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Dispute Between DISPUTE BETWEEN BARBADOS AND THE REPUBLIC OF TRINIDAD AND TOBAGO REFERRED TO ARBITRATION IN ACCORDANCE WITH ANNEX VII UNCLOS BY NOTIFICATION OF BARBADOS DATED 16 FEBRUARY 2004 REJOINDER VOLUME 1 ARBITRAL TRIBUNAL CONSTITUTED PURSUANT TO ARTICLE 287, AND IN ACCORDANCE WITH ANNEX VII OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA In the Matter of an Arbitration Between BARBADOS and the REPUBLIC OF TRINIDAD AND TOBAGO Index to the Rejoinder of the Republic of Trinidad and Tobago Page Number CHAPTER 1 Introduction 1 The Issues between the Parties 2 The Record of Negotiations between the Parties 4 CHAPTER2 Jurisdiction and Admissibility 12 A Introduction 12 B Issues of fact raised by Barbados in respect of the 12 commencement of the arbitration c Trinidad and Tobago's objections to jurisdiction and 17 admissibility (1) Barbados' Failure to Comply with Necessary Pre-Conditions 18 to Arbitration under Part XV Page Number (2) Part XV of the 1982 Convention and the Requirement of 22 Good Faith (3) The Scope of Barbados' Application 24 CHAPTER3 The Distinction between the Two Sectors: Geographical 26 Fact and Geographical Fiction ( 1) The Difference between the Caribbean and Atlantic Sectors 28 (2) The Open Character of the Atlantic Sector 29 (3) Opposite and Adjacent Coasts 31 CHAPTER4 The Western Sector A Introduction 35 B Barbadians have fished off the island of Tobago since the late 35 1970s c International Law and the Barbadian Claim in the Western 45 Sector (1) Barbados misrepresents the Nature and Effect of the Dealings 46 between Itself and Trinidad and Tobago regarding fisheries (a) Trinidad and Tobago has not refused Barbadian fishing 48 vessels access to the waters off Tobago (b) Trinidad and Tobago has not acknowledged that 50 Barbados has "traditional fishing rights" off Tobago 2 Page Number (c ) Barbados made no "consistent claim" to the areas off 51 Tobago which it now claims as its own (2) The Position taken by Barbados in its Reply is contrary to the 58 1982 Convention, the Relevant Jurisprudence and State Practice (a) "Barbados' nationals acquired non-exclusive rights to 59 engage in traditional artisanal fishing which rights survive the establishment of new maritime zones" (b) " UNCLOS, general principles of law, customary 63 international law and international human rights law all mandate the survival of traditional artisanal fishing rights notwithstanding reclassification of maritime zones formerly part of the high seas" (c) " Adjustment of the median line to ensure the ability of 67 Barbados' fisherfolk to continue to exercise their rights would be appropriate and consistent with UNCLOS" ((d) "The judgements in Qatar/Bahrain and 68 Cameroon/Nigeria do not cast doubt on the relevance of artisanal fishing rights to maritime boundary delimitation" D Conclusion 69 CHAPTERS The Eastern or Atlantic Sector A The Basis for Trinidad and Tobago's Claim in the Eastern 71 Sector B Synopsis of Arguments and Responses as to the Atlantic 72 Sector C Delimitation in the Eastern or Atlantic Sector: The issues of 77 principle ( 1) Delimitation within 200 n.m. of the coasts of the Parties 77 3 Page Number (a) Jurisdiction and admissibility 77 (i) Jurisdiction in principle over areas within 200 n.m. 77 (ii) The scope of the dispute and the issue of exchange 79 of views (iii) The position of third States 83 (b) Barbados' arguments based on estoppel and 84 acquiescence ( c ) Relevant circumstances 89 (i) The oil practice 89 (ii) Coastal frontages 90 (iii) Non-encroachment 93 (iv) The regional dimension 95 (v) Overview of relevant circumstances 100 (d) Barbados Argument for the Priority of EEZ over 101 Continental Shelf (e) Conclusion as to delimitation within 200 n.m. of the 105 coasts of either Party (2) Delimitation beyond 200 n.m. 106 (a) Extent of Tribunal's competence and admissibility of 106 Trinidad and Tobago's claim 4 Page Number (b) The merits of the delimitation in relation to the outer 108 continental shelf D Delimitation in the Eastern or Atlantic Sector: The method of 109 Delimitation (a) Delimitation within 200 n.m. 109 (i) Relevant Coasts 109 (ii) Location of the turning point 110 (iii) Direction of the proposed delimitation line 112 (b) Delimitation beyond 200 n.m. from the coasts of either 115 Party ( c ) The equity of the overall solution 116 E Conclusion 116 Chapter 6 Conclusions and Submissions 117 5 CHAPTER 1 INTRODUCTION The present Rejoinder is submitted in accordance with the Rules of Procedure of the Tribunal and Procedural Order No. 2. Its purpose is not to repeat the arguments already set out in full in the Counter-Memorial but to respond to fresh points made in the Reply of Barbados filed on 9 June 2005. 2 That Reply was considerably longer than the Memorial of Barbados and was couched in the somewhat aggressive terms which have (regrettably) characterised Barbados' pleadings and letters to the Tribunal throughout these proceedings. Both of these features are surprising. 3 It is Barbados that chose to initiate these proceedings on a unilateral basis with no suggestion to Trinidad and Tobago that the two States might agree upon recourse to arbitration. Barbados took this step after several years of negotiations in which Trinidad and Tobago had made quite clear all of the basic features of the case which it now advances. 1 Barbados' claim in the Caribbean sector, by comparison, was not advanced as an official position, or in any detail, or with any serious indication as to its extent prior to the present proceedings; it did indeed come new-minted with the Memorial. However, Barbados must be presumed to have known its own case before it put pen to paper, even if it had not chosen to share that knowledge with Trinidad and Thus, the Joint Reports of the five rounds of maritime boundary negotiations which are reviewed in Chapter 2 of the Counter-Memorial show that Trinidad and Tobago always made plain (1) that it considered that the two States were partially in a situation of oppositeness and partially one of adjacency, (2) that in the Atlantic sector, where the two coastlines were adjacent rather than opposite, the median line did not produce an equitable result as required by Articles 74 and 83 of UNCLOS, (3) that Trinidad and Tobago was entitled to an extended continental shelf and should not be cut off from the 200 mile line by Barbados, (4) that the boundary line in the Atlantic sector should lie to the north of the median line and (5) that (when this issue was belatedly raised) it did not accept that the record of fishing activities by Barbadians- such as it was-justified an "adjustment" of the boundary so as to bring it south of the median line. These points were all made clear with reference to the legal basis for the positions taken, and the claims of Trinidad and Tobago were illustrated on a detailed map. 1 Tobago. It is therefore difficult to see why Barbados could not have set out its arguments in the normal detail in its first round pleading. The Issues between the Parties 4 The length of the Barbadian Reply should not be allowed to conceal the fact that there are only four principal issues in these proceedings: ( 1) whether the Tribunal has jurisdiction and, if it has, what are the limits of that jurisdiction; (2) whether the obvious geographical differences between the western, or Caribbean, sector and the eastern, or Atlantic, sector produce legal consequences in terms of the location of the boundary; (3) whether Barbados has made out its claim- in fact and in law to the areas which it claims south of the median line in the western, or Caribbean, sector; and (4) whether Trinidad and Tobago is entitled to the boundary line which it claims in the eastern, or Atlantic, sector. 5 In Trinidad and Tobago's submission, the Reply for all its length contains little which could not - and should not - have been said in Barbados' Memorial. Only in respect of the first issue does the Reply deal with an issue which Barbados could not have been expected to address earlier;2 even then, only a brief response is now needed. Trinidad and Tobago's response to Barbados' reply on the issue of jurisdiction is set out in Chapter 2 of this Rejoinder. Trinidad and Tobago accepts, of course, that the arguments on jurisdiction were not known to Barbados prior to the receipt of the Counter-Memorial. 2 6 On the second issue, Barbados has treated the Tribunal to a virtuoso display of the cartographer's art in which islands are rotated on their axes and the boundaries of places as far from the disputed area as West Africa and the North Sea are redrawn in a colourful - and avowedly fictitious manner. All of this is done in an attempt to discredit a perfectly simple proposition, namely that the maritime areas to the west of Barbados and Trinidad and Tobago are different from the areas to their east and that there is no justification in the eastern sector for treating the two coastlines as opposite and thus producing a manifestly inequitable result. But the artistry cannot mask the geographical reality, still less can it justify the result which it produces. Trinidad and Tobago has already set out its case on the relevant sectors and relevant coasts in Chapter 5 of its Counter-Memorial. Chapter 3 of the present Rejoinder will add a fairly brief response to the points made in the Reply on this subject. 7 In the final chapter of its Reply, Barbados makes a half-hearted attempt to shore up its claim to the whole of the continental shelf and EEZ around the north and west of the island of Tobago.
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