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".
28. 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 contradistinction to 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 was 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.
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.