CHAPTER III - Petroleum Agreements and Median
Lines
75.
In the matter of the pertinence and probative force for this Stage of the proceedings
of petroleum contracts and concessions entered into by Yemen and by Ethiopia or
Eritrea, the Parties exhibited a reversal of roles.
76. In
the First Stage, Yemen laid great weight on oil contracts and concessions
concluded by it. It introduced into evidence a number of such oil agreements
and maps illustrating them, many of which were prepared by Petroconsultants
S.A. of Geneva. Since some of these arrangements embodied western boundaries to
the east of which lay some of the islands in dispute, Yemen argued that these
arrangements demonstrated that both Yemen and the contracting oil companies
were of the view that Yemen enjoyed sovereignty over those disputed islands. It
contended that, where a State enters into a concession covering a specified
area, it holds itself out as having sovereignty over that area; and that, where
a foreign oil company enters into that concession, and expends resources in
pursuance of it, it does so because it accepts and acts in reliance upon the
sovereignty of that State. Yemen emphasised that not only were some of its
petroleum contracts of a geographical extent that encompassed the disputed
islands; it was also significant, it claimed, that none of the oil contracts
and concessions concluded by Ethiopia or Eritrea did so. As the Award on
Sovereignty summarised: "Yemen contended that the pattern of Yemen's
offshore concessions, unprotested by Ethiopia and Eritrea, taken together with
the pattern of Ethiopian concessions, confirmed Yemen's sovereign claims to the
disputed Islands, acceptance of and investment on the basis of that sovereignty
by oil companies, and acquiescence by Ethiopia and Eritrea." (paragraph
390.)
77. In
the First Stage, Eritrea in contrast argued that conclusion by a State of an
oil contract or concession with a foreign oil company was not evidence of title
but, at most, a mere claim. Such arrangements lacked probative force unless
activities in pursuance of them took place. Nevertheless Eritrea countered
Yemen's argument by introducing evidence of a concession concluded by Ethiopia
which covered part or all of Greater and Lesser Hanish Islands. Neither Eritrea
nor Yemen attached importance to the fact that a number of the petroleum
arrangements concluded by Yemen and Ethiopia or Eritrea extended to a median
line between their respective coastlines.
78. In
its Award on Sovereignty, the Tribunal concluded:
437. The offshore petroleum contracts entered into by
Yemen, and by Ethiopia and Eritrea, fail to establish or significantly strengthen
the claims of either party to sovereignty over the disputed islands.
438. Those contracts however lend a measure of support
to a median line between the opposite coasts of Eritrea and Yemen, drawn
without regard to the islands, dividing the respective jurisdiction of the
Parties.
79.
In the Second Stage of these Proceedings, Eritrea placed great emphasis upon
paragraph 438, and other passages of the Award, that found that various
petroleum arrangements indicate limits drawn along a median line, and contended
that the Tribunal's Award provided support for the "historic median
line" which it now advanced as the maritime boundary line between Eritrea
and Yemen. Eritrea stressed that, in several petroleum contracts concluded by
Yemen, the contractual area extended from the mainland coast of Yemen in the
east to the median line of the Red Sea, drawn without regard to base points on
the disputed islands. It observed that a contract concluded by it, and another
concluded by Yemen, ran through Greater Hanish along a median line. It pointed
out that one of Yemen's concession contracts contains a median line, marked
"Ethiopia" to the west and "Yemen" to the east. It
maintained that maps prepared by Petroconsultants, introduced and relied upon
by Yemen in the First Stage, and showing concession boundaries running along a
median line between the coasts of Yemen and Eritrea, cannot now be discounted
by Yemen because it introduced them for another purpose. Eritrea acknowledged
that the contracts and conduct of Yemen and of Ethiopia and Eritrea are not
tantamount to mutual acceptance of a median maritime boundary or even of a modus
vivendi line. But it contended that they nevertheless provide a persuasive
basis for taking an "historic median line" to divide the waters of
the Red Sea, to be drawn without according the "mid-sea" disputed
islands influence on the course of that line.
80.
Yemen for its part contended that, while it introduced the Petroconsultants
maps as evidence of Yemen's sovereignty over the disputed islands, it did so
not to show maritime boundaries; that the Petroconsultants maps contain
"mistakes"; and that these and other maps introduced in the First
Stage contain disclaimers about lines affecting or prejudicing the contracting
government's sovereign rights. Yemen emphasised the Tribunal's holding that the
concessions were "issued with commercial considerations in mind and
without particular regard to the existence of the Islands". (Award on
Sovereignty, paragraph 412.)
81. It
should be noted that, in the course of making its holdings on sovereignty over
the disputed islands, the Tribunal held that the petroleum contracts do
"lend a measure of support to a median line between the opposite coasts of
Eritrea and Yemen, drawn without regard to the islands, dividing the respective
jurisdiction of the Parties".
82. At
this juncture, however, the Tribunal acts in the light of the dispositive
provisions of paragraph 527 of its Award. Which islands are subject to the
territorial sovereignty of Eritrea, and which are subject to the territorial
sovereignty of Yemen, has been determined. In delimiting the maritime
boundaries of the Parties, the Tribunal is required in this Second Stage of the
proceedings to take into account, inter alia, the opinion that it formed
on the question of territorial sovereignty.
83. As
is set out in other passages of this Award, the Tribunal has taken as its
starting point, as its fundamental point of departure, that, as between
opposite coasts, a median line obtains. The Award on Sovereignty's examination
of petroleum arrangements does show, as just indicated, repeated reference to a
median line between the coasts of Yemen and Eritrea. To that extent, Eritrea's
position in this Stage of the proceedings is sustained by those references. But
that is not the same as saying that the maritime boundary now to be drawn
should be drawn throughout its length entirely without regard to the islands
whose sovereignty has been determined; nor is it to say that that boundary
should track Eritrea's claimed "historic median line". The concession
lines were drawn without regard to uninhabited, volcanic islands when their
sovereignty was indeterminate. Those lines can hardly be taken as governing
once that sovereignty has been determined. While initial weight is to be given
to the mainland coasts and their island fringes, some weight is to be or may be
accorded to the islands, certainly in respect of their territorial waters. What
weight, and why and how, are questions addressed below.
84. In
respect of petroleum arrangements and a maritime boundary between the Parties
in the Red Sea, the Tribunal recalls the conclusion of the International Court
of Justice in its Judgment in the North Sea Continental Shelf cases,(7) that delimitation of States' areas of continental
shelf may lead to "an overlapping of the areas appertaining to them. The
Court considers that such a situation must be accepted as a given fact and
resolved either by an agreed, or failing that by an equal division of the
overlapping areas, or by agreements for joint exploitation, the latter solution
appearing particularly appropriate when it is a question of preserving the
unity of a deposit." Judge Jessup in his separate opinion in that case
referred to a seminal article by William T. Onorato(8)
and cited examples of such cooperation; and in the last thirty years there has
grown up a significant body of cooperative State practice in the exploitation
of resources that straddle maritime boundaries. The papers in a volume
published by The British Institute of International and Comparative Law
summarise and analyse this practice,(9) as does a
more recent study by Masahiro Miyoshi, The Joint Development of Offshore
Oil and Gas in Relation to the Maritime Boundary Delimitations,
International Boundaries Research Unit, 1999.(10)
85.
That practice has particular pertinence in the current case. The Red Sea is not
to be compared to the great oceans. Yemen and Eritrea face one another across a
relatively narrow compass. Their peoples have had a long and largely beneficent
history of intermingling, a history not limited to the free movement of
fishermen but embracing a wider trade, and a common rule as well as a common
religion. These relations long antedate the relatively modern,
European-derived, concepts of exclusionary sovereignty. While oil and gas in
commercial quantities have not to date been found beneath the waters of the Red
Sea that lie between Eritrea and Yemen, it is possible that either or both may
be.
86. In
paragraph 1 of its Prayer for Relief, Eritrea requests the Tribunal to
determine that "The Eritrean people's historic use of resources in the
mid-sea islands includes . . . mineral extraction". For reasons
explained in paragraph 104 of this Award, the Tribunal is not in a position to
accede to this request. However, it is of the view that, having regard to the
maritime boundary established by this Award, the Parties are bound to inform one
another and to consult one another on any oil and gas and other mineral
resources that may be discovered that straddle the single maritime boundary
between them or that lie in its immediate vicinity. Moreover, the historical
connections between the peoples concerned, and the friendly relations of the
Parties that have been restored since the Tribunal's rendering of its Award on
Sovereignty, together with the body of State practice in the exploitation of
resources that straddle maritime boundaries, import that Eritrea and Yemen
should give every consideration to the shared or joint or unitised exploitation
of any such resources.
Notes
- Chapter III
7. I.C.J. Reports 1969, p. 52.
8. Apportionment of an International Petroleum
Deposit, 17 ICLQ 85 (1958).
9. Edited by Hazel Fox, Joint Development of
Offshore Oil and Gas (1990) by R.R. Churchill, Kamal Hossein, Isa Huneidi,
Masahiro Miyoshi, Ian Townsend-Gault, Anastasia Strati, H. Burmester, Clive R.
Symmons, Thomas H. Walde, Brenda Barrett, P. Birnie and A.D. Read.
10. See also, I.F.I. Shihata and W.T. Onorato, Joint
Development of International Petroleum Resources in Undefined and Disputed
Areas, International Conference of the LAWASIA Energy Centre, Kuala
Lumpur, 1992.