ANNEXES
Annex I - The Arbitration
Agreement
Annex II - Yemen's Answer to Judge Schwebel's Question Put to Yemen
on Tuesday, 13 July 1999
Eritrea's Answer to Judge
Schwebel's Question
ANNEX II
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, pages 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 condominia 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 nothing 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 the process of maritime delimitation,
and no doubt caution will be needed to avoid a prefiguring of equitable
principles and concepts, which are in law only relevant 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 discussed 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 provisions
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 currently 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
traditional 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 recognises that, in deciding the issue of
sovereignty over various Red Sea Islands in the first Award, the Tribunal
stated in its 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".
The historical basis of this finding was further
explained in paragraph 128 where the Tribunal 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 throughout 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 nature".
It is Yemen's view 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. 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 delimitation of the maritime
boundary between the two countries. Indeed, it is clear that both Parties
understood this to be a mutual obligation which existed apart from the question
of delimitation of their maritime boundary in that, as the November 1998
Agreement between the two Governments indicates, Yemen and Eritrea have been
formulating a regime of cooperation with respect 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 (Transcript, 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 Parties, 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
preservation of the traditional fishing regime. It is in this connection that
Yemen advanced the dependence 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 recognised in
the Tribunal's first Award. That paragraph provides, 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 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".
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 committed to its implementation. As
can be seen from its terms, the 1994 Agreement envisages a regulatory 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 to 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 committee 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.
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
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
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
For the Republic of Yemen
[Signed]
[Signed]
Haile Woldense
Abd al-Qadir Abd al-Rahman Ba-Jammal
Minister of Foreign Affairs
Deputy Prime Minister and Foreign Minster