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Lawyers and other representatives

Decision

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 civilians 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-izfing] 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 of Peace for the final Israeli withdrawal behind the international boundary. 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 differences regarding the location of fourteen of the boundary pillars demarcating 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 Schindler, and Gunnar Lagergren, named as President of the Tribunal. The Tribunal first met in Geneva, Switzerland on 8 December 1986 at Le Saugy in Genthod and was formally constituted on 10 December 1986 in the Alabama Room of the Hôtel de Ville of the Republic and Canton of Geneva in the presence of the Agents for the Parties and certain invited guests. Basic procedural questions were resolved during the first, second, and third meetings of the Tribunal on 8, 9, and 10 December 1986, including the timetable for the submission of the written pleadings and the appointment of Professor Bernard Dutoit of the University of Lausanne as temporary Registrar of the Tribunal.
5.
Article VIII, paragraph 3, of the Compromis provides that:

The proceedings shall consist of written pleadings, oral hearings and visits, to sites which the Tribunal considers pertinent, in accordance with the following schedule:

(A) The written pleadings shall include the following documents:

(i) A memorial, which shall be submitted by each party to the Tribunal within 150 days of the first session of the Tribunal, and

(ii) A counter-memorial, which shall be submitted by each party to the Tribunal within 150 days of the exchange of memorials, and

(iii) A rejoinder, if a party, after informing the other party, notifies the registrar within 14 days of the exchange of counter-memorials of its intention to file a rejoinder. In the event of such notification by one party, the other party shall also be entitled to submit a rejoinder. The rejoinders shall be submitted to the Tribunal within 45 days of the notification...

(B) The oral hearings and the visits shall be conducted in such order and in such manner as the Tribunal shall determine. The Tribunal shall endeavor to complete its visits and the oral hearings within 60 days of the completion of the submission of the written pleadings...

6.
In accordance with this Article, the Parties exchanged their Memorials on 13 May 1987 in the presence of the President and the temporary Registrar. Pursuant to Article V of the Compromis, and during August 1987, the President appointed as Registrar Douglas Reichert, Member of the Bar of the State of California and presently located in Geneva. The Counter-Memorials were exchanged on 12 October 1987 in the presence of the Tribunal and the Registrar, convened for the occasion to discuss procedural matters related to the schedule of the visit and the hearing. By the drawing of a lot, it was determined that Egypt would present first its oral arguments at the hearing, followed by Israel. At the joint request of the Parties, Rejoinders were submitted on 1 February 1988 in the presence of the Tribunal and the Registrar, convened to finalize the schedule for the remainder of the proceedings. The various written pleadings were accompanied by Annexes, including maps, documents, and two models.
7.
The Tribunal conducted a visit to selected sites within the disputed areas on 17 February 1988. The Tribunal’s visit itinerary was established in consultation with the Parties. Air and ground transportation within the disputed areas was provided by the Multinational Force and Observers (MFO), an organisation established by the Parties pursuant to the Treaty of Peace and charged, inter alia, with maintaining security in the Taba area pursuant to Article XI of the Compromis.
8.
In parallel with the Tribunal’s activities during the written phase of the proceedings, a Chamber was constituted pursuant to Article IX of the Compromis to "explore the possibilities of a settlement of the dispute." Article IX provides:

1. A three-member chamber of the Tribunal shall explore the possibilities of a settlement of the dispute. The three members shall be the two national arbitrators and, as selected by the President of the Tribunal sometime before the submission of the suggestions, one of the two non-national arbitrators.

2. After the submission of counter-memorials, this chamber shall give thorough consideration to the suggestions made by any member of the chamber for a proposed recommendation concerning a settlement of the dispute. Suggestions based upon the memorials, the counter-memorials, and other relevant submissions shall be presented to the chamber commencing from the month immediately preceding the counter-memorials. The chamber shall thereafter consider these suggestions, and the counter-memorials, during the period after submission of the counter-memorials until the completion of the written pleadings. Any proposed recommendation concerning a settlement of the dispute which obtains the approval of the three members of the chamber will be reported as a recommendation to the parties not later than the completion of the exchange of written pleadings. The parties shall hold the report in strictest confidence.

3. The arbitration process shall terminate in the event the parties jointly inform the Tribunal in writing that they have decided to accept a recommendation of the chamber and that they have decided that the arbitration process should cease. Otherwise, the arbitration process shall continue in accordance with this Compromis.

4. All work pursuant to the above paragraphs absolutely shall not delay the arbitration process or prejudice the arbitral award, and shall be held in the strictest confidence. No position, suggestion, or recommendation, not otherwise part of the presentation of a party’s case on the merits, shall be brought to the attention of the other members of the Tribunal, or be taken into account in any manner by any of the members of the Tribunal in reaching their arbitral decision.

9.
The Chamber was composed of the two national arbitrators, Hamed Sultan and Ruth Lapidoth, and Pierre Bellet, who was selected by the President on 1 September 1987. The Chamber convened following the exchange of the Counter-Memorials on 12 October 1987, appointed Mr. Bellet as its Chairman, and empowered him to meet with the Agents of the Parties separately and together. The Chamber met on 13 October 1987, 6-7 January 1988, and 3 February 1988 following meetings between the Chairman and the Agents for the Parties.
10.
Since the Compromis provides that the mandate of the Chamber expired with the "completion of the written pleadings", and in order to permit the Chamber to take into consideration the arguments contained in the Rejoinders, an arrangement was made with the Parties that they should informally exchange their Rejoinders on 1 February 1988 as decided, but that the formal filing, and hence the completion of the written pleadings, be extended until 1 March 1988.
11.
On 1 March 1988, the Chairman of the Chamber informed the President of the Tribunal and the Agents of the Parties that the Chamber regretted not having been able to propose to the Parties any recommendation for a settlement of the dispute, despite their efforts to find a reasonable proposal which might be acceptable to both Parties.
12.
The oral arguments were heard in private during two rounds from 14 March to 25 March 1988 and from 11 April to 15 April 1988 in the Salle du Grand Conseil and in the Alabama Room of the Hôtel de Ville in Geneva. At the opening of the hearing, a short video film was presented by Israel. During the hearing, 13 witnesses gave testimony, 10 presented by Egypt and 3 by Israel. One additional witness for Egypt, unable to attend the hearing for health reasons, provided, with the leave of the Tribunal, an affidavit concerning his testimony.
13.
A number of additional maps, photographs, and documents were introduced during the hearing by both Parties with the consent or at the request of the Tribunal. In response to the testimony of an expert witness for Egypt that one of the photographs submitted by Israel might not be authentic, Israel requested leave to introduce additional witnesses in order to testify with regard to the authenticity of the series of photographs in question. The Tribunal considered the question but decided, with one Member dissenting, that there was no reason at the time to grant the request. The original print of the questioned photograph was later submitted for inspection by the Tribunal and no further action was taken.
14.
The Tribunal wishes to commend the Parties for the spirit of cooperation and courtesy which permeated the proceedings in general and which thereby rendered the hearing a constructive experience.
15.

In connection with its present task, the Tribunal notes the following important provisions of the Compromis and related documents regarding the functions of the Tribunal and the rendering of its Award.

Article II

The Tribunal is requested to decide the location of the boundary pillars of the recognized international boundary between Egypt and the former mandated territory of Palestine, in accordance with the Peace Treaty, the April 25, 1982 Agreement, and the Annex.

Article VIII, paragraph 1

The Tribunal shall apply the provisions of this Compromis.

Article XI

1. In accordance with the provisions of the agreement of 25 April 1982:

(A) Egypt and Israel agree to invite the MFO to enter Taba and maintain security therein through the establishment of an observation post in a suitable topographic location under the flag of the MFO in keeping with the established standards of the MFO. Modalities for the implementation of this paragraph have been discussed and concluded by Egypt and Israel through the liaison system before the signature of the Compromis. The interpretation and implementation of this paragraph shall not be within the jurisdiction of the Tribunal.

(B) During the interim period any temporary arrangements and/or any activities conducted shall not prejudice in any way the rights of either party or be deemed to affect the position of either party or prejudge the final outcome of the arbitration in any manner.

(C) The provisions of the interim period shall terminate upon the full implementation of the arbitral award.

2. The Tribunal shall have no authority to issue provisional measures concerning the Taba area.

16.
The relevant provisions of the Treaty of Peace were noted above in the Introduction.
17.
The 25 April 1982 Agreement provides:

Egypt and Israel agree on the following procedure for resolving the remaining technical questions concerning the international boundary, in conformity with all the relevant provisions of the Treaty of Peace, which they have been unable to resolve through negotiations. Egypt and Israel agree that these questions shall be submitted to an agreed procedure which will achieve a final and complete resolution, in conformity with Article VII of the Treaty of Peace. Pending conclusion of the Agreement, each party agrees to move behind the lines indicated by the other. The parties agree to request the Multinational Force and Observers to maintain security in these areas. In the interim period, activities which have been conducted in these areas shall continue. No new construction projects will be initiated in these areas. Meetings will be held between Egypt and Israel to establish the arrangements which will apply in the areas in question, pending a final determination of the boundary demarcation questions. Representatives of the United States Government will participate in the negotiations concerning the procedural arrangements which will lead to the resolution of matters of the demarcation of the International Boundary between Mandated Palestine and Egypt in accordance with the Treaty of Peace, if requested to do so by the Parties. The temporary arrangements hereby or subsequently established and the activities conducted pursuant thereto shall not be deemed to affect the position of either party, or prejudge the final outcome.

18.
The Annex to the Compromis provides:

1. A dispute has arisen on the location of the following boundary pillars of the recognized international boundary between Egypt and the former mandated territory of Palestine: 7, 14, 15, 17, 27, 46, 51, 52, 56, 85, 86, 87, 88, and 91. The parties agree that boundary pillars 26 and 84 are on the straight lines between boundary pillars 25 and 27, and 83 and 85, respectively, and that the decision of the Tribunal on the locations of boundary pillars 27 and 85 will establish the locations of boundary pillars 26 and 84, respectively. The parties agree that if the Tribunal establishes the Egyptian location of boundary pillar 27, the parties accept the Egyptian location of boundary pillar 26, recorded in Appendix A; and, if the Tribunal establishes the Israeli location of boundary pillar 27, the parties accept the Israeli location of boundary pillar 26, recorded in Appendix A. The parties agree that if the Tribunal establishes the Egyptian location of boundary pillar 85, the parties accept the Egyptian location of boundary pillar 84, recorded in Appendix A; and, if the Tribunal establishes the Israeli location of boundary pillar 85, the parties accept the Israeli location of boundary pillar 84, recorded in Appendix A. Accordingly, the Tribunal shall not address the location of boundary pillars 26 and 84.

2. Each party has indicated on the ground its position concerning the location of each boundary pillar listed above. For the final boundary pillar No. 91, which is at the point of Ras Taba on the western shore of the Gulf of Aqaba, Israel has indicated two alternative locations, at the granite knob and at Bir Taba, whereas Egypt has indicated its location, at the point where it maintains the remnants of the boundary pillar are to be found.

3. The markings of the parties on the ground have been recorded in Appendix A.

4. Attached at Appendix B is the map referred to in Article II of the Treaty of Peace, which provides:

The permanent boundary between Egypt and Israel is the recognized international boundary between Egypt and the former mandated territory of Palestine, as shown on the map at Annex II, without prejudice to the issue of the status of the Gaza Strip. The parties recognize this boundary as inviolable. Each will respect the territorial integrity of the other, including their territorial waters and airspace.

A 1:100,000 map is included in order to permit the indication of the locations of the 14 disputed boundary pillars advanced by the parties and provides an index to Appendix A. The Tribunal is requested to refer to the general armistice agreement between Egypt and Israel dated 24 February 1949.

5. The Tribunal is not authorized to establish a location of a boundary pillar other than a location advanced by Egypt or by Israel and recorded in Appendix A. The Tribunal is also not authorized to address the location of boundary pillars other than those specified in paragraph 1.

19.
In connection with the formulation of its Award, the Tribunal also notes the following further provisions of the Compromis:

Article XII

1. The Tribunal shall endeavor to render its award within 90 days of the completion of the oral hearings and visits. The award shall state the reasons upon which it is based.

2. The award shall be deemed to have been rendered when it has been presented in open session, the agents of the parties being present, or having been duly summoned to appear.

3. Two original copies of the award, signed by all members of the Tribunal, shall immediately be communicated by the President of the Tribunal to each of the agents. The award shall state the reason for the absence of the signature of any member.

4. The Tribunal shall decide the appropriate manner in which to formulate and execute its award.

5. Any member of the Tribunal shall be entitled to deliver a separate or dissenting opinion. A separate or dissenting opinion shall be considered part of the award.

6. The Tribunal shall at the joint request of the parties incorporate into its award the terms of any agreement between the parties relating to the issue.

Article XIII

1. Any dispute between the parties as to the interpretation of the award or its implementation shall be referred to the Tribunal for clarification at the request of either party within 30 days of the rendering of the award. The parties shall agree within 21 days of the award on a date by which implementation will be completed.

2. The Tribunal shall endeavor to render such clarification within 45 days of the request, and such clarification shall become part of the award and shall not be considered a provisional measure under the provisions of Article XI (2) of this Compromis.

Article XIV

1. Egypt and Israel agree to accept as final and binding upon them the award of the Tribunal.

2. Both parties undertake to implement the award in accordance with the Treaty of Pèace as quickly as possible and in good faith.

C. The Factual Background of the Dispute

1. Introduction

20.
During the 19th century and before, the territories of present-day Egypt and Israel were both contained in the Ottoman Empire. However, in 1841, the Sultan conferred upon Mohammed Ali the hereditary Pashalik of Egypt, creating thereby, within boundaries defined by the Sultan, a privileged vassal State within the Empire. Egypt was empowered to administer the territory of Sinai. The precise bounds of this administrative control of territories in Sinai fluctuated during the reign of the first three Khedives and the western limits of the neighbouring Vilayet of Hedjaz were never clearly expressed.
21.
The Suez Canal was opened in 1869. In order to secure the Canal as its route to India, Great Britain occupied Egypt in 1882 without, however, seeking to alter the formal status of the Khediviate as an Ottoman vassal. On 24 October 1885, Great Britain and Turkey concluded a Convention relative to Great Britain’s special status in Egyptian affairs.
22.
Upon the succession of Abbas Hilmi as Khedive in January 1892, the British Agent and Consul General in Cairo, Sir Evelyn Baring (later Lord Cromer), was concerned by the apparent differences between the wording of the Firman of Investiture issued to Abbas Hilmi by the Sultan on 27 March 1892 and that issued to his predecessor. The new Firman made no mention of the Sinai territories administered by the previous Khedives and defined the territory of the Khediviate of Egypt in terms of the line from Rafah to Suez. The Grand Vizier of the Sultan sent a telegram to the Khedive on 8 April 1892, confirming that certain Egyptian garrisons outside of the Sinai, including Aqaba, were to be restored to the Vilayet of Hedjaz, but that the status quo of Khedival administration of the parts of the Sinai lying east of the Rafah-Suez line was to be maintained. It may be noted that the land route across Sinai for the Haj was apparently falling into disuse at the time. Lord Cromer wrote to Tigrane Pasha, the Egyptian Minister for Foreign Affairs, on 13 April 1892 and informed him that Great Britain consented to this confirmation of Egypt’s administration of Sinai, adding his understanding that the Sinai peninsula consisted of "the territory bounded to the east by a line running in a south-easterly direction from a point a short distance to the east of El Arish [which apparently meant Rafah] to the head of the Gulf of Akaba", leaving Aqaba itself in the Vilayet of Hedjaz.

2. The Taba Crisis of 1906

23.
At the end of December 1905, Lord Cromer received intelligence from Constantinople that the Sultan had been informed of Egyptian plans to construct "barracks" on the Sinai frontier near Aqaba and that he had decided to establish a Turkish guardhouse there first. On 2 January 1906, Lieutenant W. E. J. Bramly, the Inspector of Sinai (a title equivalent to Governor), was instructed by the British Acting Director of Intelligence for the area in Cairo, Captain R. C. R. Owen, to form a small post at Naqb el Aqaba. He was informed that he might find that the Turks had already established a post at the spot and that he should avoid a confrontation.
24.
On 10 January 1906, Bramly reported that he had established himself at the foot of the Naqb el Aqaba, in Marashash (present-day Eilat) at the mouth of the Wadi el Arabi near to a well at the head of the Gulf, had met with the Turkish Kaimakam (head of district) at Aqaba, and had ascertained that Turkey was claiming Taba and Kuntilla, both places with water which Egypt considered to be west of the Rafah-Aqaba line asserted by Lord Cromer. Bramly proposed that he and a Turkish representative should demarcate the boundary and that he would thereafter map it, as he had been sketching maps of the area for the War Office and the Palestine Exploration Fund over the previous two years.
25.
On 14 January 1906, Bramly reported that he had met with the Commandant of Aqaba and had decided to return to Nekhl, the main Egyptian garrison in the center of the Sinai, after agreeing to remove his tents at Marashash upon receipt from the Commandant of a written claim by Turkey to the place. He stated that he would observe Turkish actions on the frontier while awaiting further instructions.
26.
Owen then dispatched the Egyptian Coast Guard steamer "Nur el Bahr", with Saad Bey Rifaat, the former Egyptian Commandant at Aqaba prior to 1892, and 50 men to re-occupy the Naqb el Aqaba and, if Bramly thought necessary, Taba also. On 23 January 1906, the Commander of the "Nur el Bahr" wrote to Bramly in Nekhl to inform him that, on their arrival at Taba, they had encountered a Turkish officer who refused them permission to land and had threatened to fire on the ship if they so attempted. The Egyptian force established itself on nearby Pharaon Island instead.
27.
Bramly joined the force at Pharaon and received instructions dated 28 January 1906 from Captain A. C. Parker, the Assistant Director of Intelligence in Cairo, to hold his position but to see to it that nothing in the nature of hostilities should take place. On 14 February 1906, Owen sent Parker to replace Bramly at Pharaon and instructed Bramly to return to Nekhl and resume administration of the Sinai territory since it appeared to him that resolution of the crisis might take some time.
28.
The British Ambassador in Constantinople meanwhile suggested a joint delimitation of the Sinai frontier, but Turkey objected, arguing that it was impossible to change the description of Egyptian territory already effected by the Imperial Firman of Investiture of 1892. Negotiations continued for several months.
29.
On 27 March 1906, Lord Cromer suggested to the Foreign Office in London that the main point had become to achieve withdrawal of Turkish troops from Egyptian territory and that demarcation was now less important. He regretted the absence in the 8 April 1892 telegram from the Grand Vizier mentioned above of any definition of the eastern limit of the Sinai, and referred to his definition given at the time in his letter of 13 April 1892. Lord Cromer then suggested a refinement of that definition, which he felt could be achieved through an exchange of diplomatic notes between Great Britain and Turkey, confirming that the frontier was as defined in his note of 13 April 1892, but describing the limits more precisely as: "the territory bounded to the east by a straight line running from Rafah—a point a short distance east of El-Arish—in a south-easterly direction to a point on the Gulf of Akaba, lying three miles to the west of the existing fort of Aqaba".
30.
Turkey rejected this definition, reserving to itself the right to interpret the 1892 Firman, which spoke only of the Suez-Rafah line as the frontier of Egypt, and the right to revoke at any time the Grand Vizier’s telegram of 8 April 1892 regarding Egyptian administration of the Sinai to the east of the Suez-Rafah line. Turkey argued that Taba was a dependency of Aqaba, and informed the Khedive that it was contemplating the extension of the Hedjaz railway to Aqaba and from thence to Suez. The railway would traverse the Sinai peninsula south of the Suez-Rafah line referred to in the 1892 Firman as constituting the actual limit of Egyptian territory. The Sultan’s special representative, sent to Cairo to settle the dispute, nonetheless suggested a compromise line from El Arish to Ras Mohammed.
31.
These proposals and positions greatly alarmed the British, who viewed the Rafah-Aqaba line as vital to the security of the Canal. Lord Cromer suggested that forceful measures were necessary, but not in the area of the Sinai, in order to persuade the Sultan to accept the British understanding of the Egyptian administrative frontier.
32.
An ultimatum was addressed to the Sultan on 3 May 1906, underscored by a British naval threat to seize certain Turkish islands in the Mediterranean, giving the Sultan 10 days in which to agree to evacuate Taba and to a demarcation of the line from Rafah to the head of the Gulf of Aqaba on the basis of the 8 April 1892 telegram. The Sultan agreed to evacuate Taba and on 13 May 1906 the Turkish forces at Taba were withdrawn. On 14 and 15 May 1906, Great Britain and Turkey exchanged diplomatic notes expressing their agreement "to delimit and record on a map", prepared jointly by representatives of the Sultan and the Khedive, "the line of demarcation running approximately straight from Rafeh in a south-easterly direction to a point on the Gulf of Akaba not less than 3 miles from Akaba".

3. The Delimitation and Demarcation of the 1906 Line

a. Negotiations and Survey

33.
On 22 May 1906, the Khedive appointed Ibrahim Fathi Pasha and Captain Owen as his representatives for the settlement of the frontier between Aqaba and Rafah with the representatives of the Ottoman Government. He gave them full powers to agree to whatever petty changes were deemed necessary to the boundary line, which he described as beginning at "Rafeh, near El Arish, and tak[ing] a southeasterly direction until it ends in a point on the Gulf of Akaba at least 3 miles from Akaba" and that it "should be an approximately straight line".
34.
In May, Mr. E. B. H. Wade and Mr. B. F. E. Keeling from the Survey Department of the Egyptian Ministry of Finance were assigned to accomplish the difficult task of rapidly and accurately charting the territory along the length of the expected frontier line. Owing to the hot desert conditions during the summer months, a triangulation survey was ruled out. Instead, the surveyors decided to conduct their survey by determining the latitude of a number of intervisible points, designated astronomical stations, the azimuth of the lines connecting them, and then to calculate the longitude of each point after ascertaining, as accurately as possible, the longitude of the two end points of this chain of astronomical stations established near to the hypothetical straight line from Rafah to the point at least three miles from Aqaba.
35.
Owen and Fathi Pasha left Cairo on 24 May 1906, joined the surveyors and the "Nur el Bahr" at Suez, and arrived at Aqaba on 26 May 1906. Wade established a site for astronomical observations at Taba, describing it as A.l.
36.
The Egyptian Commissioners had their first meeting in Aqaba with Muzaffer Bey and Fahmi Bey, the two Commissioners appointed by the Sultan, on 27 May 1906. Wade, who had expected to be able to return to Taba on 28 May for his astronomical observations, instead determined the azimuth of a line he made at Aqaba. On the 29th he established his station A.2 near the camp at Aqaba. From A.2 he could see the granite knob at Taba, near to which he had established his station A.1.
37.
Wade finally returned to Taba on 30 May and determined the latitude of his station A.l. On 31 May, he established a station B.1 on the "conspicuous granite knob on shore at Taba", from which he could see A.2, not having been able to see A.2 from A.1.
38.

Meanwhile, on 29 May 1906, all of the Commissioners rode up the Naqb el Aqaba to the head of the pass on to the plateau where the Nekhl-Aqaba and Gaza-Aqaba roads meet. In their initial discussion, the Turkish Commissioners indicated that they were most interested in securing the whole of the Naqb el Aqaba as it was "part of Aqaba" and necessary to its security. Owen reported to Lord Cromer the day of this visit that he thought that "we can without any loss to ourselves give the Turks the Nakb-el-Akaba, provided we hold the head of it... Our frontier line, I think, will then run along the ridge north of Taba in a northerly direction till it reaches a prominent hill (which we have named Jebel Ibrahim) about 1,000 yards from the head of the Nakb-el-Akaba, and from thence to the head of the pass and edge of the plateau.... We, of course, keep Taba, running the boundary line in such a way that no position can command the Wadi-el-Taba, which will be our road down to Taba and so to the Gulf of Akaba."

39.
In one of two Reports of 3 June 1906, Owen further described his proposal for the course of the line in the area of the Naqb el Aqaba. He "proposed that the boundary-line should commence on the Gulf of Akaba at Ras Taba, that is at the point where the ridge north of Taba meets the sea, thence along ridge in a north-westerly direction up to a certain fixed point, thence north-east, south of Jebel Ibrahim to Mufrak, the head of the pass and edge of plateau..." In later descriptions, Owen referred to "Jebel Fort" in place of the "fixed point".
40.

There was much discussion in the early meetings of the location of the point at least "3 miles from Akaba" where the boundary line was intended to start. The Turkish Commissioners advanced several interpretations; among them that this could be measured from Naqb el Aqaba up on the plateau, construing the Naqb el Aqaba as part of the locality of Aqaba, that this could be measured directly across the Gulf from Aqaba Fort, or that the boundary should commence at Taba. The Egyptians claimed that the point "3 miles from Akaba" was intended to be measured around the Gulf, along the shoreline, to Marashash. Owen had written to Parker on 1 June 1906 that the location of this point would "probably decide to whom Kassima, which is the most important point along the line, belongs". He added that "[w]e must have Kassima." In his General Report, written after returning to Cairo in October, Owen remarked that the starting point of the boundary was "the principal and most difficult point to decide" in the early discussions.

41.
The general procedure thereafter was for Keeling to proceed in advance and to beacon places he felt could serve as astronomical stations to which he could tie his topographical observations, once Wade had made the necessary astronomical observations and calculated the values for these points so that they could be plotted on the map paper. In all, 16 astronomical stations were established by Wade. The Commissioners apparently travelled with the main camp, while reconnoitering the areas where they believed the boundary should pass.
42.
Owen next reported on 12 June 1906 from Mayein that the surveyors, owing to the rough nature of the terrain and the limited time available to them, were only able to make "a fairly rough though very accurate survey".
43.
The Commissioners eventually reached Rafah on 28 June 1906. Wade reported that, on 30 June 1906, he observed the local time and latitude for his station A. 13. This station was established 80 metres south of the marble frontier pillars at Rafah, which had been long before erected to indicate the frontier of Egypt. From Rafah, time signals were exchanged by telegraph with the Helwan Observatory in Cairo in order to establish the longitude of A. 13. From this information, Wade was able to calculate the latitude and longitude of all of his astronomical stations, as well as of the marble pillars themselves. In early July 1906, the surveyors then worked on their map in El Arish.
44.
Owen next reported on 10 July 1906, after receiving from the surveyors the completed maps of the area along the Rafah-Aqaba line, that the discussions again had become difficult since the Turkish Commissioners indicated that they lacked full powers. Difficult and prolonged discussions followed. They were not crowned with success until after the Sultan on 11 September 1906 issued an Imperial Iradé to the following effect, inter alia: "1. The starting-point of the line on the Gulf to be Marashash. 2. Such commanding positions of Nagb-el-Akaba as are necessary to Akaba from a strategic point of view are to remain on the Turkish side, while Mofrak is to be left to Sinai" (from a telegram of 12 September 1906 from Sir N. O’Conor to Sir Edward Grey). An agreement on the line was reached soon thereafter and signed on 1 October 1906.

b. The 1 October 1906 Agreement

45.
While the Egyptian Commissioners requested that the agreement be written in French, the Turkish Commissioners insisted on Turkish, as that was the official language for communications between the Sultan and the Khedive. The negotiated text was therefore written in Turkish and then translated from Turkish into Arabic and then from the Arabic translation into English for the benefit of the English-speaking members of the Egyptian delegation. The British decided that it was important to conclude the agreement rapidly, and so the decision was taken not to attempt to correct the inconsistencies between the informal English translation and the authentic Turkish text, or to refine further the language. English translations were printed in a number of official sources and apparently were relied on thereafter. This expediency has led to some questions of interpretation in the present case, as it transpired that up until after the conclusion of the Compromis in 1986, no authorities since before the First World War had ever consulted the authentic Turkish text, not even the Parties to this dispute. The Tribunal, unless it specifies otherwise, will follow in this Award the general practice of the Parties and refer to the contemporaneous English translation as included in Owen’s General Report.
46.
The Agreement, signed at Rafah on 1 October 1906, reads in Article 1:

The administrative separating line, as shown on map attached to this Agreement, begins at the point of Ras Taba on the western shore of the Gulf of Akaba and follows along the eastern ridge overlooking Wadi Taba to the top of Jebel Fort, from thence the separating line extends by straight lines as follows:

From Jebel Fort to a point not exceeding 200 metres to the east of the top of Jebel Fathi Pasha, thence to that point which is formed by the intersection of a prolongation of this line with a perpendicular line drawn from a point 200 metres measured from the top of Jebel Fathi Pasha along the line drawn from the centre of the top of that hill to Mofrak Point (the Mofrak is the junction of the Gaza-Akaba and Nekhl-Akaba roads). From this point of intersection to the hill east of and overlooking Thamilet-el-Radadi—place where there is water—so that the Thamila (or water) remains west of the line, thence to top of Ras Radadi, marked on the abovementioned map as (A 3), thence to top of Jebel Safra marked as (A 4), thence to top of eastern peak of Um Guf marked as (A 5), thence to that point marked as (A 7), north of Thamilet Sueilma, thence to that point marked as (A 8), on west-north-west of Jebel Semaui, thence to top of hill west-north-west of Bir Maghara (which is the well in the northern branch of the Wadi Ma Yein, leaving that well east of the separating line), from thence to (A 9), from thence to (A 9 bis) west of Jebel Megrah, from thence to Ras-el-Ain, marked as (A 10 bis), from thence to a point on Jebel Um Hawawit marked as (A 11), from thence to half-distance between two pillars (which pillars are marked at (A 13)) under a tree 390 metres southwest of Bir Rafeh, it then runs in a straight line at a bearing of 280° of the magnetic north—viz., 80° to the west—to a point on a sand-hill measured 420 metres in a straight line from the abovementioned pillars, thence in a straight line at a bearing of 334° of the magnetic north—viz., 26° to the west—to the Mediterranean Sea, passing over hill of ruins on the sea-shore.

47.
Egypt made a new translation of the Agreement directly into English in August 1987, which reads in its first part of Article 1:

The Separating Line, as shown on map attached to this Agreement, begins at Ras Taba on the western shore of the Gulf of Akaba and extends to the summit of the mountain called Jebel Fort, passing by the summits of the mountains lying east of and overlooking Wadi Taba, and from the summit of Jebel Fort the Separating Line extends by straight lines as follows:...

48.
Israel disagrees with certain aspects of this translation and responded in its Rejoinder with another translation into English, rendering the same passage as follows:

The separating line as shown on the map attached to this agreement begins at Ras Taba, which is situated on the western shore of the Gulf of Akaba, and arrives at the hill called Jabal Fort while passing by the heights that are [situated] at the east[em side] of Wadi Taba and overlook this Wadi, and from this hill it continues straight as follows.

49.
Article 2 of the Agreement provides that the separating line described by Article 1 was "indicated by a black broken line on duplicate maps... signed and exchanged simultaneously with the Agreement". The Parties do not differ on this translation. The fate of these duplicate maps annexed to the Agreement is not clear. Owen reported that "[t]he original Agreement and map were sent to the British Agency from Rafeh on the 5th October, 1906". All trace of this copy disappeared after 1926, and the British Government informed the Parties in 1985 that it believes that the copy it had received may have been destroyed during a rapid evacuation of the British Embassy in Cairo, e.g. in 1952 or 1956. Turkey’s copy of the map, however, is reportedly still in Turkish archives. A photocopy of a map, sent by Turkey and asserted to be a copy made from the map annexed to the original Agreement, was submitted by Egypt, but Israel contests the authority of the map since there is no trace of the signatures reported to have been made to the map and alleges that portions of the line indicated thereon are manifestly at variance with the terms of Article 1 in the vicinity of the terminus of the line near Rafah and at astronomical station A.5.
50.
Article 3 provides:

Boundary pillars will be erected, in the presence of the Joint Commission, at intervisible points along the separating line, from the point on the Mediterranean shore to the point on the shore of the Gulf of Akaba.

Egypt’s new translation did not differ from this version, but Israel submitted a different direct English translation:

Pillars will be erected while the officials of each side are present, in such a manner that from the one of them the other will be seen, the length of the Separating Line from the point on the Mediterranean shore as far as the point on the shore of the Gulf of Akaba.

51.
In addition, it may be noted that Articles 5, 6, and 7 provide:

Art. 5. Should it be necessary in future to renew these pillars, or to increase them, each party shall send a representative for this purpose. The positions of these new pillars shall be determined by the course of the separating line as laid down in the map.

Art. 6. All tribes living on both sides shall have the right of benefiting by the water as heretofore—viz., they shall retain their ancient and former rights in this respect.

Necessary guarantees will be given to Arab tribes respecting above.

Also Turkish soldiers, native individuals and gendarmes, shall benefit by the water which remained west of the separating line.

Art. 7. Armed Turkish soldiers and armed gendarmes, will not be permitted to cross to the west of the separating line.

c. The Demarcation of the Line

52.
Owen stated in his General Report that, "[w]ith reference to Article 3 of the Agreement, it was decided that telegraph poles be erected in the presence of the Commissioners at intervisible points along the boundary line". Wade was recalled from Cairo to assist this operation, and an Egyptian officer and a Turkish officer also joined the Boundary Commission to observe the placement of the telegraph poles, as they both would be present for the subsequent construction by the Egyptian Department of Public Works of the masonry pillars at the site of each telegraph pole.
53.
A few days after concluding the Agreement, and after Wade and the necessary materials had arrived from Cairo, the Commissioners commenced placing telegraph poles along the boundary line near Rafah, and then started down the line towards Taba on 6 October 1906. Wade reported that the demarcation operations were on the whole uneventful. After setting up the poles around Rafah, the first traverse from A. 13 to A. 11 took three days, and Wade stated that he was able to keep the line of intervisible telegraph poles "perfectly straight", although his technical discussion concedes that the margin of error could be as much as 12 metres on either side of the abstract straight line between the astronomical stations. Later on, in the area just north of astronomical station A.9 bis, Wade reported that the line of telegraph poles had deviated from the intended line by 500 metres to the east, and that while two of the poles placed off the straight line were corrected after discovery of the error, some earlier ones were accepted by the Commissioners as placed, apparently in the interest of bringing the work to conclusion without losing time.
54.
Owen reported that the Commissioners arrived at Taba on Wednesday, 17 October 1906, after having erected "[n]inety intervisible pillars... on the boundary line... at varying intervals from 1/2 kilom. to 3 kilom.". Between the pillar placed on Jebel Fort and the pillar at Ras Taba, Owen reported that two pillars were erected on the "Taba Hills". Wade’s account conflicts with this in two respects. He reported that the final pillars were set on 18 October 1906 and that three pillars were erected on the "east cliffs of Taba" between the beacon placed on Jebel Fort and the beacon placed at the point where the east cliffs "strike the gulf’. Everyone then left the area, the work having been completed.
55.
As noted above, arrangements had been made for the construction by the Public Works Department of Egypt of masonry pillars at the site of each telegraph pole. Very little evidence concerning this project was submitted in these proceedings. As mentioned above, it was intended to be done under the supervision of an Egyptian officer, in the presence of a Turkish officer, both of whom had been summoned to participate in the October demarcation operations. It appears from the records produced that Parker, who had in the meantime been named Governor of Sinai, was present during at least the first part of the operations, as well as the two Turkish Commissioners. Mr. Naum Shoucair, the Secretary to the Egyptian Commissioners, seems to have been present again, as he relates certain features of the operation in his subsequent book published in 1916.
56.
Parker’s 1906 diaries, although not those for 1907, were produced by Egypt, having been located in the possession of his daughter in England. Parker’s diary shows that he came overland from Suez via Nekhl and arrived at Taba on 5 December 1906, where he was met by the Egyptian Coast Guard steamer "Aida" with stores on 7 December 1906. The Turkish Commissioners were not yet in Aqaba, and he was instructed to wait. Finally, on 31 December 1906, he met in Aqaba with the Turkish Commissioners Muzaffer Bey and Fahmi Bey and they reached an agreement that the masonry pillars would be constructed 2 metres high, topped by one metre of iron. In the afternoon, they all went to Taba, and Parker took a series of photographs of the group and of the construction of the first pillar. These photographs were introduced by Egypt in these proceedings.
57.
Ottoman documents from October 1911 clearly indicate that the border was marked by officials assigned by both sides. The letter of 22 October states that "it is obvious that there is no need for such work to be done again".
58.
Shoucair wrote later in his book that the first pillar was built on 31 December 1906 at Ras Taba and numbered 91. He related that the last pillar, numbered 1, was built on 9 February 1907 and that the absence of water at certain places along the route had complicated the task.

4. The Subsequent History of the Separating Line

a. The Pre-Mandate Period (1907-1923)

59.
Events concerning the boundary during the first few years involved two joint operations of Egyptian and Ottoman authorities to repair pillars. Parker stated in his monthly summary for November 1908 to the Intelligence Department in Khartoum that it was reported that several pillars near to Rafah had become unstable due to the shifting sand. His report for May 1909 related that arrangements had been made with the Turkish authorities and in late April 1909 a Turkish officer was present for the rebuilding or repair of eight pillars, six of which were identified as pillars 8-13 near Rafah. The British Consul in Jerusalem passed on a similar report on 26 May 1909 to the Foreign Office. Again, in February 1911, the British Consul in Jerusalem reported that a joint Turkish-Egyptian delegation was to be present at the re-erection of some boundary columns in the Beersheba district which had fallen down during the heavy rains that season.
60.
A number of maps from this period, introduced into the record of this proceeding, appear to be based on the 1906 Wade/Keeling survey map or derivative copies of that map, at least with respect to the area near to the separating line, including, for instance, the map printed in the 1908-09 Rushdi book and the 1911 Survey Department of Cairo map. In addition, the first trigonometrical and plane table survey map of the area was prepared during this period. On 16 May 1908, the British War Office proposed to the Egyptian Government that they collaborate on the production of a detailed map of the Sinai Peninsula, whereby the Survey of Egypt would do the basic trigonometrical work and the detail survey would be done by Royal Engineers of the British War Office. This was agreed, and each winter from 1908 to 1914 teams worked in the field preparing the detail for the maps based on the Egyptian triangulation, which apparently was completed by 1911. Work along the boundary area started from the north in 1911 and evidently reached the Taba area during the 1914 season, although the map recites that the survey work was completed in 1913.
61.
In connection with this survey, on 27 September 1911, the Grand Vizier received an intelligence report that on 5 September 1911 the British had dug a trench on the border, carried out a survey, and that a bedouin had claimed to have seen the British secretly remove several border signs. At about the same time, the Egyptian authorities made a request that the surveyors not be prevented from taking short-cuts and crossing over into Turkish territory. This request was apparently approved in Jerusalem. Finally, the Ottoman authorities decided in late October 1911 to dispatch a Turkish officer to check whether any modifications or changes had been made to the line.
62.
During the winter of 1914, the Turkish side of the border in the Negev from Rafah over to the Dead Sea and south to Aqaba was to be surveyed under the auspices of the Palestine Exploration Fund, a nongovernmental organisation which had also sponsored earlier surveys of northern Palestine regions. The group was headed by Captain S. F. Newcombe, who had participated up till then in the Sinai surveys for the British War Office. Two civilians accompanied the surveyors to undertake archeological work during February 1914, Mr. T. E. Lawrence and Mr. C. L. Woolley. While Newcombe, accompanied by Lawrence, was in the Aqaba region in February, the Commander at Aqaba refused him permission to survey the area along the border in the vicinity of Aqaba. Consequently, the survey was incomplete.
63.
Apparently, however, the actual detail survey for the Taba and Ras el Naqb areas on the Egyptian side of the border was undertaken in 1914, for during the course of the proceedings, the Parties discovered in the British Library the original surveyor’s field sheets and clean tracings made from those sheets used in the construction of the Sinai map by the War Office in 1915. These field sheets were registered at the War Office in London on 6 June 1914. Drawn on a scale of 1:125,000, the original sheet for Wadi Taba indicates some pillars on the heights east of the Wadi, and, in particular, with some technical explanation, two pillars just near the shore. The tracing of this original, which apparently was used in the preparation of the map itself, only picked up one of these pillars, the one further up the ridge from the shore. That pillar, indicated at an elevation of 298 feet, was marked as a boundary pillar on both versions of the map printed in 1915 in England at the scales of 1:125,000 and 1:250,000. Owing to the war, the map apparently was not publicly released at the time. (But see paragraph 75 below.)
64.
In August 1914, Egypt established posts at Taba and at Ras el Naqb and used them to observe developments in Aqaba, as there were reports of large troop movements throughout the region. In October 1914, Turkey entered the war on the side of the central European powers and, in November, Great Britain imposed martial law in Egypt. Finally, in December, Great Britain declared a Protectorate over Egypt due to the state of war with Turkey.
65.
In early 1915, Great Britain withdrew its forces towards the Suez Canal and Turkey occupied much of the Sinai, remaining there until El Arish was taken in December 1916. No evidence has been submitted regarding the boundary during the war period, except that Germany produced a 1:250,000 map of the Sinai based on a road survey it conducted for Turkey in 1915.
66.
During the fall of 1917, Allied forces advanced into Palestine following the fall of Aqaba in July 1917 to the Arabs of the Hedjaz.
67.
At this time, the Survey of Egypt conducted a trigonometrical and plane table survey of the area of Aqaba on the scale of 1:40,000. The map produced in 1917 from this survey, a small portion of which was introduced into these proceedings, shows two boundary pillars near the shore on the ridge east of Wadi Taba, one on a cliff at the shoreline and another at a triangulated position at an elevation of 298 feet. The map, however, apparently produced for military purposes, was not given public distribution. The triangulation information, dated perhaps 1917 but possibly based on earlier survey work, still exists according to testimony elicited under cross-examination of an expert witness for Egypt, but was not submitted in evidence.
68.
Following the war, British forces occupied both sides of the separating line and the Turks were not to return. In Article 101 of the Treaty of Sèvres of 10 August 1920 concerning the terms of peace with Turkey, which treaty never entered into force, Turkey had to renounce all rights and titles over Egypt. By Articles 16 and 17 of the Treaty of Lausanne of 24 July 1923, which replaced the Treaty of Sèvres and did become effective, Turkey renounced all rights and titles over territories lying outside of the Turkish frontiers established by the treaty, and this was declared effective with respect to Egypt and the Soudan as of 5 November 1914, the date on which Great Britain instituted martial law in Egypt.
69.
Egypt sought independence from British rule after the war, but negotiations with Great Britain foundered largely on the question of continued British military occupation in order to protect the Canal. Instead, Great Britain achieved this objective by unilaterally terminating the Protectorate and recognizing Egypt as an independent sovereign State on 28 February 1922, but reserving to its discretion four areas of interest, including in particular the defense of Egypt and the security of its communications, evidently meaning the Canal.
70.
On 17 February 1922, Mr. H. J. Llewellyn Beadnell, of the Survey of Egypt, visited Taba during his exploration of the Sinai and tied his survey to the "penultimate beacon" and took a photograph of it showing a plaque with the number 90 on it. This photograph, discovered by the Parties during the proceedings, was submitted by both Parties.

b. The Mandate Period (1923-1948)

71.
By the time the Council of the League of Nations had approved the text of the Mandate for Palestine on 24 July 1922, and later when the Mandate finally entered into force on 29 September 1923, no boundaries had been established for the mandated territory. The Preamble to the Mandate Resolution recites that the Principal Allied Powers had decided to entrust to Great Britain the mandate for Palestine, "within such boundaries as may be fixed by them". Article 5 of the Mandate stipulated, however, that:

The Mandatory shall be responsible for seeing that no Palestine territory is ceded or leased to, or in any way placed under the control of, the Government of any foreign Power.

72.
A few years later, in answer to a question raised on 16 July 1925 in the British House of Commons with regard to the status of Aqaba, Mr. McNeill answered for the Government of Great Britain that "[t]he line dividing the territories under Egyptian and Turkish administration respectively was defined in 1906 by a boundary commission and has not since been modified". He informed the questioner that "Akaba lies a few miles to the east of this line".
73.
On 6 October 1925, Great Britain invited Egypt to recognize the special situation of Great Britain in the territory of Palestine. The Egyptian Prime Minister and Minister for Foreign Affairs, Ahmed Ziwer Pasha, did so in a letter to the British High Commissioner in Cairo of 4 February 1926, but reserved Egypt’s position regarding the Egyptian frontier with Palestine since the Mandate provided that the frontiers of Palestine would be decided at a later date "by the Principal Allied Powers". The letter concluded that the Egyptian frontier with Palestine could not in any way be affected by the delimitation of the frontiers of Palestine.
74.
Following consultations with the relevant British authorities, the British High Commissioner informed the Egyptian Foreign Minister by letter of 25 June 1926 in response to the letter of 4 February that "the Palestine and Egyptian frontier as defined in the year 1906 will be in no way affected by the delimitation of the frontiers of the mandated territory of Palestine".
75.
In 1926 the Survey of Egypt published the 1915 British Map of the Sinai at the scale of 1:250,000. The Tribunal was not informed when the 1915 British Map was made public by Great Britain. It remained the only map for some time which plotted the position of individual boundary pillars along the line. In subsequent years, the authorities of mandated Palestine repeatedly sought survey information from the Survey of Egypt concerning the locations of the boundary pillars in order to describe accurately the south-western boundary of Palestine, but the Survey of Egypt replied that the boundary pillars had never been surveyed.
76.
On 4 April 1932, the Eastern Department of the British Foreign Office issued a lengthy memorandum on the question of the frontiers of mandated territories in the Middle East due to a question raised in the League of Nations concerning the necessity of submitting the frontiers of mandated territories to the Principal Allied Powers or to the Council of the League for approval. Attached to this memorandum was an annex describing the frontiers of each of the mandated territories. The description of the Egypt-Palestine frontier affirmed that the then-present frontier was the same as the "Separative Administrative Line" established by the 1 October 1906 Agreement, but remarked that the line "does not appear at any stage to have been formally constituted an international frontier". After noting the letter of 4 February 1926 from the Egyptian Government to the British High Commissioner, the annex stated that the assurance given in response to Egypt’s reservation "seems to imply recognition by His Majesty’s Government and the Egyptian Government of the 1906 line as the definitive frontier between Palestine and Egypt".
77.
In 1933, Mr. R. H. Mitchell, a geologist in Palestine, presented a geological map of the Naqb el Aqaba area, part of a mineral concession, on which were plotted nine boundary pillars from Ras el Naqb to the shore. The map shows two pillars near to the shore on the ridge to the east of Wadi Taba. A number of other details, such as buildings and ruins, also appear on the map.
78.
Great Britain’s Report for 1935 to the Council of the League of Nations on the administration of Palestine and Trans-Jordan described the south-western boundary of the mandated territory of Palestine in the following terms:

From a point on the Mediterranean coast north-west of Rafa, passing in a southeasterly direction to the south-west of Rafa, to a point west-north-west of Ain Maghara; thence to the junction of the Gaza-Aqaba and Nekl-Aqaba roads, from whence it continues to the end of the boundary line at the point of Ras Taba on the western shore of the Gulf of Aqaba.

This description was repeated in subsequent Reports for the years 1936 and 1937.

79.
During the years 1935-38, the Survey of Egypt apparently conducted a survey in the Sinai to update the 1915 British Map and coordinate it with Egyptian maps of the southern Sinai regions at the scale of 1:100,000. A surveyor was sent to Taba to determine the course of the Taba-Mofrak road which had recently been improved for motorized vehicles. That road crossed over into Palestine in order to utilize the route up the Wadi el Masri in the Naqb el Aqaba, an area which Newcombe had not been permitted to survey in 1914. The surveyor’s sketch map of the area submitted in these proceedings reproduced the same pillars as those shown on the 1915 British Map. The depiction of the boundary on the map itself, with most of its pillars, is very similar to that shown on the 1915 British Map. New details, however, of the topography in the Naqb el Aqaba appeared for the first time on this map.
80.
During World War II, the British Army compiled all available survey data on trigonometrical points in Palestine, and included information obtained from the Survey of Egypt concerning points along the Sinai boundary. This information was then organized in the form of lists covering specified areas. The list relevant to the Sinai boundary was called Trig List 144.
81.
During 1943, the British also apparently conducted two surveys: an aerial survey based on photographs taken in April 1943 and a detailed ground survey about which the Tribunal received little specific information. The aerial survey resulted in a large-scale map of the Aqaba area, including Taba, introduced by Egypt in these proceedings.
82.
Following the war, a Foreign Office official, Mr. D. M. H. Riches, in a letter dated 16 April 1947 to Mr. W. Low of the Air Ministry, recalled the 1926 recognition by Great Britain that the delimitation of the frontiers of the mandated territory of Palestine in no way altered the line defined in 1906 and observed that "although the 1906 boundary-line was a Turkish creation, its position as the correct and suitable line between Palestine and Egypt has not been called into question since that time. The status of the countries which it divides has changed since 1906, but not the line."
83.
It appears that a British military camp at Rafah, which apparently had grown in importance during World War II, extended over the 1906 frontier into Egyptian territory along a strip 2 miles wide by 7 miles long. In January 1947 the Governor of Sinai informed the Rafah camp Commander that he intended to construct a fence along the frontier in that area to prevent smuggling and that the fence would bisect the camp. The British authorities attempted to have the camp’s perimeter fence continue to be deemed the frontier for practical reasons, but the Egyptian Minister of National Defence refused this request and reaffirmed the fixed nature of the frontiers of Egypt.

c. The Post-Mandate Period (1948-1982)

84.
By 1947, the United Kingdom announced its intention to give up the Mandate for Palestine and requested the United Nations General Assembly to form a Special Committee to prepare recommendations on the question of the future government of Palestine. The Special Committee recommended a Plan of Partition with Economic Union, which the General Assembly adopted by its Resolution 181(11) of 29 November 1947.
85.
With the end of the Mandate on 14 May 1948, the State of Israel was proclaimed as an independent State. The Act of Independence took effect at one minute after midnight of 14/15 May 1948. Military forces from neighbouring States simultaneously entered Palestine and informed the United Nations Security Council on 15 May 1948 that they intended to restore order. Hostilities between the forces of the new State of Israel and the Arab forces ensued. The United Nations Security Council ordered a truce, considering that the situation in Palestine constituted a threat to the peace within the meaning of Article 39 of the Charter of the United Nations, appointed a Mediator, and on 16 November 1948 decided to establish an armistice to facilitate the transition from the truce to a permanent peace in Palestine, calling upon the parties directly involved to seek agreement on the establishment of an armistice as a provisional measure under Article 40 of the United Nations Charter.
86.
The General Armistice Agreement between Egypt and Israel was entered into at Rhodes on 24 February 1949. The Armistice Agreement established a general armistice between the armed forces of the two Parties and provided that no military or para-military forces of either Party were to pass over the Armistice Demarcation Line set forth in Article VI of the Agreement, nor elsewhere violate the international frontier. Article IV of the Agreement affirmed the following principle in its paragraph 3:

It is further recognized that rights, claims or interests of a non-military character in the area of Palestine covered by this Agreement may be asserted by either Party, and that these, by mutual agreement being excluded from the Armistice negotiations, shall be, at the discretion of the Parties, the subject of later settlement. It is emphasized that it is not the purpose of this Agreement to establish, to recognize, to strengthen or to weaken or nullify, in any way, any territorial, custodial or other rights, claims or interests which may be asserted by either Party in the area of Palestine or any part or locality thereof covered by this Agreement...

87.
Article V provided in part:

1. The line described in Article VI of this Agreement shall be designated as the Armistice Demarcation Line...

2. The Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.

88.
Article VIII provided for the demilitarization of the area comprising the village of El Auja and vicinity. Paragraph 4 of that Article stipulated that "[t]he road Taba-Qouseima-Auja shall not be employed by any military forces whatsoever for the purpose of entering Palestine".
89.
A Mixed Armistice Commission was established to supervise the execution of the Agreement and maintained its headquarters at El Auja pursuant to Article X.
90.
Finally, Article XI provided:

No provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question.

91.
Similar Armistice Agreements were thereafter entered into between Israel and Lebanon, Jordan, and Syria.
92.
On 10 March 1949, shortly after the Armistice Agreement with Egypt was signed, Israeli military forces established a post at Umrash-rash (present-day Eilat). Each day thereafter a group travelled to Taba to fetch water, having reached an arrangement with the Egyptian officer there. During some of these visits, the Israeli soldiers and a Government press official took photographs of the area, several of which were placed in the archives of the Government of Israel and introduced in these proceedings. Some of the private photos by the soldiers were also introduced in these proceedings.
93.
General Sadek Pasha of the Egyptian Army on 21 March 1949 directed a complaint about the use of the Taba well by Israeli soldiers to General Riley of the United Nations Truce Supervision Organization (UNTSO), which led to an investigation of the matter in conjunction with that of the Aqaba area in general. General Riley observed that there was no other road from Taba to Mofrak than passed through the Palestine side of the frontier and that Egyptian personnel used this route. For this reason, he suggested that Egypt continue to allow Israeli soldiers to draw water from the Taba well as part of this local arrangement. However, General Sadek Pasha decided instead to stop using the road between Taba and Mofrak, and closed off transborder access to the well, informing General Riley of this decision on 28 March 1949. Two days later the Mixed Armistice Commission decided that its Taba observer was no longer required.
94.
During the so-called Sinai war of 1956, the General Assembly of the United Nations on 2 November 1956 adopted a resolution urging all parties involved in hostilities in the area to agree to an immediate cease-fire and urging all parties to the Armistice Agreements to withdraw behind the armistice lines. It thereafter decided on 5 November 1956 to form a United Nations Command for an Emergency International Force (UNEF) to secure and supervise the cessation of hostilities. Israeli forces ultimately withdrew from the Sinai and the Gaza Strip in March 1957 and UNEF forces were deployed on the Egyptian side of the armistice line.
95.
In order to fulfil UNEF’s functions, UNEF officials erected barrel markers as navigation aids for its patrols at some locations along the armistice line. In many places, however, the border pillars had long since disappeared since no effort apparently had been made to maintain them since 1911 and several armies had crossed the frontier since then. These barrels were apparently therefore placed on the basis of the available map information. Surveys were conducted by UNEF in this area to place as accurately as possible the markers, but it was emphasized at all times that these markers were not necessarily placed "on the frontier". They also were movable, and some were later found to have shifted position with the sand dunes on which they were placed.
96.
The Survey of Israel apparently conducted a thorough survey of the frontier area during May 1960, and placed new pipe markers at a number of points on the western side of the UNEF patrol route in the Kuntilla area. UNEF considered that its patrol route lay entirely on the western side of the armistice line.
97.
Egypt introduced a large-scale map in Hebrew produced by Israel in 1964 showing the Taba and Ras el Naqb areas. This map also shows two pillars near the shore on the ridge above Wadi Taba, as well as essentially the same line, but with more pillars than depicted on the 1915 British Map and its derivatives. An Arabic version of this map, printed in 1967 at a scale of 1:50,000, was also introduced by both Parties, plotting the same two pillars near the shore at Taba, as well as all of the pillars in the Ras el Naqb area.
98.
Little other information concerning the Taba area is available for this period. The Egyptian Army, which pursuant to its agreement with UNEF was deployed at least 5 kilometres from the armistice line, planned to make a comprehensive survey of the southern portion of the frontier in 1964, but ultimately desisted. No UNEF patrols covered the Taba area, and, except for occasional night patrols, no Egyptian forces visited Wadi Taba from 1956 until after the Treaty of Peace was signed in 1979. UNEF operations relevant to the present dispute ceased after the 1967 war, when UNEF was disbanded. The second UNEF force, established after the 1973 war, was deployed elsewhere in the Sinai until withdrawn after the conclusion of the Treaty of Peace.
99.
The Treaty of Peace resulted from the Framework for the Conclusion of a Peace Treaty between Egypt and Israel, signed on 17 September 1978 at the end of the Camp David Conference. In the Framework, Egypt and Israel agreed, among other things, to the withdrawal of Israeli armed forces from Sinai and "the full exercise of Egyptian sovereignty up to the internationally recognized border between Egypt and mandated Palestine". The Treaty of Peace, concluded on 26 March 1979 as noted earlier, again defined the international boundary between Egypt and Israel, and expressed it in Article II in terms of "the recognized international boundary between Egypt and the former mandated territory of Palestine". Attached to the Treaty of Peace were a number of maps, including one on a scale of 1:250,000 indicating the international boundary. The name "Ras Taba", which had not appeared on any maps since before 1910, was printed at the southern end of the line.
100.
The Joint Commission formed pursuant to the Treaty of Peace was charged with demarcating the boundary and it undertook this task in 1981-82. The Israeli Delegation to the Joint Commmission proposed on 20 September 1981, in an outline for the working plan for Phase II of the Israeli withdrawal, and in relation to the demarcation of the international boundary and Lines A, B, and D, all defined in the Treaty of Peace, that "the work of the sub-committee on survey, including preliminary reconnaissance tours, plan and timetable for the marking of the International Boundary..." be continued, that the work method consist of "locating the existing border stones on aerial photographs and in sections where these boundary stones are missing to locate the points of the boundary according to the description in the 1906 agreement", and that the marking in the field and the setting of the remaining boundary markers be carried out.
101.
Israeli survey teams conducted a preliminary reconnaissance of the state of the markers along the boundary and presented the results of these investigations, in the form of photograph albums, to Egypt during 1981. Joint inspections of portions of the boundary took place from October to December 1981. A report prepared by the Israeli delegation dated 8 November 1981 on Demarcation of the International Boundary stated that the starting point of work was the border stones situated along the line, noting that some were clearly "stones erected in 1906" and others were stones and markings erected at later dates. After the first week of work, only one border stone indicated by the Israeli surveyors had been confirmed by the Egyptian delegation and 18 others remained under study in that section of the boundary by the Egyptian survey experts.
102.
By this time, according to the Israeli report, the Joint Commission and its sub-committee on the demarcation of lines had agreed upon two authentic sources for "the identification and delimitation of the International Boundary". The two sources, as described by the Israeli delegation, were first, "[t]he positions of the border stones erected in 1906", and second, where no border stones exist, the verbal description of the boundary in the 1906 Agreement. The same report observed that due to the low precision of survey methods in 1906, the positions of some stones were not as exact as they would be if the work were done today.
103.
The survey teams continued their demarcation work during November 1981 and by 3 December 1981 reached agreement on locations for over seventy pillars along the boundary, including some new locations for original pillars and the locations for some additional pillars settled upon in order to mark more precisely the course of the boundary.
104.
When the survey teams visited the Taba and Ras el Naqb areas on 3 December 1981, however, the Parties were only able to agree on the pillar locations of BP 83, BP 89, and BP 90, as well as the utility of a new pillar location north of BP 89, which they designated BP 88, although they were not able to concur on the precise location for this new pillar. Following several attempts to reach agreement on the remaining locations during January, February, and March 1982, including efforts at the highest level of the Joint Commission, the Parties concluded their agreement regarding the initial procedure for resolving boundary questions, referred to above as the 25 April 1982 Agreement. The Joint Commission was thereafter apparently dissolved in accordance with the Treaty of Peace and its remaining functions transferred to the Liaison System established thereby.

5. The Parker Pillar

105.
In the course of the proceedings, it became clear that a boundary pillar ("the Parker pillar") formerly existed at a location in the Taba area not recorded by either Party in Appendix A to the Compromis. The Parker pillar, identified from the Parker photographs and from maps, was located on a cliff which used to be above the shoreline in the Taba area. The cliff was removed during construction of the road along the western shore of the Gulf of Aqaba in about 1970. The pillar itself had apparently disappeared sometime after 1949 and before 1967.
106.
Evidence for the existence of the Parker pillar was submitted by both Parties, and consists primarily of the Parker photographs from 31 December 1906, photographs of the pillar at the Parker location taken in 1949, and maps and survey information gathered at various times since 1914. The original field sheet from 1914 shows that the surveyor marked two pillar locations near the shore in the Taba area. But the tracing of that work only reproduces one pillar. The actual map, based on the tracing, also only shows one pillar, identified there as a boundary pillar, located an an elevation of 298 feet. The evidence indicates that the pillar was located at a trig point. The 1917 map of the Aqaba area also shows a trig point at an elevation of 298 feet, identified as a boundary pillar, but also another pillar on the cliff at the shore. The 1933 Mitchell map, introduced by Israel, clearly shows on a large scale the two pillars, identifying both as boundary pillars by their numbers BP 90 and BP 91, and their placement on the boundary line indicated on the map. Israel asserted during the oral proceedings that the 1943 ground survey identified the Parker pillar, but the actual survey information was not submitted to the Tribunal. Finally, a 1964 Survey of Israel map, introduced by Egypt, clearly shows pillars at both the Parker and at the BP 91(E) locations. The same applies to a 1967 map in Arabic, introduced by both Parties.
107.
As already noted above, Parker took photographs of the first pillar erected at Taba on 31 December 1906, introduced by Egypt, and Israel introduced several 1949 photographs of the pillar at the Parker location. Both Parties observed that the photographs from 1906 and 1949 show differences in the pillars (the pillar shown in the 1949 photographs being shorter, having an iron flange extending out of the top, and a plaque stuck on the side with the number 91 engraved in it). The pillar shown in the 1949 photographs is substantially similar in these respects to the pillars shown in other photographs taken in the area, first that of a pillar numbered 90 and photographed by Beadnell in 1922, and second those pillars numbered 85, 86, and 87 photographed by Egypt for these proceedings. On the basis of these differences, Israel alleges that new pillars must have been erected in the area sometime between 1907 and 1922, probably in 1917, and that these new pillars were not necessarily constructed at the same locations as the original telegraph poles or the masonry pillars that replaced them.
108.
While a new pillar was erected at or practically at the location of the Parker pillar, Israel does not concede that the Parker pillar was legally a correct boundary pillar. Israel further alleges that the pillar erected at the location BP 91(E) and photographed by Beadnell in 1922 was not at the location of any boundary pillar in 1906 and that this location had originally been established as a trig point. Israel alleges that the constructor of the 1915 British Map may have taken the trig point for a boundary pillar and so erroneously indicated a boundary pillar at that location on the map. When replacement pillars were allegedly constructed in the area thereafter, Israel believes it was done on the basis of the pillars shown on the map, including the pillar shown at the elevation of 298 feet corresponding to BP 91(E). In the case of the replacement pillar at the Parker location, which was not shown on the 1915 British Map, Israel believes that this must have been done on the basis of whatever remains were present of the original Parker pillar. Egypt contends, for its part, that whatever the reasons for the construction of a new pillar at the Parker location and its different style from the original Parker pillar, the pillar at BP 91(E) marked on the 1915 British Map and photographed by Beadnell had always been a boundary pillar, supporting this conclusion with the indication by Wade that three pillars had been erected between the pillar placed on Jebel Fort and the pillar at the Parker location on Ras Taba at the locations of BP 89, BP 90, and BP 91(E), respectively.

D. Contentions of the Parties

1. Egypt’s Contentions

109.
Egypt, in its Memorial, made the following submissions:

In view of the facts, historical evidence, documents and the statement of law referred to in this Memorial; and

Considering that under the Compromis the Parties have requested the Tribunal to decide the location of certain boundary pillars of the recognized international boundary between Egypt and the former mandated territory of Palestine, namely, Pillars 7, 14, 15, 17, 27, 46, 51, 52, 56, 85, 86, 87, 88 and 91; and

Considering further that each Party has recorded in its description cards in Appendix A to the Compromis its position concerning the location of each boundary pillar listed above;

May it please the Tribunal, rejecting all claims and submissions to the contrary, to adjudge and declare that the location of each such boundary pillar as set forth in the Egyptian description cards in Appendix A to the Compromis, as further described and identified in Part VI(D) of this Memorial, is the exact location of such boundary pillar on the recognized international frontier between Egypt and the former mandated territory of Palestine.

These submissions were reaffirmed in Egypt’s Counter-Memorial, but the following submissions were set forth in the Egyptian Rejoinder:

... Egypt requests the Tribunal to adjudge and declare:

A. That BP 91, identified in the Compromis as being the one remaining pillar on the recognized international boundary between Egypt and the Former Mandated Territory of Palestine following agreed BP 90, is at the location set forth in the Egyptian description card in Appendix A to the Compromis and marked on the ground and is not at either of the alternative locations set forth in the Israeli description cards in Appendix A to the Compromis;

B. That the remaining boundary pillars in dispute on the recognized international boundary (as specified in the Annex to the Compromis) are at the locations set forth in the Egyptian description cards in Appendix A to the Compromis and marked on the ground and are not at the locations set forth in the Israeli description cards in Appendix A to the Compromis.

110.
These two submissions were reiterated during the hearing.
111.
Egypt contends that the task of the Tribunal under Article II of the Compromis is to identify the locations of the disputed pillars of the boundary defined in Article II of the Treaty of Peace. In Egypt’s contention, the formulation of the boundary between Egypt and Israel as "the recognized international boundary between Egypt and the former mandated territory of Palestine" implies that 24 July 1922 is the critical date at which time the Tribunal must establish the factual location of boundary pillars as representing the legal boundary between Egypt and Palestine. This date, being the date when the Council of the League of Nations adopted the Mandate for Palestine, was selected since it constituted the first date on which the two distinct entities of Egypt and mandated Palestine could be said both to have attained status on the international plane. Egypt contends that this early date is the appropriate one in terms of application of the concept of the critical date. In the course of the proceedings, however, Egypt conceded that 14 May 1948, the date on which the Mandate expired, or any date within the period of the Mandate, could just as well serve as the critical date since the Parties were in agreement that no changes had occurred in the boundary during that period.
112.
Egypt alleges that the Tribunal must weigh the claims of the Parties on the basis of the physical, geodesic, cartographic, photographic, documentary, and other evidence of the location of pillars on the ground on the critical date—as against whatever conclusions could be reached on the basis of evidence of the situation prior to the critical date—and in light of the conduct of relevant parties after the critical date, to the extent that such conduct confirms the understanding reached of what the situation was on the critical date.
113.
Egypt alleges that the effect of application of the critical date concept is thus to fix the boundary in time and to bring into operation the general legal principles of the stability and finality of boundaries, the succession of States to territory, estoppel, acquiescence, and de facto agreement so as to preclude Israel’s claims based on application of the terms of the 1906 Agreement.
114.
With respect to the Taba area, Egypt contends that the location of BP 91 at "Ras Taba" is at an elevation of 91 metres on the eastern ridge overlooking Wadi Taba, where remains of the boundary pillar were found in 1981 during the work of the Joint Commission. This location is identified on the relevant description card in Appendix A to the Compromis as BP 91(E).
115.
Egypt alleges that this location is consistent with evidence of what the Commissioners in 1906 understood as "Ras Taba" and with the strategic considerations which underlay the negotiations concerning the course of the boundary line. Owen wrote that Ras Taba was "the point where the ridge north of Taba meets the sea". Owen had moreover rejected during the negotiations the Turkish proposal that the line run down the thalweg of the Wadi. Egypt points out that thé text of the 1906 Agreement speaks of the line running along the eastern ridge, not in the Wadi. Egypt does not consider the granite knob as part of the eastern ridge, but rather as an isolated feature in the bed of the Wadi.
116.
Egypt draws support for its location for BP 91 from the 1915 British Map, which plotted a boundary pillar at the location of BP 91(E) and does not show any further pillar nearer to the shore. Egypt points out that pre-1915 maps do not indicate the location of any boundary pillars on the line except those which were placed at Wade’s astronomical stations and used subsequently as points of reference for the delimitation and demarcation of the line. Egypt also considers that pre-1915 maps are not accurate in the sense that the topographical features on the maps are shown by conventional symbols rather than the more precise contour lines produced by the plane table survey methods employed in preparation of the 1915 British Map, even though most of these pre-1915 maps clearly indicate that the boundary line did not end close to an astronomical station at Taba, as Israel contends.
117.
Egypt further alleges that a boundary pillar is plotted at the location of BP 91(E) on all maps produced since 1915 showing boundary pillars along the boundary line. The maps submitted by Egypt in this category include the original 1915 British Map, a 1922 oil-concession map based on the 1915 British Map, a reproduction of the 1915 Map made by the Survey of Egypt in 1926, and a revised version prepared on a larger scale by the Survey of Egypt between 1935 and 1938. Egypt noted that the 1917 map and the 1933 Mitchell Map introduced by Israel both show a boundary pillar at the location BP 91(E). A large-scale map including the Taba area and produced by the British War Office in 1943 also plotted a boundary pillar at an elevation of 91 metres at the location of BP 91(E). Large-scale maps produced after the Mandate period, showing the armistice line, also indicate a pillar at BP 91(E), including the map attached to the Compromis.
118.
Egypt draws further support for BP 91(E) from lists of surveyed trigonometrical points in the region which identify the location of BP 91(E) as a boundary pillar. A list of triangulation points in the vicinity of Aqaba and a sketch of those positions was found in the archives of the Survey of Egypt, together with a copy of an unsigned letter dated 6 December 1931 addressed to the Acting Director of Surveys of the Survey of Palestine, in response to a request dated 27 November 1931. The sketch, on a scale of 1:40,000, shows triangulated boundary pillars identified as A.3, B 83, B 85, and B 90. Written in pencil next to these locations, evidently by a different hand, are the labels L 193, L 192, L 191, and L 190, respectively. The list enclosed with the letter gives "provisional final values" for the four boundary pillars plotted on the sketch, plus a boundary pillar at A.4 not shown thereon, with altitudes in feet. For B 90, the values given are: Latitude 29°29'36.8", Longitude 34°54'07.3" with an altitude of 298 feet.
119.
Egypt also submitted a photocopy of a survey card with the name of Dr. Ball on it, showing the same coordinates as on the 1931 list, expressed however to the nearest hundredth of a second and showing the elevation in metres rather than feet. Egypt alleges that this card was made in 1941, although a witness for Israel testified that Dr. Ball had retired from the Survey of Egypt by 1936. The card also shows that the original coordinates were later revised by someone using a different pen and slightly different handwriting to read: Latitude 29°29'35.66", Longitude 34°54'07.15", altitude 91.65 metres. Three sets of grid coordinates, also apparently later added to the card, are also given.
120.
Egypt also produced the first edition of Trig List No. 144, "probably produced during 1941-45 and probably before 1943" by a British military survey organisation established in 1941: the Survey Directorate of the General Headquarters Middle East. The list has been described as "a compendium of survey information, some pre-[World War II], some Wartime revision. The earliest material is information drawn from the work of the civil Surveys of Palestine and Egypt." The list, consisting of two pages, shows rectangular coordinates of trig points on the Palestine Grid. It gives coordinates and heights for each point to the nearest metre. The last entry on the list shows a "third order" trig point identified as a boundary pillar, labelled 190, with the coordinates Eastings 140 295, Northings 878 478, and height of 91.6 metres. A second edition of this list, consisting of 19 pages, was prepared in 1956, covering a larger area and superseding former trig lists, including the first edition of Trig List No. 144. The same values for boundary pillar 190 are found on page 17 of the second edition of the list.
121.
On 10 August 1960, Major General Amin Hilmy II, Commander of the Egyptian Liaison to UNEF, wrote to Lt. General P. S. Gyani, Commander of UNEF, enclosing a list of surveyed points of the international frontier between Egypt and Palestine intended to assist UNEF in its identification of the international frontier. This list included an entry for a boundary mark identified as point LI90 with coordinates from the 35th Meridian East of x = 1043 829.86, y = 290 495.24, altitude 91.65 metres, in these proceedings, uncontestedly assumed to be equivalent to the values shown on the 1931 list, to those shown on Dr. Ball’s survey card for the Egyptian Grid coordinate system, and to those expressed for the point in Trig List No. 144, which used the Palestine Grid system. Egypt alleged that General Hilmy’s list would presumably have been transmitted to Israel by UNEF, although no direct evidence for this was produced from UNEF files.
122.
The existence of a boundary pillar at the location of BP 91(E) is also supported by a photograph of the pillar made in 1922 by Beadnell, of the Survey of Egypt, and a photograph from the Israel Government Press Office, dated March 1949. General Hamdy, a witness for Egypt, stated that in 1949 there was only one pillar in the Taba area, not near the sea but up on the mountain at the side of BP 91(E). The testimony of Mr. Yigal Simon, a witness for Israel, that a pillar taken to be a boundary pillar was on the site in 1966-67 was also cited by Egypt in support for its location BP 91(E).
123.
Egyptian presence in the Wadi was demonstrated by reference to the establishment of an outpost in 1914 and after 1917 a Frontier Districts Administration post, as well as the guest house outfitted near the granite knob in 1932 and the continuous military presence from 1949 to 1956.
124.
Finally, Egypt invoked the description given by J. M. C. Plowden in her book Once in Sinai published in 1940, where she writes on page 281 : "Shortly after quitting Taba we passed round the base of a high hill upon whose summit a cairn marks the frontier. There is, however, nothing on the beach to indicate the exact moment when we crossed into Palestine."
125.
The conduct of Israel with respect to the line in the Taba area is also invoked by Egypt to demonstrate the understanding of the line by the Parties. Egypt notes that Israel withdrew from Sinai, including Taba, in 1957 and established its forces behind the ridge east of Taba. A Background Paper on the Gulf of Aqaba, submitted by the Israel Ministry of Foreign Affairs to the Secretary-General of the United Nations in May 1956, described the frontier between Egypt and Israel as running "from a point south of Umm Rash Rash in a northeasterly direction" that "coincides with the former international frontier between Palestine and Egypt, confirmed by the General Armistice Agreement... of 24 February 1949".
126.
In the Ras el Naqb area, Egypt contends that the existing pillars at the locations claimed for BP 85, BP 86, and BP 87 are fully consistent with the terms of the 1906 Agreement and the descriptions of the demarcation operations given by Owen and Wade. Wade provided a technical description of how he laid out the line in this area with a chain and prismatic compass in order to comply with the description of the boundary in this area contained in Article 1 of the 1906 Agreement.
127.
More importantly, in Egypt’s view, its pillar locations are plotted on the 1915 British Map and in subsequent maps referred to above. In addition, Egypt alleges that all maps produced prior to the dispute, including the pre-1915 maps and maps prepared between 1948 and 1982 by the Survey of Israel, show the line as claimed by Egypt and readily distinguishable from the line as claimed by Israel, no matter the scale of the map.
128.
The same trig lists as mentioned above contain similar information concerning certain of the boundary pillars in this area. For instance, the list accompanying the 1931 letter refers to a station B 85, identified also on the sketch as L 191. The equivalent coordinates for this point also appear in Dr. Ball’s survey cards, both editions of Trig List No. 144, and General Hilmy’s letter. The coordinates thus given correspond to BP 85(E). Similarly, the coordinates for BP 87(E) appear in Dr. Ball’s survey cards as a boundary mark 87 or L 113 and also in General Hilmy’s letter, but in neither occasion with a given altitude.
129.
Egypt also invokes Israeli conduct in this area since the 1949 Armistice, in particular the withdrawal in 1957 behind the line indicated by the pillars now asserted by Egypt as representing the boundary. In addition, Egypt notes that UNEF forces were deployed in the area and presented three witnesses who had participated in the Yugoslav battalion of UNEF stationed in the Ras el Naqb area. Two of these witnesses testified that their camp, patrol routes, and an observation post in the area were all located to the east of the line now claimed by Israel, which would have been inconsistent with Israel’s requirement at the time that UNEF only be deployed west of the armistice line, i.e. on Egypt’s side of the line.
130.
Egypt moreover contends that BP 88 should be placed at the location identified as BP 88(E) since that corresponds to the coordinates and the angle of the turning point of the line derived from the 1935-38 map, which Egypt alleges was the rationale for the agreement of the Parties in the Joint Commission to erect a new pillar at that location. Egypt contends in this connection that Article 1 of the 1906 Agreement does not provide guidance for the location of this pillar between BP 89 and that on Jebel Fort as, in Egypt’s interpretation, the text does not indicate that the "eastern ridge" or Wadi Taba extend any further than a point about 600 metres north-west of BP 89.
131.
With respect to the nine disputed pillars north of the Ras el Naqb area, Egypt bases its claimed locations on a variety of reasons.
132.
For disputed boundary pillars nos. 7, 14, 15, and 17, Egypt does not find any physical evidence at the places it believes the pillars should be located and disputes the relevance of the UNEF markers or other alleged remnants invoked by Israel at the corresponding disputed locations. The basis for Egypt’s claim at each of these locations is the indication of a boundary pillar on its 1935-38 map of the area.
133.
Egypt states that the 1935-38 map, as well as all other pre-Peace Treaty maps, uniformly show a straight line between BP 3 and BP 14. BP 7(E) and BP 14(E) both are located on this straight line, whereas the locations claimed by Israel diverge from this line. Egypt also alleges that the Joint Commission agreed to apply the criterion of straightness for the location of boundary pillars in this area.
134.
Egypt determined its location for BP 15(E) by measuring the angle of the change in direction of the line at BP 14 shown on the 1935-38 map as well as the distance from the mark for BP 16, and then applying that data by electronic measuring means to the ground. Egypt alleges that this location is confirmed by assessing the coordinates for the pillar indicated on the map.
135.
Egypt’s case for BP 17(E) is based again on the 1935-38 map, which it alleges shows a boundary pillar at a certain distance on the prolongation of the straight line drawn from BP 19 through BP 18 towards the location for BP 17. By measuring the distance shown on the map and applying it along the straight line on the ground, Egypt alleges that it has established the location for BP 17(E).
136.
For BP 27(E), Egypt bases its claim on a cement trig point marker found at the location in 1981 and the information contained on one of Dr. Ball’s survey cards, Trig List No. 144, and the list attached to the Hilmy letter, all of which indicate that the boundary marker at this location was used as a trig point.
137.
For BP 46, 51, and 56, Egypt bases its claims on remnants of the original pillar found at each of these locations piled a few metres from the pipe marker or remnants invoked by Israel. Egypt contests the relevance of such pipe markers.
138.
Egypt’s cases for BP 46(E) and BP 56(E) are based on the pile of stones found at each site in 1981. Egypt also alleges that BP 46(E) lies on the prolongation of a straight line extended from BP 48 through BP 47 to BP 46(E), as shown on the 1935-38 map.
139.
Egypt’s claim for BP 51(E) is based, first of all, on measurements of distances and angles derived from the 1935-38 map and applied to the ground with electronic devices. Egypt also alleges that the location thus derived is confirmed by the presence of remnants of the original boundary pillar found at the site.
140.
Finally, Egypt’s case for BP 52(E) is based on the depiction on all pre-1982 maps of a straight line in this region between BP 51 and BP 53. Egypt derives its location on the straight line from measurements taken from the 1935-38 map and applied to the ground between disputed location BP 51(E) and agreed BP 53.

2. Israel’s Contentions

141.
In its Memorial, Israel requested the Tribunal:

to decide the location of the boundary pillars of the recognized international boundary between Egypt and the former mandated territory of Palestine specified in paragraph 1 of the Annex to the Compromis

(i) as being at the locations advanced by Israel and indicated in Appendix A to the Annex of the Compromis and/or

(ii) as not being at the locations advanced by Egypt and indicated in Appendix A to the Annex of the Compromis.

In its Counter-Memorial, Israel submitted that:

The Tribunal should decide that:

Principal submissions:

1. As regards BP 91:...

a. Egypt has abandoned its claim to a location for BP 91 at the point identified by Egypt as BP 91 E in the relevant Egyptian description card in Appendix A of the Compromis;

b. The claim by Egypt to a location for BP 91 at a point other than BP 91 E is not admissible;

c. In the absence of any admissible claim by Egypt to a location for BP 91 conflicting with Israel’s claim to a location for BP 91 at either of the locations identified on the Israeli description cards as BP 91 I (G.K.) or BP 91 I (B.T.), the location of BP 91 is at one or the other of the latter locations.

2. As regards the Boundary Pillars other than BP 91: for the reasons set out in Chapters 9 of the [Israeli Memorial] and Part V of the present Counter-Memorial, the Boundary Pillars other than BP 91 are at the locations advanced by Israel and indicated in Appendix A to the Annex of the Compromis.

3. Further or in the alternative, as regards all the disputed Boundary Pillars, they are not at the locations advanced by Egypt and indicated in Appendix A to the Annex of the Compromis.

Alternative submission:

As regards all the Boundary Pillars specified in paragraph 1 of the Annex to the Compromis,

(i) the pillars are situated at the locations advanced by Israel and indicated in Appendix A to the Annex of the Compromis and/or

(ii) the pillars are not situated at the locations advanced by Egypt and indicated in Appendix A to the Annex of the Compromis.

Israel reaffirmed these submissions at the end of its Rejoinder and during the hearing.

142.
With respect to the task of the Tribunal, Israel contends that the Tribunal must decide, in conformity with Article II of the Compromis, the course of the legal boundary adopted by the Parties in Article II of the Treaty of Peace and express the line in terms of the location of boundary pillars where these are in dispute. The legal boundary, according to Israel, is "the recognized international boundary" which separated Egypt from the mandated territory of Palestine.
143.
Israel alleges that Great Britain, as mandatory power in Palestine, and Egypt had both explicitly recognized in 1926 the line defined in 1906 as that boundary, and that Great Britain had assured Egypt that its boundary would not be affected by the delimitation of the boundaries of Palestine. By virtue of a renvoi, or referral, to the 1906 Agreement made by Egypt and Great Britain in 1926, and in the absence of any explicit agreement between Egypt and Great Britain defining the frontier of Egypt and Palestine, Israel contends that the Tribunal is, pursuant to the Treaty of Peace and the Compromis, referred to the terms of the 1906 Agreement to determine the course of the legal boundary. For Israel, any pillars or pillar remains which are at variance with the terms of the 1906 Agreement are of no significance since no pillars of whatever nature, type, or designation were ever recognized as boundary pillars during the period of the Mandate, which Israel agrees is the legally relevant period according to the Treaty of Peace for the definition of the boundary between Egypt and Israel. Israel further contends that the several conventions between the Parties related to the boundary, with their implicit reference to the 1906 Agreement, are sufficient for the Tribunal’s task and that the Egyptian reliance on general principles of law is unnecessary.
144.
In the Taba area, Israel contends that BP 91 is on the granite knob at a location intervisible with BP 90, identified on the relevant description card. This location, while approximate in the sense that it falls within a small zone near to the shore intervisible with BP 90, is supported by its proximity to the geographical feature identified by Israel as "Ras Taba", being the promontory or cape on which the granite knob is located. The combination of these factors satisfies the conditions laid down by the 1906 Agreement: the description of the course of the boundary line contained in Article 1 as "at the point of Ras Taba on the western shore of the Gulf of Akaba" and the requirement of intervisibility between pillars set forth in Article 3.
145.
Further support for this location is drawn from the contemporaneous reports made by Owen and Wade in 1906 and 1907 respectively regarding Ras Taba and in the description given by Shoucair in his 1916 book that the 91st pillar was placed "on a small hill" which the Commissioners had named "Ras Taba".
146.
Israel also draws support for BP 91(1) on the granite knob from several maps produced soon after the demarcation of the boundary in October 1906. The map attached to Owen’s Report is captioned "map annexed to the Agreement of 1 st October 1906". This map, as well as the map attached to the Wade Report, the 1909 Turkish military map, and the 1916 Turkish-German map, show the line ending at a triangle, which in the context could only represent Wade’s astronomical station A.1 or B.l. Israel contends that the triangle represents B.l.
147.
Israel finds confirmation of its claim for BP 91 on the granite knob in the description of Egyptian boundaries contained in the Statistical Yearbook of Egypt for 1909, which reads in relevant part:

East. —The boundary follows the line laid down in 1907 from Rafa, near El Arish, to the head of the Gulf of Aqaba at Taba (lat. 29°29T2" N. and long. 34°55'05" E., granite knob on the shore). Thence down the Red Sea...

148.
Israel alleges that additional evidence indicating a Turkish police or frontier post down in the Wadi during the years immediately following the 1906 Agreement supports the conclusion that the 1906 line ended at BP 91(1) on the granite knob. In this connection, Israel cites the guidebook by Meistermann, Guide du Nil au Jourdain, published in 1909 (repeated in 1913), at page 190:

On laisse à gauche le ouâdi Mezarik (lh. 10), puis on arrive au ouâdi Tabah (15 min.), qui possède un puits d’eau saumâtre entouré de quelques palmiers doums, et une citerne en bonne maçonnerie. Cet endroit acquit une certaine notoriété en 1906. Les troupes turques l'avaient occupé, malgré les protestations des Anglais; définitivement il est resté dans le territoire égyptien. Mais en deçà de l'oasis passe la nouvelle frontière de l'empire ottoman, sur laquelle veille un poste de soldats turcs, casemés dans un petit fort.

La route fléchit vers l'est et contourne un petit cap, râs el Masri, traversé par la gorge du naqb es Sath (1 h.). Dans la direction du nord court une chaîne de basalte, de granit et de porphyre d'une coloration remarquable...

A similar description found in Baedeker’s Palestine and Syria (5th ed. 1912), also invoked by Israel, reads at page 213:

In about 1 hr. 10 min. we reach the Wâdi Mezarik', 1/4 hr. the Wâdi Taba, with a bitter spring and dûm-palms. Close by is a cistern of red stone. Just beyond is the Egyptian-Turkish frontier, with a Turkish military post. The Râs el-Masri, a promontory of dark stone, is rounded (1 hr.)...

Israel suggests that a rest house located next to the granite knob and prepared from "an old building" for visiting officials by the Egyptian Frontier Districts Administration in 1932-33 may be a reference to the Turkish military post noted by Meistermann and Baedeker. Further, Israel cites the April 1913 Sudan Intelligence Report, a centralized British compilation of reports from agents throughout the Middle East, where on page 6 "[i]t is reported that... a Pasha with two guns have arrived at Akaba. The guns are said to have been placed in position at Taba and on J. Bereio."

149.
Finally, Israel submits a photograph published in June 1946 in Western Arabia and the Red Sea, part of the Geographical Handbook Series prepared by the British Naval Intelligence Division, showing the rest house near the granite knob and a "cairn", which itself, although not alleged to be a boundary pillar, is alleged to be related to the boundary and intervisible with BP 90.
150.
Israel also contends, in the alternative, that BP 91, if it is not found by the Tribunal to have been located at the granite knob, must have been located at the site near Bir Taba identified in the description cards, which site is also intervisible with BP 90.
151.
Apart from satisfying the conditions of the 1906 Agreement, Israel contends that the alternative location is supported by several descriptions of the boundary made by officials of the British Government during the Mandate period which all mention "Bir Taba" in conjunction with the boundary line. The first of these descriptions is found in another volume of the Geographical Handbook Series in December 1943 on Palestine and Transjordan. The book describes the southern and south-western boundaries of Palestine at page 1 as extending "[f]rom Akaba along the gulf to Bir Taba and then north-westwards to the Mediterranean immediately north-west of Rafa..." It likewise describes at page 522 the Sinai-Palestine frontier in the vicinity of Aqaba as running "north-west from Bir Taba, about 8 miles south-west of Akaba round the coast of the gulf’. Furthermore, on 16 September 1945, in response to an inquiry from the Colonial Office prompted by a request for information from the Anglo-Iranian Oil Company, a Foreign Office official minuted his response regarding "the actual length of the coast line in the Gulf of Aqaba deemed to be Palestine territory" by stating that "[t]he Palestinian coast line on the Gulf of Aqaba extends from a point two miles west of the village of Aqaba as far as Bir Taba... The frontier between Egypt and Palestine follows the former boundary between Egypt and the Ottoman Empire, as drawn in 1906..." On 17 September 1945, the Map Section of the Research Department of the Foreign Office issued an inter-departmental memo to the Eastern Department describing the Palestine-Transjordan boundary as running along the coast west and south-west "a distance of 6 1/2 miles to Bir Taba", where the Palestine-Sinai boundary leaves the coast and runs in a north-west direction. A Note describing the boundaries in the neighbourhood of Aqaba was attached to the minutes of a meeting held on 30 October 1945 in the Colonial Office. The Note states that the Palestine-Egypt boundary follows the old boundary between Egypt and the Ottoman Empire. "It leaves the Gulf of Aqaba at Bir Taba and then goes north-westwards to the Mediterranean."
152.
In the Ras el Naqb area, Israel contends that the existing pillars on the ground are not properly situated in respect to the geographic features of Wadi Taba and its eastern ridge, Jebel Fort, Jebel Fathi Pasha, and the Mofrak, invoked in the description of the course of the line contained in Article 1 of the 1906 Agreement. According to Israel, the pillar locations claimed by Egypt in this area are not on the boundary line because they do not overlook Wadi Taba from the east, and are not located on Jebel Fort or near Jebel Fathi Pasha as stipulated in the 1906 Agreement. Moreover, Israel contends that the burden of proving the authenticity of the existing pillars lies with Egypt.
153.
Israel alleges that Wadi Taba extends nearly as far north as the edge of the Ras el Naqb plateau near to the Nekhl road and that, according to the terms of Article 1 of the 1906 Agreement, the disputed pillars placed from Ras Taba up to or close to Jebel Fort must have been on the heights overlooking the Wadi, as are the pillars at the agreed locations of BP 89 and BP 90. Israel contends that Wadi Taba, in its upper reaches, follows a drainage line which does not bear any name on any maps. Israel further alleges that it could not be either of the tributaries identified on some maps as Wadi Gasairiya or Wadi Haneikiya. Support for this contention is drawn from Owen’s understanding of the extent of Wadi Taba as shown by his "rough map" of the area included with his letter to Lord Cromer of 3 June 1906 and from his description of nearby features, such as Jebel Fathi Pasha, overlooking part of Wadi Taba.
154.
The feature of Jebel Fort, in Israel’s view, overlooks the beginning of Wadi Taba and is represented on the map attached to the Wade Report of 1907 at Israel’s location for BP 86. Israel also argues that its location is on the real Jebel Fort since the feature better satisfies the description of a fortress.
155.
Likewise, the feature of Jebel Fathi Pasha, in Israel’s view, dominates the Ras el Naqb area and coincides on the Wade Map with Israel’s location for BP 85. Further support for this assertion is found in Owen’s and Wade’s descriptions of the area. While the 1906 Agreement stipulates that the line passes within 200 metres of the summit of Jebel Fathi Pasha and the Owen and Wade Reports indicate that two pillars were erected in this locality, Israel, after having added a pillar location (BP 87(I)) south of its location for Jebel Fort, now claims only one pillar location in order to respect the number of pillars agreed to by the Joint Commission.
156.
The locations of BP 88(I) and BP 87(I) were selected in light of the description in Article 1 of the 1906 Agreement that the line from Ras Taba to Jebel Fort "follows along the eastern ridge overlooking Wadi Taba"
157.
In response to Egypt’s reliance on the deployment of UNEF forces, Israel contends that this is evidence only of the course of the armistice line which was established without prejudice to the political frontier between Egypt and Israel.
158.
With respect to the pillars north of the Ras el Naqb area, Israel bases its claims on a variety of reasons.
159.
Israel’s claim for BP 7(I) is based on concrete remains of an authentic pillar and the proximity of a UNEF barrel marker, found about 9 metres west of the base of the hillock on which BP 7(I) is located. Israel alleges that UNEF markers constitute strong, though not irrebuttable, evidence of the boundary. Israel also alleges that all pillars in this area were agreed to on the basis of remnants and not straight lines.
160.
Israel’s case for BP 14(I) is based on the discovery at the site in 1981 of a concrete-filled pipe of the same type agreed to indicate the locations of BP 8, 11, and 16 and all apparently UNEF pipe markers. Israel also alleges that BP 14(I) was a boundary pillar/trig point coordinated by the Survey of Egypt and included as a boundary pillar location in the Hilmy letter.
161.
For BP 15(I) and BP 17(I), Israel’s claims are based on slight remnants of an authentic boundary pillar and corroborated by unspecified information drawn from a UNEF survey.
162.
Israel’s case for BP 27(I) is based on an inference drawn from a 1955 Israeli survey description card that the authentic pillar was next to the cement trig point marker found on the site in 1981 and advanced by Egypt as BP 27(E). The survey card contains a sketch of the cement trig point and the old pillar. The pillar shown on the sketch was not at the site in 1981. The location of BP 27(I), taken to be the location of the old pillar, was derived by extending lines through multi-layered concrete pyramid markers placed along the armistice line in this area by Israel before 1956. BP 27(I) is the point where these lines intersect.
163.
Israel’s claimed locations at BP 46(I), BP 51(I), BP 52(I), and BP 56(I) are based on various steel pipes or the remains of their concrete bases erected by Israel in the early 1960s to mark the armistice line. Israel alleges that such steel pipes marked the agreed locations of BP 42, 43, 44, 49, 53, and 55. Israel disputes the relevance of the piles of stones found near to the pipe markers at BP 46(I), BP 51(I), and BP 56(I) on the grounds that no base of an original pillar was found under the stones to indicate the location of the original pillar, as was the case at other agreed locations. Israel alleges that the original base was used in each instance for the pipe markers and that the stones were displaced for this purpose.

II. Reasons for the Award

A. Preliminary Issues

1. The Task of the Tribunal

164.
Article II of the Compromis states:

The Tribunal is requested to decide the location of the boundary pillars of the recognized international boundary between Egypt and the former mandated territory of Palestine, in accordance with the Peace Treaty, the April 25, 1982 Agreement, and the Annex.

165.
The relevant Article II of the Treaty of Peace of 26 March 1979 stipulates, inter alia:

The permanent boundary between Egypt and Israel is the recognized international boundary between Egypt and the former mandated territory of Palestine, as shown on the map at Annex II, without prejudice to the status of the Gaza Strip. The Parties recognize this boundary as inviolable...

166.
Article IV(3) of the Treaty of Peace provides that a "Joint Commission will be established to facilitate the implementation of the Treaty, as provided for in Annex I [concerning Israeli withdrawal and security arrangements]".
167.
The 1982 Agreement specifies that "[r]epresentatives of the United States Government will participate in the negotiations concerning the procedural arrangements which will lead to the resolution of matters of the demarcation of the International Boundary between Mandated Palestine and Egypt in accordance with the Treaty of Peace, if requested to do so by the parties". (See also Article IV(3)(d) of the Appendix to Annex I to the Treaty of Peace.)
168.
The demarcation matters referred to in the 1982 Agreement are reduced in the Annex to the Compromis to the location of fourteen "boundary pillars of the recognized international boundary between Egypt and the former mandated territory of Palestine" (see also the preamble to the Compromis).

a. Meaning of the phrase "the recognized international boundary between Egypt and the former mandated territory of Palestine"

169.
The formula concerning "the recognized international boundary between Egypt and the former mandated territory of Palestine" originated in the 1978 Camp David Accords and was repeated, in a slightly revised form, in the 1979 Treaty of Peace and the 1986 Compromis. This description of the boundary is not very clear or specific, particularly the word "recognized" is in the context ambiguous.
170.
As has been stated above in paragraph 143, Israel submits that both Great Britain, as mandatory power, and Egypt in 1926 explicitly recognized the line defined in 1906 as the boundary between Egypt and Palestine. By virtue of this renvoi to the 1906 Agreement, Israel contends, the Tribunal is referred to the line defined in the 1906 Agreement, not to the boundary pillars established pursuant thereto. The Tribunal cannot share this view. First of all, the expressions "defined in 1906" and "defined by the 1906 Agreement", which were used in British and Egyptian declarations in 1926, do not have a particular technical meaning in the sense that they refer only to the description of the boundary line in the Agreement to the exclusion of the demarcation of the boundary also expressly provided for by the 1906 Agreement. It can hardly have been the meaning of the declarations of Great Britain and Egypt in 1926 that the demarcation of the boundary, as it took place in 1906-07, could be disregarded. It is important in this respect that both Great Britain and Egypt were well acquainted with the demarcated boundary. Egypt had taken part in the demarcation of the boundary. Both States had made surveys and produced maps of the region, both before and during the time of the British Mandate over Palestine. The 1915 British map and the 1926 and 1935-38 Egyptian maps even indicate the location of boundary pillars. Neither State ever questioned the demarcated line.
171.
It would also hardly be understandable why the Treaty of Peace and the Compromis should refer to "the recognized international boundary between Egypt and the former mandated territory of Palestine" if reference could just as well have been made directly to the 1906 Agreement. Moreover, Israel’s contention that the boundary line proposed by it corresponds to "the legal line" as defined by the 1906 Agreement, while the Egyptian line, which in its southern part is based on boundary pillars, deviates from the Agreement, has not been confirmed by the evidence submitted to the Tribunal, as will be shown later in the Award.
172.
The Tribunal will therefore have to decide the locations of the fourteen boundary pillars on the basis of the boundary between Egypt and the former mandated territory of Palestine as it was demarcated, consolidated, and commonly understood during the period of the Mandate (29 September 1923-14 May 1948, also referred to as "the critical period"). Although both Parties referred to 24 July 1922 as the starting date of the Mandate, the Tribunal considers that 29 September 1923, the date of the formal entry into force of the Mandate, is the appropriate date in the circumstances.
173.
In so far as there are doubts as to where the boundary pillars stood during the period of the Mandate or for confirmation of its findings, the Tribunal, for its part, will also consider the 1906 Agreement, but merely as an indice among others, as to what was the situation on the ground during the critical period. In the same way, the Tribunal will consider any relevant evolution with regard to the delimited and demarcated boundary prior to the critical period.
174.
In this context it is worth mentioning that even when the Annex to the Compromis refers to "the final boundary pillar No. 91" it adopts literally and without qualifications the following words from the translation of the 1906 Agreement included in Owen’s General Report: "at the point of Ras Taba on the western shore of the Gulf of Akaba".
175.
Events subsequent to the critical period can in principle also be relevant, not in terms of a change of the situation, but only to the extent that they may reveal or illustrate the understanding of the situation as it was during the critical period. However, in the present case the Tribunal has felt it to be of only limited use to consider events belonging to the troublesome period after the termination of the Mandate and during which period also the nations involved were not the same as before.

b. Restrictions imposed upon the Tribunal concerning the locations advanced by the Parties

176.
The Annex to the Compromis provides further that the Tribunal is not authorized to establish a location of a boundary pillar other than a location advanced by Egypt or by Israel and recorded in Appendix A. The Parties agree that, if the evidence of one Party is not conclusive in itself, the Tribunal has to weigh the evidence of one Party against that of the other, and the decision will be in favour of the Party with the "better" claim. However, it has also been proposed by Egypt, with Israel in opposition, that this power to decide according to the "relative weight" of evidence may be translated into physical distance, namely: if there is no proof for locations A and B claimed by the respective Parties, but there is proof for location C which is physically nearer to A than to B, the Tribunal may attribute this evidence to A and consider this as "preponderance of evidence". The Tribunal does not consider it to be either logical or reasonable to draw such conclusions. The "preponderance of evidence" rule means that the Tribunal may find for location A in the above example if the evidence for A is stronger than the evidence for B. But if there is no evidence for A, it cannot be replaced by evidence for C, even if C is physically nearer to A than to B.
177.
The Tribunal must also consider the meaning of the word "address" in the following sentence in paragraph 5 of the Annex: "The Tribunal... is not authorized to address the location of boundary pillars other than those [fourteen] specified in paragraph 1." Does this mean that the Tribunal may not discuss any other pillar, or does it mean merely that the Tribunal may not adopt any decision concerning other pillars? The Tribunal holds the second interpretation to be the correct one. The word "address" appears also in paragraph 1 of the Annex. There, the Parties state that the location of pillars 26 and 84 depends on the location of pillars 27 and 85 respectively, and that therefore "the Tribunal shall not address the location of boundary pillars 26 and 84". Certainly, in this context the prohibition to "address" those pillars concerns only the adoption of a decision on their location. It is only logical that the word "address" should be given the same interpretation in two paragraphs of the same Annex. Hence, the Tribunal is not precluded from discussing "other" locations, but it may not adopt any decision on their location. In particular, the Tribunal has not the task to determine the course of the boundary from BP 91 to the shore and beyond.

2. The admissibility of Egypt’s claim for BP 91(E)

178.
Egypt produced with its Memorial the so-called Parker photographs (see paragraphs 105-108 above) and submitted that they established the location of BP 91(E), because the pillar shown therein was at or in the immediate vicinity of BP 91(E). Israel could conclusively demonstrate that the Parker photographs are not related to BP 91(E). They show instead a pillar erected 284 metres apart from the location BP 91(E) in horizontal distance and 64 metres in vertical distance. Israel argues that Egypt, by claiming a location for BP 91 at the site of the Parker pillar, had abandoned its claim to BP 91(E) and hence to any location of which the Tribunal is permitted to take cognizance. In procedural terms, Israel in effect asks the Tribunal to declare that the Egyptian claim for BP 91(E) is no longer admissible because Egypt was now asking for another location and that, in the absence of an admissible Egyptian claim to a location for BP 91, the Tribunal must find in favour of one or the other of the Israeli locations.
179.
Egypt states that it is a blatant distortion of Egypt’s position to maintain that Egypt has abandoned its claim to BP 91(E). In its Memorial, Egypt submits that the Tribunal should "adjudge and declare that the location of each such boundary pillar as set forth in the Egyptian description cards in Appendix A to the Compromis... is the exact location of such boundary pillar on the recognized international frontier". In the final paragraph of the Egyptian Counter-Memorial, Egypt reaffirms its "Submissions" in the Memorial. And once again in the "Submissions" in the Egyptian Rejoinder, Egypt requests the Tribunal to adjudge and declare that "BP 91... is at the location set forth in the Egyptian description card in Appendix A to the Compromis".
180.
Egypt submits that at the time when the Memorial was prepared, Egypt was unable to identify precisely where, on the eastern ridge overlooking Wadi Taba, the site of the original pillar shown in the photographs was. This explains why, in the Memorial, the Parker photos were cited as demonstrating conclusively that neither of the claimed Israeli locations for BP 91 could be correct and as indicating the existence of a pillar "at or in the immediate vicinity of the location indicated by Egypt".
181.
It follows from these contentions that Egypt, when it submitted with its Memorial the Parker photographs, was erroneously of the opinion that the Parker pillar stood at or in the immediate vicinity of the location of BP 91(E). When it realized its error, however, it reiterated in the Counter-Memorial, in the Rejoinder, and at the oral proceedings its Submissions made in the Memorial. The location of BP 91(E) falls undoubtedly within the scope of all these Submissions. Under these circumstances, there is no reason to disregard Egypt’s claim for BP 91(E). Evidently, the Tribunal is not authorized to decide on the location of the Parker pillar.

B. The Fourteen Pillar Locations

1. The Nine Northernmost Pillars

182.
The Parties have neither in their written nor in their oral pleadings put much emphasis on the nine northernmost disputed pillars nos. 7, 14, 15, 17, 27, 46, 51, 52, and 56. This lack of attention is understandable in light of the fact that the distances between the disputed pillar locations are very small. In four instances the disputed pillar locations are less than six metres apart, in another four between 34 and 65 metres, and in one case about 145 metres. In only two of these cases does the difference of the respective locations create a divergence of more than 20 metres between the boundary lines claimed by Egypt and Israel. In addition, the nine pillars are situated in an uninhabited desert region where apparently no essential interests of the Parties are involved and little evidence was available to assist the Parties or the Tribunal in the establishment of the pillar locations. Moreover, despite the Tribunal’s request, the Parties did not even succeed in producing a coherent large-scale map showing the disputed locations of the nine pillars.
183.
The facts and contentions with regard to these nine pillar locations submitted during the written and oral proceedings proved to be largely inconclusive. The Tribunal must take into account the relative strength of the titles invoked by the Parties, as stated in paragraph 176 above and as was done by the arbitrator in the Island of Palmas case (2 RIA A 869-70).
184.
The Parties base their respective claims on several types of evidence whose relative weight must be examined. First, for most of the disputed pillar locations, one or the other Party alleges the existence of remnants of original boundary pillars. In addition, other types of markers, some erected by UNEF and others by the Survey of Israel during the 1950s and 1960s, are alleged by Israel to indicate the boundary pillar locations in several places. In no case of alleged remnants of original pillars, however, could the Tribunal find sufficient evidence demonstrating that the loose stones considered as remnants actually marked the location of an original boundary pillar, even if it is accepted that the stones might have come from original boundary pillars. As to UNEF markers or markers erected by the Survey of Israel, the Tribunal similarly finds no sufficient evidence as to the accuracy of their placement or certainty of their origin. Second, in the absence of alleged remnants or other physical markers,' Egypt bases its claims on map evidence. Egypt systematically derives information concerning coordinates, elevation, and distances regarding its disputed pillar locations from its 1935-38 map of the Sinai. The Tribunal does not consider these map-based indications to be conclusive since the scale of the map (1:100,000) is too small to demonstrate a location on the ground as exactly as required in these instances where the distances between disputed pillar locations are sometimes only of a few metres. By way of illustration, it is sufficient to recall that on a map of the scale of 1:100,000, 1 millimetre on the map represents 100 metres on the ground. On the other hand, maps can be of some assistance, for instance where they show straight lines through a number of boundary pillars. They will be taken into consideration in this respect.
185.
The Parties in some cases also refer to the terms of the 1906 Agreement and the Owen and Wade Reports on the delimitation and demarcation of the boundary. As was stated in paragraph 173 above, the Tribunal considers the 1906 Agreement in cases of doubt as to where boundary pillars stood during the critical period. The 1906 Agreement and the two Reports, however, contain little relevant information concerning these nine pillar locations. For instance, the fact that the 1906 Agreement and the two Reports mention that some of the disputed boundary pillars were set at locations of Wade’s astronomical stations (BP 27 on A. 11, BP 46 on A.9 bis) is not helpful. Even if it were possible to translate accurately the old coordinates of the astronomical stations given by Wade into exact locations on the ground today, this would not help distinguish between the claims of the Parties at these locations, as they are literally next to each other. Neither does the requirement of intervisibility of boundary pillars, stipulated by Article 3 of the 1906 Agreement, lead to any results since no undisputed information as to intervisibility was given to the Tribunal. The Parties did not in fact put any decisive weight on the question of intervisibility in respect of these northern pillars. The 1906 Agreement and the Owen and Wade Reports are thus relevant only as to their indications concerning straight lines drawn through a number of boundary pillars.
186.
In two cases (BP 14 and BP 27), the Parties assert that their locations coincide with a trig point identified as a boundary pillar. The Tribunal will take this evidence into account, but only found it to be determinative in one case (BP 14).
187.
Where no other relevant evidence for a pillar location has been produced by the Parties, the Tribunal will, in a subsidiary way, consider which of the claimed locations is on or closest to a straight line extended through adjacent agreed pillars, and decide on that basis. This subsidiary criterion seems legitimate in cases where the Joint Commission of 1906 intended to establish a straight line through a number of boundary pillars (see paragraph 53 above) and in view of the fact that it was the aim of the parties to the 1906 Agreement that the boundary should run approximately straight from Rafah to a point on the Gulf of Aqaba (see paragraphs 29, 32-34 above). The fact that the parties to the 1906 Agreement spoke of an "approximately" straight line (see paragraphs 32 and 33) and that they did not in fact achieve an exactly straight line, is no argument against choosing the location which is closer to the straight line. If it is impossible to ascertain the original location of a pillar and if no other indications are available, the straight line is the criterion best corresponding to the intention which was at the basis of the 1906 Agreement. The best means at the disposal of the Tribunal to ascertain which pillar location is on or closer to the straight line are, in the view of the Tribunal, the description cards supplied by the Parties in Appendix A to the Compromis. The description cards give indications as to straight lines only on one side of the disputed pillar locations, not on both sides. The Tribunal had to rely on the straight lines extended through adjacent pillars rather than on the straight line from Rafah to Taba since the position of the disputed pillar locations could not be exactly identified relative to this straight line for want of a coherent large-scale map which the Parties did not succeed in producing for the Tribunal.

a. Boundary Pillar 7

188.
For BP 7 the Parties dispute the significance of map evidence and certain remnants, which, as has been stated, cannot be considered as decisive. The Tribunal notes that according to the 1906 Agreement the boundary line was to proceed straight between astronomical stations A. 13 (BP 3) and A. 11 (BP 27). The maps presented to the Tribunal show, however, that the line between these two points is not in fact perfectly straight, but forms a slight irregular curve. The imperfect nature of this stretch of the boundary is implicit from the contentions of the Parties and is confirmed by Wade’s description of the techniques he employed in this area for the placement of the original telegraph poles. The Tribunal will therefore decide on the basis of straightness relative to neighbouring agreed pillars as shown on the relevant description cards. The description cards for BP 7(E) and BP 7(I) show that there is an absolutely straight line connecting the Egyptian location for BP 7(E) to BP 10, the angle at BP 8 being 180°00'00", while the angle at the same location on Israel’s card is 179°06' 17". The Tribunal therefore decides in favour of Egypt’s location BP 7(E).

b. Boundary Pillars 14 and 15

189.
The Tribunal considers it appropriate to consider these two consecutive pillar locations together. In both instances, the Parties again disagree on the significance of map evidence and certain remnants or other physical markers. For BP 14, however, the Tribunal notes that the coordinates of a boundary pillar in this area are indicated on the list of coordinates attached to the letter of General Hilmy of 10 August 1960. This list, prepared by Egypt, gives the coordinates for trig point L 174, identified as a frontier pillar. The coordinates on the list do not match the coordinates asserted by Egypt in its pleadings for BP 14(E) but instead seem to coincide with BP 14(I). The Tribunal therefore decides in favour of Israel’s location BP 14(I).
190.
For BP 15, in the absence of any other relevant criterion, the straight line relative to neighbouring pillars is decisive, as was the case for BP 7. Having decided in favour of Israel’s location for BP 14, it follows from the description cards that Israel’s location BP 15(I) is closer to the straight line between BP 14(I) and the agreed location of BP 16. The Tribunal therefore decides in favour of Israel’s location BP 15(I).

c. Boundary Pillar 17

191.
For BP 17, the Parties also disagree on the significance of map evidence and certain remnants found on the ground. The straight line is again the only relevant criterion on which the Tribunal can rely. The only data available to the Tribunal to determine the relative straightness of the line are the angles at BP 18 shown on the respective description cards for BP 17. The angle is 180°14'19" on the Egyptian card and 179°33'18" on the Israeli card. Egypt’s location BP 17(E) is therefore slightly closer to the straight line than Israel’s location. The Tribunal therefore decides in favour of Egypt’s location BP 17(E).

d. Boundary Pillar 27

192.
With regard to BP 27, Egypt’s and Israel’s locations are only 1.77 metres apart. Here the Parties dispute the significance of a trig point marker. Egypt’s location BP 27(E) is based on a cement trig point marker found on the site in 1981 and allegedly identical with trig point L 172 identified as a boundary pillar on one of Dr. Ball’s survey cards and on the list attached to General Hilmy’s letter. Israel, on the other hand, bases its claim on a Survey of Israel description card from 1955 for its trig point 559 Q. The card contains an illustration showing next to the cement trig point marker a masonry construction identified as an old boundary pillar, which in Israel’s opinion is the correct location of BP 27. Neither the cement trig point nor the masonry pillar exist any longer. As no further evidence is available, the Tribunal, on the basis of these submissions, has no possibility to ascertain which of the two locations is the correct one. It has therefore to rely on its subsidiary criterion, the straight line. As the Egyptian location is closer to the straight line, it decides in its favour.

e. Boundary Pillar 46

193.
In the case of BP 46, the Parties dispute the significance of a pile of loose stones near to a modern pipe marker. In these circumstances, the straighter line is again the only adequate criterion for the decision. Egypt contends that BP 46 lies on the prolongation of a straight line extended from BP 48 through BP 47 to BP 46, as shown on the 1935-38 map, and alleges that its location BP 46(E), based on a pile of loose stones, is on such a straight line. Israel, for its part, points to the fact that the description cards demonstrate that its location BP 46(I) is closer to the straight line asserted by Egypt than Egypt’s location BP 46(E). In fact, the description cards for BP 46 show that the angle at BP 47 for the line between BP 48 through BP 47 to the disputed locations of BP 46 is 180°01'19" for Israel’s location and 180°03'50" for Egypt’s location. The Tribunal therefore decides in favour of Israel’s location BP 46(I).

f. Boundary Pillars 51 and 52

194.
The Tribunal considers it appropriate to deal with BP 51 and BP 52 together. As at other locations, the Parties disagree on the significance of loose stones and of a pipe marker at the site of BP 51 and the significance of map evidence versus remnants for BP 52. Israel maintains that its location is on a hilltop, as in the case of other agreed pillar locations in the area where deviations were made from the straight line.
195.
The Tribunal notes that the 1906 Agreement stipulates a straight line between astronomical station A.8 (BP 53) and "the top of the hill west-north-west of Bir Maghara" (BP 51). In addition, Wade’s Report makes clear that he verified with the theodolite, together with one of the Turkish Commissioners, that the position of the telegraph pole placed at BP 52 was "in line with" BP 53 at A.8 on the summit of Gebel Samawi and BP 51. Moreover, all maps from the critical period, which indicate the boundary line, show a straight line between the location of BP 51 and BP 53. The Tribunal notes that Egypt’s line between BP 51(E) and BP 53 is straight while Israel’s line forms a distinct angle at BP 52(I), being separated from BP 52(E) by 145 metres. Israel objects against this reasoning that Egypt had determined its location for BP 52(E) on the basis of the straight line between undisputed BP 53 and BP 51(E), the location of which it had already decided on other grounds. Since the Tribunal takes the straight line between BP 51 and BP 53 as the basis of its decision, it is clear that only the two Egyptian locations can be considered in conformity with this requirement. At BP 51 the Egyptian and the Israeli locations are only 5 metres apart, while at BP 52 they have a distance of about 145 metres. This shows that even if a straight line were drawn between the Israeli location of BP 51 and the uncontested BP 53, the Egyptian location would be considerably closer to the straight line than the Israeli one. The Tribunal therefore decides for the Egyptian location of BP 51 and BP 52.

g. Boundary Pillar 56

196.
For BP 56, the Parties again dispute the significance of loose stones and a pipe marker at the site. No other relevant criterion is available than the straight line relevant to the neighbouring agreed pillars, in this case, agreed BP 58 through agreed BP 57 to BP 56. The description card for BP 56(E) shows an angle of 180°18'50" at the location of BP 57. The description card for BP 56(I) shows an angle of 180°16T2" at the same location. Israel’s location BP 56(I) is therefore slightly closer to the straight line than Egypt’s location. The Tribunal therefore decides in favour of Israel’s location BP 56(I).

2. Boundary Pillars 85, 86, 87, and 88

197.
The Parties disagree on the locations of the four consecutive pillars 85, 86, 87, and 88 in the Ras el Naqb area. As to pillars 85, 86, and 87, Egypt bases its claim on the fact that old pillars are at the Egyptian locations. Egypt considers them to be the original pillars erected in 1907 at the site of the temporary poles. Egypt also refers to maps of different periods which indicate pillars at these locations or show the boundary line passing through these locations. Israel recognizes that pillars exist at these locations but asserts not only that their origin is uncertain but also that their locations do not correspond to the 1906 Agreement. Article 1 of this Agreement mentions the names of several places which determine the course of the boundary line in this area (Wadi Taba, Jebel Fort, Jebel Fathi Pasha). Israel contends that the Egyptian locations do not correspond to the correct places of these geographical features and are therefore in contradiction with the Agreement. As to pillar 88, the Parties agree that no such pillar had previously existed. The Joint Commission in 1981 decided to add a new pillar in order to indicate more clearly the course of the boundary line, but could not agree on its precise location. The addition of pillar 88 led to the renumbering of the following pillars.

a. Boundary Pillars 85, 86, and 87

198.
Before dealing more closely with the arguments of the two Parties, the Tribunal considers it necessary to point to some facts which are relevant with regard to the existing pillars and the boundary line as indicated on maps. There is no clear evidence that the existing pillars at locations BP 85(E), BP 86(E), and BP 87(E) are original pillars erected in 1907. The fact that their shape is different from the pillar seen on the Parker photographs of 1906 suggests that they were erected or rebuilt at a later date. However, there is no doubt that boundary pillars have been at their present locations at least since 1915. Several maps produced from 1915 on show pillars at the Egyptian locations, especially the 1915 British Map and the maps of the Survey of Egypt of 1926 and 1935-38. Moreover, all other maps submitted to the Tribunal dating from 1906 through the entire period of the British mandate over Palestine up to 1982, on which the boundary line of 1906 is indicated (approximately 25 maps), show the same direction and shape of this line as does the line formed by the existing pillars. Slight differences which can be observed may easily be explained by the inexactness of several maps. No map made before 1982 shows a line similar to the one corresponding to Israel’s locations for pillars 85, 86, and 87. On no such map does the boundary line form a sharp break at BP 85 as it does if one follows Israel’s locations. While on all pre-1982 maps the angle at BP 85 is widely open (mostly approximately 135°) the angle of the line drawn through BP 85(I) is much smaller (approximately 75°). On no map from 1906 to 1982 does the boundary line at BP 85 lie as far west as Israel claims. This can easily be recognized not only by the form of the boundary line but also if one compares the relative positions of Israel’s and Egypt’s locations for BP 85 in relation to the triangular flat area on the plateau north of BP 85 which can be seen on most maps. The Tribunal can therefore assume that boundary pillars were in existence at Egypt’s locations for BP 85, 86, and 87 during the entire period of the British mandate over Palestine.
199.
On the basis of these facts and the contentions of the Parties, the Tribunal will, under the two following headings, examine two questions. First: Do the locations of the existing boundary pillars at BP 85(E), 86(E), and 87(E) contradict the 1906 Agreement? Secondly: If such a contradiction exists, is it the line formed by the pillars or the line described by the 1906 Agreement which prevails?

i) DO THE LOCATIONS OF THE EXISTING PILLARS CONTRADICT THE 1906 AGREEMENT?

200.
As has been stated above in paragraph 172, the Tribunal has to base its decision on the recognized international boundary as it existed between Egypt and Palestine during the period of the British mandate. The 1906 Agreement is therefore to be taken into consideration only in order to clarify the situation which existed during this period. It is with this proviso that the Tribunal will examine the contention that the locations of the existing pillars at BP 85(E), BP 86(E), and BP 87(E) are in contradiction with the 1906 Agreement.
201.
Article 1 of the 1906 Agreement reads in its initial part as follows:

The administrative separating line, as shown on the map attached to this Agreement, begins at the point of Ras Taba, on the Western shore of the Gulf of Akaba, and follows along the eastern ridge overlooking Wadi Taba to the top of Jebel Fort; from thence the separating line extends by straight lines as follows:

From Jebel Fort to a point not exceeding 200 metres to the east of the top of Jebel Fathi Pasha...

As already mentioned, Israel asserts that three places mentioned in this provision, viz., Wadi Taba, Jebel Fort, and Jebel Fathi Pasha, have been incorrectly identified on the ground by the persons who erected the pillars and by Egypt.

202.
According to the 1906 Agreement, the boundary line should pass through the top of Jebel Fort and lie at a distance not exceeding 200 metres east of Jebel Fathi Pasha. However, on the map attached to Wade’s Report of 1907 ("the Wade Map"), Jebel Fort and Jebel Fathi Pasha are indicated considerably to the west of the boundary line, the boundary line itself taking the same course as shown on all maps. This discrepancy leads Israel to conclude that the boundary line has to be drawn more to the west in order to pass through the top of Jebel Fort and to a point not exceeding 200 metres east of Jebel Fathi Pasha. A further map, the Turkish Military Map of 1909, which does not mention Jebel Fort, indicates Jebel Fathi Pasha also more west of the boundary line than would correspond to the 200 metres mentioned in the 1906 Agreement. A third map, the 1911 Egyptian Map, shows Jebel Fort west of the boundary line while it remains uncertain to which feature the words Jebel Fathi Pasha exactly refer. These three maps are the only ones in favour of Israel’s contentions, but, as has been mentioned, the boundary line on these maps takes the same course as the one shown on all the other maps.
203.
On other maps which were also produced in the years of the conclusion of the Agreement and of the demarcation of the boundary, Jebel Fort and Jebel Fathi Pasha are in accordance with Egypt’s locations and with the corresponding boundary line. Two other maps made by Wade in July 1906, the "Wade Original" and the "Wade Sketch Map" (also called "Wade Survey" and "Aqaba-Rafah Map") confirm Egypt’s claim. Although neither map shows the boundary line (they were made before the demarcation), the names of both Jebel Fort and Jebel Fathi Pasha appear in places corresponding to Egypt’s locations. The 1907 British War Office Map also shows both Jebel Fort and Jebel Fathi Pasha at Egypt’s locations and in their correct relation to the boundary line.
204.
The maps invoked by Israel, taken alone, do therefore hardly furnish sufficient evidence against the correctness of the existing boundary pillar locations. This seems all the more being the case as even the maps invoked by Israel show differences among each other. Although there is no obvious explanation for the deviations on a few maps, one has to bear in mind that all maps concerned have a very small scale (the map attached to the Wade Report 1:500,000) and do not show a particular precision. Both Parties repeatedly observed during the pleadings that the maps in question differ in many details. It may also be pointed to the fact that on the Wade Map attached to his Report, which is the principal evidence of Israel, the words "Ras Taba" are printed in a place which neither of the Parties considers as correct.
205.
Israel points to a further discrepancy of maps which, however, relates to Jebel Fathi Pasha only. Most maps dating from 1906 to 1911 and which have a scale not smaller than 1:100,000 show, in the region of Jebel Fathi Pasha, a group of three small hills close together (Wade Original, Wade Sketch Map, the map alleged to have been annexed to the authentic Turkish text of the 1906 Agreement, 1906 Egyptian Map, Rushdi Map, 1911 Egyptian Map). On all of these maps, except on the Wade Original and the Wade Sketch Map which were made before demarcation, the boundary line runs between the middle and the eastern hill. According to Egypt, the middle hill is Jebel Fathi Pasha. However, Israel points out that on two maps (Wade Original and 1906 Egyptian Map) the words "Jebel Fathi Pasha", or an abbreviation of them, are printed next to the westernmost of the three hills and therefore do not support Egypt’s position. On other maps, however, the words "Jebel Fathi Pasha" rather relate to the middle hill or can be related to either the middle or the western hill (Wade Sketch Map, Rushdi Map, and 1911 Egyptian Map). Here again, we are in the presence of a difference of maps which are not too reliable as to details. The fact that on some maps the words "Jebel Fathi Pasha" for one reason or another are not printed exactly where the Parties claim they ought to have been printed can hardly be taken as convincing evidence to disprove the correctness of the boundary line as it is indicated on most maps and demarcated on the ground.
206.
Israel advances another argument against the correctness of Egypt’s locations. It refers to Article 1 of the 1906 Agreement which states that the separating line "follows along the eastern ridge overlooking Wadi Taba to the top of Jebel Fort". Israel argues that according to this provision Jebel Fort must lie at the end of the eastern ridge overlooking Wadi Taba or, at least, not too far from that end. Egypt’s location of Jebel Fort, obviously, lies far away from Wadi Taba (Wadi Taba as understood either by Egypt’s or by Israel’s definition, as will be stated below). Israel contends that only its location of Jebel Fort is in accordance with Article 1 of the 1906 Agreement. Israel’s contention presupposes, however, that Wadi Taba is understood according to Israel’s definition. While Egypt asserts that Wadi Taba embraces only the region between Taba and the point north of BP 89 where Wadi Taba bifurcates into three tributaries, Israel contends that Wadi Taba does not end at this point but continues into the middle one of the three tributaries. Israel’s location of Jebel Fort has, consistent with its contention, been placed on the eastern ridge of this middle tributary.
207.
Israel’s argumentation depends on two assumptions: First, on a particular interpretation of Article 1 of the 1906 Agreement, and secondly, on the definition of Wadi Taba. As to the interpretation of Article 1 of the 1906 Agreement, the Tribunal cannot see any incompatibility between Egypt’s location of Jebel Fort and Article 1. The wording of Article 1 does not require that Jebel Fort must be on the eastern ridge of Wadi Taba or a point not far from it. It does not exclude that Jebel Fort lies at a considerable distance from the end of the eastern ridge. It may also be observed that both according to Owen and to Wade, Jebel Fort is not considered to be on the "east cliffs" or the "Taba Hills". As to the definition of Wadi Taba, there is no conclusive evidence for the Israeli view. In almost all maps which show the designation "Wadi Taba", this designation is printed in the lowest part of the Wadi. On only two maps the designation "Wadi Taba" is used for one of the tributaries above the bifurcation north of BP 89. One is Owen’s "rough map" of 1906 which in fact is a handmade sketch obviously designed from memory only. Wadi Taba on this sketch reaches up to the plateau of Ras el Naqb and is met in its higher part by Wadi Tuéba. As the three tributaries of Wadi Taba north of BP 89 are not distinguished on this sketch it seems hardly possible to draw the conclusion from it that it must be the middle tributary which is Wadi Taba. The other map is the 1933 Mitchell Map on which the eastern, not the middle, tributary is designated as "Wadi Taba". Only two further pre-1948 maps give an indication as to the names of the tributaries, but do not designate any of them as "Wadi Taba": the 1915 British Map and the 1935-38 Egyptian Map. Both maps show the names "W. Haneikiya" for the western tributary and "W. Gasairiya" for the eastern tributary, but give no name for the middle tributary. The contention that the middle tributary bears the name "Wadi Taba" finds no basis in any pre-1982 document or map submitted to the Tribunal.
208.
The Tribunal therefore arrives at the conclusion that the locations of the existing boundary pillars 85, 86, and 87 are not in contradiction with the 1906 Agreement.

ii) THE LEGAL SITUATION IN CASE OF CONTRADICTIONS BETWEEN EXISTING PILLAR LOCATIONS AND THE 1906 AGREEMENT

209.
Although the Tribunal does not find any contradiction between the existing boundary pillar locations and the 1906 Agreement it will also examine the question whether in case of such contradiction it is the line formed by the existing pillars or the line described by the 1906 Agreement which prevails. Such an examination seems appropriate in view of a complete exploration of the case.
210.
Article 3 of the 1906 Agreement states that "[b]oundary pillars will be erected, in the presence of the Joint Commission, at intervisible points along the separating line..." The demarcation took place in two phases: first, the erection of provisional telegraph poles during October 1906, and, secondly, the replacement of them by permanent masonry pillars between 31 December 1906 and 9 February 1907. Both operations were carried out in the presence of the Egyptian and Turkish Commissioners or representatives. As to the first operation, the Owen and Wade Reports confirm the cooperation of both Parties. For the second operation, the Parker photographs of 31 December 1906 show the presence of the Commissioners or representatives of both sides at the erection of the first masonry pillar. As to the rest of the pillars, the collaboration of the Parties has to be presumed since Article 3 of the 1906 Agreement prescribes it and no party ever claimed that the Agreement had not been correctly executed. (See paragraph 170 above.) At two later occasions, in 1909 and 1911, Turkish and Egyptian officials cooperated in the rebuilding of certain boundary pillars. If a boundary line is once demarcated jointly by the parties concerned, the demarcation is considered as an authentic interpretation of the boundary agreement even if deviations may have occurred or if there are some inconsistencies with maps. This has been confirmed in practice and legal doctrine, especially for the case that a long time has elapsed since demarcation. Ress concludes an examination of cases with the following statement: "If the parties have considered over a long time the demarcated frontier as valid, this is an authentic interpretation of the relevant international title." (Ress, The Delimitation and Demarcation of Frontiers in International Treaties and Maps, Institute of International Public Law and International Relations in Thessaloniki 1985, pp. 435-37, especially 437; see also Münch, "Karten im Völkerrecht", Gedachtnisschrift fiir Friedrich Klein, Munich 1977, p. 344) It may also be referred to the Judgment of the International Court of Justice in the Temple case where the Court states:

In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality. This is impossible if the line so established can, at any moment, and on the basis of a continuously available process, be called in question, and its rectification claimed, whenever any inaccuracy by reference to a clause in the parent treaty is discovered. Such a process could continue indefinitely, and finality would never be reached so long as possible errors still remained to be discovered. Such a frontier, so far from being stable, would be completely precarious. (1962 ICJ Reports 34)

It is therefore to be concluded that the demarcated boundary line would prevail over the Agreement if a contradiction could be detected. As has been stated, no such contradiction exists.

211.
For these reasons, the Tribunal decides in favour of Egypt’s locations BP 85(E), BP 86(E), and BP 87(E).

b. Boundary Pillar 88

212.
Egypt’s and Israel’s locations for this new pillar are near the top of the same hill, only 44.53 metres apart and apparently at the same elevation, with the Egyptian location on the eastern side, the Israeli on the western side of the hill. Egypt argues that its location corresponds to pre-1982 maps and to the coordinates of the place where the boundary line forms a slight bend, which can be seen on the 1935-38 map. Israel disputes Egypt’s methodology and contends that pillar 88 must satisfy the requirement of being situated on "the eastern ridge overlooking Wadi Taba". Israel therefore places the pillar at a point from where one can look down into the middle of the three tributaries, which it considers to be Wadi Taba. Egypt’s location does not overlook this tributary.
213.
Since no previous pillar 88 is known to have existed, the Tribunal has to choose the one of the two locations which fits more logically into the context of the neighbouring pillars. The Tribunal takes into consideration that no conclusive evidence could be found to show that the middle tributary of Wadi Taba bore the name Wadi Taba. The Israeli argument that pillar 88 must overlook this tributary cannot therefore have any weight for the Tribunal. Furthermore, the Tribunal has arrived at the conclusion that Article 1 of the 1906 Agreement does not presuppose that the "eastern ridge overlooking Wadi Taba" extends all the way up to Jebel Fort. There is therefore no necessity to place the new pillar on the eastern ridge overlooking Wadi Taba, wherever that ridge may be. As no other criterion is available, the Tribunal has to base its decision on the straight line criterion to which the parties to the 1906 Agreement repeatedly referred during their negotiations leading to the conclusion of the Agreement (see paragraphs 29 and 32-34 above) and which has already been used by the Tribunal with regard to several of the northern pillars (see paragraph 187 above). In the circumstances of BP 88, the Tribunal finds it most appropriate to take the straight line between Egypt’s location BP 87(E), accepted by the Tribunal, and the agreed location of BP 89 as the basis for its decision. The two neighbouring pillars are here recognizable on the maps and on the ground. Egypt’s location is closer to the straight line. For these reasons, the Tribunal decides in favour of Egypt’s location BP 88(E).

3. Boundary Pillar 91

214.
The Tribunal has from the beginning been conscious of the particular importance both Parties attach to pillar 91. Indeed, the Annex to the Compromis contains a sentence dealing specifically with this pillar:

For the final pillar No. 91, which is at the point of Ras Taba on the western shore of the Gulf of Aqaba, Israel has indicated two alternative locations, at the granite knob and at Bir Taba, whereas Egypt has indicated its location, at the point where it maintains the remnants of the boundary pillar are to be found.

215.
The positions of the Parties with regard to BP 91 were most strongly affected during the written and oral proceedings by the so-called Parker photographs, submitted by Egypt with its Memorial (see paragraphs 105-108 and 178-181 above). These photographs show a pillar at a location on a cliff above the shoreline of Taba which does not correspond to any of the three locations advanced by the Parties for BP 91. The pillar had disappeared by the time Israel removed part of the cliffs on which it was built when constructing a new road along the coast around 1970.
216.
The existence of the Parker pillar has considerable repercussions on the claims of the two Parties concerning BP 91. If the Parker pillar was correctly located as the first (or final, if one takes the opposite direction) pillar in 1906 and formed part of the international boundary line during the critical period, it excludes the two locations advanced by Israel for the final pillar location. On the other hand, if the Parker pillar existed during the critical period, the pillar at the Egyptian location of BP 91 was not the final pillar at that time. In view of the considerable impact on the Parties’ claims for BP 91, the Tribunal will have to take the question of the Parker pillar into consideration when examining the claims concerning BP 91. The Tribunal is, however, excluded by paragraph 5 of the Annex to the Compromis from taking any decision on the location of this pillar.

a. Israel’s Alternative Locations

217.
Israel advances two alternative locations for BP 91 : BP 91(I) (east)—the location on the westerly lower end of the granite knob—and BP 91(I)(west)—the location at Bir Taba. In the oral proceedings, Israel concentrated its arguments on BP 91(I) (east), without abandoning the alternative location. Israel brought forward several arguments in favour of its locations which will be taken into consideration, together with contrary arguments, in the following paragraphs.
218.
Israel’s strongest argument is based on intervisibility. Israel argues that its locations are intervisible with the preceding pillar (agreed pillar 90) while Egypt’s location is not. Israel argues that intervisibility between boundary pillars is mandatory, because Article 3 of the 1906 Agreement provides that "[b]oundary pillars will be erected... at intervisible points". Owen’s Report also states that "[n]inety intervisible pillars were erected". It is not contested that intervisibility exists for the two Israeli locations but not for the Egyptian location. The value of this argument will be judged in connection with BP 91(E) (see paragraphs 236-237 below). The argument will lose its weight if it can be shown—as will be shown in paragraph 237 below—that BP 91(E), in spite of the lack of intervisibility, was a regular pillar of the recognized international boundary between Egypt and the former mandated territory of Palestine.
219.
Israel also advances map evidence. It relies principally on the maps attached to the Wade and Owen Reports, as well as on two military maps from 1909 and 1916, because these appear to show the boundary as terminating at a triangle which must be one of the astronomical stations A. 1 or B. 1. However, only two maps, the 1909 Turkish military map and the 1916 Turkish-German map, show the boundary line clearly ending in a triangle. On the maps attached to the Owen and Wade Reports, the boundary line ends at the eastern edge of the triangle. As the scale of these maps is 1:500,000 and the triangle is relatively large, no conclusions can be drawn from these maps as to where the line in fact ended. It is furthermore uncertain whether the triangle on these maps represents A.1 or B.1. Other maps of the early years clearly show the boundary line ending east of the triangle and therefore rather at the location of the Parker pillar. This applies to the 1906 Survey of Egypt map, the 1907 British War Office map, the 1908-09 Rushdi map, and the 1911 Survey Department of Cairo map. In view of such divergences, evidence drawn from the early maps with regard to the final pillar location cannot lead to any clear conclusion. All later maps (from 1915 on), except the 1916 Turkish-German map, show the line passing through BP 91(E) or both BP 91(E) and the Parker site, as will be shown in paragraphs 227-228 below.
220.
Israel furthermore argues that the Statistical Yearbook of Egypt for 1909 identified the boundary as terminating at the granite knob. However, the evidentiary value of such technical publications, designed to provide general information, is low, for such publications are not designed as authoritative statements about boundaries. They fall within the category of what could be described as encyclopaedic reference books and not administrative acts. In any event, that reference to the terminal point of the boundary disappeared in the following years, and certainly throughout the critical period of the Mandate there is no evidence that either Egypt or Great Britain relied upon that one, isolated reference to the granite knob as evidence of the terminal point. Israel’s argument is also weakened by the fact that the Statistical Yearbook of Egypt for 1909 refers to the coordinates of astronomical station B.l, which was on the top of the granite knob. Israel’s location for BP 91(I) (east), however, is at a considerable distance from it at the western end of the granite knob, almost at the bottom of the Wadi.
221.
Other evidence produced by Israel proved to be inconclusive. A photograph of a cairn of stones next to the western end of the granite knob, taken in 1936, does not prove that the stones formed a boundary pillar. The object is even so badly recognizable that it cannot be said what it really was. Israel furthermore alleges a presence of a Turkish military post in the Wadi Taba in the time following the conclusion of the 1906 Agreement. It refers in this connection to statements in the Meistermann and Baedeker guidebooks and to the fact that in 1913 the Sudan Intelligence Report stated that a Turkish gun had been placed in position at Taba. All three references to a possible Turkish presence in the Wadi Taba can well be taken as indices in favour of the Israeli locations, but they are not conclusive as to where the boundary line actually ran. A Turkish presence in the Wadi Taba could also be explained by other grounds, such as the right under Article 6 of the 1906 Agreement for Turkish soldiers to cross over to the Egyptian side to draw water from the well at Bir Taba. It also has to be kept in mind that a boundary pillar was at the Parker site, well visible from the Wadi, in 1906 and in later years (see paragraph 227 below). A possible Turkish presence at Taba can therefore hardly prove that the boundary line reached the shore at another location.
222.
Several arguments have also been brought forward against Israel’s locations. One of them, the erection of the Parker pillar in 1906 and its existence during the critical period, has already been mentioned. If the Parker pillar was in fact the first (or final) pillar of the boundary line as recognized during the critical period, it excludes both locations proposed by Israel for BP 91. This argument will be dealt with in paragraph 233 below.
223.
At neither of its locations could Israel show any evidence of pillar remnants. Nor was Israel able to produce any photographic or map or other evidence showing that telegraph poles or boundary pillars had existed at either location at any time.
224.
Another argument against the Israeli locations stems from Article 1 of the 1906 Agreement, which provides that the separating line, which begins at Ras Taba, "follows along the eastern ridge overlooking Wadi Taba" or, in the new translation from the official Turkish text presented by Egypt, "passing by the summits of the mountains lying east of and overlooking Wadi Taba", or, in the new translation presented by Israel, "while passing by the heights that are [situated] at the east[ern side] of Wadi Taba and overlook this Wadi". This description is confirmed by statements in the Owen Report ("following along the top of the ridge north of Wadi Taba" and "the boundary-line, as finally agreed upon, runs for the most part along the watershed") and in the Wade Report ("[b]y the afternoon there was nothing left than to place the beacons on the eastern margin of Wadi Taba" and "[t]hen two more along the line of east cliffs of Taba and one at the point where they strike the gulf’). Neither of the two Israeli locations is in conformity with these descriptions. The lines connecting agreed pillar 90 with the two Israeli locations do not follow the ridge of the hills east and north of Taba nor do they overlook Wadi Taba, but run to a great extent within Wadi Taba and Wadi Khadra (see map no. 4 attached to Israel’s Memorial). Furthermore, the eastern Israeli line, before it reaches the hill upon which BP 90 is situated, touches partly the bottom of the eastern margin, but at no place its ridge. The western Israeli line, before reaching the hill at BP 90, nowhere touches either the eastern margin or the eastern ridge of Wadi Taba. It is also notable in this connection that during the negotiations between Turkey and Egypt in 1906 the Turkish proposal that the line run down the thalweg of the Wadi was rejected. Also, it is questionable whether the granite knob, which is one of the two Israeli locations, could be considered part of the eastern ridge since it is separated from it by the area on which a road and a hotel complex was built.
225.
Israel’s case for the granite knob is also weakened by the fact that Israel’s location is not on the top of the granite knob, where astronomical station B.1 was situated. Israel did not claim the top because it is not intervisible with BP 90. Rather, Israel claims an inconspicuous place at the western end of the long-stretched granite knob where intervisibility exists, at à height of only a few metres above the bottom of the Wadi. This place evidently does not correspond to the description given by Wade as "the point where the east cliffs... strike the gulf’.

b. Egypt’s Location

226.
Egypt’s claim for BP 91(E) is closely related with the question of the Parker pillar. It seems appropriate therefore to state at the outset during which periods boundary pillars were in existence at the two locations of the Parker site and the site of BP 91(E).

i) PERIODS DURING WHICH BOUNDARY PILLARS WERE IN EXISTENCE AT THE PARKER SITE AND AT THE SITE OF BP 91(e)

227.
The Parker pillar was erected on 31 December 1906 as the first masonry pillar of the boundary. Neither Party contests that it was built as a boundary pillar although Israel argues that it was wrongly located. The continuing existence of the Parker pillar was confirmed by the surveys of 1914 and 1917 (see paragraphs 63 and 67 above), indirectly by the Beadnell photograph of 1922 which shows a pillar at the place of BP 91(E), and which Beadnell described as the "penultimate beacon", by the Mitchell map of 1933, by the 1949 photographs introduced by Israel, by the 1964 Survey of Israel map, by the 1967 map in Arabic, and by an MFO map. In 1967, according to a witness, Mr. Yigal Simon, the Parker pillar was no longer in existence. Around 1970 its site was destroyed in connection with the construction of the road along the shore. This evidence demonstrates that the Parker pillar must have been in existence during most of the years between 1906 and 1967, including the period of the Mandate. It is possible that it was damaged or destroyed sometime after 1906, particularly during World War I, as the 1949 photograph shows a structure different from the 1906 photograph. But there is no doubt, and Israel confirmed it during the oral proceedings, that one must proceed from the assumption that the Parker pillar existed during the critical period.
228.
As to the pillar at BP 91(E), there is no evidence with respect to the erection of this pillar in 1906-1907 nor with regard to its existence in the following years. The first evidence of its existence appears on the 1915 British map, which shows a boundary pillar at the elevation of 298 feet (91 metres) conforming to BP 91(E). A pillar at BP 91(E) is also confirmed by the 1917 Survey of Egypt map, the 1922 Beadnell photograph, the 1933 Mitchell geological map, the 1935-38 Egyptian map, the 1943 British map, the lists of trig points prepared during the mandate period (1937 survey letter, Dr. Ball’s 1941 survey card, and First Edition Trig List 144, probably produced in 1943), and one of the 1949 photographs submitted by Israel. Furthermore, Egyptian and Israeli witnesses confirmed that they had seen a pillar at BP 91(E) in 1949 and 1964. Although Israel contests that BP 91(E) was erected during the demarcation process in 1906-07 and argues that it was originally a trig point marker which by error was reconstructed as a boundary pillar, around 1917, it does not contest that at least from this time on there was a pillar at the location of BP 91(E) which remained there during the critical period and thereafter until it was destroyed sometime between 1967 and 1981.
229.
After having determined that boundary pillars were in existence at the site of the Parker pillar as well as at that of BP 91(E) during the critical period, the Tribunal has to examine Israel’s arguments that these pillars were wrongly located and therefore cannot be considered as part of the boundary line. Israel advances mainly four arguments which shall be taken into consideration under the following four headings.

ii) THE ARGUMENT THAT PARKER HAD NO AUTHORITY TO TAKE PART IN THE DEMARCATION PROCESS AND THAT THE PARKER PILLAR WAS WRONGLY LOCATED

230.
The Parker photographs show that the masonry pillars which were to replace the provisional telegraph poles were erected in the presence of the two Turkish Commissioners, who had already taken part in the erection of the telegraph poles in October 1906, and of Parker, then Governor of Sinai. The two Egyptian Commissioners who were members of the Joint Commission no longer took part in this stage of the demarcation. No evidence exists concerning the reasons for this change nor on Parker’s authorization. Israel contends that Parker was not authorized to take part in the demarcation as the representative of Egypt. It furthermore alleges that the Parker pillar was not placed at the site where the telegraph pole for the final pillar site had been placed in October 1906.
231.
The question whether Parker had any authority to take part in the work of the Joint Commission cannot be answered either positively or negatively as no evidence was submitted relating to this point. The Tribunal has to base its decision on the fact that Parker took part in the demarcation process as a representative of Egypt and was not contested in that function at that time nor at any later time. Therefore, there is no basis for Israel’s submission. As to the site of the Parker pillar, the Tribunal could find no indication in any of the documents submitted to it that the first masonry pillar was placed at a site different from that on which a telegraph pole had been placed two and a half months earlier. Israel’s assertion is all the less acceptable as the same two Turkish Commissioners were present at both occasions. It is hardly likely that they would have agreed to change the site against Turkey’s interests. In the years following the demarcation, Turkey never made any complaint about the location of this first boundary pillar, although this was one of the most crucial of all the pillars of the boundary line and well visible from the coast line and the Gulf. The fact that Turkey, in 1909 and 1911, collaborated with Egypt in the repair and rebuilding of pillars which had become unstable—although not pillars of the southern region—and that Turkish authorities became suspicious when, in 1911, the British War Office and the Survey of Egypt carried out a survey of the area, shows that Turkey did not neglect the observation of this boundary.
232.
An implicit recognition of the demarcated line by Turkey can also be seen in the Ottoman documents of October 1911 which confirm the demarcation that had taken place (see paragraph 57 above).
233.
The Tribunal therefore comes to the conclusion that, even if Parker had not been properly empowered to represent Egypt in the Joint Commission and even if the Parker pillar had not been placed at the same location as the telegraph pole—assumptions for which no evidence could be found—the parties to the Agreement of 1906 had, by their conduct, agreed to the boundary as it was demarcated by masonry pillars in 1906-07 and to the location of the Parker pillar as the final pillar of the boundary line at that time.

iii) THE ARGUMENT THAT BP 91(e) WAS A TRIG POINT ERRONEOUSLY MARKED AS A BOUNDARY PILLAR

234.
Israel contends that at the site of BP 91(E) no boundary pillar was erected in 1906-07. It assumes that a mere trig point was later established at this location, possibly in 1911 or in 1914, and that the map constructor of the 1915 British map by mistake took the trig point for a boundary pillar and marked it as such. Israel furthermore assumes that the pillar at BP 91(E) may have been destroyed by the Turks between 1915 and 1917 and that after their retreat it may have been rebuilt mistakenly as a boundary pillar on the basis of the 1915 map. Egypt, on the other hand, points to the fact that Beadnell, when surveying the region in 1922, spoke of BP 91(E) (then No. 90) as the "penultimate beacon, the position of which was determined years ago by an international boundary commission". This statement, Egypt argues, confirms that the pillar was erected in 1906-07. Egypt also contends that if BP 91(E) had not existed as a boundary pillar from the beginning, there would have been one pillar missing in the numbering of that time between BP 89 (now 90) and the Parker pillar whose number was 91.
235.
None of these arguments really proves what the Parties intend to prove. The Tribunal therefore must base its decision on those facts on which no doubt exists. It is not contested that at least from around 1917 and throughout the critical period until a time after 1967 there was a boundary pillar at the location of BP 91(E) which, during this whole period, was considered to be a boundary pillar. It was marked as such on the ground, on maps, on trig lists, and affirmed by photographs. This suggests that throughout the Mandate period both Egypt and Great Britain treated it as a boundary pillar. Indeed, even Israel itself did not advance this argument of an error in identification until the oral proceedings. The Tribunal considers that where the States concerned have, over a period of more than fifty years, identified a marker as a boundary pillar and acted upon that basis, it is no longer open to one of the Parties or to third States to challenge that long-held assumption on the basis of an alleged error. The principle of the stability of boundaries, confirmed by the International Court of Justice (see paragraph 210 above), requires that boundary markers, long accepted as such by the States concerned, should be respected and not open to challenge indefinitely on the basis of error. The Israeli submission is all the more unfounded as not even Israel itself considers the different elements of its argumentation—the mistake of the map constructor, the destruction of the trig point marker by the Turks, and the erroneous rebuilding of a boundary pillar—as proven, but only as possibilities.

iv) THE ARGUMENT THAT NEITHER BP 91(e) NOR THE PARKER PILLAR WAS INTERVISIBLE WITH BP 90

236.
As has been stated earlier, Article 3 of the 1906 Agreement provides that boundary pillars will be erected "at intervisible points". Israel argues that BP 91(E) is not intervisible with agreed pillar 90 and therefore is in contradiction with the 1906 Agreement. It is true that the Agreement does not provide for any exceptions to intervisibility. Yet, it seems that this principle was not complied within the course of the demarcation of the pillars which were to be located "along the eastern ridge overlooking Wadi Taba". In fact, there is no intervisibility between the sites of BP 90 and either BP 91(E) or the Parker pillar. There is intervisibility only between BP 91(E) and Parker.
237.
There are several indications which may explain the lack of intervisibility. Firstly, Wade in his Report does not mention intervisibility between the last three pillars. Although this is not exceptional as he did not mention intervisibility in all cases where it existed, the silence concerning intervisibility between the last three pillars becomes significant if seen in connection with Wade’s other statements. With regard to the last pillars he writes: "These are of quite a different character from the preceding, and the text of the treaty must be carefully studied to appreciate them, but they presented no difficulty." Wade refers to the difference existing between the two sectors of Article 1 of 1906 Agreement. In the first sector, the line between Ras Taba and Jebel Fort is described in geographical terms ("along the eastern ridge overlooking Wadi Taba") while in the second sector in terms of straight lines between specified points. While in the second case intervisibility seems to be essential, it does not seem absolutely necessary in the first case, because the boundary follows the line of the cliffs. Secondly, referring to the days immediately preceding those when the last beacons (telegraph poles) were set, Wade writes: "From this cause and also from the desirability of bringing the whole business to a conclusion, movements were exceedingly rapid." This may also explain why intervisibility at the end of the demarcation was not observed. Wade’s description of the last day of the demarcation (18 October 1906) furthermore suggests that the Commissioners did not climb the hills but remained in the Wadi and selected points on the hills which were visible from sites in the Wadi. All these indications may explain why intervisibility was not observed although there is no absolute certainty in this respect. However, as the Tribunal has already come to the conclusion that both the Parker pillar location and the location of BP 91(E) were recognized by the States concerned as forming part of the boundary line during the critical period, lack of intervisibility cannot affect this finding since the boundary line, in spite of non-intervisibility, was accepted by the parties concerned.

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.
Paragraph 2 of the Annex to the Compromis states:

Each party has indicated on the ground its position concerning the location of each boundary pillar listed above. For the final boundary pillar No. 91, which is at the point of Ras Taba on the western shore of the Gulf of Aqaba, Israel has indicated two alternative locations, at the granite knob and at Bir Taba, whereas Egypt has indicated its location, at the point where it maintains the remnants of the boundary pillar are to be found.

239.
Israel argues that if the Parker pillar existed throughout the period of the Mandate, it is logically and legally impossible for the Tribunal to find that BP 91(E) satisfies the definition in paragraph 2 of the Annex. BP 91(E), as Israel states, was not "the final pillar" during the critical period nor situated "at the point of Ras Taba on the western shore of the Gulf of Aqaba". Israel contends that if the Tribunal finds that Israel’s case for BP 91(I) is not acceptable, it must decide that, as a result of the existence of the Parker pillar, Egypt’s case is not acceptable either since BP 91(E) does not satisfy these conditions. In these circumstances, Israel contends, the Tribunal cannot decide in favour of either Party, because paragraph 5 of the Annex stipulates that the "Tribunal is not authorized to establish a location of a boundary pillar other than a location advanced by Egypt or by Israel and recorded in Appendix A." This Israel characterizes as a situation of non licet that has nothing to do with the absence of applicable law leading to non liquet. Non licet exists when for some other reason the Tribunal cannot reach a decision on the merits of the case.
240.
Egypt affirms that it was not aware that the pillar shown in the Parker photographs was at a different location than BP 91(E) when it submitted its Memorial. It furthermore argues that the adjective "final" in the Annex refers to what the Parties understood by it in 1986, not what it may have signified in 1906. And in 1986, they meant the pillar following agreed boundary pillar No. 90. Egypt asserts that, if the "final pillar argument" succeeded and the Tribunal decided that none of the three locations indicated by the Parties for BP 91 was the correct one, this would mean the frustration of the arbitration and would be contrary to what both Parties accepted in the preamble to the Compromis, namely "to resolve fully and finally" the dispute that had arisen.
241.
The question which the Tribunal has to decide is whether BP 91(E) satisfies the test of being "the final boundary pillar... at the point of Ras Taba on the western shore of the Gulf of Aqaba". It must be stated beforehand that the words "final pillar" and "at the point of Ras Taba on the western shore of the Gulf of Aqaba" in paragraph 2 of the Annex would not have been necessary in order to identify the location BP 91(E) and the two alternative locations of BP 91(I) since the three locations had been unequivocally fixed by the Parties. Yet, as these words have been adopted by the Parties, they must be interpreted by the Tribunal.
242.
The words "final pillar" must be seen in connection with the first sentence of paragraph 2 of the Annex which states that "[e]ach party has indicated on the ground its position concerning the location of each boundary pillar listed above". According to paragraph 3, the markings of the Parties on the ground have been recorded in Appendix A. Appendix A contains the description cards concerning the locations for each contested pillar. It is clear that an indication on the ground would not have been conceivable for the Parker pillar, given the disappearance of its site around 1970. The location of BP 91(E) was the last pillar location along Egypt’s claimed line which in 1986 could be indicated on the ground. BP 91(E) was also the final or last pillar in the series of fourteen pillars mentioned in the first sentence of paragraph 1 and cannot at the same time be considered to be the "penultimate" pillar in the context of the Compromis. In view of this situation, it cannot be assumed that a Party to the Compromis could have signed the sentence containing the words "final pillar" having the Parker pillar in mind and with the expectation that BP 91(E) would thereby be excluded beforehand as a possible choice for the location of BP 91. Such conduct would have been contradictory and not consistent with the wish, affirmed by the Parties in the preamble of the Compromis, "to resolve fully and finally" the dispute between them and "to fulfill in good faith their obligations, including their obligations under this Compromis". It was therefore not incorrect to designate it as the "final pillar" at that moment.
243.
It is obvious that the words in the Annex "at the point of Ras Taba" and "on the western shore of the Gulf of Aqaba" were taken from Article 1 of the 1906 Agreement. Evidently, in 1906 they referred to the Parker pillar, not to BP 91(E). However, the essential aspect is not the fact that the words "at the point of Ras Taba on the western shore of the Gulf of Aqaba" originally were conceived for the Parker pillar and could, in the time of the Mandate, be understood in this sense only. The decisive question is whether these words, in 1986, could reasonably be understood as applying to BP 91(E). The words "at the point of Ras Taba" were circumscribed by Owen in the following way: "That is the point where the ridge north of Taba meets the sea." Wade, in his Report of 1907, wrote that the last beacons were erected at points "along the line of east cliffs of Taba and one at the point where they strike the gulf’. It follows from these descriptions that Ras Taba was identified with the end of the cliffs lying north and east of Wadi Taba. The exact point was fixed by the Joint Commission in 1906. Also significant is what is stated in Israel’s Memorial with regard to a translation of a sentence in Shou-cair’s The History of Sinai (1916) regarding Ras Taba: "This translation has been specially checked and it appears that the meaning which the original Arabic conveys is that the point [the beginning of the separating boundary] was given the name 'Ras Taba’ by those involved in the establishment of the boundary there." As BP 91(E) is situated on the ridge east of Taba its location could reasonably be understood as being in conformity with the words "at the point of Ras Taba".
244.
The words "on the western shore of the Gulf of Aqaba" contain two qualifications. The word "western" means that Taba is on the western, not on the eastern, shore of the Gulf. The words "on the shore" mean that the pillar was to be at a distance not far from the shore and visible from the shore. While the location of the Parker pillar undoubtedly fits this description better, the location of BP 91(E), which is situated on the cliffs and from where one has a large view over the Gulf, at a distance of approximately 170 metres from the shore, also could reasonably be understood as lying "at the point of Ras Taba on the western shore of the Gulf of Aqaba". The Tribunal therefore comes to the conclusion that Israel’s plea of non licet cannot be admitted and that Egypt is not precluded from claiming BP 91(E).

c. Conclusion

245.
On the basis of the foregoing considerations, the Tribunal decides that the boundary pillar No. 91 is at the location advanced by Egypt, BP 91(E), and marked on the ground as recorded in Appendix A of the Compromis.

C. Execution of the Award

246.
The Tribunal notes that Article XII of the Compromis contains, in paragraph 4, the requirement that the Tribunal "shall decide the appropriate manner in which to formulate and execute its award".
247.
The Tribunal’s decisions on the formulation of the award are reflected in the award itself. So far as execution of the award is concerned, the Tribunal would observe that Article XIV of the Compromis provides as follows:

1. Egypt and Israel agree to accept as final and binding upon them the award of the Tribunal.

2. Both parties undertake to implement the award in accordance with the Treaty of Peace as quickly as possible and in good faith.

248.
Egypt has in this context stated that the Parties need some very limited agreement on rebuilding of missing pillars. BP 90 is a good example as to type and style of pillars to be established.
249.
Israel has proposed that the execution should be entrusted to the Liaison System set up under the Treaty of Peace.
250.
The Tribunal accepts both of these proposals and therefore decides that the execution of this Award shall be entrusted to the Liaison System described in Article VII of Annex I to the Treaty of Peace between the Arab Republic of Egypt and the State of Israel. Agreed boundary pillar No. 90 may serve as an example as to type and style of pillars to be established.

Dispositif

For these reasons, and after deliberation,

The Tribunal

1. Decides unanimously that Boundary Pillar No. 7 is situated at the location advanced by Egypt and recorded in Appendix A to the Arbitration Compromis of 11 September 1986;

2. Decides unanimously that Boundary Pillar No. 14 is situated at the location advanced by Israel and recorded in Appendix A to the Compromis;

3. Decides unanimously that Boundary Pillar No. 15 is situated at the location advanced by Israel and recorded in Appendix A to the Compromis;

4. Decides unanimously that Boundary Pillar No. 17 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

5. Decides unanimously that Boundary Pillar No. 27 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

6. Decides unanimously that Boundary Pillar No. 46 is situated at the location advanced by Israel and recorded in Appendix A to the Compromis;

7. Decides unanimously that Boundary Pillar No. 51 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

8. Decides unanimously that Boundary Pillar No. 52 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

9. Decides unanimously that Boundary Pillar No. 56 is situated at the location advanced by Israel and recorded in Appendix A to the Compromis;

10. Decides by four votes to one that Boundary Pillar No. 85 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

11. Decides by four votes to one that Boundary Pillar No. 86 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

12. Decides by four votes to one that Boundary Pillar No. 87 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

13. Decides by four votes to one that Boundary Pillar No. 88 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

14. Decides by four votes to one that Boundary Pillar No. 91 is situated at the location advanced by Egypt and recorded in Appendix A to the Compromis;

15. Decides unanimously that the execution of this Award shall be entrusted to the Liaison System described in Article VII of Annex I to the Treaty of Peace of 26 March 1979 between the Arab Republic of Egypt and the State of Israel.

Rendered at the Hôtel de Ville in Geneva on 29 September 1988.

Two original copies shall be given to the Agent for the Arab Republic of Egypt, two shall be given to the Agent for the State of Israel, and one shall be placed in the archive of the Tribunal.

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