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The 1999 Eritrea–Yemen Maritime Delimitation Award And The Development of International Law

Published online by Cambridge University Press:  17 January 2008

Nuno Sérgio Marques Antunes
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Abstract

The Award on Maritime Delimitation concerning the second stage of the Eritrea/Yemen case (hereinafter “Award” or “Second Award”) was delivered on 17 December 1999, pursuant to the Arbitration Agreement signed in October 1996 and following the Award on Territorial Sovereignty rendered on 9 October 1998 (hereinafter “First Award”). The two-stage settlement devised in Article 2 of the arbitral compromis bears a perceptive logic—territorial sovereignty issues precede maritime delimitation—the advantages of which makes it likely to be adopted in future similar dispute settlements. Importantly, in casu, the objective of re-establishing a peaceful relationship between the two peoples and contributing to the maintenance of international peace and security in a sensitive region of the world seems to have been attained.1

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Articles
Information
International & Comparative Law Quarterly , Volume 50 , Issue 2 , April 2001 , pp. 299 - 344
Copyright
Copyright © British Institute of International and Comparative Law 2001

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References

1. See the Preamble and Article 2 of the Arbitration Agreement. The materials for this case (including the two Awards and the Arbitration Agreement) are available on the website of the Permanent Court of Arbitration (http://www.pca-cpa.org). On this case, see Dobelle, Jean-François, “Le Compromis d'Arbitrage Signé par l'Erythrée et le Yemen à Paris le 3 Octobre 1996”, (1996) 42 A.F.D.I. 477Google Scholar; Antunes, N.S.M., “The Eritrea-Yemen Arbitration: First Stage—The Law of Title to Territory Re-Averred”, (1999) 48 I.C.L.Q 362CrossRefGoogle Scholar; Distefano, Giovanni, “La Sentence Arbitrale du 9 Octobre 1998 dans l'Affaire du Différend Insulaire entre le Yemen et l'Erithrée”, (1999) 103 R.G.D.I.P. 851Google Scholar; Kwiatkowska, Barbara, “The Eritrea/Yemen Arbitration: Landmark Progress in the Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation”, in International Boundary Research Unit, (2000) 8(1) Boundary and Security Bulletin 66.Google Scholar

2. Map included in Antunes, op. cit. supra n.1, at p.386.

3. Arbitration Agreement, Art.2(3).

4. Second Award, Chapter IV, paras 87–112.

5. First Award, para.527(vi); see also paras 525–526.

6. The solutions proposed by Eritrea for the delimitation issue were rather complex, incorporating a combination of “boundary-lines” and “joint resources boxes”. Second Award, paras 27–28, 89, 122.

7. Eritrea's Prayer for Relief, para.6, Chapter I in fine.

8. Second Award, paras 37, 90.

9. Second Award, para.95.

10. See this author's comments elsewhere as to the composition of the Tribunal; Antunes, op. cit. supra n.1, at p.385, n.100.

11. , Ahmed El-Kosheri, “History of the Law of the Nations Regional Developments: Islam”, in Bernhardt, Rudolf (Ed.), Encyclopedia of Public International Law, Volume 2 (1995), North-Holland, pp.809–818Google Scholar, at p.816.

12. Second Award, paras 94–95, emphasis added.

13. Despite this approach, the Tribunal stressed that Eritrea and Yemen were free to agree mutually on regulations for the protection of the traditional fishing regime (Second Award, paras 103, 111).

14. “Artisanal fishing” was deemed to be a concept flexible enough to allow technical improvements concerning navigation and fishing gear, and is to be viewed in contrast to “large-scale commercial and industrial fishing”.

15. Guano extraction, and any other mineral extraction for that matter, was viewed as not being included in such entitlements (as had been suggested by Eritrea; Prayer for Relief, Second Awward, Chapter I, in fine).

16. Second Award, paras 103–108.

17. Second Award, para.109.

18. Second Award, para.37.

19. UNCLOS, Art.56(1)(a).

20. Second Award, paras 656–69, 108. See UNCLOS, Art.56(1)(b)(iii), which establishes the jurisdiction of States in the EEZ as regards “the protection and the preservation of the marine environment”.

21. Distefano, op. cit. supra n.1, at pp.883–886.

22. First Award, paras 337–340; Second Award, para.107 in fine. Importantly, this exercise of “private justice” reinforces the idea of existence of restrictions to State sovereignty motivated by the need to accommodate the traditional fishing regime.

23. Second Award, paras 109–110.

24. Second Award, para.37.

25. Headquarters Agreement Advisory Opinion, 26 April 1988, I.C.J. Rep. 1988, 4, at p.34.

26. Charter of the United Nations, Art.13(1)(a).

27. Since the 19th century, a group of Latin American States has attempted, and to some extent has succeeded, to shape the contents of international law by reference to their socio-political realities. See Dissenting Opinion of Judge Alvarez in the Asylum case (Colombia/Peru), I.C.J. Rep. 1950, 266, at pp.293–294.

28. Shaw, Malcom N., International Law (1997), Cambridge, p.37.Google Scholar

29. There are three main currents of opinion in the Islamic world. The traditionalists maintain, although sometimes in a restated form, that such separation should be kept. The modernists have insisted on the separation between State and religion. And the fundamentalists have proposed the reintroduction of pure Islamic values and system.

30. The Tribunal made explicit reference to the fishing patterns of Yemeni fishermen extending for example to the Dahlak archipelago, to the Mohabbakahs, the Haycocks and the South West Rocks (Second Award, para.68).

31. A question of a procedural nature regards the mandate given to the Tribunal under the arbitral compromis, which requested “an award on territorial sovereignty”, on the basis of “principles, rules and practices of international law” and, “in particular, of historic title” (Arbitration Agreement, Art.2(2).). Elsewhere, one argued that, because the traditional fishing regime emerged as a restriction to sovereignty, the decision could not be seen as rendered in excés de pouvoir (Antunes, op. cit. supra n.1, at pp.383–384.). But in view of what the Tribunal asserted in this Second Award, perhaps the answer to this question becomes more delicate. By conceptualising the traditional fishing regime as not conditioning sovereignty, as being a regime in fact not related to sovereignty, the Tribunal may have reignited this debate. For it had only been empowered to decide the dispute on sovereignty, on the basis of international law.

32. Decision of the Permanent Court of Arbitration in the matter of the Maritime Boundary between Norway and Sweden, Award of 23 Oct. 1909, (1910) 4 A.J.I.L. 226Google Scholar, at p.233, emphasis added. In this case, the two States agreed that tracing the boundary across important bars or fishing banks would be highly unsuitable, due to the fact that fishing activities were a primary concern in the area; and they asked the Tribunal to take this fact into account when rendering the decision.

33. The Tribunal made explicit reference to “a sort of ‘servitude internationale’ falling short of territorial sovereignty” (First Award, para.126).

34. Para.2.2.b) supra.

35. Second Award, paras 109–110.

36. Charney, Jonathan I. and Alexander, Lewis M. (Eds.), International Maritime Boundaries (1993), Martinus Nijhoff, p.929.Google Scholar

37. Ibid., at pp.946–947, Arts.10(3) and 12 of the Treaty, emphasis added.

38. Charney and Alexander (Eds.), op. cit. supra n.36, at pp.1238–1241.

39. Article 11(2), in Charney and Alexander (Eds.), op. cit. supra n.36, at p.946. The limits of the “Protected Zone” are delimited in Annex 9, Ibid., pp.974–975. Second Award, para.109. It is worth noting that Eritrea had argued for “joint zones” delimiting the area of the fishing regime, which bears a certain similitude with the idea of “Protected Zone” followed in this example of State practice.

40. Breaches of the MOU concerning the activities of traditional fishermen led to further arrangements between Australia and Indonesia, in 1989, by which practical guidelines for Indonesian traditional fishermen were issued, in an attempt to attain an effective implementation of the fishing provisions.

41. Victor Prescott, in Charney and Alexander (Eds.), op. cit. supra n.36, at pp.1233–1234. Second Award, para.106.

42. Bernard Oxman, “Political, Strategic and Historical Considerations”, in Charney and Alexander (eds.), op. cit. supra n.36, at pp.38–39. See also Burmester, H., “The Torres Strait Treaty: Ocean Boundary Delimitation by Agreement”, (1982) 76 A.J.I.L. 321Google Scholar, at pp.329–332; Schug, Donald M., “International Maritime Boundaries and Indigenous People”, (1996) 20 Marine Policy 209.CrossRefGoogle Scholar

43. Nothing in this text should be read as recognising any of the claims advanced in several parts of the world by groups of individuals, as indigenous peoples, vis-à-vis the States whose territory they inhabit. All the considerations made below should be seen in the light of this caveat. On the rights of indigenous peoples,Anaya, S. James, Indigenous Peoples in International Law (1996), Oxford, (in particular pp.39–45, 104–107)Google Scholar;, Paul Havemann (Ed.), Indigenous Peoples” Rights in Australia, Canada and New Zealand (1999), OxfordGoogle Scholar;Barsh, R. L., “Indigenous Peoples in the 1990s: From Object to Subject of International Law?, (1994) 7 Harvard Human Rights Journal 33.Google Scholar

44. Western Sahara Advisory Opinion, 16 Oct. 1975, I.C.J. Rep. 1975, 4.

45. The conclusion of the Court as to the existence of “legal ties of allegiance” between the Sultan of Morocco and the nomad tribes in Western Sahara, and the “rights relating to the land” which also existed between the Mauritanian entity and the territory of Western Sahara, illustrates this point. See I.C.J. Rep.1975, 4, at pp.40–64, 68.Google Scholar

46. UNCLOS, Arts.2(1), 49, 51.

47. Anaya, op. cit. supra n.43, at p.3.

48. Art.2(3) of the Arbitration Agreement; Second Award, para.5.

49. Any reference in this text to the term “miles” should be understood as referring to the International Nautical Mile, which is equivalent to 1852 metres. This is the unit of length that has been used in the Law of the Sea, as Stated in the Official Records, Report of the International Law Commission to the General Assembly—Eighth Session, 1956, para.32, at p.4. If any symbol is to be used to refer to “nautical miles”, it should be “M”, which is the symbol adopted by the Système International d'Unités (International System of Units).

50. United Nations, The Law of the Sea—National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone (1995), pp.419–422.Google Scholar

51. Ibid., pp.122–123.

52. Second Award, Chapter V, paras 113–168. See the map attached to this article.

53. For the “Submissions of Yemen” and the “Eritrea's Prayer for Relief”, Second Award, Chapter I, in fine.

54. For the Yemeni claim, Second Award, paras 12–21. The reason why Yemen used the high-water line along the Eritrean coastline to calculate the equidistance line, instead of using the low-water line, seems to be related to the fact that the Eritrean domestic legislation makes reference to the former (Second Award, para.134).

55. The eastern shipping channel runs eastwards of Zuqar island, and the western channel runs west of the Zuqar-Hanish group of islands, between the Haycock islands and South West Rocks.

56. Second Award, paras 75–82, 132.

57. For the Eritrean claim, Second Award, paras 22–30, and Eritrea's maps 4 and 7. As to the distinct effect of islands on the “historic median line”, Eritrea argued that a different treatment had to be awarded to its “historically owned islands”, as opposed to the mid-sea islands over which Yemen had only “recently acquired” sovereignty. Insofar as the approach followed by Eritrea referred to “islands historically owned by either State prior to the decade preceding commencement of this arbitration in accordance with Article 121” of UNCLOS, such view seemed to amount to an effect similar to that of a critical date. Considering, above all, 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 rejected this approach. According to it, sovereignty over the mid-sea islands could not be seen as having been constituted by the Award, which had simply declared it. And the use of joint resources zones could not be accepted because that would amount to implying that its sovereignty over the said islands was somehow limited (Second Award, paras 31–38).

58. The Tribunal observed that the term “boundary”, understood as an international maritime boundary between two States, was to be distinguished from the term “limit”, in the sense of outer limit of a maritime area, although the two might coincide in some places.

59. Whether the recourse in the compromis to the expression “pertinent factors”, instead of a reference to “equitable”, “special” or “relevant” circumstances, had a specific intention is hard to say. For instance, it might be argued that the notion of “pertinent factor” was intended to encompass exclusively factors that bear an objective legal relevance for the delimitation.

60. The low-water line was deemed by the Tribunal to be the baseline to consider in computing the equidistance line, as established in Art.5 of UNCLOS. For that effect, account would be taken of the line depicted in the British Admiralty Charts (using the LAT—Lowest Astronomical Tide as the chart datum), which were the charts officially by both States, and which had been relied upon by them during the proceedings (Second Award, paras 133–135).

61. Second Award, paras 129–135.

62. Second Award, para. 138.

63. Second Award, paras 114–120.

64. Second Award, paras 138–146.

65. Second Award, paras 147–153.

66. Second Award, paras 124–125, 154–159.

67. Second Award, paras 160–162. This approach seems to explain why, previously, the Tribunal stressed the distinction between the terms “boundary” and “limit”.

68. Yemen assumed that it was “integral to the Eritrean coast” and that “the controlling base points would therefore be on the low-water line of the outer coastal islands”.

69. Second Award, paras 127–128, 163.

70. Second Award, paras 44–46, 136, 164. On 12 June 2000, Yemen and Saudi Arabia signed the Treaty on their land and maritime boundaries— (2000) 8(2) IBRU Boundary and Security Bulletin 63Google Scholar. The end point of the maritime boundary described in Annex 3, lies some 34 miles northwards of the end point of the boundary determined in this Award.

71. Leonard Legault and Blair Hankey, “Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimitation”, in Charney and Alexander (Eds.), op. cit. supra n.36, p.203, at p.206.

72. , Prosper Weil, The Law of Maritime Delimitation—Reflections (1989), Grotius, p.285.Google Scholar

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74. Akehurst, Michael, “Equity and General Principles of Law”, (1976) 47 B.Y.I.L. 801, at p.809.Google Scholar

75. Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment of 19 Dec. 1978, I.C.J. Rep. 1978, 4, at p.36, para.84.

76. Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment of 3 June 1985, I.C.J. Rep. 1985, 13, at p.30, para.27.

77. Case Concerning the Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, I.C.J. Rep. 1993, 38, at p.47, paras 18–19.

78. The States involved may decide to constitute a joint resource zone in the area of overlapping of entitlements, in which case delimitation stricto sensu will not be required.

79. This becomes patent in the expression “overlapping territorial seas” (Second Award, paras 128, 154).

80. Second Award, paras 83, 119, 124–128, 154–163.

81. Charney and Alexander (eds.), op. cit. supra n.36, at pp.1611–1625, 1627–1637.

82. Ibid., pp.1549–1555.

83. Dubai-Sharjah Border Arbitration, Award of 19 Oct. 1981, (1993) 91 I.L.R. 543, at p.674.Google Scholar

84. Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Award of 30 June 1977, 18 R.I.A.A. 3, at pp.89–90, para.187.Google Scholar

85. Charney, Jonathan I., “Rocks that Cannot Sustain Human Habitation”, (1999) 93 A.J.I.L. 863Google Scholar; Elferink, A. G. Oude, “Is it either Necessary or Possible to Clarify the Provision on Rocks of Article 121(3) of the Law of the Sea Convention?”, (1999) 92 The Hydrographic Journal 9Google Scholar; Karagiannis, Syméon, “Les Rochers qui ne se Prêtent pas à I'Habitation Humaine ou à une Vie Économic Propre et le Droit de la Mer”, (1996) 29 Revue Belge de Droit International 559Google Scholar; Kolb, Robert, “L'Interprétation de l'Article 121, Paragraphe 3, de la Convention de Montego Bay sur le Droit de la Mer […]”, (1994) XL Annuaire Français de Droit International 876CrossRefGoogle Scholar; Kwiatkowska, Barbara and Soons, Alfred H. A., “Entitlement to Maritime Areas of Rocks which Cannot Sustain Human Habitation and Economic Life of Their Own”, (1990) XXI Netherlands Yearbook of International Law 131Google Scholar; Van Dyke, J.M. and Brooks, R.A., “Uninhabited Rocks: Their Impact on the Ownership of the Oceans' Resources” (1983) 12 O.D.I.L. 265.Google Scholar

86. Oude Elferink, op. cit. supra n.85, at p.12.

87. Weil, op. cit. supra n.72, at pp.8–9.

88. Merrills, J. G., International Dispute Settlement (1998), Cambridge, at p.295.Google Scholar

89. Second Award, para.147.

90. Second Award, paras 119, 125, 155, 160, 162.

91. What has become of the contiguous zone, to which no reference is made in the Award, and to which under Article 121(3) even rocks seem to be entitled, is a difficult question. One should note that under the terms of Articles 33(1) and 303(2) the idea of overlapping contiguous zone jurisdictions is hardly conceivable.

92. Attention must be drawn, first, to the way in which the Tribunal affirmed that Articles 74 and 83 had been “designed to decide as little as possible”, which meant implicitly that it considered that its discretion was rather large. And secondly, one must underline that the Tribunal asserted the “broad” nature of the notion of “pertinent factor”, which included in its view “any […] factors that might affect the equities of the particular situation”, and which again put the emphasis on its sphere of discretion. See Second Award, paras 116, 130.

93. Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment of 12 Oct. 1984, I.C.J. Rep. 1984, 246, at p.327, paras 194–195.

94. I.C.J. Rep. 1984, 246, at pp.362–377, paras 5–26.

95. Peters, Paul and Tanja, Gerard J., Lateral Delimitation of Continental Shelf and Exclusive Economic Zone (A Report of the Netherlands Branch of the International Law Association, prepared for the ILA International Committee on the EEZ), 1984.Google Scholar

96. I.C.J. Rep. 1993, 38, at pp.56–81, paras 41–93.

97. I.C.J. Rep. 1993, 38, at p.201.

98. Separate Opinion, I.C.J. Rep. 1993, 38, at pp.109–110, paras 70–74.

99. Second Award, para.132.

100. Second Award, para.116.

101. Although one is quite aware of the fact that the Court never referred to a single boundary in the Jan Mayen case, one is rather convinced that what the Court did, de facto, was to delimit a single boundary.

102. Second Award, para.130.

103. An important distinction between rights over the continental shelf and rights over an EEZ is expressed by Article 77(3) of UNCLOS. The existence of the latter, if for nothing else because it entails the assumption of duties, presupposes an express declaration.

104. International Court of Justice (ICJ), Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Public Sitting of 9 March 1998, Verbatim Record CR/98/05, seventh preliminary objection; document available on the website of the ICJ (http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm).

105. Nordquist, Myron H. (ed.), United Nations Convention on the Law of the Sea 1982—A Commentary, Volume II (1993), Martinus Nijhoff, at p.510, emphasis added.Google Scholar

106. Second Award, para.131.

107. Report of the Committee of Experts, Yearbook of the International Law Commission, 1953(II), p.79 (text in French).Google Scholar

108. Although one has reasoned on the basis of plane geometry, an analogous reasoning, using ellipsoidal geometry, could be advanced.

109. Here, because no references were made to Article 121(3), it is assumed that the northern islands were not considered as being “rocks”.

110. Supra n.75, at pp.112–117, paras 241–251.

111. Supra n.74, at pp.670–677.

112. McDougal, Myres S. and Burke, William T., The Public Order of the Oceans (1987), New Haven, p.725.Google Scholar

113. Delimitation of the Maritime Areas between Canada and France (St. Pierre and Miquelon), Award of 10 June 1992, (1992) 31 I.L.M. 1145Google Scholar, Dissenting Opinion, at p.1209, para.30.

114. Second Award, paras 136, 164.

115. David Colson, “The Legal Regime of Maritime Boundary Agreements”, in Charney and Alexander (eds.), op. cit. supra n.36, p.41, at pp.61–63.

116. ICJ, Judgment of 11 June 1998, para.115, website of the ICJ, supra n.104.

117. North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), Judgment of 20 Feb. 1969, I.C.J. Rep. 1969, 4, at p.55, para.101.(D)(3).

118. Second Award, paras 39–43; 165–168.

119. International Hydrographic Organisation, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea—1982 (1993), Special Publication No.51, I.H.B., p.111.Google Scholar

120. Weil, op. cit. supra n.72, at pp.75–81.

121. Supra n.113, at pp.1204–1207, paras 20–25, emphasis added.

122. The parties advanced extensive arguments relating to the importance of fishing resources for the population (including the consumption of fish), the economic dependency on the fishing industry, the location and historic patterns of fishing, and the effect of fishing on the delimitation.

123. Second Award, paras 47–74.

124. The Tribunal recalled the findings of the North Sea cases as to the unity of deposits, the “significant body of cooperative State practice”, and the writings on the subject; the Tribunal asserted also the existence of a duty of co-operation. In its view, the two States are bound to inform and to consult each other on any discovery concerning mineral resources straddling, or lying in the vicinity of, the maritime boundary. The particular geographical circumstances of the Red Sea, where the two States “face one another across a relatively narrow compass”, and the common legal, historical, cultural and religious background, were deemed to be factors that make such duty of co-operation even more pertinent in concreto.

125. Whereas Yemen resorted to this evidence primarily in the first stage, with a view to demonstrate that its sovereignty over the mid-sea islands was relied upon oil companies, Eritrea had recourse thereto in this second stage to show that the concessions ran along the median line between the mainland coasts. Although recognising that this was “not tantamount to mutual acceptance of a median maritime boundary or even a modus vivendi line”, Eritrea contended that it was a “persuasive basis” for accepting its “historic median line”, according no weight to the mid-sea disputed islands, as the boundary in the Red Sea.

126. Second Award, paras 75–86.

127. The relevance of navigational interests in territorial sea areas had already been endorsed in the Beagle Channel arbitration. Considerations of “convenience, navigability and the desirability of enabling each party so far as possible to navigate in its own waters” were taken into account to delimit the boundary; Beagle Channel Arbitration (Argentina v. Chile), Award of 18 Feb. 1977, (1979) 52 I.L.R. 97, at p.185, para.110.

128. Dispute Concerning Delimitation of the Maritime Boundary (Guinea v. Guinea-Bissau), Award of 14 Feb. 1985, (1986) 25 I.L.M. 251, at p.292, para.96.Google Scholar

129. I.C.J. Rep. 1993, 38, at pp.58–61, paras 46–51; 18 R.I.A.A. 3, at pp.43–45, 47–48, 116, paras 65–70, 75, 249.

130. The only references to “equitable principles” that appear in the Second Award are those of paras 19, 39, 165. In the first instance, the Tribunal was merely describing the Yemeni argument. In the other two instances, the reference to equitable principles appears within a citation of the North Sea cases as regards the use of proportionality.