CHAPTER
I - The Setting up of the Arbitration and the Arguments of the Parties
Introduction
1. This
Award 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 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 Parties renounced
recourse to force against each other, and undertook to "settle their
dispute on questions of territorial sovereignty and of delimitation of maritime
boundaries peacefully". They agreed, to that end, to establish an
agreement instituting an arbitral tribunal. The Agreement on Principles further
provided that
. . .
concerning questions of territorial sovereignty, the Tribunal shall decide in
accordance with the principles, rules and practices of international law
applicable to the matter, and on the basis, in particular, of historic titles.
3.
Concurrently with the Agreement on Principles, the Parties issued a brief Joint
Statement, emphasizing their desire to settle the dispute, and "to allow
the re-establishment and development of a trustful and lasting cooperation
between the two countries", contributing to the stability and peace of the
region.
4. In
conformity with Article 1.1 of the Arbitration Agreement, Eritrea appointed as
arbitrators Judge Stephen M. Schwebel and Judge Rosalyn Higgins, and Yemen
appointed Dr. Ahmed Sadek El-Kosheri and Mr. Keith Highet. By an exchange of
letters dated 30 and 31 December 1996, the Parties agreed to recommend the
appointment of Professor Sir Robert Y. Jennings as President of the Arbitral
Tribunal (hereinafter the "Tribunal"). The four arbitrators met in
London on 14 January 1997, and appointed Sir Robert Y. Jennings President of
the Tribunal.
5.
Having been duly constituted, the Tribunal held its first meeting on 14 January
1997, at Essex Court Chambers, 24 Lincoln's Inn Fields, London WC1, UK. The
Tribunal took note of the meeting of the four arbitrators, and ratified and
approved the actions authorized and undertaken thereat. Pursuant to Article 7.2
of the Arbitration Agreement, the Tribunal appointed as Registrar Mr. P.J.H.
Jonkman, Secretary-General of the Permanent Court of Arbitration (the
"PCA") at The Hague and, as Secretary to the Tribunal, Ms. Bette E.
Shifman, First Secretary of the PCA, and fixed the location of the Tribunal's
registry at the International Bureau of the PCA.
6. The
Tribunal then held a meeting with Mr. Gary Born, Co-Agent of Eritrea, and Mr.
Rodman Bundy, Co-Agent of Yemen, at which it notified them of the formation of
the Tribunal and discussed with them certain practical matters relating to the
arbitration proceedings.
7.
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. The Tribunal
shall decide territorial sovereignty in accordance with the principles, rules
and practices of international law applicable to the matter, and on the basis,
in particular, of historic titles. The Tribunal shall decide on the definition
of the scope of the dispute on the basis of the respective positions of the two
Parties.
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.
8.
Pursuant to the time table set forth in the Arbitration Agreement for the
various stages of the arbitration, the Parties submitted their written
Memorials concerning territorial sovereignty and the scope of the dispute
simultaneously on 1 September 1997 and their Counter-Memorials on 1 December
1997. In accordance with the requirement of Article 7.1 of the Arbitration
Agreement that "the Tribunal shall sit in London", the oral
proceedings in the first stage of the arbitration were held in London, in the
Durbar Conference Room of the Foreign and Commonwealth Office, from 26 January
through 6 February 1998, within the time limits for oral proceedings set forth
in the Arbitration Agreement. The order of the Parties' presentations was
determined by drawing lots, with Eritrea beginning the oral proceedings.
9. At
the end of its session of 6 February 1998, the Tribunal, in accordance with
Article 8.3 of the Arbitration Agreement, closed the oral phase of the first
stage of the arbitration proceedings between Eritrea and Yemen. The closing of
the oral proceedings was subject to the undertaking of both Parties to answer
in writing, by 23 February 1998, certain questions put to them by the Tribunal
at the end of the hearings, including a question concerning the existence of agreements
for petroleum exploration and exploitation. It was also subject to the proviso
in 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.
10. In
its Communication and Order No. 3 of 10 May 1998, the Tribunal invoked this
provision, requesting the Parties to provide, by 8 June 1998, written
observations on the legal considerations raised by their responses to the
Tribunal's earlier questions concerning concessions for petroleum exploration
and exploitation and, in particular, on how the petroleum agreements and
activities authorized by them might be relevant to the award on territorial
sovereignty. The Tribunal further invited the Parties to agree to hold a short
oral hearing for the elucidation of these issues.
11.
Following the exchange of the Parties' written observations, the Tribunal held
oral hearings on this matter at the Foreign and Commonwealth Office in London
on 6, 7 and 8 July 1998. By agreement of the Parties, Yemen presented its
arguments first. In the course of these hearings, the Tribunal posed a series
of questions concerning the interpretation of concession evidence, and the
Parties were requested to respond thereto in writing within seven days of the
end of the oral hearings. On 17 July 1998, both Parties submitted their written
responses to the Tribunal's questions. Eritrea indicated at that time that it
anticipated a brief delay in submission of the documentary appendix
accompanying its submission; this documentary appendix was received by the
International Bureau of the PCA on 22 July 1998. On 30 July 1998, the
International Bureau received from Yemen a submission entitled "Yemen's
Comments on the Documents Introduced by Eritrea after the Final Oral
Argument". Eritrea objected to this late filing by Yemen.
12. In
the course of the supplementary hearings in July 1998, the Tribunal informed
the Parties of its intention to contact the Secretary-General of the Arab League,
in order to ascertain the existence, and obtain copies, of any official Arab
League reports of visits to any of the islands in dispute, particularly in the
1970s. A letter on behalf of the Tribunal was sent by fax to the
Secretary-General of the Arab League on 20 July. His response, dated 28 July,
was transmitted by the registry to the Co-Agents and the Members of the
Tribunal.
*
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Arguments
of the Parties on Territorial Sovereignty
13.
Eritrea bases its claim to territorial sovereignty over these "Red Sea
Islands" (hereinafter the "Islands")(1)
on a chain of title extending over more than 100 years, and on international
law principles of "effective occupation". Eritrea asserts that it
inherited title to the Islands in 1993, when the State of Eritrea became
legally independent from the State of Ethiopia. Ethiopia had in turn inherited
its title from Italy, despite a period of British military occupation of
Eritrea as a whole during the Second World War. The Italian title is claimed
then to have vested in the State of Ethiopia in 1952-53, as a consequence of
Eritrea's federation with, and subsequent annexation by, Ethiopia.
14.
Eritrea traces this chain of title through the relevant historical periods,
beginning with the Italian colonization of the Eritrean mainland in the latter
part of the 19th Century. The parties do not dispute that, prior to Italian
colonization, the Ottoman empire was the unchallenged sovereign over both
coasts of the Red Sea and over the Islands. Bypassing the Ottomans and dealing
directly with local rulers, Italy established outposts in furtherance of its
maritime, colonial and commercial interests. Despite Ottoman objections, it
proclaimed the Italian colony of Eritrea in 1890. Eritrea contends that in 1892
Great Britain recognized Italian title to the Mohabbakah islands, a group of
islands proximate to the Eritrean coast.
15.
Eritrea asserts that, without challenging Ottoman sovereignty, Italy also
maintained an active presence in other southern Red Sea islands at that time.
Italian naval vessels patrolled the surrounding waters in search of pirates,
slave traders and arms smugglers, and the colonial administration allegedly
issued concessions for commercial exploitation on the Islands. According to Eritrea,
there was no Yemeni claim to or presence on or around the Islands during this
time. The Imam Yahya, who ultimately founded modern Yemen, occupied a highland
region known as the Gebel, and, according to Eritrea, openly
acknowledged his lack of sovereignty over the coastal lowlands known as the Tihama.
This territorial arrangement was confirmed by the 1911 "Treaty of
Da'an", an understanding between the Imam and the Ottoman Empire.
16.
Eritrea asserts that the weakening of the Ottoman Empire in the years
immediately preceding the First World War fuelled Italian plans to occupy an
island group known as the "Zuqar-Hanish Islands". These plans were
preempted by a brief period of British military occupation in 1915, which was
short-lived and, according to Eritrea, without legal consequences. At the end
of the War, Italy purportedly renewed and expanded its commercial and
regulatory activities with respect to what Eritrea refers to as the
"Zuqar-Hanish and lighthouse islands". These activities are cited by
Eritrea as evidence of Italy's intent to acquire sovereignty over the Islands.
17. The
question of sovereignty over the Islands formed part of the post-First World
War peace process that culminated in the signature of the Treaty of Lausanne in
1923. While certain former territory of the defeated Ottoman empire was divided
among local rulers who had supported the victorious Allies, Eritrea contends
that none of the Arabian Peninsula leaders who had supported the Allies was in
sufficient geographical proximity to the Islands to be considered a plausible
recipient. The Imam of Sanaa was not a plausible recipient of the Islands, both
because of his alliance with the Ottoman Turks, and because his sovereignty did
not extend to the Red Sea coast. Eritrea cites Great Britain's rejection of
claims made by the Imam in 1917-1918 to parts of the Tihama, and relies on the
Imam 's characterization of these territories as having been "under the
sway of his predecessors" as acknowledging that the Imam indeed lacked
possession and control at that time.
18.
Eritrea traces Great Britain's failure to persuade the remaining Allies to
transfer the Islands to Arab rulers selected by Great Britain, or to Great
Britain itself, through the unratified 1920 Treaty of Sèvres and the negotiations
leading up to the conclusion of the Treaty of Lausanne in 1923. Eritrea relies
on Articles 6 and 16 of the Treaty of Lausanne as having left the islands open
for Italian occupation. Article 6 established the general rule that, in terms
of the Treaty, "islands and islets lying within three miles of the coast
are included within the frontier of the coastal State." Eritrea interprets
this provision, and subsequent state practice under the treaty of Lausanne, as
withholding the islands in question from any Arabian peninsula leader,
because none of the Islands are within three miles of the Arabian coast.
Eritrea further argues that the Imam could not have been given the disputed
islands pursuant to Article 6, because his realm was neither a "state"
nor "coastal" at the time the Treaty of Lausanne was signed.
19.
Article 16 of the Treaty of Lausanne contained an express Turkish renunciation
of all rights and title to former Ottoman territories and islands, and provided
that their future was to be "settled by the parties concerned."
Eritrea argues that because Article 16 did not transfer the Islands to any
particular state, and did not specify any particular procedure for conveying
ownership of the Islands, their ultimate disposition was left to general international
law standards for territorial acquisition - conquest, effective occupation, and
location within the territorial sea. Eritrea claims to find further support for
this in subsequent state practice interpreting Article 16.
20.
Eritrea asserts that by the end of the 1920s, Italy had acquired sovereignty
over the disputed islands by effective occupation, and that neither the 1927
conversations between Great Britain and Italy, which came to be known as the
"Rome Conversations", nor the aborted 1929 Lighthouse Convention were
contra-indications. This effective occupation consisted, inter alia, of the
construction in 1929 of a lighthouse on South West Haycock Island, which
Eritrea claims led Great Britain to repeat acknowledgments of Italian
sovereignty over the Mohabbakahs, previously made in 1892 and 1917. Eritrea
finds further support for effective Italian occupation during this period in
the dispatch of an expedition to the Zuqar-Hanish islands and their subsequent
occupation by Italian troops. Eritrea asserts that in the period 1930-1940
Italy exercised sovereign rights over the Islands through the colonial
government in Eritrea. Eritrea cites, inter alia, the granting of fishing
licenses with respect to the surrounding waters, the granting of a license for
the construction of a fish processing plant on Greater Hanish, and the
reconstruction and maintenance of an abandoned British lighthouse on Centre
Peak Island. These satisfy, in Eritrea's view, the corpus occupandi
requirement of effective occupation and, accompanied as they were by the
requisite sovereign intent (animus occupandi), constitute the
acquisition of sovereignty by effective occupation.
21.
Eritrea further asserts that Yemen did not protest or question Italy's
activities on the Islands during this time. Great Britain, however, sought
assurances that Italian activities did not constitute a claim of sovereignty.
Eritrea characterizes Italy's responses that the question of sovereignty was
"in abeyance" or "in reserve" as a refusal to give such
assurances. According to Eritrea, this formula was understood by both Italy and
Great Britain as preserving Italy's legal rights while allowing Great Britain
to withhold diplomatic recognition of those rights. Tensions between the two
states on this and other matters led to conclusion of the 1938 Anglo-Italian
Agreement, which Eritrea claims is probative of Italian and British views at
that time. It is said to reflect, among other things, the parties'
understanding that the Islands were not appurtenant to the Arabian Peninsula,
and that Italy and Great Britain were the only two powers with a cognizable
interest in them.
22. The
1938 Anglo-Italian Agreement also contained an express undertaking on the part
of both Italy and Great Britain with respect to the former Ottoman Red Sea
islands, that neither would "establish its sovereignty" or
"erect fortifications or defences". This constituted, in Eritrea's
view, not a relinquishment of existing rights, but simply a covenant regarding
future conduct. Eritrea argues that, at the time of the Anglo-Italian
Agreement, Italy's sovereignty over the Islands had already been established as
a matter of law, and it remained unaffected by the agreement. Eritrea further
asserts that in December of 1938, Italy formally confirmed its existing
territorial sovereignty over the Islands by promulgating decree number 1446 of
1938, specifically confirming that the Islands had been, and continued to be,
part of the territory of the Eritrean Commissariato of Dankalia.
23.
Eritrea characterizes the eleven-year British occupation of Eritrea that
commenced in 1941 in the wake of the Second World War as congruent with the law
of belligerent occupation. Eritrea's territorial boundaries remained unchanged,
and the territory of "all Italian colonies and dependencies"
surrendered to the Allies in the 1943 Armistice "indisputably
included", in Eritrea's view, the Islands. The 1947 Treaty of Peace
provided for disposition of Italy' s African territories by the Allied Powers,
which was accomplished in 1952 by the transfer to Ethiopia, with which Eritrea
was then federated, of "all former Italian territorial possessions in
Eritrea". This marked, in Eritrea's view, the passing to Ethiopia of
sovereign title to the Islands.
24.
Eritrea claims that the drafting history of the 1952 Eritrean Constitution
confirms the inclusion of the disputed islands within the definition of
Eritrean territory. This is, according to Eritrea, the only plausible
interpretation of the phrase "Eritrea, including the islands" in the definition
of the territory of Eritrea, and it is said to be supported by advice given to
Ethiopia at the time by its legal adviser, John Spencer. Eritrea claims that
this was further reinforced by similar language in subsequent constitutional
and legislative provisions, in particular, the 1952 Imperial Decree federating
Eritrea into the Ethiopian Empire, and the 1955 Ethiopian Constitution.
25.
Another basis for Ethiopian sovereignty put forward by Eritrea is the inclusion
of the Islands within Ethiopia's territorial sea. Eritrea relies on the rule of
international customary and conventional law that every island is entitled to
its own territorial sea, measured in accordance with the same principles as
those applicable to the mainland. In Eritrea's view, a chain of islands linked
to the mainland with gaps no wider than twelve miles falls entirely within the
coastal state's territorial sea and therefore under its territorial
sovereignty. Thus, measuring from the Mohabbakah islands, which Eritrea asserts
were indisputably Ethiopian, Ethiopia's 1953 declaration of a 12-mile
territorial sea encompassed the Zuqar-Hanish islands.
26. The
35-year period between 1953 and Eritrean independence in 1991 is characterized
by Eritrea as one of extensive exercise of Ethiopian sovereignty over the
Islands. This allegedly included continuous, unchallenged naval patrols, which
became increasingly systematic as the Eritrean Liberation Movement gathered
strength. In addition, following transfer of the administration of the lighthouses
to Asmara by the British Board of Trade in 1967, Ethiopia is said to have
further consolidated its sovereignty by requiring foreign workers on the
lighthouse islands to carry passports and similar documents, overseeing and
regulating the dispatch of all provisions to the lighthouse islands, being
involved in all employment decisions affecting lighthouse workers, approving
all inspection and repair visits to the lighthouse islands, and tightly
controlling radio transmissions to and from the lighthouse islands. Other
alleged acts of Ethiopian sovereignty put forward by Eritrea include the
exercise of criminal jurisdiction over acts committed on the Islands,
regulation of oil exploration activities on and around the Islands, and an
inspection by then President Mengistu and a group of high-ranking Ethiopian
military and naval personnel during the late 1980s, for which Eritrea has
submitted videotape evidence.
27.
Eritrea claims that throughout the 1970s the two Yemeni states and their
regional allies acknowledged Ethiopian control over the Islands by their
statements and actions. It alleges that, until the early 1970s, neither North
Yemen nor South Yemen had displayed any interest in the Islands. Regional
interest in the Islands is said to have been sparked by false reports of an
Israeli presence there in 1973. According to Eritrea, the presumption on the
part of Yemen, its neighbouring states and the Arab media that Ethiopia had
leased the Islands to Israel constituted an acknowledgment of Ethiopian sovereignty.
In support, Eritrea claims that the Arab states not only condemned Ethiopia for
having made Ethiopian islands available to Israel, but also looked ultimately
to Ethiopia for permission to visit the Islands in order to investigate the
allegations of Israeli military activity.
28.
Eritrea contends that the final years before Eritrean independence were marked
by aerial surveillance and continuous naval patrols by Ethiopian forces.
29.
Eritrea claims that, after winning its independence in 1991, it acquired
sovereign title to the Islands and exercised sovereign authority over them.
Eritrea asserts that, as they have been throughout recent history, Eritrean
fishermen are dependent upon the Islands for their livelihood. Eritrean
administrative regulations are said strictly to control fishing around the
Islands, prescribing licensing and other requirements for fishing in the
surrounding waters. Eritrea further contends that its vessels police foreign
fishing vessels in Eritrean territorial waters, and routinely patrol the waters
around the Islands in order to enforce fishing regulations, seizing vessels
that fail to comply. It asserts that Yemen did not maintain any official
presence in the Islands, and that it was only in 1995 that Eritrean naval
patrols discovered a small Yemeni military and civilian contingent purportedly
engaged in work on a tourist resort on Greater Hanish Island. This led, in
December 1995, to hostilities that ended with Eritrean forces occupying Greater
Hanish Island, and Yemeni forces occupying Zuqar.
30.
With respect to territorial sovereignty, Eritrea seeks from the Tribunal an
award declaring "that Eritrea possesses territorial sovereignty over each
of the "islands, rocks and low-tide elevations" specified by Eritrea
in its written pleadings, "as to which Yemen claims sovereignty."
* -
*
31.
Yemen, in turn, bases its claim to the Islands on "original, historic, or
traditional Yemeni title". Yemen puts particular emphasis on the
stipulation in Article 2.2 of the Arbitration Agreement, that "[t]he
Tribunal shall decide territorial sovereignty in accordance with the
principles, rules and practices of international law applicable to the matter,
and on the basis, in particular, of historic titles." This title can,
according to Yemen, be traced to the Bilad el-Yemen, or realm of Yemen,
which is said to have existed as early as the 6th Century AD. Yemen advances,
in support of this claim, map evidence,(2)
declarations by the Imam of Yemen, and what it refers to as "the attitude
of third States over a long period".
32.
Yemen contends that its incorporation into the Ottoman Empire, from 1538 to circa
1635, and again from 1872 to the Ottoman defeat in 1918, did not deprive it of
historic title to its territory. Yemen asserts that the creation of the Ottoman
vilayet of Yemen as a separate territorial and administrative unit
constituted Ottoman recognition of Yemen's separate identity. It relies on the
work of 17th, 18th and 19th Century cartographers who allegedly depicted Yemen
as a separate, identifiable territorial entity. Further map evidence is adduced
in support of Yemen's contention that the Islands form part of that territory.
33. In
further support of its assertions that Yemen maintained historic title to the
Islands, Yemen retraces the drafting history of its 1934 Treaty with Great
Britain, citing several exchanges of correspondence in which the Imam insisted,
in one form or another, on his rights to the "Islands of the Yemen".
Yemen cites Great Britain's rejection of the Imam's proposal to attach to the
treaty a secret appendix concerning the Islands, on the grounds that the
Islands, as former Ottoman possessions, were to be dealt with pursuant to
Article 16 of the Treaty of Lausanne.
34.
Yemen argues that this did not constitute a denial of traditional Yemeni title,
and puts forward documents that it claims support the characterization of
British official opinion in the period 1933 to 1937 as being reluctant to
challenge Yemeni title. Yemen further contends that the Treaty of Lausanne had
no effect on Yemeni title, because Yemen was not a party to the Treaty, and
because Turkey's renunciation of rights could not prejudice the interests of
third parties. Yemen takes the view that the effect of Article 16 was not to
make the Islands terra nullius, but rather, territory "the title to
which was undetermined." Yemen argues in addition that Article 16 has, in
any event, ceased to have effect between "the parties concerned",
because of their own conduct, and that of third states, in recognizing, or
failing to make reservations concerning, Yemen's sovereignty in respect of the
Islands.
35.
Another ground put forward in support of Yemen's claim that its original title
extends to the Islands is "the principle of natural or geographical
unity". Yemen argues that this doctrine is a corollary of the concept of
traditional title, and that it operates in conjunction with evidence of the
exercise of acts of jurisdiction or manifestations of state sovereignty. Yemen
cites case law of the International Court of Justice and arbitral decisions in
support of the premise that once the sovereignty of an entity or natural unity
as a whole has been shown to exist, it may be deemed, in the absence of any
evidence to the contrary, to extend to all parts of that entity or unity.
According to Yemen, there is a "concordance of expert opinion evidence on
the character of the islands as an entity or natural unity", including
British admiralty charts, the Red Sea and Gulf of Aden Pilot, produced
by the United Kingdom Hydrographic Office, and the Encyclopedia Britannica.
36.
Yemen relies on various categories of evidence of sovereignty, which it asserts
may serve to confirm and supplement the evidence of traditional or historic
title, as well as constituting independent sources of title. These include
economic and social links between the Islands and the Yemeni mainland, the
exercise of sovereignty in the form of acts of jurisdiction, recognition of
Yemen's title by third states, and confirmation of Yemeni title by expert
opinion evidence.
37.
Yemen cites case law and commentary in support of its contention that, within
the appropriate geographical context, the private activities of individual
persons constitute relevant evidence of historic title to territory. Yemen's
analysis of these facts and activities begins with the names "Hanish"
and "Zuqar," which, it asserts, have Arabic roots. Yemen also notes
the presence on the Yemeni coast of inhabitants with names derived from the
word "Hanish", and a family history, as fishermen, intertwined with
that of the Islands. Yemen points out that, during the disturbances of 1995,
two members of such a family were taken prisoner by Eritrean forces while
fishing near Greater Hanish Island. Yemen also alleges the existence of
anchorages and settlements on the Islands bearing distinctly Yemeni Arabic
names. Yemen claims that, for generations, Yemeni fishermen have enjoyed
virtually exclusive use of the Islands, even establishing, in contrast to
Eritrean fishermen, permanent and semi-permanent residence there.
38.
Yemen further asserts that the Islands are home to a number of Yemeni holy
sites and shrines, including the tombs of several venerated holy men. It points
to a shrine used primarily by fishermen, who have developed a tradition of
leaving unused provisions in the tomb to sustain their fellow fishermen.
39. In
addition, Yemen points out that the Islands fall within the jurisdiction of a
traditional system of resolving disputes between fishermen, in which a kind of
arbitrator may "ride the circuit" along the coast and among the
Islands, in order to insure access to justice for those fishermen who are
unable to travel.
40.
Yemen emphasizes the economic links between the Islands and the Yemeni
fishermen who rely for their livelihood on them and their surrounding waters,
and who sell their catch almost exclusively on the Yemeni mainland. Yemen
contrasts this with the situation of the Eritrean fishermen, pointing out that,
because of the difficulty of hygienic transport of fish to the interior of
Eritrea (including the capital of Asmara), Eritrea lacks a fish-eating
tradition. According to Yemen, most Eritrean fishermen find a better market for
their wares on the Yemeni coast. Yemen asserts that for centuries, the
long-standing, intensive and virtually exclusive use of the Islands by Yemeni
fishermen did not meet with interference from other states.
41.
Yemen provides an historical review of alleged Yemeni acts of administration
and control, which are said to supplement and confirm Yemen's historic title to
the Islands, as well as forming independent, mutually reinforcing sources of
that title. The earliest of these acts, a mission sent to Jabal Zuqar by the
King of Yemen in 1429 to investigate smuggling, predates Ottoman rule. In the
Ottoman period, Yemen asserts that the Islands were considered part of the vilayet
of Yemen, and that the Ottoman administration handled, inter alia, tax,
security, and maritime matters relating to the Islands. Yemen cites an 1881
lighthouse concession by the Ottoman authorities to a private French company,
for the construction of lighthouses throughout the empire, which included some
of the islands in the vilayet of Yemen. Yemen also cites 19th Century
Ottoman maps and annual reports, which place the Islands within the vilayet
of Yemen.
42.
Yemen emphasizes that the post-Ottoman British presence on the Islands was
intermittent, and that Great Britain never claimed sovereignty over them.
Following establishment of the Yemen Arab Republic in 1962, its Government
allegedly asserted legislative jurisdiction over the Islands on at least two
occasions. Yemen claims that its navy conducted exercises on and around the
Islands, and that its armed forces played a key role in confirming the absence
of Israeli troops on the Islands in 1973. In Yemen's rendition of the events
surrounding the 1973 incident, the Islands are consistently characterized as
Yemeni, rather than Ethiopian.
43.
Yemen cites a number of examples of the issuance of licenses to foreign
entities wishing to engage in scientific, tourist and commercial activities in
and around the Islands, and of the granting of permits for anchorage. Yemen
presents evidence concerning the authorization given to a German company by the
Yemeni Ministry of Culture and Tourism and the Yemen General Investment
Authority in 1995 for the construction of a luxury hotel and diving centre on
Greater Hanish Island. Yemen further asserts that it exercised jurisdiction
over the Islands in respect of fishing, environmental protection, the
installation and maintenance of geodetic stations, and the construction and
administration of lighthouses, including the publication of relevant Notices to
Mariners. Yemen has placed in evidence elaborate chronological surveys,
covering a variety of time periods, of alleged Yemeni activities "in and
around the Hanish Group".
44.
Yemen contends that from 1887 to 1989, at least six states confirmed, by their
conduct or otherwise, Yemen's title to the Islands. Yemen points out that upon
conclusion of the Anglo-Italian Agreement of 1938, which Eritrea characterizes
as being limited to future conduct, the Italian Government informed the Imam of
Yemen that, pursuant to the agreement, Italy had undertaken not to extend its
sovereignty on or to fortify the "Hanish Island group," and that it
had, in the negotiations, "kept in mind . . . above all Yemen's
interests". Yemen claims to find further acknowledgment of Yemeni rights
in British practice and "internal thinking," as reflected in Foreign
Office and Colonial Office documents of the 1930s and 1940s. French recognition
of Yemeni title is said to include a request for permission to conduct military
manoeuvres in the Southern Red Sea in 1975, and for a French oceanographic
vessel to conduct activities near the Islands in 1976.
45.
Yemen attributes similar evidentiary value to German conduct and publications,
and to official maps published by the United States Army and Central
Intelligence Agency, as recently as 1993. Yemen offers evidence of what it
terms "revealing changes in Ethiopian cartography" in support of its
contention that Ethiopia did not claim title to the Islands. It relies
particularly on Ethiopian maps from 1978, 1982, 1984 and 1985, on which all or
some of the Islands appear, by their colouring, to be allocated to Yemen.
46.
Yemen also puts forward cartographic evidence on which it relies as official
and unofficial expert evidence of Yemeni title to the Islands. Such evidence
serves, according to Yemen, as proof of geographical facts and the state of
geographical knowledge at a particular period. Yemen supplements this
cartographic evidence with the published works of historians and other
professionals.
47.
Yemen gives an historical review of this evidence, beginning with 17th and 18th
Century maps depicting the independent Bilad el-Yemen. Yemen asserts
that while some 18th Century maps fail to depict the Islands accurately, the
more accurate of these attribute them to Yemen. Yemen places great emphasis on
writings and maps reflecting the first-hand impressions of Carsten Niebuhr, a
Danish scientist and explorer who visited the Red Sea coast from 1761-1764.
Niebuhr's works suggest political affiliation and other links between the
Islands and the Yemeni mainland.
48.
Yemen further submits in evidence a large number of 19th and 20th Century maps,
of varied origin, the colouring of which appears to attribute all or some of
the Islands to Yemen. At the same time, it did not deny that certain Yemeni
maps attribute the Islands to Ethiopia or Eritrea; or at least not to Yemen.
49. In
addition to proffering cartographic and other evidence in support of its
assertions of historic title to the Islands, Yemen argues that, until the
events of December 1995, Ethiopian and Eritrean conduct was consistent with
Yemeni sovereignty. Yemen alleges that as recently as November 1995, Eritrea
acknowledged in an official communique to the President of Yemen that the
Islands had " . . . been ignored and abandoned for many years since
colonial times, including the eras of Haile Selassie and Mengistu, and during
the long war of liberation."
50.
Yemen insists that, during the Ottoman period, the Islands were consistently
administered as part of the vilayet of Yemen, and that title never
passed to Italy during the period of Italian colonization of the Eritrean
mainland. Yemen cites several occasions on which, in its view, Italy had
declined to claim sovereignty. These include exchanges between the British and
Italian Governments in the late 1920s and 1930s and culminated in the 1938 Anglo-Italian
Agreement which amounts, in Yemen's view, to a definitive agreement by both
parties not to establish sovereignty over islands with respect to which Turkey
had renounced sovereignty by Article 16 of the Treaty of Lausanne. Yemen
interprets Italian decree number 1446 of December 20, 1938 not as a
confirmation of existing territorial sovereignty but rather as a mere
"internal decree providing for the administration of the islands to be
undertaken from the Assab department of Eritrea."
51.
Yemen argues further that the phrase "the territory of Eritrea including
the islands" in the 1952 UN-drafted Eritrean Constitution does not refer
to the disputed islands, because the official Report of the United Nations
Commission for Eritrea, prepared in 1950, indicates Yemeni title to the
Islands, by depicting them in the same colour as the Yemeni mainland on UN maps
accompanying the Report. Yemen contests all Eritrean allegations of Ethiopian
acts of sovereignty or administration, and asserts that Ethiopian conduct,
particularly its publication of official maps on which the Islands were the
same colour as the Yemeni mainland, constituted recognition of Yemeni
sovereignty over the Islands.
52.
According to Yemen, while Yemeni fishermen historically fished around the
Islands and used them for temporary residence, Yemen exercised a wide array of
state activities on and around them. These activities are alleged to have
included, during the 1970s, the consideration of requests by foreign nationals
to carry out marine and scientific research on the islands, periodic visits of
Yemeni military officials to Greater Hanish and Jabal Zuqar, and related
patrols on and around these islands. Yemen also claims to have protested the
conduct of low-level military flights by France over the Hanish islands, as
well as Ethiopia's arrest of Yemeni fishermen in the vicinity of the Islands,
and further asserts that it investigated a number of lost or damaged foreign
vessels around Greater Hanish and Jabal Zuqar.
53.
With respect to the 1980s and 1990s, Yemen alleges that various Yemeni air
force and naval reconnaissance missions were conducted over and around the
Islands. Yemen also asserts that it granted licenses allowing nationals of
third states to visit the certain islands for scientific purposes and tourism,
and that some of these visitors were accompanied by Yemeni officials. In 1988,
Yemen is said to have embarked on a project to upgrade and build a series of
lighthouses, accompanied by Notices to Mariners, on Centre Peak Island, Jabal
al-Tayr, Lesser Hanish Island, Abu Ali, Jabal Zuqar and Greater Hanish Island.
Yemen also claims to have erected geodetic stations on Greater Hanish and Jabal
Zuqar and authorized construction of a landing strip on Greater Hanish, which
was used frequently in the early 1990s. Yemen also contends that, during this
period, it continued its patrols of the islands, arresting foreign fishermen
and confiscating vessels found operating in waters around the islands without a
Yemeni license.
54.
With respect to territorial sovereignty, Yemen seeks from the Tribunal an award
declaring "that the Republic of Yemen possesses territorial sovereignty
over all of the islands comprising the Hanish Group of islands . . . as defined
in chapters 2 and 5 of Yemen's Memorial."
*
- *
Arguments
of the Parties on the Relevance of Petroleum Agreements and Activities
55. In
response to specific questions from the Tribunal, which were dealt with in
supplemental written pleadings, at resumed oral hearings in July 1998, and in
post- hearing written submissions, both Parties have presented evidence of
offshore concession activity in the Red Sea. Yemen contends that its record of
granting offshore concessions over the last fifty years reinforces and
complements a consistent pattern of evidence indicating Yemeni title to the
islands. As the granting of oil concessions serves to confirm and maintain an
existing Yemeni title, rather than furnishing evidence of effective occupation,
it need not, in Yemen's view, be supported by evidence of express claims. This
is said to be congruent with Yemen's assertions of historic title.
56. In
evidence of what it terms "longstanding and peaceful administration of its
petroleum resources" on and around the Islands, Yemen has submitted
agreements and maps concerning concession blocks granted or offered since 1974.
One of these concession blocks (Tomen) encompasses some of the Islands, in this
case, the "Hanish Group", while another (Adair) is bounded by a line
that cuts through Greater Hanish. Yemen further relies on a 1991 hydrocarbon
study of the Red Sea and Gulf of Eden regions carried out by the United Nations
Development Program (UNDP) and the World Bank. As this study enjoyed the
participation of the governments concerned, particularly Ethiopia and successive
Yemeni governments, Yemen relies on it as a useful overview of petroleum
activities undertaken by the two states from the early 1950s.
57.
Yemen relies on both case law (in particular the Eastern Greenland case(3)) and scholarly writing in support of its assertion
that the granting of exploration permits and concessions constitutes evidence
of title, addressing such evidentiary categories as: the attitude of the
grantor state, its grant and regulation of the operation of the concession,
ancillary government-approved operations, and the attitude of the
concessionaire and of international agencies. In addition, Yemen derives from
the absence of protests evidence of Ethiopian and Eritrean acquiescence.
58.
Yemen invokes the presumption that a state granting an oil concession does so
in respect of areas over which it has title or sovereign rights. The activity
of offering and granting concessions with respect to blocks that encompass or
approach the Islands constitutes, in Yemen's view, a clear manifestation of
Yemeni sovereignty over the Islands. Yemen cites, in addition, express
reservations, in the relevant agreements, of Yemeni title to the concession
areas. In addition to demonstrating Yemen's attitude regarding title, the
granting of these economic concessions to private companies is said to
constitute evidence of the exercise of sovereignty in respect of the territory
concerned. Yemen finds additional evidence of the exercise of sovereignty in
Yemen's monitoring and regulation of the operations undertaken by the various
concessionaires and the granting of permits for ancillary operations such as
seismic reconnaissance.
59.
Yemen further argues that a company will not enter into a concession with a
state for the development of petroleum resources unless it is persuaded that
the area covered by the concession, and the underlying resources, in fact
belong to that state. Furthermore, the reservations of Yemeni title in the
concession agreements submitted by Yemen are said to constitute express
recognition by the concessionaires of Yemeni title to the blocks concerned. The
UNDP/World Bank study constitutes, in Yemen's view, recognition of Yemeni title
by these international agencies, as well as expert evidence to the same effect.
60.
Yemen also proffers the UNDP/World Bank study as evidence of Ethiopian
acquiescence. Because the study was prepared in collaboration with, and
ultimately distributed to, all concerned governments, Ethiopia can, in Yemen's
view, be held to have had notice of the existence and scope of Yemeni
concessions implicating the Islands, without issuing any protests. Yemen relies
further on other maps and reports published in the professional petroleum
literature, of which it asserts Ethiopia and Eritrea should have been aware.
61.
Finally, Yemen asserts that Ethiopian and Eritrean petroleum activities did not
encompass or touch upon the Islands, and therefore provide no support for a
claim of sovereignty. Despite this, Yemen alleges that it consistently made timely
protests with respect to those Ethiopian concessions that, in Yemen's view,
encroached in any manner upon its territorial sea, continental shelf and
exclusive economic zone.
62.
Eritrea, in turn, proffers evidence of offshore petroleum activities, conducted
primarily by Ethiopia, at a time at which, it alleges, "Ethiopia's title
was already established". Eritrea cites oil-exploration related activities
"on the islands" as confirming Ethiopia's pre-existing claim to
sovereignty, which could not, in its view, be divested by Yemen's unilateral
grants of offshore mineral concessions. Eritrea also argues that, in the
absence of any physical manifestation of control either on islands or in their
territorial waters, the mere granting of concessions by Yemen would not suffice
to establish title through effective occupation, "even if the islands had
been previously unowned."@
63.
According to Eritrea, the concession evidence put forward by Yemen is irrelevant,
because it represents unilateral attempts by Yemen to establish permanent
rights to the seabed, in violation of customary international law and the
United Nations Convention on the Law of the Sea (the "Law of the Sea
Convention"). Yemen's concession agreements are further said to be
irrelevant because they were entered into only after the present dispute arose,
were not accompanied by Yemeni government activities, and did not pertain to
the territory in dispute. Eritrea also questions the factual accuracy of
Yemen's allegations concerning concession agreements, pointing to Yemen's
failure to submit in evidence copies of certain of these agreements.
64.
Eritrea argues that, under both the Law of the Sea Convention and customary
international law, mineral rights to the seabed can neither be acquired nor
lost through the unilateral appropriation of one competing claimant. Pending
agreement with the opposite coastal state, Yemen was, in Eritrea's view,
entitled only to issue concessions on a provisional basis. If the alleged
concessions could not effectively confer the very mineral rights with which
they purported to deal, they could not indirectly settle the question of
sovereignty over the Islands. According to Eritrea, petroleum concessions are
relevant only where they demonstrate the existence of a mutually recognized de
facto boundary line. There had, in this case, been no attempt by Yemen to reach
mutual agreement with Ethiopia or Eritrea.
65.
Eritrea contends that the provisional character of any concessions issued by
Yemen is derived not only from Article 87(3) of the Law of the Sea Convention,
which permits the provisional granting of concessions, provided this does not
prejudice a final delimitation, but also from Yemen's own continental shelf legislation,
adopted in 1977, which provides that "pending agreement on the demarcation
of the marine boundaries, the limits of territorial sea, the contiguous zone,
the exclusive economic zone . . . shall not be extended to more than the median
or equidistance line."
66.
Eritrea further asserts that Yemen's offshore concessions were issued after
1973, with full knowledge of Ethiopia's sovereignty claims to the Islands. This
is claimed not only to have implications for the delimitation of the
surrounding seabed, but to limit as well the evidentiary value of Yemen's
concession evidence in resolving the question of sovereignty.
67.
Thus Eritrea argues that the post-1973 grant of concessions by Yemen reflects
attempts to manufacture contacts with the disputed islands. This is further
supported, in Eritrea's view, by the lack of any related Yemeni state activity
pertaining specifically to the territory in dispute. According to Eritrea,
concessions can be brought to bear on the question of territorial acquisition in
two ways. The first is exemplified by the deep sea fishing concession granted
by Italy to the Cannata company in the 1930s, which led inter alia to
construction of a commercial fishing station on Greater Hanish Island.
According to Eritrea, the Cannata concession was accompanied by the
direct involvement of state officials, including Italian troops stationed on
the island.
68.
Another way in which concessions may be relevant to territorial acquisition is
that reflected in the Eastern Greenland case. Eastern Greenland
does not, in Eritrea's reading, necessarily require the physical presence of a
particular state official, but rather activities by individuals who, while not
themselves employees of the state, act under colour of state law. Eritrea cites
doctrine in support of its position that the concession activity of private
individuals is relevant only when it involves some kind of real assertion of
authority, since "the exercise or display must be genuine and not a mere
paper claim dressed up as an act of sovereignty." Eritrea argues that the
scope of Yemeni and private activity with respect to petroleum concessions
"does not approach the quality and significance of Ethiopia's
long-standing pattern of governmental activities on and around the disputed islands."
Eritrea further asserts that the few concession agreements actually placed in
evidence by Yemen ultimately bear little or no relationship to the islands in
dispute.
69. In
addition, Eritrea characterizes much of Yemen's petroleum activity as pertaining
to "marine scientific research," rather than economic exploitation.
Article 241 of the Law of the Sea Convention expressly precludes marine
scientific research activities from constituting the legal basis for any claim
to any part of the marine environment or its resources.
70.
Eritrea argues that its failure to protest Yemeni concessions does not amount
to acquiescence, particularly in light of military and political upheaval in
Ethiopia during the relevant period. Eritrea has submitted evidence aimed at
demonstrating that the 1991 UNDP/World Bank report relied on by Yemen as
evidence of notice to Ethiopia may never have been received by Ethiopia,
embroiled as it then was in the fall of the Mengistu regime and the end of the
civil war. And even if it had been ultimately received, Eritrea posits that in
1991, knowing it would soon lose its entire coastline to the soon-to-be
independent Eritrea, Ethiopia would have had no reason to protest Yemeni
concessions.
71.
Even if it had had actual notice of some or all of Yemen's concessions, Eritrea
contends that it was entitled to rely on their being provisional under Article
87(3) of the Law of the Sea Convention and under Yemen's own 1977 continental
shelf legislation.
72.
Finally, at the oral hearings in London in July 1998, Eritrea produced evidence
of a 1989 Ethiopian concession agreement which, in its view, included at least
some of the Islands, notably Greater Hanish, on which Eritrea relies as
evidence of related activities which are said to have taken place on Greater
Hanish Island, including the placement of beacons. Moreover, it has introduced
evidence of publication in 1985 of a series of maps, one of which is entitled
"Petroleum Potential of Ethiopia" and purports to encompass a block
of the Red Sea that includes the Hanish islands.
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Notes -
Chapter I
1. The
identification of the specific islands or island groups in dispute between the
Parties has been entrusted to the Tribunal by Article 2 of the Arbitration
Agreement (see para. 7, above), and is dealt with in the part of this Award
dealing with the scope of the dispute. References to "the Islands" in
this Award are to those Islands that the Tribunal finds are subject to
conflicting claims by the Parties. The geographic area in which these islands
are found is indicated on the map opposite page 1.
2.
Although Eritrea has also submitted cartographic evidence showing the Islands
to be Ethiopian, Eritrean or, in any event, not Yemeni, it places relatively
little weight on this type of evidence. Eritrea takes the position that maps do
not constitute direct evidence of sovereignty or of a chain of title, thereby
relegating them to a limited role in resolving these types of disputes.
3.
Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (Ser. A/B) No.
53.