CHAPTER IV - The Traditional Fishing Regime
87.
In paragraph 526 of its Award on Territorial Sovereignty and Scope of the
Dispute the Tribunal found:
In finding that the Parties each have sovereignty over
various of the Islands the Tribunal stresses to them that such sovereignty is
not inimical to, but rather entails, the perpetuation of the traditional
fishing regime in the region. This existing regime 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. In the exercise
of its sovereignty over these islands, Yemen shall ensure that the traditional
fishing regime of free access and enjoyment for the fishermen of both Eritrea
and Yemen shall be preserved for the benefit of the lives and livelihoods of
this poor and industrious order of men.
88.
Immediately after, in paragraph vi of its Dispositif, The Tribunal determined
that:
the sovereignty found to lie within Yemen entails the
perpetuation of the traditional fishing regime in the region, including free
access and enjoyment for the fishermen of both Eritrea and Yemen.
89.
Eritrea has taken the view that these findings entail the establishment of
joint resource zones, which the Tribunal should delimit in its Award in the
Second Stage. Eritrea, in its Prayer for Relief, also urged the Tribunal to
direct the Parties to negotiate so as to achieve certain results it regards as
required by paragraph 527(vi) of the Dispositif in the Award on Sovereignty,
and to take certain other powers in relation thereto. To fail to do so,
contended Eritrea, would be infra petita. Eritrea further contended
that the final paragraph of the letter of 9 November 1998 from the President of
the Tribunal to the counsel and co-agent for Eritrea left Eritrea full liberty
so to submit during this Stage of the Arbitration. Some of the elements
contained in Eritrea's Prayer for Relief were not pursued in oral argument;
there the main plea was that the Court specify with precision what was entailed
by its finding as to the traditional fishing regime and where that regime lay
within the Red Sea. However, the Prayer for Relief, unamended, was said by
Eritrea to represent its final submissions.
90.
Yemen took the view that it was clear from paragraph 526 of the Award on
Sovereignty that it was for it, Yemen, in the exercise of its sovereignty, to
ensure the preservation of the traditional fishing regime; that, while the 1994
and 1998 Agreements might prove to be useful vehicles for that exercise in
sovereignty, there was no question of Yemen's sovereignty having been made
conditional and thus no agreement with Eritrea was necessary for the
administrative measures that might relate to this regime; that the Tribunal had
not made any finding that there should be joint or common resource zones; that
the Tribunal's finding that Yemen's sovereignty entailed the perpetuation of
the traditional fishing regime was a finding in favour of the fishermen of
Eritrea and Yemen, not of the State of Eritrea; that Article 3(1) of the
Agreement on Principles and Article 2(3) of the Arbitration Agreement meant
that it would be ultra vires for the Tribunal to respond favourably to
Eritrea's Prayer for Relief; and that the President's letter of 9 November 1998
indeed showed that the Prayer for Relief was irregular. Further, Yemen
contended that there had traditionally been no significant Eritrean fishing in the
vicinity of the islands.
91. The
details of the positions taken by Eritrea and Yemen is recalled above at
paragraphs 48-60.
92. The
Tribunal recalls that it based this aspect of its Award on Sovereignty on a
respect for regional legal traditions. The abundant literature on the
historical realities which characterised the lives of the populations on both
the eastern and western coasts was noted in the award of the Arbitral Tribunal
in the First Stage of the Proceedings, paragraph 121, footnote 9 and paragraph
128, footnote 11. This well-established factual situation reflected deeply
rooted common legal traditions which prevailed during several centuries among
the populations of both coasts of the Red Sea, which were until the latter part
of the nineteenth century under the direct or indirect rule of the Ottoman
Empire. The basic Islamic concept by virtue of which all humans are
"stewards of God" on earth, with an inherent right to sustain their
nutritional needs through fishing from coast to coast with free access to fish
on either side and to trade the surplus, remained vivid in the collective mind
of Dankhalis and Yemenites alike.
93.
Although the immediate beneficiaries of this legal concept were and are the
fishermen themselves, it applies equally to States in their mutual relations.
As a leading scholar has observed: "Islam is not merely a religion but
also a political community (umma) endowed with a system of law
designed both to protect the collective interest of its subjects and to
regulate their relations with the outside world".(11)
94.
The sovereignty that the Tribunal has awarded to Yemen over Jabal al-Tayr, the
Zubayr group and the Zuqar-Hanish group is not of course a
"conditional" sovereignty, but a sovereignty nevertheless that
respects and embraces and is subject to the Islamic legal concepts of the
region. As it has been aptly put, "in today's world, it remains true that
the fundamental moralistic general principles of the Quran and the Sunna
may validly be invoked for the consolidation and support of positive
international law rules in their progressive development towards the goal of
achieving justice and promoting the human dignity of all mankind".(12)
95.
The Tribunal's Award on Sovereignty was not based on any assessment of volume,
absolute or relative, of Yemeni or Eritrean fishing in the region of the
islands. What was relevant was that fishermen from both of these nations had,
from time immemorial, used these islands for fishing and activities related
thereto. Further, the finding on the traditional fishing regime was made in the
context of the Award on Sovereignty precisely because classical western
territorial sovereignty would have been understood as allowing the power in the
sovereign state to exclude fishermen of a different nationality from its
waters. Title over Jabal al-Tayr and the Zubayr group and over the Zuqar-Hanish
group was found by the Tribunal to be indeterminate until recently. Moreover,
these islands lay at some distance from the mainland coasts of the Parties.
Their location meant that they were put to a special use by the fishermen as
way stations and as places of shelter, and not just, or perhaps even mainly, as
fishing grounds. These special factors constituted a local tradition entitled
to the respect and protection of the law.
96. It
is clear that the Arbitration Agreement does not authorise the Tribunal to
respond affirmatively to paragraphs 6 and 7 of Eritrea's Prayer for Relief.
Nor, indeed, would it have been able so to do even if the arbitration had been
conducted within the framework of a single stage or phase, as originally
envisaged by Article 3(1) of the Agreement on Principles.
97.
However, Eritrea is entitled to submit to the Tribunal that its finding as to
the traditional fishing regime has implications for the delimiting of maritime
boundaries in the Second Stage; and the Tribunal is at liberty to respond to
such submissions.
98.
Indeed, it is bound to do so, because it is not otherwise in a position to
respond to the submissions made by Yemen as well as by Eritrea in this Second
Stage. It cannot be the case that the division of the Arbitration into two
stages meant that the Parties may continue to debate whether the substantive
content of the Tribunal's findings on the traditional fishing regime has any
relevance to the task of delimitation, but that the Tribunal must remain
silent. Such formalism was never the objective of the agreement of both Parties
to divide the Arbitration into two Stages.
99. Of
course, in making its Award on Sovereignty the Tribunal did not
"prefigure" or anticipate the maritime delimitation that it is now
called upon to make in the Second Stage, after full pleadings by the Parties.
Beyond that the Tribunal is not to be artificially constrained in what it may
respond to by the procedural structures agreed for the Arbitration. The
two-stage mechanism is not to be read either as forbidding Parties to make the
arguments they wish, when they wish; nor as limiting their entitlement to seek
to protect what they perceive as their substantive rights.
100.
Article 15 of the Arbitration Agreement (the meaning of which is otherwise not
readily intelligible) lends support to this view. Paragraph 2 speaks of the
Arbitration Agreement as "implementing the procedural aspects" of the
Agreement on Principles. And Paragraph 1 provides that:
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.
101.
As the Tribunal has indicated in its Award on Sovereignty, the traditional
fishing regime around the Hanish and Zuqar Islands and the islands of Jabal
al-Tayr and the Zubayr group is one of free access and enjoyment for the
fishermen of both Eritrea and Yemen. It is to be preserved for their benefit.
This does not mean, however, that Eritrea may not act on behalf of its
nationals, whether through diplomatic contacts with Yemen or through
submissions to this Tribunal. There is no reason to import into the Red Sea the
western legal fiction - which is in any event losing its importance - whereby
all legal rights, even those in reality held by individuals, were deemed to be
those of the State. That legal fiction served the purpose of allowing
diplomatic representation (where the representing State so chose) in a world in
which individuals had no opportunities to advance their own rights. It was
never meant to be the case however that, were a right to be held by an
individual, neither the individual nor his State should have access to
international redress.
102. The
Tribunal accordingly now responds to the diverse submissions advanced in this
Stage by the Parties, both as to the substantive content of the traditional
fishing regime referred to in paragraphs 526 and 527(vi) of its Award on
Sovereignty and as to any implications for its task in this stage of the
Arbitration. The correct answer is indeed to be gleaned from the pages of that
Award itself. Attention may in particular be drawn to paragraphs 102, 126-128,
340, 353-357 and 526.
103.
The traditional fishing regime is not an entitlement in common to resources nor
is it a shared right in them. Rather, it entitles both Eritrean and Yemeni
fishermen to engage in artisanal fishing around the islands which, in its Award
on Sovereignty, the Tribunal attributed to Yemen. This is to be understood as
including diving, carried out by artisanal means, for shells and pearls.
Equally, these fishermen remain entitled freely to use these islands for those
purposes traditionally associated with such artisanal fishing - the use of the
islands for drying fish, for way stations, for the provision of temporary
shelter, and for the effecting of repairs.
104. In
paragraph 1 of the Prayer for Relief, Eritrea asks the Tribunal to determine
that "The Eritrean people's historic use of resources in the mid-sea
islands includes guano and mineral extraction . . .". In the
pleadings before the Tribunal Eritrea referred specifically in this context to
guano extraction which had been licensed by Italy. Guano extraction is not to
be assimilated to mineral extraction more generally. Further, as the Award on
Sovereignty made clear, Eritrea's rights today are not derived from a claimed
continuity from rights once held by Italy. The traditional fishing regime
covers those entitlements that all the fishermen have exercised continuously
through the ages. The Tribunal has received no evidence that the extraction of
guano, or mineral extraction more generally, forms part of the traditional
fishing regime that has existed and continues to exist today.
105.
The FAO Fisheries Infrastructure Development Project Report of 1995 was a
report on fishing in Eritrean waters. However, its findings on artisanal
fishing would be of general application in this region. The 1995 Report makes
clear that both the artisanal vessels and their gear are simple. The vessels
are usually canoes fitted with small outboard engines, slightly larger vessels
(9-12 m) fitted with 40-75 hp engines, or fishing sambuks with inboard
engines. Dugout canoes and small rafts (ramas) are also in use.(13)
Hand lines, gill nets and long lines are used. In its Report on Fishing in
Eritrean waters, the FAO study states that this artisanal fishing gear, which
varies according to the boat and the fish, is "simple and efficient".(14)
107. In
order that the entitlements be real and not merely theoretical, the traditional
regime has also recognised certain associated rights. There must be free access
to and from the islands concerned - including unimpeded passage through waters
in which, by virtue of its sovereignty over the islands, Yemen is entitled to
exclude all third Parties or subject their presence to licence, just as it may
do in respect of Eritrean industrial fishing. This free passage for artisanal
fishermen has traditionally existed not only between Eritrea and the islands,
but also between the islands and the Yemen coast. The entitlement to enter the
relevant ports, and to sell and market the fish there, is an integral element
of the traditional regime. The 1994 Memorandum of Understanding between the
State of Eritrea and the Republic of Yemen for Cooperation in the Areas of
Maritime Fishing, Trade, Investment, and Transportation usefully identifies the
centres of fish marketing on each coast. Eritrean artisanal fisherman fishing
around the islands awarded to Yemen have had free access to Maydi, Khoba,
Hodeidah, Khokha and Mocha on the Yemen coast, just as Yemeni artisanal
fishermen fishing around the islands have had an entitlement to unimpeded transit
to and access to Assab, Tio, Dahlak and Massawa on the Eritrean coast.
Nationals of the one country have an entitlement to sell on equal terms and
without any discrimination in the ports of the other. Within the fishing
markets themselves, the traditional non-discriminatory treatment - so far as
cleaning, storing and marketing is concerned - is to be continued. The
traditional recourse by artisanal fisherman to the acquil system to
resolve their disputes inter se is to be also maintained and preserved.
108.
Yemen and Eritrea are, of course, free to make mutually agreed regulations for
the protection of this traditional fishing regime. Insofar as environmental
considerations may in the future require regulation, any administrative
measures impacting upon these traditional rights shall be taken by Yemen only
with the agreement of Eritrea and, so far as access through Eritrean waters to
Eritrean ports is concerned, vice versa.
109.
The traditional fishing regime is not limited to the territorial waters of
specified islands; nor are its limits to be drawn by reference to claimed past
patterns of fishing. It is, as Yemen itself observes in its Answers to the
Tribunal's Questions, Annex 2, page 64, a "regime that has existed for the
benefit of the fishermen of both countries throughout the region". By its
very nature it is not qualified by the maritime zones specified under the
United Nations Convention on the Law of the Sea, the law chosen by the Parties
to be applicable to this task in this Second Stage of the Arbitration. The
traditional fishing regime operates throughout those waters beyond the
territorial waters of each of the Parties, and also in their territorial waters
and ports, to the extent and in the manner specified in paragraph 107 above.
110. Accordingly,
it does not depend, either for its existence or for its protection, upon the
drawing of an international boundary by this Tribunal. This much was indeed
acknowledged by Yemen in its Answers to the Tribunal's Questions, when it
observed that "the holdings of the Tribunal in the first Award with
respect to the traditional fishing regime constitute res judicata
without prejudice to the maritime boundary that the Tribunal decides on in the
second stage of the proceedings" (Annex 2, page 63). Yemen informed the
Tribunal that it was "fully committed to apply and implement the Award in
all its aspects, including with respect to the perpetuation of the traditional
fishing regime for the fishermen of both Eritrea and Yemen". Nor is the
drawing of the maritime boundary conditioned by the findings, in the Award on
Sovereignty, of such a regime.
111. As
the Tribunal has explained above, no further joint agreement is legally
necessary for the perpetuation of a regime based on mutual freedoms and an
absence of unilaterally imposed conditions. However, should Eritrea and Yemen
decide that the intended cooperation exemplified by the 1994 Memorandum of
Understanding and the 1998 Agreement can usefully underpin the traditional
regime, they may choose to use some of the possibilities within these
instruments. The subject matter of the 1994 instrument has a particular
pertinence. (Moreover, it is the understanding of the Tribunal that the Parties
did not jointly intend to deprive fishermen of their rights under this traditional
regime if they failed to submit a fishing licence to the other Party within
three months from the date of the signing of the Memorandum of Understanding.)
112.
The Tribunal has responded to the pleadings that both Parties have made, as
they were entitled to do, in this phase of the proceedings. Its answer
indicates how its Award on Sovereignty is to be understood in relation to the
matters that the Parties have now raised before it.
Notes
- Chapter IV
11. Khadduri, Encyclopaedia of International Law,
volume 6, page 227.
12. Encyclopaedia of International Law,
volume 7, page 229.