Cdre Md. Khurshed Alam Ndc, Psc Bn (Retd) *
It is rare that an international tribunal awards total victory to one party in a maritime boundary dispute. This appears to be almost inevitably so even in situations where strict application of legal principles to the geography of the situation would seem to require that result. Two maritime boundary arbitrations- the 1999 Eritrea v Yemen and Qatar v Bahrain case under the 1982 Law of the Sea Convention (UNCLOS) merit discussion.
The international law of maritime delimitation has been the subject of considerable examination during the past half century. The history of the development of the law through the cases, starting from the 1969 North Sea Continental Shelf cases, has been well documented and it would be better to focus on both the maritime boundary cases decided under the UNCLOS. First of all, we would like to discuss the Eritrea and Yemen case, which was the delimitation of a single maritime boundary.We find that the arbitration about the Eritrea and Yemen case was conducted before an ad hoc Tribunal under the auspices of the Permanent Court of Arbitration.
The case involved a dispute between Eritrea and Yemen States about sovereignty over the Red Sea area between them and in the second phase - the maritime delimitation that took place after the tribunal had already allocated between them sovereignty over the four sets of contested mid-sea islands. The tribunal stated at the outset that it would approach the delimitation using the proposition that a median line fits the requirements of UNCLOS articles 15, 74 and 83. Both Parties in turn claimed that their proposed delimitation line was based on the median line. The Parties differed with respect to the effect that should be given to the mid-sea islands, whose sovereignty had been decided in the first phase.
The Tribunal recognised that the provisions of UNCLOS required an equitable result achieved. Its role was to examine whether giving the mid-sea islands full or partial effect would achieve the desired result. The Tribunal examined in general terms whether giving the islands a certain effect (full or partial) would produce a disproportionate effect on the maritime boundary, depending on their size, importance and like considerations in the general geographical context.
The Tribunal divided the maritime area between the Parties into three different sectors North, Middle and South for the purpose of the delimitation. In the North, it maintained that the delimitation was essentially a mainland-to-mainland delimitation between the Parties' opposite coasts. In the Middle, it held that the delimitation became complicated by the presence and proximity of the mid-sea islands. The Tribunal concluded that the boundary would have to be moved to the west in order to take into account overlapping Territorial Sea and three sets of mid-sea islands. The Tribunal gave the mid-sea islands certain partial effects, but did not explain its methodology. Interestingly, the Tribunal rejected various arguments made by Yemen in relation to the Middle sector that would have given it control over all the shipping lanes in the southern Red Sea.
In the South, the Tribunal again used a coastal median line. Perhaps the most notable aspect of the Eritrea/Yemen Award was its treatment of the traditional fishing regime of the Parties in the Red Sea. In both phases of the arbitration, the Parties put forward claims to the effect that their nationals relied significantly on the Red Sea fishing industry and fish consumption. The first Award decreed 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. The Tribunal based its decision to recognise and give effect to the traditional fishing regime on what it referred to as local custom and Islamic law. The texts of the Awards, however, do not reflect a profound examination of either source of law.
In any event, the Tribunal's treatment of Islamic law does assist in bringing a new dimension to the exact nature of the rights and obligations imposed by the Awards under the aegis of the protection of the traditional Red Sea artisanal fishing regime. The Tribunal clarified that the obligation imposed on Yemen in relation to its sovereignty over the mid-sea islands extended to requiring Yemen to enable Eritrean fishermen to exercise their entitlement to fish around the islands and even use the islands freely for such traditional activities as drying fish, repairing boats and nets, establishing and using way stations, and taking shelter. The Tribunal took the view that the obligation also required Yemen to permit artisanal Eritrean fishermen to fish up to its mainland coasts and to permit them to land their catches in Yemeni ports.
Shortly after the Award was issued, the Parties met to discuss various aspects of their fishing activities in the Red Sea. It transpired that they had differing views of the Award on the issue of the traditional fishing regime and Eritrea requested a clarification from the Tribunal. A decree issued by the Tribunal in response to this clarification that Yemeni fishermen did not enjoy a right to fish off Eritrea's continental coast inside the internal waters of the Dhalak Islands in the northern sector. This ruling was particularly significant because the best fisheries in the Red Sea are around the mid-sea islands (awarded to Yemen in the first phase), off Yemen's mainland coast, and around Eritrea's Dhalak Islands. The effect of this clarification meant that, while the Eritrean's could fish around Yemen's fishing grounds in the Red Sea, Yemenis could not fish off Eritrea's fishing grounds.
Thus the benefit of the protections afforded to the traditional artisanal Red Sea fishermen in effect fall substantially to Eritrea. Ultimately, despite the Tribunal's post-award attempt to clarify the scope of the traditional fishing regime, it appears that the issue might still be considered by some to be far from clear. From the court rulings and the articles referred above, it can be derived that the land dominates the sea, right to maritime territory, whether Exclusive Economic Zone (EEZ) or Continental Shelf (CS), derives from sovereignty over its adjacent land territory and also in areas of overlapping Territorial Sea (TS) are to be divided by the median or equidistance line method, unless variation is required by historic title or special circumstances. The tribunal also dealt the issue of Islamic law for the first time in so far as the maritime boundary is concerned.
The Eritrea-Yemen Arbitration unanimously resolved the disputed territorial sovereignty over the Red Sea islands and the delimitation of international maritime boundary, to the satisfaction of both Parties and to the benefit of the consolidation of peace and security in one of the strategically most sensitive regions of the world, the solution of which had been awaited since the end of the First World War. With its recognition of a traditional fishing regime and crystallization of the criteria for maritime delimitation, it also made a significant contribution to the development of international law. The arbitration awards provide a notable instance of the role of dispute settlement by an international court on the basis of law, including the 1982 UN Law of the Sea Convention. The Award is a milestone in the development of principles and rules of international law governing the acquisition of territorial sovereignty as it confirms the pre-eminence of evidence of actual and effective occupation as a source of title to territory over claims of historic title. It sustains a low standard for what would constitute actual occupation as it relates to unsettled or inhospitable territory. At the same time, the Award provides a landmark decision substantiating the development of the modern law of equitable maritime boundary delimitation.
It confirms prominence of a single all-purpose maritime boundary and the governing role of equidistance (median line) as the equitable boundary between the opposite states. The Award substantiates the critical roles played in achieving the equitable result by considerations pertaining to baselines (normal and straight), islands, reefs and low-tide elevations, navigational factors and interests of third states, as well as by the principle of proportionality in terms of a posterior test of the equitableness of a result arrived at by other means.
The Tribunal's treatment of islands, islets, rocks and low tide elevations confirms that their definition and entitlement granted or denied to these maritime features depend on the degree to which they distort an equidistant line and other factors (such as comparison of coastal lengths abutting on the claim area), rather than on their legal status per se. Although the resource related factors did not ultimately influence the actual course of the Eritrea/Yemen single boundary line, the Tribunal's respective holdings importantly reappraise the international legal regime governing common mineral deposits on the one hand, and the role of fisheries factors in equitable maritime boundary delimitation on the other. The implementation by Eritrea and Yemen of this regime, of which substantive content was defined in the 1999 Award as applying to artisanal fishing and as involving the right of free passage and other associated rights, provide an interesting evidence on practical implementation of the Islamic concept of territorial sovereignty. The Awards are undoubtedly to continue to provide a valuable model for successful settlement of disputes in the two interlinked major areas of the acquisition of territorial sovereignty and maritime boundary delimitation in the future. We, in Bangladesh, are sitting far too long on the settlement of issues of the maritime boundary with both India and Myanmar. This is a good case study as the land of Bangladesh also dominates the seabed under the Bay of Bengal and our fishermen from all the coastal districts in a large number rely on fishing. Without which their very survival would be in stake and there are ample facts and figures in support of this. Both India and Myanmar are known to be bent upon using equidistance line as the line for maritime boundary demarcation with Bangladesh. But with both countries our coastline does not lie as exactly as an adjacent coast as in case of other countries. So we must study the methods through which we can prove our historic title or develop our case as relevant as special circumstances, or bring in the Islamic law as enunciated earlier, so as to get the advantage of the area likely to be lost due to following the equidistance line. Time is running out from our side on the delimitation of maritime boundary primarily because of our ignorance on the importance of the issue both at the political level as well as at the level of the ministry. Only the Ministry of Foreign Affairs can probably justify such long silence and inaction over the issue of maritime boundary delimitation with both India and Myanmar.
*The author is freelancer and an expert on maritime issues.