The Eritrea -Yemen Arbitration:

How Eritrea Lost the Hanish Islands and the Implications for Final Settlement of the Ethiopia-Eritrea Border

November 15, 1998 INTRODUCTION: The full text of the 94-page Eritrea-Yemen Arbitration Decision is now available to the public. A copy may be downloaded from the International Boundaries Research Unit at: http://wwwibru.dur.ac.uk The Arbitration Decision is a fascinating document and of paramount relevance to the EthiopiaEritrea border. The award decision gives good examples of how principles of International Law are applied in determining sovereignty of disputed territory. Also, the award decision tells us what documents and other evidences are of greatest importance to an international panel tasked with determining sovereignty. The following sections provide an analysis of the Eritrea-Yemen Arbitration Decision. Readers are cautioned that this is only a laypersons interpretation. A definitive interpretation will have to be sought from professional lawyers experienced in International law. The International Boundaries Unit has prepared a summary for sale (see their website) but it is very expensive and I have not seen it yet. Note: The arbitration document provides many opportunities to quote passages out of context and make it appear that the International Law reads a certain way. I have tried to avoid quoting things out of context, however, corrections are welcome if readers find mistakes. SUMMARY: In awarding the Hanish-Zuquar islands to Yemen, the Tribunal placed the greatest weight on evidence of effective exercise of sovereignty and governmental authority"in the last decade or so leading up to the present arbitration." Of course the Tribunal was also presented with voluminous evidence from Eritrea and Yemen regarding treaties, maps, petroleum explorations agreements etc. However, the Tribunal carefully weighed this evidence and found it to be inconclusive.

Although Yemen and Eritrea advanced several lines of argument to support their territorial claims, the principal claims were as follows: Eritrea claimed the Hanish-Zuquar islands on the basis of the Treaty of Lausanne (1923) whereby the Ottoman empire relinquished its rights to these islands. Eritrea claimed that Italy gained sovereignty of the islands in 1923 and Eritrea has inherited the sovereignty from Italy. The Tribunal rejected this claim outright and concluded that Eritrea had badly misinterpreted the treaty. Yemen claimed the islands on the basis of a theory of reversion. According to Yemen, the islands were historically Yemeni and after the Ottoman Empire left in 1923, the islands reverted back to their original owner (Yemen). This argument was also rejected by the Tribunal for a variety of reasons. After rejecting the principal arguments of the two parties, the Tribunal was required to apply the "principles, rules and practices of international law." This requirement was set forth in the Arbitration Agreement signed by both Eritrea and Yemen in 1996. In explaining their application of International Law, the Tribunal stated that "it is the relatively recent history of use and possession that ultimately proved to be the main basis of the Tribunal decisions." Eritrean Misinterpretation of the Treaty of Lausanne: Before going further, it is important to note just how badly Eritrea misinterpreted the 1923 Treaty of Lausanne. President Issayas informed the Eritrean public that the islands were transferred to Italy according to the 1923 Treaty. Here is what he said: "Under the Treaty of Lausanne of 1923, Turkey was subjected to relinquish terrritories under its rule and the title over these islands was directly transferred to Italy. There are many known evidences proving this truth." In contrast to the above statement, the Tribunal found that the Treaty of 1923 specifically PROHIBITED Italy from establishing sovereignty over the islands. Article 16 of the Treaty established that all the colonial powers (including Italy) would regard the islands as being of indeterminate sovereignty. This was done to prevent a military competition between the colonial powers to control the islands. Here is what the Tribunal stated: "Far from the Treaty of Lausanne 'paving the way' for Italian sovereignty, as has been suggested by Eritrea, it presented a formidable obstacle." There are only two explanations for Eritrea's inability to understand this Treaty: (a) "Crass Stupidity" or (b) A deliberate and habitual pattern of prevarication. This habitual behavior is also evident in Eritrea's interpretation of the Italo-Ethiopian treaties.

(Note: the phrase "Crass Stupidity" was used in the Eritrean government's newspaper "Eritrea Profile" to describe Ethiopians. I am using it here to teach them a lesson.) Attitude Towards Map Evidence: Voluminous Map evidence was presented to the Tribunal from both parties. However, the Tribunal did not place much weight on the maps. For example, Italian maps from 1923 to 1939 were not treated as being "determinative." The Tribunal stated that instead of using the maps, it had "arrived at its legal conclusions about the status of the Islands on the basis of the diplomatic record and agreements entered into between 1923 and 1939." In addition, the Tribunal noted a Yemeni map from the 1970's which actually indicated that sovereignty of the islands belonged to Ethiopia. However, the Tribunal did not place much reliance on this map. Furthermore Eritrea itself minimized the importance of map evidence. Eritrea argued that maps are generally not reliable indicators of sovereignty, should not be given much weight. The Tribunal summarized Eritrea's position regarding maps as follows: "Eritrea's essential position was that map evidence in general (and evidence in this case in particular) was contradictory and unreliable and could not be used to establish serious legal positions." [It should be noted at this point that Eritrea's case in the Eritrea - Ethiopia border issue is almost entirely restricted to map evidence.] The following quote explains the Tribunal's general attitude to map evidence, "The evidence is, as in all cases of maps, to be handled with great delicacy. " The Tribunal did not give much weight to maps because it felt that there was no evidence that they were of great importance to the actors (Eritrea/Yemen and the colonial powers). The Tribunal stated: "In fact, the difficulty is not so much the interpretation of a plethora of maps of every kind and provenance, as is the absence of any kind of evidence that these actors took very much notice of, or attached very much importance to, any of them." The application to the Ethiopia-Eritrea case is clear: the actual situation on the ground is more important than lines drawn on a map by one side or another. This is especially true given the absence of demarcation (both Ethiopia and Eritrea agree that the border is undemarcated) and in the absence of delimitation along the Badime stretch of the border (Eritrea still refuses to accept this truth).

Eritrea's Prize - "Islets which amount to little more than navigational hazards:" Although both parties had indicated a desire to have all the disputed islands treated together, the separate history and legal status of the islands forced the Tribunal to consider each of the island groups separately. In this regard, the Tribunal took into account the geographical situation of the islands. The Tribunal gave some weight to the presumption that in the absence of otherwise conclusive evidence, the islands lying off the Eritrean coast would normally be subject to Eritrea, and the islands lying off the Yemeni coast would be subject to Yemen. The above principle was important in awarding sovereignty of the Mohabbakah islands, the Haycock islands, and the Southwest Rocks to Eritrea. These rocks and islands mostly lie within 12 miles of the Eritrean coast. In fact Yemen never asserted a claim to the Mohabbakah's until 1996, when it decided it would be useful for negotiation purposes. As it turns out, the inclusion of these islands in the arbitration has provided Eritrea with a facesaving public relations gimmick. The Eritrean public actually believes that Eritrea was awarded some significant islands. In fact the Tribunal described the Mohabbakah's as being "little more than navigational hazards." It appears therefore, that the recently christened "Hanish Hotel" in Asmara will have to rename itself the "Mohabbakah Navigational Hazard Hotel." The pity of all this is that Ethiopia had recognised in 1977 that the Hanish Islands "had no recognised owner" and therefore Ethiopia should negotiate with Yemen to resolve their status. We know this because of a "top-secret" Ethiopian Foreign Ministry memorandum that the TPLF gave to Eritrea and that is cited in the Tribunal's decision. Unlike Eritrea, Ethiopia had correctly analyzed the 1923 Treaty of Lausanne, and was prepared to share sovereignty of the islands with Yemen. Indeed, according to the Tribunal, serious bilateral negotiations had begun. Eritrea on the other hand, insisted that all the islands belonged to it on the basis of the 1923 Treaty of Lausanne - a badly misguided approach that cost them the opportunity to share the islands with Yemen. Additional Point on International Law: The Hanish case differs from the Ethiopia-Eritrea border case in that the Tribunal decided that the islands were of indeterminate sovereignty until the departure of the last of the colonial powers in 1967. In Ethiopia and Eritrea the Treaties of 1902 - 1908 provide the basic guidelines for delimitation and demarcation of the frontier. However, the similarity arises from the lack of a detailed delimitation and demarcation agreement to fully implement the Italo-Ethiopian treaties. The sovereignty of the disputed areas must therefore be decided by an International Court "on the basis of established colonial treaties and international law applicable to those treaties."

In this regard, the following statement, which was included in the award decision is very important: "The modern International Law of the acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis." From the above it is clear that Ethiopia has an extremely strong case with regard to the disputed areas of Badime and Zallambessa. By contrast, Eritrea's case rests entirely on the application of unilateral Italian maps. However, we have already noted above how both Eritrea itself and the Tribunal downplayed the significance of map evidence. This is the reason for continued Eritrean belligerence and refusal to accept the "fair and balanced" peace proposals put forth by the OAU and supported by the UN. To state it simply, their legal case is weak. CONCLUSIONS: The Tribunal's award decision provides information that is applicable to the Eritrea-Ethiopia border conflict. Analysis of the Tribunal's legal reasoning shows that Eritrea's legal case in the Eritrea-Ethiopia border dispute is poor and lacks a solid foundation. Eritrea has specifically argued against the importance of map evidence in establishing sovereignty - a viewpoint which the Tribunal shared. Now Eritrea must reverse itself 180 degrees: its entire case against Ethiopia is dependent upon unilateral Italian map evidence.