CHAPTER
VII – Evidences of the Display of Functions of State and Governmental Authority
Analysis
of the Evidence
239.
The factual evidence of "effectivités" presented to the Tribunal
by both parties is voluminous in quantity but is sparse in useful content. This
is doubtless owing to the inhospitability of the Islands themselves and the
relative meagreness of their human history. The modern international law of the
acquisition (or attribution) of territory generally requires that there be: an
intentional display of power and authority over the territory, by the exercise
of jurisdiction and state functions, on a continuous and peaceful basis. The
latter two criteria are tempered to suit the nature of the territory and the
size of its population, if any. The facts alleged by Eritrea and Yemen in the
present case must be measured against these tests, with the following
qualification. Not only were these islands for long uninhabited and ungoverned
or, if at all, governed in the most attenuated sense, but the facts on which
Eritrea relies were acts by its predecessor, Ethiopia, which were not
"peaceful", unless that term may here be understood to include acts
in prosecution of a civil war. Nevertheless, the Tribunal cannot discount these
facts, given the singular circumstances of this case.
240.
The Tribunal has found it useful to classify the wide variety of factual
evidence advanced by the Parties in relation to this subject, and will now
examine these categories of evidence in turn.
Assertion
of Intention to Claim the Islands
241.
Evidence of intention to claim the Islands à titre de souverain is an
essential element of the process of consolidation of title. That intention can
be evidenced by showing a public claim of right or assertion of sovereignty to
the Islands as well as legislative acts openly seeking to regulate activity on
the Islands. The Tribunal notes that the evidence submitted by both Parties is
replete with assertions of sovereignty and jurisdiction that fail to mention
any islands whatsoever, and with general references to "the islands"
with no further specificity.
Public
Claims to Sovereignty over the Islands
242.
Eritrea's claim that these islands were included as part of "the former
Italian colony of Eritrea" by the Italian Military Armistice of 1943, the
1947 Treaty of Peace, and the 1952 Constitution is barely supported by
evidence. It is true that Italy wished to claim the islands and indeed
established a presence on some of them; but these facts were always subject to
repeated assurances that the islands' legal position was indeterminate in
accordance with Article 16 of the Treaty of Lausanne and with the Rome
Conversations (see Chapter V, above). The 1952 Eritrean Constitution defined
the extent of Eritrean territory as "including the islands," but
failed to specify which islands were intended. The same uncertainty existed in
the language of Article 2 of the United Nations Resolution approving the 1952
Constitution, the 1955 Ethiopian Constitution, the 1987 revision of the
Ethiopian Constitution, and the 1997 Constitution of the newly-independent
State of Eritrea.
243.
The scant evidence of Ethiopian legislation before the Tribunal suffers from
the same uncertainty as do the constitutional provisions. The 1953 Ethiopian
Federal Crimes Proclamation and a 1953 Maritime Order put in evidence by
Eritrea were not explicit about the Islands. The former was content merely to
specify "any island which may be considered as appertaining to
Ethiopia," and the latter simply republished the phrase "including
the islands." A Maritime Proclamation of 1953 referred merely to "the
coasts of the Ethiopian islands."
244.
Seventeen years later, in 1970, Ethiopia promulgated an order for a state of
emergency. This Order did not specify the Islands; nor did the implementing
regulations promulgated by the Minister of National Defence. Three 1971
operations orders are cited by Eritrea to demonstrate that "the islands in
dispute here fell within the ambit of Ethiopia's concern". They identify
Greater Hanish and Jabal Zuqar as being "areas" to be visited or as
reference points for patrol routes. In 1987, the Ethiopian Ministry of National
Defence was given responsibility "for the defence of the country's
territorial waters and islands" but, again, those "islands"
remained unidentified.
245. In
1973, the Ministry of Foreign Affairs of the Yemen Arab Republic informed the
Imperial Ethiopian Embassy in Sanaa of the YAR's plans to conduct a full aerial
survey of its territory that would cover certain "Yemeni islands."
These were identified as: "Great Hanish", "Little Hanish",
"Jabal Zuqur", "Jabal al Zair", "Jabal Zal Tair",
and "Humar". The reason given for the notification was that the
photographs, which were to be take from a height of 30,000 feet, might show
"parts of the Ethiopian coasts". Ethiopia responded that "some
of the islands listed in the afore-mentioned note could not be identified under
the nomenclature used, while others are Ethiopian islands." This exchange
of correspondence is cited in a January 1977 "Top Secret" memorandum
of the Ministry of Foreign Affairs of The Provisional Military Government of
Socialist Ethiopia, which details the measures Ethiopia considered taking to
protect its interests. The memorandum refers to islands in the southern part of
the Red Sea that "have had no recognized owner", with respect to
which Ethiopia "claims jurisdiction"(19)
and "both North and South Yemen have started to make claims." It
names the Hanish islands, Jabal Zuqar, Jabal al-Tayr and Jabal Zubayr, and
points out that the 1973 response to the YAR had deliberately been left vague,
because there was insufficient time to collect evidence in support of
Ethiopia's "claim over the islands" and for fear of provoking a
military response from Yemen and its Arab allies, particularly in the wake of
false reports, in 1973, of an Israeli presence on certain Red Sea islands. The
memorandum urges that "Ethiopia . . . take a clear stand in this respect
in order to protect its ownership."
246.
Yemen relies on a claim of historic title, asserted to stem from time
immemorial. It was allegedly most early evidenced in 1429, when King al-Zahir
of Yemen sent a mission to Jabal Zuqar to investigate two vessels engaged in
smuggling that had run aground on the island. The relevance of this happening
is vigorously contested by Eritrea on various grounds which were not responded
to in substance by Yemen. It appears to be unique, and isolated. The Tribunal
does not consider it important in relation to the determination of title to
Zuqar. Its only significance (which has been substantially weakened by
Eritrea's rebuttal of its relevance, not replied to by Yemen) might be that it
could support an interpretation of the Imam's aspirations so as to include at
least Jabal Zuqar, but that in turn fails since there is no evidence that when
he advanced his claim of historic rights in 1918, the Imam knew of the 1429
expedition. Moreover, the source for that information was only published in
1976, long after the claim of historic rights had allegedly been advanced by
the Imam.
247. In
his reply to a British proposal for a treaty of friendship, the Imam is
recorded as having requested, inter alia, "(2) Establishment of his
rule and independence over all the Yemen, i.e., over that part which was once
under the sway of his predecessors. . . ." This claim could not have been
more general. Indeed, the word "that part," being expressed in the
singular, would not seem naturally applicable to islands. This generalized
claim was apparently manifested on several occasions in bilateral diplomatic
conversations during the inter-War period, but no constitutional or legislative
act of Yemen or of the Imam claimed any of the Islands specifically or
described them specifically as Yemeni territory.
248.
Yemen asserted in the oral hearings that in 1933: ". . . certain British
representatives expressed puzzlement as to why the Imam was so adamant about
his claim to the islands of Al-Yemen, including the islands of the Hanish
Group." The Yemeni Foreign Minister allegedly "made the Imam's claim
to the Hanish Islands well known to German officials in 1930, France in 1936
and, of course, England, in connection with the 1934 treaty and on many other
occasions." Yemen added that "the Imam stated and restated his
historic claims to the British, to the French and to the Italians whenever this
was practically possible", and this appears to be borne out by
contemporaneous evidence from 1930 to 1936.
249.
Other evidence of communications between the Imam and British diplomats,
including the records of the Clayton mission of 1926, and Colonel Reilly's
communications to the Foreign Office are too vague to serve as evidence of a
specific claim by the Imam to the Islands at that time.
250.
Although Yemen asserted in the oral hearings that Yemen's response to the
granting of an oil concession by the United Kingdom in the area of Kamaran
Island in 1956 "restated the claim to the Red Sea Islands", the
language actually used in the official statement merely stated that "[t]he
Yemeni Government considers Kamaran island and the other Yemeni islands to be a
inseparable part of Yemen". It also added that "[t]he Yemeni
Government continues to insist upon its rights to the Yemeni islands and their
liberation." A likely inference to be drawn from this is that the
"islands" referred to could not have been the islands now in question
since those were not islands that required "liberation".
251. In
1973 there were press reports that Israel had occupied Jabal Zuqar with the
permission of Ethiopia. Substantial effort was devoted by both sides in the
proceedings to seeking to demonstrate that the respective reactions to the
matter were relevant to sovereignty over the Islands. A 1973 press statement
issued by the Embassy of the Yemen Arab Republic in Mogadishu reported that
Yemeni investigations had found "Lesser Hanash, Greater Hanash, Zukar,
Alzubair, Alswabe and several other islands at the Yemeni coast", to be
free of foreign infiltration, and further stated that:
[ . . .
]
The
Y.A.R. always controls and maintains its sovereignty over its islands at the
Red Sea, with the exception of the islands of Gabal Abu Ali and Gabal Attair
which were given to Ethiopia by Britain when the latter left Aden and
surrendered power in our Southern Yemen.
This
supports an inference that the phrase "its islands in the Red Sea"
included the disputed Islands; moreover, the press statement emphasized that
the Yemen Arab Republic maintained its claim of sovereignty over those islands
"given by Britain to Ethiopia," and urged Ethiopia to surrender those
islands.
252.
Yemen's "historic claim" was initially expressed in vague and general
terms following the end of World War I, and reiterated in bilateral diplomatic
contexts in the inter-War period. After World War II it was reasserted in 1956,
even though largely in doubtful and indirect terms. In 1973, however, it was
expressly revived in a public statement (which, although it said that Jabal
al-Tayr and the Zubayr group had been "given to Ethiopia," also
reasserted Yemen's "rights and possession" to them and was specific
about the other, "mentioned," islands). The statement therefore left
little room for doubt that Yemen had sustained or renewed its claim over all of
the larger Islands, including the northern islands - or, at any rate, as of
1973. There is no evidence that Yemen subsequently abandoned or relinquished
this claim. The evidence does, however, also suggest that Yemen had no presence
on and little knowledge about Jabal al-Tayr and the Zubayr group at that time,
and supposed that they were in the possession of Ethiopia. The fact was that,
for many years, the northern lighthouses were administered from Ethiopia by
employees of the lighthouse company.
*
- *
Legislative
Acts Seeking to Regulate Activity on the Islands
253.
There is no evidence of post-war Ethiopian legislation seeking expressly to
regulate activity on the Islands. As discussed above, no Ethiopian legislation
between 1953 and 1992 specifically purported to exercise jurisdiction and state
functions over the Islands. From 1992 to the inception of the dispute in 1995,
no Eritrean legislation explicitly treated the Islands as being subject to the
jurisdiction and control of Eritrea.
254.
The Ethiopian Federal Crimes Proclamation and the 1953 Maritime Order put in
evidence by Eritrea were not explicit. They applied to "any island which
may be considered as appertaining to Ethiopia" and "the
islands." A related Maritime Proclamation of 1953 referred merely to
"the coasts of the Ethiopian islands." These instruments would of
course have applied to the Dahlak group and to the islands in the Bay of Assab;
but those islands are not disputed.
255. As
to Yemen, the evidence of administrative and legislative decrees advanced to
support a claim of the exercise of state functions follows substantially the
same pattern as the evidence introduced by Ethiopia: there is silence as to
whether the Islands are intended to be included in the ambit of the decrees.
There is no evidence of Yemeni legislation openly seeking to regulate activity
on the Islands. From 1923 to the inception of the dispute in 1995, no Yemeni
legislation specifically treated the Islands as being subject to the
jurisdiction and control of Yemen.
256. In
1967, two decrees were issued by the President of the Yemen Arab Republic
concerning territorial waters and continental shelf. However these did not
mention the Islands by name. Yemen contends that the subsequent Yemeni
licensing in 1987 of a research program in waters off the Islands by the German
research vessel, the F.S. Meteor, demonstrated their applicability to
the Islands. While that is unclear, it is arguable that this incident can be
viewed as crystallizing Yemeni intent as to the scope of the 1967 legislation.
257. In
conclusion, the evidence on behalf of both Parties shows legislative and
constitutional acts without any specific reference to the Islands by name. It
should be borne in mind that during most of these years both Ethiopia and Yemen
were distracted by civil war or strife, and serious internal instability. Yemen
did not resile from the broad and loose claims made before World War II - which
might or might not have embraced the islands in dispute - but did not pursue or
articulate them until 1973.
*
- *
Activities
Relating to the Water
Licensing
of Activities in the Waters Off the Islands
258.
There is much evidence that Ethiopian naval units had for many years conducted
surveillance in the Red Sea and in particular around the Zuqar/Hanish
archipelago. As pointed out below, it is not clear whether those actions were
evidence of fisheries control and administration or whether they primarily
related to security measures, or both, particularly in light of the fierce
struggle by the Eritrean freedom fighters in the two decades prior to Eritrean
independence. In any event, there is little evidence that the Ethiopian
activity was based on fisheries regulations or laws as such.
259. As
to Eritrea, the evidence only dates from early 1992. In January of that year
the Eritrean provisional government issued a notice prohibiting in general
terms unlicenced fishing activity in "Eritrean territorial waters".
Eritrea has asserted that its Ministry of Marine Resources "has regulated
fishing in Eritrean waters since shortly after Eritrean independence." On
1 April 1995, the Ministry of Marine Resources issued a "Manual and
Guidelines for the Administration of Foreing [sic] Vessel Licensing and
Operations."
260. In
September 1995, Trawler Regulation I was issued by the Ministry of Marine
Resources. The statement is made by Eritrea that the handout appended to
Trawler Regulation I "includes the Zuqar-Hanish islands within Areas No.
11 and 12 (Beilul and Berá isole)."(20) The
areas are separated laterally by dotted lines. These lines do not however
extend to, or surround, the Zuqar/Hanish archipelago. (Comparison with Maps 1
and 2 shows, in the case of Map 2's depiction of the Dahlak
("Dehalak") archipelago, a carefully-drawn lateral boundary around
the Dahlaks.)
261. As
far as Yemen is concerned, there is no evidence of any regulation or order as
such regulating fisheries as such in Yemeni waters. The evidentiary record is
devoid of any assertion of a formal legal basis for fisheries jurisdiction
assumed by the Yemeni Government over the waters surrounding the Zuqar/Hanish
archipelago. A witness statement cited in support of the proposition that
Yemeni Government "launches are vigilant in controlling illegal
fishing" merely details that the witness (a Navy Captain) "was
assigned by [his] . . . command to arrest foreign fishermen pirates . . . who
were looting our maritime wealth in a random and illegal manner," but indicates
no further detail.(21)
262.
Yet Yemen has asserted that it has "tightly regulated fishing activities
on and around the Hanish Islands" and that "the Government has
actively controlled illegal fishing." There is a substantial record of
fishing vessel arrests by Yemeni authorities between 1987 and 1990. It should
be noted however that they are recent in time, and appear to have been
primarily directed in recent years against large Egyptian industrial fishing
vessels.
263. In
conclusion, the Tribunal is of the view that the activities of the Parties in
relation to the regulation of fishing allows no clear legal conclusion to be
drawn. The record of these activities under Ethiopian administration is, as
will be seen below, open to conjecture. Since Eritrean independence, the record
is less than clear. Since 1987, Yemen appears to have been engaged in some
regulation of fishing, primarily directed toward larger vessels. The balance of
this evidence does not appear to tilt in one direction or another.
Fishing
Vessel Arrests
264.
Although there is evidence before the Tribunal that a substantial number of
arrests of fishing vessels for violation of the respective fishing regulations
and orders have occurred, the period of time comprised in that evidence is
brief. It is difficult therefore to characterize those actions as the
"continuous and peaceful display of state authority."
265.
The evidence before the Tribunal concerning Ethiopian regulation of fishing or
fishing violation arrests is almost wholly derived from former Ethiopian naval
officers. There are many detailed witness statements that recount service in
the Ethiopian patrolling forces during the Eritrean war of independence In most
instances the whereabouts of particular incidents are rendered in general
terms, albeit with frequent reference in particular to islands of the
Zuqar/Hanish archipelago. Although there are few dates given for the various
vessel arrests referred to in the witness statements, the majority of
activities reported appear to have taken place during the two decades preceding
Eritrean independence in 1991.
266. A
fair reading of the witness statements shows that by far the principal concern
of the Ethiopian military during this period was to combat the EPLF activities
on and around the Islands and to deny the use of the Islands to rebel forces
either as a staging area for strikes on to the Eritrean coast of Ethiopia or as
supply depots and strategic bases. The Ethiopian naval officers concerned did
also exercise police powers when they would stop and check fishing boats.
267.
The primary purpose of such an exercise was suppression of the insurgency. In
most of these cases the witnesses stated that part of their duties was to stop
all fishing boats and check their papers and cargo. Thus, "[t]he Dankali
fishermen were suspected of cooperating with the rebels in smuggling arms,
ammunition and other supplies across the Red Sea." However the duties of
these naval patrols also extended to keeping foreign fishermen out of what
Ethiopia considered to be her territorial waters. Vessels that were not
licensed to fish in the waters or that were of non-Ethiopian registration were
arrested or requested to leave.
268.
The Eritrean pleadings state that the evidence shows "the inspection of
fishing and/or commercial vessels as a primary function of their routine
patrols around the islands." Having regard to the fierce fighting that was
going on over the years in question in and around the area in question, it is
not clear that enforcing fishing regulations was the primary purpose of these
Ethiopian naval patrols.
269. At
the same time, the Tribunal is not disposed to discount the evidence introduced
by Eritrea on the grounds that the acts were not "peaceful". Military
action taken in a civil war is in any event not normally regarded as a
belligerent act that would have no legal relevance for the question of title.
Accordingly, even though the Tribunal does not accept Eritrea's contention that
most activity was directed at fishing regulation, the Tribunal finds
nonetheless that they are not without legal significance.
270. In
1976, an Ethiopian naval patrol boat arrested three Yemeni fishermen on Greater
Hanish Island. Yemen protested to the United Nations Security Council this
"flagrant act of aggression and . . .distinct violation of the sovereignty
of the Yemen Arab Republic." Ethiopia responded, in a formal letter from
its UN Permanent Representative to the President of the Security Council, that
"[t]he Ethiopian patrol boats were carrying out their responsibilities
within Ethiopian jurisdiction."
271.
Following independence, the record shows that much attention became devoted to
control of Eritrean fisheries affairs, entailing inter alia a number of vessel
arrests, some of which involved Yemeni fishermen. Although a substantial number
of witness statements speak of supervisory authority and activity by Ministry
of Marine Resources authorities in conjunction with the Eritrean Navy, the
evidence dates from the time of Eritrean independence and in almost all
instances relates to matters occurring after 1995. Without precise fixing of
coordinates and distances, it is unfortunately difficult to see whether the
activities and vessel arrests in question actually occurred with respect to the
waters around the Zuqar/Hanish archipelago or Jabal al-Tayr and the Zubayr
group. Many witness statements and reports are not clear as to how close to the
contested islands the incidents were.
272. As
to Yemen, a number of incidents between 1987 and 1995 are also in evidence.
There is documentary evidence of an arrest in 1989 of an Egyptian trawler
"next to Zuqar island . . . in the territorial waters of Yemen".
There is also testimony from a Navy Captain that in May 1995 he was assigned
"to arrest foreign fishermen pirates" and that he arrested
"several launches" of "Gulf ownership" with Egyptian crews
after a gun battle "in Yemeni territorial waters," "in an area
between al-Jah and Zuqar". Although Yemen asserted that in 1990 four
Egyptian fishing vessels were arrested "in the area of the Hanish
Group", and the owners required to pay an indemnity to Yemen and undertake
not to repeat their actions, the supporting document does not specify the
location of the arrests.
273.
However, a 1990 report addressed to the Yemeni Defence Ministry describes
twenty separate incidents between 1987 and 1990 in which a total of more than
sixty vessels are reported to have been arrested, accosted, "escorted
to" a naval base, or "warned to leave" - a good number of these
incidents appear to have related to Egyptian commercial fishing vessels. While
some of these are described as having been in the vicinity of the Zuqar/Hanish
archipelago or Jabal al-Tayr, Zubayr and Abu Ali, the report refers to the
"area of" a named island or islands; one exception is a report of
unlicenced fishing by two Egyptian trawlers "at Zuqar". In most
instances, when vessels were ordered to leave, the report states that the
warnings specified that they should depart "from territorial waters"
or "from Yemeni waters".
Other
Licensing Activity
274.
Apart from fishing, there have been no attempts on the part of Eritrea to
demonstrate any licensing activities in respect of the waters off the Islands.
For its part, Yemen asserts the official approval in 1993 of plans for a tourist
boat operation between al-Khawkha and Greater Hanish. There was also a license
granted by Yemen to a German company for the building of a diving centre on the
north end of Greater Hanish in 1995. As will be discussed below, between 1972
and 1993 the Yemeni Government recorded eight instances of requests for
approval for activities relating to the use of the waters around the Islands,
and in several cases approval was given for research and diving expeditions and
the like.
*
- *
Granting
of Permission to Cruise Around or to Land on the Islands
275. As
discussed, there is an abundance of evidence before the Tribunal relating to
the manifold activities of the Ethiopian Navy in the 20-year period before
Eritrean independence. That evidence largely indicates that the Ethiopian naval
patrols operated intensive patrolling in and around the Islands during the
Ethiopian war against the Eritrean insurgents. In that role, the naval vessels
stopped ships, boats and dhows in those waters, requested identification and
inspected equipment and cargo. Tourist vessels anchored near the Zuqar-Hanish
islands were arrested and brought into Ethiopian ports for investigation and
the film from their cameras was destroyed.
276.
There is evidence that informal requests from third parties for permission to
cruise around, anchor at or land on the Islands were sometimes made to naval
patrols. For example, one witness statement indicates that radio requests made
to Ethiopian patrol craft to anchor "at the north western cove off
Hanish," received from "large foreign commercial vessels"
(including ones of Greek, Japanese, Yugoslavian and Italian nationality), were
granted for reasons such as "repairs, shelter or rest."
277. As
to Yemen, there is evidence that in 1978 three Kuwaiti fishing trawlers
requested and received shelter from a storm at Jabal Zuqar, and that on two
occasions in 1991 foreign flag vessels sought and received permission to anchor
at Zuqar and Hanish for repairs.
278. In
addition, between 1972 and 1995 Yemen received at least eight formal requests
from third parties, including one from a foreign Government, for permission to
cruise around, anchor at, or land on the Islands: A request from an Italian
organization to conduct research on Jabal Zuqar was declined by the Government
of the Yemen Arab Republic in 1972; the French Government in 1975 requested
permission to conduct naval exercises in the vicinity of the Hanish Islands; in
1983 a request from a French organization to film submarine life was approved;
in 1987, a German request for scientific research studies to be conducted by
the F.S. Meteor around the Hanish Islands was approved by an official
governmental decree and the project was completed without incident; for indeed The
Meteor seemingly carefully avoided the territorial waters of both Ethiopia
and Yemen. In 1992 approval was given for a diving trip by a British yacht, the
Lady Jenny V, around the Islands; in 1993 the Yemen Government approved
a research expedition to the Zuqar/Hanish archipelago to be conducted with the
Royal Geographical Society; in 1993, the Government approved the French
research expedition of the Ardoukoba Society to Greater Hanish, and also
approved a German diving expedition on the yacht Cormoran. There is also
an unsupported statement that a Polish request for diving in the area was
rejected in late 1995.
279. It
should be noted however that there is no specification of the islands in the
application or report of the cruise of the Meteor though the Report mentions
the Hanish Islands and states that "maximum values were noted at the
Hanish Islands..." Moreover, the terms of the license specified that the
"research operation must be conducted in waters at a depth of 100 meters
or more", thus excluding research in any close proximity to the Islands.
280.
What can be concluded is that there was somewhat greater Yemeni activity than
Ethiopian/Eritrean activity in the granting of permission relating to the
Islands in the periods stated.
Publication
of Notices to Mariners or Pilotage Instructions Relating to the Waters of the
Islands
281.
Other than Eritrea's fishing regulations, Eritrea has produced no evidence of
publication, by Ethiopia or by Eritrea, of general information concerning
pilotage or maritime safety.
282. In
the five years between 1987 and 1991 Yemen published six Notices to Mariners in
connection with its installation of new lighthouses in the Islands. These were:
Centre Peak (1987 and 1988); and Jabal Zuqar (1989). Following the 1989 London
Conference on Red Sea Lights, Yemen issued a Notice to Mariners concerning a
new solar lighthouse on Jabal al-Tayr, and one concerning a new system on Abu
Ali. In 1991 the Yemen Ports Authority constructed a new lighthouse on Low
Island, and an official telex notification was sent to the Hydrographer of the
Royal Navy in Taunton (referring to it as "Hanish as Saghir" Island).
In 1992 a similar telex was sent indicating a "beaconpipe" at
"Jabal-at-Tair", a lighthouse at "Sawabey" (al-Zubayr), a
lighthouse at Abu Ali, a beacon at Zuqar, and beacons at Hanish Sashir and
Hanish Kabir.
283.
The Tribunal notes that such notices form a natural adjunct to the operation
and maintenance of lighthouses, but that latter function, in the particular
circumstances of the Red Sea, does not generally have legal significance. The
issuance of such notices, while not dispositive of the title, nevertheless
supposes a presence and knowledge of location. Moreover, it is to be noted that
in relation to these indications, accuracy in identifying the navigational aid
and its location is of the prime importance, rather than the provenance of the
information.
Search
and Rescue Operations
284.
Eritrea has produced evidence maintaining that in 1974, the M.V. Star of
Shaddia was stranded off Zubayr. There is no evidence as to her
nationality. HMS Ethiopia attempted a rescue, but was unable to approach
the ship because of severe weather and mechanical difficulties, and departed
without being able to assist.
285. In
1990, the Yemeni Ports Authority rescued an Iraqi vessel, the Basra Sun,
from the rocky coast of Jabal Zuqar after it had requested assistance.
286.
Since there is under the law of the sea a generalized duty incumbent on any
person or vessel in a position to render assistance to vessels in distress, no
legal conclusions can be drawn from these events.
The
Maintenance of Naval and Coast Guard Patrols in the Waters Around the Islands
287.
Eritrea has produced a large amount of evidence relating to naval patrolling
activity in and around the Islands. The activities alleged are for the most
part not referred to in documentary evidence, but rather in affidavits prepared
in connection with these proceedings. However, the Tribunal takes note of
statements by Eritrea that a large amount of Ethiopian naval records were
destroyed in the course of hostilities.
288.
1953-1973: For the first twenty-year period (1953-1973), Eritrea has introduced
two types of evidence: naval logbooks from 1959-1967 and naval operations
reports primarily from the 1970s.
289.
Naval logbooks: The Eritrean Memorial states that "there are numerous
records that the Islands were 'visited and/or observed'"(Eritrean
Memorial, p. 427), implying that most of the logs indicate this. It also states
that they "demonstrate in painstaking detail the continuous Ethiopian
presence in the disputed islands" and characterizes them as
"record[ing] visits" to the Islands.
290.
However, the logs themselves - in contrast with the operations reports -
relating to the years 1959, 1961, 1962, 1963, and 1967, do not use the word
"visit." Moreover, it is not clear to the Tribunal what that term
entailed. The "observations" are largely contained in Column (13) of
the standard printed logbook form, labelled "Soundings Fixes Bearings
Observations," and a study of the entries in that column shows that they
are almost uniformly position "fixes" of azimuth bearings on land
points and islands, sometimes from as far as fifteen miles offshore.(22) The Tribunal cannot therefore draw many useful
conclusions about Ethiopian exercise of governmental functions with respect to
the Islands on the basis of these logs alone.
291.
Operations reports and orders: Eritrea has placed in evidence three operations
reports - two cruises in April 1970 and one in July 1971. However, the language
in which the missions are recorded in the operations reports is too vague to be
relied upon as establishing state functions with respect to the Islands in this
case, e.g., patrolling the "area south" of Greater Hanish and the
Haycocks, sailing "to Grand Hanish and back," and investigating
vessels "south of Zuqar" and "vicinity Jebel Attair." The
only relevant precision accorded by this evidence is in the operation report of
HMS Ethiopia for July 20/21 and 25/26, where she "[a]nchored Zuqar"
overnight in order to remedy mechanical difficulties. Episodes of that nature
can hardly give rise to a legal claim of occupation and control.
292.
Furthermore, although the Eritrean Memorial captions its description of the
reports with a statement that they demonstrate the "continuous Ethiopian
naval presence around the disputed islands," for the twenty years in
question they cover only two cruises in April 1970 and one cruise in July 1971.
In consequence, these documents hardly support the assertion that the Ethiopian
Navy maintained a "continuous presence" around the Islands for the
entire period of 1953-1973.
293.
There are also in evidence four operations orders of the Ethiopian Navy, from
January, July, September and October of 1971. They instructed the preparation
of "a Schedule" for visiting the different areas," including
"Kebir Hanish" and "Zukar", and patrols "around Hanish
I[s]lands", "within the route: Dumeira is - Fatmah Lt. - Rs Darma -
Kabir Hanish - Zuqar - Edd and Ras Darma", and another with a similar
routing. They cover less than one year out of twenty, though this may be
explained by the asserted destruction of Ethiopian naval records during the
civil war. In warfare continuing over several decades, it does not seem likely
that Ethiopian activity in controlling insurgency would be limited to a single
year.
294.
1974-1980: Eritrea has also put forward documentary evidence of a similar
nature relating to activities from 1974 up until the end of 1980, but this is
just as sparse as that for the preceding twenty years. Again, it takes the form
of log-books and orders which, being contemporaneous, have a special interest,
as well as correspondence. The log-book entries, for 1974, 1977 and 1980 reveal
the same kind of imprecision as the earlier log-book records, one of which, for
example, while purporting to "record . . . [a] visit . . . to Hanish (on
August 16) [1977]", merely shows "Hanish" in the Column (13) of
the Log under "Soundings Fixes Bearings Observations" as having been
sighted by P-203 at 0400 on August 16th, at a bearing of 325° and at a distance
of 20 n.m. This is not evidence of a "visit", nor of passage
through the territorial sea of that island.
295.
Additional evidence has been presented describing the Ethiopian/Eritrean sea
battle off the island of Zuqar after the capture of the merchant ship Salvatore
by the ELF on the way to Assab in June 1979, but it is not clear what
evidentiary relevance can be ascribed to this incident. Finally, P-203's
Log-Book in May 1980 records warning shots at a Canadian and a West German
boat; the precise location is not indicated in the log but the incident is
noted in an entry which begins "slipped out for patrolling Hanish to
Zuqar". The 1980 capture of five wooden boats referred to in the pleadings
is not particularized further than occurring "near the islands of Lesser
Hanish." In April 1980 some Yemeni fishermen were captured "near
Zuqar Island," and others were also captured "in the vicinity of the
Zuqar/Hanish islands." This incident was in fact protested by North Yemen.
296.
Eritrea states that the "most critical Ethiopian naval event of 1980"
was "Operation Julia"; and that it "resulted in twenty four hour
surveillance and a blockade of the entire area for the entire three month
period of the operation". When the map submitted in evidence is consulted,
it shows what appear to be four areas of patrolling off the Ethiopian/Eritrean
coast: two close on shore, one half-way to Greater Hanish from the coast, and
one lying approximately 3-4 n.m. west of Near Island and Shark Island on the
west side of Jabal Zuqar, and running south across Tongue Island to just north
of Marescaux Rock. The context of Operation Julia shows quite clearly that this
was a series of grave incidents at sea between the Ethiopian naval forces and
the rebel forces, and that the Ethiopian naval forces patrolled their own
coastlines, and the sea mainly west of the Islands facing the Eritrean coast; a
main purpose of the operation having been to stop rebels "infiltrating
into Assab District".
297.
1973-1993: For the second twenty-year period, Eritrea has also placed
substantial evidence before the Tribunal, largely in the form of seven witness
statements specially obtained from seven former Ethiopian navy officers and two
witness statements obtained from two former EPLF naval fighters. With one
exception, the testimony relates only to activities from 1968 on. The
testimony, summarized in the written pleadings, largely concerns activities at
sea extending over substantial periods between 1964 and 1991.
298. It
is however possible only to rely on this testimony for the most general of
indications. In ten out of the thirty incidents described by Eritrea the
identity of the Ethiopian or Eritrean vessel is not given. The dates of the
incidents are given in only nine cases. Their locations are specified in only
three, but in those three instances the time frame extends over indeterminate
periods of eight months, five years, and one month respectively. There is
therefore no evidence of an arrest or stopping by Ethiopian or Eritrean naval
forces with both a precise location and a precise date, for the
entire period from 1970-1995.
299. In
a close reading of the witness statements provided by Eritrea, three other
interesting points emerge with clarity which should assist in evaluating the
context and scope of this evidence. These points have not been controverted in
the proceedings.
300.
The first point is that out of the seven witness statements of former Ethiopian
naval officers, three record no landings on the Islands. The remaining four are
imprecise with respect to either date or location. There are two witness
statements that mention more than isolated landings during the entire period
from 1973-1993.
301.
The second point relates to the nature of the patrols which, as well as being
fast, appear to have taken place at night, and sometimes in conditions of
darken ship. These factors bear upon the absence of protest by Yemen.
302.
Third, although some of the evidence does recite that the "purpose of
these patrols was primarily to apprehend vessels carrying contraband and to
keep foreign fishermen, who were generally from Yemen, out of our territorial
waters", it is not clear that a major twenty-year military operation
increasing in intensity can be viewed as primarily related to fishing. There is
certainly some validity to the argument that checking fishing boats on a
regular basis was an essential part of checking for insurgents and contraband
weapons. Just as checking ELF dhows for small arms and ammunition was essential
to defeating the rebels ("[t]he dhows could carry hundreds of sheep and
goats, so they would hide the supplies underneath the livestock where it was
impossible or us to search") so was checking fishermen (" . . . we
would often see Dankali fishermen further east, in the area of the islands . .
. . We would check the identification papers for the boat, captain and crew and
look for contraband and armaments.") However, normal fisheries surveillance
does not require checking for "contraband and armaments".
303.
There also appears to be, in this evidence, a discrepancy in Eritrean witness
statements as to the presence of Yemeni fishermen. While some witnesses state
that "Yemeni fishermen were almost never reported to be in the area of
Zuqar and Hanish at this time" (the late 1980's) and "I never
encountered a Yemeni fishermen [sic] in the waters around Zuqar and
Hanish", others state: "[w]e patrolled east of the Dahlaks as well as
the Hanish islands" and "[s]ometimes, our patrols would find Yemeni
fishermen fishing in Ethiopian waters, including around Zuqar/Hanish."
304.
1983-1991: These witness statements were also intended to supplement the
documentary evidence put in by Eritrea as to activities from 1983 through 1991
but this evidence is imprecise. Speaking almost consistently in terms such as
"around Hanish and Zuqar," "the environs of Hanish,"
"in the vicinity of Jabal A'Tair," these operations and reports and
sailing orders are sparse chronologically: May 1983, October 1984, September
1984, May 1986, July 1984, and August 1987. Even if this evidence were precise
as to location and relevance to the Islands, it could still hardly provide a
demonstration of a "continuous Ethiopian naval presence around the
disputed islands" as it covers only six months out of ninety-six and
leaves out four years entirely of that continuous naval presence.
305.
Nevertheless, the extent of this evidence and its homogeneity do suggest the
conclusion that the Ethiopian Navy, during the period in question, did in fact
conduct widespread surveillance and military reconnaissance activities in the
waters around the islands. It is uncontroverted that these patrols were
frequent and, in the course of the Ethiopian war against the ELF and the EPLF,
of steadily increasing intensity. Elements of the Ethiopian Navy anchored
frequently off the Islands, sent details ashore for reconnaissance missions,
and even bombarded suspected rebel facilities on the Islands.
306.
With the exception of the 1976 incident discussed above (which was protested to
the Security Council of the United Nations), North Yemen (and, later, the
Republic of Yemen) did not protest any of these Ethiopian naval activities.
Although such a lack of protest would normally appear to suggest a degree of
acquiescence, four elements need to be weighed by the Tribunal in considering
the evidence: the location of the Islands, the fact that they were not settled,
and the fact that there was no normal line of communication from persons on or
near the Islands to the mainland; the fact that many of the Ethiopian patrols
appear to have been conducted at night under conditions of darken ship; the
fact that many of those patrols were conducted at high speed; and the fact that
civil hostilities were in progress.
307. At
the same time, the failure of Yemen to protest the considerable presence of
Ethiopian naval forces around and sporadically on the Islands over a period of
years is capable of other interpretations. If Yemen did not know of that
presence, that belies Yemeni claims that there were Yemeni settlements of
fishermen on the Islands and that Yemen patrolled the waters of the Islands and
indeed maintained garrisons on them. If Yemen did know of this Ethiopian
presence, and if, as the record shows, did not protest it, that could be
interpreted as an indication that Yemen did not regard itself as having
sovereignty over the Islands, or, at any rate, as an acknowledgment by Yemen
that it lacked effective control over them.
308.
Yemen could take the view that belligerent acts by Ethiopia against insurgents
using the Islands were not elements of continuous and peaceful occupation by
Ethiopia, or that Ethiopian regulation of Yemeni fishing vessels found within
the waters of the Islands was incidental to Ethiopian belligerency. But such
acts, belligerent or otherwise, could not normally be reconciled with Yemeni
sovereignty over the Islands. Thus, if Ethiopia's naval presence in the Islands
over the years does not establish Ethiopia's (and hence Eritrea's) title, it
may nonetheless be seen as throwing into question the title of Yemen.
309.
The Tribunal has found it necessary to address at some length the Eritrean
evidence relating to naval patrolling over a substantial period of time. At the
same time it must be noted that Yemen has not suggested to the Tribunal that it
conducted more than a very few activities during this entire period of naval
operations by Ethiopia. Yemen has not explained its lack of protest.
310.
Essentially Yemen relies on two witness statements. In one statement, Yemen
asserts that patrols of the Islands were "carried out on a regular
basis" - weekly in the summer and "once every month or two" in
the winter but the dates are unspecified. A specific date, but a very recent one,
is given by this statement for an assignment "to arrest foreign fishermen
pirates" (May 1995). This statement also tells of intercepting foreign
warships (American, French and Russian) "in these islands" and
requesting them to leave, but no dates are supplied except for an incident with
a Russian merchant vessel "on the western side of Zuqar off of Shaykh
Ghuthayyan about 1977-78." Interception of an ELF dhow between Zuqar and
al-Jah was recorded "about 1974-75."
311. In
the other statement, evidence is given that "during the years of 1965 to
1977" the Yemeni naval forces carried out regular patrols around the
Islands, saying that "[t]hey always anchored at the anchorages of these
islands and patrolled around them" (specifying the anchorages by name),
and that "[o]ur soldiers and officers would land onto their shores."
The statement adds, without specifying dates, that "[m]any times our
officers and naval enlisted personnel would land on the shores of those islands
(Zuqar, Greater Hanish, Lesser Hanish, and al-Zubayr) on dismounted
reconnaissance missions (on foot), as well as to swim and relax." The
period is not specified other than generally from 1965 to 1977.
Environmental
Protection
312.
Yemen reports having investigated an oil spill reported by a Russian freighter
about 10 miles from Lesser Hanish in 1990.
Fishing
Activities by Private Persons
313.
There was substantial debate between the Parties as to whose fishing community
was more important, and as to how important a part fishing and fish played in
the economic life of each state. The Tribunal does not find these arguments
pertinent, since in any event it may be expected that population, and economic
realities, will change inevitably over time. What may be very important today
in terms of fishing may be unimportant tomorrow, and the reverse is also true.
314.
For Eritrea, the evidence before the Tribunal includes the statement that
"[t]here are more than 2,500 Eritrean fishermen, many of whom are
artisanal fishermen engaged in small-scale fishing using traditional methods
and equipment" and that "[t]he waters around the Zuqar-Hanish islands
supply a significant portion of Eritrea's annual catch." For Yemen, the
statement has been made that: "[f]ishing communities along the Yemeni Red
Sea coast have historically depended on the neighbouring islands of the Hanish
Group for their economic livelihood."
315.
Numerous witness statements were submitted by both sides as to the longevity
and importance of their respective fishing practices and the significance of
fishing in the lives of their people. Yet, although substantial evidence of
individual fishing practices in the record may be taken as a different form of
"effectivité" - i.e., one expressive of the generally
effective attitude and practice of individual citizens of Eritrea or of Yemen -
it is not indicative as such of state activity supporting a claim for
administration and control of the Islands. This varied and interesting
evidence, on both sides, speaks eloquently concerning the apparent long attachment
of the populations of each coast to the fisheries in and around the Islands,
and in particular that around the Zuqar-Hanish islands. However it does not
constitute evidence of effectivités for the simple reason that none of
these functions are acts à titre de souverain. For state activity
capable of establishing a claim for sovereignty, the Tribunal must look to the
state licensing and enforcement activities concerning fishing described above.
316. Yemen
has put into evidence a substantial number of arrests of commercial fishing
vessels in the past few years in the waters around the Islands. These arrests
have been accompanied by legal proceedings, expulsion of the vessels from the
waters, and substantial fines. The arrested vessels appear to have borne
foreign registries other than Ethiopian or Eritrean and in most cases seem to
have been Egyptian. No protests of these activities have been recorded from
Ethiopia or Eritrea. Eritrea also produced a witness who related that
"between 1992 and 1993" while a commercial captain in the
Zuqar-Hanish waters he reported about 20 Egyptian trawlers. "Some of these
trawlers were confiscated..." He further stated that in his job at the
Department of Marine Transport it is his current responsibility "to
determine what should be done with them."
Other
Jurisdictional Acts Concerning Incidents at Sea
317. A
lost dhow was searched for off the Islands, and an investigation conducted by
Yemeni authorities in 1976; a drowning at sea at Greater Hanish was
investigated by Yemeni authorities in 1992.
*
- *
Activities
on the Islands
318. In
order to examine the performance of jurisdictional acts on the Islands, the
Tribunal must consider evidence of activities on the land territory of the
Islands as well as acts in the water surrounding the Islands. This evidence
includes: landing parties on the Islands; the establishment of military posts
on the Islands; the construction and maintenance of facilities on the Islands;
the licensing of activities on the land of the Islands; the exercise of
criminal or civil jurisdiction in respect of happenings on the Islands; the
construction or maintenance of lighthouses; the granting of oil concessions;
and limited life and settlement on the Islands.
Landing
Parties on the Islands
319.
The direct evidence presented shows little or no landing activities on the
Islands by either side.
320.
Eritrea's evidence shows that during the twenty years of the emergency there
was substantial activity onshore and off the Islands by elements of the
Ethiopian navy engaged in suppressing the secessionist movements. The record
indicates clearly that the Islands were used heavily by rebel forces in
connection with their war of independence. As discussed above, in the context
of naval operations around the Islands, two substantial patrols and a number of
unspecified landing parties by Ethiopian military forces are in evidence for
the period between 1970 and 1988.
321. On
the part of Yemen, there was an official visit to Jabal Zuqar and the Abu Ali
Islands in 1973 following the publicity about possible Israeli presence on
those islands. In response to the Tribunal's request for specific information,
the Secretary-General wrote to the President of the Tribunal on 28 July 1998,
informing him that there had never been "any visit to any of the islands
in the red sea by any official delegation of the League of Arab States headed
by the secretary general." The letter reported a 1973 meeting between the
Secretary General of the Arab League and the Ethiopian foreign minister, to
discuss Arab concern about reports of Israeli use of the Dahlak islands and
other islands in the bay of Assab. The Ethiopians invited an Arab League
delegation to visit the islands in order to confirm that there was no Israeli
presence, "but no such visit was ever made." Finally, the Arab League
letter states that "in 1971 and 1973, members of the League of Arab
States' military committee, including yemeni officers, visited the islands of
the hanish group including zuqar as well as the zubair islands with the sole
cooperation and assistance of the Governments of the People's Republic of Yemen
and the Yemen Arab Republic." According to the Secretary General, no
report of these visits had been found in the League's archives.
322.
Other Yemeni assertions of military presence on the Islands rely heavily on one
witness statement describing unspecified landings over a period of time with
unspecified dates, other than generally from 1965 to 1977.
323. Yemen
has also placed into evidence information concerning field trips by faculty and
students of the Staff and Command College in 1987 and 1990. It does not appear
that the trips were for more than a very brief period of time, or left any
lasting effects.
Establishment
of Military Posts on the Islands
324.
The evidence presented shows no permanent military posts on the Islands before
1995. Although Eritrea's statements include the mention of landing parties, it
was explained that no garrison had been established and the relevance of such
garrisons was denied. Rather, Eritrea emphasized that what was legally relevant
were sovereign acts tailored to the character of the territory in question,
namely military surveillance and fishing regulation.
325. As
to Yemen, although the written pleadings state that "a temporary military
garrison" was "established . . . on Jabal Zuqar at the time of"
the 1973 visit, and that "[d]uring the 1970s, the Government placed guard
posts on other islands in the Group, including on Greater Hanish", no
evidence was submitted to substantiate that statement. Photographs introduced
into the record of groups of military personnel standing on the Island do not
give the impression of permanence. It is also to be noted that no structure or
building is shown in the photographs; one would have expected that, had there
been any structure or building available, it would have been captured on film.
326.
The Tribunal concludes that it cannot accept that a permanent garrison or
military post was established on the Islands until following the outbreak of
the dispute in 1995.
Construction
and Maintenance of Facilities on the Islands
327.
There is no evidence of the construction or maintenance of any type of
facilities on the Islands by Eritrea. Eritrea nevertheless claims, as an
indication of Ethiopia's "consolidation of sovereign control over the
disputed islands," that following the hand-over of Aden in 1967 the
lighthouses on Abu Ali and Jabal al-Tayr were managed by a private company then
based on Asmara, and that Ethiopian regulations applied to transactions by that
company in connection with its management and maintenance of those lighthouses.
The Tribunal does not consider this to be persuasive.
328.
Yemen has however constructed some lighthouses and has maintained others. The
operation or maintenance of lighthouses and navigational aids is normally
connected to the preservation of safe navigation, and not normally taken as a
test of sovereignty. Maintenance on these islands of lighthouses by British and
Italian companies and authorities gave rise to no sovereign claims or
conclusions. The relevance of these activities and of Yemen's presence at the
1989 Red Sea Lights Conference are examined in Chapter VI.
329.
Yemen also points to the siting and installation of two geodetic stations by
French companies in 1992 on behalf of the Yemeni Government on Jabal Zuqar and
Greater Hanish as examples of state action. Eritrea's response is that these
markers were placed secretly and are in any event modest. The Tribunal cannot
give too much weight to such small monuments of this nature, and yet must also
note that in fact the markers were installed before the exchange of
correspondence between the two heads of state in 1995; that they do exist; and
that they are reflected on a map of geodetic stations in the Yemen.
330.
The maintenance of shrines and holy places that was also presented in Yemen's
materials appears to be of a private nature; no governmental activity is
suggested. There is unsubstantiated testimony before the Tribunal that
"[o]ur government built an airfield between al-Shura and al-Habal [on
Greater Hanish] for helicopters." The airstrip constructed by Total on
Greater Hanish with Yemen's authorization in relation to the 1985 Total concession
and subsequently dedicated to rest and recreational visits by Total employees
is discussed in Chapter IX.
331.
Although evidence concerning the intentions in May 1995 of the Yemeni General
Investment Authority is recent, and although such indications are only of state
action without specific object, it nevertheless demonstrates that on a high
governmental level the Yemeni authorities were seriously considering that
investment should be encouraged for tourism on Greater Hanish, Lesser Hanish,
Abu Ali, Jabal al-Tayr and al-Zubayr; thus official government policy
implicitly relied on Yemeni sovereignty over these Islands at that time.
Licensing
of Activities on the Land of the Islands
332.
Eritrea has suggested that the fact that authorization was required for the
private firm Savon & Ries to ship radio transmitters to Abu Ali and Jabal
al-Tayr, the islands on which that firm maintained lighthouses, was indicative
of the exercise of state control. However the regulation of electronic
equipment used by a private firm whose personnel were operating in a zone in
which military activities were conducted cannot be viewed as an exercise of
sovereign authority with respect to the land territory of the islands
concerned.
333.
Eritrea has produced evidence of the grant of a licence for the operation of a
radio transmitting station on Greater Hanish in connection with petroleum
activities to be conducted in the vicinity.
334. As
to Yemen, discussion follows concerning its construction and maintenance of
lighthouses on the Islands. To the extent that most of the useful economic
activity and interest in the Islands is generated by their position in the Red
Sea and by their relationship to their surrounding waters (whether for purposes
of smuggling, fishing, or tourism), most of the licensing activities that have
taken place have all been water-related. One brief but not insignificant use of
the land resources on the Islands that was also water-related was the recent
amphibious scientific research expedition of the Ardoukoba Society to Greater
Hanish, authorized by Yemen.
Exercise
of Criminal or Civil Jurisdiction in Respect of Happenings on the Islands
335. In
1976, a military court of the Ethiopian Government conducted a trial of
employees of Savon & Ries, the lighthouse maintenance company servicing the
lights on Abu Ali and Jabal al-Tayr, on accusations of leading and training a
subversive group on those islands. The resulting execution of the finance
officer and expulsion or imprisonment of a head lighthouse keeper and others caused
the company to move its offices from Asmara to Djibouti.
336.
The examples of contemporary exercises of criminal jurisdiction over matters
occurring in the Islands by Yemeni authorities include a 1976 investigation of
a missing dhow and, in 1992, the investigation of the loss at sea of a
fisherman off Greater Hanish.
337. In
addition, Yemen asserts that for many years the local fishermen have used their
own customary law system of arbitration of local disputes under the authority
of an aq'il - "a person known for wisdom and intelligence."
There is a senior "Aq'il of the Sea" the most noted of whom is
said to have "resided part of the year on the Yemeni mainland and part of
the year at his settlement ('Izbat al-Sayyid' Ali) on Greater Hanish." The
final authority above village aq'ils or the Aq'il of the Sea is
the "Aq'il of the Fishermen," who is a dignitary officially
recognized by the Government of Yemen.
338.
The aq'ils apply what is asserted by Yemen to be a
"well-established Yemeni body of customary law, known as the urf
", to resolve the fishermen's disputes. There is evidence before the
Tribunal that the judgments or decisions of aq'ils are binding.(23) Indeed, in the man overboard case just referred to,
the evidence before the Tribunal is that "[t]he owner and crew members
both informed the local official, who is known as the Aq'il Sheikh of
the Fishermen, and the Department was notified by the Aq'il."
339.
The existence of this customary law system of arbitration of small disputes
does not appear to be contested by Eritrea. There is evidence that the urf
and the aq'il system appear to be applicable to Yemenis and non-Yemenis
within Yemeni territory, and to be regularly applied to problems occurring on
the Islands.
340. In
the Tribunal's understanding, the rules applied in the aq'il system do
not find their origin in Yemeni law, but are elements of private justice
derived from and applicable to the conduct of the trade of fishing. They are a lex
pescatoria maintained on a regional basis by those participating in
fishing. This reflects the reality also that the principal market for fish is
in Hodeidah, on the Yemeni side, and that the fishing activities in the area of
the Islands have long been conducted indiscriminately by fishermen on each side
of the Red Sea on a regional basis. The fact that this system is recognized or
supported by Yemen does not alter its essentially private character.
Construction
or Maintenance of Lighthouses
341.
The question of lighthouses has already been discussed above in Chapter VI. The
present section examines this material only for the purposes of the present
chapter on effectivités. The lighthouses as Abu Ali and Jabal al-Tayr
were administered by the lighthouse management company, Savon & Ries. This
company maintained its operation in Asmara until 1976, when it moved its office
to Somalia because of prosecution of its staff by the Ethiopian Government for
allegedly subversive operations (see para. 335, above). There is however no
legal basis for concluding that the location within a state of the office of a
private firm, operating under a management agreement for the maintenance of
lighthouse facilities on islands, constitutes an intentional display of power
and authority by that state.
342. As
to Yemen, starting in 1987 a programme of installation of new lighthouses in
the Islands was undertaken, beginning with Centre Peak in 1987 and 1988 , and
Jabal Zuqar in 1989.
343.
Following the 1989 London Conference on Red Sea Lights, Yemen installed new solar
lighthouses on Jabal al-Tayr and Quoin (Abu Ali islands). In 1991, a new
lighthouse was constructed on Low Island. Finally, a lighthouse was erected on
Greater Hanish in 1991.
344.
Yemeni Governmental authorities communicated the construction and identification
of each of these lighthouses to the public by means of public notices or
Notices to Mariners, as described more fully in paragraph 282 above.
345.
The legal effect to be given to the construction and maintenance of lighthouses
in this particular case has been dealt with in Chapter VI, above.
Granting
of Oil Concessions
346.
Because of the significant attention devoted to the legal implications of
petroleum agreements and activities in supplemental written and oral pleadings,
this topic is treated separately in Chapter IX.
Limited
Life on the Islands
347.
There is also evidence that some of the Yemeni fishermen have maintained
"dwellings" on Greater Hanish, Lesser Hanish, and Zuqar, and have
traditionally maintained those structures for a long time; or have
"settled" on Greater Hanish for the summer , or on Addar Ail Islets
or Lesser Hanish for the summer.
348.
Eritrea has advanced some evidence that Eritrean fishermen would stay for brief
periods on the Islands during the fishing season, but the assertions of
"settlements" do not appear to be as prominent in the evidentiary
record as those made on behalf of Yemen. There is evidence by one fisherman
however that "the longest that I know of anyone staying on the islands is
7 to 8 months."
349. In
the pleadings Yemen states that "some Yemeni fishing families have for
generations maintained a permanent presence in the Hanish Group", and
refers to "fishing families resident in the Hanish Group" in the same
context as its discussion of "temporary dwellings" and other
temporary residence by fishermen. No specific evidence has been produced about
families living on the Islands.
350.
One Yemeni witness statement records that naval landing parties "would
meet many Yemeni fishermen . . . who were settled on some of these islands,
salting and drying fish, and staying there for several months."
351.
During the fishing seasons the fishermen from each side could be expected to
spend days and nights on end fishing in and around the Islands, since returning
to port - whether in Ethiopia/Eritrea or in Yemen - would cost a full day's
sailing even if the winds were right. Eritrean evidence is that the Yemeni
fishermen "would stay around the islands for only three or four days and
then go home." Another old Eritrean fisherman recounts that "[w]e
would go to the islands twice a year for three months at a time. Some of us
preferred to sleep on the islands, and others would sleep on the boats. Since
the islands were not inhabited, no one told us we could not sleep there."
352. A
Yemeni witness declared in his statement that "[a]t Greater Hanish I would
settle at the al-Shura anchorage . . . . There were trees there under which we
would seek the shade. We would not have to make dwellings." The statement
continues to describe the anchorages on Greater Hanish, saying that
"[n]ear the Jafir anchorage is the dwelling of Capt. Ibrahim Salim and his
crew . . . . At the other end of the island many others have settled, such as
the anchorage where I am at al-Shura, then the al-Habal dwelling, and beyond is
the Ibn 'Alwan anchorage. In the summer many people settle at the Ibn 'Alwan
anchorage. From al-Qataba alone there are over 40 huris [small
boats]."
353. The
first conclusion must be that settled life on the Islands does not exist, but
that episodic or seasonal habitation occurs, and that it appears to have taken
place for many years. Eritrea asserts that its fishermen have been predominant,
and Yemen asserts the reverse. There is no evident manner in which the Tribunal
can, on the basis of the sparse and conflicting evidence before it, decide the
matter one way or another. The likelihood is not that one nationality prevailed
and the other was absent, but that both were present on the Islands in varying
numbers and at various times - and that any precise calculation of relative use
would, over time, reveal what may be perceived as a genuinely common use of the
waters and their resources.
354.
The second conclusion appears to be that the manner of living on the Islands is
equally indiscriminate: some fishermen stay on their boats; others sleep on the
beach; some construct small shelters; other use larger shelters; some consider
their structures "settlements." The one thing that is clear from the
record is that there is no significant and permanent dwelling structure, or in
fact any significant and permanent structure of any other kind, that has been
built and that has been used to live in.
355.
The third conclusion is that it is not clear from the evidence, in spite of
occasional references to "families" staying on the Islands, whether
any family life is in fact present on the Islands. Inasmuch as the use of the
islands is necessarily seasonal, this would seem to be a priori inconsistent
with family life in the sense of family units migrating to a location where
normal community activities continue, as for example with nomadic herdsmen.
356.
The final conclusion must be that life on the Islands, such as it is, is limited
to the seasonal and temporary shelter for fishermen. The evidence shows that
many of them, of both Eritrean and Yemen nationality, appear to stay on the
islands during the fishing season and in order to dry and salt their catch, but
that residence, although seasonal and regular, is also temporary and
impermanent.
357.
For the time being however it would appear that there is little question but
that this type of activity on the part of nationals of both Yemen and of
Eritrea (and Ethiopia) is activity which, in the words of the Court in the Anglo-Norwegian
Fisheries case of 1951, represents a "consideration not to be
overlooked, the scope of which extends beyond purely geographical factors: that
of certain economic interests peculiar to a region, the reality and importance
of which are clearly evidenced by a long usage."(24)
General
Activities
358.
Finally, evidence of more general activities has been presented to the Tribunal
by the Parties. This evidence includes assertions of conduct relating to
overflight and miscellaneous activities.
Overflight
359.
The act of overflying a substantially deserted group of islands is not one that
would appear to constitute with any cogency an intentional display of power and
authority over them. However it may be noted that in its Attachment 2 to the
response given by Yemen to Question 18 ("Chronology of Selected Yemeni
Acts Manifesting Sovereignty . . .") a number of overflights are recorded,
commencing in April 1982 and proceeding through 1988. Doubtless they were
important incidents of watching the unfolding of the Eritrean liberation
struggle during that decade, but in any event the Tribunal can accord no
substantial weight to these activities.
Miscellaneous
Activities
360.
Yemen has listed a broad variety of actions and acts in a sixteen-page
attachment to its response to the Tribunal's Question 18. A variety of actions
of many different categories have been advanced as supporting the respective
contentions for consolidation of title over the Islands. The Tribunal has noted
the most legally significant acts and positions in its earlier analysis.
361.
Considerable emphasis, however, has been placed by Eritrea on an inspection
tour conducted by President Mengistu and his staff in 1988. A videocassette of
this tour around the Islands was also provided to the Tribunal. The Tribunal is
unable to draw any conclusions from this episode, however, as the presidential
party passed the Islands at speed and at some distance offshore, and did not
stop or go ashore. No question of an intentional display of power and authority
over a territory would seem to be raised by such a passage.
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Notes -
Chapter VII
19.
Eritrea has submitted two translations of this document, one of which refers to
"jurisdiction" and the other to "sovereignty".
20. Map
3 (dated November 1993) shows Area 10 ("Bera'isole") and Area 11
("Beilul"), but Area 12 is actually "Assab-Dumeira."
21. The
samples of fishing and boat licenses supplied by Yemen are not helpful; when
they specify fishing areas, they only state "Red Sea."
22. In one
example, it appears that the officer of the watch has helpfully added estimated
radar ranges of distance, e.g.: "Ø Jabal at Tair Isl. 045° 6.0 by
radar," and "Ø Haycock Isl. 106° 15 by radar," showing that the
vessel (H.I.M.S. PC-12) was far offshore on both occasions.
23.
According to a witness statement submitted by Yemen, ". . . any disputant
who seeks to avoid an unfavorable decision of the Council may find himself
subject to action by the State, including, under certain circumstances,
prison."
24. Fisheries
Case (U.K. v. Nor.) 1951 I.C.J. 116 (Dec. 18) at 133.