CHAPTER
VIII - Maps
362.
Finally, maps must be considered. It appears to the Tribunal that maps are used
by the Parties at different times for different purposes, and that they have
relevance to the dispute in several different ways.
Use
of Maps by the Parties
363.
Older maps, from the eighteenth and early nineteenth centuries, are adduced by
Yemen in support of its thesis that the Islands once belonged to Yemen and that
Yemen therefore possesses an ancient title which should cause sovereignty in
the Islands to revert to it following termination of the Article 16 suspension
under the Treaty of Lausanne. Similarly, maps subsequent to 1872 and earlier
than 1918 are adduced by Yemen to show that the Islands fell under Ottoman
sovereignty during the period in question and fell within the vilayet of
Yemen. Eritrea then asserts that maps from the early twentieth century through
the late 1930s show that Italy claimed to be, or was received as being, the
sovereign over the Islands.
364.
Both Eritrea and Yemen have introduced maps produced by third parties in order
to demonstrate that informed opinion recognized the Islands as respectively
forming part of Ethiopia, or of Yemen, during the period from the early 1950s
to the early 1990s.
365.
Yemen has introduced maps from the period of the early 1950s to demonstrate
that the United Nations considered the Islands not to be part of the Province
of Eritrea (within Ethiopia). Both Parties have introduced maps from the period
of the 1960s onwards, from a variety of sources, respectively indicating that
Yemen treated the Islands as non-Yemeni and that Ethiopia treated them as
non-Ethiopian - and that third parties and authoritative sources considered
them respectively to be one or the other.
366.
Finally, Yemen has introduced evidence showing that Ethiopia, the Eritrean
liberation movement before independence, and the Eritrean Government after
independence have not considered the Islands to be Ethiopian or Eritrean - but
rather Yemeni. Eritrea has introduced evidence to show that Yemen has
attributed the Islands to Ethiopia or to Eritrea. Each side has also accused
the other of waging a deliberate "maps" campaign - from the early
1970s on the part of Yemen to the early 1990s on the part of Eritrea - to alter
the designations, labels, and colours on maps so as to "claim" the
Islands as a part of the other's territory.
367. In
general however the positions of the Parties emerged as quite different overall
in the usefulness they attributed to maps. Even whilst seeking to make the
points just enumerated, Eritrea's essential position was that map evidence in
general (and the evidence in this case in particular) was contradictory and
unreliable and could not be used to establish serious legal positions.
368.
Yemen's position was diametrically different; it sought to justify its use of
maps in the case for at least four reasons: as "important evidence of
general opinion or repute" (in the words of Sir Gerald Fitzmaurice, cited
in the oral hearings); as evidence of the attitudes of governments; to reveal
the intention of the Parties in respect of state actions; and as evidence of
acquiescence or admissions against interest.
The
Purposes Claimed to be Served by Maps in the Case
Pre-1872
369.
Older maps, from the eighteenth and early nineteenth centuries, are adduced by
Yemen in support of its thesis of an ancient or historic title. Most of the
maps clearly show the Zuqar-Hanish group and the northern islands as
identifiable with the Arabian rather than with the African side of the Red Sea.
The Tribunal is not able to judge the extent of the precise territory of the
Kingdom of Yemen (Bilad el-Yemen). Moreover, in these older maps there
is no attribution of the territory of the Islands to Yemen, as such.
370. It
appears not unreasonable to infer from the map evidence that rulers (including
in particular the Imam of Yemen) of Southern Arabia before the 1872 Ottoman
conquest probably did perceive that the Islands fell within their territorial
claim as part of Yemen or of the Arabian coast. However this impression must be
qualified by the fact that it is not possible to evaluate the colour of
maps produced during periods when hand-colouring had to be applied to maps at a
second stage. These factors are therefore not determinative with regard to the
issue of reversionary historic title. Moreover, there is no evidence that
Southern Arabian rulers themselves ever saw or authorized these maps.
Conclusions based on this material would be tenuous at best.
1872-1918
Period
371.
Similarly, maps subsequent to 1872 and earlier than 1918 are adduced by Yemen
to show that the Islands fell under Ottoman sovereignty during the period in
question and fell within the vilayet of Yemen and were administered as
part of that vilayet. The map evidence appears to confirm the fact that
the Ottoman Empire was sovereign over the Islands, upon which fact the Parties
are in agreement.
Period
Between 1924 and 1939
372.
Yemen has introduced a number of maps that appear to prove that Italy in the
inter-war period did not officially consider itself as sovereign over the
Islands. These maps were produced by the Ministry of Colonies in 1933, 1935,
and 1937 and by the Ministry of Italian Africa in 1939, and they show that the
Italian colonial authorities did not consider at the time that the Islands
formed part of the Italian Colony of Eritrea. Yemen has also submitted other
official Italian maps from the Ministry of Colonies (c. 1925 and 1933) and the
Ministry of Italian Africa (1939) of which the first two attribute the Islands
clearly to Yemen as opposed to the Province of Eritrea, and the third
merely omits them from territory of Italian East Africa.
373.
Eritrea has introduced an official Italian map of the 1920s to a contrary
purpose. It is however hard to discern and appears to be done by hand. Weighed
against the evidence submitted by Yemen in terms of official Italian maps of
the period, it is not as clear as the Ministry of Colonies' 1933 and 1935 Maps.
Nor is its date specified.
374. To
the extent that these may be viewed as admissions against interest from
official Italian sources, which are not controverted by Eritrean evidence, they
have relevance to the Eritrean claim that Italy considered herself sovereign
over the Islands at the outbreak of the Second World War. The best
interpretation of this evidence appears to be that official Italian cartography
did not wish formally to portray the Islands as being under Italian sovereignty
in the inter-war period - and even went so far as to assign the Islands to
Yemen. On balance, the evidence seems to establish that Italy, in the
interbellum period, did not consider the Islands to be under Italian
sovereignty or at least does not establish that Italy in that period did
consider the Islands to be under Italian sovereignty.
375.
However, since the Tribunal has arrived at its legal conclusions about the
status of the Islands on the basis of the diplomatic record and agreements
entered into between 1923 and 1939, the map evidence - whilst supportive of and
consistent with the conclusions reached - is not itself determinative. Were
there no other evidence in the record concerning the attitude or intentions of
Italy, this evidence would be of greater importance.
United
Nations Treatment in 1950
376.
Yemen has introduced maps from the period of the early 1950s to demonstrate
that the United Nations considered the Islands not to be part of the Province
of Eritrea (within Ethiopia). The key evidence here is a United Nations Map of
1950. Eritrea has vigorously contested the accuracy of this map, its
provenance, authenticity and effect, saying that "[n]o official map was
adopted by the United Nations".
377. It
is well accepted that, in the United Nations practice, its publication of a map
does not constitute a recognition of sovereign title to territory by the United
Nations.
378.
Whether the map was attached to the report of the United Nations Commission for
Eritrea as an official commission map, or as a compromise - or even as a merely
illustrative map - seems to be beside the point. What it bears witness to is
that it was used and circulated - and received no objection. No protest was
recorded in 1950 or at any later time, and Ethiopia itself voted in favour of
the report with full knowledge of the map.
379.
The map however cannot affirmatively prove that the Islands were Yemeni, even
if they bear the same colour as Yemen. In this instance, the United Nations was
not concerned with Yemen. The map did not in fact concern Yemen as such. What
it shows is that the United Nations when it acted on the future of Ethiopia and
Eritrea did not consider the Islands to be Ethiopian or Eritrean. As
already mentioned in connection with the Italian map evidence of the 1920s and
1930s, since the Tribunal has reached the conclusion that Italy had not
acquired sovereignty over the Islands by 1940, it could not then reach the
conclusion that Ethiopia (and thus Eritrea by derivation) could have acquired
title ten years later by inheritance from Italy.
Informed
Opinion
380.
Both Eritrea and Yemen have introduced a number of maps produced by third
parties (such as independent or commercial cartographic sources, or the
intelligence, mapping and navigational authorities of third states) in order to
demonstrate that informed opinion recognized the Islands as respectively
forming part of Ethiopia, or of Yemen, during the period from the early 1950s
to the early 1990s.
381.
Although the Tribunal must be wary of this evidence in the sense that it cannot
be used as indicative of legal title, it is nonetheless "important
evidence of general opinion or repute" in the sense advanced by Yemen. But
while a considerable number of the maps submitted appear in general to confirm
an impression that the Islands, from and after 1952 to the present day, are
mainly attributed to Yemen, and not to Ethiopia or Eritrea, there are
noteworthy exceptions.
382.
Although Eritrea, on its part, has introduced some respectable independent
cartographic evidence, this evidence appears to be somewhat outweighed by the
contrary evidence from the other side. In some instances the Tribunal cannot
agree with the characterization of the maps sought by the Party introducing it.
Moreover, the Tribunal is unwilling, without specific direction from the map
itself, to attribute meaning to dotted lines rather than to colouration or to
labelling. The conclusions on this basis urged by Eritrea in relation to a
number of its maps are not accepted.
383.
There are also Central Intelligence Agency maps introduced by Yemen and the
corroborative labelling in the U.S. Defence Department Mapping Agency charts of
1994.
Admissions
Against Interest
384. In
1967, the United States Department of State distributed a press package on the
occasion of a state visit by Emperor Haile Selassie to Washington together with
"Background Notes" that included a map that very clearly showed the
Islands as not being Ethiopian. They are clearly shown in black, just as are
Kamaran and the Farasan islands; the Dahlaks are also clearly shown in white,
as part of Ethiopia.
385.
Yemen has introduced evidence showing that Ethiopia, the Eritrean liberation
movement before independence, and the Eritrean Government after independence
have not considered the Islands to be Ethiopian or Eritrean - but rather
Yemeni. Eritrea has also introduced evidence to show that Yemen has itself
attributed the Islands to Ethiopia or to Eritrea. The Tribunal is of the view
that most of this evidence tends to cancel itself out, except possibly for the
Eritrean maps published after 1992.
386.
Yemen further contended that a particular map, asserted by Eritrea to have been
produced for the Eritrean Ministry of Tourism by a private firm and to contain
a number of inaccuracies, had in fact been distributed to foreign missions,
including those of Yemen and the United States, and that it also "hung in
Eritrean Government offices in Asmara." This statement was not
controverted. The Tribunal notes that an early map produced by Eritrea after it
became independent did not attribute to Eritrea all of the islands that it now
claims.
387. On
its part, Eritrea asserts as well that Yemen has authorized the production of
maps that can be interpreted against its interest, including a map published in
1975 which clearly appears to ascribe the Islands to Ethiopia.
Conclusions
as to Maps
388. On
balance, the Tribunal has reached the following conclusions:
As
to the period prior to 1872
Although
Yemen has shown in general that most ancient and nineteenth-century maps
attributed the Islands to the Arabian sphere of influence rather than to the
African coast, the precise attribution of the Islands to "Yemen" has
not been demonstrated.
For
the period from 1872-1918
The
maps produced by each side demonstrate without difficulty that the Islands were
under Ottoman domination during the last years of the Empire's existence. There
is no evidence in the record, nor was there any discussion in the case, about
the effect of this widespread recognition on the validity vel non of the
asserted Yemeni claim to a reversionary interest.
For
the period between the Wars
The map
evidence is to some extent contradictory, but by and large the official Italian
maps of the time demonstrate that even if Italy harboured a desire to annex the
Islands after the Treaty of Lausanne, it certainly did not accompany this
desire with any outward manifestation of state authority in its official
cartography.
For
the post-war period
It is
not possible to conclude from the history of the 1950 United Nations maps that
Ethiopia acquired the Islands after the Second World War, from Italy or
otherwise.
For
the period between 1950 and 1992
The
evidence for this period is beset with contradictions and uncertainties. Each
Party has demonstrated inconsistency in its official maps. The general trend
is, however, that Yemeni map evidence is superior in scope and volume to that
of Eritrea. However, such weight as can be attached to map evidence in favour
of one Party is balanced by the fact that each Party has published maps that
appear to run counter to its assertions in these proceedings.
For
the period from 1992 to 1995
Finally,
evidence is in the record showing broadly-publicized official and semi-official
Eritrean cartography shortly after independence which shows the Islands as
non-Eritrean if not Yemeni. The evidence is, as in all cases of maps, to be
handled with great delicacy.
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