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Case Concerning the Location of Boundary Markers in Taba Between Egypt and Israel

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Case Concerning the Location of Boundary Markers in Taba Between Egypt and Israel REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES Case concerning the location of boundary markers in Taba between Egypt and Israel 29 September 1988 VOLUME XX pp. 1-118 NATIONS UNIES - UNITED NATIONS Copyright (c) 2006 PARTI Case concerning the location of boundary markers in Taba between Egypt and Israel Decision of 29 September 1988 Affaire concernant l'emplacement des balises frontalières à Taba, entre l'Egypte et Israël Sentence du 29 septembre 1988 CASE CONCERNING THE LOCATION OF BOUNDARY MARKERS IN TABA BETWEEN EGYPT AND ISRAEL 29 SEPTEMBER 1988 Critical period for which the location of boundary markers represents legal boundary between the States—Critical period in respect of appropriate evidence—Suc- cession of States to territory—Estoppel—Acquiescence and de facto agreement—Con- duct of a party as evidence of its acquiescence—Conduct of both parties as evidence of their acquiescence—The principle of stability of boundaries—Relevance of events subsequent to the critical period. Decision of the Tribunal in the absence of conclusive evidence and on the basis of "better" claim—"Preponderance of evidence" rule—Relevance of maps to determining boundary markers—Inconsistency between existing boundary line and the description of such line in a boundary agreement—Evidentiary value of publications—The absence of intended intervisibility in the boundary markers—The principle of non licet—Execution of the award—The powers of the Tribunal. TABLE OF CONTENTS Paras. I. THE ARBITRAL PROCEEDINGS A. Introduction 1-3 B. The Principal Provisions of the Compromis and their Implemen- tation 4-19 C. The Factual Background of the Dispute 20-108 1. Introduction 20-22 2. The Taba Crisis of 1906 23-32 3. The Delimitation and Demarcation of the 1906 Line 33-58 a. Negotiations and Survey 33-44 b. The 1 October 1906 Agreement 45-51 c. The Demarcation of the Line 52-58 4. The Subsequent History of the Separating Line 59-104 a. The Pre-Mandate Period (1907-1923) 59-70 b. The Mandate Period (1923-1948) 71-83 c. The Post-Mandate Period (1948-1982) 84-104 5. The Parker Pillar 105-108 D. Contentions of the Parties 109-163 1. Egypt's Contentions 109-140 2. Israel's Contentions 141-163 II. REASONS FOR THE AWARD A. Preliminary Issues 164-181 1. The Task of the Tribunal 164-177 4 EGYPT/ISRAEL Paras. a. Meaning of the phrase "the recognized international bound- ary between Egypt and the former mandated territory of Palestine" 169-175 b. Restrictions imposed upon the Tribunal concerning the locations advanced by the Parties 176-177 2. The Admissibility of Egypt's Claim for BP 91 178-181 B. The Fourteen Pillar Locations 182-245 1. The Nine Northernmost Pillars 182-187 a. Boundary Pillar 7 188 b. Boundary Pillars 14 and 15 189-190 c. Boundary Pillar 17 191 d. Boundary Pillar 27 192 e. Boundary Pillar 46 193 f. Boundary Pillars 51 and 52 194-195 g. Boundary Pillar 56 196 2. Boundary Pillars 85, 86, 87 and 88 197-213 a. Boundary Pillars 85, 86 and 87 198-199 (i) Do the locations of the existing pillars contradict the 1906 Agreement? 200-208 (ii) The legal situation in case of contradictions between existing pillar locations and the 1906 Agreement 209-211 b. Boundary Pillar 88 212-213 3. Boundary Pillar 91 214-245 a. Israel's Alternative Locations 217-225 b. Egypt's Location 226 (i) Periods during which boundary pillars were in existence at the Parker site and at the site of BP 91(E) 227-229 (ii) The argument that Parker had no authority to take part in the demarcation process and that the Parker pillar was wrongly located 230-233 (iii) The argument that BP 91(E) was a trig point erroneously marked as a boundary pillar 234-235 (iv) The argument that neither BP 91(E) nor the Parker pillar was intervisible with BP 90 236-237 (v) The argument that BP 91(E) is not "the final pillar" nor "at the point of Ras Taba on the western shore of the Gulf of Aqaba" and the question of non licet 238-244 c. Conclusion 245 C. Execution of the Award 246-250 Pages DISPOSITIF 130-131 Dissenting Opinion of Prof. Ruth Lapidoth 133-213 Table of Contents 133-134 Appendix A: The Arbitration Compromis of 11 September 1986 215-225 Appendix B: The 1 October 1906 Agreement 227-229 Appendix C: General Area Map 231 Appendix D: Southern Portion of the Map included with the Compromis .. 232 CASE CONCERNING BOUNDARY MARKERS IN TABA 5 AWARD In the Dispute Concerning Certain Boundary Pillars between the Arab Republic of Egypt and the State of Israel Representatives of the Arab Republic of Egypt: Ambassador Nabil Elaraby Agent for the Arab Republic of Egypt Ambassador Ahmed Maher El-Sayed Deputy Agent for the Arab Republic of Egypt, Director, Legal and Treaties Department, Ministry of Foreign Affairs Ambassador Mohab Mokbel Deputy Agent for the Arab Republic of Egypt Professor Derek Bowett, Q. C. Counsel and Advocate Sir Ian Sinclair, Q. C. Counsel Professor Talaat El-Ghoneimy Counsel Professor Ahmed El-Koshiery Counsel Professor Georges Abi-Saab Counsel Mr. Samih Sadek Counsel Professor Mofeed Shehab Counsel Professor Salah Amer Counsel Dr. Amin El-Mahdy Legal Counsellor Mr. Fathy Naguib Legal Counsellor Professor Nicolas Valticos Advisor Mr. Walter Sohier Advisor Professor Yuonan Rizk Expert Major-General Khairy El-Shamaa Military Advisor Colonel Mohammed El-Shenawy Military Advisor Mr. Ahmed Fathallah First Secretary, Egyptian Mission in Geneva 6 EGYPT/ISRAEL Mr. Waguih Hanafî Assistant to the Agent Mr. Mohammed M. Gomaa Assistant to the Agent Mr. Mahmoud Sami Attaché, Ministry of Foreign Affairs Miss Gehanne Tewfik Mr. Bill Harper Miss Cheryl Dunn Representatives of the State of Israel: Mr. Robbie Sabel Agent for the State of Israel Mr. Raphael Walden Deputy Agent for the State of Israel Mr. Elihu Lauterpacht, Q. C. Counsel and Advocate Professor Nissim Bar-Yaacov Counsel Professor Yehuda Z. Blum Counsel Professor Yoram Dinstein Counsel Ambassador Shabtai Rosenne Counsel Mr. Abraham Tamir Director General, Ministry of Foreign Affairs Mr. David Kornbluth Assistant Agent for the State of Israel Mr. Benjamin Rubin Assistant Agent for the State of Israel Dr. Ron Adler Adviser Professor Amnon Cohen Adviser Mr. Jon Kimche Adviser Mr. Felix Mizrachi Adviser Dr. Elchanan Oren Adviser Professor Shalom Reichman Adviser Brigadier-General Oren Shachor Adviser CASE CONCERNING BOUNDARY MARKERS IN TABA 7 Colonel Joel Singer Adviser Brigadier-General (retd.) Dov Sion Adviser Lieutenant Colonel Haim Srebro Adviser Mr. Gershon Steinberg Adviser Dr. Mala Tabory Adviser Mr. Michael P. Wallace Adviser Mrs. Ora Seidner Coordinator Mrs. Shirley Rainbow Secretary The Tribunal, composed of Gunnar Lagergren, President Pierre Bellet, Dietrich Schindler, Hamed Sultan, and Ruth Lapidoth, delivers the following Award: I. THE ARBITRAL PROCEEDINGS A. Introduction 1. The Arab Republic of Egypt ("Egypt") and the State of Israel ("Israel") concluded a Treaty of Peace on 26 March 1979. Article I of the Treaty of Peace provides that: "1. The state of war between the Parties will be terminated and peace will be established between them ..." and "2. Israel will withdraw all its armed forces and civil- ians from the Sinai behind the international boundary . and Egypt will resume the exercise of its full sovereignty over the Sinai." Article II of the Treaty of Peace establishes that the permanent boundary between Egypt and Israel is "the recognized international boundary between Egypt and the former mandated territory of Palestine". 2. A Joint Commission was established pursuant to Article IV of the Treaty of Peace for the purpose of, among other functions, "organ- izing] the demarcation of the international boundary" as set forth in Article IV(3) (d) of the Appendix to Annex I to the Treaty of Peace. In the course of the Joint Commission's work relating to the demarcation of the international boundary, the precise locations of some of the nearly 100 pillars demarcating the boundary line could not be agreed upon prior to 25 April 1982, the date established pursuant to Annex I to the Treaty 8 EGYPT/ISRAEL of Peace for the final Israeli withdrawal behind the international bound- ary. On 25 April 1982, the Parties agreed to submit the remaining technical questions concerning the international boundary "to an agreed procedure which will achieve a final and complete resolution, in conformity with Article VII of the Treaty of Peace". In the interim, each Party agreed "to move behind the lines indicated by the other". 3. Article VII of the Treaty of Peace provides that: 1. Disputes arising out of the application or interpretation of this Treaty shall be resolved by negotiations. 2. Any such disputes which cannot be settled by negotiations shall be resolved by conciliation or submitted to arbitration. Negotiations between the Parties, assisted through the mediation of representatives of the United States of America as contemplated by the 25 April 1982 Agreement, did not result in any agreement. The Parties then agreed on 11 September 1986 to submit to arbitration their differ- ences regarding the location of fourteen of the boundary pillars demar- cating their international boundary between a point on the coast of the Mediterranean Sea near Rafah to a point called Ras Taba on the western shore of the Gulf of Aqaba. The Parties also agreed that the locations of two other disputed pillars depended directly on the decision made by the arbitral tribunal regarding neighbouring disputed pillars. B. The Principal Provisions of the Compromis and Their Implementation 4. The Arbitration Compromis of 11 September 1986 provided for the establishment of the Tribunal and identified its five Members: Ruth Lapidoth, nominated by the Government of Israel, Hamed Sultan, nominated by the Government of Egypt, Pierre Bellet, Dietrich Schind- ler, and Gunnar Lagergren, named as President of the Tribunal.
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