* bok * cj * tiff * gem * tin * public international law UPLAW 2009 B

“TAI-land. Without the “H”. The sexpot of Asia… based on secondary sources, of course."
This digest compilation wouldn’t have been possible without the help of Andi, Steve, ICJ then continued by citing examples in contemporary IL: aggression, genocide, and
Jerome, Vani, Cathe, Marco, Cams, PJ, and Carla.  the basic rights of the human person, including protection from slavery and racial
discrimination.
III. Actors in International Law BUT: THE DICTUM IS NOT AUTHORITY FOR THE CONTEMPORARY
APPLICATION OF THE PRINCIPLE OF UNIVERSALITY OF JURISDICTION as it is often
a. States incorrectly used.
Why is it incorrect? –because the Court was not affirming UJ in respect of each
Higgins, Chapter 41. ALLOCATING COMPETENCE: JURISDICTION of these offenses. The dictum was made in the context of an examination of the law
relating to diplomatic protection and not of an assertion of jurisdiction.
Of critical importance: issue of jurisdiction. Why? Because that is all about -It is usually necessary for a state to show that the defendant state has broken
allocating competence. There is no more important way to avoid conflict than by an obligation towards it (in respect of its nationals) before it can bring an international
providing clear norms as to which state can exercise authority over whom, and in what claim. Only the party to whom the international obligation is due can bring a claim, hence
circumstances. the Court was suggesting that in respect of these offenses, the restrictive requirements of
Without allocation of competence: all is in rancour and chaos the nationality-of-claims principle3 would not apply.
-Plus, the nationality-of-claims rule concerns diplomatic representation in civil
Bases of jurisdiction: (found in any textbook) claims. This is true of the exception to the rule, where the obligations owed are erga
-territorial jurisdiction, by which a state can make laws for, and apply them to, omnes. By contrast, the universality principle is concerned with the application of criminal
persons and events within its territory jurisdiction.
-nationality jurisdiction
-protective jurisdiction Q: Is the universality principle an EXCEPTION to the basic principle that a state does not
-passive personality jurisdiction have any rights of criminal jurisdiction in respect of acts done abroad by aliens?
-universal jurisdiction A: Some international lawyers: Yes.4
-effects jurisdiction, claims for which are more controversial Higgins: No. It is a well-established norm which stands alongside other norms of
jurisdiction, and is not to be seen as an exception to any one of them.
Universal Jurisdiction (UJ)
IL PERMITS THE EXERCISE OF JURISDICTION IN RESPECT OF CERTAIN THE # OF OFFENSES SUBJECT TO THE UNIVERSALITY PRINCIPLE ARE LIMITED:
OFFENSES AGAINST THE INTERNATIONAL COMMUNITY. That is, the nature of the - Requirements: Acts which:
act entitles a state to exercise its jurisdiction to apply its laws, even if: 1. are commonly treated as criminal5 in the local jurisdiction of most
-the act occurred outside its territory, states, and
-perpetrated by a non-national, & 2. they perceive as an attack upon an international order.
-nationals have not been harmed by the acts. - founded upon the accused’s attack upon the international order as a whole.
- Sources of Right to exercise jurisdiction under the universality principle:
BARCELONA TRACTION CASE DICTUM often cited in this context. -a treaty of universal or quasi-universal scope or
ICJ in contrasting Obligations that 1 state may owe another v. obligations that 1 state -from acceptance under general IL (GIL) –which provides the basis for the
may owe the international community as a whole, said (re the obligations a state owes the most commonly accepted example of an offense allowing of UJ: piracy.
international community): “by their very nature [they]…..are the concern of all States. In - Other offenses regarded as subject to UJ:
view of the importance of the rights involved, all states can be held to have a legal interest -slavery
in their protection, they are obligations erga omnes.”2 -war crimes6 (which The Nuremberg Tribunal took jurisdiction over)
-(today) Major violations of the 1949 Geneva Conventions

3
1 A State may not press a purely private claim unless the claimant was its national at the time the injury
The introductory section of the book (chaps 1-3) is designed to show that if we do not insist upon IL as
occurred and continuously thereafter until the claimant’s government agrees to take up the claim.
the mechanistic application of rules, without regard to context, it is a system that can assist in avoidance, 4
containment, and resolution of disputes. This approach is part of the wider issue of whether one vies IL as a set of rules with exceptions OR as
Chapter 1 – what IL is and what function it serves complementary norms, the selection of which must be made in the context of all the facts and
Chapter 2 – how we identify its substantive content circumstances.
5
Chapter 3 – to whom it applies But application to non-criminal law (for example; by providing a remedy in tort or restitution for
victims) is not precluded by IL (The 3rd Restatement of the Law: Foreign Relations Law of the US).
Chaps 4-15 show some of the ways in which IL helps to avoid conflicts. 6
Major violations of the customary or conventional laws relating to the conduct of hostilities, as
2
In relation to everyone; a legal obligation toward all exemplified in the 1907 Hague Conventions
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CASE EXAMPLES: a correct reading of the universality principle. For instance, when UK urged that
EICHMANN CASE (classic example) Jurisdiction was exercised over Eichmann, the Saddam Hussein be tried for war crimes for Iraq’s invasion of Kuwait in 1990, the
principal executioner of Hitler’s “final solution” in respect of acts carried outside Israel, legislation9 to give effect to the universality principle is clearly too narrow to deal with
against non-Israelis.7 While objections were raised on how Eichmann was brought to anything other than the WWII crimes.
Israel, no protest was made as to Israel’s right to assert a UJ over the offenses. 2. The recommendation excluded war crimes other than murder or manslaughter;10
DEMJANYUK CASE: A US court accepted Israel’s competence to try a person charged and also crimes against humanity---which were excluded because of anxieties about
with murder and related offenses in concentration camps in Eastern Europe because “…… retrospection (Report found that in 1939, there was no internationally accepted
the offenders are common enemies of all mankind and all nations have an equal interest in definition of crimes against humanity).
their apprehension and punishment.” Controversy exists as to what other offenses are subject to UJ. It is often simply
loosely asserted that it exists over a variety of other matters.
ANENT WAR CRIMES: In IL, there is a clear UJ to try and punish war crimes BUT there is
some uncertainty as to WON anything further is required in domestic law for this possibility UNIVERSAL JURISDICTION TODAY EXISTS OVER WAR CRIMES, CRIMES
to be aced upon. It is not simply the matter of how any given national law “receives” GIL. 8 It AGAINST PEACE, AND CRIMES AGAINST HUMANITY, COMMITTED
may be the case that even if the domestic law acknowledges the IL universality principle IMMEDIATELY BEFORE, OR DURING, WAR.
that allows it jurisdiction over an offense, as a practical matter it will be necessary for the The Principles of the Nuremberg Tribunal judgment and its Charter (Art. 6) which says
offense to be defined in domestic legislation. that the universality principle covers war crimes, crimes against peace (entailed
planning of an aggressive war) and crimes against humanity (war crimes writ large—
Controversy in point: Contrast the statement of the Home Secretary in 1988, when extermination, murder, deportation, etc., committed against any civilian population
asked what action could or should be taken in respect of 17 alleged war criminals living in before or during the war) were unanimously accepted by the UN General Assembly in
Britain with The British Manual of Military Law: 1946.
Manual: “war crimes are crimes ex jure gentium and are thus triable by all courts of all
states….British military courts have jurisdiction outside the UK over war crimes Q: Does UJ cover Crimes Against Humanity during times of peace?
committed….by….persons of any nationality…..It is not necessary that the victim of the A: -The Nuremberg Tribunal did not provide for UJ
war crime should be a British subject.” -The Genocide Convention, provides for:
Statement: “The British courts have jurisdiction over British citizens who have committed 1. territorial jurisdiction and
manslaughter or murder abroad, but do not have jurisdiction over people who may now be 2. potential universal jurisdiction
British citizens, or may now live here and have done so for some time, if the allegations -Art. I-the parties confirm that genocide is a crime under IL which they
relate to events before they became British citizens or before they came to live here.” undertake to prevent and punish
-Art. VI-provides for persons charged with genocide to be tried in the state
It was assumed that no action could be taken without amending the law of UK. where the acts were committed, or ‘by such international penal tribunal as may have
The thinking was: -there is no jurisdiction over non-nationals for murder committed jurisdiction with respect to those Contracting Parties which shall have accepted its
abroad jurisdiction’.
-that war crimes are murder Higgins: no such international penal tribunal yet exists and this Art. Falls short of UJ
-that special legislative jurisdiction would need to be taken in respect of alleged because no national court is entitled to assert competence over the offense.
perpetrators who were now British citizens or resident in the UK
HIGGINS’ COMMENTS: ON THE 3RD RESTATEMENT OF THE LAW: THE FOREIGN
An INQUIRY was ordered: The Report: (which would later become the basis of RELATIONS LAW OF THE US which loosely asserted that after WWII, it was
legislation which would be defeated twice in the House of Lords) accepted that genocide and war crimes are subject to UJ because it is widely
-largely put things right accepted as a principle of customary IL.
-explained that legislation would merely empower British courts to utilize a Higgins-the only authority it gives is that genocide is a violation of customary IL-which
jurisdiction already available to them under IL fact does not of itself give rise to UJ.
-recommended that British courts be given jurisdiction over murder and
manslaughter committed as war crimes in Germany or German occupied territory ON THE RESTATEMENT COMMENTARY ON THE ILC DRAFT ARTICLES ON
during WWII by persons who are now British citizens or resident in the UK. STATE RESPONSIBILITY. The Commentary says that the ILC Draft Articles
characterized genocide as an “international crime,” that an international crime is
Higgins’ comment on the Report: presumably subject to UJ.
1. The assumption is still that jurisdiction cannot be taken if the offenders were not Higgins-The Draft Articles do not purport to deal with jurisdiction.
currently citizens or long-time residents. –This may reflect a policy decision but is not
9
Though the legislation (acting upon the report) got majority votes in the House of Commons, it was
7
State of Israel did not exist at that time twice defeated in the House of Lords.
8 10
Although states vary greatly in how they “receive” treaty law, virtually everywhere GIL is simply treated Many of the war crimes alleged related to offenses other than murder or manslaughter such as the
as part of the law of the land, without any specific act of incorporation being required. taking of foreign hostages, maltreatment of Kuwaitis.
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-Only 2 purposes are served by attributing the notion of “crime” to certain breaches Other treaties referred to by the 3rd Restatements as showing UJ but do not in fact do
in IL: 1. To attach a generalized sense of opprobrium to the offense in question so: 1973 Convention on Prevention and Punishment of Crimes against Internationally
2. to suggest that UJ would be tolerated. Protected Persons including diplomatic agents provides for territorial jurisdiction, flag
-Although Art. 19 of the ILC Draft Articles also classifies as crimes under IL: apartheid, jurisdiction and nationality jurisdiction.
as serious breach of the right of self-determination, and a serious breach of the duty International convention against Taking of Hostages provides for territorial jurisdiction,
to prohibit massive pollution, it is hard to see how these give rise to UJ. It would be a flag jurisdiction and nationality jurisdiction, extended to stateless persons who are
big leap to say that Art. 19 is a basis for UJ. habitually residents.
1980 Convention on Physical Protection of Nuclear Material-jurisdiction is based on
Q: Is it correct to say that there is UJ in respect of ‘attacks on or hijacking of territoriality, flag or nationality of the offender
aircraft’, and ‘perhaps certain acts of terrorism11’ since they were listed in both the UN Convention against Torture and Other Cruel and Inhuman or Degrading Treatment
3rd Restatement (as offenses which are subject to UJ) and the ILC Draft Articles (in or Punishment- territorial, flag and nationality of the offender PLUS the nationality of
Art. 19 as the suggested list of ‘international crimes’)? the VICTIM
A: 1. Anent hijacking of an aircraft, an examination of relevant treaties will lead to 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol
the jurisdictional basis permitted by IL: provides that all parties will make the prohibited acts offenses under their penal law,
Tokyo Convention on Offences and Certain Other Acts Committed On Board Aircraft, and either prosecute when offenders are in their territory, or extradite them to the state
1963-provisions here provide for jurisdiction on a variety of bases, NONE OF WHICH where the offense was committed.
AMOUNT TO UJ: -the registration of the aircraft, All these treaties seek to provide wide alternative bases of jurisdiction but are NOT
-the place where the aircraft arrives, examples of UJ.
-the nationality of personnel harmed,
-obligations under any treaty UJ allows ANY state to assert jurisdiction over an offense.

The Montreal and Hague Conventions-early examples of what has recently become 2. Anent Terrorism
an important treaty basis of jurisdiction: the aute dedire aut punier principle.12 -None (of those that listed terrorism as covered by UJ) provides for UJ-only for
Jurisdiction is taken when: (1) the offense is committed on board an aircraft registered various bases of jurisdiction coupled with the
in that state, and (2) when the aircraft on board which the offense is committed lands aute dedire aut punier principle.
in its territory with the alleged offender still on board, -Only the European Convention on the Suppression of Terrorism comes nearest to a
-Nothing excludes criminal jurisdiction exercised in accordance with the national law true UJ. It lists offenses to be deemed terrorist offenses, stipulates that none of them
-Contracting states are required to make the offenses punishable by severe penalties, shall be regarded as a ‘political offense’ for the purpose of refusing extradition, and
and to take such measures as are necessary to establish jurisdiction over the offense provides that each contracting state shall take the necessary measures to establish
and offender. jurisdiction ‘where the suspected offender is present in its territory and it does not
-Art. 713 (now a classic formula), is spoken of as UJ because it provides for the extradite him’. –Hence No connection with the offense beyond being a Convention
jurisdiction of all parties to the Convention14. BUT it is still not really UJ stricto party is required.
sensu, because only a small number of states would be able to exercise jurisdiction.
Only thing that is ‘universal’ is the requirement that the states parties should do Passive Personality (PP)
whatever is necessary to be able to exercise jurisdiction should the relatively limited PASSIVE PERSONALITY JURISDICTION (PPJ) IS BASED ON THE PROTECTION
bases of jurisdiction arise. OF ONE’S NATIONALS. It is a claim to jurisdiction over events occurring outside
one’s territory when these harm nationals who are also outside one’s territory.
The 3rd Restatement offers no convincing authority that there exists treaty-based UJ,
and less general principles of IL DIFFERENT FROM SO-CALLED EFFECTS OR IMPACT JURISDICTION because in
impact jurisdiction, the harm resulting from extraterritorial acts is to one’s nationals (or
economy) within one’s territory.
11
Terrorism was also in the 1990 Report of the Council of Europe European Committee on Crime
Problems-which loosely asserts that ‘conventions envisaging the taking of UJ are those relating to combat CAVEATS TO BE NOTED:
against terrorism, the prevention of torture the protection of diplomatic staff, the physical protection of CASE OF SS LOTUS-often cited as authority for PP but should be looked at with
nuclear material, and the taking of hostages’. great caution. Collision on the high seas between a Turkish and Lotus, a French
vessel, resulting to death of Turkish crew. In Constantinople, the master was arrested,
12
That a state party to the treaty undertakes to try an offender found in its territory, or to extradite him for charged and convicted of manslaughter. France protested at Turkey’s assertion of
trial. jurisdiction. Permanent Court of International Justice found in favor of Turkey with
13 unclear grounds. The effect on the Turkish vessel was assimilated to an effect on
The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite
him, be obliged, without exception whatsoever and whether or not the offense was committed in its Turkish Territory. But neither ships nor embassies are ‘national territory,’ –and this
territory to submit the case to its competent authorities for the purpose of prosecution. artificial approach merely obscures jurisdictional issues.
14
Now standing at over 140
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-its broad dictum, to the effect that jurisdiction can be asserted by a state unless a While US invokes PP only in relation to terrorist type offenses, Lotus, as authority for
prohibitory rule prevents this, cannot be regarded as authority for PPJ within the PP (invoked but doubtful), does not contain this limitation.
territory of another (ex. Offense happened in France, but Turkey claims jurisdiction
over the French offender) CONFINEMENT OF PP TO TERRORIST-TYPE CASES TRIGGERS THE
PROTECTIVE PRINCIPLE hence no need to call upon the more controversial and
PP NOT ADOPTED AS JURISDICTIONAL BASIS FOR VESSEL COLLISION IN less accepted PP.
THE Brussels Convention in 1952, Geneva Convention on the High Seas of 1958, or
the UNCLOS Convention of 1982. Simple flag jurisdiction was used. FRANCE
INVOCATION OF PP BY LEGISLATION ALSO LIMITED TO CASES INVOLVING
1990s SAW THE REVIVED INTEREST IN INVOKING THE PP DURING THE NATIONAL SECURITY
EXPLOSION OF INTERNATIONAL TERRORISM because those who have -Code of Criminal Procedure (1975) Art. 689- France may assert jurisdiction over
jurisdiction have been reluctant to exercise it, maybe out of sympathy to the terrorists extraterritorial offenses committed against its nationals.
or fear of further retaliation. Hence, states with a direct legal interest in the events and -explanation to oppositions: France’s jurisdiction is subsidiary to the country where
strong political belief in the need to combat terrorism sought to find the basis for offense occurred, and jurisdiction will only be invoked if nationals security is involved
asserting jurisdiction themselves.
PP IN LEGISLATION IS NOT LIMITED TO TERRORIST OFFENSES, BUT IN
US and France are interesting examples (where they asserted jurisdiction over their REALITY, ITS APPLICATION IS.
nationals after a series of events of a terrorist nature) -Diplomatic protest is hard to discern (usual problem: state with alternative jurisdiction
does not wish to assert it)
US -1979 International Convention against the Taking of Hostages include PP as a
3RD RESTATEMENT SAID THAT VICTIM NATIONALITY IS A BASIS FOR jurisdictional possibility
JURISDICTION FOR TERRORIST AND OTHER ORGANIZED ATTACKS on a
state’s nationals by reason of their nationality, or to assassination of a state’s PROTESTS TO PP: NOT TO THE ASSERTION OF JURISDICTION, BUT TO THE
diplomatic reps or other officials. FORCIBLE BRINGING OF THE OFFENDER INTO THE VICTIM’S STATE.
-there is little authority on this but US asserts such a right.
Abduction as the Precursor to Jurisdiction
US’ POSITION: if a national is harmed abroad: (1)matter for country concerned, but
(2) may also fall within the country of nationality to the extent that there is a provision ABDUCTION CANNOT BE THE BASIS FOR JURISDICTION. But can sometimes be
in the legislation of that country prohibiting such harm to citizens abroad. the means to bring the offender to the territory for trial for an offense wherein
jurisdiction was asserted on some other basis (not abduction)-which is often either UJ
Legislation on Hostage-Taking was designed for that purpose. It stipulates that if or PP.
the act occurred outside the US, US will not have jurisdiction unless the offender or
the hostage is a US citizen or if the offender is found in the US. CASES CITED:
Eichmann-where the accused was abducted from Argentina to Israel for crimes
PP AS BASIS FOR JURISDICTION BUT STILL INTENDED TO BE LIMITED TO against humanity committed in Eastern Europe
‘TERRORIST’ OFFENSES Yunis-the Lebanese accused was lured into a yacht in international waters then
-applied in the case of Achille Lauro, an Italian vessel, where a US citizen was killed arrested and tried in the US for hijacking and destroying a Royal Jordanian plane in
by terrorists aboard it in the Mediterrenaean. Beirut (3 US passengers survived and there was no violation of the territorial
-US Terrorist Prosecution Act of 1985 provides for the prosecution and punishment of sovereignty of another state)
persons who, in furtherance of terrorist activities or because of the nationality of the Achille Lauro-terrorists were interrupted during a flight over high seas and were turned
victims, commit violent attacks upon Americans outside the US. over to the Italian authorities. Their extradition was later sought under the USA-Italy
-Omnibus Dimplomatic Security and Antiterrorism Act15 Chapter 113A. Extraterritorial extradition treaty of 1984, for trial for murder of a US citizen.
Jurisdiction over Terrorist Acts against UN Nationals-
§2331 (a) –there shall be jurisdiction over ‘whoever kills a national of the US, when Relevance of Abduction in asserting jurisdiction remains largely a matter for
such national is outside the US….if the killing is a murder, manslaughter, and determination by the domestic court concerned.17 Some courts refuse to take
involuntary manslaughter.’ jurisdiction over abducted offenders. Some courts don’t care how the offenders are
§2331 (e)16 –a prosecution in the US shall take place only when such offense was brought before them.
intended to coerce, intimidate or retaliate against a government or civilian population

15
Enacted by Congress in 1986
16 17
Where the apparent breadth of PP is circumscribed Analogy: exclusionary rule in evidence. If improperly obtained, then exclude
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IL ON ABDUCTION & ITS RELEVANCE TO JURISDICTION: (largely a matter for the The nationality principle, where in certain circumstances, apply their criminal law to
domestic courts but IL is also relevant coz of elements that occurred beyond the nationals abroad,
forum state) IL TOLERATES EJ as long as
1. Q: Is the effective assertion of jurisdiction dependent upon a violation of IL? 1. its exercise is not excessive
A: from the perspective of the individual: his forcible detention and removal violate 2. there is no attempt to enforce it within another state’s territory
his human rights.
from the perspective of the state concerned: WON there is a violation of IL Problem: in identifying who is a national abroad, particularly in the corporate area.
depends upon the circumstances ex. if abduction happened in the defendant state’s Cases: 1979-US, in response to the seizure of US diplomatic and consular staff in Tehran,
territory, then there’s a violation of sovereignty, or if the state enforces its criminal law froze all Iranian assets under its jurisdiction-meaning including dollar-denominated
within the territory of another. accounts held by US banks and their subsidiaries abroad
Issue then becomes: 1981 & 1982- US, in response to the martial law in Poland, prohibited supplies of material
2. Q: WON an injurious act against an individual is harm done to his national state. for the construction of the projected gas pipeline form Siberia to Europe-which applied to
A: Higgins (thinks): No. The whole purpose of human rights is to distinguish an US companies all over.
individual from his state.
3. Q: What if IL was violated by an abduction, should this disbar a court from acting Problem in cited cases: 1. WON nationality jurisdiction could be properly asserted
upon otherwise existent jurisdiction? while the national was still abroad
A: subject of controversy with different views. 2. How to determine the nationality to which the extraterritorial law is said to apply
US Supreme Court: in a series of cases held that: (what is the ‘nationality’ of a dollar account abroad or US company?)
-the court may exercise jurisdiction, where no treaty is invoked, even though the
defendant was kidnapped/abducted. The Protective Principle, where a state may exercise jurisdiction over a limited
-the defendant may not be prosecuted in violation of the terms of an extradition treaty. range of measures directed outside its territory at its security.
-acknowledged that an abduction might violate general principles of IL-but that is not a -relatively unproblematic example of EJ
ground for setting aside jurisdiction. 18
-not to be presumed that, by reference to general principles of IL, the presence of an The Passive-Personality Jurisdiction, where jurisdiction is exercised based on the
extradition treaty implies a prohibition on abduction between the parties harm to a national while abroad

Writer Francis Mann: kidnapping is an international wrong and the application of ex “THE EFFECTS DOCTRINE” (own meaning of EJ)- 1st articulated by the US
injuria juris non oritur means that an otherwise existing jurisdiction should not be Supreme Court in the Alcoa Case, and has particular importance in the fields of
exercised. criminal and antitrust law.
Higgins: but the ex injuria rule was to ensutre that those who act unlawfully in IL -to be able to exercise jurisdiction
should not be able, in their relations with 3rd parties, to consolidate their illegality at the 1. over persons abroad, whether nationals or not,
expense of those wronged. Ex. In the Eichmann case, there was no consolidation of a 2. for acts occurring abroad,
gain at the expense of Argentina. The exercise of jurisdiction did not affirm title over 3. which were intended and indeed have significant harmful effects within
Argentinian territory. the territory asserting jurisdiction.
South African SC: (in setting aside jurisdiction over a defendant kidnapped from
Swaziland) “society is the ultimate loser when, in order to convict the guilty, it uses The Doctrine is Very Controversial:
methods that lead to decreased respect for the law.” UK says: unlawful under IL
Higgins: Decoupling19 should only apply to the assertion of UJ over a limited no. of Territoriality is the “primary rule” and all other bases for jurisdiction are exceptions to
offenses regarded as international crimes. Abduction to secure the presence of the the rule, hence must be justified under IL.
offenders for trial for offenses other than those regarded as international crimes (those No rule of law permits it and it would lead to unacceptable interferences in the
subject to UJ) should be set aside. freedom of others to conduct their economic affairs as they choose.

Extraterritorial Jurisdiction (EJ) Many Commonwealth jurisdictions: support UK’s view.

If not territorial jurisdiction, then EJ European Community countries: their position is not clear. They have joined the UK in
formally protesting against certain US EJ, but the EC Treaty, Art. 85 20 requirements,
FORMS OF EXTRATERRITORIAL JURISDICTION arguably involved the exercise of an EJ by the community.

18
Alvarez-Machain case, 20
Art. 85 prohibits agreements which may restrict or distort competition within the common market. The
19
Decoupling of the illegal method of seizing the accused and the exercise of an otherwise existing European court said that the jurisdiction is not limited to EC territory. Q: Does this mean that EC likes the
jurisdiction over him effects doctrine except when US applies it against their states?
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Leading EC Cases based on Economic Utility rather than EJ. UK which first rejected On May 21, 1996, an "Agreement on Principles" was signed by Eritrea and Yemen.
the concept, came to accept the jurisdiction if the subsidiary (of the parent company
which is outside the EC territory) engaged in conduct within the Community. It stated that:
Wood Pulp Cases (before the EC court):
UK: economic utility is acceptable coz it’s not really an exercise of EJ-for
jurisdiction to be asserted over corporations that, through the acts of agents within the 1. That the Parties renounced recourse to force against each other
Community, harmed competition. 2. The parties agree to establish an arbitral tribunal to "settle their dispute on
EC Court: affirmed the exercise of jurisdiction over overseas foreign firms selling questions of territorial sovereignty and of delimitation of maritime boundaries
through agents within the EC, spoke in broader terms, & inserted EC jurisdiction over peacefully"
not only these foreign corporations but also a cartel that had itself never sold through 3. “. . . concerning questions of territorial sovereignty, the Tribunal shall decide in
agents or otherwise within the community. accordance with the principles, rules and practices of international law applicable
to the matter, and on the basis, in particular, of historic titles.”
Hence, the effects doctrine has been accepted in practice but not in name.
On October 3, 1996, an Arbitration Agreement between the Government of the State of
EVIDENCE THAT EACH SIDE WANTS TO CONTAIN THE DISPUTE: (but problem Eritrea and the Government of the Republic of Yemen was executed.
now is dormant for both sides desire to avoid further disputes)
Some countries with blocking legislation21 have not acted on it.
UK has given a broader interpretation to what constitutes conduct within a Arguments of the Parties on Territorial Sovereignty over the Red Sea Islands
territory. A broad interpretation of territoriality overlaps with extra territorial.
US courts have suggested that before EJ could be exercised, a balancing should According to Eritea
be made of the entitlement of the US with the foreign interests involved. The elements
to be weighed as held in leading cases22:
1. degrees of conflict with foreign law or policy Eritea seeks from the Tribunal an award declaring "that Eritrea possesses territorial
2. relative importance of the alleged violation of conduct in each country sovereignty over each of the "islands, rocks and low-tide elevations" specified by Eritrea in
(i.e. if it was prohibited and/or criminal) its written pleadings, "as to which Yemen claims sovereignty."
3. availability of a remedy abroad and the tendency of litigation there
4. existence of intent to harm US commerce and its foreseeability It inherited the Islands from Ethiopia which inherited it from Italy. Eritrea asserts that
5. the possible effect upon foreign relations of the exercise of EJ and it inherited title to the Islands in 1993, when the State of Eritrea became legally
6. whether the matter is covered by a treaty independent from the State of Ethiopia. Ethiopia had in turn inherited its title from Italy,
despite a period of British military occupation of Eritrea as a whole during the Second
Higgins’ 2 Final Points: World War. The Italian title is claimed then to have vested in the State of Ethiopia in 1952-
1. It is arguable that special considerations obtain in respect of EJ over conduct that is 53, as a consequence of Eritrea's federation with, and subsequent annexation by, Ethiopia.
generally regarded as criminal (ex. Restrictive trade practices vis-a-vis murder).
Report on Extraterritorial Criminal Jurisdiction, the Legal Affairs Committee of the Articles 6 and 16 of the Treaty of Lausanne left the islands open for Italian
Council of Europe has suggested that in these circumstances, EJ ought to be occupation.
regarded as a justified exemption, based on a principle of ‘international solidarity
between states in the fight against crime’. The exercise of the jurisdiction should be
whether the international solidarity would be helped or harmed. Eritrea contends that none of the Arabian Peninsula leaders who had supported the Allies
2. The key to the issue lies in the protection of common values rather than the was in sufficient geographical proximity to the Islands to be considered a plausible
invocation of state sovereignty for its own sake. recipient.
The fight against restrictive practices (which harm the consumers and keep the prices
high), deserves international solidarity along with the fight against common criminality. Article 6 established the general rule that, in terms of the Treaty, "islands and islets lying
within three miles of the coast are included within the frontier of the coastal State." Eritrea
ERITREA-YEMEN ARBITRATION interprets this provision, and subsequent state practice under the treaty of Lausanne, as
withholding the islands in question from any Arabian peninsula leader, because none of the
Territorial Sovereignty Islands are within three miles of the Arabian coast. Eritrea further argues that the Imam
could not have been given the disputed islands pursuant to Article 6, because his realm
was neither a "state" nor "coastal" at the time the Treaty of Lausanne was signed.
21
Statutory provisions which prohibit the furnishing of information or evidence to another state for
criminal proceedings instituted by it in respect of trade practices. Article 16 of the Treaty of Lausanne contained an express Turkish renunciation of all rights
22 and title to former Ottoman territories and islands, and provided that their future was to be

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"settled by the parties concerned." Eritrea argues that because Article 16 did not transfer According to Eritrea, this was not a relinquishment of existing rights, but simply a covenant
the Islands to any particular state, and did not specify any particular procedure for regarding future conduct. Eritrea argues that, at the time of the Anglo-Italian Agreement,
conveying ownership of the Islands, their ultimate disposition was left to general Italy's sovereignty over the Islands had already been established as a matter of law, and it
international law standards for territorial acquisition - conquest, effective occupation, and remained unaffected by the agreement.
location within the territorial sea. Eritrea claims to find further support for this in subsequent
state practice interpreting Article 16. In fact, on December of 1938, Italy formally confirmed its existing territorial sovereignty
over the Islands by promulgating decree number 1446 of 1938, specifically confirming that
Italy’s effective occupation. Eritrea asserts that by the end of the 1920s, Italy had the Islands had been, and continued to be, part of the territory of the Eritrean
acquired sovereignty over the disputed islands by effective occupation, and that neither the Commissariato of Dankalia.
1927 conversations between Great Britain and Italy, which came to be known as the
"Rome Conversations", nor the aborted 1929 Lighthouse Convention were contra- The eleven-year British occupation of Eritrea in the wake of the Second World War was
indications. under law of belligerent occupation. Eritrea's territorial boundaries remained unchanged,
and the territory of "all Italian colonies and dependencies" surrendered to the Allies in the
This effective occupation consisted of: 1943 Armistice "indisputably included", in Eritrea's view, the Islands. The 1947 Treaty of
Peace provided for disposition of Italy' s African territories by the Allied Powers, which was
1. The construction in 1929 of a lighthouse on South West Haycock Island, which accomplished in 1952 by the transfer to Ethiopia, with which Eritrea was then federated, of
Eritrea claims led Great Britain to repeat acknowledgments of Italian sovereignty "all former Italian territorial possessions in Eritrea". This marked, in Eritrea's view, the
over the Mohabbakahs, previously made in 1892 and 1917. passing to Ethiopia of sovereign title to the Islands.
2. The dispatch of an expedition to the Zuqar-Hanish islands and their subsequent
occupation by Italian troops. Eritrea asserts that in the period 1930-1940 Italy Drafting History of the Eritean Constitution. Eritrea claims that the drafting history of
exercised sovereign rights over the Islands through the colonial government in the 1952 Eritrean Constitution confirms the inclusion of the disputed islands within the
Eritrea. definition of Eritrean territory. It was the only plausible interpretation of the phrase "Eritrea,
3. The granting of fishing licenses with respect to the surrounding waters, the including the islands" in the definition of the territory of Eritrea, and it is said to be
granting of a license for the construction of a fish processing plant on Greater supported by advice given to Ethiopia at the time by its legal adviser, John Spencer. Eritrea
Hanish, and the reconstruction and maintenance of an abandoned British claims that this was further reinforced by similar language in subsequent constitutional and
lighthouse on Centre Peak Island. legislative provisions, in particular, the 1952 Imperial Decree federating Eritrea into the
Ethiopian Empire, and the 1955 Ethiopian Constitution.
Thus, the requirements of effective occupation (corpus occupandi)and sovereign intent
(animus occupandi) were met. Islands were within Ethiopia’s Territorial Sea. The Islands are within Ethiopia's
territorial sea. Eritrea relies on the rule of international customary and conventional law that
Yemen never protested Italy’s activities. Eritrea further asserts that Yemen did not every island is entitled to its own territorial sea, measured in accordance with the same
protest or question Italy's activities on the Islands during this time. Although Great Britain principles as those applicable to the mainland. In Eritrea's view, a chain of islands linked to
sought assurances that Italian activities did not constitute a claim of sovereignty, Eritrea the mainland with gaps no wider than twelve miles falls entirely within the coastal state's
characterizes Italy's responses that the question of sovereignty was "in abeyance" or "in territorial sea and therefore under its territorial sovereignty. Thus, measuring from the
reserve" as a refusal to give such assurances. Mohabbakah islands, which Eritrea asserts were indisputably Ethiopian, Ethiopia's 1953
declaration of a 12-mile territorial sea encompassed the Zuqar-Hanish islands.

According to Eritrea, this formula was understood by both Italy and Great Britain as
preserving Italy's legal rights while allowing Great Britain to withhold diplomatic recognition Ethiopia exercised sovereignty over the Islands. The 35-year period between 1953
of those rights. Tensions between the two states on this and other matters led to and Eritrean independence in 1991 is characterized by Eritrea as one of extensive
conclusion of the 1938 Anglo-Italian Agreement, which Eritrea claims is probative of Italian exercise of Ethiopian sovereignty over the Islands.
and British views at that time. It is said to reflect, among other things, the parties'
understanding that the Islands were not appurtenant to the Arabian Peninsula, and that 1. Continuous, unchallenged naval patrols, which became increasingly systematic
Italy and Great Britain were the only two powers with a cognizable interest in them. as the Eritrean Liberation Movement gathered strength.
2. Ethiopia required foreign workers on the lighthouse islands to carry passports
The British never got the Islands. The 1938 Anglo-Italian Agreement stated that neither and similar documents, overseeing and regulating the dispatch of all provisions
Italy and Great Britain would "establish its sovereignty" or "erect fortifications or defences". to the lighthouse islands,
3. Criminal jurisdiction over acts committed on the Islands was exercised
4. Regulation of oil exploration activities on and around the Islands,

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5. Inspection by then President Mengistu and a group of high-ranking Ethiopian Treaty of Lausanne had no Effect on Yemeni Title. The Treaty of Lausanne had no
military and naval personnel during the late 1980s, for which Eritrea has effect on Yemeni title because Yemen was not a party to the Treaty, and because Turkey's
submitted videotape evidence. renunciation of rights could not prejudice the interests of third parties.

Yemini States acknowledged Ethiopian control. In the 1970s the two Yemeni states Article 16 was not to make the Islands terra nullius, but rather, territory "the title to which
and their regional allies acknowledged Ethiopian control over the Islands by their was undetermined." Yemen argues in addition that Article 16 has, in any event, ceased to
statements and actions. Until the early 1970s, neither North Yemen nor South Yemen had have effect between "the parties concerned", because of their own conduct, and that of
displayed any interest in the Islands. Regional interest in the Islands is said to have been third states, in recognizing, or failing to make reservations concerning, Yemen's
sparked by false reports of an Israeli presence there in 1973. According to Eritrea, the sovereignty in respect of the Islands.
presumption on the part of Yemen, its neighbouring states and the Arab media that
Ethiopia had leased the Islands to Israel constituted an acknowledgment of Ethiopian Principle of Natural or Geographical Unity. Yemen argues that this doctrine is a
sovereignty. In support, Eritrea claims that the Arab states not only condemned Ethiopia for corollary of the concept of traditional title, and that it operates in conjunction with evidence
having made Ethiopian islands available to Israel, but also looked ultimately to Ethiopia for of the exercise of acts of jurisdiction or manifestations of state sovereignty.
permission to visit the Islands in order to investigate the allegations of Israeli military
activity.
Yemen cites case law of the International Court of Justice and arbitral decisions in support
of the premise that once the sovereignty of an entity or natural unity as a whole has been
Yemen’s Arguments shown to exist, it may be deemed, in the absence of any evidence to the contrary, to
extend to all parts of that entity or unity. According to Yemen, there is a "concordance of
Yemen seeks from the Tribunal an award declaring "that the Republic of Yemen possesses expert opinion evidence on the character of the islands as an entity or natural unity",
territorial sovereignty over all of the islands comprising the Hanish Group of islands . . . as including British admiralty charts, the Red Sea and Gulf of Aden Pilot, produced by the
defined in chapters 2 and 5 of Yemen's Memorial." United Kingdom Hydrographic Office, and the Encyclopedia Britannica.

Basis of claim: Other evidence of sovereignty. Yemen relies on various categories of evidence of
sovereignty, which it asserts may serve to confirm and supplement the evidence of
1. On "original, historic, or traditional Yemeni title". traditional or historic title, as well as constituting independent sources of title.

2. Article 2.2 of the Arbitration Agreement states that "[t]he Tribunal shall decide
territorial sovereignty in accordance with the principles, rules and practices of 1. Yemen cites case law and commentary in support of its contention that, within the
international law applicable to the matter, and on the basis, in particular, of appropriate geographical context, the private activities of individual persons
historic titles." constitute relevant evidence of historic title to territory. Yemen's analysis of these
facts and activities begins with the names "Hanish" and "Zuqar," which, it asserts,
have Arabic roots. Yemen also notes the presence on the Yemeni coast of
According to Yemen, title can be traced to the Bilad el-Yemen, or realm of Yemen, which is inhabitants with names derived from the word "Hanish", and a family history, as
said to have existed as early as the 6th Century AD. Yemen advances, in support of this fishermen, intertwined with that of the Islands. Yemen points out that, during the
claim, map evidence, declarations by the Imam of Yemen, and what it refers to as "the disturbances of 1995, two members of such a family were taken prisoner by
attitude of third States over a long period". Eritrean forces while fishing near Greater Hanish Island. Yemen also alleges the
existence of anchorages and settlements on the Islands bearing distinctly Yemeni
No deprivation of historic title. Yemen contends that its incorporation into the Ottoman Arabic names. Yemen claims that, for generations, Yemeni fishermen have
Empire, from 1538 to circa 1635, and again from 1872 to the Ottoman defeat in 1918, did enjoyed virtually exclusive use of the Islands, even establishing, in contrast to
not deprive it of historic title to its territory. Eritrean fishermen, permanent and semi-permanent residence there.
2. The Islands are home to a number of Yemeni holy sites and shrines, including
the tombs of several venerated holy men.
1. The creation of the Ottoman vilayet of Yemen as a separate territorial and 3. The islands fall within the jurisdiction of a traditional system of resolving disputes
administrative unit constituted Ottoman recognition of Yemen's separate identity. between fishermen, in which a kind of arbitrator may "ride the circuit" along the
2. 17th, 18th and 19th Century cartographers depicted Yemen as a separate, coast and among the Islands, in order to insure access to justice for those
identifiable territorial entity fishermen who are unable to travel.
3. In the drafting history of its 1934 Treaty with Great Britain, the Imam insisted, in 4. There are economic links between the Islands and the Yemeni fishermen who
one form or another, on his rights to the "Islands of the Yemen". rely for their livelihood on them and their surrounding waters. On the other hand,
most Eritrean fishermen find a better market for their wares on the Yemeni coast.

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Yemini administration and control. Yemen provides an historical review of alleged 3. French recognition of Yemeni title is said to include a request for permission to
Yemeni acts of administration and control, which are said to supplement and confirm conduct military manoeuvres in the Southern Red Sea in 1975, and for a French
Yemen's historic title to the Islands, as well as forming independent, mutually reinforcing oceanographic vessel to conduct activities near the Islands in 1976.
sources of that title. 4. Yemen attributes similar evidentiary value to German conduct and publications,
and to official maps published by the United States Army and Central Intelligence
1. A mission sent to Jabal Zuqar by the King of Yemen in 1429 to investigate Agency, as recently as 1993.
smuggling, predates Ottoman rule.
2. In the Ottoman period, the Islands were considered part of the vilayet of Yemen, Cartographic Evidence. Yemen also puts forward cartographic evidence on which it
and that the Ottoman administration handled, inter alia, tax, security, and relies as official and unofficial expert evidence of Yemeni title to the Islands. Such evidence
maritime matters relating to the Islands. serves, according to Yemen, as proof of geographical facts and the state of geographical
knowledge at a particular period. Yemen supplements this cartographic evidence with the
3. An 1881 lighthouse concession by the Ottoman authorities to a private French published works of historians and other professionals.
company, for the construction of lighthouses throughout the empire, which
included some of the islands in the vilayet of Yemen.
1. Yemen asserts that while some 18th Century maps fail to depict the Islands
4. 19th Century Ottoman maps and annual reports, which place the Islands within accurately, the more accurate of these attribute them to Yemen. Yemen places
the vilayet of Yemen. great emphasis on writings and maps reflecting the first-hand impressions of
Carsten Niebuhr, a Danish scientist and explorer who visited the Red Sea coast
Great Britain never claimed sovereignty. The post-Ottoman British presence on the from 1761-1764. Niebuhr's works suggest political affiliation and other links
Islands was intermittent, and that Great Britain never claimed sovereignty over them. between the Islands and the Yemeni mainland.
Following establishment of the Yemen Arab Republic in 1962, its Government allegedly 2. A large number of 19th and 20th Century maps, of varied origin appear to
asserted legislative jurisdiction over the Islands on at least two occasions. Yemen claims attribute all or some of the Islands to Yemen.
that its navy conducted exercises on and around the Islands, and that its armed forces
played a key role in confirming the absence of Israeli troops on the Islands in 1973. In Etheopia and Eritea acknowledged Yemen’s title. Yemen argues that, until the events
Yemen's rendition of the events surrounding the 1973 incident, the Islands are consistently of December 1995, Ethiopian and Eritrean conduct was consistent with Yemeni
characterized as Yemeni, rather than Ethiopian. sovereignty.

The issuance of licenses. Yemen cites a number of examples of the issuance of licenses 1. As recently as November 1995, Eritrea acknowledged in an official communique
to foreign entities wishing to engage in scientific, tourist and commercial activities in and to the President of Yemen that the Islands had " . . . been ignored and
around the Islands, and of the granting of permits for anchorage. abandoned for many years since colonial times, including the eras of Haile
Selassie and Mengistu, and during the long war of liberation."
1. The authorization given to a German company by the Yemeni Ministry of Culture 2. During the Ottoman period, the Islands were consistently administered as part of
and Tourism and the Yemen General Investment Authority in 1995 for the the vilayet of Yemen, and that title never passed to Italy during the period of
construction of a luxury hotel and diving centre on Greater Hanish Island. Italian colonization of the Eritrean mainland.
2. Exercised jurisdiction over the Islands in respect of fishing, environmental 3. Italy had declined to claim sovereignty.
protection, the installation and maintenance of geodetic stations, and the
construction and administration of lighthouses, including the publication of
relevant Notices to Mariners. a. Exchanges between the British and Italian Governments in the late
1920s and 1930s and culminated in the 1938 Anglo-Italian Agreement
which amounts, show an agreement on both parties not to establish
Other states have confirmed Yemen’s title. From 1887 to 1989, at least six states sovereignty over islands with respect to which Turkey had renounced
confirmed, by their conduct or otherwise, Yemen's title to the Islands. sovereignty by Article 16 of the Treaty of Lausanne.
b. Yemen interprets Italian decree number 1446 of December 20, 1938
1. After the Anglo-Italian Agreement of 1938, which Eritrea characterizes as being not as a confirmation of existing territorial sovereignty but rather as a
limited to future conduct, the Italian Government informed the Imam of Yemen mere "internal decree providing for the administration of the islands to
that, pursuant to the agreement, Italy had undertaken not to extend its be undertaken from the Assab department of Eritrea."
sovereignty on or to fortify the "Hanish Island group," and that it had, in the
negotiations, "kept in mind . . . above all Yemen's interests". The Eritean Constitution does not refer to the islands. The phrase "the territory of
2. British practice and "internal thinking," recognized Yemeni rights as reflected in Eritrea including the islands" in the 1952 UN-drafted Eritrean Constitution does not refer to
Foreign Office and Colonial Office documents of the 1930s and 1940s. the disputed islands because the official Report of the United Nations Commission for

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Eritrea, prepared in 1950, indicates Yemeni title to the Islands, by depicting them in the Yemen further argues that a company will not enter into a concession with a state for the
same colour as the Yemeni mainland on UN maps accompanying the Report. development of petroleum resources unless it is persuaded that the area covered by the
concession, and the underlying resources, in fact belong to that state. Furthermore, the
Other evidence of sovereignty. reservations of Yemeni title in the concession agreements submitted by Yemen are said to
constitute express recognition by the concessionaires of Yemeni title to the blocks
concerned. The UNDP/World Bank study constitutes, in Yemen's view, recognition of
1. Yemeni fishermen historically fished around the Islands and used them for Yemeni title by these international agencies, as well as expert evidence to the same effect.
temporary residence,
2. Yemen exercised a wide array of state activities on and around them such as the
consideration of requests by foreign nationals to carry out marine and scientific Ethiopia’s acquiescence. Yemen also proffers the UNDP/World Bank study as evidence
research on the islands, periodic visits of Yemeni military officials to Greater of Ethiopian acquiescence. Because the study was prepared in collaboration with, and
Hanish and Jabal Zuqar, and related patrols on and around these islands. ultimately distributed to, all concerned governments, Ethiopia can, in Yemen's view, be
3. Yemen also protested the conduct of low-level military flights by France over the held to have had notice of the existence and scope of Yemeni concessions implicating the
Hanish islands, as well as Ethiopia's arrest of Yemeni fishermen in the vicinity of Islands, without issuing any protests. Yemen relies further on other maps and reports
the Islands, published in the professional petroleum literature, of which it asserts Ethiopia and Eritrea
should have been aware.
4. Yemen also investigated a number of lost or damaged foreign vessels around
Greater Hanish and Jabal Zuqar.
5. In the 1980s and 1990s, Yemen alleges that various Yemeni air force and naval Ethiopia and Eritea did not touch upon the islands. Finally, Yemen asserts that
reconnaissance missions were conducted over and around the Islands. Ethiopian and Eritrean petroleum activities did not encompass or touch upon the Islands,
6. Yemen granted licenses allowing nationals of third states to visit the certain and therefore provide no support for a claim of sovereignty. Despite this, Yemen alleges
islands for scientific purposes and tourism, and that some of these visitors were that it consistently made timely protests with respect to those Ethiopian concessions that,
accompanied by Yemeni officials. in Yemen's view, encroached in any manner upon its territorial sea, continental shelf and
7. In 1988, Yemen is said to have embarked on a project to upgrade and build a exclusive economic zone.
series of lighthouses, accompanied by Notices to Mariners, on Centre Peak
Island, Jabal al-Tayr, Lesser Hanish Island, Abu Ali, Jabal Zuqar and Greater Eritea’s Arguments
Hanish Island.
8. Yemen also claims to have erected geodetic stations on Greater Hanish and
Concession evidence was irrelevant. The concession evidence put forward by Yemen is
Jabal Zuqar and authorized construction of a landing strip on Greater Hanish,
irrelevant, because it represents unilateral attempts by Yemen to establish permanent
which was used frequently in the early 1990s.
rights to the seabed.

Arguments of the Parties on the Relevance of Petroleum Agreements and Activities

1. It violated customary international law and the United Nations Convention on the
Law of the Sea (the "Law of the Sea Convention").
Both Parties have presented evidence of offshore concession activity in the Red Sea. 2. They were entered into only after the present dispute arose, were not
accompanied by Yemeni government activities, and did not pertain to the territory
Yemen’s Arguments: in dispute.
3. Eritrea also questions the factual accuracy of Yemen's allegations concerning
concession agreements, pointing to Yemen's failure to submit in evidence copies
Offshore concessions shows Yemen’s title. Yemen contends that its record of granting of certain of these agreements.
offshore concessions over the last fifty years reinforces and complements a consistent
pattern of evidence indicating Yemeni title to the islands. As the granting of oil concessions
serves to confirm and maintain an existing Yemeni title, rather than furnishing evidence of Unilateral appropriation is insufficient. Under both the Law of the Sea Convention and
effective occupation, it need not, in Yemen's view, be supported by evidence of express customary international law, mineral rights to the seabed can neither be acquired nor lost
claims. This is said to be congruent with Yemen's assertions of historic title. through the unilateral appropriation of one competing claimant. Pending agreement with
the opposite coastal state, Yemen was, in Eritrea's view, entitled only to issue concessions
on a provisional basis.
Yemen invokes the presumption that a state granting an oil concession does so in respect
of areas over which it has title or sovereign rights. The activity of offering and granting
concessions with respect to blocks that encompass or approach the Islands constitutes, in According to Eritrea, petroleum concessions are relevant only where they demonstrate the
Yemen's view, a clear manifestation of Yemeni sovereignty over the Islands. Yemen cites, existence of a mutually recognized de facto boundary line. There had, in this case, been
in addition, express reservations, in the relevant agreements, of Yemeni title to the no attempt by Yemen to reach mutual agreement with Ethiopia or Eritrea.
concession areas.

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Eritrea contends that the provisional character of any concessions issued by Yemen is entire coastline to the soon-to-be independent Eritrea, Ethiopia would have had
derived not only from Article 87(3) of the Law of the Sea Convention, which permits the no reason to protest Yemeni concessions.
provisional granting of concessions, provided this does not prejudice a final delimitation, 2. Even if it had had actual notice of some or all of Yemen's concessions, Eritrea
but also from Yemen's own continental shelf legislation, adopted in 1977, which provides contends that it was entitled to rely on their being provisional under Article 87(3)
that "pending agreement on the demarcation of the marine boundaries, the limits of of the Law of the Sea Convention and under Yemen's own 1977 continental shelf
territorial sea, the contiguous zone, the exclusive economic zone . . . shall not be extended legislation.
to more than the median or equidistance line."
SCOPE OF THE DISPUTE
Yemen knew about Ethiopia’s title when it issued the concessions. Eritrea further
asserts that Yemen's offshore concessions were issued after 1973, with full knowledge of Arbitration Agreement
Ethiopia's sovereignty claims to the Islands.

The Arbitration Agreement seeks from the Tribunal an award "on the definition of the scope
Thus Eritrea argues that the post-1973 grant of concessions by Yemen reflects attempts to of the dispute between Eritrea and Yemen." It further instructs the Tribunal to decide on the
manufacture contacts with the disputed islands. This is further supported, in Eritrea's view, definition of the scope of the dispute "on the basis of the respective positions of the two
by the lack of any related Yemeni state activity pertaining specifically to the territory in Parties."
dispute. According to Eritrea, concessions can be brought to bear on the question of
territorial acquisition in two ways. The first is exemplified by the deep sea fishing
concession granted by Italy to the Cannata company in the 1930s, which led inter alia to Eritea’s Interpretation
construction of a commercial fishing station on Greater Hanish Island. According to Eritrea,
the Cannata concession was accompanied by the direct involvement of state officials, In Eritrea's interpretation of the phrase "the respective positions of the Parties", both
including Italian troops stationed on the island. Parties are free to put forth and elaborate on their positions concerning the scope of the
dispute at any point in the proceedings.
Another way in which concessions may be relevant to territorial acquisition is that reflected
in the Eastern Greenland case. Eastern Greenland does not, in Eritrea's reading, Eritrea purports to have done so by including in its Memorial, submitted on 1 September
necessarily require the physical presence of a particular state official, but rather activities 1997, a non-exhaustive list of "islands, rocks and low-tide elevations" with respect to which
by individuals who, while not themselves employees of the state, act under colour of state it asserts territorial sovereignty, and requesting the Tribunal to rule that the scope of the
law. Eritrea cites doctrine in support of its position that the concession activity of private dispute includes each of these specified "islands, rocks and low-tide elevations". Eritrea
individuals is relevant only when it involves some kind of real assertion of authority, since insists that as its position with regard to scope has not altered over time, the time at which
"the exercise or display must be genuine and not a mere paper claim dressed up as an act it was determined is irrelevant. While indicating that it had not expected Yemen to claim the
of sovereignty." Eritrea argues that the scope of Yemeni and private activity with respect to Mohabbakah islands, Eritrea has expressed willingness to defend its claim to the
petroleum concessions "does not approach the quality and significance of Ethiopia's long- Mohabbakahs: i.e., to consider them encompassed by the scope of the dispute. Eritrea
standing pattern of governmental activities on and around the disputed islands." Eritrea further asserts that Yemen was, in fact, aware of Eritrean claims to Jabal Al-Tayr and the
further asserts that the few concession agreements actually placed in evidence by Yemen Zubayr group.
ultimately bear little or no relationship to the islands in dispute.
Yemen’s Interpretation
In addition, Eritrea characterizes much of Yemen's petroleum activity as pertaining to
"marine scientific research," rather than economic exploitation. Article 241 of the Law of the
Sea Convention expressly precludes marine scientific research activities from constituting Yemen, however, puts forward the view that "the respective positions of the Parties" are to
the legal basis for any claim to any part of the marine environment or its resources. be determined at the date of the Agreement on Principles (21 May 1996).

No acquiescence. Eritrea argues that its failure to protest Yemeni concessions does not Yemen submits that "the task of the Tribunal is to determine the extent to which there was
amount to acquiescence, particularly in light of military and political upheaval in Ethiopia a dispute between the Parties over certain islands in the Red Sea and their maritime
during the relevant period. limitation as of that date." According to Yemen, the respective positions of the Parties at
that date reflected their mutual understanding that Jabal Al-Tayr and the Zubayr group of
islands were not considered to fall within the scope of the dispute. Yemen characterizes
1. Eritrea has submitted evidence aimed at demonstrating that the 1991 the scope of the dispute as involving "the Hanish Group of Islands," comprising - in its view
UNDP/World Bank report relied on by Yemen as evidence of notice to Ethiopia - Abu Ali island, Jabal Zuqar, Greater and Lesser Hanish, Suyul Hanish, the various small
may never have been received by Ethiopia, embroiled as it then was in the fall of islets and rocks that surround them, the South West Rocks, the Haycocks and the
the Mengistu regime and the end of the civil war. And even if it had been Mohabbakahs. It asserts that the "Northern Islands" of Jabal Al-Tayr and the Zubayr group
ultimately received, Eritrea posits that in 1991, knowing it would soon lose its were never in dispute between the Parties, and were not reflected in Eritrea's "position"
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until 1 September 1997, the date of filing of the Parties' Memorials, and thus fell outside Agreement joined within that stage both the award on sovereignty and the decision on
the scope of the dispute. scope. This now meant that the Tribunal was to decide the issue of scope "on the basis of
the respective positions of the two Parties" only after having heard the entire substantive
Court held: contentions of both Parties on the question of sovereignty. This later provision must throw
doubt upon the proposition that the Parties nevertheless intended the earlier date of the
Agreement on Principles still to be the critical date for the determination of scope.
The Tribunal prefers the view of Eritrea and accordingly makes an award on
sovereignty which nclude Jabal al-Tayr and the Zubayr group, as well as the
Haycocks and the Mohabbakahs. In addition, the later Arbitration Agreement did not, in its Article 2(2), qualify in any way its
use of the phrase "on the basis of the respective positions of the two Parties." If not
qualified, the ordinary meaning of that phrase in its context, and in the light of the object
Article 15 of the same Arbitration Agreement provides: and purpose of the Arbitration Agreement, would seem to be that it is "the respective
position of the two Parties" as at the date of the Arbitration Agreement, and not at some
1. Nothing in this Arbitration Agreement can be interpreted as being detrimental to the unspecified date, that should form the basis for the determination by the Tribunal of the
legal positions or to the rights of each Party with respect to the questions submitted to the scope of the dispute under the Arbitration Agreement.
Tribunal, nor can affect or prejudice the decision of the Arbitral Tribunal or the
considerations and grounds on which those decisions are based. Moreover, and by implication consistent with this analysis, Yemen, although taking some
care in various ways to reserve its position on scope, has in fact provided a full argument
2. In the event of any inconsistency between the Agreement on Principles and this in support of its claim to sovereignty over Jabal al-Tayr and the Zubayr group, and in the
Arbitration Agreement implementing the procedural aspects of that Agreement on July 1998 supplementary hearings on petroleum agreements, considerably elaborated on
Principles, this Arbitration Agreement shall control. Except with respect to such that argument.
inconsistency, the Agreement on Principles shall continue in force.
PARTICULAR FEATURES OF THE CASE
Since there is indeed in this respect an inconsistency between the Agreement on
Principles and the Arbitration Agreement, under Article 15(2) of the Arbitration Agreement Description of the islands. The disputed islands and islets range from small to tiny, are
the provisions of the latter prevail to the extent of the inconsistency. The Tribunal must uniformly unattractive, waterless, and habitable only with great difficulty. And yet it is also
therefore decide the question of scope, as well as the resulting questions of sovereignty, in the fact that they straddle what has been, since the opening of the Suez Canal in 1869,
the present first stage of the proceedings. 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
The contention of Yemen, as mentioned above, is that the respective positions of the two earlier periods the islands seem often hardly to have been noticed by coastal countries
Parties at the time of the Agreement on Principles (21 May 1996) were different from what other than by local traditional fishermen who used them for shelter and their waters for
they became at the time of the subsequent Arbitration Agreement (3 October 1996). anchorage; but did receive considerable attention, amounting even to temporary
According to Yemen, at the time of the Agreement on Principles, Eritrea was apparently not occupation, from rival colonial powers, notably Great Britain and Italy. This was no doubt
seeking to claim the northern islands or to bring them within the scope of the arbitration, because, after the opening of the Canal, this sea, narrowing in its southern part where the
although it may be noted that there was already an existing dispute over the northern islands are situated, was the principal route from Europe to India, the East Indies and the
islands. It seems clear, moreover, that Yemen, at the time of the Agreement on Principles, Far East.
was not claiming the Mohabbakahs.
Critical Date. Faced with such a mass of legal and political history, the Tribunal has felt it
But, according to Yemen, the date of the Agreement on Principles is "the critical date" for right to consider whether the notion of the "critical date" or "critical period" might assist in
the determination by the Tribunal of the "respective positions of the two Parties" on which the organisation or the interpretation of this voluminous material. In this situation the
the scope of the Arbitration is to be decided, because it was the date of the definitive Tribunal has thought it best to follow the example of the1966 award in the arbitration
agreement of the Parties to submit the matter to this Arbitration. From this proposition between Argentina and Chile presided over by Lord McNair, and has accordingly
Yemen concludes that the northern islands do not come within the scope of the present "examined all the evidence submitted to it, irrespective of the date of the acts to which
arbitration. such evidence relates."

This somewhat technical "critical date" argument, fails, in the opinion of the Tribunal, to Uti Possidetis. Yemen in its Counter Memorial introduced the doctrine of uti possidetis to
take sufficient account of the crucial change brought about in the Arbitration Agreement in explain what it holds to have been the legal position of these islands after the dissolution of
the specification of the first stage of the Arbitration as being that in which this question of the Ottoman Empire following the end of the First World War. The position is said to have
scope was to be determined by the Tribunal. Whereas, in the Agreement on Principles, the been, in the words used by Yemen, that "[o]n the dismemberment of an empire like the
decision on scope was to be the whole matter of the first stage, the later Arbitration Ottoman Empire, there is a presumption, both legal and political in character, that the

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boundaries of the independent states which replace the Empire will correspond to the As both Parties have fully argued their cases without either of them having occasion to
boundaries of the administrative units of which the dismembered Empire was constituted." invoke this provision, it seems to the Tribunal best to leave the matter there.
The principle of uti possidetis presumably provides the legal aspect of this presumption on
which Yemen relies. Eritrea strongly contests this. The Task of the Tribunal in the First Stage

There is, however, a prior problem regarding the facts on which a legal presumption of uti The Agreement for Arbitration provides in the second paragraph of its Article 2:
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, 2. The first stage shall result in an award on territorial sovereignty and on the definition of
1866 and 1873, the Sublime Porte granted to the Khedive of Egypt the right to exercise the scope of the dispute between Eritrea and Yemen. The Tribunal shall decide territorial
jurisdiction over the African coast of the Red Sea. Presumably this right of jurisdiction over sovereignty in accordance with the principles, rules and practices of international law
the African coast might naturally have extended to the islands which were in the applicable to the matter, and on the basis, in particular, of historic titles. The Tribunal shall
neighbourhood of the coast and geographically at least seemed to belong to that coast. decide on the definition of the scope of the dispute on the basis of the respective positions
But how far this jurisdiction extended over the archipelago which is the principal element in of the two Parties.
the present dispute is to some extent a matter for conjecture since the firman did not
mention the archipelago. 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
There is particularly the September 1880 memorandum of Sir Edward Hertslet (author of Agreement does not require the Tribunal, as is often the case in agreements for arbitration,
the celebrated and influential Map of Africa by Treaty, and Librarian of the Foreign Office) to make an allocation of territorial sovereignty to the one Party or the other. The result
compiled in the Foreign Office for the use of the Board of Trade, which was responsible for furthermore is to be an award "on" territorial sovereignty not an award "of" territorial
lighthouses in the Red Sea and which had sought Foreign Office help with the question of sovereignty. The Tribunal would therefore be within its competence to find a common or a
jurisdiction over lighthouse islands. divided sovereignty. This follows from the language of the clause freely chosen by the
Parties.
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 Further consideration must be given to the clause that requires the Tribunal to "decide
department; and this quite apart from the legal difficulties of creating a presumption which territorial sovereignty in accordance with the principles, rules and practices of international
would be plainly at odds with the specific provision made for at least some of these islands law applicable in the matter, and on the basis, in particular, of historic titles."
by Article 16 of the Treaty of Lausanne of 1923.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 Yemen relies primarily upon what it calls specifically an "historic title". This calls for
Sèvres, the sovereignty over these islands must have remained with Turkey until the reflection upon the meaning of "title". It refers not to a developing claim but to a clearly
Treaty of Lausanne was signed, and presumably until 1926 when it was ratified. Added to established right, or to quote Pollock, "the absolutely or relatively best right to a thing which
these difficulties is the question of the intertemporal law and the question whether this may be in dispute." It is a matter of law, not of possession, though it would normally
doctrine of uti possidetis, at that time thought of as being essentially one applicable to indicate a right in law to have possession even if the factual possession is elsewhere.
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.
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.
Nevertheless, all this material about the position of the Islands during and shortly after the Historic bays again rely upon a kind of "ancient title": a title that has so long been
period of the Ottoman Empire remains an instructive element of the legal history of the established by common repute that this common knowledge is itself a sufficient title. But an
dispute. 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
Article 15, Paragraph 1 of the Arbitration Agreement 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
This paragraph provides as follows: relies upon this latter kind of title as "confirmation" of its "ancient title".

Nothing in this Arbitration Agreement can be interpreted as being detrimental to the legal There have been different points of view between the Parties about the effects of this
positions or to the rights of each Party with respect to the questions submitted to the twofold division of a first stage award on territorial sovereignty and a second stage award
Tribunal, nor can affect or prejudice the decision of the Arbitral Tribunal or the on maritime boundaries. It was in the course of the supplementary proceedings on the
considerations and grounds on which those decisions are based. Parties' petroleum agreements that Yemen became strenuously exercised over the

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possibility that the Tribunal might be tempted to "prefigure" (a nicely chosen expression) an Article 2 of the Agreement for Arbitration enjoins the Tribunal to decide territorial
eventual stage two maritime solution as an element of its thinking about stage one. Thus sovereignty in accordance with applicable international law "and on the basis, in particular,
paragraph 20 of Yemen's written pleadings in the supplementary petroleum agreements of historic title."
phase states as follows:
It is only Yemen that has raised substantial questions of an "historic" or "ancient" title that
This last element [prefiguring] is of particular concern to the Government of Yemen. It is existed before the second Ottoman occupation of the nineteenth century; it is therefore to
always attractive to seek to discover a basis for dividing a group of islands, not least in an an appreciation of the historical background necessary for an understanding of that claim
arbitration. The attraction must be the greater when the task of the Tribunal extends to the to an early title that the Tribunal now turns.
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 Yemen’s Historical Title. Yemen's claim is based essentially on an "ancient" or
second phase of these proceedings. "historical" title pursuant to which the Imam's inherent and inalienable sovereignty
extended over the entirety of what historically has been known as Bilad el-Yemen, which
This paragraph was repeated word for word in Yemen's oral argument in the July 1998 existed for several centuries and is alleged by Yemen to have included the southern Red
supplementary hearings. Sea islands. This sovereignty is further characterized by Yemen as having remained
unaffected by and having survived the Ottoman annexation of Yemen, in spite of the
A novel feature of Yemen's arguments, introduced at a late stage of the proceedings but Sublime Porte's having declared Yemen to be one of the vilayets falling under Ottoman
clearly and strongly felt, concerned an apparently unacceptable supposition that an rule.
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 The particularity of the relationship between the Ottoman Empire and Yemen should be
by either Party in course of the pleadings. Furthermore, no member of the Tribunal had taken into account as an important historical factor. In spite of the Treaty of Da'an,
mentioned equity or equitable principles. concluded in 1911, which granted the Imam of Yemen a greater degree of internal
autonomy, he remained a suzerain acting within Ottoman sovereignty until the total
This matter arose again in a somewhat different form in Yemen's answers to four questions disintegration of the Ottoman Empire and the loss of all its Arabian possessions, including
put to both parties at the close of Yemen's oral argument in the supplementary the vilayet of Yemen. It was only in 1923, by virtue of Article 16 of the Treaty of Lausanne,
proceedings, and which questions both Parties answered later in writing. The purpose of that the Ottoman Empire not only recognized the renunciation of all its sovereignty rights
these questions was simply to ask both Parties how it was that some of their petroleum over Yemen, but explicitly renounced its sovereign title over the islands that had previously
agreements, particularly those of Yemen, appeared to be drawn to extend to some sort of fallen under the jurisdiction of the Ottoman wali in Hodeidah.
coastal median line. In response, Yemen felt obliged to "express the strongest possible
reservation against the >prefiguring' of a median line". The territorial extent of Imamic Yemen as an autonomous entity must be distinguished from
that of the Ottoman vilayet of Yemen. During the entire period from the second half of the
Eritrea replied, in the Tribunal's view rightly, that Article 2.2 of the Arbitration Agreement 19th Century until 1925, the Imam of Yemen had neither sovereignty nor jurisdiction over
requires the Tribunal to "decide territorial sovereignty in accordance with the principles, the Tihama and the Red Sea coasts. Under his agreements with the Ottoman sultan, the
rules and practices of international law applicable to the matter, and on the basis, in Imam administered an exclusively land-locked territory, limited to the high mountains. The
particular, or historic titles." That formula must include any principles, rules or practices of Ottoman wali exercised exclusive jurisdiction over the coasts until 1917. Thereafter, the
international law that are found to be applicable to these matters of sovereignty, even if coasts came under the control of the Idrisi, a local tribal ruler supported first by the Italians,
those principles, rules or practices are part of maritime law. Certainly the Tribunal is not in and later by the British Government. The coast came under the Imam's rule only in 1926.
this first stage to delimit any maritime boundaries or to prefigure any such delimitation. But As will be seen later, this fact has negative legal implications for the "reversion" argument
that is an entirely different matter from applying all international law that may relevant for advanced by Yemen, as well as for the application of certain other rules of international
the purpose of determining sovereignty, which is the province of this first stage. law, including the concept of ancient "historic title" in its full classical sense.

In general, the Tribunal is unable to accept the proposition that the international law There can be no doubt that the concept of historic title has special resonance in situations
governing land territory and the international law governing maritime boundaries are not that may exist even in the contemporary world, such as determining the sovereignty over
only different but also discrete, and bear no juridical relevance to each other. Such a theory nomadic lands occupied during time immemorial by given tribes who owed their allegiance
is indeed disproved by Yemen's own request to the British Government to be allowed to to the ruler who extended his socio-political power over that geographic area. A different
attend the 1989 Lighthouses Conference on the ground that the northern islands were situation exists with regard to uninhabited islands which are not claimed to be falling within
within Yemen's Exclusive Economic Zone. the limits of historic waters.

Historical Title and other Historical Considerations In the present case, neither party has formulated any claim to the effect that the disputed
islands are located within historic waters. Moreover, none of the Islands is inhabited on

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other than a seasonal or temporary basis, or even has the natural and physical conditions authorizations from the rulers on either the Asian or the African side of the Red Sea and in
that would permit sustaining continual human presence. Whatever may have been the the absence of restrictions or regulations exercised by public authorities.
links between the coastal lands and the islands in question, the relinquishment by the
Ottoman Empire of its sovereignty over the islands by virtue of Article 16 of the 1923 Treaty This traditionally prevailing situation reflected deeply rooted cultural patterns leading to the
of Lausanne (discussed in greater detail in Chapter V) logically and legally adversely existence of what could be characterized from a juridical point of view as res communis
affects any pre-existing title. permitting the African as well as the Yemeni fishermen to operate with no limitation
throughout the entire area and to sell their catch at the local markets on either side of the
It was recognized in the course of the oral hearings that, by the law in force at the time, Red Sea. Equally, the persons sailing for fishing or trading purposes from one coast to the
Ottoman sovereignty over the regions in question was lawful. The fact that Yemen was not other used to take temporary refuge from the strong winds on any of the uninhabited
a party to the Treaty of Lausanne, and that it perceived both the British and the Italians as islands scattered in that maritime zone without encountering difficulties of a political or
having been usurpers in the Red Sea, does not negate that legal consequence. It has not administrative nature.
been established in these proceedings to the satisfaction of the Tribunal that the doctrine
of reversion is part of international law. In any event, the Tribunal concludes that on the These historical facts are witnessed through a variety of sources submitted in evidence
facts of this case it has no application. No "reversion" could possibly operate, since the during the arbitral proceedings. A comprehensive evaluation of the evidence submitted by
chain of titles was necessarily interrupted and whatever previous merits may have existed both Parties reveals the presence of deeply-rooted common patterns of behaviour as well
to sustain such claim could hardly be invoked. During several decades, the predominant as the continuation, even in recent years, of cross-relationships which are marked by
role was exercised by the western naval powers in the Red Sea after its opening to eventual recourse to professional fishermen's arbitrators (aq'il) in charge of settling
international maritime traffic through the Suez Canal, as well as through the colonization of disputes in accordance with the local customary law. Such understanding finds support in
the southern part of the Red Sea on both coasts. An important result of that hegemony was the statements attributed to fishermen from both coasts of the Red Sea, taken as a whole,
the maintenance of the status quo imposed after the First World War, in particular that the which have been submitted by both Parties.
sovereignty over the islands covered by Article 16 of the Lausanne Treaty of 1923
remained indeterminate at least as long as the interested western powers were still in the
region. As long as that colonial situation prevailed, neither Ethiopia nor Yemen was in a The socio-economic and cultural patterns described above were perfectly in harmony with
position to demonstrate any kind of historic title that could serve as a sufficient basis to classical Islamic law concepts, which practically ignored the principle of "territorial
confirm sovereignty over any of the disputed islands. Only after the departure of the sovereignty" as it developed among the European powers and became a basic feature of
colonial powers did the possibility of a change in the status quo arise. A change in the 19th Century western international law.
status quo does not, however, necessarily imply a reversion.
However, it must be noted that the Ottoman Empire, which directly or through its suzerains
This should not, however, be construed as depriving historical considerations of all legal governed the quasi-totality of the countries around the Red Sea during the first half of the
significance. In the first place, the conditions that prevailed during many centuries with 19th Century including Bilad El-Yemen and what became known thereafter as Eritrea,
regard to the traditional openness of southern Red Sea marine resources for fishing, its started after the end of the Crimean War in 1856 to abandon the communal aspects of the
role as means for unrestricted traffic from one side to the other, together with the common Islamic system of international law and to adopt the modern rules prevailing among the
use of the islands by the populations of both coasts, are all important elements capable of European concert of nations to which the Sublime Porte became a fully-integrated party
creating certain "historic rights" which accrued in favour of both parties through a process during the Berlin Congress of 1875. According to this new modern international law, the
of historical consolidation as a sort of "servitude internationale" falling short of territorial legal concept of "territorial sovereignty" became a cornerstone for most of the state
sovereignty. Such historic rights provide a sufficient legal basis for maintaining certain powers, and the situation in the Red Sea could no longer escape the juridical
aspects of a res communis that has existed for centuries for the benefit of the populations consequences of that new reality.
on both sides of the Red Sea. In the second place, the distinction in terms of jurisdiction
which existed under the Ottoman Empire between those islands administered from the Hence, it is understandable that both Parties are in agreement that the islands in dispute
African coast and the other islands administered from the Arabian coast constitutes a initially all fell under the territorial sovereignty of the Ottoman Empire. Within the exercise
historic fact to be taken into consideration. of the Ottoman's sovereignty over these islands, it has to be noted that the Sublime Porte
granted to the Khedive of Egypt the right to administer the Ottoman possessions (vilayet)
According to the most reliable historical and geographical sources, both ancient and on the African Coast which at present form "the State of Eritrea", and this delegation of
modern, the reported data clearly indicate that the population living around the southern power included jurisdiction over islands off the African Coast, including the Dahlaks and
part of the Red Sea on the two opposite coasts have always been inter-linked culturally eventually the Mohabbakahs.
and engaged in the same type of socio-economic activities. Since times immemorial, they
were not only conducting exchanges of a human and commercial nature, but they were The sovereignty of the Ottoman Empire over both coasts of the Red Sea is undisputed up
freely fishing and navigating throughout the maritime space using the existing islands as to 1880 and this remained the case with regard to the eastern, or Arabian, coast until the
way stations (des îles relais) and occasionally as refuge from the strong northern winds. First World War. Among the various documents introduced in support of this historical fact,
These activities were carried out for centuries without any need to obtain any Eritrea has submitted the French-language version of a memorandum dated 6 December

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1881, issued by the Egyptian Khedival Ministry of Foreign Affairs, which indicates that in The most northerly islands, which are of little or almost no relation to the Colony of Eritrea
May 1871, Italy recognised that the Ottoman flag had been flying since 1862 over the on account of the distance, those facing Massaua and the most southerly islands which
African Coast at a point going beyond the south of Assab. The Egyptian memorandum are opposite the Eritrean Coasts of Beilul and Assab. Almost all are found on the eastern
added that until 1880 the Egyptian Government believed the affirmation of the Italian coast of the Red Sea, except the Dahalac islands, which are under our rule, and a few
Government that the Italian presence had been essentially of private and commercial others of much less importance.
character. Consequently, the entire African coast and the islands off that coast remained
until then under the Khedive's jurisdiction. At the same time, all other islands were, and With regard to the second group, the Italian note indicates:
continued to be, under the jurisdiction of the Ottoman wali stationed in Hodeidah and
appointed by the Sublime Porte.
Leaving aside the archipelago of the Dahalac islands B which is under the sovereignty of
Italy and which include the biggest islands in the Red Sea B Cotuma, Diebel Tair and
Hence, a clear distinction has to be made between the Red Sea islands which were under Camaran are notable in this second group of the archipelago; all of which under Turkish
jurisdiction of the Khedive of Egypt acting on behalf of the Ottoman Empire until 1882 and rule.
the other Red Sea islands which remained under the Ottoman vilayet of Yemen until the
dissolution of the Empire after the First World War.
The note explicitly characterizes as "Turkish": "Cotuma", "Djebel. . . called Gebel Sebair"
and "Camaran".
A British Foreign Office Memorandum dated 10 June 1930, relying expressly on the Turning to the third group, the 1901 Italian note refers to a:
Hertslet memorandum of 1880, indicates that the Khedive of Egypt exercised jurisdiction
off the African coast over the "Mohabakah Islands, Harbi and Sayal". With regard to the
other category, the British Memorandum describes "the Great Hanish group as being off . . . group of islands known as Hanish or Harnish (Turkish). It comprises the island of
the Arabic Coast and consequently under the sovereignty and within the exclusive Gebel Zucar, large and small Hanish islands and the other minor islands of Abu-ail, Syul-
jurisdiction of the Sultan". Hanish, Haycoc and Mohabbach, and a few islets amounting to large rocks.

Paragraph 16 of the same Memorandum emphasised that: Contemporary British documents also reflect the view that the islands in question, with the
exception of Mohabbakahs, formed part of the vilayet of Yemen, and appear to link their
future disposition to this historical attachment to the Arabian Coast.
Great Hanish, Suyal Hanish, Little Hanish, Jebal Zukur, Abu Ail, being nearer to the
Arabian Coast, appear before the war to have been considered as under both the
jurisdiction and sovereignty of Turkey. A Foreign Office Memorandum dated 15 January 1917 and entitled "Italy and the Partition
of the Turkish Empire" provides in paragraph 38:
Furthermore, Eritrea has submitted Italian Colonial Ministry documents, including a note
dated October 11, 1916, entitled "The Red Sea Islands", reflecting the findings of an Lastly, everyone seems to be agreed that the islands in the Red Sea which were
inquiry conducted on the islands themselves. After devoting Part I to "Farsan" and Part II to previously under Turkish sovereignty pass naturally to the Arab State, though some special
"Kameran", Part III of the note deals with "the other islands", which included what is regime will be necessary in Kamaran Island in view of the pilgrim traffic.
referred to as "Gebel Zucur". This heading included not only the "group of 12 sizeable
rocks", but also "the two great and small Hanish islands". With regard to these islands, it Lord Balfour, in a 13 March 1919 letter to Lord Curzon, indicated that the solution
was noted that "[t]he Ottoman authorities kept a small garrison of 40 there under the envisaged for "Abu Ail, Zabayir and Jebel Teir" as well as "Kamaran, Zukur and the Hanish
command of a Mulazim to monitor the movement of importation vessels to the Yemen Islands (Great Hanish, Little Hanish and Suyul Hanish group)" was either "to annex them"
Coast from Gibut.", and further that, "faced with the difficulties of supplying water and to the British Empire or "to claim that they should be handed over to some independent
victuals on account of a shortage of resources, the Ottoman authorities withdrew the Arab rulers on the mainland other than the Imam of Sanaa or the Idrisi".
garrison." After the bombardment of Midi by Italian warships, the Ottoman authorities are
said to have "restored the garrison in 1909 and increased the number of askaris to 100."
Lord Curzon's letter addressed to Lord Balfour on 27 May 1919 linked the subject of any
handover to Arab rulers with the essentially political question of the area's future, "the
These Italian colonial documents, which confirm Ottoman sovereignty over the Hanish- whole question of the future of the Red Sea Islands" was to be considered "ultimately
Zuqar islands and assert that they continued in 1916 to be administered by the vilayet of bound with that of the future status of Arabia". Therefore, Lord Curzon indicated that:
Yemen, are consistent with the views expressed in a telegram addressed by the Governor
of the Eritrean Colony to the Italian Minister of the Colonies and transmitted on October 18,
1916 to the Italian Minister of Foreign Affairs. A Foreign Ministry note entitled: "The Red [t]he policy of his Majesty's Government should in the first place be directed towards the
Sea Islands", dating back to July 31, 1901, is attached thereto as "Appendix II". The 1901 recognition by the High Contracting Parties of the fact that the islands form a part of the
Note bases the division of the islands into three groups: mainland and will accordingly become the property of the Arabian rulers concerned; and
that these rulers are to be in special relation with His Majesty's Government.

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As will be expanded upon later, the allocation of administrative powers over the Red Sea 1. Outside her frontiers as fixed by the present Treaty Turkey hereby renounces in
islands, whether by the Ottoman Empire acting as sovereign power on both coasts or only favour of the Principal Allied Powers all rights and title which she could claim on
as exercising jurisdiction from the Arabian Coast alone, represents an historic fact that any ground over or concerning any territories outside Europe which are not
should be taken into consideration and given a certain legal weight. otherwise disposed of by the present Treaty.
2. Turkey undertakes to recognize and conform to the measures which may be
The Legal History and Principal Treaties and Other Legal Instruments Involved; taken now or in the future by the Principal Allied Powers, in agreement where
Questions of State Succession necessary with third Powers, in order to carry the above stipulation into effect.

The series of major instruments engaging, in various combinations, the maritime users of In the event, the Treaty of Sèvres was not ratified by Turkey and did not enter into effect.
the Red Sea form an important backdrop to the legal claims of the parties in this Accordingly, title to the Red Sea islands in dispute must thus have remained with Turkey -
arbitration. Their binding nature or otherwise, their status as directly legally significant or as even though it knew that it would in due course be required to divest itself of such title.
res inter alios acta, and the meaning of their terms, have all engaged the attention of the Indeed, Great Britain had been occupying certain islands since 1915 to forestall Italian
Parties. activity, and had been displaying the flag but without claiming title.

The Treaty of Da’an. The so-called Treaty of Da'an of 1911 was in fact an internal Treaty of Lausanne. Much has been made by Yemen of the fact that throughout the
instrument by which the Imam of Yemen obtained for himself greater internal powers of years that ensued, the Imam protested to Great Britain that "the islands" had not been
autonomy within the Ottoman Empire. However, sovereignty over all the Ottoman returned. These "islands" were not specified. While this may indeed support allegations of
possessions, including the islands in dispute, remained vested in the Empire itself until it the existence of a Yemeni claim, there is no evidence that it was either intended, or
was legally divested of its Arabian possessions after the First World War. interpreted, to include the islands in dispute in the present case. Furthermore, a state's
protests about the refusal of others to allow it to exercise effective control over what it
maintains in its own territory have little legal significance if the protesting state does not, in
1918 Armistice of Mudros. The Principal Allied Powers (the British Empire, France, Italy fact, have title. More relevant is the fact that Turkey undoubtedly had title in 1918 and
and Japan) agreed at Mudros an armistice with Turkey on 30 October 1918. The 1918 failed to divest itself in 1920. The instrument by which it did finally divest itself was the
Armistice of Mudros was a vehicle for ending hostilities and indeed for permitting Treaty of Lausanne in 1923.
belligerent occupation. It was not an instrument for the transfer of territory. It is not disputed
that immediately before the signing of the Armistice of Mudros title to all the islands was
Ottoman. It was further agreed in these proceedings that Ottoman title had been secured The Imam was not a party to the Treaty of Lausanne and in that technical sense the Treaty
by military occupation, which was lawful by reference to the international law of the day. An was res inter alios acta as to Yemen. If title had lain with Yemen at that time, the parties to
essential component of sovereign title is the right to alienate. Just as the Ottoman Empire the Treaty of Lausanne could not have transferred title elsewhere without the consent of
would have been free to cede title to the islands to a third state at any time during the Yemen. But, as indicated above, title still remained with Turkey.
period 1872 to 1918, so it still had the legal right itself to determine where title should go
after 1918. Its freedom in this regard was curtailed not by the operation of a doctrine of Article 6 provided that, in the absence of provisions to the contrary, islands and islets lying
reversion which would spring into operation upon any divesting of title by Turkey, but by the within three miles of the coast are included within the frontier of the coastal state. While
realities of power at the end of the War. some of the Dahlaks and some of the Assab islands would have fallen outside the three-
mile limit, they were generally regarded as appurtenant to the African littoral and thus
It cannot be the case therefore that title passed in 1918 to the Imam. Accordingly the belonging to Italy. The Mohabbakahs (the nearest being almost six miles away) and the
Tribunal is not able to accept that sovereignty over the islands in dispute reverted to Haycocks did not fall within the provisions, though, as will be shown below, Italian
Yemen. jurisdiction over them had been acknowledged. Whether or not the Mohabbakahs are islets
rather than islands, and notwithstanding that Article 6 refers to islets, whereas Article 16
did not, the Mohabbakahs were not islets transferred to Italian title by virtue of Article 6.
Treary of Sevres. It was intended that a treaty of peace, containing the future settlement
of Turkish territory in Europe and elsewhere, should follow the 1918 Armistice of Mudros.
To that end, the Principal Allied Powers (forming together with Armenia, Belgium, Greece, Article 15 provided for the renunciation, in favour of Italy, of certain specified and named
the Hedjaz, Poland, Portugal, Roumania, the Serb-Croat-Slovene State and islands in the Aegean. Article 16 provided as follows:
Czechoslovakia the "Allied Powers") on the one hand, and Turkey on the other, signed a
Treaty of Peace at Sèvres on August 10, 1920. The long and detailed provisions contained Turkey hereby renounces all rights and title whatsoever over or respecting the territories
but a single clause that might have had application to the islands in the Red Sea in dispute situated outside the frontiers laid down in the present Treaty and the islands other than
in the present case. those over which her sovereignty is recognized by the said Treaty, the future of those
territories and islands being settled or to be settled by the parties concerned . . .
Article 132 provided:

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Although "territories" and "islands" are separately mentioned, their treatment under Article automatically revert (insofar as they had ever belonged) to the Imam. Sovereign title over
16 is identical. These phrases presumably covered also those islets not transferred by them remained indeterminate pro tempore. Great Britain certainly regarded it as likely that
operation of Article 6. What was intended by "the parties concerned" is not wholly clear, some undefined islands which "pertained to the Yemen" were covered by Article 16.
but, given the knowledge of the claims of the Imam, as well as the hopes of Italy, and given Indeterminacy could be resolved by "the parties concerned" at some stage in the future B
further that the phrase used elsewhere in the Treaty is "The High Contracting Parties", it is which must mean by present (or future) claimants inter se. That phrase is incompatible
not unreasonable to conclude that what was envisaged was a settlement of the matter in with the possibility that a single party could unilaterally resolve the matter by means of
the future by all those having legal claims or high political interest in the islands, whether acquisitive prescription.
Treaty of Lausanne High Contracting Parties or not.
Given the Great Power politics in the region, the application of these legal principles was
It is not certain whether in 1923 either Great Britain or Italy would have regarded the inevitably sometimes less than clear. Great Britain in fact secured jurisdiction over
reference to islands in the Red Sea over which Turkey had title as including the Haycocks. Kamaran island in this fashion; the records show that British civil servants and ministers
This was because Italian jurisdiction in those islands had already been acknowledged. over the years continued to entertain notions of appropriation of particular islands; but
Until the very end of the 19th century the Ottomans treated those living in Eritrea as being Great Britain was at pains to ensure the continued efficacy of Article 16 so far as Italian
of Turkish nationality and subject to Ottoman jurisdiction. But certain accommodations acts were concerned, through frequent enquiries to the Italian Government.
were being reached. Italy had in 1883, 1887 and 1888 entered into a series of agreements
with local Eritrean leaders. The islands to which the Article 16 proviso applied at the outset were therefore the
Mohabbakahs, the Haycocks, South West Rocks, and certainly the Zuqar-Hanish group,
1. The Treaty of 1888 with the King of Shoa provided that "Italy will protect on the Abu Ali, Jabal al-Tayr and the Zubayr group.
sea coast the safety of the Danakil littoral" (Art. VIII) and that "Italy will watch over
the security of the sea and the Colony" (Art. IX). By Article V, the Sultan Far from the Treaty of Lausanne "paving the way" for Italian sovereignty, as has been
Mohamed Hanfari ceded to Italy "the use of the territory of Ablis". suggested by Eritrea, it presented a formidable obstacle. It is arguable that acquisitive
2. In 1887 a further treaty, which seems to have no special relevance for the prescription might nonetheless have been effected by Italy in the face of its obligations
matters at issue, was signed. should the other parties to the Treaty of Lausanne have so allowed. Italy would have tried
3. In 1888 a Treaty of Friendship and Commerce between Italy and the Head of the to secure the most favourable position, both on the ground and in diplomacy, for that day in
Danakils provided that Italy would guarantee the security of the Danakil coast. the future when title would be determined. In terms of political aspiration, animus
Further "The Sultan Mohamed Anfari recognises the whole of the Danakil coast occupandi undoubtedly existed. But whether claims to sovereignty were made and
from Afila to Ras Dumeira as an Italian possession" (Article 111). As a British acknowledged, so that certain islands would be effectively au dehors the reach of Article
Foreign Office Memorandum in 1930 was later to put it ". . . the Italian rights of 16 of the Treaty of Lausanne, must be doubtful. Still less plausible is the contention that
surveillance drifted into what was tantamount to territorial rights to the littoral" and the High Contracting Parties (and Great Britain in particular) would have allowed, or
Great Britain, having made no protest, "could not now fall back upon the terms of acquiesced in, an incremental assumption of sovereignty by Italy.
the Agreement of May, 1887."

The 1927 Rome Conversations

The situation is clearer as regards Abu Ali, Jabal al-Tayr and the Zubayr group. They were
envisaged at the time as having belonged to the Ottomans (but as never having previously
been claimed by the Imam). These three islands fell under the terms of Article 16 of the This conclusion is confirmed by the history following the Treaty of Lausanne. In 1927,
Treaty of Lausanne. conversations took place in Rome between the Italian Government and the British
Government relating to British and Italian interests in Southern Arabia and the Red Sea
("the Rome Conversations"). In the signed record they agreed to cooperate in seeking to
There are three key points at issue in respect of Article 16. The first is the legal implications secure the pacification of Ibn Saud, the Imam Yahya and the Idrisi of Asir; and noted that
of it being res inter alios acta in respect of Yemen. The second is what islands in fact fell Great Britain regarded it as "a vital imperial interest that no European Power should
under this provision, i.e., were still under Ottoman sovereignty up to the date of the Treaty. establish itself on the Arabian shore of the Red Sea, and more particularly on Kamaran or
The third is whether Article 16 either permitted acquisitive prescription by a single state of the Farsan islands, and that neither. . . shall fall into the hands of an unfriendly Arab Ruler."
some or all of these islands and, if not, whether such acquisitive prescription could and did This proviso was repeated, pari passu, in respect of the west coast and Kamaran and the
nonetheless occur (even if in violation of a treaty obligation). Farsan islands.

According to the Court: No such specific reference was made to the other islands now in dispute. Whereas Articles
4 and 6 apply to Kamaran and Farsan, Article 5 must, in the view of the Tribunal, be taken
In 1923 Turkey renounced title to those islands over which it had sovereignty until then. to apply to the other islands in dispute. Article 5 provided:
They did not become res nullius B that is to say, open to acquisitive prescription B by any
state, including any of the High Contracting Parties (including Italy). Nor did they

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That there should be economic and commercial freedom on the Arabian coast and the months of negotiation there was signed on 16 April 1938 an Agreement and Protocols
islands of the Red Sea for citizens and subjects of the two countries and that the which entered into effect on 16 November 1938. Annex 3 of the agreement included
protection which such citizens and subjects may legitimately expect from their respective detailed dispositions of relevance to the Red Sea islands:
governments should not assume a political character or complexion.
Article 1
This article can only be understood to mean that acts which might otherwise be construed
as providing an incremental acquisition of sovereignty were by the agreement of the Neither Party will conclude any agreement or take any action which might in any way
parties not to be so construed. To seek to identify acts "having a sovereign character" thus impair the independence or integrity of Saudi Arabia or of the Yemen.
became without legal purpose.

Article 2
Eritrea has argued that no legal weight is to be given to these provisions, in the first place
because this record was not registered under Article 18 of the Covenant of the League of
Nations and in the second place because it cannot be invoked by Yemen, either for that Neither Party will obtain or seek to obtain a privileged position of a political character in
reason or because it was res inter alios acta. That this was not registered was undoubtedly any territory which at present belongs to Saudi Arabia or to the Yemen or in any territory
because it was not regarded as a treaty between states. But it was nonetheless an which either of those States may hereafter acquire.
accurate account of what both parties had agreed and was signed by them as such.
Article 3
The provisions of Article 5 of the Rome Conversations were, of course, fully consistent with
Article 16 of the Treaty of Lausanne, and indeed reinforced it. The former did not replace The two Parties recognise that, in addition to the obligations incumbent on each of them in
the latter but rather provided a further mechanism for assuring that fishing, commercial and virtue of Articles 1 and 2 hereof, it is in the common interest of both of them that no other
navigation-related activities could continue without the indeterminate status of the islands Power should acquire or seek to acquire sovereignty or any privileged position of a political
being jeopardised. character in any territory which at present belongs to Saudi Arabia or to the Yemen or
which either of those States may hereafter acquire, including any islands in the Red Sea
Italy and Great Britain each now sought to ensure that sovereignty was indeed reserved. belonging to either of those States, or in any other islands in the Red Sea to which Turkey
renounced her rights by Article 16 of the Treaty of Peace signed at Lausanne on the 24 th
July 1923. In particular they regard it as an essential interest of each of them that no other
1. When Great Britain proposed to France certain arrangements concerning the Power should acquire sovereignty or any privileged position on any part of the coast of the
management of the old Ottoman lighthouses at Abu Ail, Jabal al-Tayr, Centre Red Sea which at present belongs to Saudi Arabia or to the Yemen or in any of the
Peak and Mocha, Italy asked for acknowledgment that the last belonged to aforesaid islands.
Yemen and that sovereignty was reserved as to the first three islands. Great
Britain was able to provide this.
2. When it was learned in London that Italy was preparing to build a lighthouse on Article 4
South West Haycock (which it thought of as part of the Mohabbakahs) Great
Britain sought assurance that the Haycocks as well as the Hanish islands were (1) As regards those islands in the Red Sea to which Turkey renounced her rights by
indeed viewed by Italy as falling under Article 5 of the Rome Conversations. Article 16 of the Treaty of Peace signed at Lausanne on the 24 th July, 1923, and which are
3. Italy in 1930 informed Great Britain that it had sovereignty over South West not comprised in the territory of Saudi Arabia or of the Yemen, neither Party will, in or in
Haycock, regarding which it made a specific reservation, that it lay in the regard to any such island:
Mohabbakahs, that it was prepared for South-West Haycocks and the rest of the
Hanish islands to be treated in accordance with Article 5 of the Rome
Conversations. (a) Establish its sovereignty, or
4. In 1931, further assurances were received from Italy over its establishment of
armed posts on Greater Hanish and Jabal Zuqar. (b) Erect fortifications or defences.
5. The Italian Royal Legislative Decree No.1019 of 1 June 1936 made
arrangements for the administration of Italian East Africa.
6. General Government Decree No.446 of 20 December 1938: "the Hanisc-Sucur (2) It is agreed that neither Party will object to:
Islands are deemed to be included within the bounds of the Commissaryship of
the Government of Dancalia and Aussa (Assab)." (a) The presence of British officials at Kamaran for the purpose of securing the sanitary
service of the pilgrimage to Mecca in accordance with the provisions of the Agreement
Developments in Yemen and Saudi Arabia, including their relations with each other, made concluded at Paris on the 19th June, 1926, between the Governments of Great Britain and
Italy and the United Kingdom believe that matters should be clarified further. After several Northern Ireland and of India, on the one part, and the Government of the Netherlands, on
the other part; it is also understood that the Italian Government may appoint an Italian
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Medical Officer to be stationed there on the same conditions as the Netherlands Medical 3, through the various acts referred to in the Treaty, especially fortifications. It may be
Officer under the said Agreement; concluded that the 1938 Treaty evidences no recognition by Italy or Great Britain of any
Yemeni title to the disputed islands. But at the same time the Treaty expressly excluded
(b) The presence of Italian officials at Great Hanish, Little Hanish and Jebel Zukur for the any Italian claims of sovereignty thereto.
purpose of protecting the fishermen who resort to those islands;
The consequence of this series of international instruments and engagements was that
(c) The presence at Abu Ail, Centre Peak and Jebel Teir of such persons as are required from 1923 to 1938 Italy could make no claim that it already had a title that must be
for the maintenance of the lights on those islands. recognised. The only clear claim to sovereign title was to South West Haycock B but even
that claim to an existing title was to be treated, at Italy's own suggestion, as "in abeyance"
until title to the islands generally should later be settled by the parties concerned under
The Ministry of Foreign Affairs of Italy had, in an internal Note of 31 March, made clear that Article 16 of the Treaty of Lausanne.
the formula being negotiated would confirm that the Red Sea islands formerly under
Turkish sovereignty "belong neither to Great Britain, Italy or the two Arab States, but
remain of reserved sovereignty." An accompanying list of islands "of reserved sovereignty" As neither Italy nor Yemen held sovereign title at the outbreak of the Second World War, all
indicated that Kamaran, Abu Ali and Jabal al-Tayr were at the time under British the islands (save perhaps South West Haycock and the Mohabbakahs) may be assumed
occupation, and described as occupied by Italy: Greater Hanish, Jabal Zuqar, Centre Peak, to have fallen within the relinquishment provisions that Italy was obliged to accept. This
and Lesser Hanish. South-West Haycock is not listed in the Italian Foreign Ministry Note conclusion is also supported by an examination of the documents relating to the years
as coming within this arrangement, notwithstanding the assurances on this point given to 1941-50.
Great Britain in 1930 regarding understandings reached during the 1927 Rome
Conversations. In the Treaty of 1938 itself, however, the islands agreed to fall within its The 1941 Proclamation of British Military Jurisdiction brought under the command of
provisions are not specified. Nor is there any reflection of an internal British proposal that Lieutenant-General Platt "[a]ll territories in Eritrea and Ethiopia". This wording seems to the
the termination of the 1927 Rome Conversations be made clear. Tribunal neither "broad" nor indeed "narrow", but merely general and uninformative
geographically and legally. The Armistice did speak of the "[i]mmediate surrender of
It would seem that the 1938 Treaty is to be seen not as replacing but as supplementing Corsica and of all the Italian territory, both islands and mainland, to the Allies . . ." (para. 6).
and expanding the 1927 undertakings (always less than a formal treaty), the "political But what islands are there referred to is wholly uncertain; the explanation in Article 41 of
character and complex formula of the latter having been found unsatisfactory." The Rome the "Additional Conditions of Armistice" with Italy that "the term >Italian Territory' includes
Treaty was never registered with the League of Nations and by virtue of Article 18 of the all Italian colonies and dependencies . . . (but without prejudice to the question of
Covenant could not be invoked by either party against the other. More relevant to Yemen is sovereignty) . . ." carries things no further. The phrase remains question-begging and in
the fact that it is a third party to the treaty. There is no evidence, however, that either Italy addition carries a specific caveat. Armistice agreements are instruments directed to
or the United Kingdom failed to proceed with registration for any reason other than the stopping or containing hostilities and not to acknowledging or denying sovereign title.
approaching war clouds. The text of the treaty still has significance, which the Tribunal may
properly take account of, as to the understanding of the parties in the autumn of 1938 In 1944 the British Colonial Office conducted an internal assessment on the status of
regarding the current position of the islands and their intention at that moment as to how Kamaran, the Great Hanish group, the Little Hanish group, the Jabal Zuqar group
they should continue to be treated. No change is to be discerned from the essential thrust (including Abu Ali), the Zubayr group (including Centre Peak), and Jabal al-Tayr. In
of what had gone before: claims were to remain inactive. The islands were not res nullius correspondence the history was briefly recounted, and it was recalled that under Article 16
to be acquired by Italy or Great Britain. of the Treaty of Lausanne "their future was to be settled by the >parties concerned'. It
never has been. They are in fact international waifs." The letter continued: "Once upon a
The wording of Article 3 is not without its ambiguities. What it does show is that, on the one time the Italians were interested in all these islands." It was thought that the Dutch now
hand, there were some islands in the Red Sea regarded in 1938 as belonging to Saudi had some interest. "Apart from the British, however, the most serious claimant seems to be
Arabia and to Yemen. It also shows, on the other hand, that there were other Red Sea the Yemen, off whose coast all the islands lie." The claims of the Imam in 1934 were
islands regarded as belonging to neither, and whose title was still indeterminate. recalled.

As Article 4 clearly and specifically refers to Kamaran, Greater Hanish, Little Hanish, Jabal he author of the letter (a civil servant within the Colonial Office) suggested that matters
Zuqar, Abu Ali, Centre Peak and Jabal al-Tayr as not being under the sovereignty of Saudi could be left as they were; or tidied up "in the same way"; or the UK could annex the
Arabia or Yemen, it is uncertain what islands were regarded as "at present belong[ing] to islands.
Yemen". In any event, Italy and the United Kingdom did not in 1938 regard title to any of
the named islands as belonging to Yemen or as having been settled within the terms of Leaving aside the assessment of all the islands as "off Yemen's coast" or the assumption,
Article 16 of the Treaty of Lausanne; and they each undertook not to establish sovereignty without legal analysis, that they were free for annexation, the letter evidences what
thereon. There is nothing in the record to show that the term "establish" in Article 4 was seemed to be a widely-held view within the British Government that sovereignty over these
intended to mean other than "acquire" or "seek to acquire" sovereignty, as used in Article islands remained unsettled within the terms of Article 16 of the Treaty of Lausanne.

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By 1947 the question of title had, of course, to be faced in the Treaty of Peace with Italy. Authority (BMA) Termination of Powers Proclamation of 1952, or the revised Constitution of
Under Article 23 Italy renounced "all right and title to the Italian territorial possessions in Eritrea of 1955, changed matters.
Africa, i.e., Libya, Eritrea and Italian Somaliland." The third paragraph of that provision
then provided: Red Sea Lighthouses

The final disposition of these possessions shall be determined jointly by the Governments Significance of the Red Sea Lights. The Red Sea lights bear on this arbitration in three
of the Soviet Union, of the United Kingdom, of the United States of America, and of France main ways.
within one year from the coming into force of the present Treaty . . . .

1. Each of the parties has at various moments suggested that its establishment or
That this did not refer to the islands here in issue is made fully clear by Article 43, which maintenance of lighthouses on the various islands constitute acts of sovereignty.
provides: 2. The diplomatic correspondence relating to the lighthouses might throw some light
on the underlying claims to the islands where they are located, not least because
Italy hereby renounces any rights and interests she may possess by virtue of Article 16 of the lighthouse islands were necessarily named. So much of the other material
the Treaty of Lausanne signed on July 24, 1923. relates to islands without specification.
3. The relationship between the several lighthouse conventions and the provisions
Both the placement of this article (at a point distant from Article 2) and the very need for of Article 16 of the Treaty of Lausanne might have some legal significance.
such a provision made it clear that the disputed Red Sea islands did not fall to be disposed
of under Article 23(3). This provision was not meant to operate as a revision or History of the Red Sea Lights.
renunciation, by parties other than Italy, of Article 16 of the Treaty of Lausanne.
1. In 1891 the Board of Trade, relying on the Hertslet Memorandum of 1880,
Instead, Article 16 of the Treaty of Lausanne remained intact. Italy was now obliged to suggested that North East Quoin and Harbi were within Egyptian jurisdiction and
renounce "any rights and interests" under it. This refers not merely, as has been submitted South West Rocks and the Haycocks within Ottoman jurisdiction - with the
by Yemen, to Italy's right to protest at a purported acquisition by another or to be party Sublime Porte claiming sovereignty to all four islands. The Marquis of Salisbury,
eventually to a settlement of title. It refers also to a renunciation of any claims Italy might in writing to the British Ambassador to Rome in January 1892, stated "The
have made and any legal interests she might have asserted regarding the islands. islands and rocks recommended by the Board of Trade . . ., with the exception of
South-west Rocks, seems [sic] to be in effect within the jurisdiction of Italy. That
A United Nations working paper drawn up in December 1949 in connection with the over the South-west Rocks would appear to be doubtful." From 1881 to 1892
preparation of the draft Eritrean Constitution supports the view that the Hanish, Zuqar and there was an extended international correspondence on this subject.
more northerly islands were not among those to be settled (and eventually affirmed as 2. A Note of 3 February 1892 was addressed to the Italian government to seek
passing to independent Eritrea). The section on the Geography and History of Eritrea says clarification. The Note included the statement that "according to Article 3 of the
that the Italian colony "includes the Dahlak archipelago off Massawa, and the islands Treaty between Italy and Sultan Ahfari of Aussa of the 9th December 1888", the
further south off the coast of the Danakil country." This would seem to refer to those jurisdiction over the new sites, "with the exception perhaps of South-West Rocks,
Mohabbakahs in proximity to Assab. The section that recalls the "attempts to colonize the appears to belong to Italy."
highlands of Eritrea" makes no reference to any colonization of the islands. 3. The Italian Government replied in June of that year that "the King's Government
consider these points as a maritime appendage of the territory over which they
exercise their sovereignty" but urged the British Government to erect and
The Ministry of Foreign Affairs of Ethiopia did protest when it commented on the draft
maintain the lighthouses and to fix the method of reimbursement.
constitution. It pointed out that the language used in Article 2 of the draft Constitution
4. The Ottomans arranged for the building of four lighthouses at Mocha on the
"would impliedly exclude all archipelagoes and islands off the coast. Surely, this exclusion
Arabian coast, and on Jabal al-Tayr, on Abu Ali and in the Zubayr group (on
was not intended." But that language - namely that "the territory of Eritrea, including the
Centre Peak). This was maintained by the French concessionaires for the
islands, is that of the former Italian colony of Eritrea" - remained intact in the final text of
Ottomans until 1915. Great Britain occupied the three lighthouse islands in 1915.
the Constitution.
5. When the Ottoman Empire was required to renounce its possessions,
sovereignty over the lighthouse islands fell, under Article 16 of the Treaty of
The Italian Government had also been invited to express its opinions on the future of Lausanne, "to be settled by the parties concerned". The light at Mocha was
Eritrea to the UN Commission on Eritrea. Italy urged independence for Eritrea, recognised by Great Britain as being within the territory succeeded to by the
emphasising that its renunciation of all title did not make Eritrea a res nullius. It spoke of Imam.
the regions that had been occupied by Italy to establish Eritrea. In that context, reference 6. In 1927 Great Britain negotiated an agreement with France for the maintenance
was made to the Dahlak islands. In urging the continued unity of Eritrea no mention was of all four lighthouses by the French company and approached the main users of
made of any other islands. None of the rapidly ensuing instruments Bthe British Military the route - Germany, the Netherlands, Japan and Italy - to regulate the matter by

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a convention. Italy, expressing the wish that it had been consulted earlier, made The Pro-Memoria can only be read as a claim to sovereignty over South West Haycock by
two points. First, Mocha was claimed by the Imam and he should be a party. Italy (while at the same time agreeing that the erection of the lighthouse was to be treated
Second, Italy wished to know whether sovereignty of the islands was to be as a commercial rather than a sovereign act) and a failure to advance a comparable claim
attributed to the neighbourhood coast or whether the point would be reserved. No to title over the Hanish group.
Italian claim to any of the islands was presented. The British Government
conceded that Mocha was under the rule of the Imam and affirmed that the status 9. The South West Haycock lighthouse was extinguished in 1940. It was
of the islands was to be reserved. These reassurances led to the conclusion of abandoned after 1945.
the Convention concerning the Maintenance of Certain Lights of 1930. 10. The British authorities were notified by Note Verbale on October 4, 1933. The
Note Verbale expressly stated:
Although this Convention did not enter into force, and thus cannot be said to bind the
parties as a treaty, it is useful evidence of their thinking at that date. The preamble and the . . . the Royal Ministry for Foreign Affairs need hardly add that the presence of an Italian
annex refer to the renunciation by Turkey of both the islands and of Mocha, the occupation staff on the Island of Zebair (Centre Peak), which will ensure the operation of the light,
of the islands by Great Britain, and the provision in Article 16 of the Treaty of Lausanne implies no modification of the international judicial status of the island itself, which,
that "the future of these islands, and of that territory [is] a matter for settlement by the together with the islands of Abu Ail and Gebel Taiz [sic], was considered by the Italian and
Parties concerned." The annex continued: "(e) . . . no agreement on this subject has been British governments in 1928 during the negotiations for the Red Sea Lights Convention,
come to among the parties concerned and it is desirable in the interests of shipping to when the conclusion was reached that the question of sovereignty of those islands should
ensure that the lighthouses on the said islands shall be maintained". It then proceeded to remain in suspense.
determine that a lighthouse company should take possession of and manage the
lighthouses on Abu Ali, Zubayr and Jabal al-Tayr. Italy was prepared to put its signature to
this and to Article 13, which clearly affirmed the continued operation of Article 16 of the Thus in the northern islands, too, Italy had established a navigational interest but affirmed
Treaty of Lausanne: that it had no implications for sovereignty. The British decided this was a sufficient comfort
not to have to pursue this matter further with the Italians.
Art. 13. In the event of the arrangement contemplated in article 16 of the Treaty of
Lausanne being concluded between the parties concerned, the High Contracting Parties The situation remained essentially unchanged by the 1938 agreement. Article 4(2) of
will meet in conference in order to decide whether it is desirable to terminate the present Annex 3 again affirmed that neither Great Britain nor Italy would establish sovereignty over
Convention, or to modify its terms with a view to making it conform to the aforesaid the renounced islands, following Article 16 of the Treaty of Lausanne, and that no
arrangement. objections would be raised to lighthouse personnel.

Although the 1930 Convention was ratified by Italy and the Netherlands, it did not come 11. By the outbreak of the Second World War it may be said that the maintenance of
into force, because the French Government was locked in disagreement with the British the lights is seen as a non-sovereign act and there is agreement that the
Government as to whether the lighthouse company, Michel et Collas, should be paid on underlying title to the islands concerned was left in abeyance. In the course of
the basis of gold. France refused to ratify. the Second World War, the South West Haycock and the Centre Peak lights were
extinguished.
12. In June 1948 the British Military Authority (BMA) in Eritrea sought legal advice as
7. In the meantime, in the very same year, Italy was preparing to erect a lighthouse to whether it was liable under any international conventions for the re-
on South West Haycock. The Haycocks had not been specifically mentioned in establishment of various lights previously operated by the Government of Italy.
the 1927 Rome Conversations and the British were anxious to establish that The decision by the BMA that it had no responsibility for the lights at South West
Article 5 thereof should nonetheless apply, the more so as "the erection of a Haycock and Centre Peak was not because it thought those islands were not
lighthouse . . . may be regarded as implying some definite claim to sovereignty." Italian.
Great Britain was concerned as to whether indeed South West Haycock did fall 13. After the Second World War, the British did continue to take responsibility for the
within the Rome Conversations. It was decided to seek assurances. These were lighthouses at Abu Ali and Jabal al-Tayr, and from 1945 received financial
sought in an aide-memoire of 18 February 1930, in which Italy was reminded of contribution from the Netherlands. Yemen was not a party. Nor was Ethiopia.
the earlier exchanges in 1927. In that document Great Britain referred to South The criterion for invitation was clearly that of navigational importance and not of
West Haycock as being "in the Hanish group of Islands". title to the coast or islands.
8. In its Pro-Memoria of 11 April 1930, Italy asserted that South West Haycock was
not part of the Hanish islands, but rather belonged to the Mohabbakah
archipelago over which it alleged that the Ottomans had never claimed Article 8 was to make crystal clear that nothing in the text following was to be regarded
sovereignty. Italy therefore made "a special reserve regarding Italian sovereignty either as a settlement of the future of the islands referred to in Article 16 of the Treaty of
over this island" Lausanne, "or as prejudicing the conclusion of any such settlement." This Article
reproduces the provisions of Article 15A of the 1930 Lighthouses Convention. The United
Kingdom was affirmed as the "Managing Government" for these two lights and was entitled

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to appoint an agent for this purpose (Article 2). Article 6 provided for discontinuance of this Yemen supported the Egyptian proposal that Yemen would manage the lighthouses on
role upon notice to the other parties, and indicated the procedures to be followed in that Jabal al-Tayr and Abu Ali and did so without reserve as to title. The minutes contain no
eventuality. reference by Yemen to the islands being in its Exclusive Economic Zone. It is mentioned
twice again in the internal report sent after the 1989 conference from the Yemeni Director-
14. As in 1930, the managerial role of the United Kingdom had nothing to do with the General of the Ports and Maritime Affairs to the Government of Yemen. Yemen's offer -
issue of title to the islands; nor did management even place the United Kingdom which was accepted - was in language other than claim of a right of sovereign title.
in a favourable position for when the title issue came to be resolved.
15. In 1971 the British Government decided to replace the lights by automatic lights, The erection and maintenance of lights, outside of any treaty arrangements and for the
dispensing with the services of lighthouse-keepers. The United Kingdom notified indefinite future, had certain implications. The acceptance of Yemen's offer did not
Yemen of this intention, assured that Government that "the action of the Board of constitute recognition of Yemen sovereignty over islands. But it did accept the reality that
Trade in accordance with [the 1962 convention] does not infringe upon rights of Yemen was best placed, and was willing, to take on the role of providing and managing
sovereignty" and asked whether Yemen had any objection. lights in that part of the Red Sea; and that when the time came finally to determine the
status of those islands Yemen would certainly be a "party concerned". (Yemen, of course,
The fact that the communication was addressed to Yemen, a non-signatory of the 1962 was not bound by Article 8 of the 1962 Convention and indeed appears not to have known
Convention, would seem to indicate that, while the islands remained unattributed in at the time of the arrangements made under it.)
accordance with the terms of the 1962 Treaty, Yemen was regarded by the United
Kingdom as a "party concerned" within the terms of Article 16 of the Treaty of Lausanne CHAPTER 7
and as having claims to Abu Ali and Jabal al-Tayr that should not be prejudiced. It may also Evidences of the Display of Functions of State and Governmental Authority
be noted that by this time Italy had lost its possessions on the Red Sea coast and was not, (par 239-361)
therefore, any longer a "party concerned" within the meaning of Article 16 of the Treaty of
Lausanne.
QUICK SUMMARY OF THE CHAPTER. This chapter discusses the issue of WON there
16. In 1975 the management of these two lights was transferred from Savon and were effectivités (jurisdictional acts) which would prove a display of State authority over the
Ries' offices in Ethiopia to its offices in Djibouti. Five years later, the agency for islands.
management was passed by the British authorities to a new company it had
formed, the Red Sea Lights Company. In order for either Eritrea or Yemen to acquire the territory, they should prove a continuous
17. In 1987 Yemen relit the lighthouse on Centre Peak, issued pertinent Notices to and peaceful exercise of jurisdiction via a public claim or legislative acts regulating activity
Mariners and, in 1988, upgraded it. This appears to have occasioned no protest in the islands. This both parties failed to do because the legislative and constitutional acts
by Ethiopia cited do not refer specifically to the islands by name. In addition, there were no effectivités
18. On June 20, 1989, Yemen contacted the United Kingdom regarding "the matter of which definitely prove either state exercised sovereign control over the islands.
the Lighthouses installed on Abu Ali (Ail) and Jabal al Tair Islands which is to be In order to examine there were effectivités on the Islands, the Tribunal considered
discussed on Tuesday 20 June 1989." Yemen formally stated that: evidence of activities [1] in the water surrounding the islands and [2] on the land territory of
the islands.

1. The two Islands mentioned above lie within the exclusive economic zone of the Yemen
Arab Republic. Activities relating to water cover (discussed in sequence): [1] Licensing of Activities in the
Waters Off the Islands, [2] Fishing Vessel Arrests; [3] Other Licensing Activity; [4] Granting
of Permission to Cruise Around or to Land on the Islands; [5] Publication of Notices to
2. In the light of this fact the Yemen Arab Republic is willing to take the responsibility of Mariners or Pilotage Instructions Relating to the Waters of the Islands; [6] Search and
managing and operating the said two lighthouses for the benefit of National and Rescue Operations [7] The Maintenance of Naval and Coast Guard Patrols in the Waters
International Navigation. As you may be aware, the Ports and Marine Affairs Corporation in Around the Islands; [8] Environmental Protection [9] Fishing Activities by Private Persons;
the Yemen Arab Republic is already running and operating several lighthouses some of and [10] Other Jurisdictional Acts Concerning Incidents at Sea.
which lie within the area of these two Islands.
Activities on the land territory of the islands cover (discussed in sequence): [1] Landing
19. Unless positive action was taken to extend the 1962 Convention, it would expire in Parties on the Islands; [2] Establishment of Military Posts on the Islands; [3] Construction
March 1990. In 1988 and 1989 it became clear that many parties had denounced the 1962 and Maintenance of Facilities on the Islands; [4] Licensing of Activities on the Land of the
Treaty or indicated their intention to do so. A meeting of the parties was held in London in Islands; [5] Exercise of Criminal or Civil Jurisdiction in Respect of Happenings on the
June 1989. Having established its credentials and interest, Yemen was invited as an Islands; [6] Construction or Maintenance of Lighthouses; [7] Granting of Oil Concessions;
observer to the 1989 Conference on the future of the two northern lights, notwithstanding [8] Limited Life on the Islands; [9] General Activities; [10] Overflight; [11] Miscellaneous
the fact that (like Ethiopia) it had not been a party to the 1962 agreement. Activities

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REQUISITES FOR THE ACQUISITION OR ATTRIBUTION OF TERRITORY. Modern SAME; TRIBUNAL RESPONDS TO YEMEN. Tribunal is not convinced. First, there is no
international law requires that there be: “an intentional display of power and authority over evidence that when the Imam advanced his claim of historic rights in 1918, he knew of the
the territory, by the exercise of jurisdiction and state functions, on a continuous and 1429 expedition.
peaceful basis.”
Second, the claim is too general. Indeed, the word "that part," being expressed in the
REQUISITE IS QUALIFIED. Requisite is qualified by the [1] nature of the territory, and [2] singular, would not seem naturally applicable to islands.
size of its population. This is because the area is uninhabited and ungoverned and
because the acts raised by Eritrea are acts of its predecessor Ethiopia (which are not
peaceful). Third, the communications between the Imam and British diplomats are too vague to serve
as evidence of a specific claim by the Imam to the Islands at that time.
TO CONSOLIDATE TITLE, PROVE INTENTION TO CLAIM. Evidence of intention to
claim the islands is essential to consolidate title. Evidence include: [1] public claim of right Fourth, Yemen had no presence on and little knowledge about Jabal al-Tayr and the
or assertion of sovereignty to the Islands [2] legislative acts openly seeking to regulate Zubayr group at that time, and supposed that they were in the possession of Ethiopia.
activity on the Islands
PUBLIC CLAIM; ERITREA’S ARGUMENT AND PROOF. Eritrea argues that the islands
were included in the former Italian colony of Eritrea. To prove that there was public claim, it LEGISLATIVE ACTS; ERITREA’S ARGUMENT AND PROOF. Eritrea argues that there
cites: [1] Italian Military Armistice of 1943, [2] the 1947 Treaty of Peace showing that Italy were legislative acts seeking to regulate the islands; citing as proof: [1] Ethiopian Federal
wished to claim the islands; [3] the 1952 Eritrean Constitution which defined the extent of Crimes Proclamation which applied to "any island which may be considered as
Eritrean territory as "including the islands;" [4] the 1953 Ethiopian Federal Crimes appertaining to Ethiopia;” [2] the 1953 Maritime Order which applied to “the islands; and [3]
Proclamation specified "any island which may be considered as appertaining to Ethiopia," Maritime Proclamation of 1953 referring to "the coasts of the Ethiopian islands."
[5] the 1953 Maritime Order republished the phrase "including the islands," [6] Maritime
Proclamation of 1953 referred to "the coasts of the Ethiopian islands," [7] three 1971 SAME; TRIBUNAL RESPONDS TO ERITREA. Tribunal is not convinced. The
operations orders which to demonstrate that "the islands in dispute here fell within the proclamations and orders were not explicit.
ambit of Ethiopia's concern," [8] and the 1977 Top Secret memorandum of the Ministry of
Foreign Affairs of The Provisional Military Government of Socialist Ethiopia referring to
islands in the southern part of the Red Sea that "have had no recognized owner", with SAME; YEMEN’S ARGUMENT AND PROOF. Yemen argues that there were legislative
respect to which Ethiopia "claims jurisdiction.” acts seeking to regulate the islands; citing as proof: [1] 1967 decrees issued by President
of Yemen Arab Republic concerning territorial waters and continental shelf, [2] 1987
Yemeni licensing of a research program in waters off the Islands demonstrated their
SAME; TRIBUNAL RESPONDS TO ERITREA. Tribunal is not convinced. First, Article 16 applicability to the Islands.
of the Treaty of Lausanne and the Rome Conversations stated that the island’s legal
position is indeterminate. Second, the 1952 Eritrean Constitution did not specify the islands
included. SAME; TRIBUNAL RESPONDS TO YEMEN. Tribunal is not convinced. These decrees do
not mention the islands by name. There is a silence as to whether the Islands are intended
to be included in the ambit of the decrees.
Third, the uncertainty as to the identification of the islands was also present in the
following: [1] Article 2, UN Nations Resolution approving the 1952 Constitution, [2] the
1955 Ethiopian Constitution, [3] the 1987 revision of the Ethiopian Constitution, [4] the LICENSING OF ACTIVITIES; CLAIMS OF BOTH PARTIES AND PROOF. Both parties
1997 Constitution of the newly-independent State of Eritrea, [5] 1953 Ethiopian Federal argue that they have practiced fisheries control and administration.
Crimes Proclamation, [6] 1953 Maritime Order, [7] Maritime Proclamation of 1953; [8] the
1971 Orders. Eritrea cites the following as proof: [1] Ethiopian naval units had for many years conducted
surveillance in the Red Sea and in particular around the Zuqar/Hanish archipelago; [2] the
SAME; YEMEN’S ARGUMENT AND PROOF. Yemen relies on a claim of historic title, 1995 Manual and Guidelines for the Administration of Foreing [sic] Vessel Licensing and
asserted to stem from time immemorial citing the following instances as proof: [1] the 1429 Operations issued by the Ministry of Marine Resources
Yemen mission to Jabal Zuqar to investigate 2 vessels engaged in smuggling that had run
aground on the island; [2] the reply to a British proposal for a treaty of friendship has the Yemen cites the substantial record of fishing vessel arrests by Yemeni authorities between
Imam requesting the “establishment of his rule and independence over all the Yemen, i.e., 1987 and 1990.
over that part which was once under the sway of his predecessors;" and [3]
communications between the Imam and British diplomats. SAME; TRIBUNAL RESPONDS. Tribunal is not persuaded for the following reasons:
With regard to Eritrea’s claim, there is no evidence that the Ethiopian activity was based on
fisheries regulations or laws as such.

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With regard to Yemen’s claim, they are recent in time, and appear to have been primarily notices, while not dispositive of the title, nevertheless supposes a presence and knowledge
directed in recent years against large Egyptian industrial fishing vessels. of location.

FISHING VESSEL ARRESTS; CLAIMS OF BOTH PARTIES AND PROOF. Eritrea cites SEARCH AND RESCUE OPERATION; CLAIMS OF BOTH PARTIES AND PROOF.
a substantial number of witness statements speaking of supervisory authority and activity Eritrea cites an event in 1974 where the M.V. Star of Shaddia was stranded off Zubayr, and
by Ministry of Marine Resources authorities. the HMS Ethiopia attempted a rescue but was unable because of severe weather and
mechanical difficulties.
Yemen cites the following as proof; [1] 1989 arrest of an Egyptian trawler "next to Zuqar
island in the territorial waters of Yemen;” [2] 1995 testimony from a Navy Captain that he Yemeni cites an event in 1990, where the Yemeni Ports Authority rescued an Iraqi vessel
was assigned "to arrest foreign fishermen pirates" and that he arrested "several launches" from the rocky coast of Jabal Zuqar after it had requested assistance.
of "Gulf ownership" with Egyptian crews after a gun battle "in Yemeni territorial waters," "in
an area between al-Jah and Zuqar;” [3] 1990 report addressed to the Yemeni Defence SAME; TRIBUNAL RESPONDS. No conclusion can be drawn from these events because
Ministry describes 20 separate incidents between 1987-90 in which a total of more than 60 there is under the law of the sea a generalized duty incumbent on any person or vessel in
vessels are reported to have been arrested, accosted, "escorted to" a naval base, or a position to render assistance to vessels in distress.
"warned to leave"
SAME; TRIBUNAL RESPONDS. Tribunal is not persuaded because in both claims, in the MAINTENANCE OF NAVAL AND COAST GUARD PATROLS IN THE WATERS
absence of a precise fixing of coordinates and distances, it is difficult to see whether the AROUND THE ISLANDS; CLAIMS OF BOTH PARTIES AND PROOF. Eritrea argues that
arrests actually occurred with respect to the waters around the Zuqar/Hanish archipelago there was naval patrolling activity in and around the Islands from the periods covering
or Jabal al-Tayr and the Zubayr group. 1953-1973, 1974-1980, 1973-1993 and 1983-1991. It produces affidavits of witness
statements, naval logbooks and operations reports and orders. (see pars 289, 291, 294-
GRANTING OF PERMISSION TO CRUISE AROUND OR LAND ON THE ISLANDS; 97, and 304 for details).
CLAIMS OF BOTH PARTIES AND PROOF. Eritrea cites activities of the Ethiopian Navy
in the 20-year period before Eritrean independence indicating that the Ethiopian naval Yemen relies merely on 2 witness statements asserting that patrols of the islands were
patrols operated intensive patrolling in and around the Islands during the Ethiopian war "carried out on a regular basis" - weekly in the summer and "once every month or 2" in the
against the Eritrean insurgents. There were also informal requests from 3rd parties for winter.
permission to cruise around, anchor at or land on the Islands were sometimes made to
naval patrols. SAME; TRIBUNAL RESPONDS. With regard to Eritrea’s claim, the tribunal reached the
conclusion that, based on the extent and homogeneity of evidence presented, the
Yemen cites the following as proof; [1] 1978 Kuwaiti fishing trawlers requested and Ethiopian Navy did indeed conducted frequent and widespread surveillance and military
received shelter from a storm at Jabal Zuqar, and that; [2] 1991 foreign flag vessels sought reconnaissance activities in the waters around the islands.
and received permission to anchor at Zuqar and Hanish for repairs; [3] Between 1972-95
Yemen received at least 8 formal requests from 3rd parties (see par 278 for list). However, it is not clear that there was an Ethiopian exercise of governmental functions
SAME; TRIBUNAL RESPONDS. With regard to Eritrea’s claim, there is no specification of based on the naval logbooks alone because the logs do not use the word "visit” and the
the islands. Also, the terms of the license specified that the "research operation must be tribunal is not clear on what that term entailed.
conducted in waters at a depth of 100 meters or more", thus excluding research in any Another caveat is that the witness statements provide 3 points to consider. First, out of the
close proximity to the Islands. 7 witness statements of former Ethiopian naval officers, 3 record no landings on the
Islands. The remaining 4 are imprecise with respect to either date or location. Second, the
patrols were fast and took place at night, and sometimes in conditions of darken ship.
With regard to Yemen’s claim, there was somewhat greater Yemeni activity than These factors bear upon the absence of protest by Yemen. Third, it is dubious that a major
Ethiopian/Eritrean activity in the granting of permission relating to the Islands 20-year military operation increasing in intensity can be viewed as primarily related to
fishing.
PUBLICATION OF NOTICES TO MARINERS; CLAIMS OF BOTH PARTIES AND
PROOF. Eritrea cites its fishing regulations as proof of general information concerning With regard to Yemen’s claim, the witness statements have unspecified dates. It is also
pilotage or maritime safety. disconcerting that Yemen did not protest the Ethiopian naval activities. This would normally
suggest acquiescence, that it did not regard itself as having sovereignty, and that it lacked
Yemen cites 6 Notices to Mariners in connection with its installation of new lighthouses in effective control over the islands.
the Islands. (see par 282 for list)
To determine whether there was acquiescence, the tribunal considered the following: [1]
SAME; TRIBUNAL RESPONDS. With regard to Yemen’s claim, such notices form a location of the Islands, [2] fact that they were not settled, [3] the fact that there was no
natural adjunct to the operation and maintenance of lighthouses. The issuance of such normal line of communication from persons on or near the Islands to the mainland; [4] the
fact that many of the Ethiopian patrols appear to have been conducted at night under

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conditions of darken ship, conducted at high speed; and that civil hostilities were in
progress. SAME; TRIBUNAL RESPONDS. Evidence presented shows no permanent military posts
on the Islands before 1995.
ENVIRONMENTAL PROTECTION. Yemen reports having investigated an oil spill reported
by a Russian freighter about 10 miles from Lesser Hanish in 1990. No evidence was submitted to substantiate Yemen’s statement. Photographs of groups of
military personnel standing on the Island do not give the impression of permanence and do
FISHING ACTIVITIES BY PRIVATE PERSONS; CLAIMS OF BOTH PARTIES. Both not show a structure or building.
parties point out that fishing and fish play a major role in their people’s economic life.
Eritrea says that “there are more than 2,500 Eritrean fishermen, many of whom are CONSTRUCTION AND MAINTENANCE OF FACILITIES ON THE ISLANDS; CLAIMS
artisanal fishermen engaged in small-scale fishing using traditional methods and OF BOTH PARTIES AND PROOF. Eritrea claims that the lighthouses on Abu Ali and Jabal
equipment" and that "[t]he waters around the Zuqar-Hanish islands supply a significant al-Tayr were managed by a private company based on Asmara, and that Ethiopian
portion of Eritrea's annual catch." regulations applied to transactions by that company in connection with its management
and maintenance of those lighthouses
Yemen says that “fishing communities along the Yemeni Red Sea coast have historically
depended on the neighbouring islands of the Hanish Group for their economic livelihood." Yemen claims that several structures are constructed; namely: [1] lighthouses; [2] 2
geodetic stations by French companies in 1992 on behalf of the Yemeni Government on
SAME; TRIBUNAL RESPONDS. Tribunal thinks that the argument is not pertinent Jabal Zuqar and Greater Hanish; [3] shrines and holy places constructed.
because although evidence of individual fishing practices may be taken as a different form
of effectivité (jurisdictional act), it is not indicative of state activity supporting a claim for Yemen also points to the 1995 action of the Yemeni General Investment Authority.
administration and control of the Islands.
SAME; TRIBUNAL RESPONDS. Tribunal does not consider Eritrea’s contention to be
OTHER JURISDICTIONAL ACTS CONCERNING INCIDENTS AT SEA. Yemen persuasive.
investigated a lost dhow off the islands and a drowning at Greater Hanish in 1992.
As to Yemen’s argument, the following conclusions are made. First, the operation or
LANDING PARTIES ON THE ISLANDS; CLAIMS OF BOTH PARTIES AND PROOF. maintenance of lighthouses and navigational aids is normally connected to the
Eritrea argues that there were landing parties on the islands and cites as proof 2 preservation of safe navigation, and not normally taken as a test of sovereignty. Second,
substantial patrols and a number of unspecified landing parties by Ethiopian military forces with regard to the markers, the tribunal cannot give too much weight to such small
between 1970-88. monuments. Third, shrines and holy places are of a private nature; no governmental
activity is suggested.
Yemen cites as proof the following: [1] the official visit to Jabal Zuqar and the Abu Ali
Islands in 1973 following the publicity about possible Israeli presence on those islands; [2] On the other hand, the Yemeni General Investment Authority’s intentions, although without
witness statement describing unspecified landings from 1965-77; and [3] field trips by a specific object, demonstrates that on a high governmental level the Yemeni authorities
faculty and students of the Staff and Command College in 1987 and 1990. were seriously considering that investment should be encouraged for tourism on Greater
Hanish, Lesser Hanish, Abu Ali, Jabal al-Tayr and al-Zubayr.
SAME; TRIBUNAL RESPONDS. There have been no landing activities on the Islands by
either side. LICENSING OF ACTIVITIES ON THE LAND OF THE ISLANDS; CLAIMS OF BOTH
PARTIES AND PROOF. Eritrea argues that it licensed activities on the lands citing as proof
With regard to Yemen’s claim, the following should be considered: [1] the 1998 letter from the authorization it gave the private firm Savon & Ries to ship radio transmitters to Abu Ali
the Secretary-General to the President of the Tribunal informing him that there had never and Jabal al-Tayr, the islands on which that firm maintained lighthouses.
been any visit to any of the islands in the red sea by any official delegation of the League
of Arab States. An Arab League delegation was asked to visit the islands to confirm that Yemen cites its own authorization of a recent amphibious scientific research expedition of
there was no Israeli presence, but no such visit was ever made; [2] the trips were for a very the Ardoukoba Society to Greater Hanish.
brief period of time, and left no lasting effects.
SAME; TRIBUNAL RESPONDS. Tribunal is not convinced. The regulation of electronic
ESTABLISHMENT OF MILITARY POSTS; CLAIMS OF BOTH PARTIES AND PROOF. equipment used by a private firm whose personnel were operating in a zone in which
Eritrea’s statements include the mention of landing parties. Although no garrison had been military activities were conducted cannot be viewed as an exercise of sovereign authority
established, there were sovereign acts tailored to the character of the territory, namely with respect to the land territory of the islands.
military surveillance and fishing regulation.
EXERCISE OF CRIMINAL/CIVIL JURISDICTION IN RESPECT TO HAPPENINGS ON
Yemen says that [1] in 1973, a temporary military garrison was established on Jabal Zuqar; THE ISLANDS; CLAIMS OF BOTH PARTIES AND PROOF. Eritrea cites an event in 1976
[2] during the 1970s, the Government placed guard posts on other islands in the Group, where a military court of the Ethiopian Government conducted a trial of employees of
including on Greater Hanish. Savon & Ries because it was allegedly leading and training a subversive group on those
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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 GENERAL ACTIVITIES; OVERFLIGHT; AND MISCELLANEOUS ACTIVITIES; CLAIMS
Djibouti. OF BOTH PARTIES AND PROOF. Both parties claim there were overflights conducted.
Eritrea adds that there was an inspection tour conducted by President Mengistu and his
Yemen cites [1] 1976 investigation of a missing dhow, [2] 1992, the investigation of the loss staff in 1988, presenting a videocassette as proof.
at sea of a fisherman off Greater Hanish.
SAME; TRIBUNAL RESPONDS. The act of overflying a substantially deserted group of
Yemen also calls attention to the fact that local fishermen have used their own customary islands does not constitute an intentional display of power and authority over them.
law system of arbitration of local disputes under the authority of an aq'il (a person known
for wisdom and intelligence) who applies the urf (a well-established Yemeni body of As to Eritrea’s claim, no conclusions can be drawn because the presidential party passed
customary law) to resolve the fishermen's disputes. the Islands at speed and at some distance offshore, and did not stop or go ashore. There
is no question of an intentional display of power and authority over a territory.
SAME; TRIBUNAL RESPONDS. 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 CHAPTER 8
conduct of the trade of fishing. They are a lex pescatoria maintained on a regional basis by Maps
those participating in fishing. The fact that this system is recognized or supported by (par 362-388)
Yemen does not alter its essentially private character.
QUICK SUMMARY OF THE CHAPTER. Both parties used maps to their advantage. Each
CONSTRUCTION AND MAINTENANCE OF LIGHTHOUSES; CLAIMS OF BOTH side has accused the other of waging a deliberate maps-campaign - from the early 1970s
PARTIES AND PROOF. Eritrea cites the lighthouses Abu Ali and Jabal al-Tayr were on the part of Yemen to the early 1990s on the part of Eritrea
administered by the lighthouse management company, Savon & Ries, which maintained its
operation in Asmara. Eritrea’s contention is that the map evidence is contradictory and unreliable and could not
be used to establish serious legal positions.
Yemen argues that starting in 1987 a programme of installation of new lighthouses in the
Islands was undertaken. Yemen's position was diametrically different; it sought to justify its use of maps for 4
reasons: [1] as important evidence of general opinion or repute; [2] as evidence of the
SAME; TRIBUNAL RESPONDS. As to Eritrea’s claim, there is no legal basis for attitudes of governments; [3] to reveal the intention of the Parties in respect of state
concluding that the location within a state of the office of a private firm, operating actions; and [4] as evidence of acquiescence or admissions against interest.
lighthouse facilities on the islands constitutes an intentional display of power and authority The tribunal broke down the discussion into eras and concluded that evidence based on
by that state. maps must be handled with great delicacy.
As to Yemen’s claim, the legal effect to be given to the construction and maintenance of
lighthouses has been dealt with in Chapter 6. PRE-1872; YEMEN’S CLAIM. Yemen cites the maps in this era to support of its thesis that
the Islands once belonged to it and that it therefore possesses an ancient title which
GRANTING OIL CONCESSIONS. See discussion in Chapter 9. should cause sovereignty in the Islands to revert to it following termination of the Article 16
suspension under the Treaty of Lausanne.
LIMITED LIFE ON THE ISLANDS; CLAIMS OF BOTH PARTIES AND PROOF. Eritrea
asserts that its fishermen have been predominant, and Yemen asserts the reverse. SAME; TRIBUNAL RESPONDS. Although Yemen has shown in general that most ancient
and 19th-century maps attributed the Islands to the Arabian sphere of influence rather than
SAME; TRIBUNAL RESPONDS. The conflicting claims lead to 4 conclusions. First, settled to the African coast, the precise attribution of the Islands to "Yemen" has not been
life on the Islands does not exist, but that episodic or seasonal habitation occurs. 1 demonstrated.
nationality prevailed and the other was absent.

Second, the manner of living on the Islands is equally indiscriminate: some fishermen stay 1872-1918; YEMEN’S CLAIM. Yemen cites the maps in this era to show that the Islands
on their boats; others sleep on the beach; some construct small shelters; other use larger fell under Ottoman sovereignty during the period and fell within the vilayet of Yemen.
shelters; some consider their structures "settlements."
SAME; TRIBUNAL RESPONDS. The maps produced by each side demonstrate without
Third, no family life is present on the Islands because the use of the islands is necessarily difficulty that the Islands were under Ottoman domination during the last years of the
seasonal which is inconsistent with family life. Empire's existence. However, there is no evidence about the effect of this widespread
recognition on the validity vel non of the asserted Yemeni claim to a reversionary interest.
Fourth, life on the Islands, such as it is, is limited to the seasonal and temporary shelter for
fishermen. They stay only to dry and salt their catch
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1924-39; PERIOD BETWEEN THE WARS; ERITREA’S CLAIM. Eritrea cites the maps in QUICK SUMMARY OF THE CHAPTER. Eritrea and Yemen entered into contracts and
this era to show that Italy claimed to be, or was received as being, the sovereign over the concession agreements for oil exploration, development, production, and sale of
Islands. commercial quantities of petroleum that might be found under the Red Sea. This chapter
looks into possible effectivités arising out of or associated with these agreements.
SAME; SAME; TRIBUNAL RESPONDS. The map evidence is to some extent
contradictory, but by and large the official Italian maps of the time demonstrate that even if Yemen entered into the following contracts/concessions (discussed in sequence): [1] Shell
Italy harboured a desire to annex the Islands after the Treaty of Lausanne, it certainly did Seismic Survey, 1972; [2] Shell Petroleum Agreement, 1974; [3] Tomen-Santa Fe Seismic
not accompany this desire with any outward manifestation of state authority in its official Permit, 1974; [4] Hunt Oil Company Offshore Production Sharing Agreement, 1984; [5] BP
cartography. Production Sharing Agreement, 1990; [6] Total Production Sharing Agreement, 1985; and
[6] Adair International Production Sharing Agreement, 1993. Yemen also interposed the
It is not possible to conclude from the history of the 1950 UN maps that Ethiopia acquired argument that it had offered concession blocks of the islands after it stopped entering into
the Islands after the 2nd World War, from Italy or otherwise. contracts/concessions.

1950’S; YEMEN’S CLAIM. Yemen cites the maps in this era to demonstrate that the UN Ethiopia/Eritrea entered into 1 agreement of note: the International Petroleum /Amoco
considered the Islands not to be part of the Province of Eritrea (within Ethiopia). Production Sharing Agreement, 1988.

1950-92; TRIBUNAL’S CONCLUSION. The evidence for this period is beset with The tribunal makes 3 conclusions: [1] the contracts fail to establish or significantly
contradictions and uncertainties. Each Party has demonstrated inconsistency in its official strengthen the claims of either party to sovereignty over the islands; [2] However, the
maps. The general trend is, however, that Yemeni map evidence is superior in scope and contracts lend a measure of support to a median line between the opposite coasts of
volume to that of Eritrea. However, such weight as can be attached to map evidence in Eritrea and Yemen, drawn without regard to the islands, dividing the respective jurisdiction
favour of one Party is balanced by the fact that each Party has published maps that appear of the parties; and that [3] in the course of the implementation of the contracts, significant
to run counter to its assertions in these proceedings. acts occurred under state authority which require further weighing and evaluation by the
tribunal.

1992-95; TRIBUNAL’S CONCLUSION. There is evidence showing broadly-publicized

official and semi-official Eritrean cartography shortly after independence which shows the YEMEN’S PETROLEUM-CONTENTION IN A NUTSHELL. Yemen contendsthat the
Islands as non-Eritrean if not Yemeni. The evidence is, as in all cases of maps, to be pattern of its offshore concessions, unprotested by Ethiopia and Eritrea, taken together
handled with great delicacy. with the pattern of Ethiopian concessions, confirmed Yemen's sovereign claims to the
Islands. Yemen stated that lack of time had been the reason for its not having pleaded the
contracts and concessions on its own initiative.
INFORMED OPINION CANNOT BE USED AS INDICATIVE OF LEGAL TITLE. Both
parties produced maps by 3rd parties to demonstrate informed opinion, but it cannot be
used as indicative of legal title, but “important evidence of general opinion or repute.” SHELL SEISMIC SURVEY, 1972. Contract with Shell International Petroleum Company for
"a major geophysical scouting survey in the Red Sea” which involved the shooting of
seismic reconnaissance lines in the area of the Red Sea that encompassed the islands of
Example of these maps are the ones produced by Yemen: [1] the Central Intelligence the Zuqar-Hanish group, the Zubayr group and Jabal al-Tayr
Agency maps and [2] the corroborative labelling in the U.S. Defence Department Mapping
Agency charts of 1994.
SAME; TRIBUNAL RESPONDS. Has no probative value because: [1] Yemen has not
provided the text of the survey contract; [2] Shell’s report attaches a map of the
MAPS AS ADMISSIONS AGAINST INTEREST. Yemen has introduced evidence showing "approximate area covered by seismic program" which extends right up to the Ethiopian
that Ethiopia and the Eritrean Government after independence have not considered the coast. This map indicates that the survey area is irrelevant to questions of title because
Islands to be Ethiopian or Eritrean - but rather Yemeni. Eritrea has also introduced Yemen is not claiming jurisdiction over the territorial waters of Eritrea.
evidence to show that Yemen has itself attributed the Islands to Ethiopia or to Eritrea.
SHELL PETROLEUM AGREEMENT, 1974. Contract with Deutsche Shell
The Tribunal is of the view that most of this evidence tends to cancel itself out, except Aktiengesellschaft specifying the area and its subsoil and seabed "under the jurisdiction of
possibly for the Eritrean maps published after 1992. the Yemen Arab Republic."

CHAPTER 9 SAME; TRIBUNAL RESPONDS. The concession was granted and implemented in
Petroleum Agreements and Activities exercise not of Yemen's claims to sovereignty but in exercise of its rights to the continental
(par 389-439) shelf as they then were. Legal Basis: [1] the 1981 Final Report on the Exploration Venture

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of Yemen Shell Explorations GMBH Yemen Arab Republic, which states that "the SAME; TRIBUNAL RESPONDS. Contract does not prove sovereignty over the islands
concession area granted to Deutsche Shell extended from the Yemen mainland in the east because [1] it does not state a claim of sovereignty of Yemen over the concession area; [2]
to approximately the median line of the Red Sea in the west," and [2] the concession it takes no notice of the Islands within it, verbally or in the annexed map.
contract speaks not of an area and its subsoil and seabed under the sovereignty but under
the jurisdiction of Yemen. It could be interpreted as a concession issued within the area demarcated by a median line
in implementation of Yemen's rights on its continental shelf because if Yemen wanted to
This concession is also not proof of act of sovereignty because [1] the survey report does assert sovereignty, the concession would have included Jabal al-Tayr. It seems that this
not state that the survey was carried out within the territorial waters of the Zubayr group; contract was issued with commercial considerations in mind and without particular regard
[2] Shell conducted no activities on the islands of the Zubayr group to the existence of the Islands.

The Zubayr group seem to have been included in the contract area simply because the BP PRODUCTION SHARING AGREEMENT, 1990. Contract with British Petroleum which
Zubayr group fell on the Yemeni side of the median line, on a continental shelf over which covers the same Antufash Block that Hunt operated in earlier, and thus embraces the
Yemen could exercise jurisdiction. Zubayr islands but not Jabal al-Tayr.

TOMEN-SANTA FE SEISMIC PERMIT, 1974. Contract with Arab Republic and Toyo But the BP Agreement's description of the block is more specific, providing: "Whereas, the
Menka Kaisha Ltd. ("Tomen") recites that Yemen has "exclusive authority to mine for State wishes to promote the development of potential Petroleum Resources in the
Petroleum in and throughout" the contract area, and that the contract area "means the Agreement Area block 8, As-Sakir, Shabwa Province, ROY . . ."
offshore area within the statutory mining territory of Yemen" described in the permit. The
contract area included the land territory and also the territorial waters of some or all of SAME; TRIBUNAL RESPONDS. The characterization of the Antufash block as comprising
Greater Hanish and all of Zuqar and Lesser Hanish. or being within a province of the Republic of Yemen is a factor of significance in favour of
Yemen. This indicates a sovereign rather than a jurisdictional claim.
SAME; ERITREA ARGUES. Eritrea cites Article 241, Law of the Sea Convention, Part XIII
on "Marine Scientific Research". It states that "marine scientific research shall not However, it should be remembered that Eritrea cannot be taxed with Ethipia’s failure to
constitute the legal basis for any claim to any part of the marine environment and its protest the agreement because when it was entered into in 1990, Ethiopia was then locked
resources". in its final struggle with the Eritrean liberation movement.

SAME; TRIBUNAL RESPONDS. Although the Seismic Permit Agreement itself does not TOTAL PRODUCTION SHARING AGREEMENT, 1985. Contract with Total-Compagnie
constitute a claim by Yemen to sovereignty over the islands within its contract area, to Française des Pétroles.
some extent, it presupposes some measure of title to any islands contained within the
contract area.
SAME; TRIBUNAL RESPONDS. Quite simply, this agreeemtn does not include any of the
islands in dispute. However, it is of note because this agreement albeit incidentally,
Therefore, the activities undertaken should be given a certain importance because there resulted in a material effectivité in favor of Yemen.
are a number of references in the report to the Zuqar and Hanish islands, but no indication
is given that suggests any activity on the islands.
This is because Total commissioned seismic studies which resulted in it coming to know of
the Hanish islands. Later, Total sponsored a French scientific mission to the islands to
Eritrea’s contention is unavailing because the provision does not relate to the seismic and study marine life in the reefs. Thereafter it sought and received governmental authorization
other explorations for petroleum for commercial purposes carried out by licensees of the to improve the landing strip and fly Total personnel to Greater Hanish for rest and
Parties in the circumstances of these proceedings. recreation. The use of the airstrip demonstrates: [1] the exercise by Yemen of jurisdiction
over Greater Hanish, [2] a recognition of that jurisdiction by Total, and the [3] conduct of
HUNT OIL COMPANY OFFSHORE PRODUCTION SHARING AGREEMENT, 1984. visible indicia of that jurisdiction - an airstrip in active use - over a period of time.
Contract with Offshore Yemen Hunt Oil Company. The coordinates of the area covered by
the agreement are set out in Annex A, to which is attached a map at Annex B showing ADAIR INTERNATIONAL PRODUCTION SHARING AGREEMENT, 1993. Contract with
those coordinates but not naming or showing any of the disputed islands. Yemen submitted Adair International. Yemen provided maps of the agreement area which show it as falling
a map which shows the Hunt concession as running in the west very close to the edge of, within Block 24 or the Al Kathib block in which the Tomen-Santa Fe area fell.
but not including, Jabal al-Tayr, and, at the southern end of the contract boundary, just
including the Zubayr group.
SAME; TRIBUNAL RESPONDS. This agreement is not proof of act of sovereignty
because the text of the agreement has not been offered in evidence, was not ratified by

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Yemen and did not come into force. Also, the agreement’s western line runs along a QUICK SUMMARY OF THE CHAPTER. Because neither party has been able to persuade
median line between the coasts of Yemen and Eritrea, drawn without regard to the islands the Tribunal that there exists a historic title, both parties also relied upon the demonstration
in dispute. of use, presence, display of governmental authority, and other ways of showing a
possession which may gradually consolidate into a title.
YEMEN OFFERED CONCESSION BLOCKS; PROOF OF SOVEREIGNTY. Beginning in
1990, Yemen no longer responded to proposals by prospective concessionaires for rights However, Tribunal needed to depart from the terms in which both Parties have pleaded
in areas drawn by them, but began offering concession blocks, dividing most of Yemen and their cases (ie: presenting a claim to every one of the islands involved) because the
its offshore into blocks. It states that the blocks include the Zubayr islands and the Hanish evidence presented is made to apply either to a particular island or to a sub-group of
islands islands. The evidence presented does not fall evenly over the whole of the islands but
leads to different results for certain sub-groups, and for certain islands.
INTERNATIONAL PETROLEUM / AMOCO PRODUCTION SHARING AGREEMENT,
1988. This is one agreement entered into by Ethiopia that the tribunal took note of. The ANCIENT TITLE; YEMEN’S CLAIM. Yemen contends that it enjoys an ancient title to the
concession covered the onshore-offshore area known as the Danakil Concession in the islands. History is traced back to 1872-1918 when the Ottomans enjoyed possession of,
PDRE. Attention is given to the map of the Contract Area in the 1991 Annual Report and full sovereignty over, all the islands. When this regime ceased in 1923, Yemen claims
showing virtually all of the Hanish islands within the Contract Area. there was a reversion to an even older title (that of the medieval Yemen) to fill the resulting
vacuum.
In support, amap prepared by Petroconsultants, on whose maps Yemen has repeatedly
relied, also shows the Amoco Contract Area as embracing the greater part of Greater SAME; TRIBUNAL RESPONDS. Yemen’s contention fails to persuade the tribunal for the
Hanish. following reasons: First, there is no such a doctrine of reversion in international law due to
the lack of support given by Yemen. And even if the doctrine were valid, it could not apply
SAME; YEMEN ARGUES. Yemen argues that it could not be charged with not protesting in this case because there is a lack of continuity.
the agreement because it had observed an article in the Petroleum Economist of October
1991 presenting a map which shows an Amoco concession that does not include the Under the principle of inter-temporal law, the Ottoman sovereignty was lawful and carried
Hanish islands. And in either case, the agreement was terminated before the Eritrean with it the entitlement to dispose of the territory. Accepting Yemen's argument that an
independence. ancient title could have remained in effect over an extended period of another sovereignty
would be tantamount to a rejection of the legality of Ottoman title to full sovereignty.
SAME; TRIBUNAL RESPONDS. It would seem that Ethiopia claimed the right to contract
for the exploration, development and production of oil in an area claimed as its territory that Second, even though Yemen existed before the region came to be under the domination of
included some or virtually all of Greater Hanish islands. the Ottomans, the Imam, who at that period dwelt in and governed a mountain fortress,
certainly had no sway over "the islands".
The Annual Reports demonstrate the IPC/Amoco contract was extended well beyond 3
months and into the days of Eritrean independence; its life compares with that of the Third, the modern Western concept of a sovereignty title cannot be attributed to such a
contracts on which Yemen relies. tribal, mountain and Muslim medieval society, particularly with respect to uninhabited and
barren islands used only occasionally by local, traditional fishermen.
ERITREA’S OTHER PROOF OF EFFECTIVITES – MEMORANDA. First, Eritrea submits
a copy of an Ethiopian radio transmitting license granted circa 1988-89 (to Delft EXISTING TITLE ACQUIRED BY SUCCESSION; ERITREA’S CLAIM. Eritrea argues that
Geophysical Co. for the establishment of a station on Greater Hanish Island, presumably in it derived ancient title by succession from Italy through Ethiopia.
connection with the seismic work which Amoco had contracted with Delft to perform.
SAME; TRIBUNAL RESPONDS. Eritrea’s contention fails to persuade the tribunal. Italy
Second, another memorandum states that an Amoco contracting team will conduct did indeed in the inter-war period entertained serious territorial ambitions in respect of the
helicopter patrols to select locations for the installation of navigation beacons, including Red Sea islands; and sought to further these ambitions by actual possession of some of
locations "on Greater Hanish". them at various periods,

However, there was no succession because of: [1] the effect of Article 16 of the Treaty of
CHAPTER 10 Lausanne of 1923, [2] the effects of the provisions of the Italian Peace Treaty of 1947; and
Conclusion [3] the fact that the Italian Government, in the inter-war period, constantly and consistently
(440-526) gave specific assurances to the British Government that Italy fully accepted and

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recognized the indeterminate legal position of these islands as established by treaty in history, in the absence of any clear title to them being shown by Yemen, the Mohabbakahs
1923. must for that reason today be regarded as Eritrean

TERRITORIAL SOVEREIGNTY BY THE CONTINUOUS & PEACEFUL DISPLAY OF It will be remembered that Article 6 of the 1923 Treaty of Lausanne already enshrined this
STATE FUNCTIONS. For failure of the preceding arguments to hold water, the tribunal felt principle of the territorial sea by providing expressly that islands within the territorial sea of
it is its right to consider other factors which might help to resolve the issue. These factors a state were to belong to that state. In those days the territorial sea was generally limited
include: [1] the geographical situation; and [2] the legal histories of the subgroups of by international law and custom to 3 nautical miles, but it has now long been 12, and the
islands. Ethiopian territorial sea was extended to 12 miles in a 1953 decree.

As to the geographical situation, the majority of the islands and islets and rocks in issue THE HAYCOCKS GO TO ERITREA. There are difficult juridical problems with Eritrea’s
form an archipelago extending across a relatively narrow sea between the two opposite theory of succession, not least the terms of the Italian armistice of 1943 and the peace
coasts of the sea. So there is some presumption that any islands off one of the coasts may treaty of 1947, whereby Italy surrendered her colonial territories for disposition by the Allies
be thought to belong by appurtenance to that coast unless the state on the opposite coast and in default of agreement amongst them, to disposition by the United Nations, which of
has been able to demonstrate a clearly better title. course is what actually happened to Eritrea.

As to the histories, it is to be remembered that subgroups of the islands have separate However this may be, the geographical arguments of proximity to the Eritrean coast remain
legal histories. persuasive and accord with the general opinion that islands off a coast will belong to the
coastal state, unless another, superior title can be established. Yemen has failed, in this
NATURAL & PHYSICAL UNITY; YEMEN’S CONTENTION. Yemen cites the the principle case, to establish any such superior claim.
of natural or geophysical unity or the "portico doctrine" which is recognized "as a means of
attributing sovereignty over off-shore features which fell within the attraction of the The Eritrean claim to the Haycocks also finds some support in the fact that the agreements
mainland". This doctrine is supported by Fitzmaurice who said, on the question of “entity of the Eritrean Government and Shell, Amoco and BP do cover the areas of the Haycocks,
and “natural unity”: and of course the Mohabbakahs; while none of the Yemen agreements extends as far to
the southwest as the Haycocks considering the 1974 Tomen-Santa Fe agreement appears
This question can have far-reaching consequences. Not only may it powerfully affect the to encompass the Hanish group, but stops short of the Haycocks.
play of probabilities and presumptions, but also, if it can be shown that the disputed areas
(whether by reason of actual contiguity or of proximity) are part of an entity or unity over THE ZUGAR-HANISH GROUP GOES TO YEMEN. Although the older historical material
which as a whole the claimant State has sovereignty, this may (under certain conditions is important and generally helpful to an understanding of the claims of both Parties, neither
and within certain limits) render it unnecessary - or modify the extent to which it will be of them has been able on the basis of the historical materials alone to make out a case
necessary - to adduce specific evidence of State activity in relation to the disputed areas that actually compels a decision one way or the other. Accordingly the Tribunal has looked
as such - provided that such activity, amounting to effective occupation and possession, at events in the last decade or so before the Agreement of Arbitration for additional
can be shown in the principle established by the Island of Palmas case that 'sovereignty materials and factors
cannot be exercised in fact at every moment on every point of a territory'
Neither Party made a convincing case to these islands on the basis of an ancient title in
DOCTRINE OF UNITY DO NOT CONFER TITLE. The doctrine merely raises a the case of Yemen, or, of a succession title in the case of Eritrea, so the Tribunal's decision
presumption about the extent and scope of a title otherwise established. on sovereignty must be based to an important extent upon what seems to have been the
position in Zuqar and Hanish and their adjoining islets and rocks in the last decade or so
GROUPS OF ISLANDS. The nomenclature within common use indicates at least 3 of the leading up to the present arbitration.
sub-groups: the Mohabbakahs; the Haycocks; and the Zuqar-Hanish group and its many
satellite islands, islets, and rocks. Yemen has more to show by way of presence and display of authority considering: [1] the
Ardoukoba expedition and campsite which was made under the aegis of the Yemeni
There are also the 2 northern islands: Jabal al-Tayr, and the group of which the biggest Government; [2] the air landing site, as well as the production of scheduled flights, no
island is Jabal Zubayr. doubt mainly for the off-days of Total employees; [3] the May 1995 license to a Yemeni
company to develop a tourist project on Greater Hanish.

THE MOHABBAKAHS GOES TO ERITREA. The Tribunal need not decide whether Italian
title to the Mohabbakahs survived the Treaty of Lausanne, and passed thereafter to JABAL AL-TAYR AND THE ZUBAYR GROUP OF ISLANDS GO TO YEMEN. Both the
Ethiopia and then to Eritrea. It is sufficient for the Tribunal to note that all the island of Jabal al-Tayr, and the Zubayr group of islands and islets, call for separate
Mohabbakahs, other than High Islet, lie within 12 miles of the Eritrean coast. Whatever the treatment, as they are a considerable distance from the other islands as well as from each

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other. They are also both well out to sea, and so not proximate to either coast, though they Shoe Rock, Jabal Zubayr Island, and Centre Peak Island are subject to the territorial
are slightly nearer to the Yemeni coastal islands sovereignty of Yemen; and

Therefore, considering there is little evidence on either side of actual or persistent activities [6] the sovereignty found to lie with Yemen entails the perpetuation of the traditional fishing
on and around these islands, and in view of their isolated location and inhospitable regime in the region, including free access and enjoyment for the fishermen of both Eritrea
character, probably little evidence will suffice to award sovereignty to Yemen. and Yemen.

THE TRADITIONAL FISHING REGIME. Both parties have sovereignty over various
islands. Such sovereignty is not inimical to, but rather entails, the perpetuation of the
traditional fishing regime in the region. This existing regime has operated around the
Hanish and Zuqar islands and the islands of Jebel al-Tayr and the Zubayr group.

Therefore, Yemen shall ensure that the traditional fishing regime of free access and
enjoyment for the fishermen of both Eritrea and Yemen.

CHAPTER 11
Dispositif
(527-528)
UNANIMOUSLY FINDS IN THE PRESENT CASE THAT

[1] the islands, islet, rocks, and low-tide elevations forming the Mohabbakah islands,
including but not limited to Sayal Islet, Harbi Islet, Flat Islet and High Islet are subject to the
territorial sovereignty of Eritrea;

[2] the islands, islet, rocks, and low-tide elevations forming the Haycock Islands, including,
but not limited to, North East Haycock, Middle Haycock, and South West Haycock, are
subject to the territorial sovereignty of Eritrea;

[3] the South West Rocks are subject to the territorial sovereignty of Eritrea;

[4] the islands, islet, rocks, and low-tide elevations of the Zuqar-Hanish group, including,
but not limited to, Three Foot Rock, Parkin Rock, Rocky Islets, Pin Rock, Suyul Hanish,
Mid Islet, Double Peak Island, Round Island, North Round Island, Quoin Island, Chor
Rock, Greater Hanish, Peaky Islet, Mushajirah, Addar Ail Islets, Haycock Island (not to be
confused with the Haycock Islands to the southwest of Greater Hanish), Low Island
including the unnamed islets and rocks close north, east and south, Lesser Hanish
including the unnamed islets and rocks close north east, Tongue Island and the unnamed
islet close south, Near Island and the unnamed islet close south east, Shark Island, Jabal
Zuquar Island, High Island, and the Abu Ali Islands (including Quoin Island and Pile Island)
are subject to the territorial sovereignty of Yemen;

[5] the island of Jabal al-Tayr, and the islands, islets, rocks and low-tide elevations forming
the Zubayr group, including, but not limited to, Quoin Island, Haycock Island (not to be
confused with the Haycock Islands to the southwest of Greater Hanish), Rugged Island,
Table Peak Island, Saddle Island and the unnamed islet close north west, Low Island and
the unnamed rock close east, Middle Reef, Saba Island, Connected Island, East Rocks,

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