REPORTS OF INTERNATIONAL

ARBITRAL AWARDS

RECUEIL DES SENTENCES

ARBITRALES

Second stage of the proceedings between Eritrea and Yemen (Maritime

Delimitation)

17 December 1999

VOLUME XXII pp. 335-410

NATIONS UNIES - UNITED NATIONS

Copyright (c) 2006
 Part IV

Award of the Arbitral Tribunal in the second stage

of the proceedings between Eritrea and Yemen
(Maritime Delimitation)

Decision of 17 December 1999

Sentence du Tribunal arbitral rendue au terme de

la seconde étape de la procédure entre l'Erythrée et
la République du Yémen
(Délimitation maritime)

Décision du 17 décembre 1999

334 ERITREA / YEMEN
AWARD OF THE ARBITRAL TRIBUNAL IN THE SECOND STAGE OF
THE PROCEEDINGS BETWEEN ERITREA AND YEMEN (MARI-
TIME DELIMITATION), 17 DECEMBER 1999

SENTENCE DU TRIBUNAL ARBITRAL RENDUE AU TERME DE LA

SECONDE ÉTAPE DE LA PROCÉDURE ENTRE L'ERYTHRÉE ET
LA RÉPUBLIQUE DU YÉMEN (DÉLIMITATION MARITIME), 17
DÉCEMBRE 1999
Median line and historic median line — Methods of measurement — Principle of equidistance
— Baselines: high water-line, low water-line, median line - "normal baseline", "straight baseline"
— Geodeic line. — Presence of mid sea islands — Principle of proportionality as a test of equi-
tableness and not a method of delimitation — Requirement of an equitable solution.
Non-geographical relevant circumstances: fishing, security, principle of non-encroachment
— Relevance of fishing in acceptance or rejecting the argument as to the line of delimitation:
location of fishing areas, economic dependency on fishing, effect of fishing practices on the lines
of delimitation — "catastrophic" and "long usage" tests — "artisanal fishing", "industrial fish-
ing", and associated rights.
The drawing of the initial boundary line does not depend on the existence and the protec-
tion of the traditional fishing regime. Relevance of petroleum contracts and concessions as to the
line of the delimitation — Joint exploitation of resources, in particular in the case of overlapping
of continental shelves, and implications on the nature of sovereignty.
Incompetence of the Tribunal to decide on any of the boundaries between either of the
parties and neighboring states — res communis condominia — Force of the res judicata of the
first award on the delimitation of the maritime boundary by the Tribunal during the second stage
of the proceedings.
Ligne médiane et ligne médiane historique — Méthodes de mesure — Principe de
l'équidistance — Lignes de base: laisse de haute mer, laisse de basse mer, ligne médiane —
"ligne de base normale", "lignes de base droite" — Ligne géodésique — Présence d'îles au large
des côtes — Le principe de proportionnalité en tant que critère d'équité et non en tant que méthode
de délimitation — Exigence d'une solution équitable.
Circonstances pertinentes non géographiques: pêches, sécurité, principe de non-empiétement
— Pertinence de la pêche comme motif d'acceptation ou de rejet des arguments concernant la
ligne de démarcation: emplacement des zones de pêche, dépendance économique à l'égard de la
pêche, effect des méthodes de pêche eu égard aux lignes de démarcation — Critères de la survenue
d'accidents et du long usage — "pêche artisanale", "pêche industrielle" et droits associés.
L'existence et la protection d'un régime de pêche traditionnel ne dépendent pas d'un trait
tiré ni d'une ligne frontalière internationale — Pertinence des contrats et concessions pétroliers
eu égard à la ligne de démarcation — Exploitation conjointe de ressources, en particulier dans le
cas où les plateaux continentaux se chevauchent, et ses implications quant à la nature de la
souveraineté.
Incompétence du Tribunal pour trancher les questions concernant toutes frontières entre
l'une ou l'autre partie et les États voisins — res communis condominia —Autorité de la chose
jugeé concernant la première sentence rendue par le Tribunal relativement à la délimitation de la
frontière maritime lors de la seconde étape de la procédure.

335
336 ERITREA / YEMEN

The Arbitral Tribunal:

Professor Sir Robert Y. Jennings, President
Judge Stephen M. Schwebel
Dr. Ahmed Sadek El-Kosheri
Mr. Keith Highet
Judge Rosalyn Higgins

Representatives of the Government of the State of Eritrea:

His Excellency, Haile Weldensae, Agent
His Excellency, Haile Saleh Meky
Professor Lea Brilmayer and Mr. Jan Paulsson, Co-Agents

Representatives of the Government of the Republic of Yemen:

His Excellency, Dr. Abdulkarim Al-Eryani, Agent
His Excellency, Mr. Abdullah Ahmad Ghanim
Mr. Hussein Al-Hubaishi, Mr. Abdulwahid Al-Zandani and Mr. Rodman R.
Bundy, Co-Agents

INTRODUCTION

Proceedings in the delimitation stage of the arbitration

1. This Award in the Second Stage of the Arbitration is rendered pursu-
ant to an Arbitration Agreement dated 3 October 1996 (the "Arbitration Agree-
ment"), between the Government of the State of Eritrea ("Eritrea") and the
Government of the Republic of Yemen ("Yemen") (hereinafter "the Parties").
2. The Arbitration Agreement, which appears as annex 1 on page 51,
was preceded by an "Agreement on Principles" done at Paris on 21 May 1996,
which was signed by Eritrea and Yemen and witnessed by the Governments of
the French Republic, the Federal Democratic Republic of Ethiopia and the
Arab Republic of Egypt. The Agreement on Principles provided that the Tri-
bunal should decide questions of territorial sovereignty and to that end the
Tribunal rendered an Award in the First Stage finding the sovereignty of the
disputed islands in the Red Sea to belong either to Eritrea or to Yemen. (See
Award in the First Stage, chapter XI—Dispositif, paragraphs 527-528.)
3. In a correspondence concerning the Written Pleadings for the Second
Stage, and including requests for an extension of the time allowed, a question
was raised by Eritrea relating to the Traditional Fishing Regime and how it
might be pleaded and argued in the Second Stage of the Arbitration. The
President's reply was: "the Tribunal is of the view that it is for Eritrea itself to
determine the contents of its written pleadings for that stage." This is referred
to in chapter IV.
 MARITIME DELIMITATION AWARD 337

4. Pursuant to the time table set forth in the Arbitration Agreement, the
Parties filed written Memorials in the Second Stage on 9 March 1999 and
Counter-Memorials on 9 June 1999. On 25 May 1999, Mr. Tjaco van den Hout,
Secretary-General of the Permanent Court of Arbitration, succeeded as Regis-
trar Mr. Hans Jonkman, who had retired. Pursuant to article 7 (2) of the Arbi-
tration Agreement, Ms. Phyllis Pieper Hamilton, First Secretary of the Perma-
nent Court of Arbitration, served as Secretary to the Tribunal.
5. Prior to the Hearings in the Second Stage of the Arbitration, after
consultation with the Parties, the Tribunal as contemplated by article 7 (4) of
the Arbitration Agreement sought assistance with the calculations of the mari-
time boundaries and the technical preparations of the corresponding chart. On
8 July 1999, pursuant to article 7 (4) the Tribunal communicated an Order to
the Parties designating Ms. Ieltje Anna Elema, geodetic engineer, Head of the
Geodesy and Tides Department of the Hydrographie Service of the Royal Neth-
erlands Navy, as its expert in geodesy.
6. article 2 of the Arbitration Agreement provides that:
1. The Tribunal is requested to provide rulings in accordance with international law, in
two stages.
2. The first stage shall result in an award on territorial sovereignty and on the defini-
tion of the scope of the dispute between Eritrea and Yemen ...
3. The second stage shall result in an award delimiting maritime boundaries. The Tri-
bunal shall decide taking into account the opinion that it will have formed on questions of
territorial sovereignty, the United Nations Convention on the Law of the Sea, and any other
pertinent factor.
7. Pursuant to the time table set forth in the Arbitration Agreement for the
various stages of the Arbitration, and with the consent of the Parties regarding
the venue, the Oral Proceedings in the second stage of the Arbitration were held
5-16 July 1999 in the Great Hall of Justice in the Peace Palace in The Hague. By
agreement between the Parties, Yemen began the Oral Proceedings.
8. The Tribunal's task was greatly facilitated by the excellence of the
oral presentations on both sides.
9. During the Oral Arguments, pursuant to article 8 (3) of the Arbitra-
tion Agreement authorizing the Tribunal to request the Parties ' written views
on the elucidation of any aspect of the matters before the Tribunal, counsel
were asked to respond to various questions. On 13 August 1999 the Parties
were submitted written responses to questions put to them by the Tribunal on
13 and 16 July. The Tribunal's questions and the answers provided by the Par-
ties are set out in annex 2.

Chapter I. The arguments of the Parties

Introduction
10. The purpose of the present chapter is to summarise what the Tribu-
nal understands to have been the main arguments of the Parties. For the
Tribunal's reasons for acceptance or rejection or modification of those argu-
338 ERITREA / YEMEN

ments, it may be necessary to turn to later chapters. In this Chapter describing

the arguments of the Parties, it will be convenient in general to follow the
order agreed by them for the Oral Presentations and so put first the arguments
of Yemen followed by the arguments of Eritrea.
11. It may be said at once that both Parties claimed a form of median
international boundary line, although their respective claimed median lines
follow very different courses and do not coincide. They do, however, follow
similar courses in the narrow waters of the southernmost portion of the line.
Eritrea's median line is equidistant between the mainland coasts, but its his-
toric median line takes into account Eritrea's islands (but not the Yemen mid-
sea islands); the Yemen line is equidistant between the Eritrean coast (includ-
ing certain selected points on the Dahlak islands) and the coasts of all the
Yemen islands. The Yemen line was plotted with WGS84 coordinates of the
turning points; the Eritrean line was not, although, in answer to a question
from the Tribunal, the coordinates of the base points were provided. The rival
claimed lines are reproduced on the Charts (Eritrea's maps 3 and 7 and Yemen's
map 12. 1) to be found in the map section at the back of the book.

Yemen s proposed boundary line

12. The Yemen claimed line was described in three sectors divided by
lines of latitude: 16°N; 14°25'N; and 13°20'N. So there was (i) a northern
sector between the Yemen islands of Jabal al-Tayr and the Jabal al-Zubayr
group on the one hand, and the Eritrean Dahlak islands on the other; (ii) a
central sector between the Zuqar-Hanish group of Yemen and the opposite
mainland coast of Eritrea together with the Mohabbakahs, the Haycocks and
South West Rocks; and (iii) a southern sector between the respective mainland
coasts of Yemen and Eritrea south of the Zuqar-Hanish group. These sectors
were fixed by the latitude of the controlling base points of the Yemen line.
Thus for instance, 14°25'N was the point on the line where the controlling
base points changed from the points on the islet Centre Peak in the Zubayr
group to the base points on the coast of Zuqar.
13. Yemen began its argument with the general understanding, as en-
dorsed by the International Court of Justice in the North Sea Continental Shelf
cases1, that a median line normally produces an equitable result when applied
between opposite coasts. Therefore, argued Yemen, a major preliminary task
for the Tribunal was to decide which were the coasts to be used as baselines.
14. In the northern sector, the proposed Yemen line assumed that the Dahlak
islands, a closely knit group of some 350 islands and islets, the largest of them
having a considerable population, should be recognized as being part of the
Eritrean mainland coast and the waters within them as internal waters. It fol-
lowed that the easternmost islets of that group might be used as base points of
the median line. Yemen used the high water line as baseline on these islands.

1
1.C.J. Reports 1969, p. 36, para. 57.
 MARITIME DELIMITATION AWARD 339

15. Yemen proposed that the eastern base points of the line should be
found on the low-water line of the western coast of the lone mid-sea island of
Jabal al-Tayr and on the western coasts of the mid-sea group of Jabal al-Zubayr.
Yemen argued that these islands should be used as base points because they
were as important, or even more important, than the very small uninhabited
outer islets of the Dahlak group. In this way, said Yemen, there would be a
"balance" in the treatment of island base points on the west and the east coasts,
arguing that in this northern area "each Party possesses islands of a compa-
rable size, producing similar coastal facades lying at similar distances from
their respective mainlands."
16. In the central sector the Yemen claimed line proceeded through the
narrow waters between the Hanish group of islands and the Eritrean mainland
coast. (This part of the boundary line area was called the "central" one by
Yemen but sometimes called the "southern" one by Eritrea.) The Yemen line
was a line of equidistance between the high-water line on the Eritrean main-
land coast and the low-water line on the westernmost coasts of the Yemen's
Hanish Island group.
17. Yemen suggested that the "small Eritrean islets in between" the
Eritrean mainland coast and the larger Yemen islands were inappropriate for a
delimitation role. Thus, the computing and the drawing of Yemen's boundary
line ignored both the South West Rocks and the three Haycocks (which had
been found in the Award on Sovereignty to belong to Eritrea) as being no more
than small rocks whose only importance was that they were navigational haz-
ards. The Eritrean sovereignty over these islets was, however, recognized by
placing them in limited enclaves.
18. In Yemen's "southern sector", the line entered a narrow sea with had
few islets and was relatively free from complicating mid-sea islands or islets,
and the line became a simple median between the opposite mainland coasts.
By using the islands of Fatuma, Derchos and Ras Mukwar as base points it
did, however, recognize that the Bay of Assab was an area of Eritrean internal
waters. Yemen added the comment that:
This method of delimitation has been selected in order to accord the islands in the Southern
Sector the same treatment as the islands in the Northern Islands Sector.
19. Summing up three sectors, Yemen observed that, in accordance with
the applicable legal principles, the appropriate delimitation would be achieved
by a median line between the relevant coasts. There was no justification for
any adjustment of this line on the basis of equitable principles. This median
line delimitation between the relevant coasts was the only equitable solution
with the purposes of this arbitration.
20. Yemen also addressed other relevant factors. There was the factor of
proportionality and this, together with Eritrea's argument under the same head-
ing, is dealt with below. There was also discussion of certain "non-geographi-
cal relevant circumstances", the first one being "dependency of the fishing
communities in Yemen upon Red Sea fishing". This is a matter upon which
both Parties held strong and differing view, which are described and consid-
ered in chapter II.
340 ERITREA / YEMEN

21. The other of these relevant circumstances maintained by Yemen was

"the element of security of the coastal State". This, according to Yemen, "con-
notes nothing more exciting than non-encroachment". It was chiefly in the
narrow waters between the Hanish group of islands and the Eritrean coast that
the question of security or non-encroachment arose. According to Yemen, this
concern is automatically addressed by the application of the principle of
equidistance which was intended to effect quality of treatment.

Eritrea s proposed boundary line

22. Eritrea asserted that there was a legal flaw in the Yemen argument
for its claimed line. This criticism illuminated some of the basic ideas underly-
ing Eritrea's own claimed line.
23. Eritrea pointed with some insistence to what it regarded as a funda-
mental contradiction in the Yemen argument. In the northern part of the line,
where the question of the influence upon it of the northern mid-sea islands
arose, the maritime boundary was between the respective continental shelves
and exclusive economic zones (hereinafter EEZ). These two boundaries, of
continental shelf and of EEZ, are governed by articles 74 and 83 of the United
Nations Convention on the Law of the Sea. In neither of these two articles is
there even a mention of equidistance; there is, however, a clear requirement
that a delimitation of these areas should "achieve an equitable solution". Nev-
ertheless, for these very areas, Yemen insisted upon an equidistance line hav-
ing included as base points for it the coasts of its small northern mid-sea islets.
24. In contrast, Eritrea contended in oral argument that, in the narrow
seas between the Hanish group of islands and the Eritrean mainland coast,
there was an area involving distances less than 24 miles2 and which was there-
fore all territorial sea to which article 15 of the Convention "is going to be
most directly applicable in the more southern reaches of the delimitation area
in question, the area round the Zuqar and Hanish Islands. The reason for that,
of course, is that the distances there are smaller. What that means is that in the
area round the Zuqar and Hanish Islands there is a basic rule of equidistance."
25. This would favour a median line that takes full account of South
West Rocks and the Haycocks, which in the Award on Sovereignty were found
to belong to Eritrea. Applying article 15, moreover, there could be no question
of enclaves of these islands.
26. Eritrea also objected that Yemen's proposed enclaves would in prac-
tice mean that there was no access in corridor for Eritrea through the surround-
ing Yemen territorial sea. Thus, both the Eritrean South West Rocks and the
Haycocks would be "completely isolated". Eritrea objected to the enclave solu-
tion because Eritrea claimed this would have put the western main shipping
channel, "between the Haycock Island and South West Rocks", into Yemen ter-
ritorial waters while the eastern main channel, which goes east of Zuqar, was

2
Throughout this Award the use of "miles" refers to nautical miles.
 MARITIME DELIMITATION AWARD 341

already in undisputed Yemen territorial waters. Thus, Yemen's proposal would

result in "inclusion of both of the main shipping channels within what would be
Yemen's territorial waters if Yemen's proposed delimitation were accepted."
27. Eritrea's own proposed solution of the delimitation problem was in
two parts. There was the proposed international boundary, and there was the
proposal for certain delimited "boxes" of the mid-sea islands, the purpose of
which was to delimit the areas which Eritrea claimed to be "joint resource
areas." This delimitation of "the shared maritime zones around the islands"
was distinguished from recognition of "the exclusive waters of Yemen, to the
east, and the exclusive waters of Eritrea, to the west." These ideas represented
Eritrea's understanding of what in its view was meant by the reservation in the
Award on Sovereignty of the traditional fishing regime, and what was needed
to ensure the fulfillment of that regime. Of this Eritrea said, "if this regime is
to be perpetuated, the Parties must know what it is and where it holds sway in
a technically precise manner."
28. It is to be noted that the "exclusive" Eritrean waters on the west in-
cluded not merely the territorial sea but also the waters west of the mid-sea
islands and west of the historic median line. These two Eritrean proposals—the
two versions of the median line and the joint resource area boxes—belong to-
gether because they were both essential parts of the Eritrean proposal as a whole.
Thus, Eritrea's "historic median line" was—although with some variations to be
note later—one drawn as a median between the mainland coasts and ignoring
the existence of the mid-sea islands of Yemen, but taking into account the is-
lands of Eritrea. (There are precedents for this kind of boundary line in the petro-
leum agreements discussed in chapter III.) Eritrea's "resource box system" pro-
vided the essential elements of a complex solution for the problem of these is-
lands. The boxes were offered in a variety of shapes and sizes (see Eritrea's
maps 4 and 7). These "joint resource boxes" seem to have been advanced by
Eritrea as a flexible set of suggestions. Its main concern was the reasonable one
that it wanted to be able to tell its fishermen precisely where they might fish.
29. The coupling in the Eritrean pleadings of the two questions—the
nature of the traditional fishing regime and the delimitation of the interna-
tional boundary—is in contradistinction to Yemen's arguments. Yemen had
expressed this view 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, in answer to a question from the Tribunal, also
expressed the view that "article 13, paragraph 3, of the Arbitration Agreement
(see annex 1) and the framework created by the 1994 and 1998 Agreements
obviated any need further to take into account the traditional fishing regime in
the delimitation of the maritime boundary." (The two Agreements of 1994 and
1998 are reproduced in annex 3 to this Award.)
30. Eritrea replied to this letter from Yemen 24 August saying that:
Yemen's submission conveys the impression that the two States have con-
ducted discussions since October 1998 which have resulted in arrangements
for the implementation of Eritrea's traditional rights. No such discussions have
taken place on this subject and no arrangements have been made to protect or
preserve Eritrea's traditional rights in the waters around the mid-sea islands.
342 ERITREA / YEMEN

Arguments about historic rights and sovereignty

31. Sovereignty over the disputed islands was the subject of the First
Stage of this Arbitration. The Arbitration Agreement enjoins the Tribunal in
this Second Stage to take into account "the opinion it will have formed on
questions of territorial sovereignty". It is not surprising, therefore, that both
Parties raised some interesting questions in this Second Stage about the nature
of sovereignty and its relation to the question of delimitation and, not least, to
the question of the traditional regime.
32. Eritrea was moved to return to the history of the formerly disputed
islands and especially to the period of Italian influence and presence. From
these and some other considerations was precipitated the view urged upon the
Tribunal that Yemen's 'recently acquired" sovereignty over islands made them
of less importance as factors to be taken into consideration for the purposes of
the delimitation. This approach was expressed in these words:
Eritrea also considers that the [mid-sea] islands come within the category of small uninhab-
ited islands of recently acquired sovereignty and near the median line that should be recog-
nized by the Tribunal to possess diminished maritime zones.
33. The Eritrean Prayer for Relief took this idea even further when it
said in article 4 that:
The outer borders of the maritime zones of the islands in which these shared rights exist
shall be defined as extending:
A. on the western side of the Red Sea, to the median line drawn between the two
coasts, which shall include the islands historically owned by either State prior to the decade
preceding commencement of this arbitration in accordance with article 121 of the United
Nations Convention on the Law of the Sea; and
B. on the eastern side of the Red Sea, as far as the twelve mile limit of Yemen's
territorial sea.
34. Continuing the same theme article 5 of the Prayer for Relief pro-
vided:
5. The waters beyond the shared area of the mid-sea islands shall be divided in accor-
dance with a median line drawn between the two coasts, which shall include the islands
historically owned by either State prior to the decade preceding commencement of this
Arbitration in accordance with article 121 of the United Nations Convention on the Law of
the Sea.
35. Eritrea felt, therefore, able to urge that "Eritrea possess historic title
to all waters to the west of the historic median line, drawn by reference to the
historically owned islands." This idea, it will be noted, yielded a rather differ-
ent historic median line from the one drawn between the mainland coasts.
36. Yemen's reply was that Yemen's title to the formerly disputed islands
was not created by the adjudication in the Award on Sovereignty, but that the
adjudication was rather a confirmation of an already existing title; and, that "in
arbitration the issue of title is determined both prospectively and retroactively".
These considerations led to some discussion of the effect of a critical date.
37. Yemen was also concerned that Eritrea's proposed joint resource
zones were founded upon a supposition that the sovereignty awarded to Yemen
in the First Stage was a sovereignty "only limited or conditional". This seems
 MARITIME DELIMITATION AWARD 343

to be partly a war of worlds. All sovereignty is "limited" by international law.

Eritrea can hardly be suggesting that Yemen's sovereignty over the islands is
"conditional" in the legal sense according to which failure to observe the con-
dition might act as a cesser of the sovereignty.
38. Eritrea, however, responded by pointing to paragraph 126 of the
Award on Sovereignty which speaks of the traditional fishing regime as hav-
ing, by historical consolidation, established rights for both Parties "as a sort of
'servitude internationale' falling short of territorial sovereignty". Other as-
pects of these arguments are discussed in chapter IV.

Proportionality
39. This factor was argued strenuously and ingeniously by both Parties.
Both relied upon the statement in the North Sea cases that a delimitation should
take into account "a reasonable degree of proportionality, which a delimitation
carried out in accordance with equitable principles ought to bring about be-
tween the extent of the continental shelf areas appertaining to the coastal State
and the length of its coast measured in the general direction of the coastline".3
Both were in agreement with the warning in the Anglo French Arbitration
case4 that this is a test of equitableness and not a method of delimitation, and
that what had to be avoided was a manifest disproportionality resulting from
the line selected. So there was little between the Parties as to principle but
there was strong disagreement about the measurement of the length of their
respective coasts and the significance of that measurement when it was made.
The measurement is a matter on which several views are possible when Eritrea's
coast extends also to be opposite to Yemen's neighbouring State, the Kingdom
of Saudi Arabia; with which the maritime boundary remains undelimited.
40. The Yemen position was that proportionality is a factor to be taken
into account in testing the equitableness of a delimitation already effected by
other means. In relation in particular to the line to be drawn in the central
sector, Yemen suggested that the relative lengths of the coast overall were not
significant because (i) in the restricted seas between the Yemen islands and the
Eritrean coast any modifications of the median line would involve the prin-
ciple of non-encroachment; (ii) further, in the central sector, given the general
configuration of the coasts, equal division alone guarantees an equitable re-
sult; (iii) equal division is reinforced by the principle of non-encroachment;
(iv) the relevant coasts for this delimitation are the Eritrean coast and the Yemen
islands; (v) State practice supported the median line; and (vi) proportionality
cannot be applied in the context of overlapping territorial sea.
41. The Eritrean reply to this was to question whether the Yemen claimed
line in the central sector really was the median line envisaged in article 15 of the
Convention; and Eritrea suggested that it was not so, because it ignored the low-
water line base points of the Eritrean islands of South West Rocks and the Haycocks.

3
1.C.J. Reports 1969, p. 57, para.101
4
18 ILM 60; 54 ILR 6.
344 ERITREA / YEMEN

42. It is not possible here to describe the many variations to be found in

the pleadings on the theme of the method of measurements to be employed, or
the discussions of the ambiguities of "oppositeness", although the Tribunal
has examined them all. Suffice it to say that whereas Yemen calculated that its
own claimed line neatly divided the sea areas into almost equal areas, which
according to Yemen's measurements of the length of the coast was the correct
proportion, Eritrea found, in a final choice of one of its several different meth-
ods of calculation, that its own historic median line between the mainland
coasts would produce respective areas favouring Eritrea by a proportion of 3
to 2, which again was said to reflect accurately the proportion of the lengths of
coast according to Eritrea's method of measuring them.
43. It should be mentioned that Eritrea was particularly concerned that,
in calculating the areas resulting from the delimitation, account should not be
taken of the internal waters within the Dahlaks or the bays along its coast,
including the Bay of Assab.

The northern and southern extremities of the boundary line

44. There also arose a question about where to stop the boundary at its
northern and southern ends, considering that in these areas it might prejudice
other boundary disputes with neighbouring countries. The Kingdom of Saudi
Arabia indeed had written to the Registrar of the Tribunal on 31 August 1997
pointing out that its boundaries with Yemen were disputed, reserving its posi-
tion, and suggesting that the Tribunal should restrict its decision to areas "that
do not extend north of the latitude of the most northern point on Jabal al-Tayr
island". Yemen for its part wished the determination to extend to the latitude
of 16°N, which is the limit of its so-called northern sector. Eritrea on the other
hand stated that it had "no objection" to the Saudi Arabia proposal.
45. At the southern end, the third States concerned have not made repre-
sentations to the Tribunal, but the matter will nevertheless have to be deter-
mined. Eritrea was not concerned here about the arrow with which Yemen
terminated its claimed line, as this arrow, according to Eritrea, pointed in such
a direction as to "slash" the main shipping channel and cause it to be in Yemen
territorial waters. Yemen had also used an arrow to terminate the northern end
of its line and there was some discussion and debate from both sides about the
propriety or otherwise of these arrows.
46. At the southern end of the line, as it approaches the Bab-al-Mandab,
there is the complication of the possible effect upon the course of the boundary
line of the Island of Perim. This question might clearly involve the views of
Djibouti. It follows that the Tribunal's line should stop short of the place where
any influence upon it of Perim Island would begin to take effect. The Tribunal
has taken into consideration these positions variously expressed and has reached
its own conclusions, as more fully detailed in chapter V.
 MARITIME DELIMITATION AWARD 345

The submissions of Yemen and the Prayer for Relief of Eritrea appear.
Submissions of Yemen
On the basis of the facts and legal considerations presented in Yemen's
pleadings; and
Rejecting all contrary submissions presented in Eritrea's "Prayer for Re-
lief, and
In view of the provisions of article 2 (3) of the Arbitration Agreement;
The Republic of Yemen, respectfully requests the Tribunal to adjudge and
declare:
1. That the maritime boundary between the Parties is a median line, every point of
which is equidistant from the relevant base points on the coasts of the Parties as identified
in chapters 8 through 10 of Yemen's Memorial, appropriate account being taken to the
islets and rocks comprising South West Rocks, the Haycocks and the Mohabbakahs;
2. That the course of the delimitation, including the coordinates of the turning points
on the boundary line established on the basis of the World Geodetic System 1984 (WGS
84), are those that appear in chapter 12 to Yemen's Memorial.

Eritrea's Prayer for Relief

(Paragraph 274, Memorial of the State of Eritrea)
Article 2, paragraph 3, of the Arbitration Agreement requires the Tribunal
to issue an award delimiting the maritime boundaries between the Parties in a
technically precise manner. In order that such precision shall be achieved, the
State of Eritrea respectfully requests the Tribunal to render an award provid-
ing as follows:
1. The Eritrean people's historic use of resources in the mid-sea islands includes fish-
ing, trading, shell and pearl diving, guano and mineral extraction, and all associated on
land including drying fish, drawing water, religious and burial practices, and building and
occupying shelters for sleep and refuge.
2. The right to such usage, to be shared with the Republic of Yemen, extends to all of
the land areas and maritime zones of the mid-sea islands;
3. The right to such usage shall be preserved intact in perpetuity; as it has existed in
the past, without interference through the imposition of new regulations, burdens, curtail-
ments or any other infringements or limitations of any kind whatsoever, except those agreed
upon by Eritrea and Yemen as expressed in a written agreement between them;
4. The outer borders of the maritime zones of the islands in which these shared rights
exist shall be defined as extending:
A. on the western side of the Red Sea, to the median line drawn between the two coasts,
which shall include the islands historically owned by either State prior to the decade
preceding commencement of this arbitration in accordance with article 121 of the
United Nations Convention on the Law of the Sea; and
B. on the eastern side of the Red Sea, as far as the twelve mile limit of Yemen's
territorial sea.
5. The waters beyond the shared area of the mid-sea islands shall be
divided in accordance with a median line drawn between two coasts, which
shall include the islands historically owned by either State prior to the decade
preceding commencement of this Arbitration in accordance with article 121 of
the United Nations Convention on the Law of the Sea;
346 ERITREA / YEMEN

6. The two Parties are directed to negotiate the modalities for shared usage
of the mid-sea islands and their waters in accordance with the following terms:
A. Immediately following Tribunal's rendering of an award in the second Phase, the
Parties shall commence negotiations, in good faith, with a view toward concluding
an agreement describing the ways in which nationals of both Parties may use the
resources of the mid-sea islands and their maritime zones, as those zones are de-
scribed in the Award of the Tribunal, and dealing a mechanism of binding dispute
resolution to settle any and all disputes arising out of the interpretation or applica-
tion of the agreement;
B. The Parties shall submit this agreement to the Tribunal for its review and approval
no later than six months after the date the Tribunal renders its award in the second
Phase;
C. The Tribunal shall determine whether the agreement is in accord with its award in
the second Phase, and in particular whether it faithfully preserves the traditional
rights of the two Parties to usage of the resources of the mid-sea islands;
D. If the Tribunal determines that the agreement is not satisfactory according to the
criteria described in the preceding paragraph, or if the Parties fail to submit an agree-
ment, the Tribunal shall issue an award that either describes such modalities or else
appoints the water between the two Parties equally. The Tribunal may request sub-
missions from the Parties on this point.
E. If the Tribunal finds that the agreement (or a revised agreement) is satisfactory,
according to the criteria set forth above, it shall communicate its approval to trie
Parties, endorse the agreement as its own award and further direct the Parties to
execute the agreement in the form of a binding treaty to be deposited with the Sec-
retary-General of the United Nations;
7. The Tribunal shall 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.

Chapter II. The General Question of Fishing in the Red Sea

47. This chapter will first deal with the evidence and arguments advanced
by the Parties concerning the general question of fishing in the Red Sea. It will
then set forth the Tribunal's conclusions on these arguments and evidence.

The evidence and arguments of the Parties

48. Each Party made much of fishing, including both the past history
and the present situation, and as related not only to its own nationals but also
the practices of the nationals of the other Party. The evidence advanced by the
Parties and the arguments made by them can essentially be broken down into
five subjects. These are: (1) fishing in general: (2) the location of fishing ar-
eas; (3) the economic dependency of the Parties on fishing; (4) consumption
offish by the populations of the Parties; and (5) the effect of fishing practices
on the lines of delimitation proposed by the Parties.
49. The arguments of each Party were advanced essentially in order to
demonstrate that the delimitation line proposed by that Party would not alter
the existing situation and historical practices, that it would not have a cata-
 MARITIME DELIMITATION AWARD 347

strophic effect on local fishermen or on the local or national economy of the

other Party or a negative effect on the regional diet of the population of the
other Party, and conversely, that the delimitation line proposed by the other
Party would indeed alter the existing situation and historical practice, would
have a catastrophic or at least a severely adverse effect on the local fishermen
or on the first Party's regional economy, and would also have a negative effect
on the diet of the population of the first Party.
50. These elements were introduced directly and indirectly by each side
against the general background of the "catastrophic" and "long usage" test
originated in the Anglo-Norwegian Fisheries Case of 1951—and as brought
forward in the provisions inter alia of article 7, paragraph 5 of the 1982 United
Nations Convention on the Law of the Sea.
51. They also found an echo in the "equitable solution" called for by
paragraph 1 of articles 74 and 83 of the Convention, it being assumed that no
"solution" could be equitable which would be inconsistent with long usage,
which would present a clear and present danger of a catastrophic result on the
local economy of one of the Parties, or which would fail to take into account
the need to minimize detrimental effects on fishing communities, and the eco-
nomic dislocation, of States whose nationals have habitually fished in the rel-
evant area.

Fishing in general
52. The position taken by Eritrea was as follows. The historical record
demonstrated that the Eritrean fishing industry was substantial before the civil
war in Ethiopia and had been, second only to Egypt, the most important re-
gional fishing economy. Since the end of the civil war and independence, seri-
ous efforts were underway to reestablish the Eritrean fishing economy. It was,
therefore, a mistake to consider that the Eritrean fisheries were—as Yemen
argued—to a large extent dependent on Eritrean freshwater fisheries; in fact
these have had no importance. On the other hand, the Yemen fishing industry
was substantially based on its Indian Ocean fisheries and did not rely signifi-
cantly on the Red Sea. Although Yemen's fishing industry in the Red Sea is
much less significant than Yemen has claimed, it is nonetheless well estab-
lished and in no even dependent for protection on the particular delimitation
line proposed by Yemen.
53. Yemen argued that Yemeni nationals have long dominated fishing
activities in the Red Sea; the Yemen traditional fishing activities—conducted
in small boats, whether sambouks or houris—had been of much greater sig-
nificance in the past than those of Eritrea, whose fishing activities had largely
been concentrated on fishing close inshore along the Eritrean coastline and in
and among the Dahlaks. Moreover, Hodeidah in Yemen was the most active
market for fisheries production from Eritrean and Yemeni fishermen alike.
348 ERITREA / YEMEN

Economic dependency on fishing

54. The position of Eritrea was that considerable efforts had been made
since the close of the war to reorganise and build up the Eritrean fishing indus-
try—including efforts sponsored by the UNDP and FAO—and that the pros-
pects for significant future development of the Eritrean fisheries were both
promising and important. Although Eritrea did not claim present economic
dependency on fishing, it did make the point that the existing fisheries prac-
tices of its nationals should not be restricted or curtailed by the delimitation to
be decided by the Tribunal. As to Yemen, Eritrea asserted not only that the
Yemen's Red Sea fisheries presence was far less important than Yemen had
claimed, but also that the most fish landed in Hodeidah were brought there by
Eritrean fishermen.
55. On the other hand, Yemen argued that its fishermen have always
depended on the Red Sea fisheries as their fishing grounds and that this fishing
activity had long constituted an important part of Yemen's overall national
economy and been a dominant part of the regional economy of the Tihama
region along the Red Sea coast. Yemen claimed that Eritrea had no basis for
arguing that it possessed any substantial dependency on fishing, fisheries, fish,
or fish consumption, and that most of Eritrea's concerns as manifested by docu-
mentary evidence submitted to the Tribunal in both Stages of the Arbitration
had concerned proposals and projects for the development of future fishing
activity and fisheries resources of Eritrea that did not now exist or were not
now utilised.

Location of fishing areas

56. The arguments of Eritrea were to the following effect: at present,
fishing in the Red Sea was by and large dominated by Eritrean artisanal fisher-
men who caught their fish around the Dahlaks, along the Eritrean coast, around
the Mohabbakahs, the Haycocks, and South West Rocks, and in the waters
around the Zuqar-Hanish group of "mid-sea islands". (As noted, Eritrea de-
nied that any part of its fish catch depended on inland Eritrean fisheries such
as in lakes and reservoirs.) As to Yemen, Eritrea claimed that Yemeni fisher-
men had hardly, if at all, relied on the deep-water fishing grounds to the west
of the mid-sea islands and around the Mohabbakahs, the Haycocks, and South
West Rocks; there was little evidence of any Yemeni national's activity west of
the Zuqar-Hanish group; and Yemen had failed to prove that a single gram of
fish consumed in Yemen was taken from those waters.
57. For its part, Yemen argued that its artisanal and traditional fisher-
men had long fished in the waters around Jabal al-Tayr and the Zubayr group,
in the waters around the Zuqar-Hanish group, and in the deep waters west of
Greater Hanish and around the Mohabbakahs, the Haycocks, and South West
Rocks. Supporting these assertions was evidence produced in the form of wit-
ness statements in the First Stage of the Arbitration in which individual Yemeni
fishermen indicated that they had fished in the waters in question for a long
time. As to the other Party, Yemen again asserted that Eritrea's fishing activi-
 MARITIME DELIMITATION AWARD 349

ties were confined to waters of the Dahlak archipelago and the inshore waters
surrounding the islands at issue in the First Stage of the Arbitration—includ-
ing the deep waters west of Greater Hanish and around the Mohabbakahs, the
Haycocks, and South West Rocks.

Consumption offish by the population

5 8. Eritrea argued that the Eritrean coastal population consumed far more
fish than Yemen claimed and that, in addition, efforts were taking place to
increase the popularity and availability of fresh fish for human consumption
by its general population. It further asserted that the Yemeni population's de-
pendence on fresh fish from the Red Sea as a food source had been greatly
exaggerated by Yemen's pleadings, and that the Yemeni population of the
Tihama—and a fortiori the population of Yemen as a whole—did not rely to
any significant extent on fresh fish as a food. For its part, Yemen maintained
that its population, particularly in the coastal areas such as the Tihama, con-
sumed substantial quantities of fish and that—by contrast—Eritrean fish con-
sumption was negligible.

Effect on lines of delimitation proposed by the Parties

59. The Eritrean position was that the Tribunal's indication of a line of
delimitation such as the "historic median line" suggested by Eritrea's would
respect the historic practice of the Parties, would not displace or adversely
affect Yemen's fishing activity, and would be an equitable result for both Par-
ties. In Eritrea's view, however, the Yemen proposed "median line" would
deprive Eritrean fishermen of valuable fishery areas east of the mid-sea is-
lands, and would award to Yemen areas to the west of the mid-sea islands and
around the Mohabbakahs, the Haycocks, and South West Rocks—where
Eritrean fishermen had long been plying their trade and where Yemeni nation-
als had never engaged in substantial fisheries activity. To that extent Eritrea
argued that the proposed Yemen delimitation line would be inequitable and
would deprive Eritrean fishermen of an important resource.
60. On the other side, Yemen maintained that the median line proposed
by it would correctly reflect historical practices, would not give Yemen any-
thing it did not have before, would respect existing rights, would not "penalise"
existing or past Eritrean fishing activity, and would constitute an equitable
result. As far as the Eritrean proposed "historic median line" was concerned, it
would encroach on Yemen's traditional fishing grounds without justification,
would deprive Yemeni fishermen of deep water fishing grounds without justi-
fication, would deprive Yemeni fishermen of deep water fisheries west of the
mid-sea islands, and would give a corresponding windfall to Eritrea.
350 ERITREA / YEMEN

The Tribunal s Conclusions on the Evidence

61. The purposes of the arguments and evidence of the Parties were sev-
eral, but were essentially directed to establishing that the delimitation advanced
by each Party would respect existing historical practices, would not have a
catastrophic effect on local fishermen or population, would not have a gener-
ally negative effect on the economy (or future plans) of the other Party, and
would not have a deleterious effect on the diet and health of the population of
the other Party. By the same token, each Party asserted or implied that the line
of delimitation advanced by the other would have precisely the converse ef-
fect. The evidence advanced by the Parties has to a very large extent been
contradictory and confusing.
On the basis of the arguments and evidence advanced before it the Tribu-
nal reaches the following conclusions.

As to fishing in general
62. Fishing in general is an important activity for both sides of the Red
Sea coast, this was recognized in the Award on Sovereignty of the Tribunal. It
is not necessary and probably misleading to seek to determine the precise ex-
tent of its importance at any particular time, but the plain fact appear to be that
- as the Tribunal stated in paragraph 526 of its Award on Sovereignty—"the
traditional fishing regime in the region . . . .has operated, as the evidence pre-
sented to the Tribunal amply testifies, around the Hanish and Zuqar Islands
and the island of Jabal al-Tayr and the Zubayr group".
63. Moreover, the whole point of the Tribunal's holding in paragraph vi
of Dispositif 'in the Award on Sovereignty—that this traditional fishing regime
shall be perpetuated so as to include "free access and enjoyment for the fisher-
men of both Eritrea and Yemen"—is that such traditional fishing activity has
already been adjudged by the Tribunal to be important to each Party and to
their nationals on both sides of the Red Sea. It thus suffices to say that fishing,
fishermen, and fisheries are, and remain, of importance to each Party in the
present case. Precisely because of this significance of paragraph 526 of the
Award on Sovereignty and paragraph vi of its Dispositif, the fishing practices
of the Parties from time to time are not germane to the task of arriving at a line
of delimitation.

As to economic dependency on fishing

64. 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. The evidence before
the Tribunal suggests that fishing activity and income appear to form an im-
portant part of Yemen's economic activity—particularly of the Tihama region—
and that revitalisation and development of the Eritrean fishing industry is a
priority objective of the Government of Eritrea and has received significant
attention since Eritrean independence.
 MARITIME DELIMITATION AWARD 351

As to location of fishing areas

65. The evidence advanced in both Stages of the Arbitration included
evidence that many fishermen from Eritrea tended largely to fish in and around
the Dahlak archipelago and on inshore waters along the Eritrean coastline, but
it also appears that some Eritrean fishermen used the waters in and around the
Hanish and Zuqar Islands as well as the deep waters to the west of the mid-sea
islands and around the Mohabbakahs, the Haycocks, and South West Rocks.
This conclusion was adumbrated by the Tribunal's concern for maintenance of
the traditional fishing regime "in the region" as a whole, "including free ac-
cess and enjoyment for the fishermen of both Eritrea and Yemen" (Award on
Sovereignty, Dispositif, paragraph 527, subparagraph vi).
66. There is abundant historical data indicating that fishermen from both
the eastern and western coasts of the Red Sea freely undertook activities, in-
cluding fishing and selling their catch on the local markets, regardless of their
national political affiliation or their place of habitual domicile.5
67. This information concerning the social and economic conditions af-
fecting the lives of the people on both sides of the Red Sea also reflects deeply-
rooted and common social and legal traditions that had prevailed for centuries
among these populations, each of which was under the direct or indirect rule
of the Ottoman Empire until the latter part of the nineteenth century.
68. The evidence before the Tribunal further appears to establish that
over the years Yemeni fishermen have operated as far north as the Dahlak
archipelago and Jabal al-Tayr and the Zubayr group, and as far west as the
Mohabbakahs, the Haycocks, and South West Rocks. Again, this conclusion is
implicit in the Tribunal's concern for maintenance of the traditional fishing
regime "in the region" as a whole.
69. On a subject not unrelated to fishing areas, it should be noted that
the evidence is quite clear that Eritrean fishermen as well as Yemeni also ap-
pear to have enjoyed free and open access to the major fish market at Hodeidah
on the Yemen side of the Red Sea without impediment by reason of their na-
tionality. (This element was again taken into account by the Tribunal in its
Award on Sovereignty, Dispositif, paragraph 527, subparagraph vi.)

As to consumption offish by the population

70. The evidence concerning fish consumption advanced by each Party
was presumably aimed at establishing that the Tribunal's adoption of the line
of delimitation proposed by the other Party would constitute a serious dietary
or health threat to the population of the first Party. However, the evidence on
this matter is conflicting and uncertain. It is difficult if not impossible to draw
any generalized conclusions from the welter of alleged facts advanced by the
Parties in this connection.

5
See footnotes 9 and 11 to paragraphs 121 and 128 respectively of the Award on Sovereignty.
352 ERITREA / YEMEN

71. The Tribunal can readily conclude, without having to weigh intan-
gible and elusive points of proof or without having to indulge in nice calcula-
tions of nutritional theory, that fish as a present and future potential resource is
important for the general and local populations of each Party on each side of
the Red Sea. The Tribunal can also conclude, as a matter of common sense and
judicial notice, that interest in and development of fish as a food source is an
important and meritorious objective. Based on these two conclusions, how-
ever, the Tribunal can find no significant reason on these grounds for accept-
ing—or rejecting—the arguments of either Party as to the line of delimitation
proposed by itself or by the other Party.

Concerning the effect on lines of delimitation proposed by the Parties

72. Based on the foregoing, the Tribunal finds no significant reason on
any other grounds concerning fishing - whether related to the historical prac-
tice of fishing in general, to matters of asserted economic dependency on fish-
ing, to the location of fishing grounds, or to the patterns of fish consumption
by the populations - for accepting, or rejecting, the arguments of either Party
on the line of delimitation proposed by itself or by the other Party. Neither
Party has succeeded in demonstrating that the line of delimitation proposed by
the other would produce a catastrophic or inequitable effect on the fishing
activity of its nationals or detrimental effects on fishing communities and eco-
nomic dislocation of its nationals.6
73. For these reasons, it is not possible for the Tribunal to accept or
reject the line of delimitation proposed by either Party on fisheries grounds.
Nor can the Tribunal find any relevant effect on the legal reason supporting its
own selection of a delimitation line arising from its consideration of the gen-
eral past fishing practices of either Party or the potential deprivation of fishing
areas or access to fishing resources, or arising from nutritional or other grounds.

74. For the above reasons, the evidence and arguments by the Parties in
the matter of fishing and fisheries could have no significant effect on the
Tribunal's determination of the delimitation that would be appropriate under
international law in order to produce an equitable solution between the Parties.

6
Cf. article 70, paragraph 5, of the United Nations Convention on the Law of the Sea:
"Developed geographically disadvantaged States shall, under the provision of this article, be
entitled to participate in the exploitation of living resources only in the exclusive economic zones
of developed coastal States of the same sub-region or region having regard to the extent to which
the coastal State, in giving access to other States to the living resources of its exclusive economic
zone, has taken into account the need to minimize detrimental effects on fishing communities
and economic dislocation in States whose nationals have habitually fished in the zone."
 MARITIME DELIMITATION AWARD 353

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 con-
cessions 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 con-
cession 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 emphasized that not only
were some of its petroleum contracts of a geographical extent that encom-
passed 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 to-
gether with the pattern of Ethiopian concessions, confirmed Yemen's sover-
eign 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 evi-
dence of title but, at most, a mere claim. Such arrangements lacked probative
force unless activities in pursuance of them took place. Nevertheless Ertirea
countered Yemen's argument by introducing evidence of a concession con-
cluded by Ethiopia which covered part or all of Greater and Lesser Hanish
Islands. Neither Eritrean nor Yemen attached importance to the fact that a num-
ber 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 em-
phasis 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
354 ERITREA / YEMEN

Eritrea and Yemen. Eritrea stressed that, in several petroleum contracts con-
cluded 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 persua-
sive 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 emphasized 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 Sover-
eignty, paragraph 412.)
81. It should be noted that, in the course of making its holdings on sov-
ereignty over the disputed islands, the Tribunal held that the petroleum con-
tracts 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 lights of the dis-
positive 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 bound-
aries of the Parties, the Tribunal is required in this Second Stage of the pro-
ceedings 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 examina-
tion of petroleum arrangements does show, as just indicated, repeated refer-
ence 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 refer-
ences. But that is not the same as saying that the maritime boundary now to be
 MARITIME DELIMITATION AWARD 355

drawn should be drawn throughout its length entirely without regard to the
islands whose sovereignty has been determined; nor is it to say that the bound-
ary should track Eritrea's claimed "historic median line". The concession lines
were drawn without regard to uninhabited, volcanic islands when their sover-
eignty 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 ac-
corded to the islands, certainly in respect of their territorial waters. What weight,
and why and how, are questions addressed.
84. In respect of petroleum arrangements and a maritime boundary be-
tween 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 cases7, 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 Wil-
liam T. Onorato8 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 practice9, as does a more recent study by
Masahiro Miyoshi, The Joint Development of Offshore Oil and Gas in Rela-
tion to the Maritime Boundary Delimitations, International Boundaries Re-
search 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 mod-
ern, 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 the Eritrea and Yemen, it is possible that either or
both may be.

7
1.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.P. 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.
356 ERITREA / YEMEN

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 para-
graph 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 bound-
ary 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 its immediate vicinity. Moreover, the historical connection 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 consid-
eration to the shared or joint or unitised exploitation of any such resources.

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 Arbitra-
tion. 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 findings 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 the 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
 MARITIME DELIMITATION AWARD 357

and 1998 Agreements might prove to be useful vehicles for that exercise in sov-
ereignty, there was no question of Yemen's sovereignty having been made con-
ditional 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 irregu-
lar. 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 Sover-
eignty 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 solution reflected deeply rooted com-
mon legal traditions which prevailed during several centuries among the popula-
tions of both coasts of the Red Sea, which were until the latter part of the nine-
teenth 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 rela-
tions. 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 rela-
tions 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 "con-
ditional" 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 consoli-
dation and support of positive international law rules in their progressive de-
velopment towards the goal of achieving justice and promoting the human
dignity of all mankind."12

11
Khadduri, Encyclopedia of Public International Law, volume 6, page 27.
12
Encyclopedia of Public International Law, volume 7, page 229.
358 ERITREA / YEMEN

95. The Tribunal's Award on Sovereignty was not based on any assess-
ment of volume, absolute or relative, of Yemeni or Eritrean fishing in the re-
gion of the islands. What was relevant was that fishermen from both of these
nations had, from time immemorial, used these islands for fishing and activi-
ties 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 re-
cently. 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 tra-
dition entitled to the respect and protection of the law.
96. It is clear that the Arbitration Agreement does not authorize the Tri-
bunal 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 mari-
time 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 otherwise in a position to
respond to the submissions made by Yemen as well as by Eritrea in this Sec-
ond 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
"prefigures" 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 seeks
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 Tribu-
 MARITIME DELIMITATION AWARD 359

nal, nor can affect or prejudice the decision of the Arbitral Tribunal or the consideration and
grounds, on which those decision are based.
101. As the Tribunal has indicated in its Award on Sovereignty, the tra-
ditional 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 nation-
als, 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 repre-
sentation (where the representing State so chose) in a world in which indi-
vidual 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 ad
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 un-
derstood 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 license 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 Tri-
bunal has received no evidence that the extraction of guano, or mineral extrac-
tion more generally, forms part of the traditional fishing regime that has ex-
isted 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 Re-
3 60 ERITREA / YEMEN

port 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 (9-12m) 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
106. However, the term "artisanal" is not to be understood as applying in
the future only to a certain type of fishing exactly as it is practised today. "Artisanal
fishing" is used in contrast to "industrial fishing". It does not exclude improve-
ments in powering the small boats, in the techniques of navigation, communica-
tion or in the techniques of fishing; but the traditional regime of fishing does not
extend to large-scale commercial or industrial fishing nor to fishing by nationals
of third States in the Red Sea, whether small-scale or industrial.
107. In order that the entitlements be real and not merely theoretical, the
traditional regime has also recognized 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 license 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 offish marketing on each coast. Eritrea artisanal fishermen 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 re-
course 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 en-
vironmental considerations may in the future require regulation, any adminis-
trative measure impacting upon these traditional rights shall be taken by Yemen
only with the agreement of Eritrea and, so far as access through Eritrean wa-
ters to Eritrea ports is concerned, vice versa.

13
FAO 24/95 ADB-ERI.4, 27 February 1995, at paragraphs 2.19 and 3.44.
14
Ibid, paragraph 2.20.
 MARITIME DELIMITATION AWARD 361

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 Conven-
tion 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.
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) Yemen informed the Tribunal that it was
"fully committed to apply and implement the Award in all its aspects, includ-
ing 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 Memo-
randum 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.

Chapter V. The Delimitation of the International Boundary

The Tribunal s comments on the arguments of the Parties

113. Since, as it will appear below, the international maritime boundary
line decided upon by the Tribunal differs in some respects from both the one
claimed by Yemen and the one, or the ones, claimed by Eritrea, it is right first
362 ERITREA / YEMEN

to explain briefly where and why the boundaries claimed by the Parties have
not been endorsed in this Award. This will now be done taking generally first
the Yemen claim and then the Eritrean claim, as this was the order in which the
Parties agreed to argue in the Oral Proceedings of this Second Stage of this
Arbitration.
114. Yemen claimed one single international boundary line for all pur-
poses. The single line it claimed was described as a "median line", because
Yemen treated the westward-facing coasts of all of its islands as relevant coasts
for purposes of the delimitation. For the Eritrean coast, Yemen used base points
on the mainland coast of Eritrea and thus ignored the Eritrean mid-sea islands
for the purpose of delimitation of the boundary. Yemen also claimed that its
line can properly be described as a coastal median line. For Yemen the rel-
evant coasts included not only the islands over which it has been awarded
sovereignty, but also of certain among the Dahlak islands; thus Yemen, like
Eritrea, was prepared to treat the Dahlaks as being part of the Eritrean coast,
and so used base points on the islets called "the coastal median line", it meant
the median line between what in the Eritrean view represented the mainland
coasts of both Parties. At the same time Eritrea claimed a historic median line
using only its own islands as base points, and thus ignoring those of Yemen.
These variations produced different claimed median lines. See Eritrea's maps
3 and 7, and Yemen's maps 12.1. See also charts 1 and 2 showing the base
points as provided by Eritrea.
115. It is in what Yemen called the northern sector of the boundary line
where this difference caused the greatest divergence, actually of several nauti-
cal miles, between the lines claimed by the Parties because of the question of
how much "effect" on the line should be given to the Yemen northern islands,
namely the small sole mid-sea island of Jabal al-Tayr and the mid-sea groups
of islands and islets called Zubayr. Yemen allowed them full effect on the line;
Eritrea's line allowed them none.
116. In considering this marked divergence of view it is well to recollect
that the boundary line in its northern stretch—including indeed both the oppos-
ing claimed lines—are boundaries between the Yemen and the Eritrean conti-
nental shelves and EEZ; and are therefore governed by articles 74 and 83 of the
1982 Convention. In any event there has to be room for differences of opinion
about the interpretation of articles which, in a last minute endeavour at the Third
United Nations Conference on the Law of the Sea to get agreement on a very
controversial matter, were consciously designed to decide as little as possible. It
is clear, however, that both articles envisage an equitable result.
117. This requirement of an equitable result directly raises the question of
the effect to be allowed to mid-sea islands which, by virtue of their mid-sea
position, and if allowed full effect, can be obviously produce a disproportionate
effect—or indeed a reasonable and proportionate effect—all depending on their
size, importance and like consideration in the general geographical context.
118. Yemen understood this problem very clearly. Its argument was that,
although these mid-sea islands and islets are small and uninhabitable (these
questions figured prominently in the First Stage of this Arbitration), those con-
 MARITIME DELIMITATION AWARD 363

siderations were nicely matched, or "balanced", by the complementary small-

ness and lack of importance of the outer islets of the Dahlak group which were
the base points on the Eritrean side of the boundary. However, the situation of
these Dahlak islets is very different from that of the mid-sea islands. The Dahlak
outer islets are part of a much larger group of islands which both Parties were
agreed are an integral part of the Eritrean mainland coast. Consequently, be-
tween these islets and the mainland, the sea is Eritrean internal waters. The
Tribunal had therefore, as will be seen below, no difficulty in rejecting this
"balancing" argument of Yemen, as it does not compare like with like.
119. In its assessment of the equities of the "effect" to be given to these
northern islands and islets, the Tribunal decided not to accept the Yemen plea
that they be allowed a full, or at least some, effect on the median line. This
decision was confirmed by the result that, in any event, these mid-sea islands
would enjoy an entire territorial sea of the normal 12 miles—even on their
western side.
120. One practical result of the Yemen balancing arguments regarding
the northern mid-sea islands is that Yemen did not argue in the alternative
about possible base points on the islands fringing the Yemen mainland coast—
which islands could much more cogently be said to balance the Dahlaks.
121. The Eritrean argument concerning this northern stretch of the line
was relatively simple: it argued strongly against the Yemen balancing sugges-
tions, and here asked for the mainland coastal median line. At first, it was not
clear what were the base points used by Eritrea. However, in answer to a ques-
tion from the Tribunal, Eritrea did produce two complete sets of base points
for the Eritrean coast and also a set for the Yemen coast, (see charts 1 and 2).
122. The latitude of 14°25 'N—where the Yemen northern sector becomes
the Yemen central sector—results from another factor on which the Parties
differ. This line of latitude is not chosen at random by Yemen. It is the point at
which the Yemen median line is no longer controlled by Zubayr as a base point
but enters under the control of the north-western point of the island of Zuqar.
The Eritrean lines, for indeed there are two of them, continue southwards,
ignoring the possible effect of the Zuqar-Hanish group. The "historic" median
line (map 3) cuts through Zuqar, and the coastal median line cuts through the
island of Greater Hanish (map 7).
123. The Tribunal did not find it easy to resolve this divergence of
method, but finally the Tribunal decided to continue its lines as a mainland
coastal line until the presence of Yemen's Zuqar-Hanish group compels a di-
version westwards. (The Tribunal's line, as will appear, is neither the Yemen
line nor yet the Eritrean line.)
124. In support of its enclave solution for certain of the Eritrean islands,
Yemen entered upon an assessment of the relative size and importance of the
Eritrean islands generally, as if they were islands whose influence on the bound-
ary line falls to be assessed, not as being possibly in an area of overlapping
territorial sea, but as if they were to be assessed solely by reference to articles
74 and 83 of the Convention. This approach enabled Yemen to argue that these
Eritrean "navigational hazards" were insignificant even when compared with
364 ERITREA / YEMEN

the Yemen Zuqar—Hanish group; and that accordingly the South West Rocks
and the Haycocks ought to be enclaved and the boundary line taken onto the
Eritrean side of them, thus leaving the two enclaves isolated on the Yemen
side of the boundary line.
125. The Tribunal, as will appear below, has had little difficulty in pre-
ferring the Eritrean argument, which brings into play article 15. This solution
also has the advantage of avoiding the need for awkward enclaves in the vicin-
ity of a major international shipping route.
126. The Yemen "southern sector" began at the line of latitude 13°25'N.
Again, this is not an arbitrary choice. It was the point at which Yemen's me-
dian line, which had hitherto been controlled by Suyul Hanish, first came un-
der the control of the nearest point on the mainland coast of Yemen. The Yemen
line then continued throughout the southern sector as a coastal median line.
127. In the main part of this southern sector, therefore, there were only
differences of detail between the Yemen and Eritrean lines because there were
no mid-sea islands to complicate the problem. There was indeed the large com-
plication of the Bay of Assab and of its off-lying islands, but here Yemen rightly
assumed that this bay is integral to the Eritrean coast and is internal waters,
and that the controlling base points would therefore be on the low-water line
of the outer coastal islands.
128. In the course of its passage from the overlapping territorial seas
areas to the relatively simple stretch between parallel coasts of the southern
sector, the Yemen line was again a median line controlled by the Yemen is-
lands as well as by the Eritrean mainland coast. However, the line preferred by
the Tribunal, mindful of the simplicity desirable in the neighbourhood of a
main shipping lane, is one that would mark this passage directly and indepen-
dently of the Yemen and Eritrean islands. It is no easy to trace the Eritrean
median line in this area because of the complication of its box system for the
traditional fishing areas. Indeed, this review of the Parties' arguments and the
Tribunal's view of them does somewhat scant justice to the complicated and
carefully researched Eritrean scheme for delimitation of the traditional fishing
areas, but this matter has been dealt with in Chapter IV.
This chapter will now turn to describe the boundary line determined by
the Tribunal.

The boundary line determined by the Tribunal

129. The task of the Tribunal in the present Stage of this Arbitration is
defined by article 2 of the Arbitration Agreement, and is to "result in an award
delimiting the maritime boundaries." The term "boundaries" is here used, it is
reasonable to assume, in its normal and ordinary meaning of denoting an inter-
national maritime boundary between the two State Parties to the Arbitration;
and not in the sense of what is usually called a maritime "limit", such as the
 MARITIME DELIMITATION AWARD 365

outer limit of a territorial sea or a contiguous zone; although there might be

places where these limits happen to coincide with or be modified by the inter-
national boundary.
130. Article 2 provides that, in determining the maritime boundaries, the
Tribunal is to take "into account the opinion it will have formed on questions of
territorial sovereignty, the United Nations Convention on the Law of the Sea,
and any other pertinent factor." The reasons for taking account of the Award on
Sovereignty are clear enough and both Parties have agreed in their pleadings
that, in the Second Stage, there can be no question of attempting to reopen the
decisions made in the First Award. The requirement to take into account the
United Nations Convention on the Law of the Sea of 1982 is important because
Eritrea has not become a party to that Convention but has in the Arbitration
Agreement thus accepted the application of provisions of the Convention that
are found to be relevant to the present stage. There is no reference in the Arbitra-
tion Agreement to the customary law of the sea, but many of the relevant ele-
ments of customary law are incorporated in the provisions of the Convention.
"Any other pertinent factors" is a broad concept, and doubtless included various
factors that are generally recognized as being relevant to the process of delimita-
tion such as proportionality, non-encroachment, the presence of islands, and any
other factors that might affect the equities of the particular situation.
131. It is a generally accepted view, as is evidenced in both the writings
of commentators and in the jurisprudence, that between coasts that are oppo-
site to each other the median or equidistance line normally provides an equi-
table boundary in accordance with the requirements of the Convention, and in
particular those of its articles 74 and 83 which respectively provide for the
equitable delimitation of the EEZ and of the continental shelf between States
with opposite or adjacent coasts. Indeed both Parties to the present case have
claimed a boundary constructed on the equidistance method, although based
on different points of departure and resulting in very different lines.
132. The Tribunal has decided, after careful consideration of all the co-
gent and skilful arguments put before them by both Parties, that the interna-
tional boundary shall be a single all-purpose boundary which is a median line
and that it should, as far as practicable, be a median line between the opposite
mainland coastlines. This solution is not only in accord with practice and pre-
cedent in the like situations but is also one that is already familiar to both
Parties. As the Tribunal had occasion to observe in its Award on Sovereignty
(paragraph 438), the offshore petroleum contracts entered into by Yemen, and
by Ethiopia and Eritrea, "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." In the present stage the
Tribunal has to determine a boundary not merely for the purposes of petro-
leum concessions and agreements, but a single international boundary for all
purposes. For such a boundary the presence of island requires careful consid-
eration of their purposes effect upon the boundary line; and this is done in the
explanation which follows. Even so it will be found that the final solution is
that the international maritime boundary line remains for the greater part a
median line between the mainland coasts of the Parties.
366 ERITREA / YEMEN

133. The median line is in any event some sort of coastal line by its very
definition, for it is defined as a line "every point of which is equidistant from the
nearest points on the baselines from which the breadth of the territorial seas of
the two States is measured" (article 15 of the Convention), although the same
definition will be found in many maritime boundary treaties and also in expert
writings. The "normal" baseline of the territorial sea as stated in article 5 of the
Convention—and this again accords with long practice and with the well estab-
lished customary rule of the law of the sea—is "the low-water line along the
coast as marked on large scale charts officially recognized by the coastal State."
There do arise some questions about what is to be regarded as the "coast" for
these purposes, especially where islands are involved; and these questions, on
which the Parties differ markedly, require decisions by the Tribunal.
134. First, it is necessary to deal with a complication that arises in the
present case concerning this general rule of measuring from the low-water line.
The domestic legislative definition of the territorial sea of Eritrea is still the
1953 enactment by Ethiopia which fixed Ethiopia's territorial waters as "extend-
ing from the extremity of the seaboard at maximum annual high tide." This was
done even though an Ethiopian customs enactment of 1952 had provided for a
customs zone measured form the "the mean low-water mark at neap tides." The
Yemen claim was that, in view of this 1953 legislation, the Tribunal should mea-
sure the median line boundary from the high-water line instead of the low-water
line along the Eritrean coast (and indeed Yemen's median line does).
135. In this matter the Tribunal prefers the Eritrean argument that the
use of the low-water line is laid down by a general international rule in the
Convention's article 5, and that both Parties have agreed that the Tribunal is to
take into account the provisions of the Convention in deciding the present
case. The median line boundary will, therefore, be measured from the low-
water line, shown on the officially recognized charts for both Eritrea and Yemen,
in accordance with the provision in article 5 of the Convention. The officially
recognized charts used by the Tribunal are BA (British Admiralty) charts; those
charts use as a chart datum approximately the level of the Lowest Astronomi-
cal Tide. These charts were among those relied on by the Parties in the present
Stage of the Proceedings.

Northern and southern extremities of the boundary line

136. There is also a problem relating to both the northern and the south-
ern extremities of the international boundary line. The Tribunal has the com-
petence and the authority according to the Arbitration Agreement to decide the
maritime boundary between the two Parties. But it has neither competence nor
authority to decide on any of the boundaries between either of the two Parties
and neighbouring States. It will therefore be necessary to terminate either end
of the boundary line in such a way as to avoid trespassing upon an area where
other claims might fall to be considered. It is, however, clearly necessary to
consider the choices of the base points controlling the median line first, and
then to look at the cautionary termination matter when the line to be thus ter-
minated at its northern and southern ends has been produced.
 MARITIME DELIMITATION AWARD 367

137. The construction of the international single boundary decided upon by

the Tribunal, working generally from the north to the south, will now be described.

The northernmost stretch of the boundary line

138. In this stretch, where the two lines claimed respectively by Eritrea
and Yemen differed so markedly in their courses, there were three main prob-
lems: what to do about the Dahlak islands on the Eritrean side; what to do about
the lone mid-sea island of Jabal al-Tayr and the mid-sea island group of Jabal al-
Zubayr; and what to do about the cluster of islands and rocks off the northern
coast of Yemen. These three question will now be considered in that order.

The Dahlaks
139. The tightly knit group of islands and islet, or "carpet" of islands
and islets as Eritrea preferred to call it, of which the larger islands have a
considerable population, is a typical example of a group of islands that forms
an integral part of the general coastal configuration. It seems in practice al-
ways to have been treated as such. It follows that the waters inside the island
system will be internal or national waters and that the baseline of the territorial
sea will be found somewhere at the external fringe of the island system.
140. A problem that arises here, however, is that the Dahlak fringe of
coastal islands is also suitable for the application not of the "normal baseline"
of the territorial sea, but of the "straight baselines" described in article 7 of the
Convention (as there distinguished from the "normal" baseline described in
article 5). The straight baseline system is there described as "the method of
straight baselines joining appropriate points". Yemen appears to have little
difficulty in agreeing that the Dahlaks form an appropriate situation for the
establishment of a straight baseline system.
141. Eritrea for its part claimed that it has such a system already estab-
lished. In answer to a question from a Tribunal, Eritrea did give the coordi-
nates for the base points on the Eritrea side for both versions of its claimed
"median line". But these base points in the region of the Dahlaks appear to
have been located on a line touching two or perhaps three of the outer islands
and the Negileh Rock (for which see paragraphs 146-147) and then continuing
in a more or less straight line out to sea in a south-easterly direction. This
scheme is probably part of the "quadrilateral" straight baseline system to which
Eritrea referred in argument.
142. The reality or validity or definition of this somewhat unusual straight
baseline system said to be existing for the Dahlaks is hardly a matter that the
Tribunal is called upon to decide. The Tribunal does however have to decide
on the base points which are to control the course of the international bound-
ary line. In plotting its own claimed median line boundary, Yemen has em-
ployed 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.
368 ERITREA / YEMEN

143. Eritrea, however, has in particular suggested a feature called the

"Negileh Rock" which lies further out than these larger but still small and
uninhabited islets. Yemen objected to the use of this feature by reason of the
fact that on the BA chart 171 this feature is shown to be a reef and moreover
one which appears not to be out of the question as a base point, because article
6 of the Convention (which is headed "Reefs") provides:
In the case of islands situated on atolls or of islands having fringing reefs, the baseline for
measuring the breadth of the territorial sea is the seaward low-water line of the reef, as
shown by the appropriate symbol on charts officially recognized by the coastal State.
144. This difficulty about the Negileh Rock is reinforced if there is in-
deed a straight baseline system in existence for the Dahlaks, for paragraph 4
of article 7 provides:
4. Straight baselines shall not be drawn to and from low-tide elevations, unless light-
houses of similar installations which are permanently above sea level have been built on
them or in instances where the drawing of straight baselines to and from such elevations
has received general international recognition.
145. Although Eritrea is not a party to the Convention; nevertheless it
has agreed to its application in the present case; and since Eritrea claims the
existence of a straight baseline system, that claim seems to foreclose any right
to employ a reef that is not proud of the water at low-tide as a baseline of the
territorial sea.
146. As will appear more particularly below, the Tribunal has decided
that the western base points to be employed on this part of the Eritrean coast
shall be on the low-water line of certain of the outer Dahlak islets, Mojeidi and
an unnamed islet east of Dahret Segala.

Next, it is necessary to decide on the treatment of the mid-sea islands of

al-Tayr and Zubayr, for on this decision depends on the question of whether it
will be necessary to consider base points on the coast of Yemen.

Jabal al-Tayr and the Zubayr Group

141. Yemen employed both the small single island of al-Tayr and the
group of islands called al-Zubayr as controlling base points, so that the Yemen-
claimed median line boundary is "median" only in the area of sea west of these
islands. These islands do not constitute a part of Yemen's mainland coast.
Moreover, their barren and inhospitable nature and their position well out to
sea, which have already been described in the Award on Sovereignty, mean
that they should not be taken into consideration in computing the boundary-
line between Yemen and Eritrea.
148. For these reasons, the Tribunal has decided that both the single
island of al-Tayr and the island group of al-Zubayr should have no effect upon
the median line international boundary.
 MARITIME DELIMITATION AWARD 369

Base points on the coast of Yemen

149. Since Jabal al-Tayr and the Zubayr group are not to influence the
drawing of the median line boundary, it is necessary to decide upon the base
points to be used for this part of the coast of Yemen. For here again there is, if
not a carpet, at least a considerable scattering of island and islets which are the
beginning of a large area of coastal islands and reef which, extending north-
ward, ultimately form a part of a large island cluster or system off the coast of
Saudi Arabia.
150. There is also the relatively large, inhabited and important island of
Kamaran off this part of the Yemen coast. This island, together with the large
promontory of the mainland to the south of it, forms an important bay and
there can be no doubt that these features are integral to the coast of Yemen and
part of it and should therefore control the median line. One significant control-
ling base point is therefore on the westernmost extremity of Kamaran. It seems
reasonable also to use as base points the very small islands immediately south
of Kamaran and west of the promontory headland mentioned above.
151. The question remains as to the islands to the north of Kamaran.
The relatively large islet of Tiqfash, and the smaller islands of Kutama and
Uqban further west, all appear to be part of an intricate system of islands, islets
and reefs which guard this part of the coast. This is indeed, in the view of the
Tribunal, a "fringe system" of the kind contemplated by article 7 of the Con-
vention, even though Yemen does not appear to have claimed it a such. Indeed
the Tribunal does not have the advantage of any views of Yemen about this
part of its coast because it chose to deploy its arguments differently. It is how-
ever the view of the Tribunal that it is right to use as median line base points
not only Kamaran and its satellite islets which appear in the Yemen map 12.1,
but also the islets to the northwest named Uqban and Kutama.
152. The above decision having been made, it is now possible to com-
pute and plot the northern stretch of the boundary line between turning points
1 and 13 (the list of the coordinates of the turning points is given below; see
also the illustrative charts 3 and 4). For this entire part of the line, the bound-
ary should be a mainland-coastal median, or equidistance, line.
153. At turning point number 13, however, a simple mainland/coastal
median line approaches the area of possible influence of the islands of the
Zuqar-Hanish group, and clearly some decisions have to be made as to how to
deal with this situation.

The middle stretch of the boundary line

154. It will be convenient for obvious reasons if the Tribunal first de-
cides the question of the boundary line in the narrow seas between the south-
west extremity of the Hanish group on the one hand and the Eritrean islands of
the Mohabbakahs, High Island, the Haycocks and the South West Rocks on
the other. In this part of the boundary there is added to the boundary problem
of delimiting continental shelves and EEZ the question of delimiting an area
of overlapping territorial seas. This comes about because Zuqar and Hanish,
370 ERITREA / YEMEN

attributed to the sovereignty of Yemen, both generate territorial seas which

overlap with those generated by the Haycocks and South West Rocks, attrib-
uted to the sovereignty of Eritrea. It would appear from Yemen map 12.1 that
Yemen assumed that Eritrea is entitled only to a strictly 12 mile territorial sea
extending from the Eritrean base points chosen by Yemen along the high-wa-
ter line on the Eritrean coast; the outcome would be, according to Yemen, that
the Haycocks and South West Rocks are thus left isolated outside and beyond
the Eritrean territorial sea proper.
155. This proposition is questionable, quite apart from the obvious im-
practicality of establishing limited enclaves around islands and navigational
hazards in the immediate neighbourhood of a main international shipping lane.
There is no doubt that an island, however small, and even rocks provided they
are indeed islands proud of the water at high-tide, are capable of generating a
territorial sea of up to 12 miles (article 121.2 of the Convention). It follows
that a chain of islands which are less than 24 miles apart can generate a con-
tinuous band of territorial sea. This is the situation of the Eritrean islands out
to, and including, the South West Rocks.
156. The point that the Yemen suggestion omits to take into account is
that the effect of what has been referred to as "leap-frogging" the Eritrean
islands and islets in this area is to extend the mainland coast territorial sea
beyond the limit of 12 miles from the mainland coast. According to article 3 of
the Convention, the territorial sea extends "up to a limit not exceeding 12
nautical miles, measured from the baselines determined in accordance with
this Convention." This is permissible because each island, however small or
unimportant of itself, creates a further low-water baseline from which the coastal
territorial sea is to be measured. This "leap-frogging" point was invoked strongly
in support of Eritrea's claims to sovereignty. This reasoning was not accepted
by the Tribunal in its Award on Sovereignty, it nonetheless has relevance in the
present context.
157. If any further were needed to reject the Yemen suggestion of
enclaving the Eritrean islands in this area beyond a limit of 12 miles from the
high-water line of the mainland coast, it may be found in the principle of non-
encroachment which was described by Judge Lachs in the Guinea/Guinea-
Bissau Award15 in the following terms:
As stated in the award, our principal concern has been to avoid, by one means or another,
one of the Parties finding itself faced with the exercise of rights, opposite to and in the
immediate vicinity of its coast, which might interfere with its rights to development or put
its security at risk.
158. It will be seen that the international boundary line must therefore lie
somewhere in a belt of sea no more than four or five miles wide. Once it is
established that there is an area of Eritrean mainland coast territorial sea, poten-
tially extending beyond the South West Rocks and the Haycock group of islands
on the one hand and overlapping the territorial sea generated by the Yemen is-
lands of the Hanish group on the other, the situation suggests a median line

25ILM251.
 MARITIME DELIMITATION AWARD 371

boundary. Under article 15 of the Convention the normal methods for drawing
an equidistant median line could be varied if reason of historic title or other
special circumstances were to indicate the otherwise. However, the Tribunal has
considered these reasons and circumstances and finds no variance necessary.
159. Further bearing in mind its overall task of delimitation, the Tribunal
also finds this line to be an entirely equitable one. The decision of the Tribunal is
therefore that the median line is the international boundary line where it cuts
through the area of the overlap of the respective territorial seas of the Parties.

There remains, however, the part of the boundary line which is to connect
the mainland coast median line and the line delimiting the overlapping territo-
rial seas. To the description of this line the Award now turns.
The boundary line which connects turning point 13 and turning point 15
160. If the mainland coastal median were continued south of turning point
13, it would cut first the territorial sea of Zuqar and then the territorial sea of
Hanish, and then cut through the land territory of the island of Hanish. It must
therefore divert to the west round the Zuqar-Hanish group, also respecting the
territorial seas of islands if they are to be regarded as generating a territorial sea.
That they ought be regarded as having a territorial sea seems reasonable.
161. Various possibilities were considered by the Tribunal. If therefore the
international boundary is, after turning point 13 where it meets a 12 mile territorial
sea extending from the island of Zuqar, to be diverted in order to respect that area
of territorial sea, it could trace the sinuosities of the Zuqar territorial sea boundary
until it has to turn southward again in order o join the article 15 boundary. The
Tribunal has decided, however, that it would be better that the line here should be
a geodetic line joining point 13 with point 14, making it necessary southwestwards
excursion to join the territorial sea median line described above. Moreover, the
Tribunal's task is, as mentioned above, to determine the maritime boundary; this
does not include setting the limits of the territorial seas.
162. From turning point 14, again with a simple line in view, the south-
ward excursion of the international boundary is a geodetic line joining points
14 and 15 where it becomes the article 15 median. This boundary decided
upon by the Tribunal between turning points 14 and 15 is also very near to the
putative boundary of a Yemen territorial sea in this area, but makes for a neater
and more convenient international boundary.
The southern part of the international boundary line
163. From turning point 20, which is the southernmost turning point on
the overlapping territorial seas median line, the boundary needs to turn generally
south-eastwards to rejoin the mainland coast median line. This it does through a
geodetic line which connects turning point 20 and point 21, the latter being the
3 72 ERITREA / YEMEN

intersection of the extended overlapping territorial seas median line and the coastal
median line. Thence the international boundary line resumes as a median line
controlled by the two mainland coasts. The Bay of Assab is internal waters, so
the controlling base points of the boundary line are seaward of this bay.
The northern and southern end points of the boundary line
164. Reference has been made above to the need not to extend the bound-
ary to areas that might involve third parties. The points where the decision of
the Tribunal halts the progress of the boundary line are, for the northern end,
turning point 1 and, for the southern end, point 29. The effect can, of course,
also be seen on the illustrative charts 3 and 4 in the map section of the Award.
The Tribunal believes that these terminal points are well short of where the
boundary line might be disputed by any third State.

The test of proportionality

165. The principle of proportionality was described by the International
Court of Justice in the North Sea Continental Shelf cases as "the element of a
reasonable degree of proportionality, which a delimitation in accordance with
equitable principles ought to bring about between the extent of the continental
shelf areas appertaining to the coastal State and the length of the coast mea-
sured in the general direction of the coastline, account being taken for this
purpose of the effects, actual or prospective, of any other continental shelf
delimitations between adjacent States in the same region." This was also de-
scribed as one of the "factors" to be taken into account in delimitation.16 It is
not an independent mode or principle of delimitation, but rather a test of equi-
tableness of a delimitation arrived at by some other means.17 So, as the Award
stated in the Anglo-French Channel case, "it is disproportion rather than any
general principle of proportionality which is the relevant criterion or factor".18
166. The Parties in the present case have disagreed strongly in their ar-
guments of this matter, not so much about the meaning of "proportionality" as
over the respective lengths of their coasts for the purposes of the calculation.
There is in the Tribunal's view no doubt that the "general direction" of the
coast means that the calculation of the Eritrean coastal length should follow
the outer circumference of the Dahlak group of islands, although Eritrea was
more inclined to have it follow the line of the mainland coast.

16
1.C.J. Reports 1969, p. 54.
17
See I.C.J. Reports 1981, p. 58. the Libya/Malta case.
18
18ILM60.
 MARITIME DELIMITATION AWARD 373

167. A much debated point was : how far north the Eritrean coast should
go. Eritrea wished to include in the proportionality calculation the whole of its
mainland coast up to the latitude line of 16°N; and, indeed, this line was used
by Yemen to define what it called its northern sector of the area in question.
The Tribunal however doubts the appropriateness of employing a horizontal
line of latitude to divide, for the purposes of the proportionality test, waters of
the Red Sea which lie at an angle of roughly 45°. The Tribunal has therefore
considered the relevant proportion of the Eritrean coast, which can be said to
be "opposite" that of Yemen, as ceasing where the general direction of that
coast meets a line drawn from what seems to be the northern terminus of the
Yemen land frontier at right angles with the general direction of the Yemen
coast. In the same way the Tribunal determined the southern end point to be
considered for the computation of the length of the Yemen coast.
168. The Tribunal through its expert in geodesy has calculated the ratio of
the lengths of the coasts concerned, measured by reference to their general direc-
tion, and the ratio between the water areas it has attributed to the Parties. The first
ratio, of coastal lengths, Yemen: Eritrea, is 387026 metres to 507110 metres, or
1:1.31. The second ratio of water areas, including the territorial seas, Yemen: Eritrea
is 25535 kilometres+ to 27944 kilometres+, or 1:1.09. The Tribunal believes that
the line or delimitation it has decided upon results in no disproportion.

Chapter VI. Dispositif

169. Accordingly, THE TRIBUNAL,
taking into account the foregoing considerations and reasons,
UNANIMOUSLY FINDS IN THE PRESENT CASE THAT
The International Maritime Boundary between Eritrea and Yemen is a se-
ries of geodetic lines joining, in the order specified, the following points. The
points are defined in degrees, minutes and seconds of the geographic latitude
and longitude, based on the World Geodetic System 1984 (WGS 84). The line
and the numbers of the turning points are shown for purpose of illustration
only in charts 3 and 4 in the map section of this Award.
Turning Point Latitude Longitude
1 15°43' 10"N 41°34'06"E
2 15°38' 58"N 41°34'05"E
3 15°15' 10"N 41°37'31"E
4 15°04'00"N 41'3 46'43 "E
5 15°00' 12"N 41°50'42"E
6 14°46' 06"N 41°58'47"E
7 14°43' 30"N 42°00'42"E
8 14°36' 05"N 42° 10'02"E
9 14°35' 14"N 42° 11'35"E
10 14°27' 16"N 42° 16'54"E
11 14°21' 11"N 42°22'04"E
12 14°15'23"N 42°26'09"E
374 ERITREA / YEMEN

Turning Point Latitude Longitude

13 14°08'39"N 42° 31' 33 "E
14 14°03'39"N 42° 28' 39 "E
15 13°39'30"N 42° 37' 39 "E
16 13°36'13"N 42° 38' 30"E
17 13°35'51"N 42° 38' 14"E
18 13°33'38"N 42° 39' 37 "E
19 13°27'28"N 42° 43' 25 "E
20 13°26'39"N 42° 48' 21 "E
21 13°24'01"N 42° 52' 47 "E
22 13°14'23"N 42° 59' 47 "E
23 13°10'54"N 43° 03' 03 "E
24 13°06'57"N 43° 05' 21 "E
25 13°06'08"N 43° 06' 06"E
26 13°04'05"N 43° 08' 42"E
27 13° 00'27"N 43° 10' 54"E
28 12° 58' 10"N 43° 12' 45 "E
29 12° 54'23"N 43° 13' 58 "E

Done at London 17th December 1999

The President of the Tribunal The Registrar
/s/ Professor Sir Robert Y. JENNINGS I si Tjaco VAN DEN HOUT

ANNEX 1

The Arbitration Agreement

The Government of the Republic of Yemen and the Government of the State of Eritrea
(hereinafter "the Parties");
Prompted by the desire to re-establish their peaceful relations in the spirit of the tradi-
tional friendship between their two peoples.
Conscious of their responsibilities toward the international community as regards the
maintenance of international peace and security as well as the safeguard of the freedom of
navigation in a particularly sensitive region of the world,
Considering the "Agreement on Principles" between Yemen and Eritrea signed at Paris
the twenty-first day of May 1996 (hereinafter "the Agreement on Principles");
Have agreed as follows:

Article 1
1. On or before 31 December 1996, the Parties will provide the names and addresses
of their appointed arbitrators to one another and to France. The four arbitrators thus named
shall meet within two weeks to consider the choice of the President of the Tribunal.
 MARITIME DELIMITATION AWARD 375

2. Within two weeks thereafter the four arbitrators will narrow their consideration to
a list of five names which they will then circulate to the Parties.
3. The Parties will have two weeks from the date of the circulation of the list during
which they may present their views concerning the list.
4. The four arbitrators shall then attempt to reach agreement on the choice of the
President. On reaching agreement, they will inform the Parties that the Tribunal has been
formed.
5. If no agreement has been reached by 15 March 1997, they shall so inform the Presi-
dent of the International Court of Justice and, pursuant to the Agreement on Principles,
they shall request him to choose the President of the Tribunal. In transmitting this request,
the four arbitrators shall make known any views that the Parties have expressed on the
choice of the President of the Tribunal. The President of the International Court of Justice
shall choose within two weeks and alter consultation with the Party-appointed arbitrators.
By 31 March 1997 at the latest, he shall notify the Parties, the four arbitrators and France
that the Tribunal has been formed and of the name of the President of the Tribunal.
6. The Tribunal shall meet on or before 11 April 1997.
7. All members of the Tribunal commit themselves to exercise their powers impar-
tially and conscientiously.
8. France shall transmit a certified copy of the Agreement on Principles and of this
Arbitration Agreement to the members of the Tribunal as soon as they are chosen.

Article 2
1. The Tribunal is requested to provide rulings in accordance with the international
law, in two stages.
2. The first stage shall result in an award on territorial sovereignty and on the defini-
tion of the scope of the dispute between Eritrea and Yemen. The Tribunal shall decide
territorial sovereignty in accordance with the principles, rules and practices of international
law applicable to the matter, and on the basis, in particular, of historic titles. The Tribunal
shall decide on the definition of the scope of the dispute on the basis of the respective
positions of the two Parties.
3. The second stage shall result in an award delimiting maritime boundaries. The Tri-
bunal shall decide taking into account the opinion that it will have formed on questions of
territorial sovereignty, the United Nations Convention on the Law of the Sea, and any other
pertinent factor.
(a) The Tribunal shall describe the course of the delimitation in a technically precise
manner. To this end, the geometric nature of all elements of the delimitation shall be indi-
cated and the position of all the points mentioned shall be given by reference to their coor-
dinates in the World Geodetic System 1984 (W.G.S. 84).
The Tribunal shall also indicate for illustrative purposes only the course of delimitation on
an appropriate chart.
(b) After consultation with the Parties, the Tribunal shall designate a technical expert
to assist it in carrying out the duties specified in letter (a).

Article 3
1. The participation of all Tribunal members shall be required for the awards. The pres-
ence of all members shall also be required for all proceedings and decisions other than the
awards except that the President may determine that the absence of not more than a single
member from my proceedings or decision other than the awards is justified for good cause.
2. (a) If a member of the Tribunal chosen by a Party is unable or unwilling to act and
to continue to perform his functions, this Party shall name a replacement within a period of
one month from the date on which the Tribunal declares the existence of the vacancy.
376 ERITREA / YEMEN

(Jb) If the President of the Tribunal is unable or unwilling to act and to continue to
perform his functions, a replacement shall be chosen by the Party-appointed members of
the Tribunal within a maximum period of two months from the date on which the Tribunal
declares the existence of the vacancy. If they cannot agree within this period, the President
of the Tribunal shall be chosen by the President of the International court of Justice.
(c) Where a vacancy has been filled after the proceedings have begun, the proceed-
ings shall continue from the points they had reached at the time the vacancy had occurred.
3. All members of the Tribunal shall be deemed to be present for the purposes of the
provision of paragraph 1 of this article and notwithstanding the existence of vacancies
where the only matter for consideration is the declaration of vacancies for the purposes of
paragraph 2 of this article or where either Party has neglected to fill a vacancy as provided
by paragraph 2, letter (a) of this article.

Article 4
1. The participation of all Tribunal members shall be required for the awards. The
presence of all members shall also be required for all proceedings and decisions other than
the awards except that the Presidency may determine that the absence of not more than a
single member from any proceedings or decision other than the awards is justified for good
cause.
2. In the case of an even division of the votes in the circumstances referred to in para-
graph 3 of article 3 above, the vote of the President shall be decisive.

Article 5
Subject to the provisions of this Arbitration Agreement, the Tribunal shall decide on its
rules of procedure and on all questions relating to the conduct of the arbitration.

Article 6
1. Each Party, within thirty days of the signature of this Arbitration Agreement, shall
designate an Agent, who will represent it and act on its behalf for the purposes of the
arbitration, and shall communicate the name and address of its Agent to the other Party and,
upon its formation, to the Tribunal.
2. Each Agent so designated shall be entitled to name one Co-Agent or more to act for
him where necessary. The name and the address of the Co-Agent (s) so named shall be
communicated to the other Party and, upon its formation, to the Tribunal.

Article 7
1. The Tribunal shall sit in London.
2. The Tribunal shall appoint a Registrar after consultation with the Agents, as soon as
possible and in any event no later than its first meeting.
The Registrar shall perform his functions impartially and conscientiously.
3. After consultations with the Agents the Tribunal may engage such staff and secure
such services and equipment as it deems necessary.
4. The Tribunal may consult any experts of its choice after notice to the Parties. Such
experts shall perform their functions impartially and conscientiously.
5. (a) At any time during the arbitral proceedings the Tribunal may call upon either
Party to produce documents or other evidence relevant to the question within such a period
of time as the Tribunal may draw from this failure any appropriate evidentiary inference
and may make an award based upon the evidence before it.
 MARITIME DELIMITATION AWARD 377

(b) If either Party fails to respond to a request for the production of documents or
evidence under paragraph a), the Tribunal may draw from this failure any appropriate evi-
dentiary inference and may make an award based upon the evidence before it.
(c) At any time during the arbitral proceedings the Tribunal may request if necessary
that a nonparty to this Arbitration Agreement provide to it documents or other evidence
relevant to the question. Any documents or other evidence so provided shall be transmitted
simultaneously to both Parties.

Article 8
1. The proceedings before the Tribunal shall be adversarial.
2. Without prejudice to any question relating to the burden of proof, the proceedings
before the Tribunal shall include two stages as follows.
3. The first stage concerning questions of territorial sovereignty and the definition of
the scope of the dispute mentioned in article 2, paragraph 2 of this Arbitration Agreement
shall include two phases, one written and the other oral.
3.1 The written pleadings shall consist of:
(a) A memorial to be submitted by each Party to the Tribunal and to the other Party
not later than 31 August 1997;
(b) A counter-memorial to be submitted by each Party to the Tribunal and to the other
Party not later than three months after submissions of the memorials;
(c) Any other pleading that the Tribunal deems necessary, such pleadings to be sub-
mitted not later than two months after submission of the counter-memorials.
3.2 An oral phase shall follow the written phase.
(a) It shall be held at the seat of the Tribunal, at the place and on the dates determined
by the Tribunal after consultation with the Agents. The oral phase shall start in so far as
possible not later than three months after the submission of the last written pleadings of the
Parties under article 8, paragraph 3.1.
(b) Each Party shall be represented in the oral phase of the proceedings by its Agent
or, as appropriate, by its Co-Agent, and by such counsel, advisers and experts as it may
designate.
3.3 At the conclusion of the oral phase, the Tribunal shall declare the end of the pro-
ceedings in the first stage. Notwithstanding such declaration, the Tribunal may request
from the Parties their written views on any issues necessary for the elucidation of any
aspect of the matters of before the Tribunal until the award on questions of territorial sov-
ereignty and the definition of the scope of the dispute is rendered.
3.4 The Tribunal shall render its award, which shall be binding, on question of territo-
rial sovereignty and the definition of the scope of the dispute in so far as possible not later
than three months from the end of the proceedings as declared under article 8, paragraph
3.3 above.
3.5 The Tribunal shall communicate this award to the Agents on the day of its render-
ing. The Tribunal and the Parties may make public this award as of the day of its rendering.
4. The second stage concerning questions of delimitation of maritime boundaries men-
tioned in article 2, paragraph 3 of this Arbitration Agreement shall begin immediately upon
the rendering of the award which concludes the first stage. It shall include two phases, one
written and the other oral.
4.1 The written pleadings consist of:
(a) A memorial to be submitted by each Party to the Tribunal and to the other Party
not later than four months after the rendering of the award on questions of territorial sover-
eignty and the definition of the scope of the dispute;
(b) A counter-memorial to be submitted by each Party to the Tribunal and to the other
Party not later than two months after submission of the memorials;
378 ERITREA / YEMEN

(c) Any other pleading that the Tribunal deems necessary, such pleading to be submit-
ted not later than two months after submission of the counter-memorials.
4.2 The oral phase shall follow the written phase.
(a) It shall be held at the seat of the Tribunal, at the place and on the dates determined
by the Tribunal after consultation with the Agents. The oral phase shall start in so far as
possible not later than three months as of the submission of the last written pleadings of the
Parties under article 8, paragraph 4.1;
(b) Each Party shall be represented in the oral phase of the proceedings by its Agent
or, as appropriate, by its Co-Agent, and by such counsel, advisers and experts as it may
designate.
4.3 At the conclusion of the oral phase, the Tribunal shall declare the end of the proceed-
ings in the second stage. Notwithstanding such declaration, the Tribunal may request from
the Parties their written views on any issues necessary for the elucidation of any aspect of
the matters before the Tribunal until the award on questions of delimitation of maritime
boundaries is rendered.
4.4 The Tribunal shall render its award on questions of delimitation of maritime bound-
aries in so far as possible not later than three months after the end of the proceedings before
it as declared under article 18, paragraph 4.3.
5. The Tribunal shall be empowered for good cause only to extend the time periods
established in this article on its own or at the request of either Party. The total cumulative
extension of the time periods granted by the Tribunal at the request of either Party during
the proceedings under the provisions of this sub-paragraph cannot exceed two months for
each Party for each stage.
6. The Registrar shall provide the Parties with an address for the filing of their written
pleadings and of any other document. The Registrar shall transmit to the Parties simulta-
neously copies of all written pleadings and documents upon receipt thereof.
7. If, within the period of time fixed by this Arbitration Agreement or by the Tribunal,
either Party fails to make a scheduled appearance or file a written pleading, the Tribunal
shall continue the proceedings nonetheless and shall make an award based upon the plead-
ings before it.

Article 9
1. The written and oral pleadings before the Tribunal shall be in English. Decisions of
the Tribunal shall be in English.
The Tribunal shall keep a verbatim transcript of all hearings.
Verbatim transcripts of the oral proceedings shall be communicated to the Agents as soon
as possible.
2. All documentary evidence shall be filed in their original languages by the Parties.
The Parties shall arrange for any translation that they deem necessary for their own prepa-
ration of the case.
The Tribunal may avail itself of translation services where it deems appropriate.
Any translations thus generated shall be provided to the Parties.
3. All written pleadings and verbatim transcripts of the oral proceedings and all the
deliberations of the Tribunal shall be confidential.
4. Members of the public shall not be admitted to the oral proceedings.

Article 10
1. The remuneration of the members of the Tribunal and of the Registrar shall be borne
equally by the Parties.
 MARITIME DELIMITATION AWARD 379

2. The general expenses of the arbitration shall be borne equally by the Parties. The
Registrar shall keep a record and render a final account of the expenses.
3. Each Party shall bear all the expenses incurred by it in the preparation and conduct
of its cases.

Article 11
1. Without prejudice to the provisions of the Agreement on Principles, the Tribunal,
either on its own or after examining the request of one of the two Parties, may prescribe any
provisional measure which it considers appropriate under the circumstances to prevent ir-
reparable harm or damage to the natural resources of the area or to preserve the status quo
as 21 May 1996. The Parties shall apply such measures within the time period prescribed
by the Tribunal.
2. In no event will a request for provisional measures or a prescription of provisional
measures affect the time periods for the submission of pleadings or rendering of the awards
under article 8 above.

Article 12
1. (a) The awards of the Tribunal shall state the reasons upon which they are based.
(b) The awards of the Tribunal shall include the time period for their execution.
(c) For each award of the Tribunal, each member of the Tribunal shall be entitled to
attach an individual or dissenting opinion.
2. The Tribunal shall notify immediately to the Agents or Co-Agents its awards, signed
by the President and the Registrar of the Tribunal, and any individual or dissenting opinion.
3. At the end of the second stage, the Tribunal shall make public both awards and any
individual or dissenting opinions.

Article 13
1. The awards of the Tribunal shall be final and binding. The Parties commit them-
selves to abide by those awards, pursuant to article 1, paragraph 2, of the Agreement on
Principles. They shall consequently apply in good faith and immediately the awards of the
Tribunal, at any rate within the time periods as provided for by the Tribunal pursuant to
article 12, paragraph 1 (b), of this Arbitration Agreement.
2. The Tribunal is empowered to correct within three months of the rendering of its
awards any material error relating to those awards such as arithmetical, mathematical, car-
tographical or typographical errors. Any such corrections shall in no event affect the time-
tables set out in article 8.
3. Each Party may refer to the Tribunal any dispute with the other Party as to the
meaning and the scope of the awards within thirty days of their rendering. The Tribunal
shall render a decision regarding any such dispute within sixty days of the day on which the
dispute is referred to the Tribunal. Pending this decision, the time periods for the submis-
sion of written pleadings set forth in article 8 may be suspended by the Tribunal.

Article 14
1. This Arbitration Agreement shall enter into force thirty days after the date of its
signature by the two Parties.
2. The Tribunal shall apply the provisions of this Arbitration Agreement.
380 ERITREA / YEMEN

Article 15
1. 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 consid-
erations and grounds on which those decisions are based.
2. In the event of any inconsistency between the Agreement on Principles and this
Arbitration Agreement implementing the procedural aspects of that Agreement on Prin-
ciples, this Arbitration Agreement shall control. Except with respect to such inconsistency,
the Agreement on Principles shall continue in force.

Article 16
1. France shall deposit a copy of this Arbitration Agreement within thirty days of its
entry into force with the Secretary-General of the United Nations, with the Secretary-Gen-
eral of the Organization of African Unity, and with the Secretary-General of the Arab League.
2. The President of the Tribunal shall deposit a copy of both awards as soon as pos-
sible after the rendering of the award on delimitation of maritime boundaries with the Sec-
retary-General of the United Nations, with the Secretary-General of the Organization of
African Unity, and with the Secretary-General of the Arab League.
IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Govern-
ments, have signed this Arbitration Agreement.
Done At PARIS, this third day of October, one thousand nine hundred and ninety-six, in
three original copies, each one n the Arabic, English and French languages, the English text
being authentic.

For the Government For the Government

of the Republic of Yemen of the State of Eritrea
Hussein Ali AL-HUBAISHI Saleh MEKY
Legal Advisor of the Government Minister of Marine Resources

ANNEX 2

Yemen's answer to Judge Schwebel's Question Put to Yemen on Tuesday, 13 July 1999
On day 6 of the proceedings (Transcript, Day 6, 13 July 1999, pp. 99-100), Judge Schwebel
put a question to Yemen's counsel as follows:
"Ms. Malintoppi, during oral argument in the first round Yemen maintained that it was
beyond the Tribunal's authority at that stage to consider matters of res communis condo-
minia and the like, stating that to do so would prefigure topics which might be considered
only at the second stage. An argument which was remarkable, since Eritrea had said noth-
ing in such regards, nor had the Tribunal. Just now, you argue that it is too late for Eritrea to
argue such matters indicating, if I understood correctly, that they were for the first stage.
Are Yemen's pertinent arguments consistent?"
In Yemen's submission, Yemen's arguments are consistent. This can be seen from reviewing
the context in which Yemen raised the matter in the first stage, the points raised by Ms. Malintoppi
in her intervention relating to the second stage, and the terms of the Arbitration Agreement.
The matter first arose at paragraph 20 of Yemen's written submission on the relevance of
the oil agreements and activities dated 8 June 1998. There, Yemen stated the following:
"It is always attractive to seek to discover a basis for dividing a group of islands, not least
in an arbitration. The attraction must be the greater when the task of the Tribunal extends to
 MARITIME DELIMITATION AWARD 381

the process of maritime delimitation, and no doubt caution will be needed to avoid a prefig-
uring of equitable principles, and concepts, which are in law only relevant in the second
phase of these proceedings."
The point to which Yemen was referring concerned the applicable law. In the first stage,
Yemen considered that the applicable law was derived from the principles of international law
relating to territorial sovereignty and title to territory. It was Yemen's submission that equitable
principles, infra legem, were primarily related to the law of maritime delimitation - a matter to
be dealt with in the second stage - not to the law of territorial sovereignty per se. Yemen's view
was thus that the concept of equitable principles was particularly relevant to the second stage of
the proceedings, and that this issue should not be prefigured in the first stage. Yemen made no
specific reference to concepts such as res communis or condominia when it raised the matter.
In the second stage of these proceedings, Yemen fully accepts that equitable principles
form part of the applicable law of maritime delimitation. However, and this was the point dis-
cussed by Ms. Malintoppi, the application of equitable principles to maritime delimitation, when
read in conjunction with the scope of the Tribunal's mandate as established in the Arbitration
Agreement and the Agreement on Principles, does not encompass the creation or modalities of
"joint resource zones" around Yemen's islands in the manner that Eritrea's Prayer for Relief
requests.
It follows that Yemen does not maintain that Eritrea's arguments in favour of the creation of
such zones are too late at this stage, but rather that the applicable law, together with the provi-
sions of the Arbitration Agreement and the Agreement on Principles, does not provide a legal or
jurisdictional basis for acceding to Eritrea's requests.
It should be noted, however, that the 1994 and 1998 Agreements between Yemen and Eritrea,
particularly those sections related to fishing, clearly indicate that Yemen and Eritrea are cur-
rently involved in working together to administer the fish resources throughout the southern Red
Sea region.

Yemen s Answer to the Tribunal s Question Put to Yemen on Friday, 16 July 1999
At the close of the oral hearings (Transcript, Day 8,16 July 1999, page 45), the Tribunal put
the following question to Yemen:
"The Tribunal has noted that, in the arguments of Yemen, relatively little has been said
about the traditional fishing regime which the Tribunal recalls is an essential part of the
Dispositif of the Award of 9 October 1998. Would Yemen indicate how, if at all, the tradi-
tional fishing regime should be taken into account in the delimitation, particularly taking
into consideration the agreements signed by the two Governments in 1994 and 1998?"
Yemen's answer was as follows:
Yemen recognizes that, in deciding the issue of sovereignty over various Red Sea Islands in
the first Award, the Tribunal stated in Dispositif that the sovereignty found to lie with 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" (paragraph 527 (vi) of the Award). This
decision is final and binding between the Parties, as stipulated in article 13 (a) of the Arbitration
Agreement. Yemen is fully committed to apply and implement the Award in all of its aspects,
including with respect to the perpetuation of the traditional fishing regime for the fishermen of
both Eritrea and Yemen.
As was clear from the Parties' presentations during the oral hearings, both Parties' consider
that the Tribunal's Dispositif 'must be read in conjunction with the reasoning that appears in the
body of the Award. With respect to "the perpetuation of the traditional fishing regime in the
region," Yemen has also taken note of the Tribunal's pronouncements in other parts of the Award
which bear on the issue. For example, the first sentence of paragraph 526 provides:
"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."
3 82 ERITREA / YEMEN

The historical basis of this finding was further explained in paragraph 128 where the Tribu-
nal stated:
"This traditionally prevailing situation reflected deeply rooted cultural patterns leading to
the existence of what could be characterized from a juridical point of view as res communis
permitting the African as well as the Yemeni fishermen to operate with no limitation through-
out the entire area and to sell their catch at the local markets on either side of the Red Sea.
Equally, the persons sailing for fishing or trading purposes from one coast to the other used
to take temporary refuge from the strong winds on any of the uninhabited islands scattered
in that maritime zone without encountering difficulties of a political or administrative na-
ture."
It is Yemen's view that the holdings of the Tribunal in the first Award with respect to the
traditional fishing regime constitute resjudicata without prejudice to the maritime boundary that
the Tribunal decides on in the second stage of the proceedings. In other words, the traditional
fishing regime that has existed for the benefit of the fishermen of both countries throughout the
region is to be perpetuated notwithstanding the decision that the Tribunal reaches as to the de-
limitation of the maritime boundary between the two countries. Indeed, it is clear that both Par-
ties understood this to be a mutual obligation which existed apart from the question of delimita-
tion of their maritime boundary in that, as the November 1998 Agreement between the two Gov-
ernments indicates, Yemen and Eritrea have been formulating a regime of cooperation with re-
spect to fishing in the spirit of good neighbourliness and friendship which has prevailed since the
Award in the first stage of this arbitration.
In Yemen's submission, the delimitation to be effectuated by the Tribunal in its second
Award will have a different purpose than the preservation of the traditional fishing regime. For
example, counsel for Eritrea admitted during its rebuttal presentation that issues such as mineral
extraction were not included in the Tribunal's notion of the traditional fishing regime (Tran-
script, Day 8, 16 July 1999, page 27). Clearly, mineral extraction is related to the delimitation of
the continental shelf, a matter which is relevant to the second stage.
Similarly, the delimitation of the column of water or Exclusive Economic Zone of the Par-
ties, as well as of their respective territorial seas in the Central and Southern Sectors, involves
matters which, pursuant to the 1982 Convention on the Law of the Sea, go beyond the preserva-
tion of the traditional fishing regime. It is in this connection that Yemen advanced the depen-
dence of its coastal population on fishing and the incidence of Yemen's fishing practices in the
region as relevant circumstances to be taken into account in the delimitation process.
In short, the perpetuation of the traditional fishing regime is not synonymous with the
rights and obligations of the Parties that will be determined by a delimitation of a single maritime
boundary throughout the relevant area. It is for these reasons that Yemen does not consider that
the decision of the Tribunal on the traditional fishing regime should have any impact on the
delimitation of the maritime boundaries between the two Parties in the second stage.
In this connection, it is appropriate to refer to the 1994 Agreement between Yemen and
Eritrea to which specific reference is made in the Tribunal's question. As can be seen from its
terms, the 1994 Agreement is entirely consistent with the preservation of the traditional fishing
regime decided by the Tribunal in the first stage.
The Agreement was signed by the Minister of Fish Wealth on behalf of Yemen and the
Minister of Marine Wealth on behalf of Eritrea. The latter, of course, also acts as Eritrea's Agent
in the present arbitration.
It is significant that paragraph 1 of the Agreement specifically provides for a fishing regime
that is remarkably similar to that recognized in the Tribunal's first Award. That paragraph pro-
vides, inter alia, that:
"Both the State of Eritrea and the Republic of Yemen shall permit fishermen who are
citizens of the two States, without limiting their numbers, and who carry cards to engage in
the occupation of fishing, to fish in the territorial waters of the two States, the contiguous
zone and the Exclusive Economic Zone of the two countries in the Red Sea (with the excep-
tion of the internal waters), provided that the fishermen of the two countries be enumerated
and that they be granted official licenses to engage in the occupation of fishing specifying the
locations where they will be received and may market their products in appendix No. 1."
 MARITIME DELIMITATION AWARD 383

Moreover, paragraph 4 of the Agreement provides in relevant part that the persons included
in Paragraph 1 shall be permitted to "market their fish products in the territory of the other State
and in the locations specified in appendix No. 1 of this Memorandum of Understanding". The
Tribunal will note that these provisions are very similar to the Tribunal's findings set out in
paragraph 128 of the Award in the first stage.
Unfortunately, the 1994 Agreement could not be fully implemented at the time due to the
events of 1995. Nonetheless, the Agreement remains in effect, and Yemen remains fully commit-
ted to its implementation. As can be seen from its terms, the 1994 Agreement envisages a regula-
tory framework which is well suited to addressing the kinds of concern raised by Eritrea in its
pleadings regarding traditional fishing in the region.
The Tribunal's question also makes reference on the Agreement signed between the two
Parties in November 1998. In Yemen's view, this Agreement evidences the good faith of both
Parties in pursuing mutual cooperation in a number of areas, including fishing. In particular,
article 1 (d) of the Agreement provides for the formation of a Committee for Cooperation in the
Area of Fish Wealth and Maritime Fishing. Pursuant to article 3 (4) of the Agreement, this com-
mittee would be expected to address the question of drafting a special agreement "in the area of
fish wealth, maritime fishing and the protection of the maritime environment."
With respect to the relevance of the 1994 and 1998 Agreements to the perpetuation of the
traditional fishing regime, it is appropriate to recall what counsel for Yemen had to say on this
matter during the oral hearings:
"Indeed, as Mr. Picard has shown, the Parties have already established a framework for
addressing the modalities of their fishing activities in the Red Sea with their 1994 and 1998
agreements. These agreements could well represent a very important context within which
any further questions between the Parties as to the preservation of the traditional fishing
practices mentioned in paragraph 526 of the Award could be dealt with." (Transcript, Day
6, 13 July 1999, page 88).
Implementation of these two Agreements would also be consistent with the letter of the
President of the Tribunal, dated 8 November 1998, which indicated that these issues "are a
matter for the Parties themselves to resolve in good faith, bearing in mind what the Tribunal
has found in paragraph 526 of the Award."
In conclusion, 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 this
point in the proceedings. Therefore, and bearing in mind the framework that has been established
by the 1994 and 1998 Agreements, Yemen does not believe that the traditional fishing regime
needs to be further taken into account in the delimitation of the maritime boundary between the
Parties at this stage of the proceedings.
3 84 ERITREA / YEMEN

Eritrea's Answer to Judge Schwebel 's Question

[letterhead: The State of Eritrea Zuqar—Hanish Archipelago

Arbitration Office]
Mrs. Phyllis Hamilton
Permanent Court of Arbitration
Peace Palace, the Hague
The Netherlands
August 12, 1999
By facsimile: 31-70-3024167
Re: Eritrea/Yemen Arbitration

Dear Mrs. Hamilton:

As you probably recall, during the July oral hearings on the maritime phase of the Eritrea/
Yemen arbitration, the Tribunal requested that the State of Eritrea supply it with the coordinates
for the historic median line which was referred to in Eritrea's written and oral pleadings. It was
requested that these co-ordinates be supplied within four weeks of the close of the hearings
(simultaneously with the filing of Yemen's response to the question that it was asked.)
I am attaching the coordinates to this letter. In fact, you will find attached to this letter two
sets of co-ordinates, one for the historic median line and one for the western boundary of the
shared resource zone described in Eritrea's written pleadings. The difference between the two is
that the historic median line gives full effect to the Eritrean Mohabbaka and Haycock islands and
to Southwest Rock. The western boundary of the shared resource zone does not, and thus runs to
the west of historic median line. The coordinates that have been chosen for drawing these two
lines are either on land territory of Eritrea or on straight baselines drawn in accordance with the
United Nations Convention on the Law of the Sea.
I hope that you will forward this information to the Tribunal, and also to Counsel for the
Republic of Yemen (after Yemen submits its response to the question that was posed to them). At
the point that you receive this, I will be in transit from Asmara to New Haven and so I hope that
no problems arise concerning our submission. I will be reachable in New Haven by the end of the
day on Friday, August 13 if any problems do arise, and I hope that you will be able to forward to
me there the answer that Yemen submits to the question that the Tribunal has presented it with.
Many thanks again for your cordial assistance.

Sincerely yours,
/s/
Professor R. Lea BRILMAYER
Co-Agent, the State of Eritrea
 MARITIME DELIMITATION AWARD 385
Basepoint Coordinates for Eritrea's Proposed Historic Median Line

Longitude Latitude

1 40.256123 16.261644
2 40.260834 16.088427
3 40.610901 15.894623
4 40.627377 15.881909
5 40.675121 15.845072
6 40.705509 15.821624
7 40.726833 15.800971
8 40.774303 15.754568
9 40.821114 15.722202
10 40.859592 15.697753
11 40.873196 15.684411
12 40.899334 15.658775
13 40.923637 15.634940
14 40.959450 15.599816
15 40.984978 15.574780
16 41.007191 15.552997
17 41.033173 15.527514
18 41.064766 15.496529
19 41.090080 15.471701
20 41.097931 15.464003
21 41.194546 14.617983
22 41.315613 14.490411
23 41.327480 14.467098
24 41.333321 14.454417
25 41.674259 14.101558
26 41.682278 14.093115
27 41.992912 13.888812
28 42.033104 13.856160
29 42.083229 13.815438
30 42.143177 13.766736
31 42.163944 13.749866
32 42.597202 13.634215
33 42.597584 13.634094
34 42.597961 13.633973
35 42.629669 13.539982
36 42.630470 13.539621
37 42.649868 13.350410
38 42.649937 13-349084
39 42.898411 13.022588
40 42.909142 13-015216
41 42.945763 12.990066
42 42.946693 12.989246
43 42.972328 12-966615
44 42.999687 12.942464
45 43.027813 12.909046
46 43.046738 12,879812
386 ERITREA / YEMEN

Basepoint Coordinates for Eritrea's Proposed Historic Median Line in Degrees and Min-
utes (Approximated)
Longitude Latitude
Degree Minute Degree Minute
1 40 15 16 16
2 40 16 16 5
3 40 37 15 54
4 40 38 15 53
5 40 41 15 51
6 40 42 15 49
7 40 44 15 48
8 40 46 15 45
9 40 49 15 43
10 40 52 15 42
11 40 52 15 41
12 40 54 15 40
13 40 55 15 38
14 40 58 15 36
15 40 59 15 34
16 41 0 15 33
17 41 2 15 32
18 41 4 15 30
19 41 5 15 28
20 41 6 15 28
21 41 12 14 37
22 41 19 14 29
23 41 20 14 28
24 41 20 t4 27
25 41 40 t4 6
26 41 41 14 6
27 42 0 13 53
28 42 2 13 51
29 42 5 13 49
30 42 9 13 46
31 42 10 13 45
32 42 36 13 38
33 42 36 B 38
34 42 36 13 38
35 42 38 B 32
36 42 38 13 32
37 42 39 13 21
38 42 39 13 21
39 42 54 13 1
40 42 55 13 1
41 42 57 12 59
42 42 57 12 59
43 42 58 12 58
44 43 0 12 57
45 43 2 12 55
46 43 3 12 53
 MARITIME DELIMITATION AWARD 387

Basepoint Coordinates for the Western Edge of Eritrea's Proposed Delimitation

Western Basepoint Coordinates Longitude Latitude

1 40.256123 16.261644
2 40.260834 16.088427
3 40.610901 15.894623
4 40.627377 15.881909
5 40.675121 15.845072
6 40.705509 15.821624
7 40.726833 15.800971
8 40.774303 15.754568
9 40.821114 15.722202
10 40.859592 15.697753
11 40.873196 15.684411
12 40.899334 15.658775
13 40.923637 15.634940
14 40.959450 15.599816
15 40.984978 15.574780
16 41.007191 15.552997
17 41.033173 15.527514
18 41.064766 15.496529
19 41.090080 15.471701
20 41.097931 15.464003
21 41.194546 14.617983
22 41.315613 14.490411
23 41.327480 14.467098
24 41.333321 14.454417
25 41.674259 14.101558
26 41.682278 14.093115
27 41.992912 13.888812
28 42.033104 13.856160
29 42.083229 13.815438
30 42.143177 13.766736
31 42.163944 13.749866
32 42.182957 13.719868
33 42.209858 13.677422
34 42.236946 13.629816
35 42.290718 13.558626
36 42.292160 13.556718
37 42.314285 13.507826
38 42.332073 13.468508
39 42.456223 13.322620
40 42.502346 13.277068
41 42.548088 13.231894
42 42.583633 13.196643
43 42.621857 13.158704
44 42.659718 13.121125
45 42.696766 13.094354
46 42.898411 13.022588
47 42.909142 13.015216
48 42.945763 12.990066
388 ERITREA / YEMEN

49 42.946693 12.989246
50 42.972328 12.966615
51 42.999687 12.942464
52 43.027813 12-909046
53 43.046738 12.879912

ioint Cooi'dinates
54 41.725754 16.630884
55 41.734745 16.575695
56 41.739692 16.551414
57 41.749630 16.541800
58 41.775238 16.519312
59 41.812977 16.486170
60 41.839870 16.462553
61 41.863270 16.442003
62 41.990649 16.417961
63 41.961689 16.292364
64 42.269432 15,701794
65 42.266293 15.700562
66 42.274937 15.697087
67 42.276882 15.685533
68 42.366718 15.489594
69 42.401192 15.467257
70 42.512936 15.415102
71 42.530704 15.291346
72 42.594810 15.210606
73 42.603222 15.200403
74 42.690079 15.195890
75 42.612560 15.189135
76 42.749393 15.179667
77 42.621025 15.169647
78 42.638046 15.163574
79 42.972595 14.600204
90 42.983734 14.391216
91 42.983959 14.384205
82 43.016117 14.331929
83 43.034367 14.299636
84 43.052059 14.248733
85 43.085064 14.107971
96 43.096539 14.067361
87 43.103230 14.054599
88 43.122894 14.017092
89 43.141998 13.980651
90 43.158348 13.949471
91 43.189007 13.916190
92 43.229725 13.821691
93 43.252224 13.484743
94 43.248089 13.434113
95 43.242542 13.374463
96 43.228340 13.302191
97 43.224674 13.271644
98 43.208839 13.259463
99 43.207760 13.243280
 MARITIME DELIMITATION AWARD 389

100 43.225060 13.202319

101 43.225647 13.199706
102 43.236843 13.168642
103 43.253857 13.136574
104 43.288876 13.080974
105 43.303009 13.063622
Basepoint Coordinates for the Western Edge of Eritrea's Proposed Del[imitation
id Minutes (Approximated)
Western Basepoint Coordinates Longitude Latitude
Degree Minute Degree Minute
1 40 15 16 16
2 40 16 16 5
3 40 37 15 54
4 40 38 15 53
5 40 41 15 51
6 40 42 15 49
7 40 44 15 48
8 40 46 15 45
9 40 49 15 43
10 40 52 15 42
11 40 52 15 41
12 40 54 15 40
13 40 55 15 38
14 40 58 15 36
15 40 59 15 34
16 41 0 15 33
17 41 2 15 32
18 41 4 15 30
19 41 5 15 28
20 41 6 15 28
21 41 12 14 37
22 41 19 14 29
23 41 20 14 28
24 41 20 14 27
25 41 40 14 6
26 41 41 14 6
27 42 0 13 53
28 42 2 13 51
29 42 5 13 49
30 42 9 13 46
31 42 10 13 45
32 42 11 13 43
33 42 13 13 41
34 42 14 13 38
35 42 17 13 34
36 42 18 13 33
37 42 19 13 30
38 42 20 13 28
39 42 27 13 19
40 42 30 13 17
41 42 33 13 14
42 42 35 13 12
390 ERITREA / YEMEN

43 42 37 13 10
44 42 40 13 7
45 42 42 13 5
46 42 54 13 1
47 42 55 13 1
48 42 57 12 59
49 42 57 12 59
50 42 58 12 58
51 43 0 12 57
52 43 2 12 55
53 43 3 12 53
54 41 44 16 38
55 41 44 16 35
56 41 44 16 33
57 41 45 16 33
58 41 47 16 31
59 41 49 16 29
60 41 50 16 28
61 41 52 16 27
62 41 53 16 25
63 41 58 16 18
64 42 16 15 42
65 42 16 15 42
66 42 16 15 42
67 42 17 15 41
68 42 22 15 29
69 42 24 15 28
70 42 31 15 25
71 42 32 15 17
72 42 36 15 13
73 42 36 15 12

ANNEX 3

TRANSLATION

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
Based on the spirit of friendship and cooperation and to translate into action the common
objectives and interests between the two fraternal countries of the State of Eritrea and the Repub-
lic of Yemen and achieve the interests of the two fraternal peoples, the delegation of the Republic
of Yemen headed by Dr. Abd al-Rahman Abd al-Qadir Ba-Fadhl, the Minister of Fish Wealth,
visited the State of Eritrea and received a warm reception from Ali Sayyid Abdallah, the Interior
Minister, on 11 November 1994. They held initial discussions at the Eritrean Interior Ministry in
the capital, Asmara, followed by talks between the two parties in the city of Massawa. Dr. Salih
Makki, the Minister of Marine Wealth for the State of Eritrea, chaired the Eritrean side, while Dr.
Abd al-Rahman Abd al-Qadir Ba-Fadhl, the Minister of Fish Wealth for the Republic of Yemen,
chaired the Yemeni side.
 MARITIME DELIMITATION AWARD 391

The talks between the two sides resulted in agreement on the following matters:

The area offish wealth

1. Both the State of Eritrea and the Republic of Yemen shall permit fishermen who are
citizens of the two States, without limiting their numbers, and who carry cards to engage in the
occupation of fishing, to fish in the territorial waters of the two States, the contiguous zone and
the Exclusive Economic Zone of the two countries in the Red Sea (with the exception of the
internal waters), provided that the fishermen of the two countries be enumerated and that they be
granted official licenses to engage in the occupation of fishing specifying the locations where
they will be received and may market their products in appendix No. 1. Each fisherman must
submit a fishing license application to the other party within three months from the date of the
signing of this Memorandum of Understanding while complying with the following:
a. The use of sound fishing methods, the non-use of explosives and not polluting the
marine environment, as well as the non-use of poisons, chemicals or other means of
extermination.
b. Not to use methods and fishing equipment damaging the growth of marine organisms.
c. Not to remove or cut marine plants or coral reefs of any kind.
d. Confinement to the fishing seasons in both of the two countries.
e. Use of all means to ensure the protection of the environment and rationalization of
fishing practices.
/ Adherence to al laws and regulations of the other country in the sea to the extent these
laws and regulations are applicable and do not conflict with the above provisions.
2. For the purposes of paragraphs \.d and 1./, the concerned authorities in both States in
the Red Sea must notify the concerned authorities in the other State of laws, regulations and rules
or any agreements with a third party in the waters the other party is using. Each party shall
undertake to issue directives for compliance with that information.
3. Each fishermen or worker on any fishing vessel located in the territorial waters of the
other [S]tate must carry a fishing license and a card establishing his identity and nationality in
accordance with the laws and regulations of his State, and he must fly the flag of his State over
his vessel.
4. Person included in the provisions of paragraph (1) shall be permitted to do the following:
a. Market their fish products in the territory of the other State and in the locations
specified in appendix No. 1 of this Memorandum of Understanding.
b. Obtain the appropriate facilities for maintenance of the vessels and obtain food-
stuffs, fuels, and ice at the prevailing prices in the country where they are present
and for the period during which they remain at sea.
5. If the authorities in either of the two States are compelled to detain any fishing vessel or
fisherman or worker on board any vessel, the authorities of that State must notify immediately
the authorities of the other State of the names of the detained individuals and the vessels and the
property contain [ed] therein and specify the reasons for and date of the detention.
6. The two States shall cooperate in the area of fishery research, protection of the mari-
time environment from pollution, and the exchange of technical expertise and training at special-
ized institutions in the two countries.

The area of maritime trade, investment and transportation

1. Study the possibility of creating joint fishing companies between the two States.
2. Study the conclusion of a maritime transportation agreement between the two States.
3. Study the conclusion of a trade agreement between the two States. Until such [a]n agree-
ment can be concluded, the concerned authorities in each of the two countries shall offer all
facilities available to them according to their laws to facilitate the transporting of locally-pro-
duced goods in the two countries.
392 ERITREA / YEMEN

The area of security

The two States shall work to implement the Protocol signed by the Interior Ministries of the
two countries in Sanaa on 10 November 1993 to achieve the objectives provided for in the said
Protocol.

The implementation of the subjects of the memorandum

1. The concerned authorities in each of the two States, following the signing of this Memo-
randum of Understanding, shall take all necessary measures including but not limited to the
issuance of decrees, orders, licenses, or directives to implement the contents of this Memoran-
dum of Understanding.
2. The concerned agencies in the two States shall organize patrols off their coasts in the
Red Sea and establish communication networks between the major security centers of the two
States in the Red Sea at a time and method to be agreed by them.
3. Special offices shall be established in the two States to monitor and execute the articles
of this Memorandum [.] The headquarters for these offices shall be specified in appendix No. 1
of this Memorandum.
4. Contacts between the two sides regarding the implementation of this Memorandum of
Understanding shall take place through diplomatic channels while abiding by the contents of
paragraph (2) of article (4).
5. The two Governments shall consult on matters tha[t] may arise from the implementa-
tion of this Memorandum of Understanding, anything related to amendment, deletion or addi-
tion, as well as amendment or addition to the appendix.
Signed at Massawa on this day, 15 November 1994.

For the Republic of Yemen For the State of Eritrea

Dr. Abd al-Rahman Abd al-Qadir BA-FADHL Dr. Salih MAKKI
Minister of Fish Wealth Minister of Marine Wealth

APPENDIX NO. 1
Centres for Fishing Registration and Monitoring and Marketing in the Republic of Yemen:
1. Maydi
2. Khoba
3. Hodeidah
4. Khokha
5. Mocha
Centres for Fishing Registration and Monitoring and Marketing in the State of Eritrea:
1. Assab
2. Tio
3. Dahlak
4. Massawa

APPENDIX NO. 2
Members of the State of Eritrea Delegation:
1. Dr. Salih Makki, Minister of Marine Wealth
2. Ramadhan Ouliay, Naval Forces Commander
3. Musa Rabi'a, Eritrean Police Chief
4. Muhammad Idris Amir, Middle East Bureau, Foreign Ministry
 MARITIME DELIMITATION AWARD 393

Members of the Republic of Yemen Delegation:

1. Dr. Abd al-Rahman Abd al-Qadir Ba-Fadhl, Minister of Fish Wealth
2. Col. Abd al-Karim Muharram, Chief of Staff, Naval Forces
3. Co. Muhammad Rizq al-Sarami, Undersecretary, Central Agency of Political Security
4. Ambassador Ahamd al-Basha, Ambassador of the Republic of Yemen to the State of
Eritrea
5. Ambassador Muhammad al-Wazir, Chairman, African Bureau, Foreign Ministry
6. Dr. Rashad al-Ulaymi, Director-General, Legal Affairs, Interior Ministry
7. Najib Abd al-Qawi Hamim, Director-General, External Cooperation, Ministry of
Supply & Commerce
8. Khalid Sa-id al-Dhubhani, Director, Fishing Administration, Ministry of Planning &
Development
9. Ali al-Maqalih, Director, Office of the Minister of Fish Wealth
3 94 ERITREA / YEMEN
MARITIME DELIMITATION AWARD 395
396 ERITREA / YEMEN
MARITIME DELIMITATION AWARD 397
398 ERITREA / YEMEN
MARITIME DELIMITATION AWARD 399
400 ERITREA / YEMEN

TREATY ESTABLISHING THE JOINT YEMENI-ERITREAN COMMITTEE FOR BILATERAL

COOPERATION BETWEEN THE GOVERNMENT OF THE REPUBLIC OF YEMEN
AND THE GOVERNMENT OF THE STATE OF ERITREA

Based on the progressive civilized example set by bilateral relations between the Republic
of Yemen and the State of Eritrea, and
Affirming their shared desire to continue to strengthen and reinforce these relations in ser-
vice to their common interests, and
Aware of the importance of strengthening and developing bilateral cooperation in all fields
of mutual concern,
The two parties have agreed to the following:

Article One
The two parties shall form a Joint Committee for Bilateral Cooperation between them in all
fields of mutual concern, containing representatives of each party, to be called the "Joint Yemeni-
Eritrean Committee," with the two Ministers of Foreign Affairs presiding. The Ministry of Plan-
ning and Development from the Yemeni side and the Ministry of Foreign Affairs from the Eritrean
side, with the presence of required assistants, shall have jurisdiction over the secretariat and
monitor implementation of Joint Committee results.

Article Two
The Joint Committee shall assume the following tasks:
1. Studying programs and recommendations designed to expand bilateral cooperation be-
tween the two countries and signing agreements, protocols, and implementation programs in that
regard.
2. Monitoring the implementation of agreements, protocols, memoranda of understanding
and minutes signed between the two countries in the fields referenced in paragraph 1 of this
article.
3. Discussing proposals submitted by either country with the purpose of strengthening
and developing the horizons of cooperation between them in all various fields of mutual interest.
4. Encouraging the exchange of bilateral visit and meetings between officials of both coun-
tries, and exchanging information and documents relevant to joint cooperation relations.

Article Three
1. The committee may form permanent and temporary subcommittees and work teams to
carry out certain specific tasks in the framework of Joint Committee work.
2. The subcommittees and work teams referred to in paragraph 1 of this article shall sub-
mit their recommendations to the Joint Committee for approval.

Article Four
The draft agenda for each round of exchanging recommendations shall be prepared through
diplomatic channels and shall be submitted sufficiently in advance of the convening of the round.
The Joint Committee may assign a technical committee from both sides to prepare for its meetings.

Article Five
The Joint Committee shall convene its round annually, alternating between Sanaa and
Asmara. Special minutes shall be prepared for each round, signed by the chairman of both sides
on the Joint Committee, and approve by the relevant authorities in both countries pursuant to the
laws and regulations in effect in each country.
 MARITIME DELIMITATION AWARD 401

Article Six
This treaty shall come into force on the date the ratification instruments are exchanged in
accordance with the constitutional procedures in effect in each country. It shall remain in force
for five (5) years and shall be renewed automatically for identical periods, provided neither party
informs the other party in writing of its desire to terminate the treaty six months prior to its
expiration date. Any additions or amendments to the articles of this treaty shall only be made
with the written approval of both parties thereto.
The treaty has been drawn up in Sanaa on 25 Jumada II 1419, equivalent to 16 October
1998, in two original copies in the Arabic language, both having equal legal weight.

For the Government of the State of Eritrea For the Republic of Yemen
[Signed] [Signed]
Hail WOLDENSE Abd al-Qdir Abd al-Rahma BA-JAMMAL
Minister of Foreign Affairs Deputy Prime Minister and Foreign Minister
402 ERITREA / YEMEN
MARITIME DELIMITATION AWARD 403
404 ERITREA / YEMEN
MARITIME DELIMITATION AWARD 405
406 ERITREA / YEMEN

List of Abbreviations
EEZ Exclusive Economic Zones
FAO Food and Agriculture Organization of the United Nations
I.C. J. Reports International Court of Justice—Reports of Judgments, Advisory O p i n •
ions and Orders
ICLQ International and Comparative Law Quarterly
ILR International Law Reports
UNDP United Nations Development Program
WGS World Geodetic System
 MARITIME DELIMITATION AWARD 407

Communications from the President of the Tribunal

dated 25 February 2000

Communications du President du Tribunal en date du 25 février 2000

1. The president of the Arbitral Tribunal (hereinafter the "Tribunal"),
Sir Robert Y. Jennings, acknowledges with thanks the receipt of letters from
the agent of the Government of the state Eritrea ("Eritrea") 14January 2000,
from the Agent of the Government of the Republic of Yemen 1 February 2000,
and from the Foreign Minister for Eritrea 9 February 2000. The President has
consulted with the other members of the Tribunal regarding the exchange of
the correspondence detailed below and Eritrea's request that the Tribunal "de-
termine whether there is a dispute with the other Party as to the meaning and
the scope of the award".
2. On 15 January 2000, the Registry received a letter from Professor
Brilmayer, the Agent for Eritrea, addressed to the President of the Tribunal with
a copy to the Agent for Yemen containing a request for a clarification pursuant to
article 13, paragraph 3, of the Arbitration Agreement. Professor Brilmayer en-
closed two press releases issued by the Government of the Republic of Yemen
which raise the possibility that its interpretation of the Award differs from that of
the Government of Eritrea on certain important points. Although the State of
Eritrea believes the Awards is quite clear with regard to these particular points,
the fact that the Republic of Yemen has issued press releases making claims to
the contrary shows the need for clarification by the Tribunal.
3. On 1 February 2000, the Agent of Yemen, responded to Professor
Brilmayer in a letter to the President of the Tribunal with a copy to the Agent
for Eritrea. The reply of Yemen stated that the Republic of Yemen considered
Eritrea's request for interpretation inadmissible because it failed to identify
the existence of a dispute between the Parties as to the meaning and scope of
the Award.
4. Yemen further responded that "... in Yemen's considered opinion,
the Award is sufficiently clear on its face and does not require any clarification
by the Tribunal." The Agent described the meeting of the Parties at Asmara on
23 and 24 January, where it was agreed to form a committee which, amongst
other things, will be charged with "monitoring, coordination and cooperation
on issues of the activities in which the two countries and their citizens are
engaged in the Southern Red Sea in a manner consistent with the award by the
international arbitration tribunal in this regard". In his response, the Agent of
Yemen referred also to a letter from the President of Yemen to the President of
Eritrea, dated 23 January 2000, which he appended to his letter. Also ap-
pended to his letter. Also appended was a 26 January 2000 joint statement
issued by the Foreign Ministers of Yemen and Eritrea following talks that were
held in Asmara.
408 ERITREA / YEMEN

5. The Eritrea Minister of Foreign Affairs then responded in a letter to

the President of the Tribunal, dated 9 February 2000, with copy to the Agent
for Yemen. He questioned whether the response from Yemen snowed that the
Parties "in fact agree on the meaning and scope" of the Award. He also said
that at the Asmara meeting, Eritrea sought and held been given assurances
that its cooperation in the formation of the Committee would not be regarded
as a renunciation "of its outstanding requests to the Tribunal". This assurance
in the terms reported by Eritrea, would not, however, in the view of the Tribu-
nal, amount to recognition by Yemen that there was in fact an existing dispute
over the meaning of the Award.
6. There remains the concern of Eritrea that some parts of the Yemen
press releases "raise the possibility that its interpretation of the Award differs
from that of the Government of Eritrea on certain important points", where-
fore it asks the Tribunal to "determine whether there is a dispute with the there
party as to the meaning and scope of the Award".
7. The Yemeni Government has made no further response. It must there-
fore be understood as standing by its statement in its letter of 1 February re-
sponding to the particular and carefully defined concerns of Eritrea as set out
in Eritrea's letter of 14 January, that "no dispute exists between the parties as
to the meaning and scope of the Award".
8. The materials and correspondence thus laid before the Tribunal by
the Parties fall short of showing that there has been a reference to the Tribunal
of an actual "dispute with the other Party as to the meaning and scope of the
awards", within the meaning of the provision of article 13, paragraph 3, of the
Arbitration Agreement.
9. It is accordingly the conclusion of the Tribunal that it is not now called
upon to render any decision under these provisions of the Arbitration Agree-
ment.
Done at The Hague 25 February 2000
On behalf of the Tribunal,

Sir Robert Y. JENNINGS Tjaco VAN DEN HOUT, Registrar

President of the Tribunal
 MARITIME DELIMITATION AWARD 409

Communication from the President of the Tribunal

dated 31 March 2000

Communication du President du Tribunal en date du 31 mars 2000

1. The President of the Arbitral Tribunal (hereinafter the "Tribunal"),
Sir Robert Y. Jennings, acknowledges with thanks the receipt of letters from
the Foreign Minister of the Government of the State of Eritrea ("Eritrea") 7
March 2000, from the Agent for the Republic of Yemen ("Yemen") 14 Agent
for Yemen 22 March 2000. Copies of the correspondence were transmitted to
the other Members of the Tribunal for their consideration.
2. On 15 March 2000, the Registry notified the Agents for the Parties
that owing to office closings for the Islamic holidays the time for the Tribunal
to answer the request for clarification was extended so that all Members of the
Tribunal could review the exchange of letters. On 16 March 2000 the Regis-
trar solicited the agreement of the Parties to a further extension of time in
order to provide the Agent for Yemen with copies of the materials receive from
the Agent of Eritrea.
3. It appears that there is still possibility of a misunderstanding over
"Yemen's (alleged) rights to fish in the Dahlak Islands" (as it was described in
Eritrea's letter of 7 March requesting the Tribunal to exercise its power under
article 13.3 of the Agreement for Arbitration). This question of the status of
the waters within the Dahlak Islands arose from a passage in one of Yemen's
press releases, copies of which attached to Eritrea's letter of request.
4. It might therefore be helpful to the Parties if the tribunal restates what
the Award in the second stage recognized to be the legal position of the waters
within the Dahlak Islands group. In this connections the Tribunal reminds the
Parties of the terms of four paragraph dealing specifically with the heading
The Dahlaks, which read as follows.

This tightly knit group of islands and islets, or "carpet" of islands and islets as Eritrea
preferred to call it, of which the larger islands have a considerable population is a typical
example of a group of islands that forms an integral part of the general coastal configura-
tion. It seems in practice always to have been treated as such. It follows that the waters
inside the island system will be internal or national waters and that the baseline of the
territorial sea will be found somewhere at the external fringes of the island system.

This view of the legal status of the Dahlak Island group was recognized
by the Award not only because a glance at a map confirms it, but also because
(i) this was recognized by general repute (see e.g the opinion of the late Pro-
fessor D.P O'Connell's The International Law of the Sea, published posthu-
mously in 1982, p.258 note 87) and (ii) it was the view of Yemen throughout
its pleadings in the Second Stage of Arbitration; indeed Yemen's own claimed
median line international boundary was based on the same basic premise in
regard to the legal status of the Dahlak Islands Group (see the reference in
paragraph 114 of the Award).
410 ERITREA / YEMEN

5. The Tribunal has been hesitant to treat this matter as amounted to a

"dispute" within the meaning of article 13.3 of the Agreement for Arbitration.
The reason for the Tribunal's hesitation is that the view expressed in article 139
of the Maritime Boundaries Award, as to the legal status of the waters within the
Dahlak Islands is, in the Tribunal's view, indisputable. Moreover, it was the
adopted and expressed view of Yemen throughout the arbitration proceedings.
6. When, therefore, Yemen replied to the Eritrean request by insisting
that there was no dispute for the Tribunal to settle, the Tribunal readily agreed,
assuming that Yemen was thus resorting to an elegant way of indication that it
was not disposed to attempt to dispute the Eritrean position on this question of
the status of the waters within the Dahlak Island group.
7. Some misunderstanding between the Parties having nevertheless per-
sisted, the Tribunal has therefore found itself under some obligation to remind
the Parties of the terms of paragraph 139 of the Award, even though this amounts
to stating what may be legally obvious.
8 The Tribunal takes this opportunity to remind the Parties that para-
graphs 149 ff. Of the Award extended the like treatment to the cluster of is-
lands off the opposite coast of Yemen. This decision was likewise justified on
the ground that these Yemen "features are integral to the coast of Yemen and
part of it"(paragraph 150).
9. The Tribunal intends that this restatement of what is already expressly
and clearly stated in the Award will serve to settle the misunderstandings that
appear to have arisen from one infelicitous passage in one Yemen press release.
10. The recent exchanges of correspondence, besides the status of the wa-
ters within the Dahlak group, also allude to other undefined matters of possible
contention concerning the traditional fishing regime. It might be useful to the
Parties if the Tribunal points out one common feature of such potential questions.
11. The Tribunal draws the attention of the Parties to the fact that the
traditional fishing regime was not the creation of the Tribunal. The Tribunal
found it already in existence; its concern therefore was that it should not be
prejudices in any way by the Tribunal's findings in the first stage Award on
sovereignty over the disputed islands.
12. Thus the knowledge of the details of the ways in which the regime has
been traditionally implemented, and the locations where it traditionally has op-
erated from time to time, are peculiarly within the range of the knowledge of the
Parties themselves. These are therefore precisely the matters suited to consider-
ation by the Joint Committee that the Parties are in the process of establishing.
13. If the Parties were for any reason inclined to submit to this or another
tribunal one or more of these questions for decision it would , of course, be
necessary for the Parties to draft a new agreement addressing both the jurisdic-
tion of that tribunal and the precise questions to be submitted to it.
Done at The Hague 31 March 2000,
On behalf of the Tribunal,

Sir Robert Y JENNINGS Tjaco VAN DEN HOUT, Registrar

President of the Tribunal