The role of history’

State practice and, of course, historical precedence are the two categories most dependent on history. The former refers both to past actions by states that reflect the ways in which they may have expressed their views on sovereign control of specific territories in the past, often during colonialism and the construction of precedent and treaty to codify international legal practice. It includes concerns sttch as effectivité - the degree to which a state may have effectively occupied and controlled a specific territory - and the explicit agreements by which international law has managed the process of political change. Two classic examples of the latter process have been United Nations General Assembly Resolution 1514

(XV) of 1960, which established self-determination as a mechanism for the devolution of territorial sovereignty to independent states as colonialism ended (A/ RES/1514(XV)) and the Organisation of African Unity’s Cairo Declaration of 1964, which, by mobilising uti possidetis juris, established the principle that governed the decolonisation of Africa (AHG/Res. 17(I)).3 Historic precedence speaks for itself, but it can prove to be a decisive factor in establishing the extent of sovereign control that a state is recognised to possess, as the following examples demonstrate.

Israel and Egypt

Thus the Israel-Egyptian dispute over the Taba enclave on the border between the two states turned on historical evidence of the location of boundary markers established as part of the Ottoman-Egyptian boundary demarcation of 1906 and the history' of what happened to it after 1967. The original boundary demarcation had consisted of a series of stone marker pillars which, in its southern reaches before the Grtlf of Aqaba, had followed the line of a wadi bed with the mouth of the wadi, as it debouched onto the Straits, being on the Egyptian side of the border. In 1967, the area, as part of Sinai, fell under Israeli control until the 1980s when Egypt and Israel signed a peace agreement and Israel returned frill sovereign territorial control to Egypt in late April 1982 (Kliot 1995: 9). A dispute remained, however, over the Wadi Taba enclave on the coast, as the border posts there, it claimed, had disappeared.

Israel was subsequently to claim that the border should have been demarcated in the flood plain, actually on the wadi itself, but, because of the danger of the final marker (No. 91 - the Parker Pillar) being washed away, it was moved eastwards to the hilly bank of the wadi - apparently a common practice in border demarcation at the time. Furthermore, over time, many of the pillars had crumbled and disappeared, as had been noted as early as 1956 including, it was alleged after 1967, the final pillar, so that concrete evidence of the location of the border no longer-existed. Israel also claimed that since the original border treaty had required that the border pillars had to be intervisible - which would not have been the case with Pillars 91 and 90, as a small hill would have obscured the view - Pillar 91 must have been along the southern edge of the enclave.

This was a suggestion that Egypt rejected, insisting that the border had run along the northern edge of the wadi - as had been shown on all Egyptian and Israeli maps up to 1967; thereafter, Israeli maps showed the border as being along the southern edge of the enclave. As neither state would concede, at the start of 1986, the dispute was referred to an arbitral tribunal, which decided in Egypt’s favour at the end of May 1988, and Israel withdrew from the enclave in mid-March of 1989 (Kliot 1995: 20). The key evidence had emerged during the arbitration proceedings when a contemporary' photograph, taken during the actual demarcation of the boundary, was discovered in the archives of the Palestinian Exploration Fund showing the location of the Parker Pillar in 1906 as being on the northern bank of the wadi.

Kuwait and Iraq

Another example of the importance of the historical record is provided by the demarcation of the land border between Iraq and Kuwait by the United Nations, an arbitration that was accepted by treaty agreement in the wake of the expulsion of Iraq from Kuwait in 1991 (Joffe 2017: 11-12). The boundaries of Kuwait had initially been determined by the Anglo-Ottoman draft convention of 1913 (a draft treaty only because the Frist World War broke out before the convention could be ratified). The treaty was drawn up at British insistence as a means by which the southward expansion of Ottoman and hence German influence could be restrained, for the Berlin-to-Baghdad railway was to terminate in Kuwait which, until then, had been a state virtually independent of its titular ruler in Istanbul and under British influence instead (Finnie 1992: 7).

The territory over which the ruler of Kuwait was to have ‘complete administrative authority’ was defined as a semicircle with Kuwait city at its centre (Article 5) and was to comprise all the territories of the original Ottoman ka:a (sub-district). Surrounding it, however, was a further zone in which the ruler could exert the authority of an Ottoman qa 'iniakan. This would mean that the territory so defined would still be subordinate to the Ottoman authorities, despite the ruler’s administrative authority within it, for which tribute would have to be paid to them. The border between this zone and the Ottoman wilayat of Basra would eventually become Kuwait’s international border with Iraq (Finnie 1992: 32). Ottoman claims to Qatar and Bahrain were renounced in the convention,4 but both entities, now under British protection, were defined in relationship to the Ottoman sanjak (district) of the Najd, later to become Saudi Arabia (Hure-witz 1956: 269-272).

Where there were no such borders, the imperial powers - mainly Britain - imposed them, as the history of the Uqair Protocol demonstr ates. After taking up its mandate in the new Iraq in 1920, Britain provisionally established what the southern border of its new possession with the Sultanate of the Nejd (later Saudi Ar abia) would be. Tire British proposal was agr eed in general terms hr the Treaty of Muhammarah on 5 May 1922 but a precise delimitation remained to be undertaken. Sri Percy Cox, Britain’s High Commissioner in Iraq, forced the issue by calling together a conference between the Iraq mandate authorities and representatives of the Sultanate at Bandar al-Uqair in November 1922. Kuwait, as an interested party, was represented by its British political agent, Major J. C. More, who seems to have been hi some awe of Sir Percy Cox since he apparently took no active part in the proceedings, to the Kuwaiti emir’s subsequent disadvantage. After six days of discussion, the Commissioner peremptorily wound the proceedings up by conceding to Saudi demands, which involved sacrificing two-thirds of Kuwaiti territory as allocated in the 1913 Anglo-Ottoman dr aft convention, partly in the form of two neutral zones, the southern one to be shared in terms of sovereignty between Kuwait and the Sultanate and the western one divided between Iraq and Kuwait (Lauterpacht, Greenwood and Weller 1991: 47-49).

The Kuwaiti emir had not been consulted but was forced to accept this dismemberment of his territory on the grounds that his influence amongst the desert tribes had waned as a result of the aggressiveness of the expanding Nedji sultanate, now Britain’s preferred partner in the peninsula. Any attempt to thwart Saudi demands, Sir Percy Cox told him, would have resulted in a far worse outcome - as had almost occurred in 1920 when Britain had had to intervene to avoid the emirate being overrun by the Saudi Ikliwan. He was eventually consoled when the British-controlled Iraqi authorities acquiesced without demur in his claim for the northern boundary of Kuwait with Iraq, as had been laid down in the 1913 draft convention (Lauterpacht. Greenwood and Weller 1991: 49). The actual demarcation was performed by the political agent from Kuwait and the British representative in Basra by means of a wood post located ‘ 1 kilometre south of the most southerly palm trees in Iraq’. However, this, over the years, steadily migrated southwards as more palm trees were planted in Iraq until by the 1960s Kuwait’s territory' had, once again been significantly diminished (Schofield 1991; Schofield 1993)!

Libya and Chad

Dispute resolution over boundary location and territorial extent, however, often also highlights the innate conservatism of the International Court of Justice and arbitral tribunals in decisions on boundaiy delimitation. A good example of this is provided by the dispute between Libya and Chad over the sovereign control of the Aozou Strip, heard by the International Court of Justice between September 1990 and the begriming of February 1994 when its judgement was handed down. Libya’s claim to the Strip - a portion of land 100 km deep and 800 km long abutting the Libyan-Chadian frontier - was argued in terms of detailed historical evidence on the basis of uti possidetis juris involving the presence in Chad of the Sanusi Order, a Libyan-based religious movement which had acted as a government of a quasi-state in Libya in the nineteenth centmy (Joffe 1996: 25-41). Chad, on the other hand, although challenging Libya’s historical claims, essentially based its argument on the Treaty of Good Neighbourliness and Friendship which the then Libyan government had signed with France (then the dominant colonial power in Chad) in 1956. The Court acquiesced in Chad’s argument, preferring legal and diplomatic precedent over innovative historical insight!

Tunisia and Libya

Indeed, the danger of innovation, particularly in the colonial era, was all too clearly demonstrated during a much earlier boundaiy delimitation, that between France and the Ottoman Empire over the border between Tunisia and Libya. The actual demarcation took place after the Tripoli Conference in 1910, but there was a previous attempt to establish the boundaiy in 1893 at Zuwara in Libya, and it is the negotiations that occurred during that event that is of interest to us here. That conference had been preceded, ever since France had occupied Southern Tunisia during 1882, by endless cross-border raiding and violence as the French tried to impose a strict border control over a zone that had really been a traditional border march transgressed by local populations and trade routes. French officials not only confronted the resentments of the local transhumant tribes at their attempts to deny access to Tunisia for the tribes and traders, they also had to deal with the incomprehension of their Tunisian and Libyan counterparts who also saw the border inarch as a place of economic and social encounter, not of isolation, not least because local tribes owned land and pasture on both sides of the putative border and were therefore taxed by both administrations (Joffé 1982: 34-35).

For the French army and administration in Tunisia, however, the idea of a permeable border was anathema, despite its traditional socio-economic role as a border march. As a result, in 1883, the French garrison in Tataouine determined that the Wadi al-Muqta from Dehibat, terminating on the coast at Ras Ajdir, would be the most useful physical feature to establish an impermeable border across the Jafara Plain, although the Ottoman administration claimed that the border should lie further to the west, running from Remada to the Bibane lagoon on the coast via Ben Gardane. Paul Cambon, to be French ambassador in Istanbul from 1890 until 1898, wanted it to run from Ras Ajdir across the Jabal Nafusa to Ghadames, but that was for the future. Tire French army in Tataouine, however, was not prepared to wait and, by 1887, had sufficiently intimidated the local Ottoman administration to be able to move its forces up to the chosen line, the Wadi al-Muqta (Martel 1965: 541-548) - which is, in fact, the boundary between Tunisia and Libya today.

All that now remained was for this borderline to be recognised by treaty and demarcated. As a result, a conference between an Ottoman and a French delegation was arranged at the Libyan border town of Zuwara between 18 March and 13 April 1893. The conference proceedings bore all the hallmarks of a French diktat -sovereignty was to be demonstrated, not by evidence of possession of territory but by to which authority ‘ashur taxation on the produce from such land was paid. Since the French army had interrupted all cross-border movement, the outcome would have been self-evident (Joffé 1982: 37). hr the event, however, the conference failed to achieve its objective because a false document was presented as evidence.

A few days after the conference had begun, Ramadhan also started so that the sessions had to be held at night and the Ottoman delegation presented a decree of the seventeenth-century' Tunisian bey. Harnouda Pasha, which, it was claimed, revealed that the boundary' had been established before 1881 on the line from Remada to Bibane. The following day, with the aid of daylight, the French delegation was able to establish that the alleged decree was a forgery, consisting of two documents which had been cut and then glued together, one relating to a genuine beylical decree but the other to local landownership limits masquerading as a statement about sovereign control. Although the document had to be withdrawn, the Ottoman delegation was obdurate in refusing to accept French cartographic evidence of the traditional location of the boundary, and it was only seventeen years later, in 1910, that the border was finally demarcated along the lines that France had determined 24 years before, in 1887 (Martel 1965: 551-553).

 
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