Eritrea – Yemen Arbitration Documents [Archives:2000/52/Reportage]

Part 1 in a series
Phase II:
Maritime Delimitation
Introduction – Proceedings in the Delimitation Stage of the Arbitration
1. This Award in the Second Stage of the Arbitration is rendered pursuant to an Arbitration Agreement dated 3 October 1996 (the “Arbitration Agreement”), between the Government of the State of Eritrea (“Eritrea”) and the Government of the Republic of Yemen (“Yemen”) (hereinafter “the Parties”).
2. The Arbitration Agreement, which appears as Annex 1 on page 51, was preceded by an “Agreement on Principles” done at Paris on 21 May 1996, which was signed by Eritrea and Yemen and witnessed by the Governments of the French Republic, the Federal Democratic Republic of Ethiopia and the Arab Republic of Egypt. The Agreement on Principles provided that the Tribunal should decide questions of territorial sovereignty and to that end the Tribunal rendered an Award in the First Stage finding the sovereignty of the disputed islands in the Red Sea to belong either to Eritrea or to Yemen. (See Award in the First Stage, Chapter XI – Dispositif, paragraphs 527-528.)
3. In a correspondence concerning the Written Pleadings for the Second Stage, and including requests for an extension of the time allowed, a question was raised by Eritrea relating to the Traditional Fishing Regime and how it might be pleaded and argued in the Second Stage of the Arbitration. The President’s reply was: “the Tribunal is of the view that it is for Eritrea itself to determine the contents of its written pleadings for that stage”. This is referred to in Chapter IV below.
4. Pursuant to the time table set forth in the Arbitration Agreement, the Parties filed written Memorials in the Second Stage on 9 March 1999 and Counter-Memorials on 9 June 1999. On 25 May 1999, Mr. Tjaco van den Hout, Secretary-General of the Permanent Court of Arbitration, succeeded as Registrar Mr. Hans Jonkman, who had retired. Pursuant to Article 7(2) of the Arbitration Agreement, Ms. Phyllis Pieper Hamilton, First Secretary of the Permanent Court of Arbitration, served as Secretary to the Tribunal.
5. Prior to the Hearings in the Second Stage of the Arbitration, after consultation with the Parties, the Tribunal as contemplated by Article 7(4) of the Arbitration Agreement sought assistance with the calculations of the maritime boundaries and the technical preparation of the corresponding chart. On 8 July 1999, pursuant to Article 7(4) the Tribunal communicated an Order to the Parties designating Ms. Ieltje Anna Elema, geodetic engineer, Head of the Geodesy and Tides Department of the Hydrographic
Service of the Royal Netherlands Navy, as its expert in geodesy.
6. Article 2 of the Arbitration Agreement provides that:
1. The Tribunal is requested to provide rulings in accordance with international law, in two stages.
2. The first stage shall result in an award on territorial sovereignty and on the definition of the scope of the dispute between Eritrea and Yemen . . .
3. The second stage shall result in an award delimiting maritime boundaries. The Tribunal shall decide taking into account the opinion that it will have formed on questions of territorial sovereignty, the United Nations Convention on the Law of the Sea, and any other pertinent factor.
7. Pursuant to the time table set forth in the Arbitration Agreement for the various stages of the Arbitration, and with the consent of the Parties regarding the venue, the Oral Proceedings in the second stage of the Arbitration were held 5-16 July 1999 in the Great Hall of Justice in the Peace Palace in The Hague. By agreement between the Parties, Yemen began the Oral Proceedings.
8. The Tribunal’s task was greatly facilitated by the excellence of the oral presentations on both sides.
9. During the Oral Arguments, pursuant to Article 8(3) of the Arbitration Agreement authorizing the Tribunal to request the Parties’ written views on the elucidation of any aspect of the matters before the Tribunal, counsel were asked to respond to various questions. On 13 August 1999 the Parties submitted written responses to questions put to them by the Tribunal on 13 and 16 July. The Tribunal’s questions and the answers provided by the Parties are set out in Annex 2 on page 61.
Eritrea – Yemen Arbitration Documents
AWARD
Phase II: Maritime Delimitation

CHAPTER I – The Arguments of the Parties

Introduction
10. The purpose of the present Chapter is to summarise what the Tribunal understands to have been the main arguments of the Parties. For the Tribunal’s reasons for acceptance or rejection or modification of those arguments, it may be necessary to turn to later Chapters. In this Chapter describing the arguments of the Parties, it will be convenient in general to follow the order agreed by them for the Oral Presentations and so put first the arguments of Yemen followed by the arguments of Eritrea.
11. It may be said at once that both Parties claimed a form of median international boundary line, although their respective claimed median lines follow very different courses and do not coincide. They do, however, follow similar courses in the narrow waters of the southernmost portion of the line. Eritrea’s median line is equidistant between the mainland coasts, but its historic median line takes into account Eritrea’s islands (but not the Yemen mid-sea islands); the Yemen line is equidistant between the Eritrean coast (including certain selected points on the Dahlak islands) and the coasts of all the Yemen islands. The Yemen line was plotted with WGS 84 coordinates of the turning points; the Eritrean line was not, although, in answer to a question from the Tribunal, the coordinates of the base points were provided. The rival claimed lines are reproduced on the Charts (Eritrea’s Maps 3 and 7 and Yemen’s Map 12.1) to be found in the map section at the back.
Yemen’s Proposed Boundary Line
12. The Yemen claimed line was described in three sectors divided by lines of latitude: 16N; 1425N; and 1320N. So there was
i) a northern sector between the Yemen islands of Jabal al-Tayr and the Jabal al-Zubayr group on the one hand, and the Eritrean Dahlak islands on the other; (ii) a central sector between the Zuqar-Hanish group of Yemen and the opposite mainland coast of Eritrea together with the Mohabbakahs, the Haycocks and South West Rocks; and (iii) a southern sector between the respective mainland coasts of Yemen and Eritrea south of the Zuqar-Hanish group. These sectors were fixed by the latitude of the controlling base points of the Yemen line. Thus, for instance, 1425N was the point on the line where the controlling base points changed from the points on the islet Centre Peak in the Zubayr group to the base points on the coast of Zuqar.
13. Yemen began its argument with the general understanding, as endorsed by the International Court of Justice in the North
Sea Continental Shelf cases,(1) that a median line normally produces an equitable result when applied between opposite coasts. Therefore, argued Yemen, a major preliminary task for the Tribunal was to decide which were the coasts to be used as baselines.
14. In the northern sector, the proposed Yemen line assumed that the Dahlak islands, a closely knit group of some 350 islands and islets, the largest of them having a considerable population, should be recognised as being part of the Eritrean mainland coast and the waters within them as internal waters. It followed that the easternmost islets of that group might be used as base points of the median line. Yemen used the high water line as baseline on these islands.
15. Yemen proposed that the eastern base points of the line should be found on the low-water line of the western coast of the lone mid-sea island of Jabal al-Tayr and on the western coasts of the mid-sea group of Jabal al-Zubayr. Yemen argued that these islands should be used as base points because they were as important, or even more important, than the very small uninhabited outer islets of the Dahlak group. In this way, said Yemen, there would be a “balance” in the treatment of island base points on the west and the east coasts, arguing that in this northern area “each Party possesses islands of a comparable size, producing similar coastal facades lying at similar distances from their respective mainlands”.
16. In the central sector the Yemen claimed line proceeded through the narrow waters between the Hanish group of islands and the Eritrean mainland coast. (This part of the boundary line area was called the “central” one by Yemen but sometimes called the “southern” one by Eritrea.) The Yemen line was a line of equidistance between the high-water line on the Eritrean mainland coast and the low-water line on the westernmost coasts of Yemen’s Hanish Island group.
17. Yemen suggested that the “small Eritrean islets in between” the Eritrean mainland coast and the larger Yemen islands were inappropriate for a delimitation role. Thus, the computing and the drawing of Yemen’s boundary line ignored both the South West Rocks and the three Haycocks (which had been found in the Award on Sovereignty to belong to Eritrea) as being no more than small rocks whose only importance was that they were navigational hazards. The Eritrean sovereignty over these islets was, however, recognised by placing them in limited enclaves.
18. In Yemen’s “southern sector”, the line entered a narrow sea which had few islets and was relatively free from complicating mid-sea islands or islets, and the line became a simple median between the opposite mainland coasts. By using the islands of Fatuma, Derchos and Ras Mukwar as base points it did, however, recognise that the Bay of Assab was an area of Eritrean internal waters. Yemen added the comment that:
This method of delimitation has been selected in order to accord the islands in the Southern Sector the same treatment as the Islands in the Northern Islands Sector.
19. Summing up the three sectors, Yemen observed that, in accordance with the applicable legal principles, the appropriate delimitation would be achieved by a median line between the relevant coasts. There was no justification for any adjustment of this line on the basis of equitable principles. This median line delimitation between the relevant coasts was the only equitable solution compatible with the purpose of this arbitration.
20. Yemen also addressed other relevant factors. There was the factor of proportionality and this, together with Eritrea’s argument under the same heading, is dealt with below. There was also discussion of certain “non-geographical relevant circumstances”, the first one being “dependency of the fishing communities in Yemen upon Red Sea fishing”. This is a matter upon which both Parties held strong and differing views, which are described and considered in Chapter II below.
21. The other of these relevant circumstances maintained by Yemen was “the element of security of the coastal State”. This, according to Yemen, “connotes nothing more exciting than non-encroachment”. It was chiefly in the narrow waters between the Hanish group of islands and the Eritrean coast that the question of security or non-encroachment arose. According to Yemen, this concern is automatically addressed by the application of the principle of equidistance which was intended to effect equality of treatment.
Eritrea’s Proposed Boundary Line
22. Eritrea asserted that there was a legal flaw in the Yemen argument for its claimed line. This criticism illuminated some of the basic ideas underlying Eritrea’s own claimed line.
23. Eritrea pointed with some insistence to what it regarded as a fundamental contradiction in the Yemen argument. In the northern part of the line, where the question of the influence upon it of the northern mid-sea islands arose, the maritime boundary was between the respective continental shelves and exclusive economic zones (hereinafter EEZ). These two boundaries, of continental shelf and of EEZ, are governed by Articles 74 and 83 of the United Nations Convention on the Law of the Sea. In neither of these two articles is there even a mention of equidistance; there is, however, a clear requirement that a delimitation of these areas should “achieve an equitable solution”. Nevertheless, for these very areas, Yemen insisted upon an equidistance line having included as base points for it the coasts of its small northern mid-sea islets.
24. In contrast, Eritrea contended in oral argument that, in the narrow seas between the Hanish group of islands and the Eritrean mainland coast, there was an area involving distances less than 24 miles(2) and which was therefore all territorial sea to which Article 15 of the Convention “is going to be most directly applicable in the more southern reaches of the delimitation area in question, the area round the Zuqar and Hanish Islands. The reason for that, of course, is that the distances there are smaller.
What that means is that in the area around the Zuqar and Hanish islands there is a basic rule of equidistance.”
25. This would favour a median line that takes full account of South West Rocks and the Haycocks, which in the Award on Sovereignty were found to belong to Eritrea. Applying Article 15, moreover, there could be no question of enclaves of these islands.
26. Eritrea also objected that Yemen’s proposed enclaves would in practice mean that there was no access corridor for Eritrea through the surrounding Yemen territorial sea. Thus, both the Eritrean South West Rocks and the Haycocks would be “completely isolated”. Eritrea objected to the enclave solution because Eritrea claimed this would have put the western main shipping channel, “between the Haycock Island and South West Rocks”, into Yemen territorial waters while the eastern main channel, which goes east of Zuqar, was already in undisputed Yemen territorial waters. Thus, Yemen’s proposal would result in “inclusion of both of the main shipping channels within what would be Yemen’s territorial waters if Yemen’s proposed delimitation were accepted”.
27. Eritrea’s own proposed solution of the delimitation problem was in two parts. There was the proposed international boundary, and there was the proposal for certain delimited “boxes” of the mid-sea islands, the purpose of which was to delimit the areas which Eritrea claimed to be “joint resource areas”. This delimitation of “the shared maritime zones around the islands” was distinguished from recognition of “the exclusive waters of Yemen, to the east, and the exclusive waters of Eritrea, to the west”. These ideas represented Eritrea’s understanding of what in its view was meant by the reservation in the Award on Sovereignty of the traditional fishing regime, and what was needed to ensure the fulfilment of that regime. Of this Eritrea said, “if this regime is to be perpetuated, the Parties must know what it is and where it holds sway in a technically precise manner”.
29. It is to be noted that the “exclusive” Eritrean waters on the west included not merely the territorial sea but also all the waters west of the mid-sea islands and west of the historic median line. These two Eritrean proposals – the two versions of the median line and the joint resource area boxes – belonged together because they were both essential parts of the Eritrean proposal as a whole. Thus, Eritrea’s “historic median line” was – although with some variations to be noted later – one drawn as a median between the mainland coasts and ignoring the existence of the mid-sea islands of Yemen, but taking into account the islands of Eritrea. (There are precedents for this kind of boundary line in the petroleum agreements discussed in Chapter III.) Eritrea’s “resource box system” provided the essential elements of a complex solution for the problem of these islands. The boxes were offered in a variety of shapes and sizes (see Eritrea’s Maps 4 and 7). These “joint resource boxes” seem to have been advanced by Eritrea as a flexible set of suggestions. Its main concern was the reasonable one that it wanted to be able to tell its fishermen precisely where they might fish.
29. The coupling in the Eritrean pleadings of the two questions – the nature of the traditional fishing regime and the delimitation of the international boundary – is in contradistinctionto Yemen’s arguments. Yemen had expressed the view that “the traditional fishing regime should not have any impact on the delimitation of the maritime boundaries between the two Parties in the Second
Stage”. Yemen, in answer to a question from the Tribunal, also expressed the view that “Article 13, paragraph 3 of the Arbitration Agreement (see Annex 1) and the framework created by the 1994 and 1998 Agreements obviated any need further to take into account the traditional fishing regime in the delimitation of the maritime boundary”. (The two Agreements of 1994 and 1998 are reproduced in Annex 3 to this Award.)
30. Eritrea replied to this letter from Yemen on 24 August saying that:
Yemen’s submission conveys the impression that the two States have conducted discussions since October 1998 which have resulted in arrangements for the implementation of Eritrea’s traditional rights. No such discussions have taken place on this subject and no arrangements have been made to protect or preserve Eritrea’s traditional rights in the waters around the mid-sea islands.
Arguments about Historic Rights and Sovereignty
31. Sovereignty over the disputed islands was the subject of the First Stage of this Arbitration. The Arbitration Agreement enjoins the Tribunal in this Second Stage to take into account “the opinion it will have formed on questions of territorial sovereignty”. It is not surprising, therefore, that both Parties raised some interesting questions in this Second Stage about the nature of sovereignty and its relation to the question of delimitation and, not least, to the question of the traditional fishing regime.
32. Eritrea was moved to return to the history of the formerly disputed islands and especially to the period of Italian influence and presence. From these and some other considerations was precipitated the view urged upon the Tribunal that Yemen’s “recently acquired” sovereignty over islands made them of less importance as factors to be taken into consideration for the purposes of the delimitation. This approach was expressed in these words:
Eritrea also considers that the [mid-sea] islands come within the category of small uninhabited islands of recently acquired sovereignty and near the median line that should be recognised by the Tribunal to possess diminished maritime zones.
33. The Eritrean Prayer for Relief took this idea even further when it said in Article 4 that:
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.
34. Continuing the same theme Article 5 of the Prayer for Relief provided:
5. The waters beyond the shared area of the mid-sea islands shall be divided in accordance with a 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.
35. Eritrea felt, therefore, able to urge that “Eritrea possesses historic title to all waters to the west of the historic median line, drawn by reference to the historically owned islands”. This idea, it will be noted, yielded a rather different historic median line from the one drawn between the mainland coasts.
36. Yemen’s reply was that Yemen’s title to the formerly disputed islands was not created by the adjudication in the Award on Sovereignty, but that the adjudication was rather a confirmation of an already existing title; and, that “in arbitrations the issue of title is determined both prospectively and retroactively”. These considerations led to some discussion of the effect of a critical date.
37. Yemen was also concerned that Eritrea’s proposed joint resource zones were founded upon a supposition that the sovereignty awarded to Yemen in the First Stage was a sovereignty “only limited or conditional”. This seems to be partly a war of words. All sovereignty is “limited” by international law. Eritrea can hardly be suggesting that Yemen’s sovereignty over the islands is “conditional” in the legal sense according to which failure to observe the condition might act as a cesser of the sovereignty.
38. Eritrea, however, responded by pointing to paragraph 126 of the Award on Sovereignty which speaks of the traditional fishing regime as having, by historical consolidation, established rights for both Parties “as a sort of ‘servitude internationale’ falling short of territorial sovereignty”. Other aspects of these arguments are discussed in Chapter IV below.
Proportionality
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.
Go to Chapter II
Notes – Chapter I
1. I.C.J. Reports 1969, p. 36, para. 57
2. Throughout this Award the use of “miles” refers to nautical miles.
3. I.C.J. Reports 1969, p. 57, para. 101.
4. 18 ILM 60; 54 ILR 6.
Ñ
Eritrea – Yemen Arbitration
Documents
AWARD
Phase II: Maritime Delimitation
CHAPTER II – 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.
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