THE ROLE OF ARBITRATION IN POLITICAL SETTLEMENT: TABA AND THE EGYPT/ISRAEL TREATY OF PEACE.

• Author: Sofaer, Abraham D.

ACHIEVING THE COMPROMIS

KEEPING THE ARBITRATION ON TRACK

IMPLEMENTING THE AWARD

REFLECTIONS ON ARBITRATION IN DIPLOMACY

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

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

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

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

Israel also contended that the point chosen by the Tribunal could not be the place of the "final pillar" identified in the compromis, as it was not "at the point of Ras Taba on the western shore of the Gulf of Aqaba." (13) That observation was factually correct, but the Tribunal disregarded that requirement, concluding that it should rule in favor of the line closest to that sought to be determined, rather than leaving the dispute unresolved. (14) As for the other disputed pillar points, the Tribunal, on the basis of drawing straight lines, awarded nine to Egypt and four to Israel. (15) Professor Lapidoth dissented on the ground that the 1906 Agreement should control, and that only the points proposed by Israel for the final pillar were intervisible with the neighboring pillar; she also supported Israel's proposed location of pillars at Ras el Naqb. (16) Some commentators noted that the ruling faced fierce opposition within Israel and that Egypt might be forced to return to the Tribunal to secure implementation. (17) But in general the articles recount that, after the Tribunal's ruling, the parties negotiated some issues and Israel withdrew. (18)

The message conveyed by these articles is that the dispute over Taba was resolved through a "successful" arbitration. (19) This conclusion is accurate in that the arbitration was a critical element in achieving the ultimate objective of settling the border. But the arbitration was actually only one part of a substantial effort that enabled diplomacy to prevail.

By June 1985, when I first became involved in the Taba dispute, over six years had passed since the Treaty was signed, and over three years since Israel's withdrawal from Sinai. Yet the parties were nowhere close even to drafting a compromis to resolve their differences through arbitration. That step required intensive negotiation over some eighteen months to accomplish.

The arbitration itself took some two years to complete, and keeping that process on track posed challenges. While the Parties did implement the Award, they did so only after five months of intense negotiations, successfully concluded only after the settlement of the seemingly unrelated dispute over the murder of seven Israelis by a crazed Egyptian border guard at Ras Burqa.

ACHIEVING THE COMPROMIS

By June 1985, Taba had become a major irritant in Egypt/Israel relations. Israel had withdrawn from most of Lebanon, but Egypt refused to return its ambassador unless the border at Taba was resolved. (20) My partner in this effort was Alan Kreczko, then Assistant Legal Adviser for Near Eastern Affairs. He knew the issues and the party representatives, and he had the wisdom and wit to contribute indispensably to our eventual success. We drafted a compromis as a discussion document, with dozens of bracketed items, and then set about removing brackets through a series of meetings in Egypt, Israel, and Washington, D.C.

We called a joint session only after months of work and quickly realized that nothing would be resolved if the Parties were together in the same room. My shuttling began, first from room to room, and ultimately from country to country. We were forced to negotiate virtually every aspect of the compromis. The Parties, even when making minor concessions, continuously invoked the dispiriting principle (which plagues Middle East peace negotiations even today) that "Nothing is agreed until everything is agreed." We ploughed ahead regardless, removing brackets, and cultivating trust and good personal relations on both sides.

Getting to know the Egyptian and Israeli players was essential for success. Egypt had a professional team under Foreign Minister Esmat Abdel-Meguid, a sophisticated and enlightened former businessman; in charge politically was Deputy Foreign Minister Osama el-Baz, a brilliant policy analyst and Mubarak insider who shared my love of jazz. Nabil el-Araby, then Foreign Ministry Legal Advisor and later an ICJ judge and Secretary General of the Arab League, was in charge of the legal team; he was an exceptionally able, tough negotiator, who distrusted Israel but could be relied on to bring about sensible results. (21) I also regularly met with Egypt's ambassadors in Washington.

The Israeli side was more complicated. In 1984, Israel's two main parties, Labor and Likud, agreed to share power after an indecisive election. (22) While this meant that we had to convince at least some of the leaders of both parties to bring about any result, that challenge was preferable to having either group in opposition. Shimon Peres, eager to get the Taba issue behind him, was Prime Minister from 1984 to 1986, and Yitzhak Shamir, who regarded Egypt as insincere in its dealings with Israel, served as Prime Minister from 1986 to 1988. (23) Other key members of the Cabinet included the heavyweights of Israel's political elite: Moshe Arens, Yitzhak Rabin, and Ariel Sharon. Israel's negotiating team was led by its Foreign Ministry's Legal Advisor, Robbie Sabel, an exceptional international lawyer who worked to achieve the best possible result for Israel consistent with maintaining good relations with Egypt. (24) The Foreign Ministry's Director Generals at the time, Avraham Tamir followed by Reuven Merhav, were positive and effective at getting problems solved.

The bitterness over Taba stemmed, on Egypt's side, from the belief that Israel was disregarding the border that had existed for decades. For Nabil el-Araby, the "recognized" border was the border long treated as authoritative, reflected by pillars that Israel had apparently removed; Israel, he felt, should have accepted that fact instead of digging into history to justify a purely legalistic position. That pillars at Taba had been removed was widely known. Avraham Tamir, a retired Israeli Major General, told me at a dinner early in the process that he had witnessed General Sharon ordering the Parker pillar destroyed in the process of building a road. Egypt relied on such evidence as part of its case, as well as on the remnants of another pillar. (25)

From Israel's point of view, whether pillars were missing was unimportant if they had been erected in the wrong place to start with. More fundamentally, Israeli leaders were frustrated that, while Egypt had promised a "real" peace, it had delivered a "cold" one. No significant Egypt-to-Israel tourism existed, and little did two-way commerce. (26) When I later visited Sharon to try to convince him to support the Taba withdrawal, even after Prime Minister Shamir had agreed, he was cordial but determined to vote "No." He gave me a book of grotesquely anti-Semitic cartoons from Egyptian newspapers. He felt Mubarak could and should have done more to curb such venomous material. Shamir more than once told me that he had been at Sharm el-Sheikh when the Egyptian and Israel flags flew together after the Peace Treaty was...