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Barbados V. Trinidad and Tobago a Case Summary for the Maritime Dispute Resolution Project Round II

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Barbados V. Trinidad and Tobago a Case Summary for the Maritime Dispute Resolution Project Round II Barbados v. Trinidad and Tobago A Case Summary for the Maritime Dispute Resolution Project Round II U.S.-ASIA LAW INSTITUTE NEW YORK UNIVERSITY SCHOOL OF LAW Maritime Dispute Resolution Project Arbitration Between Barbados and the Republic of Trinidad and Tobago Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf Between Them (Barbados v. Trinidad & Tobago) Case Summary by Peter A. Dutton* A research project of the U.S.-Asia Law Institute * Professor of Strategic Studies, U.S. Naval War College; Senior Fellow, U.S.-Asia Law Insti- tute (United States) The views expressed herein are those of the author, and do not necessarily reflect the views of the United States Navy or any agency of the United States Government. Contents Project Overview ......................................................................................................... 1 Section I – Summary of the Case .............................................................................. 2 Section II – Summary of Key Substantive Issues .................................................... 4 1. The Tribunal’s Jurisdiction............................................................................... 4 2. The Appropriate Method of Delimitation. .................................................... 6 3. Delimitation in the West .................................................................................. 7 4. Delimitation to the East: ............................................................................... 13 Section III – Implementation of the Tribunal’s Decision ................................... 18 Section IV – Conclusions ........................................................................................ 21 Project Overview This case summary was prepared as part of the U.S.-Asia Law Institute’s Maritime Dispute Resolution Project. The institute began the project in 2018 in order to better understand the circumstances in which interstate maritime disputes are successfully resolved and distill lessons for governments. The two main questions the project seeks to answer are: When are international institutional dispute resolution mechanisms effective in resolving maritime disputes? What insights can be applied to the maritime disputes in East Asia? To address these questions, leading international lawyers and legal scholars held workshops to analyze selected disputes from around the world. This and other case studies were prepared for the workshops and are based on the official records. Citation: Arbitration Between Barbados and the Republic of Trinidad and Tobago, Relating to the Delimitation of the Exclusive Economic Zone and the Continental Shelf Between Them, (Barb. v. Trin. & Tobago) 27 R.I.A.A. 147-251 (2006) 1 Maritime Dispute Resolution Project Section I – Summary of the Case Background. Barbados and Trinidad and Tobago (hereafter Trinidad) lie about 156 miles apart across the Caribbean Sea east of the Lesser Antilles. The two states attempted to negotiate a maritime boundary for 30 years. In 1979, early in the negotiating process, they entered into a MOU to cooperate on hydrocarbon exploration and fishing, but the agreement expired after one year without further progress. In 1986 Trinidad declared itself an archipelagic state and established its Exclusive Economic Zone (EEZ). Thereafter, on several occasions between 1988 and 2004, Trinidad arrested Barbadians fishing off the northern island of Tobago. In 1990 the two entered into a one-year Fishing Agreement to allow Barbadians to fish in Trinidad’s EEZ and sell fish in Trinidad’s markets, but further negotiations proved unsuccessful. Barbados initiated arbitration pursuant to the United Nations Convention on the Law of the Sea (UNCLOS) article 286, regarding compulsory proceedings entailing binding decisions. Both states are party to the UNCLOS. Neither submitted exceptions to dispute resolution under article 289, and neither made a venue selection under article 287. Barbados requested the tribunal determine a single maritime boundary between the EEZs and continental shelves of the two countries. Barbados’s claim to a single unified boundary suggested the tribunal start with a provisional median line, but as a special circumstance to award it a substantial portion of what would otherwise be Trinidad’s EEZ (indicated in green on the map below) in which Barbadians claimed to have rights to “traditional artisanal fishing activities.” 2 Maritime Dispute Resolution Project Map 1: Barbados’s suggested delimitation. Source: Arbitral award Trinidad’s response argued that the expanse of water between the two island countries should be divided based on two different sectors: an opposite portion in the Caribbean and an adjacent portion facing the open Atlantic Ocean. Trinidad agreed the delimitation should begin with a median line but found no basis to deviate from it in the “Caribbean sector” to accommodate Barbados’ claimed traditional fishing rights. In the “Atlantic sector” Trinidad claimed a right to “a full maritime zone, including continental shelf,” and a right of access to the full extent of the continental margin. Accordingly, to ensure its access would not be cut off, Trinidad requested a northward modification of the strict equidistance line in this area to ensure its access to an extended continental shelf and thereby avoid an inequitable result. 3 Maritime Dispute Resolution Project Map 2: Trinidad’s suggested delimitation Source: Arbitral award Section II – Summary of Key Substantive Issues 1. The Tribunal’s Jurisdiction. Trinidad claimed the existence of a dispute had not been proved, because negotiations were ongoing, it had never seen Barbados’ claims lines before they were put to the tribunal, and therefore the meaningful negotiations required by UNCLOS articles 74(1) and 83(1) could not have taken place. Further, it claimed the exchange of views required by article 281(1) had not taken place and “where parties are engaged in such negotiations and a dispute crystallizes, they must agree jointly to proceed to an exchange of views,” which 4 Maritime Dispute Resolution Project did not occur before Barbados filed under UNCLOS Part XV. Finally, it argued that Barbados was estopped from claiming any of the waters of Trinidad’s EEZ because Barbados had previously accepted the area as belonging to Trinidad and their 1990 Fishing Agreement allowed Barbadian fishers to fish there. Barbados argued the existence of a dispute was clear from the numerous differences that arose between the parties over five years and nine rounds of unsuccessful negotiations. It said Trinidad’s position that agreement of both parties is needed before moving from negotiations to dispute resolution procedures would end the right to invoke arbitration as long as one state wanted further talks. Further, it argued the 1990 agreement was for one year and was not renewed, and therefore Barbadian fishers lacked a right of access to waters they had traditionally fished. Tribunal decision: The tribunal found that parties engaged in relevant discussions beginning in the 1970s and entered into nine rounds of negotiations between July 2000 and November 2003. “In the tribunal’s view, the parties … negotiated for a reasonable period of time” and “no agreement having been reached … [they had] an obligation to resort to the procedures provided for in Part XV of the UNCLOS.” Further, the tribunal held that there are “clear disputes” about the applicable legal rules and the interpretation of UNCLOS articles and the relevant international law. The “exchange of views” requirement of article 283(1) does not apply where the negotiations required by articles 74 and 83 have already been undertaken and have failed to produce agreement. Thus, “upon the failure of the parties to settle their dispute by recourse to section 1 [of Part XV], i.e., to settle it by negotiations, article 287 entitles one of the parties unilaterally to refer the dispute to arbitration,” in this case justifying Barbados’ recourse to arbitration. 5 Maritime Dispute Resolution Project Barbados’ Statement of Claim relates the dispute to the delimitation of the EEZ and continental shelf. The relief sought is a single maritime boundary. Trinidad’s questions related to the extent of the continental shelf are therefore within the scope of the tribunal’s jurisdiction. However, “the dispute submitted to arbitration does not give [the tribunal] the jurisdiction to render a substantive decision as to an appropriate fisheries regime to apply in waters which may be determined to form part of Trinidad’s EEZ.” Such questions belong to article 297(3), which provides a limited right to conciliation over a coastal state’s exercise of its sovereign rights in the EEZ, including its discretionary powers related to allocation of the total allowable catch to other states. 2. The Appropriate Method of Delimitation. Trinidad agreed the starting point for delimitation is the equidistance or median line and accepted “possible adjustment … to achieve an equitable result,” but argued “due regard must be paid … to other delimitations in the region.” Further, it argued the western or Caribbean sector reflects opposing coastlines and the eastern or Atlantic sector reflects adjacency. In Trinidad’s view, “where states are opposite one another … the equidistance line is the preferred method of delimitation, but where states are adjacent, the equidistance line has been found to lead to inequitable results.” Barbados argued for what it called the “equidistance/special
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