Eritrea – Yemen Arbitration Documents [Archives:2000/01/Law & Diplomacy]
Part 2 in a series
39. This factor was argued strenuously and ingeniously by both Parties. Both relied upon the statement in the North Sea cases that a delimitation should take into account “a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its coast measured in the general direction of the coastline”.(3) Both were in agreement with the warning in the Anglo-French Arbitration case(4) that this is a test of equitableness and not a method of delimitation, and that what had to be avoided was a manifest disproportionality resulting from the line selected. So there was little between the Parties as to principle but there was strong disagreement about the measurement of the length of their respective coasts and the significance of that measurement when it was made. The measurement is a matter on which several views are possible when Eritrea’s coast extends also to be opposite to Yemen’s neighbouring State, the Kingdom of Saudi Arabia; with which the maritime boundary remains undelimited.
40. The Yemen position was that proportionality is a factor to be taken into account in testing the equitableness of a delimitation already effected by other means. In relation in particular to the line to be drawn in the central sector, Yemen suggested that the relative lengths of the coasts overall were not significant because (i) in the restricted seas between the Yemen islands and the Eritrean coast any modifications of the median line would involve the principle of non-encroachment; (ii) further, in the central sector, given the general configuration of the coasts, equal division alone guarantees an equitable result; (iii) equal division is reinforced by the principle of non-encroachment; (iv) the relevant coasts for this delimitation are the Eritrean coast and the Yemen islands; (v) State practice supported the median line; and (vi) proportionality cannot be applied in the context of overlapping territorial sea.
41. The Eritrean reply to this was to question whether the Yemen claimed line in the central sector really was the median line envisaged in Article 15 of the Convention; and Eritrea suggested that it was not so, because it ignored the low-water line base points of the Eritrean islands of South West Rocks and the Haycocks.
42. It is not possible here to describe the many variations to be found in the pleadings on the theme of the method of measurements to be employed, or the discussions of the ambiguities of “oppositeness”, although the Tribunal has examined them all. Suffice it to say that whereas Yemen calculated that its own claimed line neatly divided the sea areas into almost equal areas, which according to Yemen’s measurements of the length of the coasts was the correct proportion, Eritrea found, in a final choice of one of its several different methods of calculation, that its own historic median line between the mainland coasts would produce respective areas favouring Eritrea by a proportion of 3 to 2, which again said to reflect accurately the proportion of the lengths of coast according to Eritrea’s method of measuring them.
43. It should be mentioned that Eritrea was particularly concerned that, in calculating the areas resulting from the delimitation, account should not be taken of the internal waters within the Dahlaks or the bays along its coast, including the Bay of Assab.
The Northern and Southern Extremities of the Boundary Line
44. There also arose a question about where to stop the boundary at its northern and southern ends, considering that in these areas it might prejudice other boundary disputes with neighbouring countries. The Kingdom of Saudi Arabia indeed had written to the Registrar of the Tribunal on 31 August 1997 pointing out that its boundaries with Yemen were disputed, reserving its position, and suggesting that the Tribunal should restrict its decisions to areas “that do not extend north of the latitude of the most northern point on Jabal al-Tayr island”. Yemen for its part wished the determination to extend to the latitude of 16N, which is the limit of its so-called northern sector. Eritrea on the other hand stated that it had “no objection” to the Saudi Arabian proposal.
45. At the southern end, the third States concerned have not made representations to the Tribunal, but the matter will nevertheless have to be determined. Eritrea was most concerned here about the arrow with which Yemen terminated its claimed line, as this arrow, according to Eritrea, pointed in such a direction as to “slash” the main shipping channel and cause it to be in Yemen territorial waters. Yemen had also used an arrow to terminate the northern end of its line and there was some discussion and debate from both sides about the propriety or otherwise of these arrows.
46. At the southern end of the line, as it approaches the Bab-al-Mandab, there is the complication of the possible effect upon the course of the boundary line of the Island of Perim. This question might clearly involve the views of Djibouti. It follows that the Tribunal’s line should stop short of the place where any influence upon it of Perim Island would begin to take effect. The Tribunal has taken into consideration these positions variously expressed and has reached its own conclusions, as more fully detailed in Chapter V below.
The submissions of Yemen and the Prayer for Relief of Eritrea appear below.
Submissions of Yemen
On the basis of the facts and legal considerations presented in Yemen’s pleadings; and
Rejecting all contrary submissions presented in Eritrea’s “Prayer for Relief”, and
In view of the provisions of Article 2(3) of the Arbitration Agreement;
The Republic of Yemen, respectfully requests the Tribunal to adjudge and declare:
1. That the maritime boundary between the Parties is a median line, every point of which is equidistant from the relevant base points on the coasts of the Parties as identified in Chapters 8 through 10 of Yemen’s Memorial, appropriate account being taken to the islets and rocks comprising South West Rocks, the Haycocks and the Mohabbakahs;
2. That the course of the delimitation, including the coordinates of the turning points on the boundary line established on the basis of the World Geodetic System 1984 (WGS 84), are those that appear in Chapter 12 to Yemen’s Memorial.
Eritrea’s Prayer for Relief
(Paragraph 274, Memorial of the State of Eritrea)
Article 2, paragraph 3, of the Arbitration Agreement requires the Tribunal to issue an award delimiting the maritime boundaries between the Parties in a technically precise manner. In order that such precision shall be achieved, the State of Eritrea respectfully requests the Tribunal to render an award providing as follows:
1. The Eritrean people’s historic use of resources in the mid-sea islands includes fishing, trading, shell and pearl diving, guano and mineral extraction, and all associated activities on land including drying fish, drawing water, religious and burial practices, and building and occupying shelters for sleep and refuge;
2. The right to such usage, to be shared with the Republic of Yemen, extends to all of the land areas and maritime zones of the mid-sea islands;
3. The right to such usage shall be preserved intact in perpetuity, as it has existed in the past, without interference through the imposition of new regulations, burdens, curtailments or any other infringements or limitations of any kind whatsoever, except those agreed upon by Eritrea and Yemen as expressed in a written agreement between them;
4. The outer borders of the maritime zones of the islands in which these shared rights exist shall be defined as extending:
A. on the western side of the Red Sea, to the median line drawn between the two coasts, which shall include the islands historically owned by either State prior to the decade preceding commencement of this arbitration in accordance with Article 121 of the United Nations Convention on the Law of the Sea; and
B. on the eastern side of the Red Sea, as far as the twelve mile limit of Yemen’s territorial sea.
5. The waters beyond the shared area of the mid-sea islands shall be divided in accordance with a median line drawn between two coasts, which shall include the islands historically owned by either State prior to the decade preceding commencement of this Arbitration in accordance with Article 121 of the United Nations Convention on the Law of the Sea;
6. The two Parties are directed to negotiate the modalities for shared usage of the mid-sea islands and their waters in accordance with the following terms:
A. Immediately following the Tribunal’s rendering of an award in the second Phase, the Parties shall commence negotiations, in good faith, with a view toward concluding an agreement describing the ways in which nationals of both Parties may use the resources of the mid-sea islands and their maritime zones, as those zones are described in the Award of the Tribunal, and detailing a mechanism of binding dispute resolution to settle any and all disputes arising out of the interpretation or application of the agreement;
B. The Parties shall submit this agreement to the Tribunal for its review and approval no later than six months after the date the Tribunal renders its award in the second Phase;
C. The Tribunal shall determine whether the agreement is in accord with its award in the second Phase, and in particular whether it faithfully preserves the traditional rights of the two Parties to usage of the resources of the mid-sea islands;
D. If the Tribunal determines that the agreement is not satisfactory according to the criteria described in the preceding paragraph, or if the Parties fail to submit an agreement, the Tribunal shall issue an award that either describes such modalities or else appoints the water between the two Parties equally. The Tribunal may request submissions from the Parties on this point.
E. If the Tribunal finds that the agreement (or a revised agreement) is satisfactory, according to the criteria set forth above, it shall communicate its approval to the Parties, endorse the agreement as its own award and further direct the Parties to execute the agreement in the form of a binding treaty to be deposited with the Secretary-General of the United Nations;
7. The Tribunal shall remain seized of the dispute between the Parties until such time as the agreement regarding shared usage of the mid-sea islands has been received for deposit by the Secretary-General of the United Nations.
The General Quof Fishing in the Red Sea
47. This chapter will first deal with the evidence and arguments advanced by the Parties concerning the general question of fishing in the Red Sea. It will then set forth the Tribunal’s conclusions on these arguments and evidence.
The Evidence and Arguments of the Parties
48. Each Party made much of fishing, including both the past history and the present situation, and as related not only to its own nationals but also the practices of the nationals of the other Party. The evidence advanced by the Parties and the arguments made by them can essentially be broken down into five subjects. These are: (1) fishing in general; (2) the location of fishing areas; (3) the economic dependency of the Parties on fishing; (4) consumption of fish by the populations of the Parties; and (5) the effect of fishing practices on the lines of delimitation proposed by the Parties.
49. The arguments of each Party were advanced essentially in order to demonstrate that the delimitation line proposed by that Party would not alter the existing situation and historical practices, that it would not have a catastrophic effect on local fishermen or on the local or national economy of the other Party or a negative effect on the regional diet of the population of the other Party and, conversely, that the delimitation line proposed by the other Party would indeed alter the existing situation and historical practice, would have a catastrophic or at least a severely adverse effect on the local fishermen or on the first Party’s regional economy, and would also have a negative effect on the diet of the population of the first Party.
50. These elements were introduced directly and indirectly by each side against the general background of the “catastrophic” and “long usage” tests originated in the Anglo-Norwegian Fisheries Case of 1951 – and as brought forward in the provisions inter alia of Article 7, paragraph 5 of the 1982 United Nations Convention on the Law of the Sea.
51. They also found an echo in the “equitable solution” called for by paragraph 1 of Articles 74 and 83 of the Convention, it being assumed that no “solution” could be equitable which would be inconsistent with long usage, which would present a clear and present danger of a catastrophic result on the local economy of one of the Parties, or which would fail to take into account the need to minimise detrimental effects on fishing communities, and the economic dislocation, of States whose nationals have habitually fished in the relevant area.
Fishing in General
52. The position taken by Eritrea was as follows. The historical record demonstrated that the Eritrean fishing industry was substantial before the civil war in Ethiopia and had been, second only to Egypt, the most important regional fishing economy. Since the end of the civil war and independence, serious efforts were underway to reestablish the Eritrean fishing economy. It was, therefore, a mistake to consider that the Eritrean fisheries were – as Yemen argued – to a large extent dependent on Eritrean freshwater fisheries; in fact these have had no importance. On the other hand, the Yemen fishing industry was substantially based on its Indian Ocean fisheries and did not rely significantly on the Red Sea. Although Yemen’s fishing industry in the Red Sea is much less significant than Yemen has claimed, it is nonetheless well established and in no event dependent for protection on the particular delimitation line proposed by Yemen.
53. Yemen argued that Yemeni nationals have long dominated fishing activities in the Red Sea; the Yemen traditional fishing activities – conducted in small boats, whether sambouks or houris – had been of much greater significance in the past than those of Eritrea, whose fishing activities had largely been concentrated on fishing close inshore along the Eritrean coastline and in and among the Dahlaks. Moreover, Hodeidah in Yemen was the most active market for fisheries production from Eritrean and Yemeni fishermen alike.
Economic Dependency on Fishing
54. The position of Eritrea was that considerable efforts had been made since the close of the war to reorganise and build up the Eritrean fishing industry – including efforts sponsored by the UNDP and FAO – and that the prospects for significant future development of the Eritrean fisheries were both promising and important. Although Eritrea did not claim present economic dependency on fishing, it did make the point that the existing fisheries practices of its nationals should not be restricted or curtailed by the delimitation to be decided by the Tribunal. As to Yemen, Eritrea asserted not only that the Yemen’s Red Sea fisheries presence was far less important than Yemen had claimed, but also that most fish landed in Hodeidah were brought there by Eritrean fishermen.
55. On the other hand, Yemen argued that its fishermen have always depended on the Red Sea fisheries as their fishing grounds and that this fishing activity had long constituted an important part of Yemen’s overall national economy and been a dominant part of the regional economy of the Tihama region along the Red Sea coast. Yemen claimed that Eritrea had no basis for arguing that it possessed any substantial dependency on fishing, fisheries, fish, or fish consumption, and that most of Eritrea’s concerns as manifested by documentary evidence submitted to the Tribunal in both Stages of the Arbitration had concerned proposals and projects for the development of future fishing activity and fisheries resources of Eritrea that did not now exist or were not now utilised.
Location of Fishing Areas
56. The arguments of Eritrea were to the following effect: at present, fishing in the Red Sea was by and large dominated by Eritrean artisanal fishermen who caught their fish around the Dahlaks, along the Eritrean coast, around the Mohabbakahs, the Haycocks, and South West Rocks, and in the waters around the Zuqar-Hanish group of “mid-sea islands”. (As noted above, Eritrea denied that any part of its fish catch depended on inland Eritrean fisheries such as in lakes and reservoirs.) As to Yemen, Eritrea claimed that Yemeni fishermen had hardly, if at all, relied on the deep-water fishing grounds to the west of the mid-sea islands and around the Mohabbakahs, the Haycocks, and South West Rocks; there was little evidence of any Yemeni nationals’ activity west of the Zuqar-Hanish group; and Yemen had failed to prove that a single gram of fish consumed in Yemen was taken from those waters.
57. For its part, Yemen argued that its artisanal and traditional fishermen had long fished in the waters around Jabal al-Tayr and the Zubayr group, in the waters around the Zuqar-Hanish group, and in the deep waters west of Greater Hanish and around the Mohabbakahs, the Haycocks, and South West Rocks. Supporting these assertions was evidence produced in the form of witness statements in the First Stage of the Arbitration in which individual Yemeni fishermen indicated that they had fished in the waters in question for a long time. As to the other Party, Yemen again asserted that Eritrea’s fishing activities were confined to waters of the Dahlak archipelago and the inshore waters along the Eritrean coast and did not to any substantial extent impinge on waters surrounding the islands at issue in the First Stage of the Arbitration – including the deep waters west of Greater Hanish and around the Mohabbakahs, the Haycocks, and South West Rocks.
Consumption of Fish by the Population
58. Eritrea argued that the Eritrean coastal population consumed far more fish than Yemen claimed and that, in addition, efforts were taking place to increase the popularity and availability of fresh fish for human consumption by its general population. It further asserted that the Yemeni population’s dependence on fresh fish from the Red Sea as a food source had been greatly exaggerated by Yemen’s pleadings, and that the Yemeni population of the Tihama – and a fortiori the population of Yemen as a whole – did not rely to any significant extent on fresh fish as a food. For its part, Yemen maintained that its population, particulin the coastal areas such as the Tihama, consumed substantial quantities of fish and that – by contrast – Eritrean fish consumption was negligible.
Effect on Lines of Delimitation Proposed by the Parties
59. The Eritrean position was that the Tribunal’s indication of a line of delimitation such as the “historic median line” suggested by Eritrea would respect the historic practice of the Parties, would not displace or adversely affect Yemen’s fishing activity, and would be an equitable result for both Parties. In Eritrea’s view, however, the Yemen proposed “median line” would deprive Eritrean fishermen of valuable fishery areas east of the mid-sea islands, and would award to Yemen areas to the west of the mid-sea islands and around the Mohabbakahs, the Haycocks, and South West Rocks – where Eritrean fishermen had long been plying their trade and where Yemeni nationals had never engaged in substantial fisheries activity. To that extent Eritrea argued that the proposed Yemen delimitation line would be inequitable and would deprive Eritrean fishermen of an important resource.
60. On the other side, Yemen maintained that the median line proposed by it would correctly reflect historical practices, would not give Yemen anything it did not have before, would respect existing rights, would not “penalise” existing or past Eritrean fishing activity, and would constitute an equitable result. As far as the Eritrean proposed “historic median line” was concerned, it would encroach on Yemen’s traditional fishing grounds without justification, would deprive Yemeni fishermen of deep water fisheries west of the mid-sea islands, and would give a corresponding windfall to Eritrea.