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,
Considering
the "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 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 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 event
affect 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]