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T&T Must Veto Boundary Arbitration
Posted: Tuesday, March 16, 2004
By Stephen Kangal, Caroni
I wrote recently (Newsday Feb.20, p.12) that Barbados acting unilaterally cannot haul T&T before Arbitration in a matter relating to the current maritime boundaries delimitation for adjudication by the compulsory dispute settlement procedures in Part XV of the 1982 Convention on the Law of the Sea without the matter being considered frivolous, vexatious and an abuse of the UN legal process.
Accordingly I strongly urge the Gov't of T&T in defence of the national interest to immediately engage the procedure outlined in the safeguard provision, namely Article 298 (1) a) I, Section 3, Part XV of UNCLOS by informing the UN Secretary General, in writing, that T&T does not accept, at this time, pending a detailed review of the situation the compulsory dispute settlement procedures entailing binding decisions. This reservation or caveat should be entered with respect to " disputes concerning the interpretation or application of articles, 15, 74 and 83 relating to sea boundary delimitations...". T&T must however, agree, in writing to the acceptance of the less hazardous option of conciliation procedures.
Such action is not intended to get even with or retaliate against Barbados but it is geared to entice Barbados to return to the bilateral negotiating table in the face of having not adhered to the prescribed procedures prior to its unilateral submission to a Third Party Arbitral adjudication mechanism to be constituted in accordance with Annex VII. Some of these procedural steps that were ignored and circumvented in a very hasty and premature unilateral action by Barbados include;
The strong obligation that rests with the parties to the dispute, that is T&T and Barbados, in accordance with Article 298 (1) (a) (I), to have undertaken and exhausted all possibilities in genuine negotiations conducted over a reasonable period of time and showing the clear intention to reach a positive result ie. an equitable delimitation. My reliable information is that negotiations of a substantive nature have not in fact being held within the last 4 years.
2.The further obligation contained in Article 283 for T&T and Barbados (the litigants) to undertake a prior exchange of views on the feasibility of resuming negotiations or failing which, the submission, if possible to a mutually agreed dispute settlement mechanism with a view to avoiding the engagement by T&T of the non-acceptance or veto option as outlined in Article 298 above and thus render the unilaterally chosen adjudication procedure null and void.
3.The need for the Parties to decide on the principle of ex aequo et bono for the guidance of the Arbitration.
4. To formulate an agreed and precisely and clearly worded description (definition) of the scope of the issue on which the duly constituted dispute settlement mechanism is requested to exercise its jurisdiction and provide a decision or verdict lest the unilateral wording (as in the case of Barbados) is in itself disputable.
Failure of the parties acting jointly to adhere to these requirements will, in my opinion, lead the Arbitral Tribunal to refer matter back to the litigants to resume their negotiations or declare the matter an abuse of the UN legal process or frivolous and vexatious.
It is now not passing strange that the Gov't of Barbados after its hue and cry (grand charging) has now abandoned the legal resolution of the fishing dispute as well as the determination under international law of the legal status of the 1990 Treaty that is now opposable to Barbados. So much legal noises were made of their so-called sacrosanct historic, traditional and habitual rights fishing rights by AG Mia Mottey that one is tempted to conclude, quite uncharitably that their agitation and garrulous diplomacy has boiled down like Bhaghee.
Let it be said that Barbados knew that access to the fishing zones of foreign states is excluded from the compulsory settlement provisions of Part V. They also know of T&T's rights under the reservation option as stated before.
The Statement of Claim was submitted to the United Nations (Newsday Feb, 19, p.11) and copied to Knowsley by the Government of Barbados on the same day (Monday 16 Feb) that Prime Minister Manning's delegation was engaged in discussions, exclusively on fishing matters by visiting Bridgetown without even a word being uttered to the guests. The Tribunal will take judicial notice of this contempt and lack of comity and good faith in the negotiations and throw out this case.
Even in the Statement of Claim Barbados confuses fishing with the delimitation dispute and proceeds to incorrectly state the subject of the dispute. The text of the dispute should have requested the Tribunal to undertake an 'interpretation or application of articles 74 and 83' relative to the maritime areas lying between T&T and Barbados.
Once Barbados has declared a 200-mile EEZ it has no legal continental shelf located beyond or before 200 miles having regard to the geology and geomorphology of the submarine areas located beyond 200 miles. Even if it had a continental shelf that would extend beyond 200 miles, which it does not, it would be necessary to have two maritime boundaries and not "a single unified maritime boundary delimiting the exclusive economic zone and the continental shelf between it and the Republic of Trinidad and Tobago as provided under Articles 74 and 83 of UNCLOS" (Section 15 of Statement).
In my view although T&T has not issued in writing to the Secretary-General reserving its position in respect of optional exceptions contained in Article 298 when it signed and ratified the Convention, it is expressly authorised and entitled to in law to do so "at any time thereafter..." after ratification.
Accordingly it is my recommendation that T&T should invoke its rights as Suiname is likely to do, to avert and stem the potential tide of a procession of unilateral maritime litigants on pilgrimage to Hamburgh. The current agenda of geo-politics constitutes a dangerous threat to the peace and tranquillity that currently presides over the Eastern Caribbean ocean space.
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