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Eritrea-Yemen Arbitration (Award, Phase II: Maritime Delimitation)

Published online by Cambridge University Press:  27 February 2017

W. Michael Reisman
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Type
International Decisions
Information
American Journal of International Law , Volume 94 , Issue 4 , October 2000 , pp. 721 - 736
Copyright
Copyright © American Society of International Law 2000

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References

1 The author reported on the first stage in 93 AJIL 668 (1999).

2 Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of the Dispute), Eritrea/Yemen (Oct. 9, 1998), para. 526 [hereinafter Award I]. The texts of both awards, as well as other documents relating to the arbitration, are available online at the Web site of the Permanent Court of Arbitration, <http://www.pca-cpa.org>.

3 Id., para. vi.

4 Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), Eritrea/Yemen (Dec. 17, 1999), para. 89 [hereinafter Award II].

5 Id.

6 Id., para. 90.

7 Id., para. 101.

8 Id. For comments on this self-authorized continuing supervisory role, see infra Continuing Jurisdiction.

9 Id., para. 103.

10 Id., para 106.

11 Id., para. 104.

12 Id., para. 107.

13 Id.

14 Id.

15 Id., para. 108.

16 Id., para. 85.

17 Id., para. 104.

18 Id., para. 86.

19 Id.

20 Award I, supra note 2, para. 437.

21 Id., para. 438.

22 The Tribunal justified this change on the basis of Article 2(3) of the Arbitration Agreement, which enjoined the Tribunal during the second phase to take into account “the opinion it will have formed on questions of territorial sovereignty.” Arbitration Agreement, Oct 3, 1996, Art. 2(3), <http://wvw.pca-cpa.org/ER-YEarbagree.htm>.

23 Award II, supra note 4, para. 84.

24 Id., para. 132.

25 Id., para. 135.

26 Id., para. 133.

27 Id., para. 136.

28 Id., para. 113.

29 Id., para. 117.

30 Id., para. 139. The baseline issue is taken up below. At paragraph 118, the Tribunal described all the Dahlaks, including the outer islands, “as an integral part of the Eritrean mainland coast.” To appreciate the implications of this holding, one must bear in mind that some of the outermost Dahlaks are more than fifty nautical miles from the mainland coast.

31 Id., para. 147.

32 Id.

33 Id., para. 148; see also id., para. 119. Although the Tribunal indicated that the islands’ “barren and inhospitable nature and their position well out to sea . . . mean that they should not be taken into consideration in computing the boundary line,” it abandoned this principle when it allowed Yemen’s Zuqar and Hanish group to push the median line toward Eritrea in the middle stretch. See id., paras. 160–62, discussed in text accompanying infra notes 44–53.

34 Id., para. 150.

35 Id., para. 151.

36 Id., para. 153.

37 Id., para. 140.

38 Id., para. 142 (“Yemen has employed as its western base points the high-water line of the small outer islets of Segala, Dahret Segala, Zauber and Aucan. These islets could reasonably be included in a straight baseline system of the ordinary and familiar kind. “ (emphasis added)).

39 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 7, 1833 UNTS 397, reprinted in 21 ILM 1261 (1982) [hereinafter LOS Convention].

40 Award II, supra note 4, para. 151.

41 Id., para. 142.

42 Id.

43 Id., para. 146.

44 Id., paras. 154, 155. In its first award, the Tribunal rejected this technique as a way of extending sovereignty to islands and rocks. Award I, supra note 2, para. 449. The issues are, of course, distinguishable. Any “naturally formed area of land . . . which is above water at high tide” may generate a territorial sea that in principle may extend up to 12 nautical miles. LOS Convention, supra note 39, Arts. 3, 121. The question of sovereignty over an island is not resolved solely (if at all) by its proximity to other land territory of the state.

45 Award II, supra note 4, para 156.

46 Id., para. 157.

47 Id., para. 156.

48 Delimitation of the Maritime Boundary (Guinea/Guinea-Bissau), Feb. 14, 1985, 77 ILR 636, 25 ILM 252, 289 (1986).

49 Award II, supra note 4, para. 157.

50 Id., para. 158.

51 Id., para. 159.

52 Id., para. 161.

53 Id.

54 Id., para. 163.

55 Id., para. 164.

56 Id., para. 39.

57 Id., paras. 40–43.

58 Id., para. 168.

59 See Eritrean-Yemeni Maritime Boundary to Be Split Down Middle: Eritrea, Agence France-Presse, Dec. 19, 1999.

60 Arbitration Agreement, supra note 22, Art. 2(3).

61 Continental Shelf (Tunis./Libyan Arabjamahirya), 1982 ICJ Rep. 18, 23 (Feb. 24) (citing Special Agreement Between Tunisia and Libya, Art. 1).

62 For example, the choice-of-law clause in the Aminoil arbitration: Article III, paragraph 2 of the Agreement provided that” [t]he law governing the substantive issues between the Parties shall be determined by the Tribunal, having regard to the quality of the Parties, the transnational character of their relations and the principles of law and practice prevailing in the modern world.” Kuwait v. American Indep. Oil Co. (Aminoil), Mar. 24, 1982, 66 ILR 519, 561.

63 I am grateful to Bernard Oxman for this observation.

64 Award II, supra note 4, para. 130.

65 Id., para. 92, with references there to paragraphs 121 and 128 of the first award.

66 Id., paras. 93, 94. The references are to Majid Khadduri, 6 International Law, Islamic 227–33, and to Ahmed S. El-Kosheri, 7 History of the Law of Nations, Regional Developments: Islam 222–30, with a specific reference to page 229.

67 Award II, supra note 4, para. 92.

68 Wilkinson, J. C., Traditional Concepts of Territory in South East Arabia, 149 Geographical J., 301, 303 (1983)Google Scholar; see also]. Wilkinson, C., Muslim Land and Water Law, J. Islamic Stud. 1, 54–72 (1990)CrossRefGoogle Scholar; Wilkinson, J. C., Water and Tribal Settlement in South-East Arabia: A Study of the Aflāj of Oman (1977)Google Scholar.

69 Award II, supra note 4, para. 95.

70 11 United Nations Reports of International Arbitral Awards 167 (1910).

71 S.S. Wimbledon, Judgment, 1923 PCIJ (ser. A) No. 1 (Aug. 17).

72 See, e.g., Right of Passage over Indian Territory (Port. v. India), Judgment, 1960 ICJ Rep. 6 (Apr. 12).

73 See, e.g., references to traditional rights and activities, including habitual fishing by nationals of other states, in the LOS Convention, supra note 39, Arts. 47(6), 51, 60(7), 62(3), 66(3).

74 One is reminded of Judge Cassesse’s criticism, in quite a different context, of the Kahane Commission’s introduction of Rabbinic law into the Shatila and Sabra Inquiry. Cassesse, Antonio, Sabra and Shatila, in Violence and Law in the Modern Age 76, 80 (Greenleaves, S.J. K. trans., 1988)Google Scholar.

75 See in this regard the prescient observations of Hans Kelsen at the conclusion of his General Theory of Law and State 446 (Anders Wedberg trans., Harvard Univ. Press, 1945).

76 Petroleum Development Ltd. v. Sheikh of Abu Dhabi, Sept. 1951, 18 ILR 144, 149.

77 See infra Continuing Jurisdiction.

78 See supra text accompanying notes 2–3.

79 Curiously enough, the second award simply takes for granted its competence to interpret the first award. In fact, this is a far-reaching, and, in my view, important innovation in international arbitral procedure, which affirms and consolidates the still controversial position of the German-U.S. Claims Commission in the Sabotage cases that “ [e]very tribunal has inherent power to reopen and to revise a decision induced by fraud. If it may correct its own errors and mistakes, a fortiori it may, while it still has jurisdiction of a cause, correct error into which it has been led by fraud and collusion.” Decision of the Commission Rendered by the Umpire, Dec. 15, 1933, in Mixed Claims Commission, United States and Germany, Decisions and Opinions from January 1, 1933 to October 30, 1939, at 1115, 1127–28 (1940). If it may correct its errors, may it not clarify elements that the parties misapprehend? Though the parties did not apparently argue the issue in the case under review, the Tribunal itself, after noting that Yemen had not discussed the traditional fishing regime, asked, on July 16, 1999, “Would Yemen indicate how, if at all, the traditional fishing regime should be taken into account in the delimitation . . . ?” Yemen’s long written reply to the question concluded that

Yemen considers that the Tribunal has already decided on the preservation of the traditional fishing regime between the Parties in its first Award. The Award as it stands is res judicata, and in view of the language of Article 13, paragraph 3 of the Arbitration Agreement, it is not appropriate to interpret the meaning and the scope of the Award in the first stage at his point in the proceedings.

Award II, supra note 4, Annex II.

80 Id., para. 71.

81 Id., para. 63. The Tribunal added: “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.” Id., para. 64.

82 Id., para. 61.

83 Id., para. 70.

84 Lac Lanoux Arbitration (Fr. v. Spain), Nov. 16, 1957, 24 ILR 101, 119.

85 Award II, supra note 4, para. 101.

86 Yet Eritrea itself did not pray for this particular continuing relief. In the Tribunal’s summary of the final submissions of the parties in paragraph 46 (7), Eritrea asked only that “the Tribunal should 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.”

87 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Feb. 20).

88 As stated by the Tribunal in the case under review, the delimitation articles “were consciously designed to decide as little as possible.” Award II, supra note 4, para. 117. See in this regard Bernard H., Oxman, The Third United Nations Conference on the Law of the Sea: The Eighth Session (1979), 74 AJIL 1, 29–32 (1980)Google Scholar. See also Bernard H., Oxman, The Third United Nations Conference on the Law of the Sea: The Tenth Session (1981), 76 AJIL 1, 14 (1982)Google Scholar (“[O]ne might have expected more than a text that says nothing of significance while, worse still, trying to give a contrary impression by introducing unnecessary language and avoiding recognized terminology associated with the jurisprudence and scholarship on the subject.”).

89 Fisheries (U.K. v. Nor.),Judgment, 1951 ICJ Rep. 116 (Dec. 18).

90 See Michael Reisman, W. & Gayl S., Westerman, Straight Baselines in International Maritime Boundary Delimitation (1992)CrossRefGoogle Scholar; Ashley Roach, J. & Robert W., Smith, Excessive Maritime Claims (1994)Google Scholar.

91 Award II, supra note 4, para. 142.

92 Id., para. 140.

93 In principle, this method is, of course, one of several for determining the general direction of the coast for purposes of delimitation of an equitable maritime boundary and does not, as such, constitute a determination that the lines used for this purpose are necessarily permissible straight baselines enclosing internal waters. One notes in this regard that Cuba and the United States calculated their maritime boundary, in part, with reference to hypothetical straight baselines along the coast of the United States, which were designed to balance the straight baselines established by Cuba, which the United States did not recognize as valid. See Robert W., Smith, Report Number 1–4, in 1 International Maritime Boundaries 417, 419 (Jonathan I., Charney & Lewis M., Alexander eds., 1993)Google Scholar.

94 Award II, supra note 4, para. 151.

95 LOS Convention, supra note 39, Art. 16(1).

96 Id., Art. 16(2).

97 See id., Art. 16.I am grateful to Jonathan Charney for this insight.

98 See id., Art. 5.

99 See in this regard Corfu Channel (U.K. v. Alb.), Preliminary Objection, Judgment, 1947–48 ICJ Rep. 15 (Mar. 25); Corfu Channel (U.K. v. Alb.), Merits, Judgment, 1949 ICJ Rep. 4 (Apr. 9); Aegean Sea Continental Shelf (Greece v. Turk.), Jurisdiction, Judgment, 1978 ICJ Rep. 3 (Dec. 19).

100 Convention of the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 UST 1606, 516 UNTS 205.

101 Award II, supra note 4, para. 125.

102 Id., para. 128

103 Id., para. 155.

104 1969 ICJ Rep. 54.

105 Delimitation of the Continental Shelf (U.K./Fr.), Mar. 14, 1978, 54 ILR 139, 18 ILM 462 (1979), cited in Award II, supra note 4, para. 165.

106 Award II, supra note 4, para. 101.

107 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.) Judgment, 1984 ICJ Rep. 246, 334–37 (Oct. 12).

108 Continental Shelf (Libyan Arab Jamahirya/Malta), Judgment, 1985 ICJ Rep. 13, 50 (June 3). But in this instance, the Court was also influenced by the character of the Mediterranean as a semi-enclosed sea, that is, by “the general geographical context.” Id.

109 Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Norway), Judgment, 1993 ICJ Rep. 38 (June 14) [hereinafter Jan Mayen Judgment].

110 In St. Pierre and Miquelon, the Tribunal found the coastal ratio between France and Canada to be 1:15.3. Delimitation of Maritime Areas Between Canada and the French Republic (St. Pierre and Miquelon) (Can./Fr.), June 10, 1992, 95 ILR 645, 662 [hereinafter St. Pierre and Miquelon arbitration].

111 Award II, para. 168.

112 St. Pierre and Miquelon arbitration, supra note 110, at 678–80.

113 Jan Mayen Judgment, supra note 109, at 66.

114 See, e.g., Award II, supra note 4, para.139. Though the point would appear obvious, the Tribunal reaffirmed that in circumstances in which the normal baseline in the sense of Article 5 of the LOS Convention is used, the coastline of an island system is “somewhere at the external fringe of the island system.” Id.

115 Id., para. 117.

116 Id., para. 162.

117 Id., para. 84.

118 See text accompanying supra notes 18–19.

119 Simpson, J. L. & Fox, Hazel, International Arbitration: Law and Practice 88 (1959)Google Scholar.

120 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, Art. 5, 21 UST 2517, 330 UNTS 38.

121 In some circumstances, an unpersuasive unanimity may only increase the perception that the award is, in substance, an attempt to strike a compromise between the positions of the parties, and not actually a principled application of the law.