Stephen Vasciannie, Contributor
THE ARBITRAL TRIBUNAL set up to consider the maritime delimitation claim brought by Barbados against the Republic of Trinidad and Tobago has delivered its judgement. It has drawn a single maritime boundary between both countries, and has thereby indicated which maritime areas between these countries may properly be regarded as subject to the sovereign authority of Trinidad and Tobago on the one hand, and Barbados, on the other.
Which country won the case, and why? This question is not readily amenable to a simple answer; but, with that caveat, and bearing in mind that I have been on retainer with the Government of Trinidad and Tobago, it is my considered view that the decision in this particular case is very favourable to Trinidad and Tobago.
MERITS
From a technical, legal standpoint, the case had two components: issues concerning whether the tribunal had jurisdiction to hear the case and issues concerning the merits of the case. Barbados won the jurisdiction point, for the Tribunal held that it had jurisdiction to resolve the dispute, and that there was, in fact, a dispute.
The "merits" of the case refers to those issues that go to the substance of the claims made on both sides. In this case, the main issue on the merits was where the maritime boundary should be drawn between both countries. The boundary line actually drawn by the tribunal is more favourable to Trinidad and Tobago than it is to Barbados.
This interpretation is best considered against the background of the law governing maritime delimitation and the claims actually made by both countries. As to the law, the 1982 Law of the Sea Convention indicates that the delimitation of the exclusive economic zone (EEZ) and the continental shelf between States with opposite or adjacent coasts shall be done in a manner to achieve an equitable solution. Thus, for the present case, both countries argued that the lines they proposed would lead to an "equitable solution".
THE WESTERN SECTOR
As to the claims, both countries agreed that the Tribunal should work with the proposition that an equidistant line between Trinidad and Tobago and Barbados was the starting-point for reaching an equitable solution. Both countries also made claims with respect to different parts of the maritime areas between them, namely, the Western Sector (in the Caribbean Sea) and the Eastern Sector (in the Atlantic Ocean, roughly speaking).
From here, however, significant differences emerge. Barbados contended that for the area most immediately between Barbados and Trinidad and Tobago in the Caribbean Sea, the Western Sector, the equidistance line should not apply. The equidistance line is a boundary drawn midway between both countries, and it is sometimes assumed that in the absence of any special circumstances, the equidistance line will produce an equitable solution.
For the Western Sector, Barbados argued that the boundary suggested by the equidistance line should be adjusted significantly southward, giving Barbados a large part of the waters and seabed that would belong to Trinidad and Tobago under the equidistance approach. Barbados' big point, therefore, was that waters and the seabed immediately to the north of Tobago should be given to it: this claim was built essentially on the assertion that "artisanal fisherfolk" from Barbados had established rights to these waters for a long period of history.
The Tribunal rejected Barbados' big point. It held, agreeing with Trinidad and Tobago, that the equidistance line should apply to the waters and seabed immediately to the north of Tobago. The tribunal rejected the idea that Barbadian fisherfolk had established any historic rights over the area north of Tobago, and expressly rejected each "core contention" offered by Barbados to support its position. Simultaneously, the Tribunal accepted that the boundaries of the EEZ proclaimed by Trinidad and Tobago since 1986 would not need to be adjusted in the area that was of greatest concern to both countries. Barbados thus lost on the issue that was the immediate cause of the litigation.
THE EASTERN SECTOR
As to the Eastern Sector, the area stretching into the Atlantic Ocean, Barbados argued for the application of the equidistance principle, because there were no special circumstances to justify shifting the maritime boundary in either direction. Trinidad and Tobago argued that equidistance should not be applied in this area, for equidistance would ignore, among other things, the fact that the archipelago of Trinidad and Tobago has a much larger coastal area adjacent to the Atlantic Ocean than Barbados does.
The Tribunal accepted the arguments of Trinidad and Tobago, and eventually adjusted the equidistance line in a northerly direction, to that country's benefit. Trinidad and Tobago's victory on this point was, however, not unqualified: the northward shift of the equidistance line is not as substantial as Trinidad and Tobago had claimed it should be.
Stephen Vasciannie is professor of international law at the University of the West Indies, Mona, and a consultant in the Attorney-General's Chambers.
