1 Article II. The full text of the Treaty of Peace between the State of Israel and the Arab Republic of Egypt, as well as other Egypt-Israel Peace Documents, appear in (1980) 15 Is. L.R. 283–332CrossRefGoogle Scholar.

2 Article IV of the Treaty provides for the establishment of a Joint Commission to facilitate the implementation of the Treaty. According to the Appendix to Annex 1, dealing with “Organization of Movements in the Sinai”, the Joint Commission, was to function from the date of exchange of instruments of ratification up to the date of completion of final Israeli withdrawal from the Sinai. One of the tasks of the Joint Commission was to “organize the demarcation of the international boundary” (Article IV (3)(d) of the Appendix). According to a contemporary report, the number of the original pillars was ninety: see General Report on the Proceedings of the Sinai Boundary Commission, 1906, infra n. 11. The number of pillars has changed in the course of time.

3 See Agreement of 25 April 1982 between the Government of the State of Israel and the Government of the Arab Republic of Egypt concerning “Initial Procedure for Resolving Boundary Questions” (1987) 26 International Legal Materials 14Google Scholar. See also Annexes 4 and 6 of the Egyptian and Israeli Memorials, respectively. As a provisional measure, each party agreed to move behind the lines claimed by the other. It was also agreed that, in the interim period, “activities which have been conducted in these areas shall continue” and that “no new construction projects will be initiated in these areas”. These provisions have particular relevance as regards the completion of the luxury Sonesta Hotel on the shore in the Taba area at the southern end of the boundary. The hotel, as well as the adjoining Rafi Nelson resort “village” are owned by Israelis. The construction of the hotel was begun in 1978.

4 The reference is to negotiations pursued by virtue of Article VII of the Peace Treaty which reads as follows:

“1. Disputes arising out of the application or interpretation of this Treaty shall be resolved by negotiations.

2. Any such disputes which cannot be settle by negotiations shall be resolved by conciliation or submitted to arbitration”.

5 See Arbitration Compromis of 11 September 1986 (1987) 26 International Legal Materials 1. The Compromis is reproduced as Appendix A to the Award. The Compromis provided for the establishment of an Arbitration Tribunal (see explanatory note, supra p. 467).

6 Article IX of the Compromis. The Article provides for the establishment of a three-member chamber, composed of the two national arbitrators and one non-national arbitrator selected by the President. The non-national arbitrator and Chairman of the Chamber was Judge Pierre Bellet.

The arbitration process was to terminate in the event that the parties jointly informed the Tribunal in writing that they had decided to accept a recommendation of the Chamber and that they had decided that the arbitration process should cease (Article IX(3)). Article IX was included in the Compromis at the insistance of Israel which from the outset expressed its preference for the procedure of conciliation rather than arbitration.

7 The agents of the parties were, respectively, Ambassador Nabil Elaraby for Egypt, and Mr. Robbie Sabel for Israel.

8 For the text of the Agreement see British and Foreign State Papers, 1905–1906 (1910), vol. 99, p. 482. See also Appendix B to the Award.

In 1841, the Sultan conferred upon Mohamed Ali the hereditary Pashalik of Egypt, creating thereby a privileged Ottoman vassal State. In 1882 Great Britain occupied Egypt, without seeking to change the formal status of the Egyptian Khediviate as an Ottoman vassal. Following Turkey's entry into World War 1, Great Britain declared, in December 1914, a British Protectorate over Egypt. In 1922 Egypt became an independent state. See Award, paras. 20–70.

9 According to Article II of the Compromis, the Tribunal is requested to decide the location of the boundary pillars of the recognized international boundary between Egypt and the former mandated territory of Palestine, in accordance with the Peace Treaty, the 25 April 1982 Agreement and the Annex to the Compromis.

10 Appendix A is reproduced in Annex 2 of the Egyptian Memorial.

11 Captain Owen, an Englishman, was a member of the Egyptian team on the 1906 Sinai Boundary Commission, while Wade, who was a surveyor, was a member of the technical staff of the Commission on behalf of Egypt. See Owen's, CaptainGeneral Report on the Proceedings of the Sinai Boundary Commission, 28 October 1906, (Public Records Office, London)Google Scholar, and A Report on the Delimitation of the Turco-Egyptian Boundary, between the Villayet of the Hejaz and the Peninsula of Sinai (June–September 1906) by E.B.H. Wade with additions by B.F.E. Keeling and J.I. Craig (Survey Department, Ministry of Finance, Egypt, 1907).

The two reports are reproduced as Annexes to both the Egyptian and Israeli Memorials (Annexes 22, 24, 3 and 4, respectively).

12 See e.g., the Exchange of Notes between the British and Turkish Governments relative to the maintenance of the status quo in the Sinai Peninsula and the tracing of the line of demarcation between Turkey and Egypt, Constantinople, May 14 and 15, 1906, British and Foreign State Papers (1910) vol. 99, pp. 393–394Google Scholar. Israel Memorial, Annex 46(a) and 46(b).

13 Article 1 reads in part: “The administrative separating line, as shown on map attached to this Agreement, begins at the point of Ras Taba on the western shore of the Gulf of Akaba and follows along the eastern ridge overlooking Wadi Taba to the top of Jebel Fort …”.

14 (E) signifies the location claimed by Egypt for the specific boundary pillar.

15 The determination of the location of BP 91 has acquired special significance because of the importance of tourism of the nearby Taba sea-shore and its facilities. (See supra n. 3). For that reason, the present arbitration is commonly known as the “Taba Arbitration”. As stated by Israel's Counsel and Advocate, Mr. Elihu Lauterpacht, Q.C., in the Hearings of 22 March 1988, “Taba is the immediate locality of the Dom Palms, the well and the Egyptian Police Hut”. Verbatim Record of the Hearing, vol, II, p. 397Google Scholar. Mr. Lauterpacht emphasized in his pleadings that Taba, so defined, was under Egyptian sovereignty. The issue was how far Egyptian sovereignty extended to the east. In being asked to find the boundary between Egypt and Palestine, the Tribunal was not being asked to determine sovereignty over Taba, he said. Ibid., at 396. See also Mr. Lauterpacht's statement on 15 April 1988: “As the Tribunal knows, Israel does not deny that Taba as a place near the Dom Palms is subject to Egyptian sovereignty”. Ibid., vol. III, p. 943.

16 Colonel Parker, who was the Governor of Sinai at that time, took the photographs in December 1906 in order to commemorate the erection of the first boundary pillar.

17 The coastal road from Eilat to Sharm-el-Sheikh. See Map No. 2, p. 478.

18 BP 91(E) signifies the location claimed by Egypt for boundary pillar 91.

19 It is stated in para. 105 of the Award that “the pillar itself has apparently disappeared sometime after 1949 and before 1967”.

20 BP 91(I) signifies the location claimed by Israel for boundary pillar 91.

21 According to the Award (para. 239), non licet exists when for some reason – other than the absence of applicable law – the Tribunal cannot reach a decision on the merits of the case.

22 The implication of this statement is that, as a result of the Award, the delineation of the boundary from BP 1 to BP 91 has been legally and finally determined. What remains to be agreed upon between Egypt and Israel is the course of the boundary-line between BP 91 and the sea.

23 In para. 210 of the Award, the majority quoted from the judgment in this case, (1962) ICJ Reports 34Google Scholar.