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Why is T&T Not Talking to the Venezuelans
By Stephen Kangal
October 08, 2008
Prior to the commencement of the TT/Barbados Maritime Boundary Arbitration I wrote in March 2004 to former Minister of Foreign Affairs Knowlson Gift advising that T&T should hold immediate consultations with our Venezuelan treaty partner with respect to collaborating on the defence of the maritime boundary that they jointly established by treaty in 1990. Points 1 to 22 of the boundary are illustrated in the chart below.
That advice was ignored. T&T entered an appearance into the arbitral tribunal hearings held in London led by former AG John Jeremie without appreciating that the heart and soul of the success of T&T in the bilateral litigation, from a T&T perspective, lay exclusively in upholding the legal integrity of the illustrated bilateral boundary in tact against any encroachment on the allotted areas from Barbados.
In fact to my utter consternation I discovered that the T&T Delegation submitted quite unwittingly and on its own volition before the Arbitral Tribunal that the points of the above-mentioned 1990 maritime boundary that had been in legal existence for 14 years were not opposable to or binding on Barbados.
I personally organized the ratification ceremony of the Treaty at Knowsley held on 23 July 1991. I invited Mr.Da Silva, the resident High Commissioner of Barbados to T&T and personally handed him a copy of the Treaty. He obviously failed to report to Bridgetown.
Even though the 1990 Treaty is "res inter alios acta" (applicable only to the parties concerned) Barbados was not any "third state", say like distant Denmark and Norway. Located in the immediate vicinity of the delimitation line the rights of Barbados and Guyana stood to be potentially adversely affected by the boundary established in the Treaty. Parts of the exclusive economic zones of both Guyana and Barbados were included in the maritime continental shelf areas allocated by treaty to Venezuela and T&T. They were both required in their capacity as neighbouring and adjoining maritime states to act as responsible members of the international community to secure their rights by reserving their positions.
The attached chart establishes this point of overlapping claims quite succinctly and effectively.
The principles of customary international law demanded immediate protest from states in the geographical vicinity who stand to be adversely affected in order to secure and defend their rights. Protesting against the Treaty fourteen years after the fact is not a valid act of protest that can be upheld in and be considered valid in international litigation. They were deemed to have acquiesced. A clear case of "estoppel" had arisen by 2004. Venezuelan technocrats will have contributed forging an impregnable defence relating to this aspect of the T&T position.
The fact that the Treaty in one of its statutory provisions, that is to say Article II (2) spoke of the boundary not affecting "…the rights of third states…" but still proceeded to do so, placed a legal onus on those maritime states that stand to be affected nevertheless to act on their international law obligation to protest. Failure to protest at the appropriate time implied acquiescence on the part of Guyana and Barbados.
Venezuela could not apply to become party to the TT/Barbados arbitral proceedings as Guyana did, because it is not a signatory to the Law of the Sea Convention under the dispute settlement provisions of which the litigation was being prosecuted. But if requested by T&T, and I am suggesting that T&T should have done so, Venezuela could have through bilateral channels assisted us to make a legally impregnable and convincing submissions to the hearings as they unfolded before the Tribunal sittings which were held at the Dispute Resolution Centre in London, England. The Permanent Court of Arbitration located in the Hague provided registry services to the Tribunal.
Latins are generally ahead of the anglo-phones in dealing with maritime affairs and appreciating the value of the oceans. I was able to assess the negotiating skills of the Venezuelans as well as their Law of the Sea erudition in my several official bilateral marine affairs interface with them.
After the issue of the Judgment on 11 April 2006 I again reiterated a fruitless call for T&T and Venezuela to consult on the Judgment. I even met the officials of the Venezuelan Embassy in POS to try to get the Venezuelans to protest against the Judgment.
The T&T Government apparently were misled by the claims of victory coming from the Statement issued in the Senate by the AG Jeremie and accordingly felt that why consult if we won.
At the beginning of June Barbados issued notices internationally for oil leases that further hem us in and even encroach south of the 1990 boundary into areas that were allocated to Venezuela. The Tribunal stopped at the 1990 line and did not continue the boundary to meet the notional equidistance line with Guyana. But Barbados has the arrogance to now go beyond the prescription of the Judgment.
The net effect of this creeping maritime encroachment of Barbados on maritime areas located south of the 1990 Boundary based on its full 200 mile claim is to render the 1990 Treaty into disarray and to bring the Venezuelan factor into the equation. Venezuela should have been in the picture since February 2004.
T&T sold guns to the Bajans by recognizing before the Tribunal the Barbados-Guyana EEZ Co-operation Zone that is also located in areas southwards of the 1990 boundary that belong to Venezuela. This triangular EEZ Co-operation Zone is shown in red in the above chart (Map I). It marks the confluence of the 200 miles arcs drawn from Little Tobago, Kitridge Point in Barbados as well as from Guyana. Both Guyana and Barbados share notional EEZ jurisdiction over this EEZ Co-operation Zone. It represents two Caricom countries ganging up to undermine Trinidad and Tobago's maritime interests.
The time is now ripe for Manning to be speaking to Chavez in defence of our common maritime hydrocarbon yielding interests because the matter is not yet over.