Current Legal Developments

Red Sea

Award of the Arbitral Tribunal in the First Stage of the / Proceedings Introduction

On 9 October 1998, the five-member Arbitral Tribunal rendered its unanimous Award, Eritrea/Yemen Territorial Sovereignty and Scope of the Di,spute,l which completed the first stage of one of the more important cases in the history of international adjudication and arbitration. The Award was rendered pursuant to an Arbitration Agreement between the Government of the State of Eritrea and the Government of the Republic of Yemen of 3 October 1996.2 The Agreement was preceded by the Eritrea-Yemen Paris Agreement on Principles of 21 May 1996, witnessed by the Governments of France, and Egypt, and a concurrent Joint Statement of the parties, which emphasised their desire to settle the dispute and "to allow the re-establishment and development of a trustful and lasting co-operation between the two countries", contributing to the stability and

1 38 ILM 2 (1999) (in press). The Yemen Arab Republic and the People's Democratic Republic of Yemen were formally united in the state of Yemen on 22 May 1990. All treaties concluded between either the Yemen Arab Republic or the People's Democratic Republic of Yemen and other states and international organisations which were in force on 22 May 1990 remained in effect from that date. In its Declaration made upon signing the LOS Convention on 10 December 1982, the Yemen Arab Republic confirmed "its national sovereignty over all the islands in the and the which have been its dependencies since the period when the Yemen and the Arab countries were under Turkish administration". In its Declaration made upon ratifying the LOS Convention on 21 July 1987, the People's Democratic Republic of Yemen expressed its preference for effecting maritime delimitation of both its mainland and its islands by means of equidistance. See UN Law of the Sea Bulletin 25 (1994), 20 and 46. The state of Eritrea became legally independent from the state of Ethiopia in 1993. As of 1 April 1998, Eritrea (and likewise now landlocked Ethiopia) did not ratify either the LOS Convention or the 1994 Part XI Agreement. See UN Law of the Sea Bulletin 36 (1998), 14.

125 126 peace of the .3 The location of the disputed islands, islets, rocks and low- tide elevations in the southern Red Sea, along the shipping lanes leading to the strategically critical Strait of Bab el-Mandeb ("Gate of Lament") and the southern approaches to the Suez Canal, raised concerns about a possible threat to international navigation.4 The hostilities that ended in December 1995, with Eritrean forces occupying Greater Hanish Island, and Yemeni forces occupying Zuqar, threatened to become an Arab-African conflict, possibly with a recurring Arab-Israeli dimension.5 Since May 1998, the Eritrean-Yemeni dispute has been paralleled by military clashes over the Yemeni-Saudi Arabian land and sea borders6 and by a protracted Eritrean-Ethiopian border crisis.' The importance of the Eritrea/ Yemen case was matched by the membership of the Tribunal. In conformity with the Arbitration Agreement (Art. 1), Eritrea appointed as arbitrators two members of the International Court of Justice (ICJ), current President Stephen M. Schwebel and Judge Rosalyn Higgins, and Yemen appointed two leading international counsel, Mr Keith Highet and Dr Ahmed Sadek El-Kosheri. Following the agreement of the parties to this effect, on 14 January 1997 the four arbitrators appointed the former President of the ICJ, Sir Robert Y. Jennings, as President of the Tribunal. Sir Robert and Dr El- Kosheri have also served as ad hoc judges (for Britain and Libya respectively) in

3 For the Eritrea/Yemen Agreement on Principles, see UN Doc. S/1996/447, 19 June 1996, reprinted in B. Kwiatkowska (ed.), International Organizations and the Law of the Sea, NILOS Documentary Yearbook (1998), vol. 12. Originally, Egyptian mediation began on 23 December 1995 and continued during Ethiopia's efforts, whereas the French mediation effort was suggested by UN Secretary-General Boutros Boutros Ghali in late December that year. See Report of the Secretary-General on the Work of the Organization, UN Doc. A/51/1, 20 August 766 at 108. 4 1996, para. p. See the Final Communique of the Arab League Summit Conference of 23 June 1996, in (1996) 35 ILM 1280 at 1286-1287, welcoming the 1996 Eritrea/Yemen Agreement on Principles as positively reflecting on the "stability of international navigation in the Red Sea". Cf. the remarks of S. Rosenne, An International Law Miscellany (1993), chapter 27, "The Strait of Tiran", pp. 723 and 725-730, on the conflict that resulted from the occupation by Egypt in the end of 1949, as part of its blockade of the Gulf of Aqaba, of the islands of Tiran and Sanafir (of possibly Saudi Arabian sovereignty) at the entrance to the Strait of Tiran and the Gulf of 5 Aqaba. Cf. V.L. Forbes, "The Geopolitics of Islands: Zuqar and Hanish Archipelagoes, and Press Release No. 1 of Zuqar-Hanish Commission", (1995) 9 Indian Ocean Review8-11 and (1996) 10 Indian Ocean Review 1 ;D.J. Dzurek, "Eritrea-Yemen Dispute Over the ", (1996) 4 IBRU Boundary and Security Bulletin 1, 70-77; Dzurek, "The Hanish Islands Dispute", (1996) 1 Eritrean Studies Review 2, 133-152; and J.-L. Peninou, "Veill6e d'armes en mer Rouge", Le Monde 24 Juin 1996. 6 Diplomatique, See (1998) 6 IBRU Boundary and Security Bulletin 2, 22-23. See also 1987 Declaration of Yemen, note 2 above. The first maritime boundary in the Red Sea was effected by means of the Israel-Jordan Maritime Boundary (Gulf of Aqaba) Agreement of 18 January 1996. See J.I. and L.M. International Maritime Boundaries vol. III, 2456-2461. 7 Charney Alexander, (1998), pp. See J.-L. Peninou, "The Ethiopian-Eritrean Border Conflict", (1998) 6 IBRU Boundary and Security Bulletin 2, 46-50; Statement of the Foreign Ministers of the Five Permanent Members of the Security Council, UN Doc. S/1998/890, para. 9 in fine, 24 September 1998; and Statements on the New Ethiopian Map, UN Docs. S/1998/956, 977 and 998, 20 and 26 October 1998.