CHAPTER
III – Some Particular Features of This Case
In
General
91. It
is convenient at the outset to call attention to some features of this case. There
is one striking difference between the Parties themselves. Yemen traces its
existence back to medieval times and even before the establishment of the
Ottoman Empire; Eritrea on the other hand became a fully independent state,
separate from Ethiopia, in the early 1990s. Nevertheless, Eritrea traces what
it regards as its own title to the disputed islands through an historical
succession from the Italian colonial period as well as through the post-Second
World War period of its federation as part of the ancient country of Ethiopia.
Accordingly the Tribunal has been presented by both Parties with great
quantities of material put forward as evidence of the establishment of a legal
title through the accumulated examples of claims, possession or use or, in the
case of Yemen, through consolidation, continuity and confirmation of an
"ancient title". All these materials of quite varying character and
weight have had to be sifted, analysed and assessed by the Tribunal.
92.
Since much of these materials relates to the actions and reactions or conduct
of the Parties or of their predecessors, it is well to have in mind that both
have experienced periods in which they were preoccupied by civil wars on either
side of the Red Sea: Yemen from 1962-70, and Ethiopia with the severe and
bloody conflict with Eritrean rebels which resulted in the independence of
Eritrea in 1993.
93. The
disputed islands and islets range from small to tiny, are uniformly
unattractive, waterless, and habitable only with great difficulty. And yet it
is also the fact that they straddle what has been, since the opening of the
Suez Canal in 1869, one of the most important and busiest seaways in the world.
These contradictory aspects of the disputed islands are reflected in the
materials presented to the Tribunal. During the earlier periods the islands
seem often hardly to have been noticed by coastal countries other than by local
traditional fishermen who used them for shelter and their waters for anchorage;
but did receive considerable attention, amounting even to temporary occupation,
from rival colonial powers, notably Great Britain and Italy. This was no doubt
because, after the opening of the Canal, this sea, narrowing in its southern
part where the islands are situated, was the principal route from Europe to
India, the East Indies and the Far East.
94. The
former interest in these islands of Great Britain, Italy and to a lesser extent
of France and the Netherlands, is an important element of the historical
materials presented to the Court by the Parties, not least because they have
had access to the archives of the time, and especially to early papers of the
British Governments of the time. Much of this material is interesting and
helpful. One general caveat needs, however, to be made. Some of this material
is in the form of internal memoranda, from within the archives of the British
Foreign Office, as it then was, and also sometimes of the Italian Foreign
Office. The Tribunal has been mindful that these internal memoranda do not
necessarily represent the view or policy of any government, and may be no more
than the personal view that one civil servant felt moved to express to another
particular civil servant at that moment: it is not always easy to disentangle
the personality elements from what were, after all, internal, private and
confidential memoranda at the time they were made.
Critical
Date
95.
Faced with such a mass of legal and political history, the Tribunal has felt it
right to consider whether the notion of the "critical date" or
"critical period" might assist in the organisation or the
interpretation of this voluminous material. It has noted, however, that the
Parties themselves have spoken of a critical date only in relation to the
question discussed above: whether, in deciding on the scope of the Arbitration,
the critical date is that of the Agreement on Principles or the Agreement on
Arbitration. Neither of them has sought to employ a critical date argument in
relation to any of the questions involving the substance of the dispute. In this
situation the Tribunal has thought it best to follow the example of the1966
award in the arbitration between Argentina and Chile presided over by Lord
McNair, and has accordingly "examined all the evidence submitted to it,
irrespective of the date of the acts to which such evidence relates."(5)
Uti
Possidetis
96.
Yemen in its Counter Memorial introduced the doctrine of uti possidetis to
explain what it holds to have been the legal position of these islands after
the dissolution of the Ottoman Empire following the end of the First World War.
The position is said to have been, in the words used by Yemen, that "[o]n
the dismemberment of an empire like the Ottoman Empire, there is a presumption,
both legal and political in character, that the boundaries of the independent
states which replace the Empire will correspond to the boundaries of the
administrative units of which the dismembered Empire was constituted." The
principle of uti possidetis presumably provides the legal aspect of this
presumption on which Yemen relies. Eritrea strongly contests this.
97.
There is, however, a prior problem regarding the facts on which a legal
presumption of uti possidetis would purport to be based. For such a
legal presumption to operate it is necessary to know what were indeed "the
boundaries of the administrative units of which the dismembered Empire was
constituted." It is known that by firmans issued in 1841, 1866 and
1873, the Sublime Porte granted to the Khedive of Egypt the right to exercise jurisdiction
over the African coast of the Red Sea. Presumably this right of jurisdiction
over the African coast might naturally have extended to the islands which were
in the neighbourhood of the coast and geographically at least seemed to belong
to that coast. But how far this jurisdiction extended over the archipelago
which is the principal element in the present dispute is to some extent a
matter for conjecture. It seems that, unsurprisingly, the firman did not
mention the archipelago. The sources provided by the Parties in relation to
this question are primarily British Foreign Office internal papers and
memoranda. And the answers there given were, it is made quite clear, based upon
informed speculation. It is known that there were from time to time small
Ottoman garrisons upon Zuqar and upon Hanish, and there are suggestions that
they came from the Arabian side, and probably had their supplies from that
coast.
98.
There is particularly the September 1880 memorandum of Sir Edward Hertslet
(author of the celebrated and influential Map of Africa by Treaty,
and Librarian of the Foreign Office) compiled in the Foreign Office for the use
of the Board of Trade, which was responsible for lighthouses in the Red Sea and
which had sought Foreign Office help with the question of jurisdiction over
lighthouse islands. In this memorandum Hertslet carefully distinguished between
sovereignty, which the Ottoman Empire possessed over all these possessions, and
a right of jurisdiction over the African side, which had been conferred on the
Khedive. He drew up three long lists of the islands in the Red Sea. The first
list was of the islands which in his opinion could be said to be "in close
proximity" to the African coast, and the second list was of those in close
proximity to the Arabian coast. The first list includes the Mohabbakahs and the
Haycocks; the second list contains the islands in the "Jabel Zukar
Group", those in the "Little Harnish Group", and those in the
"Great Harnish Group". This memorandum appears to have been accepted
as a working paper by both the Foreign Office and the Board of Trade,
notwithstanding the fact that the perception of the second group as being
"in close proximity" to the Arabian coast might be regarded as
questionable in terms of physical geography. The third list was a relatively
short one of islands near "the Centre of the Red Sea" including Jabal
Al-Tayr and the Zubayr group, the jurisdiction over which was thought by
Hertslet to be "doubtful", although the sovereignty remained Ottoman.
99. It
is doubtful how far it would be right to base a legal presumption of the uti
possidetis kind upon these speculations of a concerned but not
disinterested third-government department; and this quite apart from the legal
difficulties of creating a presumption which would be plainly at odds with the
specific provision made for at least some of these islands by Article 16 of the
Treaty of Lausanne of 1923.(6) Yemen of course
pleads that this was res inter alios acta. But Turkey having been in a
position to refuse to accept the Treaty of Sèvres, the sovereignty over these
islands must have remained with Turkey until the Treaty of Lausanne was signed,
and presumably until 1926 when it was ratified. Added to these difficulties is
the question of the intertemporal law and the question whether this doctrine of
uti possidetis, at that time thought of as being essentially one
applicable to Latin America, could properly be applied to interpret a juridical
question arising in the Middle East shortly after the close of the First World
War.
100.
Nevertheless, all this material about the position of the Islands during and
shortly after the period of the Ottoman Empire remains an instructive element
of the legal history of the dispute. It is especially interesting that even
when the whole region was under Ottoman rule it was assumed that the powers of
jurisdiction and administration over the islands should be divided between the
two opposite coasts.
Article
15, Paragraph 1 of the Arbitration Agreement
101.
This paragraph provides as follows:
Nothing
in this Arbitration Agreement can be interpreted as being detrimental to the
legal positions or to the rights of each Party with respect to the questions
submitted to the Tribunal, nor can affect or prejudice the decision of the
Arbitral Tribunal or the considerations and grounds on which those decisions
are based.
The Tribunal finds this provision less than perspicuous. A question to the
Parties about it evoked different answers; both were to the general effect that
this clause was meant as a "without prejudice" clause concerning the
arguments and points of view they might wish to present to the Tribunal. As
both Parties have fully argued their cases without either of them having occasion
to invoke this provision, it seems to the Tribunal best to leave the matter
there.
The
Task of the Tribunal in the First Stage
102.
The Agreement for Arbitration provides in the second paragraph of its Article
2:
2. The
first stage shall result in an award on territorial sovereignty and on the
definition of the scope of the dispute between Eritrea and Yemen. The Tribunal
shall decide territorial sovereignty in accordance with the principles, rules
and practices of international law applicable to the matter, and on the basis,
in particular, of historic titles. The Tribunal shall decide on the definition
of the scope of the dispute on the basis of the respective positions of the two
Parties.
Several of the clauses of this paragraph call for consideration. First there is
the requirement that this stage shall "result in an award on territorial
sovereignty." Thus, the Agreement does not require the Tribunal, as is
often the case in agreements for arbitration, to make an allocation of
territorial sovereignty to the one Party or the other. The result furthermore
is to be an award "on" territorial sovereignty not an award
"of" territorial sovereignty. The Tribunal would therefore be within
its competence to find a common or a divided sovereignty. This follows from the
language of the clause freely chosen by the Parties. It seems right that to
call attention to the broader possibilities admitted by this unusual
arbitration clause. The Tribunal has indeed considered all possibilities.
103. Further
consideration must be given to the clause that requires the Tribunal to
"decide territorial sovereignty in accordance with the principles, rules
and practices of international law applicable in the matter, and on the basis,
in particular, of historic titles."
104. As
already mentioned, both Parties rely on various elements of evidence of
possession and use as creative of title, and this is itself an appeal to what
is a familiar kind of historic claim. As Judge Huber said in the Palmas
case, "[i]t is quite natural that the establishment of sovereignty may be
the outcome of a slow evolution, of a progressive intensification of State
control."(7)
105.
But Yemen also relies primarily upon what it calls specifically an
"historic title". This calls for reflection upon the meaning of
"title". It refers not to a developing claim but to a clearly
established right, or to quote Pollock, "the absolutely or relatively best
right to a thing which may be in dispute."(8)
It is a matter of law, not of possession, though it would normally indicate a
right in law to have possession even if the factual possession is elsewhere.
106.
The notion of an historic title is well-known in international law, not least
in respect of "historic bays", which are governed by rules
exceptional to the normal rules about bays. Historic bays again rely upon a
kind of "ancient title": a title that has so long been established by
common repute that this common knowledge is itself a sufficient title. But an
historic title has also another and different meaning in international law as a
title that has been created, or consolidated, by a process of prescription, or
acquiescence, or by possession so long continued as to have become accepted by
the law as a title. These titles too are historic in the sense that continuity
and the lapse of a period of time is of the essence. Eritrea pleads various
forms of this kind of title, and so also does Yemen, which relies upon this
latter kind of title as "confirmation" of its "ancient
title".
107.
The injunction to have regard to historic title "in particular" can
hardly be intended to mean that historic title is to be given some priority it
might not otherwise possess; for if there is indeed an established title B
the best right to possession B then it is by definition
a prior right. So perhaps the phrase "in particular" is put in out of
abundant caution, lest the Tribunal, faced with a welter of other interests and
uses, were to forget that there can be a separate category of title that does
not depend upon use and possession, but is itself a right to possession whether
or not possession is enjoyed in fact. At any rate, as will appear below, the
Tribunal has not failed to examine historic titles of all kinds in its
consideration of this case.
108.
There have been different points of view between the Parties about the effects
of this twofold division of a first stage award on territorial sovereignty and
a second stage award on maritime boundaries. It was in the course of the
supplementary proceedings on the Parties' petroleum agreements that Yemen
became strenuously exercised over the possibility that the Tribunal might be
tempted to "prefigure" (a nicely chosen expression) an eventual stage
two maritime solution as an element of its thinking about stage one. Thus
paragraph 20 of Yemen's written pleadings in the supplementary petroleum
agreements phase states as follows:
This
last element [prefiguring] is of particular concern to the Government of Yemen.
It is always attractive to seek to discover a basis for dividing a group of
islands, not least in an arbitration. The attraction must be the greater when
the task of the Tribunal extends to the process of maritime delimitation, and
no doubt caution will be needed to avoid a prefiguring of equitable principles
and concepts, which are in law only relevant in the second phase of these
proceedings.
This
paragraph was repeated word for word in Yemen's oral argument in the July 1998
supplementary hearings.
109. A
novel feature of Yemen's arguments, introduced at a late stage of the
proceedings but clearly and strongly felt, concerned an apparently unacceptable
supposition that an equitable solution was being contemplated for the first
stage. This was curious, if only because it seems to have been the first and
only reference to equity or equitable principles by either Party in course of
the pleadings. Furthermore, no member of the Tribunal had mentioned equity or
equitable principles.
110.
This matter arose again in a somewhat different form in Yemen's answers to four
questions put to both parties at the close of Yemen's oral argument in the
supplementary proceedings, and which questions both Parties answered later in
writing. The purpose of these questions was simply to ask both Parties how it
was that some of their petroleum agreements, particularly those of Yemen,
appeared to be drawn to extend to some sort of coastal median line. In
response, Yemen felt obliged to "express the strongest possible
reservation against the >prefiguring' of a
median line".
111.
Eritrea replied, in the Tribunal's view rightly, that Article 2.2 of the
Arbitration Agreement requires the Tribunal to "decide territorial
sovereignty in accordance with the principles, rules and practices of
international law applicable to the matter, and on the basis, in particular, or
historic titles." That formula must include any principles, rules or
practices of international law that are found to be applicable to these matters
of sovereignty, even if those principles, rules or practices are part of
maritime law. Certainly the Tribunal is not in this first stage to delimit any
maritime boundaries or to prefigure any such delimitation. But that is an
entirely different matter from applying all international law that may relevant
for the purpose of determining sovereignty, which is the province of this first
stage.
112. In
general, the Tribunal is unable to accept the proposition that the
international law governing land territory and the international law governing
maritime boundaries are not only different but also discrete, and bear no
juridical relevance to each other. Such a theory is indeed disproved by Yemen's
own request to the British Government to be allowed to attend the 1989
Lighthouses Conference on the ground that the northern islands were within
Yemen's Exclusive Economic Zone.
113. It
is well to have the considered view of the Tribunal on these questions stated
at the outset of this Award. At the same time, it may be said that the Tribunal
has no difficulty in agreeing with Yemen, and indeed also with Eritrea, that
there can be no question of even "prefiguring", much less drawing,
any maritime boundary line, whether median or indeed a line based on equitable
principles, in this first stage of the arbitration.
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Notes -
Chapter III
5.
Argentina v. Chile (9 Dec. 1966), 16 R.I.A.A. 111, 115; 38 I.L.R. 16, 20 (1969).
6.
Throughout this award, the date used for the Treaty of Lausanne is its date of
signature, in 1923, rather than that of its entry into force (1926).
7.
Island of Palmas (Neth. V. U.S.) 2 R.I.A.A. 829 at 867 (Apr. 4, 1928).
Professor Max Huber, at the time President of the Permanent Court of
International Justice, acted as sole arbitrator in proceedings conducted under
the auspices of the Permanent Court of Arbitration, pursuant to the 1907
Convention for the Pacific Settlement of International Disputes.
8.Sir
Frederick Pollock, A First Book of Jurisprudence 177 (6th ed., 1929).