CHAPTER
VI – Red Sea Lighthouses
200.
The Red Sea lights bear on this arbitration in three main ways. First, each of
the parties has at various moments suggested that its establishment or maintenance
of lighthouses on the various islands constitute acts of sovereignty. Second,
the diplomatic correspondence relating to the lighthouses might throw some
light on the underlying claims to the islands where they are located, not least
because the lighthouse islands were necessarily named. So much of the other
material relates to islands without specification. Third, the relationship
between the several lighthouse conventions and the provisions of Article 16 of
the Treaty of Lausanne might have some legal significance.
201.
From the late 19th century the Red Sea lights have had an historical
importance in this region, although this is now somewhat reduced with the
advent of radar. But radar may not be available to many of those fishing in the
Zuqar-Hanish islands. The Ottoman authorities, and later the various coastal
states, along with the major shipping users, have all played a role in the
story of the Red Sea lights. In 1930, a proposed treaty regime for the lights
was drawn up, but never came into force. From 1962 until 1989, a treaty regime
did indeed govern the lights.
202. In
1881, the Ottoman Empire granted a forty-year concession to the Société des
Phares de l'Empire Ottoman, owned by Messieurs Michel and Collas, to build
a series of lighthouses in the Red Sea and the Persian Gulf. Almost endless
disputes were to arise regarding the concession for the Red Sea lighthouses.
203.
The British Government had proposed to the Sublime Porte that four lights
should be erected at Jabal al-Tayr, Abu Ail, Jabal Zubayr and at Mocha, to
assist navigation. Anxious at the difficulties encountered with the
concessionaires, it began in 1891 to revive an earlier idea to explore the
possibility of a western navigation route through the Red Sea. As the envisaged
route was to be "abreast of the Italian possessions at Assab", Italy
was asked to facilitate the technical mission and to allow supplies to be taken
on at Assab - a request to which Italy readily agreed.
204.
Once a western route was recommended by the Board of Trade, the British
Government had to concern itself with questions of title. The so-called
"Western Hanish" route would have entailed lights on North East Quoin
(or at Rakmat), South West Rocks, one of the Haycock islets and Harbi islet. In
1891 the Board of Trade, relying on the Hertslet Memorandum of 1880, suggested
that North East Quoin and Harbi were within Egyptian jurisdiction and South
West Rocks and the Haycocks within Ottoman jurisdiction - with the Sublime
Porte claiming sovereignty to all four islands. The Marquis of Salisbury, in
writing to the British Ambassador to Rome in January 1892, stated "The
islands and rocks recommended by the Board of Trade . . ., with the exception
of South-west Rocks, seems [sic] to be in effect within the jurisdiction of
Italy. That over the South-west Rocks would appear to be doubtful." From
1881 to 1892 there was an extended international correspondence on this
subject.
205. A
Note of 3 February 1892 was addressed to the Italian government to seek
clarification. The Note included the statement that "according to Article
3 of the Treaty between Italy and Sultan Ahfari of Aussa of the 9th
December 1888", the jurisdiction over the new sites, "with the
exception perhaps of South-West Rocks, appears to belong to Italy." Italy
was asked whether it claimed jurisdiction over these sites, and if so whether
it would itself be prepared to erect lights there, or alternatively if it would
be willing for Great Britain to do so.
206.
The Italian Government replied in June of that year that "the King's
Government consider these points as a maritime appendage of the territory over
which they exercise their sovereignty" but urged the British Government to
erect and maintain the lighthouses and to fix the method of reimbursement.
207. In
the event, the western route was not proceeded with and the Ottomans arranged
for the building of four lighthouses at Mocha on the Arabian coast, and on
Jabal al-Tayr, on Abu Ali and in the Zubayr group (on Centre Peak). This was
maintained by the French concessionaires for the Ottomans until 1915. Great
Britain occupied the three lighthouse islands in 1915.
208.
When the Ottoman Empire was required to renounce its possessions, sovereignty
over the lighthouse islands fell, under Article 16 of the Treaty of Lausanne,
"to be settled by the parties concerned". The light at Mocha was
recognised by Great Britain as being within the territory succeeded to by the
Imam. Great Britain had on occasion contemplated trying to acquire sovereignty
over the islands it occupied but on balance thought they did not have enough
strategic value. It is significant that Great Britain did not regard itself as
precluded from attempting to acquire sovereignty by the terms of Article 16 of
the Treaty of Lausanne. It was not until 1927 that Great Britain formally
stated (to France) that it had definitely renounced this idea. And in certain
quarters the idea of annexing Hanish and Zuqar, as well as Jabal al-Tayr and
Abu Ali, was not totally dead even in 1944.
209. It
is also striking that, throughout the series of enquiries that Great Britain
was to make after 1923 to Italy about the status of certain other islands, it
never once put to Italy that a claim would be contrary to the terms of Article
16 of the Treaty of Lausanne. Rather, Great Britain was content to satisfy
itself that Italy's position was consistent with the bilateral understandings
of the Rome Conversations of 1927.
210.
Notwithstanding this, the Tribunal has already indicated that in its view the history,
text and purpose of Article 16 argues against the unilateral acquisition of
title over the islands whose status was left undetermined in 1923. Nor is it
necessary to consider whether Italy was seeking to establish title contrary to
the agreement in hand and entered into in the Treaty of Lausanne, because
Italy's posture was in fact much more cautious.
211. In
1927 Great Britain negotiated an agreement with France for the maintenance of
all four lighthouses by the French company and approached the main users of the
route - Germany, the Netherlands, Japan and Italy - to regulate the matter by a
convention. Italy, expressing the wish that it had been consulted earlier, made
two points. First, Mocha was claimed by the Imam and he should be a party. Second,
Italy wished to know whether sovereignty of the islands was to be attributed to
the neighbourhood coast or whether the point would be reserved. No Italian
claim to any of the islands was presented. The British Government conceded that
Mocha was under the rule of the Imam and affirmed that the status of the
islands was to be reserved. These reassurances led to the conclusion of the
Convention concerning the Maintenance of Certain Lights of 1930.
212.
Although this Convention did not enter into force, and thus cannot be said to
bind the parties as a treaty, it is useful evidence of their thinking at that
date. The preamble and the annex refer to the renunciation by Turkey of both
the islands and of Mocha, the occupation of the islands by Great Britain, and
the provision in Article 16 of the Treaty of Lausanne that "the future of
these islands, and of that territory [is] a matter for settlement by the
Parties concerned." The annex continued: "(e) . . . no agreement on
this subject has been come to among the parties concerned and it is desirable
in the interests of shipping to ensure that the lighthouses on the said islands
shall be maintained". It then proceeded to determine that a lighthouse
company should take possession of and manage the lighthouses on Abu Ali, Zubayr
and Jabal al-Tayr. Italy was prepared to put its signature to this and to
Article 13, which clearly affirmed the continued operation of Article 16 of the
Treaty of Lausanne:
Art.
13. In the event of the arrangement contemplated in article 16 of the Treaty of
Lausanne being concluded between the parties concerned, the High Contracting
Parties will meet in conference in order to decide whether it is desirable to
terminate the present Convention, or to modify its terms with a view to making
it conform to the aforesaid arrangement.
213.
Although the 1930 Convention was ratified by Italy and the Netherlands, it did
not come into force, because the French Government was locked in disagreement
with the British Government as to whether the lighthouse company, Michel et
Collas, should be paid on the basis of gold. France refused to ratify.
214. In
the meantime, in the very same year, Italy was preparing to erect a lighthouse
on South West Haycock. The Haycocks had not been specifically mentioned in the
1927 Rome Conversations and the British were anxious to establish that Article
5 thereof should nonetheless apply, the more so as "the erection of a
lighthouse . . . may be regarded as implying some definite claim to
sovereignty." Great Britain was concerned as to whether indeed South West
Haycock did fall within the Rome Conversations - there were internal divisions
on the question of title - and it noted that the islet was only 20 miles from
the "Italian" coast. It was decided to seek assurances. These were
sought in an aide-memoire of 18 February 1930, in which Italy was reminded of
the earlier exchanges in 1927. In that document Great Britain referred to South
West Haycock as being "in the Hanish group of Islands".
215. In
its Pro-Memoria of 11 April 1930, Italy observed that the lighthouse was being
built for navigational reasons. It asserted that South West Haycock was not
part of the Hanish islands, but rather belonged to the Mohabbakah archipelago
over which it alleged that the Ottomans had never claimed sovereignty.(17) Italy therefore made "a special reserve
regarding Italian sovereignty over this island" and then consented to
"the question being considered on the same lines as that of the
sovereignty of all the islands of the Hanish group, in accordance with the
spirit of the conversations of Rome of 1927."
216.
The Pro-Memoria can only be read as a claim to sovereignty over South West
Haycock by Italy (while at the same time agreeing that the erection of the
lighthouse was to be treated as a commercial rather than a sovereign act) and a
failure to advance a comparable claim to title over the Hanish group. The
internal evidence shows that this was an assessment that Great Britain was at
the time inclined to accept, and with which it was satisfied; although in other
documents Great Britain treats South West Haycock as part of the Hanish group,
and as having been Ottoman. In the event, all fell to be treated as provided by
Article 16 of the Treaty of Lausanne, which was reinforced by the
understandings reached in the Rome Conversations.
217.
The South West Haycock lighthouse was extinguished in 1940. It was abandoned
after 1945. When the 1930 Convention failed to come into effect the British
authorities were left with the sole financial burden of the existing lights. It
decided to abandon the Centre Peak light (in the Zubayr group) from September
1932 and Italy (which had been notified, along with France) reactivated the
Centre Peak light in 1933. The decision was taken in Italy to inform the
"interested powers" that this was being done for reasons of
navigational necessity, and that the Imam "who lays claim to rights over
the islands" should be "informed of the provisional nature of the
occupation and the usefulness to himself in having the lighthouse
reactivated." It was apparently originally intended to ask for
contributions, but in the event this was not done.
218.
The British authorities were notified by Note Verbale on October 4, 1933 of the
anxieties of the Captain of the Port at Massawa as to safety on the
Massawa-Hodeidah route, in the absence of the Centre Peak light, and of Italy's
decision to take over the lighthouse. The Note Verbale expressly stated:
. . .
the Royal Ministry for Foreign Affairs need hardly add that the presence of an
Italian staff on the Island of Zebair (Centre Peak), which will ensure the
operation of the light, implies no modification of the international judicial
status of the island itself, which, together with the islands of Abu Ail and
Gebel Taiz [sic], was considered by the Italian and British governments in 1928
during the negotiations for the Red Sea Lights Convention, when the conclusion
was reached that the question of sovereignty of those islands should remain in
suspense.
219.
Thus in the northern islands, too, Italy had established a navigational
interest but affirmed that it had no implications for sovereignty. The British
decided this was a sufficient comfort not to have to pursue this matter further
with the Italians.
220.
The situation remained essentially unchanged by the 1938 agreement. Article
4(2) of Annex 3 again affirmed that neither Great Britain nor Italy would
establish sovereignty over the renounced islands, following Article 16 of the
Treaty of Lausanne, and that no objections would be raised to lighthouse
personnel.
221. By
the outbreak of the Second World War it may be said that the maintenance of the
lights is seen as a non-sovereign act and there is agreement that the
underlying title to the islands concerned was left in abeyance - though Italy
had asserted title (even if choosing not to press it) to South West Haycock.
But this turned upon a perception of South West Haycock as being part of the
Mohabbakahs, rather than upon any suggestion that the erection of a lighthouse
thereon itself had a role in establishing sovereignty. In the course of the
Second World War, the South West Haycock and the Centre Peak lights were
extinguished.
222. In
June 1948 the British Military Authority (BMA) in Eritrea sought legal advice
as to whether it was liable under any international conventions for the
re-establishment of various lights previously operated by the Government of
Italy. These included those at South West Haycock and at Centre Peak. The
advice (which eventually came from the Ministry of Transport) was that there
was no obligation under any convention.
223.
The decision by the BMA that it had no responsibility for the lights at South
West Haycock and Centre Peak was not because it thought those islands were not
Italian. No particular attention seems to have been given to that aspect.
Rather, it was decided that as long as the Abu Ali light was maintained there
was no real danger to shipping. Further, the Admiralty advised that a state was
under no obligation to light its coasts. Thus even if South West Haycock and
Centre Peak had been Italian (and neither was addressed in the 1948
correspondence nor is there any evidence that Zubayr was ever regarded by the
British as Italian), no obligation was passed to the BMA as the occupying power.
224.
After the Second World War, the British did continue to take responsibility for
the lighthouses at Abu Ali and Jabal al-Tayr, and from 1945 received financial
contribution from the Netherlands. These arrangements were in 1962 brought
within an agreement made between Denmark, Federal Republic of Germany, Italy,
the Netherlands, Norway, Sweden, the United Kingdom and the United States, and
formally accepted also by Pakistan, the Soviet Union and the United Arab
Republic. Yemen was not a party. Nor was Ethiopia. The criterion for invitation
was clearly that of navigational importance and not of title to the coast or
islands. The opening recitals to the 1962 agreement rehearse the history of the
Abu Ail and Jabal al-Tayr lights, recall the abortive 1930 Convention, refer to
Article 16 of the Treaty of Lausanne, and add: "No agreement on the
subject of the future of the above-mentioned islands has been come to among the
Parties concerned."
225.
Further, Article 8 was to make crystal clear that nothing in the text following
was to be regarded either as a settlement of the future of the islands referred
to in Article 16 of the Treaty of Lausanne, "or as prejudicing the
conclusion of any such settlement." This Article reproduces the provisions
of Article 15A of the 1930 Lighthouses Convention. The United Kingdom was
affirmed as the "Managing Government" for these two lights and was
entitled to appoint an agent for this purpose (Article 2). Article 6 provided
for discontinuance of this role upon notice to the other parties, and indicated
the procedures to be followed in that eventuality.
226. As
in 1930, the managerial role of the United Kingdom had nothing to do with the
issue of title to the islands; nor did management even place the United Kingdom
in a favourable position for when the title issue came to be resolved. This
clearly followed the pattern of the Rome Understandings (as they bear on the
management of lights) and of the abortive 1930 Convention - even though the
1962 Convention concerned two lights only.
227.
The United Kingdom managed the lighthouses at Jabal al-Tayr and Abu Ali from
Aden, but realised that arrangements would have to be made when the British
would leave Aden upon the independence of the People's Democratic Republic of
Yemen in 1967. The Savon and Ries Company was accordingly appointed agent under
Article 2 of the 1962 agreement, for management duties. It so happened that
Savon and Ries were operating out of Massawa, and the staff engaged in
lighthouse functions at the Board's request came increasingly from Ethiopia,
but in the view of the Tribunal this was simply a matter of practical
convenience. The various Ethiopian authorizations for inspection and repair
visits to the islands and the control exercised over radio transmissions were immaterial
as to sovereignty. Everything remained as it had been so far as title to the
islands was concerned - that is to say, Article 8 of the 1962 Convention
continued to govern.
228. In
1971 the British Government decided to replace the lights by automatic lights,
dispensing with the services of lighthouse-keepers. The United Kingdom notified
Yemen of this intention, assured that Government that "the action of the
Board of Trade in accordance with [the 1962 convention] does not infringe upon
rights of sovereignty" and asked whether Yemen had any objection. The fact
that the communication was addressed to Yemen, a non-signatory of the 1962
Convention, would seem to indicate that, while the islands remained
unattributed in accordance with the terms of the 1962 Treaty, Yemen was
regarded by the United Kingdom as a "party concerned" within the
terms of Article 16 of the Treaty of Lausanne and as having claims to Abu Ali
and Jabal al-Tayr that should not be prejudiced. It may also be noted that by this
time Italy had lost its possessions on the Red Sea coast and was not,
therefore, any longer a "party concerned" within the meaning of
Article 16 of the Treaty of Lausanne.(18)
229.
Although at an earlier era the legal advice within the British Government was
that Abu Ali and Jabal al-Tayr (as well as Centre Peak) were islands that were res
nullius and various candidates had been suggested at different moments of
time as "parties concerned", it would seem that by the early 1970s
Yemen was regarded as the leading "party concerned" for purposes of
Article 16 of the Treaty of Lausanne, at least so far as Abu Ali and Jabal
al-Tayr were concerned.
230. In
1975 the management of these two lights was transferred from Savon and Ries'
offices in Ethiopia to its offices in Djibouti. Five years later, the agency
for management was passed by the British authorities to a new company it had
formed, the Red Sea Lights Company.
231. In
1987 Yemen relit the lighthouse on Centre Peak, issued pertinent Notices to
Mariners and, in 1988, upgraded it. This appears to have occasioned no protest
by Ethiopia, which could not have assumed that such acts were rendered without
significance by virtue of Article 16 of the Treaty of Lausanne (to which Yemen
was not a party), or by the various bilateral Italian-UK agreements, or by the
1962 Lighthouse Convention - none of which were opposable to Yemen.
232. On
June 20, 1989, Yemen contacted the United Kingdom regarding "the matter of
the Lighthouses installed on Abu Ali (Ail) and Jabal al Tair Islands which is
to be discussed on Tuesday 20 June 1989." Yemen formally stated that:
1. The
two Islands mentioned above lie within the exclusive economic zone of the Yemen
Arab Republic.
2. In the
light of this fact the Yemen Arab Republic is willing to take the
responsibility of managing and operating the said two lighthouses for the
benefit of National and International Navigation. As you may be aware, the
Ports and Marine Affairs Corporation in the Yemen Arab Republic is already
running and operating several lighthouses some of which lie within the area of
these two Islands.
233.
Unless positive action was taken to extend the 1962 Convention, it would expire
in March 1990. In 1988 and 1989 it became clear that many parties had denounced
the 1962 Treaty or indicated their intention to do so. The United Kingdom, the
managing authority of the lights, was among these. Egypt offered to take over
that role, but it was clear that there were not sufficient votes for extending
the Convention beyond 1990.
234. A
meeting of the parties was held in London in June 1989. Having established its
credentials and interest, Yemen was invited as an observer to the 1989
Conference on the future of the two northern lights, notwithstanding the fact
that (like Ethiopia) it had not been a party to the 1962 agreement. The Report
to the Government of Yemen of the Yemeni technicians attending the 1989 meeting
refers to the fact that the British had confirmed the installation and
operation by Yemen of new lighthouses on Jabal Zubayr and Jabal Zuqar.
Manifested interest and professional competence appear to be the motivating
factors for Yemen's presence. Ethiopia was not invited to attend and had not
requested this.
235.
Yemen supported the Egyptian proposal that Yemen would manage the lighthouses
on Jabal al-Tayr and Abu Ali and did so without reserve as to title. The
minutes show that they also indicated their willingness to operate lights on
the two islands at their own expense with almost immediate effect should the
agreement lapse. The minutes contain no reference by Yemen to the islands being
in its Exclusive Economic Zone - though that point had been included in the
pre-meeting exchanges with the United Kingdom.
236.
The reference to Yemen's Exclusive Economic Zone rather than to title to the
islands themselves does not appear to have been casual. It is mentioned twice
again in the internal report sent after the 1989 conference from the Yemeni
Director-General of the Ports and Maritime Affairs to the Government of Yemen.
Yemen's offer - which was accepted - was in language other than claim of a
right of sovereign title. Yemen did not say that it had title to Abu Ali or
Jabal al-Tayr, nor to the nearby islands, and thus it would be for it alone to
provide any lights. The 1961 agreement had no chance of survival and Egypt's
offer to become managing authority could not provide the answer. The
international treaty regime for the Red Sea lights was coming to an end.
237.
The erection and maintenance of lights, outside of any treaty arrangements and
for the indefinite future, had certain implications. The acceptance of Yemen's
offer did not constitute recognition of Yemen sovereignty over islands. But it
did accept the reality that Yemen was best placed, and was willing, to take on
the role of providing and managing lights in that part of the Red Sea; and that
when the time came finally to determine the status of those islands Yemen would
certainly be a "party concerned". (Yemen, of course, was not bound by
Article 8 of the 1962 Convention and indeed appears not to have known at the
time of the arrangements made under it.)
238.
Eritrea has contended that there was no need for Ethiopia to have protested the
relighting by Yemen of lights on Abu Ali and Jabal al-Tayr, as its
"activities were merely a continuation of the historic activities of Great
Britain on Jabal A'Tair and Abu Ali." But Yemen was not in the same legal
relationship with Ethiopia over the matter of lights as had been Great Britain
and, if such was the reasoning for a failure to reserve claimed Ethiopian
sovereignty, it was misplaced.
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Notes -
Chapter VI
17. The
Tribunal notes, however, that prior to Italian occupation, the islands off the
African coast were administered by the Khedive of Egypt on behalf of the
Ottoman Empire.
18. Nor
has Italy or, for that matter, any state asserted that it considers itself to
be "a party concerned" for this purpose. The Tribunal therefore
concludes that, with respect to the islands in dispute, the only present-day
"parties concerned" are the Parties to this arbitration.