CHAPTER
II - The Scope of the Dispute
73. The
Arbitration Agreement seeks from the Tribunal an award "on the definition
of the scope of the dispute between Eritrea and Yemen." It further instructs
the Tribunal to decide on the definition of the scope of the dispute "on
the basis of the respective positions of the two Parties."
74. The
Parties agree that this provision was included in the Arbitration Agreement as
a result of the Parties' inability to reach agreement on the definition of the
scope of the dispute. According to Eritrea, at the time of the military
confrontation in late 1995, which resulted in an Eritrean military occupation
of Greater Hanish and some of the small surrounding islands and the Republic of
Yemen's military occupation of Zuqar Island, Eritrea wished to seek a
determination of all respective Eritrean and Yemeni claims, either by
international arbitration or adjudication. Yemen would not agree to such a
submission, insisting instead, as Eritrea relates it, on limiting the scope of
the dispute to Eritrea's alleged illegal occupation of Hanish Island. Because
neither Party wanted this disagreement on scope to prevent the conclusion of
the Agreement on Principles and subsequent Arbitration Agreement, they agreed
to leave the determination of scope to the Tribunal.
75. In
Eritrea's interpretation of the phrase "the respective positions of the
Parties", both Parties are free to put forth and elaborate on their
positions concerning the scope of the dispute at any point in the proceedings.
Eritrea purports to have done so by including in its Memorial, submitted on 1
September 1997, a non-exhaustive list of "islands, rocks and low-tide
elevations" with respect to which it asserts territorial sovereignty, and
requesting the Tribunal to rule that the scope of the dispute includes each of
these specified "islands, rocks and low-tide elevations". Eritrea
insists that as its position with regard to scope has not altered over time,
the time at which it was determined is irrelevant. While indicating that it had
not expected Yemen to claim the Mohabbakah islands, Eritrea has expressed
willingness to defend its claim to the Mohabbakahs: i.e., to consider them
encompassed by the scope of the dispute. Eritrea further asserts that Yemen
was, in fact, aware of Eritrean claims to Jabal Al-Tayr and the Zubayr group.
76.
Yemen, however, puts forward the view that "the respective positions of
the Parties" are to be determined at the date of the Agreement on
Principles (21 May 1996). Yemen submits that "the task of the Tribunal is
to determine the extent to which there was a dispute between the Parties over
certain islands in the Red Sea and their maritime limitation as of that
date." According to Yemen, the respective positions of the Parties at that
date reflected their mutual understanding that Jabal Al-Tayr and the Zubayr
group of islands were not considered to fall within the scope of the dispute.
Yemen characterizes the scope of the dispute as involving "the Hanish
Group of Islands," comprising - in its view - Abu Ali island, Jabal Zuqar,
Greater and Lesser Hanish, Suyul Hanish, the various small islets and rocks
that surround them, the South West Rocks, the Haycocks and the Mohabbakahs. It
asserts that the "Northern Islands" of Jabal Al-Tayr and the Zubayr
group were never in dispute between the Parties, and were not reflected in
Eritrea's "position" until 1 September 1997, the date of filing of
the Parties' Memorials, and thus fell outside the scope of the dispute.
77. The
Parties' divergent positions on the substance of the dispute are reflected in a
document dated 29 February 1996, entitled "French Memorandum for Yemen and
Eritrea". In the aftermath of the December 1995 hostilities, Eritrea and Yemen
had, on advice from the UN Secretary-General, invited the French Government to
"contribute to the seeking of a peaceful settlement of the dispute between
them in the Red Sea." This memorandum was the result of three diplomatic
missions to the region, consisting of in-depth talks with the representatives
of the two Governments, and it led to the subsequent conclusion between the
Parties of the Agreement on Principles, in May 1996, and the Arbitration
Agreement, in October 1997.
78. As
described in the French memorandum, "[t]he problem raised is as follows.
According to Eritrea the dispute concerns at present not only the island of
Great Hanish which underwent the events we know about in autumn 1995, but also
all of the Hanish-Zucur archipelagoes, particularly the island of Djebel Zucur,
since Yemen has stationed troops there whereas these archipelagoes come under
Eritrean sovereignty." With respect to the Yemeni position, the French
memorandum continues: "According to Yemen this dispute concerns the island
of Greater Hanish, where Eritrea has sent troops, but cannot concern the
Hanish-Zucur archipelagoes in their totality, particularly the island of Djebel
Zucur, since they come under Yemeni sovereignty."
79. The
French mediator therefore proposed that the arbitral tribunal be asked "to
provide rulings on the questions of territorial sovereignty, as well as
delimitation of maritime boundaries, in a zone defined for example by
geographical coordinates." This definition would, according to a French
Draft Agreement on Principles dated 29 February 1996, take into account
"the undisputed sovereignty of either Party on islands and rocks, such as,
for example, the Dahlak Islands for Eritrea, or the Zubair Islands for
Yemen." This proposal was rejected by the Parties, in favour of leaving
the determination of the scope of the dispute to the arbitral tribunal.
80.
Article 1 of the Agreement on Principles of 21 May 1996 provides:
[ . . .
]
1.2
They shall request the Tribunal to provide rulings in accordance with international
law in two stages:
a) in
the first stage, on the definition of the scope of the dispute between Eritrea
and Yemen, on the basis of the respective positions of the two parties;
b) in
the second stage, and after having decided on the point mentioned in letter a)
above, on:
i)
questions of territorial sovereignty,
ii)
questions of delimitation of maritime boundaries.
2. They
commit themselves to abide by the decision of the Tribunal.
81.
Article 2 of the Arbitration Agreement, however, provides as follows:
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.
82.
Article 15 of the same Arbitration Agreement also provides:
1.
Nothing in this Arbitration Agreement can be interpreted as being detrimental
to the legal positions or to the rights of each Party with respect to the
questions submitted to the Tribunal, nor can affect or prejudice the decision
of the Arbitral Tribunal or the considerations and grounds on which those
decisions are based.
2. In
the event of any inconsistency between the Agreement on Principles and this
Arbitration Agreement implementing the procedural aspects of that Agreement on
Principles, this Arbitration Agreement shall control. Except with respect to
such inconsistency, the Agreement on Principles shall continue in force.
83.
Since there is indeed in this respect an inconsistency between the Agreement on
Principles and the Arbitration Agreement, under Article 15(2) of the
Arbitration Agreement the provisions of the latter prevail to the extent of the
inconsistency. The Tribunal must therefore decide the question of scope, as
well as the resulting questions of sovereignty, in the present first stage of
the proceedings.
84.
This decision on scope has to be made "on the basis of the respective
positions of the two Parties", and on this point the provisions of the two
agreements are identical. It is apparent, however, from the submissions of the
Parties in their written pleadings and in their oral presentations for the first
stage that the positions of the two Parties differ with respect to the scope of
the arbitration. Eritrea's position is that the scope includes all the islands
of the Zuqar-Hanish chain, the Haycocks and the Mohabbakahs, and also the
northern islands of Jabal al-Tayr and the Zubayr group. Yemen, however, though
claiming all the islands of the Zuqar-Hanish chain, including, in their view,
the Haycocks and the Mohabbakahs, does not concede that the northern islands
are in dispute in this arbitration.
85. The
contention of Yemen, as mentioned above, is that the respective positions of
the two Parties at the time of the Agreement on Principles (21 May 1996) were
different from what they became at the time of the subsequent Arbitration
Agreement (3 October 1996). According to Yemen, at the time of the Agreement on
Principles, Eritrea was apparently not seeking to claim the northern islands or
to bring them within the scope of the arbitration, although it may be noted
that there was already an existing dispute over the northern islands.(4) It seems clear, moreover, that Yemen, at the
time of the Agreement on Principles, was not claiming the Mohabbakahs.
86.
But, according to Yemen, the date of the Agreement on Principles is "the
critical date" for the determination by the Tribunal of the
"respective positions of the two Parties" on which the scope of the
Arbitration is to be decided, because it was the date of the definitive
agreement of the Parties to submit the matter to this Arbitration. From this
proposition Yemen concludes that the northern islands do not come within the
scope of the present arbitration.
87.
This somewhat technical "critical date" argument, fails, in the
opinion of the Tribunal, to take sufficient account of the crucial change
brought about in the Arbitration Agreement in the specification of the first
stage of the Arbitration as being that in which this question of scope was to
be determined by the Tribunal. Whereas, in the Agreement on Principles, the
decision on scope was to be the whole matter of the first stage, the later
Arbitration Agreement joined within that stage both the award on sovereignty
and the decision on scope. This now meant that the Tribunal was to decide the
issue of scope "on the basis of the respective positions of the two
Parties" only after having heard the entire substantive contentions of
both Parties on the question of sovereignty. This later provision must throw
doubt upon the proposition that the Parties nevertheless intended the earlier date
of the Agreement on Principles still to be the critical date for the
determination of scope.
88. In
addition, the later Arbitration Agreement did not, in its Article 2(2), qualify
in any way its use of the phrase "on the basis of the respective positions
of the two Parties." If not qualified, the ordinary meaning of that phrase
in its context, and in the light of the object and purpose of the Arbitration
Agreement, would seem to be that it is "the respective position of the two
Parties" as at the date of the Arbitration Agreement, and not at some
unspecified date, that should form the basis for the determination by the
Tribunal of the scope of the dispute under the Arbitration Agreement.
89.
Moreover, and by implication consistent with this analysis, Yemen, although
taking some care in various ways to reserve its position on scope, has in fact
provided a full argument in support of its claim to sovereignty over Jabal
al-Tayr and the Zubayr group, and in the July 1998 supplementary hearings on
petroleum agreements, considerably elaborated on that argument.
90. The
Tribunal therefore, on the question of the scope of the dispute, prefers the
view of Eritrea and accordingly makes an Award on sovereignty in respect of all
the islands and islets with respect to which the Parties have put forward
conflicting claims, which include Jabal al-Tayr and the Zubayr group, as well
as the Haycocks and the Mohabbakahs.
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Notes -
Chapter II
4. In a
letter dated 4 January 1996, Yemen formally protested an Eritrean oil
concession to the Andarko Company which, according to Yemen, constituted
"a blatant violation of Yemeni sovereignty over its territorial waters in
so far as it extends to the exclusive territorial waters of the Yemeni Jabal
al-Tayr and al-Zubayr islands, in addition to the violation of the rights of
the Republic of Yemen in the Exclusive Economic Zone."