Eritrea-Yemen Arbitration, ICJ Reports, 9 October 1998

SUMMARY:
The State of Eritrea and the Republic of Yemen both claimed sovereignty over a group of islands
in the Red Sea. They disagreed as to the location of their maritime boundary and the use of the
waters surrounding the islands by fishermen of both states.
Yemen argues that it owns the islands based on ancient title, while Eritrea asserts that it owns the
islands through a succession of title. The Tribunal found that neither party made a more
convincing case of ownership of the islands.
After reviewing the evidence, the Tribunal decided that Eritrea had sovereignty over the
Mohabbakhs, the Haycocks, and the South West Rocks because of their proximity to the Eritrean
mainland. The tribunal found Yemen to be sovereign over the Zubayr group because of the
installation and maintenance of lighthouses on these islands. Also, Zubayr group was included in
two oil agreements contracted by Yemen with private firms. Yemen was also found to be
sovereign over the Zuqar-Hanish group.
Final award: The Tribunal ruled that the international maritime boundary between the Parties
“shall be a single all-purpose boundary” that “should, as far practicable, be a median line
between the opposite mainland coastlines.” This solution was not only in accord with precedent
but was also familiar to both Parties and reflected by offshore petroleum agreements entered into
by Yemen, Eritrea, and Ethiopia. The Tribunal then calculated the boundary line resulting from
the application of these principles and set out the geographical coordinates of the international
maritime boundary in the dispositif of the award. 

Background of the case:

It may be noted that Eritrea based its claim to the islands on a chain of title extending over more
than 100 years, and on principles of effective occupation, and Yemen, in turn, based its claim on original,
historic, or traditional Yemeni title. Both parties submitted extensive cartographic evidence, but Eritrea
relegated it to a limited role, believing that maps do not constitute direct evidence of sovereignty or of a
chain of title.
After having reviewed the respective arguments of the parties on territorial sovereignty and on
the relevance of petroleum agreements and activities (Chapter I), the Arbitral Tribunal turned to the issue
whether the scope of the dispute involved, as Eritrea contended, all the respective Red Sea islands or, as
Yemen claimed, only islands of the Hanish Group (Chapter II). The Tribunal preferred the Eritrean view
and accordingly decided to make an Award on sovereignty over all the islands, islets, rocks and low-tide
elevations with respect to which the Parties have put forward conflicting claims.
It is at this point that the Arbitral Tribunal set out its observations on some particular features of
the Eritrea/Yemen case (Chapter III). A striking difference between the Parties was that while Yemen
traced the dispute back to medieval times, well before the establishment of the Ottoman Empire, Eritrea
traced its own title through an historical succession from the Italian colonial period as well as through the
postWorld War II period of its federation as part of the ancient country of Ethiopia. Accordingly, the
Tribunal noted that it had been presented with a large volume of archival and other evidence of the
establishment of a legal title through the accumulated examples of claims, possession or use or, in the
case of Yemen, through consolidation, continuity and confirmation of an alleged 'ancient title' over the
disputed islands, straddling what has been, since the opening of the Suez Canal in 1869, one of the most
important and busiest seaways in the world. Since apart from the context of the scope of the dispute, 24
neither of Parties had sought to employ a 'critical date' argument, the Tribunal followed the 1966
Argentina v. Chile Frontier (Rio Palena) Award and "examined all the evidence submitted to it,
irrespective of the date of the acts to which such evidence relates".25 As regards the principle of uti
possidetis, relied upon by Yemen and contested by Eritrea, the Tribunal found the sources (internal
memoranda) provided by the Parties to be based upon "informed speculation", appearing insufficient as
the basis for a legal presumption of that principle, whose application at the time and place pleaded by
Yemen (1918, the Middle East) the Tribunal did not accept. In the context of the Tribunal's task in the
first stage of the Eritrea/Yemen case, the Award gives an important exposition of the meaning of historic
title in international law and the applicability of equity or equitable principles to the issues of territorial
sovereignty.
Given its mandate under the Arbitration Agreement (Article 2) and the paramount importance
attached to 'ancient title' by Yemen, the Award reflects careful attention of the Tribunal both to the
arguments relating to ancient titles and reversion thereof proposed by Yemen and arguments relating to
longstanding attribution of the Mohabbakahs to the colony of Eritrea and to the early establishment of
titles by Italy pronounced by Eritrea (Chapter IV). Due attention was also given by the Tribunal to the
principal treaties, including the 1923 Lausanne Treaty of Peace (Article 16), and other legal instruments
as well as questions of state succession (Chapters V and X, first section)27 and the Red Sea lighthouses
(Chapter VI).28 However, neither Party succeeded in persuading the Tribunal of the actual existence of
titles as a source of territorial sovereignty over the disputed Red Sea islands; neither on the basis of an
ancient title in the case of Yemen, nor of title by succession in the case of Eritrea. The Award stresses
that, "given the waterless and uninhabitable nature of these islands and islets and rocks, and the
intermittent and kaleidoscopically changing political situations and interests, this conclusion is hardly
surprising."It is important to note that the Award squarely rejects the existence of a principle of reversion
of a newly independent State to the ancient title to territory, which Yemen had claimed.
The remaining part of the Award (amounting to half of its length) deals with contentions of the
Parties concerning the demonstration of use, presence, display of governmental authority and other ways
of showing possession (effectivités) which may gradually consolidate into title (Chapters VII-IX and X,
second section). A notable result of the analysis of the respective governmental activities drawn in the
Eritrea/Yemen Award is, as indeed was the case with the 1953 United Kingdom/France Minquiers and
Ecrehos Judgment, that it was the relatively recent history of use and possession that ultimately proved to
be a main basis of the Tribunal's decisions.
In view of the multiple uses and the relevance of maps to the dispute and the significant attention
devoted to the legal implications of petroleum agreements and activities of both Parties, these two topics
are dealt with separately by the Eritrea/Yemen Award (Chapters VIII and IX). In addition, the Tribunal
found it necessary to take account of the geographical factor that the majority of the disputed islands,
islets and rocks form an archipelago extending across a relatively narrow sea between the opposite coasts
of the Parties (Chapter X). Accordingly, the Tribunal gave a certain weight to the presumption that any
islands off one of the coasts may be thought to belong by appurtenance to that coast unless the State on
the opposite coast has been able to demonstrate a better title.33 Influence of this presumption could, in
Tribunal's view, be seen at work in the legal history of these islands.
 Since the different subgroups of islands had, at least to an important extent, separate legal
histories, the Arbitral Tribunal felt bound to decide the question of sovereignty with respect to these
subgroups separately. At the same time, it rejected the applicability of "the principle of natural or
geophysical unity" relied upon by Yemen in relation to the Hanish Group as encompassing the entire
island chain, including the Haycocks and the Mohabbakahs.34
The Tribunal confirmed its earlier finding that there was no evidence that the Mohabbakahs
Islands were part of an original historic title held by Yemen and that, even if it were the case that only the
Assab Bay islands were passed to Eritrea by Italy in 1947, no serious claims to the Mohabbakahs had
been advanced by Yemen since that time, until the events leading up to the present arbitration.35
Whatever the history, the Tribunal found that in the absence of any clear title to the islands being shown
by Yemen, the Mohabbakahs must today be regarded as Eritrean for reason of their location within 12
miles of Eritrea's coast.36 Although the High Islet lies barely beyond 12 miles (12.72 miles), it was
included into the Mohabbakahs on the basis of the unity theory and the Islet's appurtenance to the African
coast.37
Similarly, the Tribunal was not persuaded by a peculiar legal history of the Haycock Islands
(bound up with the history of the Red Sea lighthouses), relying instead on the geographical argument of
their proximity to the Eritrean coast and in accord with the general opinion that islands off a coast belong
to the coastal state, unless another, superior title can be established, which Yemen had failed to do.38 The
evidence pertaining to petroleum agreements provided additional support for the Tribunal's decision that
the Haycocks are subject to the territorial sovereignty of Eritrea.39 The South West Rocks were also
attributed by the Tribunal to Eritrea on the ground that in the light of their history, it seemed reasonable
that the islands should be treated in the same manner as the Mohabbakahs and the Haycocks administered
from the African coast.40
The remaining disputed islands, islets, rocks, and low-tide elevations, i.e., the ZuqarHanish
Group41 as well as the Jabal al-Tayr Island and the Zubayr Group42 were determined by the Tribunal to
be subject to the territorial sovereignty of Yemen. The Tribunal found that the Zuqar-Hanish Group was a
particularly difficult group to decide on because, given their location in the central part of the Red Sea,
the appurtenance factor was bound to be less helpful, and because any expectation of a definite answer
from the Group's earlier legal history, notwithstanding its importance for an understanding of the claims
of both Parties, was bound to be disappointed. With respect to a plethora of maps, the Tribunal was of the
opinion that Yemen had a marginally better case in that, looked at in their totality, the maps did suggest a
certain widespread repute that these islands appertain to Yemen. 43
With a view to making a firm decision about Zuqar and Hanish Islands, the Tribunal had looked
at events in the last decade before the 1996 Agreement of Arbitration, including at the Red Sea
lighthouses (being evidence of some form of Yemeni presence in the islands), the history of naval patrols
and the logbooks (providing no compelling case for either Party), and the petroleum agreements (failing
to establish evidence of sovereignty),44 as well as at various recent instances of the effectivités. 45 With
respect to the island of Jabal al-Tayr and the Zubayr Group, which are not only relatively isolated, but
also are not proximate to either coast, the Tribunal had again to weigh the relative merits of the Parties'
evidence of the exercise of governmental authority in the context of both groups having been lighthouse
islands and in view of the relevant petroleum agreements.46 Although there was sparse evidence on either
side of actual or persistent activities on and around these islands, the Tribunal was of the opinion that
given their isolated location and inhospitable character, little evidence was sufficient.
 After examination of all relevant historical, factual and legal considerations, the Arbitral Tribunal
found that, on balance, and with the greatest respect for the claims of both Parties, the weight of the
evidence supported Yemen's assertions to sovereignty over the Zuqar-Hanish Group48 and the Jabal al-
Tayr Island and the Zubayr Group.49 The Award stresses an awareness of the Tribunal that: "Western
ideas of territorial sovereignty are strange to peoples brought up in the Islamic tradition and familiar with
notions of territory very different from those recognized in contemporary international law."50 Moreover,
appreciation of regional legal traditions was necessary to render an Award meeting objectives articulated
in the 1996 Joint Statement.51 Given traditional operation, as the evidence presented to the Tribunal
amply testified, of the fishing regime around the islands concerned, the sovereignty found to lie with
Yemen was determined as entailing the perpetuation of this regional fishing regime, including free access
and enjoyment for the fishermen of both Parties.
The 1998 Eritrea/Yemen Territorial Sovereignty and Scope of the Dispute Award (Phase I) is a
milestone in the development of principles and rules of international law governing the acquisition of
territorial sovereignty. The Award confirms the preeminence of evidence of actual and effective
occupation as a source of title to territory over claims of historic title, as developed by the
jurisprudence of the ICJ and other courts and tribunals. It sustains a low standard for what would
constitute actual occupation as it relates to unsettled or inhospitable territory. The Award also is
significant in its exposition of the modern concept of effectivités, which is now considerably expanded in
the endeavour to show what Charles de Visscher called "a gradual consolidation of title",and which relies
on the relatively recent history of presence and display of governmental authority and other ways of
showing possession.