In 1995 forces of Eritrea and Yemen clashed over an island group in the southern Red Sea known as Zuqar-Hanish

Archipelago. Eritrea and Yemen both claimed sovereignty over the group of islands in the Red Sea. However both parties agreed to settle their dispute on questions of territorial sovereignty andmaritime delimitation before the Arbitral Tribunal.

i.

On 21 May 1996: - Agreement on Principles was signed by Eritrea and Yemen. - The Parties renounced recourse to use force against each other, and undertook to settle their dispute on questions of territorial sovereignty and of delimitation of maritime boundaries peacefully. - They agreed, to that end, to establish an agreement instituting an arbitral tribunal.

ii.

On 3 October 1996: - Arbitration Agreement between the Government of the State of Eritrea (Eritrea) and the Government of the Republic of Yemen (Yemen) was entered into.

ISSUE Concerning the question of territorial sovereignty over the islands between the Government of the State of Eritrea and the Government of Republic of Yemen SCOPE OF DISPUTE All the islands and islets with respect which parties have put forward conflicting claims which include:
Haycocks Mohabakkah Zuqar Hanish Group Jabal Al Tayr Zubayr Group

Eritrea claims based on:

i.chain

of title extending over more 100 years law principles on effective

ii.international

occupation

Yemen bases its claim to the islands based on :

i.original,

historic, or traditional Yemeni tittle of sovereignty

ii.evidence

Argument Relating To Haycock and Mohabakah

Eritrea inherited title to the islands in 1993, when it became independent from Ethiopia while Ethiopia inherited the title from Italy. The Italian title is claimed to have vested to state of Ethiopia in 1953-1953 as a consequence of Eritreas federation with and subsequent annexation by Ethiopia. Chain of title started with the beginning of Italian colonization, although there is existence of Ottoman empire that have unchallenged sovereign over both coast of Red Sea and over the islands.

Italy has bypassing the Ottoman and dealing directly with local rulers, established outposts in furtherance of its maritime, colonial, and commercial interests. In 1892, Great Britain recognized Italian title to the Mohobbakah islands, where it is proximate to the Eritrean coast Italy also maintained an active presence in other Southern Red Sea Islands such as naval vessels patrolled the surrounding waters

No Yemeni claim exist as Imam Yahya, the founder of modern Yemen only occupied a highland region known as Gebel and not to the extend of lowland known as Tihama. This was confirmed by the 1911 treaty of daan, between Imam and Ottoman empire. After world War, Italy plans to occupy ZugarHanish Islands which were preempted by a period of British Military Occupation in 1915. Italy purported to renew expand its commercial and regulatory activities with respect of Zuqar-Hanish and lighthouse islands after the war.

In 1923, Treaty of Lausanne was signed. Former territory of defeated Ottoman empire was divided among local rulers who had supported the victorious allies. None of Arabian Penisula leaders who had supported the allies was in geographical proximity to the islands. Proven by Great Britains rejection of claims made by Imam of Saana to parts of Tihamma as he is lacked of possession.

Eritrea traces Great Britains failure to persuade remaining allies to transfers the island to the Arab rulers selected by Great Britain through unratified 1920 Treaty of Sevres which lead to the conclusion of the Treaty of Lausanne in 1923. Eritrea relies on Article 6 and 16 of Treaty of Lausanne which showed the islands open for Italian Occupation as none of the island s within three miles of Arabian coast and Imam realm is not a state or coastal at the time the agreement was signed.

Article 6 of Treaty of Lausanne In the absence of provisions to the contrary, in the present Treaty, islands and islets Iying within three miles of the coast are included within the frontier of the coastal State. Article 16 of Treaty of Lausanne Turkey hereby renounces all rights and title whatsoever over or respecting the territories situated outside the frontiers laid down in the present Treaty and the islands other than those over which her sovereignty is recognised by the said Treaty, the future of these territories and islands being settled or to be settled by the parties concerned.

Eritrea argues that Article 16 does not transfer the islands to any state and did not specify procedure for conveying the ownership of the islands, and it is left to general international law standards for territorial. At the end of 1920s, Italy had acquire sovereignty over the dispute islands by way of effective occupation and it does not contradict to Rome conversations 1927 between Great Britain and Italy nor Lighthouse Convention 1929.

The construction of a lighthouse on South West Haycock Island in 1929 showed Great Britain again acknowledge Italian sovereignty over Mohabakkahs after previous acknowledgement was made in1892 and 1917. Dispatch of and expedition to Zuqar-Hanish Islands and subsequent occupation by Italian troops support effective occupation by Italy. Italy also exercised sovereign rights over the island through colonial government in Eritrea between 1930-1940.

The Granting of fishing licenses in respect of the surrounding waters, granting of a license for the construction of a fish processing plant on Greater Hanish and the reconstruction and maintenance of an abandoned British lighthouse on Centre Peak Island satisfy the corpus occupandi requirement of effective occupation and accompanied by animus occupandi ( requisite sovereign). Yemen did not protest Italy activities on the islands at that time

Great Britain claimed that Italy activities did not constituted a claim of sovereignty but according to Eritrea the questions of sovereignty was in reserve as a refusal to give assurances as it is to withhold diplomatic recognition of those right while Italy legal right was preserved. Lead to Anglo-Italian Agreement in 1938 where the British and Italian understands the island were not appurtenant to the Arabian Peninsula, and only them have the power of the islands.

The express provision in Anglo-Italian agreement with respect to the former Ottoman Red Sea islands where neither would establish sovereignty or erect fortifications or defenses was understood by Eritrea as not a relinquishment of existing rights but a covenant regarding future conduct. Eritrea argues at the time Anglo-Italian Agreement was made, Italys sovereignty over the island already been established and remained unaffected by the agreement.

In December of 1938, Italy confirming its s existing sovereignty over the islands by promulgating the decree number 1446 of 1938 confirming the islands has been part of the territory of the Eritrean Commissariato of Dankalia. Eritrea claimed the Eritreas territorial boundaries remains unchanged even after British Occupation. All italian colonies and dependencies surrendered to the allies which included Ethiopia by virtue of Treaty of Peace 1947

Eritrea also claims the drafting of the Eritrean Constitution 1952 confirms the inclusion of the disputed islands within the definition of Eritrean territory. Eritrea put forward the inclusion of the islands within Ethiopias territorial sea based on international customary law and conventional law that every island is entitled to its own territorial sea which gaps between the islands and mainland should not more than 12 mile. Measuring from Mohabakkah islands, Ethiopias 1953 declaration of 12 mile territorial sea include Zuqar Hanish islands

The transfer of the administration of the lighthouse to Asmara by the British Board of Trade in 1967 cause Ethiopia to have further sovereignty by requiring the foreign workers on the lighthouse island to carry passports and similar documents, involving in employment decision affecting lighthouse workers, approving all inspection and repairs visit to the lighthouse islands. Another evidence of sovereignty is the regulation of oil exploration activities all around the islands and inspection by President Mengistu and a group of high-ranking Ethiopian Military and naval personnel.

Up until 1970s, Yemeni states an regional acknowledged Ethiopian control over the islands by their statements and conduct and neither north or south Yemen displays any interest over the islands. According to Eritrea, the presumption on the part of Yemen, its neighboring states and the Arab media that Ethiopia had leased the Islands to Israel constituted an acknowledgment of Ethiopian sovereignty even though the presumption is false.

Eritrea contends that the final years before Eritrean independence were marked by aerial surveillance and continuous naval patrols by Ethiopian forces. Eritrea claims that, after winning its independence in 1991, it acquired sovereign title to the Islands and exercised sovereign authority over them.

Eritrean fishermen are dependent upon the Islands for their livelihood. Eritrean administrative regulations are said strictly to control fishing around the Islands, prescribing licensing and other requirements for fishing in the surrounding waters. its vessels police foreign fishing vessels in Eritrean territorial waters, and routinely patrol the waters around the Islands in order to enforce fishing regulations, seizing vessels that fail to comply.

Yemen did not maintain any official presence in the Islands, and that it was only in 1995 that Eritrean naval patrols discovered a small Yemeni military and civilian contingent purportedly engaged in work on a tourist resort on Greater Hanish Island. This led, in December 1995, to hostilities that ended with Eritrean forces occupying greater Hanish Island, and Yemeni forces occupying Zuqar

With respect to territorial sovereignty, Eritrea seeks from the Tribunal an award declaring that Eritrea possesses territorial sovereignty over each of the islands, rocks and low-tide elevations specified by Eritrea in its written pleadings, as to which Yemen claims sovereignty.

The Ministry of Foreign Affairs of Italy had, in an internal Note of 31 March, made clear that 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 indicated that Kamaran, Abu Ali and Jabal al-Tayr were at the time under British occupation, and described as occupied by Italy: Greater Hanish, Jabal Zuqar, Centre Peak, and Lesser Hanish. South-West Haycock is not listed in the Italian Foreign Ministry

Rome treaty however was not registered with the League of Nation and cannot be used by parties. In addition, Yemen is a third party to the treaty. The island were not res nullus to be acquired by Italy or Great Britain. Words In Article 3 had ambiguities as some islands in Red Sea in 1938 belonging to Saudi Arabian or Yemen. It is also showed that there is other islands at Red Sea whose title is still indeterminate.

While , Islands stated under Article 4 are not being under sovereignty of Saudi Arabia or Yemen and Italy and United Kingdom did not regard any title to the named islands as belongings to Yemen or been settled within the terms of Article 16 of treaty of Lausanne or establish sovereignty over the islands. Consequences from treaty: -Italy could not make any claim that it already had title over the islands except for South West Haycock.

Yemen also make a claim over the Red Sea Islands but with unspecified terms. Great Britain has negotiated with Yemen regarding the treaty and come with a view that Yemen had legally been part of the Ottoman empire and any islands pertaining to it were full recovered by Article 16 of the Treaty of Lausanne and disposal was therefore a matter of international agreement but again Yemen does not have title over the islands.

Based on Treaty of Friendship and Mutual cooperation of Sanaa of 1934, Yemen claims over the islands was acknowledge although it was not reflected in the text of the Treaty which included Zuqar and Greater Hanish. However, after 2nd world war neither Italy or Yemen held sovereign title. It was assumed to have fallen within relinquishment provisions that Italy was obliged to accept.

By 1947 the question of title had, of course, to be faced in the Treaty of Peace with Italy. Under Article 23 Italy renounced all right and title to the Italian territorial possessions in Africa, i.e., Libya, Eritrea and Italian Somaliland. The third paragraph of that provision then provided: -The final disposition of these possessions shall be determined jointly by the Governments of the Soviet Union, of the United Kingdom, of the United States of America, and of France within one year from the coming into force of the present Treaty . . . .

That this did not refer to the islands here in issue is made fully clear by Article 43,which provides: Italy hereby renounces any rights and interests she may possess by virtue of Article 16 of the Treaty of Lausanne signed on July 24, 1923.

Instead, Article 16 of the Treaty of Lausanne remained intact. Italy was now obliged to renounce any rights and interests under it. This refers not merely, as has been submitted by Yemen, to Italys right to pro test at a purported acquisition by another or to be party eventually to a settlement of title. It refers also to a renunciation of any claims Italy might have made and any legal interests she might have asserted regarding the islands.

The draft Eritrean Constitution supports the view that the Hanish, Zuqar and more northerly islands were not among those to be settled (and eventually affirmed as passing to independent Eritrea). The section on the Geography and History of Eritrea says that the Italian colony includes the Dahlak archipelago off Massawa, and the islands further south off the coast of the Danakil country. This would seem to refer to those Mohabbakahs in proximity to Assab. The section that recalls the attempts to colonize the highlands of Eritrea makes no reference to any colonization of the islands.

Haycock & Mohabbakah islands goes to Eritrea. The Mohabbakahs

Contain 4 rocky islets: 1) Sayal Islet 2) Harbi Islet 3) Flat Islet 4) High Islet

The Mohabbakah
Eritrea

showed the title over Mohabbakah Islands was obtained through various local agreements made by Italy with a local ruler.
The

agreements was not protested by Turkey & recognized by great Britain.

Mohabbakahs

were comprised within what was passed to Ethiopia & Eritrea after 2nd World War and this is affirmed by the references in Article 2 of Peace Treaty 1947 to the islands off the coast and by the constitutional agreement.

There is no evidence Mohabbakah islands were part of an original historic title held by Yemen and no serious claim advanced by Yemen since 1947. All Mohabbakah lie within 12 miles of Eritrean coast.

Contains 3 small islands situated along a roughly southwest- to northeast line. They are from south to north, South west Haycock, Middle Haycock & Northeast Haycock. South West Haycock is 6 nautical miles from the nearest point of suyul Hanish, though there is very small three foot rock about midway between them.

The title over century, British government was interested in west Haycock as a site for a lighthouse. British Board of Trade satisfied itself that South West Haycock was subject to Italian Jurisdiction. In 1930, when the Italians were constructing a lighthouse on South Wes t Haycock, there was an instructive correspondence between the Italian and British Governments. An internal Foreign Office memorandum reveals the opinion that the establishment of the Italian colony of Eritrea makes it difficult, therefore, to resist the claim that the islands off the coast of Eritrea are to be considered as an appendage of that colony

Claim over Haycock put by Eritrea in the form of succession derived from Italian colony of Eritrea and by way of subsequent federation of Ethiopia & Eritrea through Eritrea independence in 1993. For petroleum agreement, none of the Yemen agreements extends as far to the southwest haycock The 1974 Tomen-Santa Fe agreement appears to encompass the Hanish group, but stops short of the Haycocks.

Fully documented agreement of Eritrean government and shell Amoco & BP do cover the areas of the Haycock and Mohabbakakh and no protest from Yemen when agreement appeared.

i.

Yemen claims it sovereignty over the islands on ground of reversionary ancient tittle. Where Eritrea claim its sovereignty over the islands based on historical tittle by succession ( Through Ethiopia from Italy). However, the tribunal found that it is insufficient to determine sovereignty of the islands on the basis of historical materials alone. the tribunal has to look at other events occurred before the happening of the dispute ( doctrine of effective control)

ii.

iii. Therefore

i.The

modern international law of acquisition 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.
ii.Both

parties presented to the Tribunal the evidences of effective control over the islands.
iii.The

Tribunal has referred to numerous factors to determine any legislative act that seek to regulate activity over the islands. a) Granting of Oil Concessions b) Licensing Activity c) Construction and Maintenance of Facilities on the Islands

i.

Petroleum Agreement of Ethiopia and Eritrea :

a.

International Petroleum / Amoco Production Sharing Agreement 1988 Contracts and concessions entered into by Yemen:

ii.

a. b. c. d. e. f. g. h.

Shell Seismic Survey 1972 Shell Petroleum Agreement 1974 Tomen-Santa Fe Seismic Permit 1974 Hunt Oil Company Offshore Production Sharing Agreement 1984 BP Production Sharing Agreement 1990 Total Production Sharing Agreement 1985 Adair International Production Sharing Agreement 1993 Blocks Offered by Yemen

i. ii.

It was concluded between Yemen Arab Republic and Tomen. This is for the purpose of conducting a marine seismic survey in the contact area which contended by Yemen to include ZuqarHanish Islands. According to this agreement, Yemen has exclusive authority to mine petroleum in and through out the contract area. Eritrea on the other hand argued that the seismic surveys are not indicative of sovereign claims. This is according to Article 241 and Article 246 of the Law of the Sea Convention.

iii.

iv.

v.

vi.

However according to the Tribunal, these provisions are not related to the seismic and other explorations relating to the petroleum commercial purposes. It was also reported by The Santa Fe Report that during the seismic survey it was discovered that the island of ZuqarHanish Islands are made entirely of volcanic rocks. Later Yemeni government sent a geologist to Zuqar island to collect some samples over the islands. This was reasonable to presume that the geologist believed that he was landing on the island that is under Yemeni jurisdiction.

vii.

viii.

ix.

i.

Yemen and Total-Compagnie concluded a production sharing agreement . However the agreement does not include the area of the islands. But, on the other hand, in 1993 Total decided to become a sponsor of the French Ardoukoba scientific mission to the islands to study marine life in the reefs. So, Total then requested Yemeni government permission to establish a landing strip on Greater Hanish in order to enable a Total aero plane to transport equipment for the purpose of the study on the islands. Later, the Yemen gov received the request made by Total. Total also requested a permission to establish radio station on the Greater Hanish and to permit visiting scientis to use its frequency. Yemen then received this application.

ii. iii.

iv.

v.

vi.

The tribunal view that the building and use of the air strip on Greater Hanish is a material effective control because it demonstrates the exercise of Yemen jurisdiction over Greater Hanish.

i.

This agreement however was not ratified by Yemen and it does not come into force. However, Yemen provided the maps of the agreement area which show that the area cover the whole of Hanish Islands.

ii.

i.

Concerning the ambiguity of the Contract Area. With regard to this, Ethiopia prepared 4 Annual Reports. All these 4 Annual Reports regarded the contract area of the agreement cover the whole Hanish islands. Eritrea had granted a transmitting license to Delft Geophysical Co. for the establishment of a station on Greater Hanish Island. Amoco-Ethiopia Petroleum Company has also installed navigation beacons to enable it to conduct the seismic survey, including on the Greater Hanish Island.

ii.

iii.

iv.

Eritrea
i.No

attempts made to demonstrate any licensing activities of the water off the islands except fishing activity.
ii.Its

Ministry of Marine Resources has regulated fishing in Eritrea waters since shortly after Eritrea independence.
iii.1992

: Its government has issued a notice prohibiting unlicensed fishing activity in Eritreas territorial waters.
iv.1995

: Ministry of Marine Resources issued a Manual and Guidelines for Administration of Foreign Vessels Licensing and Operations
v.1995

: Trawler Regulation I was issued by the Ministry of Marine Resources. - However the area of its applicability does not extent to, or surround Zuqar/Hanish Islands

Yemen
i.1993:

Yemen granted an official approval of plans for a tourist boat operation between al-Khawkha and Greater Hanish.
ii.1995

: Yemen granted license to a Germany company for building of a diving center on the Greater Hanish.
iii.1972

1993 : Yemen government recorded 8 instances of request for approval for activities relating to the use of waters around the islands.

Eritrea i.The lighthouses on Abu Ali and Jabal al-Tyr were management by a private company that based in Asmara (Eritrea).
ii.Therefore,

Ethiopian regulations applied by the company concerning the management and maintenance of those lighthouses.
iii.However,

tribunal does not consider this as persuasive.

Yemen
i.Yemen

has constructed and maintained some lighthouses on the Islands. However, such maintenance is connected with the preservation of safe navigation and not normally take as a test of sovereignty.
i.Yemen

also has installed two geodetic stations by French companies in 1992 on behalf of the Yemeni Government on Jabal Zuqar and Greater Hanish
ii.Yemen

presented evidence that there were holy places built on the Islands. But it appears to be of private nature and not as government activity.

The Zuqar Hanish Group are subject to territorial sovereignty of Yemen

Jabal al-Tayr and the Zubayr Group of Islands

Both

of the lone island are a considerable distance from the islands as well to each other. There are located eastwards of the coastal median line. Both of the island are lighthouse islands which are important for the 19th till early 20th Century for navigation purposes.

YEMEN: I. 1989 London Conference In the year 1989, there was London conference on Lighthouse, where the purpose of the conference was to change the previous international agreement on the maintenance of the light house island Yemen was invited to the conference as an observer on the plea that because the lighthouse islands, Abu Ali and Jabal Al Tayr was within the economic zone of Yemen Arab Republic. Yemen also had installed new lights on both sites Ergo, Yemen volunteered to take the responsibility to maintain and operating the light The offer was accepted in the conference.

II. a.

Agreements

Yemen Government with Shell Company 1973 Entered into on 20th November 1973. In the contract agreement the drawn boundary of the contact Area include within Zubary group however it does not include Jabal Al-tayr. However it passes in a distance whereby might cover the territorial sea of the island b. Hunt Oil Agreement Ratified on 10th March 1985. The western contract area boundary includes Zubary group As to the map, it appears to brush the island of the Jabal Al tayr includes its territorial sea,

Eritrea and Ethiopia Did not make any petroleum agreements that cover the island Eritrea 1. Anadarko Oil Company 1995 and 1997 The areas extends in the direction which is approximate median line between coast. Yemen protest : that it is a deliberate violation of the territorial waters of both groups and of her economic rights in the region.

Jabal al Tayr that forms the Zubary group are subjected to the territorial sovereignty of Yemen. Yemen shall ensure that the traditional fishing regime of free access and enjoyment for the fishermen of both parties will be preserves for the benefit of the lives and live hoods and this poor industrious order of men.

The End