1. Greater Hanish island is also known as “Hanish Kebir” or as “Hanish al Kubrá”.

2. For a brief overview of the dispute, see Daniel, Dzurek, “Eritrea–Yemen Dispute Over the Hanish Islands” (1996) 4 IBRU Boundary and Security Bull. 70. The article has attached a table entitled “Southern Red Sea Islands”, including data relative to geographi-cal co-ordinates and area of some of the islands.Google Scholar

3. The members of the Tribunal are Judge Stephen Schwebel and Judge Rosalyn Higgins (appointed by Eritrea), Dr Ahmed Sadek El-Kosheri and Mr Keith Highet (appointed by Yemen). By agreement between the parties, Sir Robert Y. Jennings was appointed President of the Tribunal. See para.4 of the Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of the Dispute), between the State of Eritrea and the Republic of Yemen, of 9 October 1998 (hereafter referred to as “award”).

4. Art. 2 of the Arbitration Agreement, cited in para.7 of the award.

5. Eritrea is not a party to UNCLOS, but has nonetheless accepted it as the legal reference for the settlement of the maritime boundary dispute. This seems to be evidence not only that the conventional rules on maritime delimitation have acquired the nature of customary law, but also that there is a tendency towards the universal acceptance of UNCLOS, even among those States that still have not become party to it.

6. These “special agreements” are one of the modes by which States may accept the jurisdiction of the International Court of Justice in dispute settlement; see Art.36(2) of the ICJ Statute.

7. The question of the definition of the scope of the dispute is addressed in paras. 73–90 of the award. Noteworthy is the fact that both parties rejected a proposal put forward by France, included in a Draft Agreement on Principles dated 29 02 1996, where an attempt was made to determine which islands were disputed.Google Scholar

8. “The critical date is a concept linked to the admissibility and weight of evidence” (Ian Brownlie, The Rule of Law in International Affairs (1998), p.152Google Scholar; see also his Principles of Public International Law (5th edn, 1998), pp.128–129).Google Scholar

9. Jennings, R. Y., The Acquisition of Territory in International Law (1967), p.34Google Scholar. The Tribunal referred to it as a “somewhat technical ‘critical date’ argument” (para.87 of the award). Fitzmaurice defines the critical date as “the date after which the actions of the parties can no longer affect the issue”, and considers that it is an issue that cannot “be separated from the facts and the merits of the case”. The “date on which legal proceedings are commenced” constitutes in his view a final and logical time-limit for the claims of the parties (Gerald, Fitzmaurice, “The Law and the Procedure of the International Court of Justice, 1951–1954Google Scholar: Points of Substantive Law. Part II” (1955–1956) 32 B.Y.I.L. 20, 20, 26)Google Scholar. The question of the critical date had already been elaborated on in the jurisprudence particularly in the Island of Palmas arbitration (arbitral award of 4 Apr. 1928, Jennings, Idem, pp.97, 123), in the Eastern Greenland case (judgment of 5 04. 1933 (1932–1935) III World Court Reports 148, 170)Google Scholar, and in the Minquiers and Ecrehos case (judgment of 21 03 1953, I.C.J. Rep. 1953, 47, 51, 58–60).Google Scholar

10. Paras.88–90 of the award.

11. Idem, para.95. At this stage the Tribunal cited the award rendered in the Palena arbitration of 1966 (Argentina–Chile Frontier Case, arbitral award of 9 12 1966 (1969) 38 I.L.R. 16, 80)Google Scholar. However, in the Palena arbitration the situation was quite different in so far as both parties had made extensive reference to the question of the critical date “as a means of shutting out evidence of its opponent's activities” (p.79).Google Scholar

12. Fitzmaurice, op. cit. supra n.9, at p.24Google Scholar, citing the pleadings in the Minquiers and Ecrehos case (I.C.J. Pleadings 1953, Vol.11, pp.67–70).Google Scholar

13. Art.2(2) of the Arbitration Agreement, cited in para.7 of the award (emphasis added).

14. The term “adjudication” is used throughout this article as including both judicial and arbitral proceedings.

15. The facts supporting the Yemeni claim are summed up in paras.31–54 of the award.

16. The facts supporting the Eritrean claim are summed up in idem, paras.13–30.

17. Idem, para.19. This is a reference to Art.16 of the Treaty of Lausanne, the relevant part of which is cited in idem, para.157. The Treaty of Peace of Sèvres, of 1920, in which Turkey renounced its territorial rights in favour of the Principal Allied Powers, was never ratified by Turkey and, therefore, never entered into force.

18. Para.19 of the award, which refers to “conquest, effective occupation, and location within the territorial sea” as possible means of acquiring sovereignty. In fact, the Italian acquisition of title by occupation could only have taken place if the islands were res nullius.

19. Idem, para.25.

20. In general terms, the acquisition and maintenance of a sovereign title to territory depend on an effective occupation of the territory (corpus occupandi) and on the intention of carrying out that occupation à titre de souverain {animus occupandi).

21. Para.23 of the award. See Marjorie Whiteman (1968) 10 Digest of International Law 546–550Google Scholar; Jennings, op. cit. supra n.9, at pp.52–53Google Scholar; O'Connell, D. P., International Law (2nd edn, 1970), pp.432–433Google Scholar; Georg, Ress, “Germany, Legal Status after World War II”, in Rudolf, Bemhardt, Encyclopedia of Public International Law, Vol.2. (1995), pp.567–568Google Scholar; Rudolf L. Bindschedler, “Annexation”, in Bernhardt, idem, Vol.1, pp.168–172; Karl-Ulrich Meyn, “Debellatio”, in Bernhardt, idem, Vol.1, pp.969–971; Michael, Bothe, “Occupation, Belligerent”, in Rudolf, Bernhardt, Encyclopedia of Public International Law, Instalment 4 (1982), pp.64–67.Google Scholar

22. Paras. 132–133, 442 of the award. The Tribunal established that the sovereignty of the Ottoman Empire was “undisputed up to 1880”, and that in relation to the eastern coast of the Red Sea that sovereignty had been exercised until the end of the First World War (para.133). In addition, attention was drawn to the need to distinguish between the islands that had been subject to “the jurisdiction of the Khedive of Egypt” (acting from the western coast of the Red Sea) and the other islands “which remained under the Ottoman vilayet of Yemen until the dissolution of the Empire after the First World War” (paras. 100, 126, 134).

23. This led the Tribunal to draw attention to the extensive written pleadings, materials and evidence put forward by the parties, exceeding in total 40 volumes and to which had to be added atlases and verbatim records of oral hearings.

24. Para. 142 of the award.

25. Idem, paras.121, 122, 143, 146, 148.

26. Idem, paras.154, 159, 162, 165, 167, 168 (emphasis added).

27. Idem, paras.169–186.

28. Elias, T. O., “The Doctrine of Intertemporal Law” (1980) 74 A.J.I.L. 285.Google Scholar

29. Paras.125, 144, 148, 165, 441–444 of the award.

30. Brownlie, , Principles, op. cit. supra n.8, at p.671.Google Scholar

31. Idem, pp. 109–110.

32. Para.448 of the award.

33. Idem, paras.447, 449.

34. I.C.J. Rep. 1953, 47, 57Google Scholar. This perspective was endorsed in the Western Sahara Advisory Opinion (I.C.J. Rep. 1975, 4, 43).Google Scholar

35. Para.446 of the award.

36. I.C.J. Rep. 1953, 47, 53–57, 60–67.Google Scholar

37. I.C.J. Rep. 1975, 4, 40–57, 57–64, 68.Google Scholar

38. Paras.96–99 of the award.

39. The importance of this principle in “securing respect for the territorial boundaries at the moment when the independence is achieved” was clearly stressed in the Burkina Faso-Mali case (Case Concerning the Frontier Dispute, judgment of 22 12 1986, I.C.J. Rep. 1986, 554, 566)Google Scholar. See also the Land, Island and Maritime Frontier Dispute, 11 09 1992Google Scholar, I.C.J. Rep. 1992, 351, 386–395.Google Scholar

40. Case Concerning the Arbitral Award of 31 07 1989 (1990) 83 I.L.R. 8, 45Google Scholar, para.85. See p.32, para.54, where, apropos, reference is made to the decision on the Island of Palmas arbitration.Google Scholar

41. Para.99 of the award.

42. See OAU Resolution of 21 07 1964, concerning boundary disputes in Africa; Burkina Faso-Mali case, supra n.39, at pp.565–568, 586–587Google Scholar; Rann of Kutch arbitration, Case Concerning the Indo-Pakistan Western Boundary, arbitral award of 19 02. 1968 (1976) 50 I.L.R. 2.Google Scholar

43. Brownlie, , Principles, op. cit. supra n.8, at p.133.Google Scholar

44. Shaw, Malcom N., “The Heritage of States: The Principle of Uti Possidetis Juris Today” (1996) 67 B.Y.I.L. 75, 153; Brownlie, Idem, pp.132–133.Google Scholar

45. Supra n.39, at pp.565–566.Google Scholar

46. Expression used in the Island of Palmas arbitration to characterise the activity that may influence the determination of existence of effective possession of a territory by a State.

47. Para.450 of the award. However, the evidence was provided as confirmation of an existing historic title, and not as the facts from where the existence of sovereign title stemmed.

48. Inter alia, the types of facts provided by the two States include references to: the conduct of the other disputing State in relation to the claims of each State, in particular the non-existence of protests in relation to certain acts or activities; the conduct of third States, including diplomatic correspondence; international treaties, both ratified and not ratified; cartographic and historical material from several sources; the exercise of criminal jurisdiction; private fishing activity, in connection with which the exercise of fishing jurisdiction and a traditional system of resolving disputes are mentioned; official visits by representatives of the States to the islands; the exercise of legislative jurisdiction, both recent and from colonial times; offshore petroleum activities, their regulation and concession of grants; acts of diverse nature suggestive of the exercise of administration and control (e.g. licensing commercial, scientific and touristic activities, and environmental protection); construction and installation of lighthouses and geodetic stations, along with all related regulatory and inspection activities (in relation to people, employment, provisions, maintenance and repairs); the geographic unity of (at least some) islands and the mainland; displays of military force on, over and around the islands, as well as aerial and naval patrolling activities. In terms of cartographic material, while Yemen has put some emphasis on this kind of evidence, Eritrea has almost discarded it and considered it as having no direct relevance for purposes of proving the existence of sovereign title to territory.

49. Similar appraisals were carried out in other cases involving territorial disputes as, e.g., the Island of Palmas arbitration, and the Eastern Greenland, Minquiers and Ecrehos, Burkina Faso-Mali and Land, Island and Maritime Frontier Dispute cases.

50. In this decision, the arbitrator explicitly affirmed that “an arbitral tribunal must have entire freedom to estimate the value of assertions by the parties”. And concluded asserting that “the value and weight of any assertion can only be estimated in the light of all evidence and all the assertions made on either side, and of facts which are notorious for the tribunal” (Jennings, op. cit. supra n.9, at p.95).Google Scholar

51. Para.91 of the award.

52. Idem, paras.93–94.

53. Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area, Canada v. USA, I.C.J. Rep. 1984, 246, 305–307.Google Scholar

54. Including public claims to sovereignty over the islands; legislative acts seeking activity on the islands.

55. Including licensing activities in the waters off the islands; fishing vessel arrests; other licensing activity; granting permission to cruise around or to land on the islands; publication of notices to mariners or pilotage instructions relating to the waters of the islands; search and rescue operations; the maintenance of naval and coastguard patrols in the waters around the islands; environmental protection; fishing activities by private persons; other jurisdictional acts concerning incidents at sea.

56. Including landing parties on the islands; establishment of military posts on the islands; construction and maintenance of facilities on the islands; exercise of criminal and civil jurisdiction in respect of happenings on the islands; construction or maintenance of lighthouses; granting oil concessions; limited life on the islands.

57. Including overflight; miscellaneous activities.

58. These three types of evidence were dealt with, separately, in chapters VI (paras.200–238), VIII (paras.362–388) and IX (paras.389–439), respectively. It is not absolutely clear what led the Tribunal to analyse the evidence related to the construction and maintenance of the lighthouses before the specific assessment of the effectivités, while doing the opposite with the evidence related to maps and petroleum exploration. Two reasons can be suggested. First, the juridical relevance of the construction and maintenance of the lighthouses seems to go beyond the strict assessment of effectivités. Second, the prominent historical element in the study of the lighthouses makes it a logical sequence in the Tribunal's analysis.

59. Para.388, in fine, of the award.

60. Idem, paras.437, 439.

61. Idem, para.451.

62. The Tribunal remarked that the decision of Arbitrator Huber in the Island of Palmas arbitration had been based on a “marginal difference in weight of evidence” because that possibility had been foreseen in the arbitration compromis (paras.452–457 of the award).

63. Idem, para.453, emphasis added.

64. Idem, paras.7, 454–455.

65. Jennings, , op. cit. supra n.9, at p.93.Google Scholar

66. Supra n.9, at p.171, emphasis added.Google Scholar

67. Loc. cit. supra n.34.

68. O'Connell, op. cit. supra n.21, at p.413.Google Scholar

69. In extreme situations, as e.g. in the case of large mountains like Mount Everest, deserts, or isolated insular features, this minimum requirement would hardly be met.

70. Para.102 of the award.

71. According to the Yemeni view, the principle of natural or geographical unity is a “corollary of the concept of traditional title”, operating “in conjunction with evidence of the exercise of acts of jurisdiction or manifestations of state sovereignty” (idem, para.35). Eritrea denied the existence of any kind of contiguity relationship between the Arabian peninsula and the disputed islands, and had recourse to a kind of “leapfrogging” reasoning to support its own argument of contiguity. This “principle” appears to bear the same content as the argument of contiguity often put forward in territorial disputes since the 19th century (Sharma, Surya P., Territorial Acquisition, Disputes and International Law (1997), pp.51–61)Google Scholar. See the British Guiana v. Brazil arbitration of 1904 (British Foreign and State Papers, Vol.XCIX, (1905–1906), p.930)Google Scholarwhich assessed the argument of contiguity in negative terms, and the Land, Island and Maritime Frontier Dispute (supra n.39, at p.570), which admitted the existence of a situation of “singular insular unity” between the islands of Meanguera and Meanguerita.Google Scholar

72. Paras.460–463 of the award.

73. O'Connell, D. P., The International Law of the Sea, Vol.1 (1982), pp.185–191.Google Scholar

74. Island of Palmas arbitration, Jennings, op. cit. supra n.9, at pp.108–109Google Scholar. See Munkman, op. cit. infra n.94, at p.100Google Scholar; Sharma, op. cit. supra n.71, at p.200.Google Scholar

75. Bowett, D. W., The Legal Regime of Islands in International Law (1975), pp.48–49, stressing that this presumption dates back to the 1920s.Google Scholar

76. See Island of Palmas arbitration, Jennings, op. cit. supra n.9, at p.109. This view was also followed in the Land, Island and Maritime Frontier Dispute in relation to the islands of Meanguera and Meanguerita (see supra n.71).Google Scholar

77. The four groups of islands are identified in the map at the end of this article, where some islands are also identified in order to allow a better understanding of the geographical considerations involved in this decision. This map is an edited and altered version of the map appended to the award.

78. The “northern islands” include the Zubayr Group and Jabal al-Tayr island; see the map, ibid.

79. The features in question are Sayal Island, Harbi Islet, Flat Islet and High Islet. See paras.467–475 of the award.

80. Idem, para.472. Reference is made to the fact that this principle was “already enshrined” in Art.6 of the Treaty of Lausanne.

81. They are named Northeast Haycock, Middle Haycock and Southwest Haycock, and are about 3 nautical miles from Three Foot Rock and 6 nautical miles from Suyul Hanish (see map at the end of this article); idem, paras.476–482.

82. The argument of contiguity had here the form of the “portico doctrine”.

83. That fact that this island lies well to the west of the equidistance line computed from the mainland seems also to have been a factor in the decision.

84. Paras.485–508 of the award. The islands of Jabal Zuqar, Greater Hanish, Lesser Hanish and Suyul Hanish are the main islands having areas of, respectively, 102, 62, 14 and 6 sq. km. (Dzurek, , op. cit. supra n.2, at p.77). The Mohabbakahs and the Haycocks have negligible dimensions when compared to these main islands.Google Scholar

85. See paras.490, 516 of the award.

86. Idem, para.508.

87. No reference is made to the existence of displays of State authority in most of the smaller islands and islets of this group.

88. Paras.490 and 487 of the award.

89. Idem, para.491.

90. As mentioned before, this possibility has been admitted since the Island of Palmas arbitration. The example of the islands of Meanguera and Meanguerita in the Land, Island and Maritime Frontier Dispute (see supra n.71), where the latter was seen as a “dependency” of the former, seems to be an analogous situation.

91. Paras.509–524 of the award.

92. Idem, para.513.

93. Sharma, op. cit. supra n.71, at p.196.Google Scholar

94. Munkman, A. L. W., “Adjudication and Adjustment—International Judicial De-cision and the Settlement of Territorial and Boundary Disputes” (1972–1973) 46 B.Y.I.L. 1, 99–103. This author has tried to distinguish the facts provided by the parties in accordance with the following categories: evidence of actual administration; affiliations of the inhabitants (when the territory is inhabited); geographical, economic, historical, social and cultural links, general considerations of convenience. This classification is closely followed by Sharma, idem, pp.196–210.Google Scholar

95. O'Connell, op. cit. supra n.21, at p.413Google Scholar. Other authors clearly accept this approach in general terms; see Sharma, Idem, pp.59–60, 332, and Fitzmaurice, op. cit. supra n.9, at p.75.Google Scholar

96. Paras.525–526 of the award.

97. See Arts.2(1), 49 and 51 of UNCLOS.

98. Western Sahara Advisory Opinion, supra n.34, at p.41.Google Scholar

99. The Tribunal reassured the parties that in this phase of the arbitration “there [could] be no question of even ‘prefiguring’, much less drawing, any maritime boundary line”. This issue was raised by Yemen, in the written pleadings in the supplementary petroleum agreements phase. See paras.108, 113 of the award.

100. Dr El-Kosheri is a jurist brought up in the Islamic culture; for his biography see ICJ Yearbook 1996–1997, pp.59–60Google Scholar. It has also to be noted that Sir Robert Jennings was counsel for Sharjah in the Dubai-Sharjah Border arbitration (award of 19 10 1981).Google Scholar