CHAPTER II - The General Question of Fishing in
the Red Sea
47.
This chapter will first deal with the evidence and arguments advanced by the
Parties concerning the general question of fishing in the Red Sea. It will then
set forth the Tribunal's conclusions on these arguments and evidence.
The
Evidence and Arguments of the Parties
48.
Each Party made much of fishing, including both the past history and the
present situation, and as related not only to its own nationals but also the
practices of the nationals of the other Party. The evidence advanced by the
Parties and the arguments made by them can essentially be broken down into five
subjects. These are: (1) fishing in general; (2) the location of fishing areas;
(3) the economic dependency of the Parties on fishing; (4) consumption of fish
by the populations of the Parties; and (5) the effect of fishing practices on
the lines of delimitation proposed by the Parties.
49. The
arguments of each Party were advanced essentially in order to demonstrate that
the delimitation line proposed by that Party would not alter the existing
situation and historical practices, that it would not have a catastrophic
effect on local fishermen or on the local or national economy of the other
Party or a negative effect on the regional diet of the population of the other
Party and, conversely, that the delimitation line proposed by the other Party
would indeed alter the existing situation and historical practice, would have a
catastrophic or at least a severely adverse effect on the local fishermen or on
the first Party's regional economy, and would also have a negative effect on
the diet of the population of the first Party.
50.
These elements were introduced directly and indirectly by each side against the
general background of the "catastrophic" and "long usage"
tests originated in the Anglo-Norwegian Fisheries Case of 1951 - and
as brought forward in the provisions inter alia of Article 7,
paragraph 5 of the 1982 United Nations Convention on the Law of the Sea.
51.
They also found an echo in the "equitable solution" called for by
paragraph 1 of Articles 74 and 83 of the Convention, it being assumed that no
"solution" could be equitable which would be inconsistent with long
usage, which would present a clear and present danger of a catastrophic result
on the local economy of one of the Parties, or which would fail to take into
account the need to minimise detrimental effects on fishing communities, and
the economic dislocation, of States whose nationals have habitually fished in
the relevant area.
Fishing
in General
52.
The position taken by Eritrea was as follows. The historical record
demonstrated that the Eritrean fishing industry was substantial before the
civil war in Ethiopia and had been, second only to Egypt, the most important
regional fishing economy. Since the end of the civil war and independence,
serious efforts were underway to reestablish the Eritrean fishing economy. It
was, therefore, a mistake to consider that the Eritrean fisheries were - as
Yemen argued - to a large extent dependent on Eritrean freshwater fisheries; in
fact these have had no importance. On the other hand, the Yemen fishing
industry was substantially based on its Indian Ocean fisheries and did not rely
significantly on the Red Sea. Although Yemen's fishing industry in the Red Sea
is much less significant than Yemen has claimed, it is nonetheless well
established and in no event dependent for protection on the particular delimitation
line proposed by Yemen.
53.
Yemen argued that Yemeni nationals have long dominated fishing activities in
the Red Sea; the Yemen traditional fishing activities - conducted in small
boats, whether sambouks or houris - had been of much greater
significance in the past than those of Eritrea, whose fishing activities had
largely been concentrated on fishing close inshore along the Eritrean coastline
and in and among the Dahlaks. Moreover, Hodeidah in Yemen was the most active
market for fisheries production from Eritrean and Yemeni fishermen alike.
Economic
Dependency on Fishing
54.
The position of Eritrea was that considerable efforts had been made since the
close of the war to reorganise and build up the Eritrean fishing industry -
including efforts sponsored by the UNDP and FAO - and that the prospects for
significant future development of the Eritrean fisheries were both promising
and important. Although Eritrea did not claim present economic dependency on
fishing, it did make the point that the existing fisheries practices of its
nationals should not be restricted or curtailed by the delimitation to be
decided by the Tribunal. As to Yemen, Eritrea asserted not only that the
Yemen's Red Sea fisheries presence was far less important than Yemen had claimed,
but also that most fish landed in Hodeidah were brought there by Eritrean
fishermen.
55. On
the other hand, Yemen argued that its fishermen have always depended on the Red
Sea fisheries as their fishing grounds and that this fishing activity had long constituted
an important part of Yemen's overall national economy and been a dominant part
of the regional economy of the Tihama region along the Red Sea coast. Yemen
claimed that Eritrea had no basis for arguing that it possessed any substantial
dependency on fishing, fisheries, fish, or fish consumption, and that most of
Eritrea's concerns as manifested by documentary evidence submitted to the
Tribunal in both Stages of the Arbitration had concerned proposals and projects
for the development of future fishing activity and fisheries resources of
Eritrea that did not now exist or were not now utilised.
Location
of Fishing Areas
56.
The arguments of Eritrea were to the following effect: at present, fishing in
the Red Sea was by and large dominated by Eritrean artisanal fishermen who
caught their fish around the Dahlaks, along the Eritrean coast, around the
Mohabbakahs, the Haycocks, and South West Rocks, and in the waters around the
Zuqar-Hanish group of "mid-sea islands". (As noted above, Eritrea
denied that any part of its fish catch depended on inland Eritrean fisheries
such as in lakes and reservoirs.) As to Yemen, Eritrea claimed that Yemeni
fishermen had hardly, if at all, relied on the deep-water fishing grounds to
the west of the mid-sea islands and around the Mohabbakahs, the Haycocks, and
South West Rocks; there was little evidence of any Yemeni nationals' activity
west of the Zuqar-Hanish group; and Yemen had failed to prove that a single
gram of fish consumed in Yemen was taken from those waters.
57. For
its part, Yemen argued that its artisanal and traditional fishermen had long
fished in the waters around Jabal al-Tayr and the Zubayr group, in the waters
around the Zuqar-Hanish group, and in the deep waters west of Greater Hanish
and around the Mohabbakahs, the Haycocks, and South West Rocks. Supporting
these assertions was evidence produced in the form of witness statements in the
First Stage of the Arbitration in which individual Yemeni fishermen indicated
that they had fished in the waters in question for a long time. As to the other
Party, Yemen again asserted that Eritrea's fishing activities were confined to
waters of the Dahlak archipelago and the inshore waters along the Eritrean
coast and did not to any substantial extent impinge on waters surrounding the
islands at issue in the First Stage of the Arbitration - including the deep
waters west of Greater Hanish and around the Mohabbakahs, the Haycocks, and
South West Rocks.
Consumption
of Fish by the Population
58.
Eritrea argued that the Eritrean coastal population consumed far more fish than
Yemen claimed and that, in addition, efforts were taking place to increase the
popularity and availability of fresh fish for human consumption by its general
population. It further asserted that the Yemeni population's dependence on
fresh fish from the Red Sea as a food source had been greatly exaggerated by
Yemen's pleadings, and that the Yemeni population of the Tihama - and a
fortiori the population of Yemen as a whole - did not rely to any
significant extent on fresh fish as a food. For its part, Yemen maintained that
its population, particularly in the coastal areas such as the Tihama, consumed
substantial quantities of fish and that - by contrast - Eritrean fish
consumption was negligible.
Effect
on Lines of Delimitation Proposed by the Parties
59.
The Eritrean position was that the Tribunal's indication of a line of
delimitation such as the "historic median line" suggested by Eritrea
would respect the historic practice of the Parties, would not displace or
adversely affect Yemen's fishing activity, and would be an equitable result for
both Parties. In Eritrea's view, however, the Yemen proposed "median
line" would deprive Eritrean fishermen of valuable fishery areas east of
the mid-sea islands, and would award to Yemen areas to the west of the mid-sea
islands and around the Mohabbakahs, the Haycocks, and South West Rocks - where
Eritrean fishermen had long been plying their trade and where Yemeni nationals
had never engaged in substantial fisheries activity. To that extent Eritrea
argued that the proposed Yemen delimitation line would be inequitable and would
deprive Eritrean fishermen of an important resource.
60. On
the other side, Yemen maintained that the median line proposed by it would
correctly reflect historical practices, would not give Yemen anything it did
not have before, would respect existing rights, would not "penalise"
existing or past Eritrean fishing activity, and would constitute an equitable
result. As far as the Eritrean proposed "historic median line" was
concerned, it would encroach on Yemen's traditional fishing grounds without
justification, would deprive Yemeni fishermen of deep water fisheries west of
the mid-sea islands, and would give a corresponding windfall to Eritrea.
* * *
The
Tribunal's Conclusions on the Evidence
61.
The purposes of the arguments and evidence of the Parties were several, but
were essentially directed to establishing that the delimitation advanced by
each Party would respect existing historical practices, would not have a
catastrophic effect on local fishermen or population, would not have a
generally negative effect on the economy (or future plans) of the other Party,
and would not have a deleterious effect on the diet and health of the population
of the other Party. By the same token, each Party asserted or implied that the
line of delimitation advanced by the other would have precisely the converse
effect. The evidence advanced by the Parties has to a very large extent been
contradictory and confusing.
On the
basis of the arguments and evidence advanced before it the Tribunal reaches the
following conclusions.
As
to Fishing in General
62.
Fishing in general is an important activity for both sides of the Red Sea
coast. This was recognised in the Award on Sovereignty of the Tribunal. It is
not necessary and probably misleading to seek to determine the precise extent
of its importance at any particular time, but the plain fact appears to be that
- as the Tribunal stated in paragraph 526 of its Award on Sovereignty -
"the traditional fishing regime in the region . . . has operated, as the
evidence presented to the Tribunal amply testifies, around the Hanish and Zuqar
Islands and the islands of Jabal al-Tayr and the Zubayr group".
63.
Moreover, the whole point of the Tribunal's holding in paragraph vi of its
Dispositif in the Award on Sovereignty - that this traditional fishing regime
shall be perpetuated so as to include "free access and enjoyment for the
fishermen of both Eritrea and Yemen" - is that such traditional fishing
activity has already been adjudged by the Tribunal to be important to each
Party and to their nationals on both sides of the Red Sea. It thus suffices to
say that fishing, fishermen, and fisheries are, and remain, of importance to
each Party in the present case. Precisely because of this significance of
paragraph 526 of the Award on Sovereignty and paragraph vi of its Dispositif,
the fishing practices of the Parties from time to time are not germane to the
task of arriving at a line of delimitation.
As
to Economic Dependency on Fishing
64.
It is not possible or necessary for the Tribunal to reach a conclusion that
either Eritrea or Yemen is economically dependent on fishing to such an extent
as to suggest any particular line of delimitation. The evidence before the
Tribunal suggests that fishing activity and income appear to form an important
part of Yemen's economic activity - particularly of the Tihama region - and
that revitalisation and development of the Eritrean fishing industry is a
priority objective of the Government of Eritrea and has received significant
attention since Eritrean independence.
As
to Location of Fishing Areas
65.
The evidence advanced in both Stages of the Arbitration included evidence that
many fishermen from Eritrea tended largely to fish in and around the Dahlak
archipelago and on inshore waters along the Eritrean coastline, but it also
appears that some Eritrean fishermen used the waters in and around the Hanish
and Zuqar Islands as well as the deep waters to the west of the mid-sea islands
and around the Mohabbakahs, the Haycocks, and South West Rocks. This conclusion
was adumbrated by the Tribunal's concern for maintenance of the traditional
fishing regime "in the region" as a whole, "including free access
and enjoyment for the fishermen of both Eritrea and Yemen" (Award on
Sovereignty, Dispositif, paragraph 527, subparagraph vi).
66.
There is abundant historical data indicating that fishermen from both the
eastern and western coasts of the Red Sea freely undertook activities,
including fishing and selling their catch on the local markets, regardless of
their national political affiliation or their place of habitual domicile.(5)
67.
This information concerning the social and economic conditions affecting the
lives of the people on both sides of the Red Sea also reflects deeply-rooted
and common social and legal traditions that had prevailed for centuries among
these populations, each of which was under the direct or indirect rule of the
Ottoman Empire until the latter part of the XIXth Century.
68. The
evidence before the Tribunal further appears to establish that over the years
Yemeni fishermen have operated as far north as the Dahlak archipelago and Jabal
al-Tayr and the Zubayr group, and as far west as the Mohabbakahs, the Haycocks,
and South West Rocks. Again, this conclusion is implicit in the Tribunal's
concern for maintenance of the traditional fishing regime "in the region"
as a whole.
69. On
a subject not unrelated to fishing areas, it should be noted that the evidence
is quite clear that Eritrean fishermen as well as Yemeni also appear to have
enjoyed free and open access to the major fish market at Hodeidah on the Yemen
side of the Red Sea without impediment by reason of their nationality. (This
element was again taken into account by the Tribunal in its Award on
Sovereignty, Dispositif, paragraph 527, subparagraph vi.)
As
to Consumption of Fish by the Population
70.
The evidence concerning fish consumption advanced by each Party was presumably
aimed at establishing that the Tribunal's adoption of the line of delimitation
proposed by the other Party would constitute a serious dietary or health threat
to the population of the first Party. However, the evidence on this matter is
conflicting and uncertain. It is difficult if not impossible to draw any
generalised conclusions from the welter of alleged facts advanced by the
Parties in this connection.
71. The
Tribunal can readily conclude, without having to weigh intangible and elusive
points of proof or without having to indulge in nice calculations of
nutritional theory, that fish as a present and future potential resource is
important for the general and local populations of each Party on each side of
the Red Sea. The Tribunal can also conclude, as a matter of common sense and
judicial notice, that interest in and development of fish as a food source is
an important and meritorious objective. Based on these two conclusions,
however, the Tribunal can find no significant reason on these grounds for
accepting - or rejecting - the arguments of either Party as to the line of
delimitation proposed by itself or by the other Party.
Concerning
the Effect on Lines of Delimitation Proposed by the Parties
72.
Based on the foregoing, the Tribunal finds no significant reason on any other
grounds concerning fishing - whether related to the historical practice of
fishing in general, to matters of asserted economic dependency on fishing, to
the location of fishing grounds, or to the patterns of fish consumption by the
populations - for accepting, or rejecting, the arguments of either Party on the
line of delimitation proposed by itself or by the other Party. Neither Party
has succeeded in demonstrating that the line of delimitation proposed by the
other would produce a catastrophic or inequitable effect on the fishing
activity of its nationals or detrimental effects on fishing communities and
economic dislocation of its nationals.(6)
73.
For these reasons, it is not possible for the Tribunal to accept or reject the
line of delimitation proposed by either Party on fisheries grounds. Nor can the
Tribunal find any relevant effect on the legal reasons supporting its own
selection of a delimitation line arising from its consideration of the general
past fishing practice of either Party or the potential deprivation of fishing
areas or access to fishing resources, or arising from nutritional or other
grounds.
* * *
74. For the above reasons, the evidence and arguments advanced by the Parties
in the matter of fishing and fisheries could have no significant effect on the
Tribunal's determination of the delimitation that would be appropriate under
international law in order to produce an equitable solution between the Parties.
Notes
- Chapter II
5. See footnotes 9 and 11 to paragraphs 121 and 128
respectively of the Award on Sovereignty.
6. Cf. Article 70, paragraph 5 of the United
Nations Convention on the Law of the Sea: "Developed geographically
disadvantaged States shall, under the provisions of this article, be entitled
to participate in the exploitation of living resources only in the exclusive
economic zones of developed coastal States of the same sub-region or region
having regard to the extent to which the coastal State, in giving access to
other States to the living resources of its exclusive economic zone, has taken
into account the need to minimize detrimental effects on fishing communities
and economic dislocation in States whose nationals have habitually fished in
the zone."