Comparative Study Between Yemeni-Eritrean Ways of Documentation in Arbitration Over Red Sea South Islands [Archives:2000/52/Law & Diplomacy]

By:
Abdulla Mohammed Al-Saidi
Vice Minister of foreign Affairs
This study contains an objective comparison of the style of documenting followed by the two parties of the conflict on sovereignty over the islands Greater and Lesser Hanish, Seioul, Jabal Zuqar, Al-Zubayr islands, Al Tair island and South West Rocks in the southern part of the Red Sea.
In order to clarify effectiveness of documentation in supporting the legal evidence on which the two parties of the disputes have depended, we have to briefly review the legal justifications submitted by the Yemen Republic and the State of Eritrea in their pursuit to prove sovereignty over the group of islands situated in the southern part of the Red Sea.
Eritrea’s arguments;
When the Eritrean troops had occupied Greater Hanish island in December of 1995, Asmara claimed its sovereignty over the Hanish island group proceeding from these facts:
1- The Ottomans used to exercise sovereignty over the islands from the western coast of the Red Sea.
2- The Italians had imposed their sovereignty over these islands by virtue of the Italian military occupation of them and Rome’s intent to impose sovereignty over these islands. It is known in the international law in the 19th century and beginning of the 20th century that occupation by itself does not grant the right to sovereignty unless associated with the occupying state’s intention of imposing its sovereignty.
3- That the Ethiopians had inherited sovereignty over the these islands from the Italians who were defeated in World War II, despite the fact that according to 1947 accord upon ending the war, the Italians were forced to renounce any right they had acquired pursuant to article 16 of the Lausanne agreement for the year 1923.
4- Eritrea had consequently inherited the sovereignty over the islands from Ethiopia, which recognized Eritrea’s independence after a long war of liberation.
Yemen’s arguments in this respect are based on these facts:
1- These islands belong to the Republic of Yemen on the grounds of Yemen’s historical right to them. These islands belonged to Yemen before the Ottoman occupation, and the Ottoman administrative division of the Wilayet of Yemen recognized these islands as being under the sovereignty of Yemen. After the defeat of the Ottoman empire in 1918 the Imam of Yemen troops managed to impose their power on the coasts of Tihama and established Yemeni sovereignty on them.
2- Contrary to Eritrean allegations, Italy did not impose its sovereignty on these islands. In this context the Yemeni legal team concentrated on Italy’s commitment to the Luzon agreement of 1923 that provided that the fate of these islands would be determined by the states, parties to the agreement. In other words, any party could not behave individually with regard to the destiny of the islands.
3-The Rome understanding between Italy and the United Kingdom of 1927 made it incumbent upon both Italy and the United Kingdom to not impose their sovereignty on the islands on the Red Sea, which were under neither Yemeni nor Saudi sovereignty. Moreover, the then Italian foreign minister Mussolini had written to the Imam Yahya Hamidudin before signing the ANGLO-ITALIAN AGREEMENT OF 1938, confirming that Italy had worked towards preserving the Yemeni sovereignty regarding the islands of south Red Sea, as the agreement intended to be concluded stipulates that neither Italy would have sovereignty over the islands of Greater Hanish and Lesser Hanish nor Britain over Kamaran island.
4- The Yemeni oral and written arguments also contained reference to the insistence of Imam Yahya Hamidudin, during the signing of 1934 agreement between the Mutawakilia kingdom of Yemen and Great Britain, on restoring the Yemeni islands in the south of the Red Sea, including the islands of Hanish and Al-Zubayr.
5- The Yemeni pleadings included a huge quantity of documents indicating the Yemeni exercise of sovereignty over these islands.
It is worthwhile mentioning that the majority of the documents presented by the Eritrean team of research were derived from secondary sources that could not support the legal assumptions of the state of Eritrea. The Eritrean side has based its assumptions on press articles and Arabic books that, out of their short knowledge, were writing that Yemen is not able to impose its control on the Red Sea islands and they are consequently subject to Israeli and Ethiopian ambitions. Some Arab writers have gone further to assume that the islands are inhabited only by some Ethiopian fishermen. Others insisted that Israel had occupied the island of Zuqar in 1973 although that the Chairman of the Yemeni Republican Council then, Qadi Abdul Rahman Al-Eryani had stated that the Yemen Arab Republic had sent Yemeni troops to the islands of Zuqar, Greater Hanish and Al-Zubayr and found no traces of any foreign troops on the said islands, confirming that the Arab Republic of Yemen was capable of protecting its sovereignty over these islands.
Eritrea was not able to submit official Italian documents in support of its claim that Rome had imposed its sovereignty on these islands and annexed them to the colony of “newly established Eritrea.”
The Yemeni research team represented by the national committee for arbitration was able to present Italian government maps, such as maps of the foreign ministry and colonies and East Africa, all of which affirm Yemen’s right to these islands. Even the Italian government maps that were not colored in the colour of the map of Yemen did not give them to the Italian colony of Eritrea but gave them the status of the islands mentioned in article 16 of the Lausanne agreement, i.e., the islands whose sovereignty was still pending. Also, the Yemeni team presented a large number of maps of other states such as the Ottoman Empire, Ethiopia, Britain, the United States, France Austria and Germany, all of which confirm Yemen’s historical right to these islands. It is worth mentioning that Eritrea’s post-liberation maps, including the map of Eritrea independence to the end of 1995, were in line with the Yemeni historical right to sovereignty over these islands.
On the other hand, Eritrea has alleged that the United Nations has demarcated Eritrea’s frontiers within the boundaries of the former colony of Italian Eritrea including its islands, which Eritrea considered the phrase ”its islands” to include the group of islands in the south of the Red Sea under the pretext that these islands are under the Italian sovereignty. Against this the Yemeni team offered the report of the UN Committee on Eritrea and the maps enclosed with the report that had been submitted to the UN General Assembly during the discussion of the situation of the Italian colonies in East Africa. These UN maps and those of the UN about the region till 1996 show that all the islands in the south of the Red Sea are Yemeni.
In compliance with the directives of the president Ali Abdulla Saleh, the Yemeni Ports Authority installed in the late seventies and early eighties a number of solar energy-powered beacons in some of the islands in the south of the Red Sea. The British government was responsible for managing and maintaining the Red Sea Beacons but it failed to do so at that time, therefore the Yemeni government carried out that task in its stead. The Arab Republic of Yemen had taken part as observer in the conference of the governments members of the agreement of the Red Sea beacons held in London in June 1989, while the Ethiopian government did not ask to participate in that meeting and did not object to Yemen’s installation of those beacons.
In conclusion I would like to offer some general remarks on the arguments and legal presumptions offered by the two parties;
1- Eritrea has presented a large quantity of documents, but its legal team had not examined those documents. Some of them were useful in support of the presentations and others were harmful to them in other aspects. The Yemeni side benefited from the Eritrean documentation especially the documents in possession of the Ethiopian foreign ministry. However, the Yemeni team was not in a position capable of obtaining them. And the Yemeni team refrained from presenting documents useful to it, which might arouse the anger of some members of the arbitration tribunal.
2- In order to win the media war with Yemen, Eritrea was, at the beginning of the dispute, quick in using the Internet and its foreign ministry issued a White Letter on the legal findings of the Eritrean allegation, but after extended legal and historical discussion, Eritrea renounced some of the assumptions it was making, such as that the Ottoman sovereignty over these islands was exercised from the African side of the Red Sea. The Yemeni team benefited from these contradictions to support its legal arguments.
3- The contradiction between the Eritrean assumptions and arguments was mostly clear, and that has weakened the Eritrean legal stand.
4- The Yemeni side kept calm against provocations of the Yemeni opposition press that accused the government of submission and ceding to the status quo. The fact is that the Yemeni negotiator was keen to keep its strategy secret to stave off any legal confusion that might result from giving statements and information.
5- In the first phase the Eritrean party tried to address the sentiments of the arbitration tribunal by focusing on the Arab- Israeli conflict, and by begging for compensation in the second phase.
6- The Yemeni team was more capable and organized than its Eritrean counterpart in using the huge quantity of documents in Yemeni interests.
In the light of this fact, we had had an apprehension from the beginning, which is that weakness of the other party and its non-experience might cause the arbitration tribunal to sympathize with it. This premonition was actually based on precedents in international arbitration.

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