Academic journal article Houston Journal of International Law

The Role of Arbitration in Political Settlement: Taba and the Egypt/israel Treaty of Peace

Academic journal article Houston Journal of International Law

The Role of Arbitration in Political Settlement: Taba and the Egypt/israel Treaty of Peace

Article excerpt





In June 1985, my then boss, Secretary of State George P. Shultz, asked me to lead an effort by the United States to assist the governments of Egypt and Israel to resolve their international border at Taba. The Egypt/Israel Treaty of Peace, signed on March 26, 1979, provided that Israel would withdraw to the "recognized international boundary" between Egypt and Mandated Palestine. (1) Israel's withdrawal was completed on April 25, 1982 except for nine small areas where the location of fourteen boundary pillars remained in dispute, running from the west of Eilat down to Wadi Taba's beach at the Gulf of Aqaba. (2) The Treaty provided that the parties should resolve these unsettled issues through conciliation or arbitration. (3)

The disputed pillars were in desolate areas, except for about 500 meters along the beach where the five-star Aviya Sonesta Hotel had been built in the 1980s by an Israeli entrepreneur, Elias Papoushado, and to its south where a beach club and pub, owned by another Israeli, "Rafi" Nelson, were located. The hotel was fancy and bourgeois; the beach club had nude bathing.

Many articles concerning the Taba arbitration have been published since the Tribunal issued its Award on September 29, 1988. (4) They follow a familiar pattern. They note that the two States agreed to arbitrate on September 11, 1986 before a tribunal of five arbitrators: Professor Hamid Sultan and Professor Ruth Lapidoth, nominated by Egypt and Israel respectively; Judge Pierre Bellet, former Premier President of France's Cour de Cassation; Professor Dietrich Schindler of the University of Zurich; and Judge Gunnar Lagergren of Sweden as Chair. (5) They then describe the issues involved, the arguments made, the Tribunal's rulings, (6) and the fact that Israel withdrew from the Taba area on March 15, 1989. (7)

The Parties authorized the Tribunal to choose between their positions regarding fourteen pillars, including Pillar No. 91, located somewhere near the shore. (8) Both Parties agreed that the "permanent boundary" between Egypt and Israel is "the recognized international boundary between Egypt and the former mandated territory of Palestine." (9) The Tribunal decided that the "critical" period for determining the boundary was during the Mandate and thereafter. (10) Based on pictures and other evidence, the Tribunal concluded that, while not "intervisible," the pillar identified by Egypt as Pillar 91 and the "Parker pillar," both to the north of the hotel, were closer to the boundary recognized during that period than the "intervisible" options presented by Israel, both to the south of the hotel. (11) The Tribunal refused to consider evidence Israel introduced that the proper boundary was where it should have been located in 1906, when Egypt and the Ottoman Empire agreed on a border between Egypt and Palestine in the form of "intervisible" pillars, and which Britain had informed Egypt in 1926 it did not intend to alter. (12)

Israel also contended that the point chosen by the Tribunal could not be the place of the "final pillar" identified in the compromis, as it was not "at the point of Ras Taba on the western shore of the Gulf of Aqaba." (13) That observation was factually correct, but the Tribunal disregarded that requirement, concluding that it should rule in favor of the line closest to that sought to be determined, rather than leaving the dispute unresolved. (14) As for the other disputed pillar points, the Tribunal, on the basis of drawing straight lines, awarded nine to Egypt and four to Israel. (15) Professor Lapidoth dissented on the ground that the 1906 Agreement should control, and that only the points proposed by Israel for the final pillar were intervisible with the neighboring pillar; she also supported Israel's proposed location of pillars at Ras el Naqb. …

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