Eritrea – Yemen Arbitration Documents [Archives:2000/06/Law & Diplomacy]

Part 4 in a series 
Phase II
Maritime Delimitation
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 co-ordinates 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 the historic median line. The coordinates that have been chosen for drawing these two lines are either on land territory or 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 me 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
(Attachments – in preparation)
Basepoint Coordinates for Eritrea’s Proposed Historic Median Line
Basepoint Coordinates for Eritrea’s Proposed Historic Median Line in Degrees and Minutes (Approximated) Basepoint Coordinates for the Western Edge of Eritrea’s Proposed Delimitation Western Basepoint Coordinates
Eastern Basepoint Coordinates
Basepoint Coordinates for the Western Edge of Eritrea’s Proposed Delimitation in Degrees and Minutes (Approximated)
Western Basepoint Coordinates
Eastern Basepoint Coordinates
ANNEX III
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 service 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 for Bilateral Cooperation, hereinafter referred to as the “Joint Committee,” with the two Ministers of Foreign Affairs presiding. The Ministry of Planning 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 between 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 visits and meetings between officials of both countries, 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 submit 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 chairmen of both sides on the Joint Committee, and approved by the relevant authorities in both countries pursuant to the laws and regulations in effect in each country.
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 Friday, 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[Signed]
Haile Woldense
Minister of Foreign Affairs
For the Republic of Yemen[Signed]
Abd al-Qadir Abd al-Rahman Ba-Jammal
Deputy Prime Minister and Foreign Minster
ARBITRATION AGREEMENT (October 3, 1996)
The Government of the State of Eritrea and the Government of the Republic of Yemen hereinafter “the Parties”);
Prompted by the desire to re-establish their peaceful relations in the spirit of the traditional friendship between their two peoples,
Conscious of their responsibilities towards 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,
Consideringthe “Agreement on Principles” between Eritrea and Yemen 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.
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 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 President 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 after 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 the members of the Tribunal commit themselves to exercise their powers impartially 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 international law, in two stages.
2. The first stage shall result in an award on territorial sovereignty and on the defmition 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 Tribunal 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 indicated and the position of all the points mentioned shall be given by reference to their
co-ordinates 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) above.
Article 3
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 President may determine that the absence of not more than a single member from any proceeding 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.
b) 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 proceedings shall continue from the point 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 provisions 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. Subject to paragraph 2 of this Article, the decisions of the Tribunal concerning questions of substance or questions of procedure, including questions related to the competence of the Tribunal or the interpretation of this Arbitration Agreement, shall be made by a majority of its members if those decisions cannot be made unanimously.
2. In the case of an even division of the votes in the circumstances referred to in paragraph 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 shall determine. Any documents or other evidence so produced shall also be provided to the other Party.
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 evidentiary 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 Ashall 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 submission of the memorials;
c) Any other pleading that the Tribunal deems necessary, such pleading to be submitted 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 Artick 8, paragraph 3.1 above.
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 proceedings 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 before the Tribunal until the award on questions of territorial sovereignty and the definition of the scope of the dispute is rendered.
3.4 The Tribunal shall render its award, which shall be binding, on questions of territorial sovereignty and the defmition 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 rendering. 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 mentioned 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 shall 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 sovereignty 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;
c) Any other pleading that the Tribunal deems necessary, such pleading to be submitted 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 above;
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 proceedings 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 boundaries in so far as possible not later than three months after the end of the proceedings before it as declared under Article 8, paragraph 4.3 above.
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 simultaneously 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 pleadings 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 preparation 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.
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 case.
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 measures which it considers appropriate under the circumstances to prevent irreparable harm or damage to the natural resources of the area or to preserve the status quo as of 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 themselves 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, cartographical or typographical errors. Any such corrections shall in no eventaffect the timetables set out in Article 8 above.
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 submission of written pleadings set forth in Article 8 above 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.
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 decisions of the Arbitral Tribunal or the considerations 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 Principles, 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-General 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 possible after the rendering of the award on delimitation of maritime boundaries with the Secretary-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 Governments, 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 in the Arabic, English and French languages, the English text being authentic.
[signatures]

——
[archive-e:06-v:2000-y:2000-d:2000-02-07-p:./2000/iss06/l&d.htm]