Maritime Delimitation Must be Equitable
Posted: Sunday, May 23, 2004
By Stephen Kangal
May I thank my former teaching colleague, attorney-at-law Mrs Christine Allahar (Newsday March 5, p.10) for taking the time away from her lucrative law practice to scrutinize my submission (Sunday Newsday February 29, p. 30). I exercise my right of reply to assess whether the grounds on which she based her conclusion that Guyanese maritime interests were infringed ("act of betrayal") by the 1990 TT/Venezuela Delimitation Accord are legitimate and well-founded.
It is overridingly critical to any valid argument to bear in mind that the delimitation negotiating/adjudication process is geared to facilitate arriving at maritime boundaries or limits that can stand the scrutiny of the standards of equity both for the EEZ and the continental shelf (CS). States have the legal obligation to so conduct negotiations that they contribute effectively, promote and facilitate the achievement of an agreement between the parties having taken into account the law-determining agencies mentioned in Article 38 of the Statute of the International Court of Justice (ICJ) consistent with international law (Articles 15, 74 and 83 of UNCLOS).
Mrs. Allahar, regrettably, has rationalised her dissenting opinion, which I genuinely respect, on some false assumptions and unforced errors. I say this in the full knowledge that the Law of the Sea is precise, technically demanding and challenging. Its construction and understanding is also time-consuming without generating reasonable expectations of or resulting in lucrative briefs for lawyers.
For a starter and in deference to Ms Allahar, Point 1 not located on the triple point of the notional equidistance line drawn from T&T, Grenada and Venezuela but in fact a few miles short of the point along the meridian. Secondly the median/equidistance method does not enjoy an obligatory status, a legal requirement nor a presumption in its favour in effecting any boundary delimitation ( Libya/Malta Case (1985 ICJ Reports). Accordingly it was neither compulsory nor obligatory to proceed (as Mrs. Allahar propounded) along the notional equidistance line beyond point 20 to the triple point because it would have ignored, infringed and done violence to a relevant/equitable consideration i.e the need to afford a high seas egress to Venezuela. In fact Guyana will be forced, and I say this without doubt of being proven wrong, to consider withdrawing from the notional equidistance line southwards to contribute to the 844 square miles of ocean space attributed by T&T to the Venezuelan legitimate, negotiating demand to be accorded a high seas corridor to the Atlantic and no to be shut in.
Ms Allahar will be the first to admit that T&T's maritime economic interests/ over-dependence even today are enormously greater and more pressing than Guyana's. T&T, whatever Government is in charge, has an inalienable right, indeed a compelling obligation and makes no apology for assertively and effectively securing and prosecuting those vital interests to enhance and promote the progressive increase in the economic and social welfare of its people. This is facilitated by the demarcation of the legal limits of its maritime jurisdiction and control (good fences make good neighbours theory) to provide security of tenure to existing and future hydrocarbon installations. Accordingly when T&T chose to establish its southern maritime boundary with Venezuela north of the notional equidistance line what legal/equitable compulsions as opposed to political/distributive justice standards are there to prevent it? Is it to facilitate Guyana having to deal with T&T rather than Venezuela and to have exposed us to the arrogance of the late comrade Forbes Burnham and then President Desmond Hoyte?
To answer Mrs. Allahar's loaded imputation relating to the non-mention of a third state, let me state that point 22 (bilateral Continental shelf boundary beyond 200 miles) is tentatively fixed having regard to the non-availability of the relevant and precise geologic/geomorphologic data on the structure, location and configuration of the continental margin that UNCLOS in Article 76 prescribes as the conditionality to be used for fixing it definitively and conclusively. T&T and Venezuela will also have to conduct negotiations with the International Seabed Authority (ISA) (Part XI of UNCLOS) and the UN Commission on the Limits of the Continental Shelf (Annex II) in this regard. Additionally there was no evidence readily available even to speculate far less to conclude that Guyana's but certainly not Barbados' natural prolongation extended this far into the deep Atlantic. Establishing a nexus or correlation to the Essequibo Region claim is quite imaginative but out of joint.
I fail to appreciate what is meant by the words "correct thing" that appear to be the basis for thesis stated favourable to Guyana. Do they mean legally compelling? Do they mean to be consistent with an equitable delimitation? Or are they based on moral/ politically correct grounds or an aspect of distributive justice that are totally irrelevant, immaterial and foreign to the legally admissible criteria determining maritime boundary delimitation? What do they mean Christine?
Mrs Allahar conjectures that the conclusion of the Treaty by T&T was motivated by both "eagerness" and " in order to further its own economic interests" with a hint of haste. Could 23 years of bilateral negotiations (1973-90) conducted when there were fundamental reform of the laws taking place at the UN be reasonably classified as hasty? What is wrong with T&T vigorously but legally pursuing its vital economic interests? Who, I pray will have pursued it for us? Certainly not the late Comrade Burnham (who exported Indian Maid rice to Libya and starved T&T in the late 70's), PM Arthur (hauled us unilaterally to arbitration and now claims our marine oil wells/gas wells located on our doorsteps) and incumbent President Jagdeo who is now ganging up with our Bajan neemakharams to close in and coral us from the north and south flanks dictated by good military strategy via their EEZ Treaty.
Send page by E-Mail