Eritrea – Yemen Arbitration Documents [Archives:2000/05/Law & Diplomacy]
Part 4 in a series
Phase II
Maritime Delimitation
The Northern and Southern End Points of the Boundary Line
164. Reference has been made above to the need not to extend the boundary to areas that might involve third parties. The points where the decision of the Tribunal halts the progress of the boundary line are, for the northern end, turning point 1 and, for the southern end, point 29. The effect can, of course, also be seen on the illustrative Charts 3 and 4 in the map section of the Award. The Tribunal believes that these terminal points are well short of where the boundary line might be disputed by any third State.
The Test of Proportionality
165. The principle of proportionality was described by the International Court of Justice in the North Sea Continental Shelf cases as “the element of a reasonable degree of proportionality, which a delimitation 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 the coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region”. This was also described as one of the “factors” to be taken into account in delimitation.(16) It is not an independent mode or principle of delimitation, but rather a test of the equitableness of a delimitation arrived at by some other means.(17) So, as the Award stated in the Anglo-French Channel case, “it is disproportion rather than any general principle of proportionality which is the relevant criterion or factor”.(18)
166. The Parties in the present case have disagreed strongly in their arguments of this matter, not so much about the meaning of “proportionality” as over the respective lengths of their coasts for the purposes of this calculation. There is in the Tribunal’s view no doubt that the “general direction” of the coast means that the calculation of the Eritrean coastal length should follow the outer circumference of the Dahlak group of islands, although Eritrea was more inclined to have it follow the line of the mainland coast.
167. A much debated point was: how far north the Eritrean coast should go. Eritrea wished to include in the proportionality calculation the whole of its mainland coast up to the latitudinal line of 16N; and, indeed, this line was used by Yemen to define what it called its northern sector of the area in question. The Tribunal however doubts the appropriateness of employing a horizontal line of latitude to divide, for the purposes of the proportionality test, waters of the Red Sea which lie at an angle of roughly 45. The Tribunal has therefore considered the relevant proportion of the Eritrean coast, which can be said to be “opposite” that of Yemen, as ceasing where the general direction of that coast meets a line drawn from what seems to be the northern terminus of the Yemen land frontier at right angles with the general direction of the Yemen coast. In the same way the Tribunal determined the southern end point to be considered for the computation of the length of the Yemen coast.
168. The Tribunal through its expert in geodesy has calculated the ratio of the lengths of the coasts concerned, measured by reference to their general direction, and the ratio between the water areas it has attributed to the Parties. The first ratio, of coastal lengths, Yemen : Eritrea, is 387026 metres to 507110 metres, or 1 : 1.31. The second ratio of water areas, including the territorial seas, Yemen : Eritrea, is 25535 kilometres2 to 27944 kilometres2, or 1 : 1.09. The Tribunal believes that the line of delimitation it has decided upon results in no disproportion.
CHAPTER VI
Dispositif
169. Accordingly, THE TRIBUNAL,
taking into account the foregoing considerations and reasons,
UNANIMOUSLY FINDS IN THE PRESENT CASE THAT
The International Maritime Boundary between Eritrea and Yemen is a series of geodetic lines joining, in the order specified, the following points. The points are defined in degrees, minutes and seconds of the geographic latitude and longitude, based on the World Geodetic System 1984 (WGS 84). The line and the numbers of the turning points are shown for purpose of illustration only in Charts 3 and 4 in the map section of this Award.
Turning Point LatitudeLongitude
115¡ 43′ 10″ N41¡ 34′ 06″ E
215¡ 38′ 58″ N 41¡ 34′ 05″ E
3 15¡ 15′ 10″ N 41¡ 37′ 31″ E
4 15¡ 04′ 00″ N41¡ 46′ 43″ E
5 15¡ 00′ 12″ N 41¡ 50′ 42″ E
6 15¡ 46′ 06″ N 41¡ 58′ 47″ E
7 15¡ 43′ 30″ N 42¡ 00′ 42″ E
8 14¡ 36′ 05″ N 42¡ 10′ 02″ E
9 14¡ 35′ 14″ N 42¡ 11′ 35″ E
1014¡ 27′ 16″ N42¡ 16′ 54″ E
11 14¡ 21′ 11″ N42¡ 22′ 04″ E
12 14¡ 15′ 23″ N 42¡ 26′ 09″ E
13 14¡ 08′ 39″ N 42¡ 31′ 33″ E
14 14¡ 03′ 39″ N 42¡ 28′ 39″ E
1514¡ 39′ 30″ N42¡ 37′ 39″ E
1613¡ 36′ 13″ N 42¡ 38′ 30″ E
17 13¡ 35′ 51″ N42¡ 38′ 14″ E
18 13¡ 33′ 38″ N 42¡ 39′ 37″ E
19 13¡ 27′ 28″ N 42¡ 43′ 25″ E
20 13¡ 26′ 39″ N 42¡ 48′ 21″ E
21 13¡ 24′ 01″ N 42¡ 52′ 47″ E
22 13¡ 14′ 23″ N 42¡ 59′ 47″ E
23 13¡ 10′ 54″ N43¡ 03′ 03″ E
24 13¡ 06′ 57″ N 43¡ 05′ 21″ E
25 13¡ 06′ 08″ N 43¡ 06′ 06″ E
26 13¡ 04′ 05″ N 43¡ 08′ 42″ E
27 13¡ 00′ 27″ N43¡ 10′ 54″ E
28 13¡ 58′ 10″ N43¡ 12′ 45″ E
29 13¡ 54′ 23″ N 43¡ 13′ 58″ E
Done at London this 17th day of December 1999
The President of the Tribunal
/s/ Professor Sir Robert Y. Jennings
The Registrar
/s/ Tjaco van den Hout
ANNEXES
Annex I – The Arbitration Agreement
Annex II – Yemen’s Answer to Judge Schwebel’s Question Put to Yemen on Tuesday, 13 July 1999 Eritrea’s Answer to Judge Schwebel’s Question
Annex III – Treaty Establishing the Joint Yemeni-Eritrean Committee for Bilateral Cooperation Between the Government of the Republic of Yemen and the Government of the State of Eritrea
ANNEX II
Yemen’s Answer to Judge Schwebel’s Question Put to Yemen on Tuesday, 13 July 1999
On day 6 of the proceedings (Transcript, Day 6, 13 July 1999, pages 99-100), Judge Schwebel put a question to Yemen’s counsel as follows: “Ms. Malintoppi, during oral argument in the first round Yemen maintained that it was beyond the Tribunal’s authority at that stage to consider matters of res communis condominia and the like, stating that to do so would prefigure topics which might be considered only at the second stage. An argument which was remarkable, since Eritrea had said nothing in such regards, nor had the Tribunal. Just now, you argue that it is too late for Eritrea to argue such matters indicating, if I understood correctly, that they were for the first stage. Are Yemen’s pertinent arguments consistent?” In Yemen’s submission, Yemen’s arguments are consistent. This can be seen from reviewing the context in which Yemen raised the matter in the first stage, the points raised by Ms. Malintoppi in her intervention relating to the second stage, and the terms of the Arbitration Agreement.The matter first arose at paragraph 20 of Yemen’s written submission on the relevance of the oil agreements and activities dated 8 June 1998. There, Yemen stated the following: “It is always attractive to seek to discover a basis for dividing a group of islands, not least in an arbitration. The attraction must be the greater when the task of the Tribunal extends to the process of maritime delimitation, and no doubt caution will be needed to avoid a prefiguring of equitable principles and concepts, which are in law only relevant per se.
Yemen’s view was thus that the concept of equitable principles was particularly relevant to the second stage of the proceedings, and that this issue should not be prefigured in the first stage. Yemen made no specific reference to concepts such as res communis or condominia when it raised the matter. In the second stage of these proceedings, Yemen fully accepts that equitable principles form part of the applicable law of maritime delimitation. However, and this was the point discussed by Ms. Malintoppi, the application of equitable principles to maritime delimitation, when read in conjunction with the scope of the Tribunal’s mandate as established in the Arbitration Agreement and the Agreement on Principles, does not encompass the creation or modalities of “joint resource zones” around Yemen’s islands in the manner that Eritrea’s Prayer for Relief requests. It follows that Yemen does not maintain that Eritrea’s arguments in favour of the creation of such zones are too late at this stage, but rather that the applicable law, together with the provisions of the Arbitration Agreement and the Agreement on Principles, does not provide a legal or jurisdictional basis for acceding to Eritrea’s requests.
It should be noted, however, that the 1994 and 1998 Agreements between Yemen and Eritrea, particularly those sections related to fishing, clearly indicate that Yemen and Eritrea are currently involved in working together to administer the fish resources throughout the southern Red Sea region.
Yemen’s Answer to the Tribunal’s Question Put to Yemen on Friday, 16 July 1999
At the close of the oral hearings (Transcript, Day 8, 16 July 1999, page 45), the Tribunal put the following question to Yemen:
“The Tribunal has noted that, in the arguments of Yemen, relatively little has been said about the traditional fishing regime which the Tribunal recalls is an essential part of the Dispositif of the Award of 9 October 1998. Would Yemen indicate how, if at all, the traditional fishing regime should be taken into account in the delimitation, particularly taking into consideration the agreements signed by the two Governments in 1994 and 1998?”
Yemen’s answer was as follows:
Yemen recognises that, in deciding the issue of sovereignty over various Red Sea Islands in the first Award, the Tribunal stated in its Dispositif that the sovereignty found to lie with Yemen “entails the perpetuation of the traditional fishing regime in the region, including free access and enjoyment for the fishermen of both Eritrea and Yemen” (paragraph 527(vi) of the Award). This decision is final and binding between the Parties, as stipulated in Article 13(a) of the Arbitration Agreement. Yemen is fully committed to apply and implement the Award in all of its aspects, including with to the perpetuation of the traditional fishing regime for the fishermen of both Eritrea and Yemen.
As was clear from the Parties’ presentations during the oral hearings, both Parties consider that the Tribunal’s Dispositif must be read in conjunction with the reasoning that appears in the body of the Award. With respect to “the perpetuation of the traditional fishing regime in the region”, Yemen has also taken note of the Tribunal’s pronouncements in other parts of the Award which bear on the issue. For example, the first sentence of paragraph 526 provides:
“In finding that the Parties each have sovereignty over various of the Islands the Tribunal stresses to them that such sovereignty is not inimical to, but rather entails, the perpetuation of the traditional fishing regime in the region”.
The historical basis of this finding was further explained in paragraph 128 where the Tribunal stated:
“This traditionally prevailing situation reflected deeply rooted cultural patterns leading to the existence of what could be characterized from a juridical point of view as res communis permitting the African as well as the Yemeni fishermen to operate with no limitation throughout the entire area and to sell their catch at the local markets on either side of the Red Sea. Equally, the persons sailing for fishing or trading purposes from one coast to the other used to take temporary refuge from the strong winds on any of the uninhabited islands scattered in that maritime zone without encountering difficulties of a political or administrative nature”.
It is Yemen’s view that the holdings of the Tribunal in the first Award with respect to the traditional fishing regime constitute res judicata without prejudice to the maritime boundary that the Tribunal decides on in the second stage of the proceedings. In other words, the traditional fishing regime that has existed for the benefit of the fishermen of both countries throughout the region is to be perpetuated notwithstanding the decision that the Tribunal reaches as to the delimitation of the maritime boundary between the two countries. Indeed, it is clear that both Parties understood this to be a mutual obligation which existed apart from the question of delimitation of their maritime boundary in that, as the November 1998 Agreement between the two Governments indicates, Yemen and Eritrea have been formulating a regime of cooperation with respect to fishing in the spirit of good neighbourliness and friendship which has prevailed since the Award in the first stage of this arbitration.
In Yemen’s submission, the delimitation to be effectuated by the Tribunal in its second Award will have a different purpose than the preservation of the traditional fishing regime. For example, counsel for Eritrea admitted during its rebuttal presentation that issues such as mineral extraction were not included in the Tribunal’s notion of the traditional fishing regime (Transcript, Day 8, 16 July 1999, page 27). Clearly, mineral extraction is related to the delimitation of the continental shelf, a matter which is relevant to the second stage.
Similarly, the delimitation of the column of water or Exclusive Economic Zone of the Parties, as well as of their respective territorial seas in the Central and Southern Sectors, involves matters which, pursuant to the 1982 Convention on the Law of the Sea, go beyond the preservation of the traditional fishing regime. It is in this connection that Yemen advanced the dependence of its coastal population on fishing and the incidence of Yemen’s fishing practices in the region as relevant circumstances to be taken into account in the delimitation process.
In short, the perpetuation of the traditional fishing regime is not synonymous with the rights and obligations of the Parties that will be determined by a delimitation of a single maritime boundary throughout the relevant area. It is for these reasons that Yemen does not consider that the decision of the Tribunal on the traditional fishing regime should have any impact on the delimitation of the maritime boundaries between the two Parties in the second stage.
In this connection, it is appropriate to refer to the 1994 Agreement between Yemen and Eritrea to which specific reference is made in the Tribunal’s question. As can be seen from its terms, the 1994 Agreement is entirely consistent with the preservation of the traditional fishing regime decided by the Tribunal in the first stage.
The Agreement was signed by the Minister of Fish Wealth on behalf of Yemen and the Minister of Marine Wealth on behalf of Eritrea. The latter, of course, also acts as Eritrea’s Agent in the present arbitration.
It is significant that Paragraph 1 of the Agreement specifically provides for a fishing regime that is remarkably similar to that recognised in the Tribunal’s first Award. That paragraph provides, inter alia, that:
“Both the State of Eritrea and the Republic of Yemen shall permit fishermen who are citizens of the two States, without limiting their numbers, and who carry cards to engage in the occupation of fishing, to fish in the territorial waters of the two States, the contiguous zone and the Exclusive Economic Zone of the two countries in the Red Sea (with the exception of the internal waters), provided that the fishermen of the two countries be enumerated and that they be granted official licenses to engage in the occupation of fishing specifying the locations where they will be received and may market their products in Appendix No. 1”.
Moreover, Paragraph 4 of the Agreement provides in relevant part that the persons included in Paragraph 1 shall be permitted to “market their fish products in the territory of the other State and in the locations specified in Appendix No. 1 of this Memorandum of Understanding”. The Tribunal will note that these provisions are very similar to the Tribunal’s findings set out in paragraph 128 of the Award in the first stage.
Unfortunately, the 1994 Agreement could not be fully implemented at the time due to the events of 1995. Nonetheless, the Agreement remains in effect, and Yemen remains fully committed to its implementation. As can be seen from its terms, the 1994 Agreement envisages a regulatory framework which is well suited to addressing the kinds of concern raised by Eritrea in its pleadings regarding traditional fishing in the region.
The Tribunal’s question also makes reference to the Agreement signed between the two Parties in November 1998. In Yemen’s view, this Agreement evidences the good faith of both Parties in pursuing mutual cooperation in a number of areas, including fishing. In particular, Article 1(d) of the Agreement provides for the formation of a Committee for Cooperation in the Area of Fish Wealth and Maritime Fishing. Pursuant to Article 3(4) of the Agreement, this committee would be expected to address the question of drafting a special agreement “in the area of fish wealth, maritime fishing and the protection of the maritime environment”.
With respect to the relevance of the 1994 and 1998 Agreements to the perpetuation of the traditional fishing regime, it is appropriate to recall what counsel for Yemen had to say on this matter during the oral hearings:
“Indeed, as Mr. Picard has shown, the Parties have already established a framework for addressing the modalities of their fishing activities in the Red Sea with their 1994 and 1998 agreements. These agreements could well represent a very important context within which any further questions between the Parties as to the preservation of the traditional fishing practices mentioned in paragraph 526 of the Award could be dealt with” (Transcript, Day 6, 13 July 1999, page 88).
Implementation of these two Agreements would also be consistent with the letter of the President of the Tribunal, dated 8 November 1998, which indicated that these issues “are a matter for the Parties themselves to resolve in good faith, bearing in mind what the Tribunal has found in Paragraph 526 of the Award”.
In conclusion, Yemen considers that the Tribunal has already deon the preservation of the traditional fishing regime between the Parties in its first Award. The Award as it stands is res judicata, and in view of the language of Article 13, paragraph 3 of the Arbitration Agreement, it is not appropriate to interpret the meaning and the scope of the Award in the first stage at this point in the proceedings. Therefore, and bearing in mind the framework that has been established by the 1994 and 1998 Agreements, Yemen does not believe that the traditional fishing regime needs to be further taken into account in the delimitation of the maritime boundary between the Parties at this stage of the proceedings.
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