy will protect on the sea coast the safety of the
Danakil littoral" (Art. VIII) and that "Italy will watch over the
security of the sea and the Colony" (Art. IX). By Article V, the Sultan
Mohamed Hanfari ceded to Italy "the use of the territory of Ablis".
In 1887 a further treaty, which seems to have no special relevance for the
matters at issue, was signed. In 1888 a Treaty of Friendship and Commerce
between Italy and the Head of the Danakils provided that Italy would guarantee
the security of the Danakil coast. Further "The Sultan Mohamed Anfari
recognises the whole of the Danakil coast from Afila to Ras Dumeira as an
Italian possession" (Article 111). As a British Foreign Office Memorandum
in 1930 was later to put it ". . . the Italian rights of surveillance
drifted into what was tantamount to territorial rights to the littoral"
and Great Britain, having made no protest, "could not now fall back upon
the terms of the Agreement of May, 1887."
160.
Exploring the possibility of a new shipping route on the African side of the
Red Sea, and the need to light it, the British government wrote to the Italian
government in 1892 referring to the proposed sites: North East Quoin (or
alternatively Rahamet, on the coast), South West Rocks, "one of the
Haycocks" and Harbi B and suggested that under Article 111 of the 1888
Treaty they appeared to be within the jurisdiction of Italy (though doubt was
expressed internally about South West Rocks). It seems likely that this reading
of Article 111 of the 1888 Treaty B which is not on its face self-evident B was
influenced by the Hertslet memorandum of 1880 and its attached list . That Memorandum
spoke of the western coast of the Red Sea as being under the jurisdiction of
the Khedive of Egypt and the east coast as under the jurisdiction of the
Sultan. Hertslet suggested that "the various islands and reefs in close
proximity to the coast, and which are enumerated in List 1, would appear to be
under" the Khedive's jurisdiction. List 1 includes "Harbi",
White Quoin Hill, and "Mah-hab-bakah". The "Jibbel Zukur",
"Little Harnish" and "Great Harnish" groups are attributed
to the Eastern coast. "Haycock" appears twice within the list of
islands appurtenant and in proximity to the east coast. As to the islands
"near the centre" (listed by Hertslet as "Jibbel Teer" and
the "Zebayar Group"), including a further Haycock, Hertslet in 1880
thought that "jurisdiction over the islands . . . would appear to be
doubtful; but the sovereignty over them no doubt belongs to the Sultan."
161. It
must also be noted that others within the British diplomatic service placed
less weight on proximity.(15) Italy was asked
whether it did indeed claim jurisdiction. Italy confirmed that "the places
mentioned" were subject to its own jurisdiction. British recognition of
Italian jurisdiction over the Haycocks (and presumably a fortiori of the
Mohabbakahs) occurred in 1892. In 1930, internal British memoranda speak of
Italian sovereignty over South West Haycock (or sometimes, simply "the
Haycocks") as having occurred in June 1892. But it was added
"[e]xcept as against ourselves, the Italian claim to sovereignty
over these islands does not appear to be very strong" (emphasis added).
162.
Later evidence indicates that Great Britain regarded the issue of sovereignty
as unsettled, even if Italian jurisdiction was acknowledged. Both the
Mohabbakahs and the Haycocks would thus in 1923 be regarded by the Lausanne
Treaty parties as Turkish territory falling, as to sovereignty, within the
reach of Article 16, notwithstanding intermittent acceptance that they were
under the jurisdiction of Italy.
163.
The situation is clearer as regards Abu Ali, Jabal al-Tayr and the Zubayr
group. They were envisaged at the time as having belonged to the Ottomans (but
as never having previously been claimed by the Imam). These three islands fell
under the terms of Article 16 of the Treaty of Lausanne.
164.
There are three key points at issue in respect of Article 16. The first is the
legal implications of it being res inter alios acta in respect of Yemen.
The second is what islands in fact fell under this provision, i.e., were still
under Ottoman sovereignty up to the date of the Treaty. The Tribunal has
addressed these points above (see paras. 153-159). And the third is whether
Article 16 either permitted acquisitive prescription by a single state of some
or all of these islands and, if not, whether such acquisitive prescription
could and did nonetheless occur (even if in violation of a treaty obligation).
165.
The correct analysis of Article 16 is, in the Tribunal's view, the following:
in 1923 Turkey renounced title to those islands over which it had sovereignty
until then. They did not become res nullius B that is to say, open to
acquisitive prescription B by any state, including any of the High Contracting
Parties (including Italy). Nor did they automatically revert (insofar as they
had ever belonged) to the Imam. Sovereign title over them remained
indeterminate pro tempore. Great Britain certainly regarded it as likely
that some undefined islands which "pertained to the Yemen" were
covered by Article 16. Indeterminacy could be resolved by "the parties
concerned" at some stage in the future B which must mean by present (or
future) claimants inter se. That phrase is incompatible with the
possibility that a single party could unilaterally resolve the matter by means
of acquisitive prescription.
166.
Given the Great Power politics in the region, the application of these legal
principles was inevitably sometimes less than clear. Great Britain in fact
secured jurisdiction over Kamaran island in this fashion; the records show that
British civil servants and ministers over the years continued to entertain
notions of appropriation of particular islands; but Great Britain was at pains
to ensure the continued efficacy of Article 16 so far as Italian acts were
concerned, through frequent enquiries to the Italian Government.
167.
The islands to which the Article 16 proviso applied at the outset were
therefore the Mohabbakahs, the Haycocks, South West Rocks, and certainly the
Zuqar-Hanish group, Abu Ali, Jabal al-Tayr and the Zubayr group.
168.
Far from the Treaty of Lausanne "paving the way" for Italian
sovereignty, as has been suggested by Eritrea, it presented a formidable
obstacle. It is arguable that acquisitive prescription might nonetheless have
been effected by Italy in the face of its obligations should the other parties
to the Treaty of Lausanne have so allowed. Italy would have tried to secure the
most favourable position, both on the ground and in diplomacy, for that day in
the future when title would be determined. In terms of political aspiration, animus
occupandi undoubtedly existed. But whether claims to sovereignty were made
and acknowledged, so that certain islands would be effectively au dehors
the reach of Article 16 of the Treaty of Lausanne, must be doubtful. Still less
plausible is the contention that the High Contracting Parties (and Great
Britain in particular) would have allowed, or acquiesced in, an incremental
assumption of sovereignty by Italy.
The
1927 Rome Conversations
169.
This conclusion is confirmed by the history following the Treaty of Lausanne.
In 1927, conversations took place in Rome between the Italian Government and
the British Government relating to British and Italian interests in Southern
Arabia and the Red Sea ("the Rome Conversations"). In the signed
record they agreed to cooperate in seeking to secure the pacification of Ibn
Saud, the Imam Yahya and the Idrisi of Asir; and noted that Great Britain
regarded it as "a vital imperial interest that no European Power should
establish itself on the Arabian shore of the Red Sea, and more particularly on
Kamaran or the Farsan islands, and that neither. . . shall fall into the hands
of an unfriendly Arab Ruler." This proviso was repeated, pari passu,
in respect of the west coast and Kamaran and the Farsan islands.
170. No
such specific reference was made to the other islands now in dispute. Whereas
Articles 4 and 6 apply to Kamaran and Farsan, Article 5 must, in the view of
the Tribunal, be taken to apply to the other islands in dispute. Article 5
provided:
That
there should be economic and commercial freedom on the Arabian coast and the
islands of the Red Sea for citizens and subjects of the two countries and that
the protection which such citizens and subjects may legitimately expect from
their respective governments should not assume a political character or
complexion.
171.
This article can only be understood to mean that acts which might otherwise be
construed as providing an incremental acquisition of sovereignty were by the
agreement of the parties not to be so construed. To seek to identify acts
"having a sovereign character" thus became without legal purpose.
172.
Eritrea has argued that no legal weight is to be given to these provisions, in
the first place because this record was not registered under Article 18 of the
Covenant of the League of Nations and in the second place because it cannot be
invoked by Yemen, either for that reason or because it was res inter alios
acta. That this was not registered was undoubtedly because it was not
regarded as a treaty between states. But it was nonetheless an accurate account
of what both parties had agreed and was signed by them as such. It is simply
evidence of the thinking of the time B this time by both parties B in much the
same way as the Tribunal has been presented with a myriad of other evidence in
non-treaty form. Insofar as Yemen wishes to draw it to the attention of the
Tribunal, it is not relying on a treaty that is res inter alios acta,
nor indeed resting its own claim on it. It is diplomatic evidence, like any
other, but of an undoubted interest because it reflects what was recorded by
both parties as that which they had agreed to.
173.
The provisions of Article 5 of the Rome Conversations were, of course, fully
consistent with Article 16 of the Treaty of Lausanne, and indeed reinforced it.
The former did not replace the latter but rather provided a further mechanism
for assuring that fishing, commercial and navigation-related activities could
continue without the indeterminate status of the islands being jeopardised.
174.
Italy and Great Britain each now sought to ensure that sovereignty was indeed
reserved. When Great Britain proposed to France certain arrangements concerning
the management of the old Ottoman lighthouses at Abu Ail, Jabal al-Tayr, Centre
Peak and Mocha, Italy asked for acknowledgment that the last belonged to Yemen
and that sovereignty was reserved as to the first three islands. Great Britain
was able to provide this. And when it was learned in London that Italy was
preparing to build a lighthouse on South West Haycock (which it thought of as
part of the Mohabbakahs) Great Britain sought assurance that the Haycocks as
well as the Hanish islands were indeed viewed by Italy as falling under Article
5 of the Rome Conversations. Italy in 1930 informed Great Britain that it had
sovereignty over South West Haycock, regarding which it made a specific
reservation, that it lay in the Mohabbakahs, that it was prepared for
South-West Haycocks and the rest of the Hanish islands to be treated in accordance
with Article 5 of the Rome Conversations. The British reaction was not to take
up the offer of talks from Italy, lest Italy should seek to have its
sovereignty over South West Haycock "settled" within Article 16 of
the Treaty of Lausanne, but rather tacit acceptance that everything should be
treated under the framework of Article 5 of the Rome Conversations.
175. In
1931, further assurances were received from Italy over its establishment of
armed posts on Greater Hanish and Jabal Zuqar. Italy assured Great Britain that
these posts were for the protection of concessionaires and that sovereignty
over the Hanish islands remained in abeyance. The juridical status of these
islands was said to be the same as that of Farsan and Kamaran in the Rome
Conversations of 1927. Further, Italy recalled that it had in 1926, during the
negotiation of the abortive Lighthouse Convention of 1930, confirmed that
sovereignty over Abu Ali, Zubayr and Jabal al-Tayr was equally to remain in
abeyance, falling also under Article 5 of the Rome Conversations.
176.
These assurances were also to be sufficient for the British authorities in the
face of a 1933 incident in which HMS Penzance visited Jabal Zuqar and Hanish,
noting, inter alia, the presence of Italian soldiers and the flying of the
Italian flag. Great Britain, in the meantime, was providing comparable
assurances regarding Kamaran.
177.
The Italian Royal Legislative Decree No.1019 of 1 June 1936 made arrangements
for the administration of Italian East Africa. It provided, inter alia, in its
Article 4, that the territory of Dankalia was constituted by reference to a
line from the lowlands to the east of Lake Ascianghi at the southern limit of
Aussa and was part of Eritrea. Although no islands were named in terms, the
specifying of the lines which constituted these administrative boundaries
brought the Hanish-Zuqar group within the commissaryship of Dankalia. None of
the line-drawing provided for by Decree 1019 covered Abu Ali, Zubayr or Jabal
al-Tayr.
178.
This was affirmed in terms by General Government Decree No.446 of 20 December
1938: "the Hanisc-Sucur Islands are deemed to be included within the
bounds of the Commissaryship of the Government of Dancalia and Aussa
(Assab)." In the view of the Tribunal these administrative arrangements
cannot, in the light of the Rome Conversations and subsequent assurances, be
regarded as international claims to sovereignty, rather than as to
jurisdiction. Nor would they have been regarded as such by Great Britain. And
only eight months beforehand Italy had assured the Imam that it had undertaken
with Great Britain not to extend its sovereignty to the Hanish islands (and
that it had been able to secure the dispatch of an Italian doctor to Kamaran on
that basis).
179. At
the same time, Italy unsuccessfully asked Great Britain to revoke its own
Decree regarding Kamaran, which Italy regarded as upsetting the status quo
agreement reached in 1927. At the same time, Great Britain did continue to
regard the sovereignty over Kamaran as reserved.
180.
Italy, which had recognised independent Yemen in 1926, entered into a treaty of
Amity and Economic Relations with that country in September 1937. While Italy
confirmed unconditionally its "recognition of the full and absolute
independence, without restrictions" of the King of Yemen and his Kingdom,
the Tribunal cannot view this as illuminating the current problems.
181.
Developments in Yemen and Saudi Arabia, including their relations with each
other, made Italy and the United Kingdom believe that matters should be
clarified further. After several months of negotiation there was signed on 16
April 1938 an Agreement and Protocols which entered into effect on 16 November
1938. Annex 3 of the agreement included detailed dispositions of relevance to
the Red Sea islands:
Article
1
Neither
Party will conclude any agreement or take any action which might in any way
impair the independence or integrity of Saudi Arabia or of the Yemen.
Article
2
Neither
Party will obtain or seek to obtain a privileged position of a political
character in any territory which at present belongs to Saudi Arabia or to the
Yemen or in any territory which either of those States may hereafter acquire.
Article
3
The two
Parties recognise that, in addition to the obligations incumbent on each of them
in virtue of Articles 1 and 2 hereof, it is in the common interest of both of
them that no other Power should acquire or seek to acquire sovereignty or any
privileged position of a political character in any territory which at present
belongs to Saudi Arabia or to the Yemen or which either of those States may
hereafter acquire, including any islands in the Red Sea belonging to either of
those States, or in any other islands in the Red Sea to which Turkey renounced
her rights by Article 16 of the Treaty of Peace signed at Lausanne on the 24th
July 1923. In particular they regard it as an essential interest of each of
them that no other Power should acquire sovereignty or any privileged position
on any part of the coast of the Red Sea which at present belongs to Saudi
Arabia or to the Yemen or in any of the aforesaid islands.
Article
4
(1) As
regards those islands in the Red Sea to which Turkey renounced her rights by
Article 16 of the Treaty of Peace signed at Lausanne on the 24th
July, 1923, and which are not comprised in the territory of Saudi Arabia or of
the Yemen, neither Party will, in or in regard to any such island:
(a)
Establish its sovereignty, or
(b)
Erect fortifications or defences.
(2) It
is agreed that neither Party will object to:
(a)
The presence of British officials at Kamaran for the purpose of securing the
sanitary service of the pilgrimage to Mecca in accordance with the provisions
of the Agreement concluded at Paris on the 19th June, 1926, between
the Governments of Great Britain and Northern Ireland and of India, on the one
part, and the Government of the Netherlands, on the other part; it is also
understood that the Italian Government may appoint an Italian Medical Officer
to be stationed there on the same conditions as the Netherlands Medical Officer
under the said Agreement;
(b)
The presence of Italian officials at Great Hanish, Little Hanish and Jebel
Zukur for the purpose of protecting the fishermen who resort to those islands;
(c)
The presence at Abu Ail, Centre Peak and Jebel Teir of such persons as are
required for the maintenance of the lights on those islands.
182.
The Ministry of Foreign Affairs of Italy had, in an internal Note of 31 March,
made clear that the formula being negotiated would confirm that the Red Sea
islands formerly under Turkish sovereignty "belong neither to Great
Britain, Italy or the two Arab States, but remain of reserved
sovereignty." An accompanying list of islands "of reserved
sovereignty" indicated that Kamaran, Abu Ali and Jabal al-Tayr were at the
time under British occupation, and described as occupied by Italy: Greater
Hanish, Jabal Zuqar, Centre Peak, and Lesser Hanish. South-West Haycock is not
listed in the Italian Foreign Ministry Note as coming within this arrangement,
notwithstanding the assurances on this point given to Great Britain in 1930
regarding understandings reached during the 1927 Rome Conversations. In the
Treaty of 1938 itself, however, the islands agreed to fall within its
provisions are not specified. Nor is there any reflection of an internal
British proposal that the termination of the 1927 Rome Conversations be made
clear.
183. It
would seem that the 1938 Treaty is to be seen not as replacing but as
supplementing and expanding the 1927 undertakings (always less than a formal
treaty), the "political character and complex formula of the latter having
been found unsatisfactory." The Rome Treaty was never registered with the
League of Nations and by virtue of Article 18 of the Covenant could not be
invoked by either party against the other. More relevant to Yemen is the fact
that it is a third party to the treaty. There is no evidence, however, that
either Italy or the United Kingdom failed to proceed with registration for any
reason other than the approaching war clouds. The text of the treaty still has
significance, which the Tribunal may properly take account of, as to the
understanding of the parties in the autumn of 1938 regarding the current
position of the islands and their intention at that moment as to how they
should continue to be treated. No change is to be discerned from the essential
thrust of what had gone before: claims were to remain inactive. The islands
were not res nullius to be acquired by Italy or Great Britain.
184.
The wording of Article 3 is not without its ambiguities. What it does show is
that, on the one hand, there were some islands in the Red Sea regarded
in 1938 as belonging to Saudi Arabia and to Yemen. It also shows, on the other
hand, that there were other Red Sea islands regarded as belonging to neither,
and whose title was still indeterminate.
185. As
Article 4 clearly and specifically refers to Kamaran, Greater Hanish, Little
Hanish, Jabal Zuqar, Abu Ali, Centre Peak and Jabal al-Tayr as not being under
the sovereignty of Saudi Arabia or Yemen, it is uncertain what islands were
regarded as "at present belong[ing] to Yemen". In any event, Italy
and the United Kingdom did not in 1938 regard title to any of the named islands
as belonging to Yemen or as having been settled within the terms of Article 16
of the Treaty of Lausanne; and they each undertook not to establish sovereignty
thereon. There is nothing in the record to show that the term
"establish" in Article 4 was intended to mean other than
"acquire" or "seek to acquire" sovereignty, as used in
Article 3, through the various acts referred to in the Treaty, especially
fortifications. It may be concluded that the 1938 Treaty evidences no
recognition by Italy or Great Britain of any Yemeni title to the disputed
islands. But at the same time the Treaty expressly excluded any Italian claims
of sovereignty thereto.
186.
The consequence of this series of international instruments and engagements was
that from 1923 to 1938 Italy could make no claim that it already had a title
that must be recognised. The only clear claim to sovereign title was to South
West Haycock B but even that claim to an existing title was to be treated, at
Italy's own suggestion, as "in abeyance" until title to the islands
generally should later be settled by the parties concerned under Article 16 of
the Treaty of Lausanne.
* -
*
187. As
for Yemen, it in turn made sporadic claims to Red Sea islands during this
period, in general and unspecified terms. While Great Britain had assured Yemen
that Italy's lighthouse activities did not prejudice Yemen's position, neither
it nor Italy regarded the islands as being within Yemen's ownership up to 1938.
As the Treaty of Lausanne provisions had been the mechanism by which the
Ottoman Empire divested itself of ownership of these islands, that fact is not
wholly without significance for Yemen, which, even putting the argument in its
own terms, has to show not only a right of reversion but also that such a right
overrode the decision that the previous sovereign had been obliged to make as
to the future of the islands.
188. In
1933 Great Britain was in fact negotiating a Treaty with the Imam. The view was
expressed within the Foreign Office that Yemen had legally been part of the
Ottoman Empire and "any islands pertaining to it" were "fully
covered by Article 16 of the Treaty of Lausanne and the disposal was therefore
a matter for international agreement." Contrary to the submissions of
Yemen, this does not clearly assume Yemeni title B it assumes that what had
been sovereign had now become indeterminate, until title was attributed by the
"interested Parties".
189.
The islands claimed by the Imam during the negotiation with the United Kingdom
for the Treaty of Friendship and Mutual Cooperation of Sanaa of 1934 were
without specific identification, but they were clearly later understood by the
British to have meant Kamaran and the various unoccupied islands, the largest
of which are Zuqar and Greater Hanish. The assertion of that claim was
acknowledged although it was not reflected in the text of the Treaty and the
refusal of the British Government to do more was made clear to the Imam.
* -
*
190. As
neither Italy nor Yemen held sovereign title at the outbreak of the Second
World War, all the islands (save perhaps South West Haycock and the
Mohabbakahs) may be assumed to have fallen within the relinquishment provisions
that Italy was obliged to accept. This conclusion is also supported by an
examination of the documents relating to the years 1941-50.
191.
The 1941 Proclamation of British Military Jurisdiction brought under the
command of Lieutenant-General Platt "[a]ll territories in Eritrea and
Ethiopia". This wording seems to the Tribunal neither "broad"
nor indeed "narrow", but merely general and uninformative
geographically and legally. The Armistice did speak of the "[i]mmediate
surrender of Corsica and of all the Italian territory, both islands and
mainland, to the Allies . . ." (para. 6). But what islands are there
referred to is wholly uncertain; the explanation in Article 41 of the
"Additional Conditions of Armistice" with Italy that "the term
>Italian Territory' includes all Italian colonies and dependencies . . .
(but without prejudice to the question of sovereignty) . . ." carries
things no further. The phrase remains question-begging and in addition carries
a specific caveat. Armistice agreements are instruments directed to stopping or
containing hostilities and not to acknowledging or denying sovereign title.
192. In
1944 the British Colonial Office conducted an internal assessment on the status
of Kamaran, the Great Hanish group, the Little Hanish group, the Jabal Zuqar
group (including Abu Ali), the Zubayr group (including Centre Peak), and Jabal
al-Tayr. In correspondence the history was briefly recounted, and it was
recalled that under Article 16 of the Treaty of Lausanne "their future was
to be settled by the >parties concerned'. It never has been. They are in
fact international waifs." The letter continued: "Once upon a time
the Italians were interested in all these islands." It was thought that
the Dutch now had some interest.(16) "Apart
from the British, however, the most serious claimant seems to be the Yemen, off
whose coast all the islands lie." The claims of the Imam in 1934 were
recalled.
193.
The author of the letter (a civil servant within the Colonial Office) suggested
that matters could be left as they were; or tidied up "in the same
way"; or the UK could annex the islands.
194.
Leaving aside the assessment of all the islands as "off Yemen's
coast" or the assumption, without legal analysis, that they were free for
annexation, the letter evidences what seemed to be a widely-held view within
the British Government that sovereignty over these islands remained unsettled
within the terms of Article 16 of the Treaty of Lausanne.
195. By
1947 the question of title had, of course, to be faced in the Treaty of Peace
with Italy. Under Article 23 Italy renounced "all right and title to the
Italian territorial possessions in Africa, i.e., Libya, Eritrea and Italian
Somaliland." The third paragraph of that provision then provided:
The
final disposition of these possessions shall be determined jointly by the
Governments of the Soviet Union, of the United Kingdom, of the United States of
America, and of France within one year from the coming into force of the
present Treaty . . . .
That
this did not refer to the islands here in issue is made fully clear by Article
43, which provides:
Italy
hereby renounces any rights and interests she may possess by virtue of Article
16 of the Treaty of Lausanne signed on July 24, 1923.
Both
the placement of this article (at a point distant from Article 2) and the very
need for such a provision made it clear that the disputed Red Sea islands did
not fall to be disposed of under Article 23(3). This provision was not meant to
operate as a revision or renunciation, by parties other than Italy, of Article
16 of the Treaty of Lausanne.
196.
Instead, Article 16 of the Treaty of Lausanne remained intact. Italy was now
obliged to renounce "any rights and interests" under it. This refers
not merely, as has been submitted by Yemen, to Italy's right to protest at a
purported acquisition by another or to be party eventually to a settlement of
title. It refers also to a renunciation of any claims Italy might have made and
any legal interests she might have asserted regarding the islands.
197. A
United Nations working paper drawn up in December 1949 in connection with the
preparation of the draft Eritrean Constitution supports the view that the
Hanish, Zuqar and more northerly islands were not among those to be settled
(and eventually affirmed as passing to independent Eritrea). The section on the
Geography and History of Eritrea says that the Italian colony "includes
the Dahlak archipelago off Massawa, and the islands further south off the coast
of the Danakil country." This would seem to refer to those Mohabbakahs in
proximity to Assab. The section that recalls the "attempts to colonize the
highlands of Eritrea" makes no reference to any colonization of the
islands.
198.
The Ministry of Foreign Affairs of Ethiopia did protest when it commented on
the draft constitution. It pointed out that the language used in Article 2 of
the draft Constitution "would impliedly exclude all archipelagoes and
islands off the coast. Surely, this exclusion was not intended." But that
language - namely that "the territory of Eritrea, including the islands,
is that of the former Italian colony of Eritrea" - remained intact in the
final text of the Constitution.
199.
The Italian Government had also been invited to express its opinions on the
future of Eritrea to the UN Commission on Eritrea. Italy urged independence for
Eritrea, emphasising that its renunciation of all title did not make Eritrea a res
nullius. It spoke of the regions that had been occupied by Italy to
establish Eritrea. In that context, reference was made to the Dahlak islands.
In urging the continued unity of Eritrea no mention was made of any other
islands. None of the rapidly ensuing instruments Bthe British Military
Authority (BMA) Termination of Powers Proclamation of 1952, or the revised
Constitution of Eritrea of 1955, changed matters.
ــــــــــــــــــــــــــــــــــــــــــــــــــــــــــــــــــــــــ
Notes -
Chapter V
13.
Compare the policy objective that was explored by the Foreign Office for the
islands of Sheikh Saal, Kamaran, and Farsan, and for Hodeidah, namely
occupation. In the event, a 1915 telegram from the Viceroy of India indicates
that the British flag had been hoisted on Jabal Zuqar and the Hanish Islands.
These events were characterized, in a message to the Foreign Office from the
British Resident in Aden as a "temporary annexation". By 1926 Britain
did not regard itself as holding sovereign title.
14. The
Treaty of Lausanne, entered into five years after the end of hostilities, in
fact uses the term "High Contracting Parties" rather than Allied
Powers. Those High Contracting Parties were the British Empire, France, Italy,
Japan, Greece, Roumania and the Serb-Croat-Slovene State on the one hand, and
Turkey on the other.
15. See
Reilly, Aden and Yemen, Colonial Office 1960, 69-70.
16. The
Dutch had not been signatories to the 1923 Treaty of Lausanne and had in fact
remained neutral in the First World War.