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Good Fences Make Good Neighbours
Posted: Tuesday, April 20, 2004

By Stephen Kangal
Map of archipelagic baselines

Caribbean small island developing states (SIDS) have had a long incubation period prior to becoming progressively sensitised to and aware of the economic and social potential inherent in their maritime space to national development. Although T&T exercises dominion (sovereignty) over 2,000 square miles of land space it in fact exercises jurisdiction and control over, inter alia, living and non-living resources present in a marine area that is 20 times the area of its land space. Accordingly having regard to the economic over-dependence of T&T on the wealth-creating hydrocarbon resources of its marine areas it cannot be classified as a small state using conventional standards of maritime space.

Beginning in 1958 there was a gradual trend towards the recognition of increasing coastal state competence. By the mid-60's the original cannon shot rule of the 3-mile TS was being replaced by the 12-mile TS that had matured into a norm of customary law. Several Latin American Republics had already extended maritime claims of 200- miles for varying jurisdictions.

The first international claim to ownership of the seabed and subsoil located outside of the then 3-mile TS (the concept of the continental shelf) was effected through the HMG/ Venezuela 1942 Gulf of Paria Treaty. However the Truman Proclamation of 1945 provided both the widespread legitimacy and momentum (practice of states) for the progressive development of the regime of the continental shelf. The effects of increasing the geographical scope of maritime claims led to overlapping maritime claims. Accordingly delimitation boundaries had to be negotiated and established to demarcate the extent of rights in areas of these overlapping claims.

Delimitation of maritime boundaries is an important issue in the Caribbean archipelago since the islands are in close proximity to each other as well as to the South American mainland. Hitherto it has not assumed a high profile in Caribbean politics because most islands appear to be inward and landward in their foreign policy orientation.

Within a period of 40 years (1942-1982) coastal states increased their maritime competence from 3- miles to 350 miles (Article 76 of UNCLOS) measured from the relevant baselines. Additionally what was res nullius or the seabed and subsoil under the high seas has now been assimilated under the regime of the Area Beyond National Jurisdiction (Part XI of UNCLOS) to be administered by the International Seabed Authority (ISA) based in Jamaica. There has in fact been a carving up of the oceans driven by the need to explore and exploit its vast economic potential for the benefit of the peoples of coastal states. Maritime areas subsumed originally under the high seas regime have progressively been decimated and brought under national jurisdiction.

T&T initiated this process of the invasion of the regime of the high seas or what was termed as the concept of creeping jurisdiction. In 1942 beyond its 3- mile TS it extended its continental shelf rights to the AB-BY-YX boundaries with Venezuela. Post 1958 T&T was authorised by the exploitability criterion of the Continental Shelf Convention to venture seawards as far as the available technology allowed it to establish rights and exploit marine resources. By 1969 it declared a 12- mile TS by Act No 43 1969.

The holding of The Third UN Conference on the Law of the Sea (1973-1982) caused the old order of the Law of the Sea initiated originally by the practice of the developed world to be radically reformed. The newly independent states of the ACP insisted that their wishes and aspirations must be factored into defining the emerging new public order for the oceans. The new LOS had to be responsive to their developmental needs. Accordingly by the early 1970's the concept of creeping jurisdictions began to manifest itself in the form of 200 miles of economic-based rights over resources by way of fishing zones, economic zones etc. During the negotiations at UNCLOS III many states sought to influence the UN multilateral process by developing regional/bilateral positions and practices that shaped the results of the UN multilateral conference diplomacy.

By 1982 when the Montego Bay Convention on the Law of the Sea was signed there had developed a uniform and consistent practice on a number of regimes that extended the coastal state competence to 200 miles the most notable of which was the concept of the 200-mile EEZ. Accordingly by Act No.24 of 1986 T&T declared itself an archipelagic state and promulgated straight baselines by Notice No. 206 of October 1988. It also claimed a 200-mile EEZ as well as a continental shelf that extended to the edges of its continental margin beyond 200 miles from its archipelagic baselines.

By 1989 T&T and Venezuela concluded a Partial Delimitation Agreement (PDA). The PDA was complemented by the 1990 comprehensive Treaty that established all maritime boundaries between T&T and Venezuela. Some fourteen years afterwards both Barbados and Guyana seem to have awakened from their maritime slumber and realised that they should have reserved their position in 1990 on this Treaty. In the year 2004 both Barbados and Guyana now claim that this Treaty infringes their potential maritime jurisdiction.

Four years and 5 rounds of secretive T&T/Barbados maritime delimitation negotiations have failed to achieve a mutually agreed maritime boundary. Barbados unilaterally and secretly submitted the delimitation matter to the compulsory dispute settlement procedures of Part XV of the UNCLOS that entails a binding decision. The delimitation issue was always over-shadowed by the fishing negotiations geared to accord access to Bajan fishermen to fish for flying fish in the grounds located off Tobago. The 1990 Fishing Agreement was renewed in 1991 but Barbados opted for the negotiation of a successor agreement and tabled terms that can be considered as unreasonable if not arrogant.

The resulting secretive, unilateral and premature Bajan submission to an ad hoc tribunal to be constituted in accordance with Annex VII of UNCLOS has soured TT/Bajan relations and brought it to its lowest ebb. There was in fact no breakdown of maritime boundary negotiations recorded at the Fifth Round held in November 2003 and the issue of a Press Statement (February 17) and the Statement of Claim (Feb.16) by Bridgetown leaves much to be desired.

The Minister of Foreign Affairs of T&T issued a Statement in which he paid attention to the lack of good faith by Barbados in the whole matter and which is likely to influence the judgment arising from the adjudication process in favour of T&T.

There are in fact 5 modules that are driving contemporary T&T's maritime relations with Barbados. These are:
The Delimitation Issue
The Fishing Issue
The Position of Barbados on the 1990 TT/Venezuela Delimitation Treaty
The Consequent Trade and Economic Module
The Political Response. Potential Military and Energy-Security based and Motivated Response.

Let us now focus on the elements of the Maritime Boundary Dispute.

Barbados is illegally insisting that the median/equidistance method of delimitation has an obligatory force but has not placed any substantive proposal on the negotiating table. It is also opposed to the use by T&T of its archipelagic status including its straight baseline from Little Rock to Little Tobago. It insists that both states are exclusively opposite and it appears to ignore the principles underlying an equitable delimitation. It has not exhausted local remedies including the need to conduct bilateral negotiations over a reasonable period of time nor has adhered to the obligation to conduct an exchange of views to determine mutually the dispute settlement mechanisms. It has submitted the matter secretly, unilaterally and in bad faith to an ad hoc tribunal of Part XV of UNCLOS in the face of no overt evidence of a breakdown of negotiations having taken place as late as of November 2003. It is accordingly standing on very tenuous grounds and is attempting to get the Tribunal to do the work that the parties are under legal obligation to do for themselves. Its behaviour can be considered puerile and unbecoming of the conduct of a sovereign state. It has unilaterally chosen a dispute settlement mechanism that is prohibitively costly and whose judgment can be tainted and contaminated.

On the other hand T&T should have intervened to bring about some sanity in the dispute settlement process by suggesting the use of ITLOS that would have been at no cost to the litigants. In fact T&T had an obligation to bring to the attention of Barbados a number of issues relating to the still-born nature of the dispute that was not ready for third party adjudication.

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