Eritrea – Yemen Arbitration Documents [Archives:2000/03/Law & Diplomacy]

4 in a series
Phase II
Maritime Delimitation
90. Yemen took the view that it was clear from paragraph 526 of the Award on Sovereignty that it was for it, Yemen, in the exercise of its sovereignty, to ensure the preservation of the traditional fishing regime; that, while the 1994 and 1 Agreements might prove to be useful vehicles for that exercise in sovereignty, there was no question of Yemen’s sovereignty having been made conditional and thus no agreement with Eritrea was necessary for the administrative measures that might relate to this regime; that the Tribunal had not made any finding that there should be joint or common resource zones; that the Tribunal’s finding that Yemen’s sovereignty entailed the perpetuation of the traditional fishing regime was a finding in favour of the fishermen of Eritrea and Yemen, not of the State of Eritrea; that Article 3(1) of the Agreement on Principles and Article 2(3) of the Arbitration Agreement meant that it would be ultra vires for the Tribunal to respond favourably to Eritrea’s Prayer for Relief; and that the President’s letter of 9 November 1998 indeed showed that the Prayer for Relief was irregular. Further, Yemen contended that there had traditionally been no significant Eritrean fishing in the vicinity of the islands.
91. The details of the positions taken by Eritrea and Yemen is recalled above at paragraphs 48-60.
92. The Tribunal recalls that it based this aspect of its Award on Sovereignty on a respect for regional legal traditions. The abundant literature on the historical realities which characterised the lives of the populations on both the eastern and western coasts was noted in the award of the Arbitral Tribunal in the First Stage of the Proceedings, paragraph 121, footnote 9 and paragraph 128, footnote 11. This well-established factual situation reflected deeply rooted common legal traditions which prevailed during several centuries among the populations of both coasts of the Red Sea, which were until the latter part of the nineteenth century under the direct or indirect rule of the Ottoman Empire. The basic Islamic concept by virtue of which all humans are “stewards of God” on earth, with an inherent right to sustain their nutritional needs through fishing from coast to coast with free access to fish on either side and to trade the surplus, remained vivid in the collective mind of Dankhalis and Yemenites alike.
93. Although the immediate beneficiaries of this legal concept were and are the fishermen themselves, it applies equally to States in their mutual relations. As a leading scholar has observed: “Islam is not merely a religion but also a political community (umma) endowed with a system of law designed both to protect the collective interest of its subjects and to regulate their relations with the outside world”.(11)
94. The sovereignty that the Tribunal has awarded to Yemen over Jabal al-Tayr, the Zubayr group and the Zuqar-Hanish group is not of course a “conditional” sovereignty, but a sovereignty nevertheless that respects and embraces and is subject to the Islamic legal concepts of the region. As it has been aptly put, “in today’s world, it remains true that the fundamental moralistic general principles of the Quran and the Sunna may validly be invoked for the consolidation and support of positive international law rules in their progressive development towards the goal of achieving justice and promoting the human dignity of all mankind”.(12)
95. The Tribunal’s Award on Sovereignty was not based on any assessment of volume, absolute or relative, of Yemeni or Eritrean fishing in the region of the islands. What was relevant was that fishermen from both of these nations had, from time immemorial, used these islands for fishing and activities related thereto. Further, the finding on the fishing regime was made in the context of the Award on Sovereignty precisely because classical western territorial sovereignty would have been understood as allowing the power in the sovereign state to exclude fishermen of a different nationality from its waters. Title over Jabal al-Tayr and the Zubayr group and over the Zuqar-Hanish group was found by the Tribunal to be indeterminate until recently. Moreover, these islands lay at some distance from the mainland coasts of the Parties. Their location meant that they were put to a special use by the fishermen as way stations and as places of shelter, and not just, or perhaps even mainly, as fishing grounds. These special factors constituted a local tradition entitled to the respect and protection of the law.
96. It is clear that the Arbitration Agreement does not authorise the Tribunal to respond affirmatively to paragraphs 6 and 7 of Eritrea’s Prayer for Relief. Nor, indeed, would it have been able so to do even if the arbitration had been conducted within the framework of a single stage or phase, as originally envisaged by Article 3(1) of the Agreement on Principles.
97. However, Eritrea is entitled to submit to the Tribunal that its finding as to the traditional fishing regime has implications for the delimiting of maritime boundaries in the Second Stage; and the Tribunal is at liberty to respond to such submissions.
98. Indeed, it is bound to do so, because it is not otherwise in a position to respond to the submissions made by Yemen as well as by Eritrea in this Second Stage. It cannot be the case that the division of the Arbitration into two stages meant that the Parties may continue to debate whether the substantive content of the Tribunal’s findings on the traditional fishing regime has any relevance to the task of delimitation, but that the Tribunal must remain silent. Such formalism was never the objective of the agreement of both Parties to divide the Arbitration into two Stages.
99. Of course, in making its Award on Sovereignty the Tribunal did not “prefigure” or anticipate the maritime delimitation that it is now called upon to make in the Second Stage, after full pleadings by the Parties. Beyond that the Tribunal is not to be artificially constrained in what it may respond to by the procedural structures agreed for the Arbitration. The two-stage mechanism is not to be read either as forbidding Parties to make the arguments they wish, when they wish; nor as limiting their entitlement to seek to protect what they perceive as their substantive rights.
100. Article 15 of the Arbitration Agreement (the meaning of which is otherwise not readily intelligible) lends support to this view. Paragraph 2 speaks of the Arbitration Agreement as “implementing the procedural aspects” of the Agreement on Principles. And Paragraph 1 provides that:
Nothing in this Arbitration Agreement can be interpreted as being detrimental to the legal positions or to the rights of each Party with respect to the questions submitted to the Tribunal, nor can affect or prejudice the decision of the Arbitral Tribunal or the considerations and grounds on which those decisions are based.
101. As the Tribunal has indicated in its Award on Sovereignty, the traditional fishing regime around the Hanish and Zuqar Islands and the islands of Jabal al-Tayr and the Zubayr group is one of free access and enjoyment for the fishermen of both Eritrea and Yemen. It is to be preserved for their benefit. This does not mean, however, that Eritrea may not act on behalf of its nationals, whether through diplomatic contacts with Yemen or through submissions to this Tribunal. There is no reason to import into the Red Sea the western legal fiction – which is in any event losing its importance – whereby all legal rights, even those in reality held by individuals, were deemed to be those of the State. That legal fiction served the purpose of allowing diplomatic representation (where the representing State so chose) in a world in which individuals had no opportunities to advance their own rights. It was never meant to be the case however that, were a right to be held by an individual, neither the individual nor his State should have access to international redress.
102. The Tribunal accordingly now responds to the diverse submissions advanced in this Stage by the Parties, both as to the substantive content of the traditional fishing regime referred to in paragraphs 526 and 527(vi) of its Award on Sovereignty and as to any implications for its task in this stage of the Arbitration. The correct answer is indeed to be gleaned from the pagof that Award itself. Attention may in particular be drawn to paragraphs 102, 126-128, 340, 353-357 and 526.
103. The traditional fishing regime is not an entitlement in common to resources nor is it a shared right in them. Rather, it entitles both Eritrean and Yemeni fishermen to engage in artisanal fishing around the islands which, in its Award on Sovereignty, the Tribunal attributed to Yemen. This is to be understood as including diving, carried out by artisanal means, for shells and pearls.
Equally, these fishermen remain entitled freely to use these islands for those purposes traditionally associated with such artisanal fishing – the use of the islands for drying fish, for way stations, for the provision of temporary shelter, and for the effecting of repairs.
104. In paragraph 1 of the Prayer for Relief, Eritrea asks the Tribunal to determine that “The Eritrean people’s historic use of resources in the mid-sea islands includes guano and mineral extraction . . .”. In the pleadings before the Tribunal Eritrea referred specifically in this context to guano extraction which had been licensed by Italy. Guano extraction is not to be assimilated to mineral extraction more generally. Further, as the Award on Sovereignty made clear, Eritrea’s rights today are not derived from a claimed continuity from rights once held by Italy. The traditional fishing regime covers those entitlements that all the fishermen have exercised continuously through the ages. The Tribunal has received no evidence that the extraction of guano, or mineral extraction more generally, forms part of the traditional fishing regime that has existed and continues to exist today.
105. The FAO Fisheries Infrastructure Development Project Report of 1995 was a report on fishing in Eritrean waters. However, its findings on artisanal fishing would be of general application in this region. The 1995 Report makes clear that both the artisanal vessels and their gear are simple. The vessels are usually canoes fitted with small outboard engines, slightly larger vessels (9-12 m) fitted with 40-75 hp engines, or fishing sambuks with inboard engines. Dugout canoes and small rafts (ramas)
CHAPTER V
The Delimitation of the International Boundary
The Tribunal’s Comments on the Arguments of the Parties
113. Since, as it will appear below, the international maritime boundary line decided upon by the Tribunal differs in some respects from both the one claimed by Yemen and the one, or the ones, claimed by Eritrea, it is right first to explain briefly where and why the boundaries claimed by the Parties have not been endorsed in this Award. This will now be done taking generally first the Yemen claim and then the Eritrean claim, as this was the order in which the Parties agreed to argue in the Oral Proceedings of this Second Stage of this Arbitration.
114. Yemen claimed one single international boundary line for all purposes. The single line it claimed was described as a “median line”, because Yemen treated the westward-facing coasts of all of its islands as relevant coasts for purposes of the delimitation. For the Eritrean coast, Yemen used base points on the mainland coast of Eritrea and thus ignored the Eritrean mid-sea islands for the purpose of delimitation of the boundary. Yemen also claimed that its line can properly be described as a coastal median line. For Yemen the relevant coasts included not only the islands over which it has been awarded sovereignty,
but also of certain among the Dahlak islands; thus Yemen, like Eritrea, was prepared to treat the Dahlaks as being part of the Eritrean coast, and so used base points on the islets forming the outer fringe of the group. When on the other hand Eritrea spoke of what it called “the coastal median line”, it meant the median line between what in the Eritrean view represented the mainland coasts of both Parties. At the same time Eritrea claimed a historic median line using only its own islands as base points, and thus ignoring those of Yemen. These variations produced different claimed median lines. See Eritrea’s Maps 3 and 7, and Yemen’s Map 12.1. See also Charts 1 and 2 showing the base points as provided by Eritrea.
115. It is in what Yemen called the northern sector of the boundary line where this difference caused the greatest divergence, actually of several nautical miles, between the lines claimed by the Parties because of the question of how much “effect” on the line should be given to the Yemen northern islands, namely the small sole mid-sea island of Jabal al-Tayr and the mid-sea groups of islands and islets called Zubayr. Yemen allowed them full effect on the line; Eritrea’s line allowed them none.
116. In considering this marked divergence of view it is well to recollect that the boundary line in its northern stretch – including indeed both the opposing claimed lines – are boundaries between the Yemen and the Eritrean continental shelves and EEZ; and are therefore governed by Articles 74 and 83 of the 1982 Convention. In any event there has to be room for differences of opinion about the interpretation of articles which, in a last minute endeavour at the Third United Nations Conference on the Law of the Sea to get agreement on a very controversial matter, were consciously designed to decide as little as possible. It is clear, however, that both Articles envisage an equitable result.
117. This requirement of an equitable result directly raises the question of the effect to be allowed to mid-sea islands which, by virtue of their mid-sea position, and if allowed full effect, can obviously produce a disproportionate effect – or indeed a reasonable and proportionate effect – all depending on their size, importance and like considerations in the general geographical context.
118. Yemen understood this problem very clearly. Its argument was that, although these mid-sea islands and islets are small and uninhabitable (these questions figured prominently in the First Stage of this Arbitration), those considerations were nicely matched, or “balanced”, by the complementary smallness and lack of importance of the outer islets of the Dahlak group which were the base points on the Eritrean side of the boundary. However, the situation of these Dahlak islets is very different from that of the mid-sea islands. The Dahlak outer islets are part of a much larger group of islands which both Parties were agreed are an integral part of the Eritrean mainland coast. Consequently, between these islets and the mainland, the sea is Eritrean internal waters. The Tribunal had therefore, as will be seen below, no difficulty in rejecting this “balancing” argument of Yemen, as it does not compare like with like.
119. In its assessment of the equities of the “effect” to be given to these northern islands and islets, the Tribunal decided not to accept the Yemen plea that they be allowed a full, or at least some, effect on the median line. This decision was confirmed by the result that, in any event, these mid-sea islands would enjoy an entire territorial sea of the normal 12 miles – even on their western side.
120. One practical result of the Yemen balancing argument regarding the northern mid-sea islands is that Yemen did not argue in the alternative about possible base points on the islands fringing the Yemen mainland coast – which islands could much more cogently be said to balance the Dahlaks.
121. The Eritrean argument concerning this northern stretch of the line was relatively simple: it argued strongly against the Yemen balancing suggestions, and here asked for the mainland coastal median line. At first, it was not clear what were the base points used by Eritrea. However, in answer to a question from the Tribunal, Eritrea did produce two complete sets of base points for the Eritrean coast and also a set for the Yemen coast. (See Charts 1 and 2.)
122. The latitude of 1425N – where the Yemen northern sector becomes the Yemen central sector – results from another factor on which the Parties differ. This line of latitude is not chosen at random by Yemen. It is thepoint at which the Yemen median line is no longer controlled by Zubayr as a base point but enters under the control of the north-western point of the island of Zuqar. The Eritrean lines, for indeed there are two of them, continue southwards, ignoring the possible effect of the Zuqar – Hanish group. The “historic” median line (Map 3) cuts through Zuqar, and the coastal median line cuts through the island of Greater Hanish (Map 7).
123. The Tribunal did not find it easy to resolve this divergence of method, but finally the Tribunal decided to continue its line as a mainland coastal line until the presence of Yemen’s Zuqar-Hanish group compels a diversion westwards. (The Tribunal’s line, as will appear below, is neither the Yemen line nor yet the Eritrean line.)
124. In support of its enclave solution for certain of the Eritrean islands, Yemen entered upon an assessment of the relative size and importance of the Eritrean islands generally, as if they were islands whose influence on the boundary line falls to be assessed, not as being possibly in an area of overlapping territorial sea, but as if they were to be assessed solely by reference to Articles 74 and 83 of the Convention. This approach enabled Yemen to argue that these Eritrean “navigational hazards” were insignificant even when compared with the Yemen Zuqar-Hanish group; and that accordingly the South West Rocks and the Haycocks ought to be enclaved and the boundary line taken onto the Eritrean side of them, thus leaving the two enclaves isolated on the Yemen side of the boundary line.
125. The Tribunal, as will appear below, has had little difficulty in preferring the Eritrean argument, which brings into play Article 15. This solution also has the advantage of avoiding the need for awkward enclaves in the vicinity of a major international shipping route.
126. The Yemen “southern sector” began at the line of latitude 1320N. Again, this is not an arbitrary choice. It was the point at which Yemen’s median line, which had hitherto been controlled by Suyul Hanish, first came under the control of the nearest point on the mainland coast of Yemen. The Yemen line then continued throughout the southern sector as a coastal median line.
127. In the main part of this southern sector, therefore, there were only differences of detail between the Yemen and Eritrean lines because there were no mid-sea islands to complicate the problem. There was indeed the large complication of the Bay of Assab and of its off-lying islands, but here Yemen rightly assumed that this bay is integral to the Eritrean coast and is internal waters, and that the controlling base points would therefore be on the low-water line of the outer coastal islands.
128. In the course of its passage from the overlapping territorial seas areas to the relatively simple stretch between parallel coasts of the southern sector, the Yemen line was again a median line controlled by the Yemen islands as well as by the Eritrean mainland coast. However, the line preferred by the Tribunal, mindful of the simplicity desirable in the neighbourhood of a main shipping lane, is one that would mark this passage directly and independently of the Yemen and Eritrean islands. It is not easy to trace the Eritrean median line in this area because of the complication of its box system for the traditional fishing areas. Indeed, this review of the Parties’ arguments and the Tribunal’s view of them does somewhat scant justice to the complicated and carefully researched Eritrean scheme for delimitation of the traditional fishing areas, but this matter has been dealt with in Chapter IV.
This chapter will now turn to describe the boundary line determined by the Tribunal.
The Boundary Line Determined by the Tribunal
129. The task of the Tribunal in the present Stage of this Arbitration is defined by Article 2 of the Arbitration Agreement, and is to “result in an award delimiting the maritime boundaries”. The term “boundaries” is here used, it is reasonable to assume, in its normal and ordinary meaning of denoting an international maritime boundary between the two State Parties to the Arbitration; and not in the sense of what is usually called a maritime “limit”, such as the outer limit of a territorial sea or a contiguous zone; although there might be places where these limits happen to coincide with or be modified by the international boundary.
130. Article 2 also provides that, in determining the maritime boundaries, the Tribunal is to take “into account the opinion it will have formed on questions of territorial sovereignty, the United Nations Convention on the Law of the Sea, and any other pertinent factor”. The reasons for taking account of the Award on Sovereignty are clear enough and both Parties have agreed in their pleadings that, in the Second Stage, there can be no question of attempting to reopen the decisions made in the First Award. The requirement to take into account the United Nations Convention on the Law of the Sea of 1982 is important because Eritrea has not become a party to that Convention but has in the Arbitration Agreement thus accepted the application of provisions of the Convention that are found to be relevant to the present stage. There is no reference in the Arbitration Agreement to the customary law of the sea, but many of the relevant elements of customary law are incorporated in the provisions of the Convention. “Any other pertinent factors” is a broad concept, and doubtless includes various factors that are generally recognised as being relevant to the process of delimitation such as proportionality, non-encroachment, the presence of islands, and any other factors that might affect the equities of the particular situation.
131. It is a generally accepted view, as is evidenced in both the writings of commentators and in the jurisprudence, that between coasts that are opposite to each other the median or equidistance line normally provides an equitable boundary in accordance with the requirements of the Convention, and in particular those of its Articles 74 and 83 which respectively provide for the equitable delimitation of the EEZ and of the continental shelf between States with opposite or adjacent coasts. Indeed both Parties to the present case have claimed a boundary constructed on the equidistance method, although based on different points of departure and resulting in very different lines.

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