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The Taba Award of 29 September 1988

Published online by Cambridge University Press:  16 February 2016

D.W. Bowett
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Extract

This was an important award because it concerned the implementation of the Treaty of Peace of March 1979 between Israel and Egypt. Israel's obligation to withdraw “behind the international boundary” could not be implemented to the satisfaction of both parties so long as there existed a disagreement over the location of that boundary.

The Joint Commission established pursuant to Article IV of the Peace Treaty, a body of military personnel, finally identified some 14 boundary pillars the location of which remained disputed. And, since Article VII of the Peace Treaty required reference to conciliation or arbitration of disputes not resolved by negotiations, the dispute over the location of these boundary pillars was referred to arbitration by the Compromis of 11 September 1986.

Type
Research Article
Information
Israel Law Review , Volume 23 , Issue 4 , Autumn 1989 , pp. 429 - 442
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

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Footnotes

*

Whewell Professor of International Law in the University of Cambridge. The author was principal Counsel for Egypt in the arbitration and the views expressed in this article may well reflect Counsel's commitment to the case he has argued.

References

1 The Tribunal consisted of Gunnar Lagergren (President), Pierre Bellet, Dietrich Schindler, and Hamed Sultan (for Egypt) and Ruth Lapidoth (for Israel). Professor Lapidoth dissented from the award.

2 Professor Lapidoth, in her dissent, commented that she had found no other case with so restricted a mandate for the Tribunal (para. 5).

3 See para. 176 of the Award, where the Tribunal adhered strictly to this requirement and refused to accept Egypt's suggestion that the Tribunal might choose a location advanced by one Party where the “preponderance of evidence” suggested a location nearer to that Party's position than to the position advanced by the other Party.

4 The application of the critical date concept can be seen in the Palmas Island Case, 2 U.N.R.I.A.A., 829 Google Scholar in Judge Huber's award, in the oral arguments of Counsel for the United Kingdom in the Minquiers and Ecrehos Case, I.C J. Reports, 1953, Pleadings, Vol. II, 67–68 Google Scholar and in Fitzmaurice, , “Law and Procedure of the I.C J.” (1955–1956) 32 Br. Yrbk Int'l L. 20–44 Google Scholar.

5 Para. 170 of the Award. Nor did the Tribunal share Professor Lapidoth's view that the demarcation was the erection of the temporary markers (telegraph poles) and not the erection of the permanent masonry pillars.

6 In fact, in her dissent, Professor Lapidoth invoked not simply the text of the 1906 Agreement, but the initial phase of the demarcation during which temporary markers (telegraph poles) were erected, to be replaced later in the year by permanent masonry pillars (at para. 18). The difficulty about this view is that it offers no explanation as to why the masonry pillars should be built on different locations to the telegraph poles. And no proof of error was given.

7 Para. 198. It is of interest to note that the Tribunal attached no weight to the testimony of 3 Yugoslav officers who had served with UNEF. Egypt produced these men as oral witnesses to testify that, as part of UNEF, they patrolled eastwards and northwards of Israel's claimed line, and right up to the Egyptian locations. Egypt regarded this edivence as important because UNEF operated only on Egyptian territory and not on Israeli territory.

8 Egypt had argued this position in its written pleadings, placing great emphasis on the principle of stability of boundaries.

9 Para. 208.

10 Paras. 209-211.

11 Para. 210.

12 It may be recalled that Article I of the 1906 Agreement referred to the line as following “along the eastern ridge overlooking Wadi Taba …”, so the location of Wadi Taba did dictate the location of the line.

13 The photograph was discovered by Sir Ian Sinclair, QC., also Counsel for Egypt, in England in the possession of a niece of Colonel Parker, a British officer who, on behalf of Egypt, took part in the work of the Joint Commission demarcating the original boundary. Israel also knew of this photograph but did not produce it.

14 This had not been revealed by Israel during the meetings of the Joint Commission, nor even in Israel's Memorial. The revelation came as a response to Egypt's production of the Parker photograph.

15 Article 3 provided that “boundary pillars will be erected … at intervisible points”.

16 There were other translations, but the sense remained the same. And the Report of the Demarcation (the “Wade Report”) likewise recounted placing the pillars or beacons “along the line of east cliffs of Taba …”

17 There was a subsidiaiy argument by Israel that Parker had no authority to represent Egypt, but Israel offered no evidence of this (see para. 231).

18 Even apart from this, the Tribunal was prepared to accept Egypt's argument that, along this sector of the boundary, the Demarcation Commission had chosen to follow the treaty description of the boundary (“along the eastern ridge overlooking Wadi Taba”), even though this meant pillars would not be intervisible: see paras. 236-7. The fact that the Treaty of 1906 contained this geographical description of the final section of this boundary, and did not rely solely on “intervisibility”, is crucial to a proper understanding of the award. For the Egyptian location conformed to this Treaty description, and the Israeli locations did not. Thus the supposed divergence between the 1906 Treaty line (the so-called “legal” boundary) and the demarcation by the masonry pillars did not, in fact, exist. This invalidates much of the reasoning in Professor Lapidoth's dissent, as it does the views of ProfessorWeil, , “Some Observations on the Arbitral Award in the Taba Case” (1989) 23 Is. L.R. 1–25 CrossRefGoogle Scholar.

19 These are markers used for surveying purposes.

20 It may be recalled that Pillar 88 was a new additional pillar. So the 1987 Pillar 90 was, in 1906, number 89. This meant that, if the Parker pillar was No. 91 - as the Wade Report suggested - there had to be, on the 1906 numbering, an additional pillar before Parker, and numbered 90. This, Egypt argued, had to be what, by the 1987 numbering, Egypt described as BP 91 (E).

21 Israel itself produced an oral witness, a former Army Officer, who testified to having seen a pillar at the location of BP 91 (E) when Israeli forces occupied Taba in 1967.

22 Israel produced during the oral hearings photographs, taken during the 1950's and lodged in Israeli archives, which showed two pillars along the ridge above Taba, and which could only be the Parker pillar and BP 91 (E).

23 Para. 235. Professor Lapidoth's dissent rejects this principle. She argues that any replacement of the original telegraph poles could not be part of the demarcation process (paras. 25-28), and in any event the treaty text - the delimitation - must prevail over the demarcation in the event of conflict (paras. 31-36).

24 It must be remembered that Egypt had not been in possession of Taba, or familiar with the locality, since 1957 when UNEF assumed positions on the Egyptian side of the boundary, and Egyptian forces withdrew.

25 Para. 242.

26 Professor Lapidoth rejected this view, arguing that in 1986 there was no difficulty about locating Parker on that ground. But would not that have required Israel, first, to have told Egypt about the removal of the cliff?

27 See Professor Lapidoth's dissent, para. 165.

28 As indicated above, the author was Counsel for Egypt.

29 Some of these allegations related to the year 1960, when UNEF was involved. In relation to BP 91, of which Egypt claimed to have found remnants at BP 91 (E), Egypt based these allegations on an article by Ran Edelist, in Monitin magazine, Tel Aviv, January 1986 Google Scholar. Israel's own witnesses gave testimony that a pillar stood on the location of BP 91 (E) when Israel occupied Taba in 1967, and, since Israel remained in occupation thereafter, that pillar must have been removed by Israel or with its knowledge.

30 Egypt was able to show that the post-1982 Israeli Maps showed the boundary to be aligned differently from the pre-1982 Israeli Maps, raising the inference that the maps had changed to support Israel's claim in the arbitration.

31 These allegations related to photographs produced by Israel, not in the written pleadings, but at the beginning of the oral arguments. The Tribunal commented on this Egyptian allegation at para. 13, but did not appear to be influenced at all by the allegation.

32 That is the tardy revelation of the non licet argument.

33 In particular, by not having disclosed the alterations to the terrain at Ras Taba until after Egypt had produced photographs of the Parker pillar, and by not itself producing those same photographs although Israel clearly had possession of them.

34 This related to the feeling that Egypt had been tricked into agreeing to describe BP 91 (E) as the “final” pillar, when Israel had evidence of a further pillar, the Parker pillar, closer to the shore.