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Permanent Court of Arbitration (PCA): In the Matter of an Arbitration Between: Barbados and the Republic of Trinidad and Tobago*
Published online by Cambridge University Press: 18 May 2017
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- Judicial and Similar Proceedings
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- Copyright © American Society of International Law 2006
Footnotes
*
This text was reproduced and reformatted from the text appearing at the Permanent Court of Arbitration website (visited August 06, 2006) <uri xlink:href="http://www.pca-cpa.org/ENGLISH/RPC/BATRI/BATRI%20Award.pdf
References
Endnotes
1 The Orders, Rules of Procedure, and the pleadings in the arbitration are filed in the archives of the PCA in The Hague, and are available on the PCA website at: <http://www.pca-cpa.org>.
2 British Admiralty Chart 493, “Approaches to Trinidad including the Gulf of Paria”, Scale 1:300,000, Taunton, UK, 8 May 2003, corrected for Notices to Mariners up to 5090/05.
3 Treaty between the Republic of Trinidad and Tobago and the Republic of Venezuela on the delimitation of marine and submarine areas, 18 April 1990, reprinted in The Law of the Sea - Maritime Boundary Agreements (1985-1991) pp. 25-29 (Office for Ocean Affairs and the Law of the Sea, United Nations, New York 1992).
4 Although the Parties have used the term ‘ ‘extended continental shelf', the Tribunal considers that it is more accurate to refer to the “outer continental shelf”, since the continental shelf is not being extended, and will so refer to it in the remainder of this Award.
5 Article 286 provides: Application of procedures under this section Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.
6 Article 287 provides: Choice of procedure
1.When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, one or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention: (a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; (b) the International Court of Justice; (c) an arbitral tribunal constituted in accordance with Annex VII; (d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein.
2. A declaration made under paragraph 1 shall not affect or be affected by the obligation of a State Party to accept the jurisdiction of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to the extent and in the manner provided for in Part XI, section 5.
3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII.
4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree.
5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree.
6. A declaration made under paragraph 1 shall remain in force until three months after notice of revocation has been deposited with the Secretary-General of the United Nations.
7. A new declaration, a notice of revocation or the expiry of a declaration does not in any way affect proceedings pending before a court or tribunal having jurisdiction under this article, unless the parties otherwise agree. 8. Declarations and notices referred to in this article shall be deposited with the Secretary-General of the United Nations,who shall transmit copies thereof to the States Parties.
7 Article 288 provides: Jurisdiction
1. A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part.
2. A court or tribunal referred to in article 287 shall also have jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted to it in accordance with the agreement.
3. The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea established in accordance with Annex VI, and any other chamber or arbitral tribunal referred to in Part XI, section 5, shall have jurisdiction in any matter which is submitted to it in accordance therewith.
4. In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.
8 Article 298 provides: Optional exceptions to applicability of section 2
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:
(a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles, provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission;
(ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree;
(iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon those parties; (b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3; c disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by the means provided for in this Convention.
2. A State Party which has made a declaration under paragraph 1 may at any time withdraw it, or agree to submit a dispute excluded by such declaration to any procedure specified in this Convention.
3. A State Party which has made a declaration under paragraph 1 shall not be entitled to submit any dispute falling within the excepted category of disputes to any procedure in this Convention as against another State Party, without the consent of that party.
4. If one of the States Parties has made a declaration under paragraph l(a), any other State Party may submit any dispute falling within an excepted category against the declarant party to the procedure specified in such declaration.
5. A new declaration, or the withdrawal of a declaration, does not in any way affect proceedings pending before a court or tribunal in accordance with this article, unless the parties otherwise agree. Declarations and notices of withdrawal of declarations under this article shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the States Parties.
9 Article 74 provides: Delimitation of the exclusive economic zone between States with opposite or adjacent coasts
1. The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the exclusive economic zone shall be determined in accordance with the provisions of that agreement.
10 Article 83 provides:Delimitation of the continental shelfbetween States with opposite or adjacent coasts
1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.
2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.
4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.
11 See the Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), International Tribunal for the Law of the Sea (ITLOS), Order of 27 August 1999, Request for Provisional Measures, Reports of Judgments, Advisory Opinions and Orders, Vol. 3 (International Tribunal for the Law of the Sea, Kluwer Law International 1999); The MOX Plant Case (Ireland v. United Kingdom), ITLOS, Order of 3 December 2001, Request for Provisional Measures, Reports of Judgments, Advisory Opinions and Orders, Vol. 5 (International Tribunal for the Law of the Sea, Kluwer Law International 2001); and Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v. Singapore), ITLOS, Order of 8 October 2003, Request for Provisional Measures, Reports of Judgments, Advisory Opinions and Orders, Vol. 7 (International Tribunal for the Law of the Sea, Kluwer Law International 2003).
12 Article 283 provides: Obligation to exchange views 1. When a dispute arises between States Parties concerning the interpretation or application of this Convention, the parties to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means. 2. The parties shall also proceed expeditiously to an exchange of views where a procedure for the settlement of such a dispute has been terminated without a settlement or where a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement.
13 See Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), I.C.J. Reports 1998, p. 275; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), I.C.J. Reports 2001, p. 40; Arbitration between Newfoundland and Labrador and Nova Scotia Concerning Portions of the Limits of their Offshore Areas as Defined in the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and the Canada-Newfoundland Atlantic Accord Implementation Act, Award of the Tribunal in the Second Phase, 26 March 2002; and Eritrea/ Yemen II, 119 I.L.R. p. 417.
14 Article 300 provides: Good faith and abuse of rights States Parties shall fulfil in good faith the obligations assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.
15 Article XI of the 1990 Fishing Agreement provides: Preservation of Rights Nothing in this Agreement is to be considered as a diminution or limitation of the rights which either Contracting Party enjoys in respect of its internal waters, archipelagic waters, territorial sea, continental shelf or Exclusive Economic Zone nor shall anything contained in this Agreement in respect of fishing in the marine areas of either Contracting Party be invoked or claimed as a precedent.
16 See Case Concerning Maritime Delimitation in the Area between Greenland and Jan May en (Denmark v. Norway), I.C.J. Reports 1993, p. 38 (“Jan Mayen“); the North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), I.C.J. Reports 1969, p. 4; Qatar v. Bahrain, I.C.J. Reports 2001, p. 40; and Cameroon v. Nigeria, I.C.J. Reports 1994-2002.
17 See North Sea Continental Shelf cases (I.C.J. Reports 1969,p. 4); Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), I.C.J. Reports 1984, p. 246; Qatar v. Bahrain case, I.C.J. Reports 2001, p. 40.
18 Article 47(6) provides: 6. If a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State, existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected.
19 Article 51(1) provides: 1. Without prejudice to article 49, an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters. The terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall not be transferred to or shared with third States or their nationals.
20 Article 62 provides:Utilization of the living resources 1. The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61. 2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein. 3. In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the signif icance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvest ing part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks. 4.Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following: (a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry; (b) determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period; (c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used; (d) fixing the age and size of fish and other species that may be caught; (e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; (f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data; (g) the placing of observers or trainees on board such vessels by the coastal State; (h) the landing of all or any part of the catch by such vessels in the ports of the coastal State; (i) terms and conditions relating to joint ventures or other cooperative arrangements; (j) requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research; (k) enforcement procedures. 5. Coastal States shall give due notice of conservation and management laws and regulations.
21 See, e.g., Mavrommatis Palestine Concessions Case (Jurisdiction), 1924 P.C.I.J. (Ser. A) No. 2, p. 13; South West Africa Cases (Preliminary Objections), I.C.J. Reports 1962, p. 319, at pp. 345-346; Applicability of the Obligation to Arbitrate under Section 21 of the UN Headquarters Agreement of 26 June 1947, I.C.J. Reports 1988, p. 12, at pp. 33-34, para. 55.
22 See the quotation from the Gulf of Maine case which refers to “catastrophic circumstances”, para. 241 above.
23 Cf. the closing submissions made on behalf of Barbados: Trans. Day 6, pp. 74-75.
24 See Eritrea/Yemen I and II, 114 I.L.R. p. 1 and 119 I.L.R. p. 417; Fisheries Jurisdiction Case (United Kingdom v. Iceland), I.C.J. Reports 1974, p. 3; Qatar v. Bahrain, I.C.J. Reports 2001, p. 40; Western Sahara, I.C.J. Reports 1975, p. 18; Eritrea-Ethiopia Boundary Commission (Determinations, 1 November 2002),PCA Archives, available at <http:// www.pca-cpa.org>; and Right of Passage (Right of Passage over Indian Territory (Portugal v. India)), I.C.J. Reports 1960, p. 6.
25 See Tunisia/Libya, I.C.J. Reports 1982, p. 18, at pp. 73-75, paras. 100-102.
26 See, e.g., Dispute Concerning Filleting within the Gulf of St Lawrence (“La Bretagne“), 82 I.L.R. p. 591 (1986), at p 637, para. 63(2); Southern Bluefin Tuna, ITLOS, Order of 27 August 1999, Reports of Judgments, Advisory Opinions and Orders, Vol. 3 (1999), at paras. 83-84; The MOX Plant Case, ITLOS, Order of 3 December 2001, Reports of Judgments, Advisory Opinions and Orders, Vol. 5 (2001), at paras. 78-80; Case Concerning Land Reclamation by Singapore in and Around the Straits ofJohor, Order of 8 October 2003, Reports of Judgments, Advisory Opinions and Orders, Vol. 7 (2003), at paras. 76-81. See Mavrommatis Jerusalem Concessions, 1925 P.C.I.J. (Ser. A) No. 5, p. 37. See also the jurisprudence of the ICJ on unilateral declarations: Nuclear Tests, I.C.J. Reports 1974, p. 253, at pp. 267-270, paras. 42-52; Frontier Dispute, I.C.J. Reports 1986, p. 554, at p. 574, para. 40.
27 See Affaire des navires ‘ ‘Cape Horn Pigeon'', ‘ ‘James Hamilton Lewis”, “C.H. White” et “Kate and Anna” (Etats-Unis d'Amérique contre Russie), Sentence préparatoire, reprinted in IX United Nations Reports of International Arbitral Awards (RIAA) p. 59, at pp. 60-61; Georges Pinson (France) v. United Mexican States (1928), reprinted in V RIAA p. 327, at pp. 355-356; Convention for the Pacific Settlement of International Disputes, The Hague (1907), art. 62.
28 Lac Lanoux Arbitration (France v. Spain), 24 I.L.R. p. 101 (1957), at p. 128: “one speaks, although often inaccurately, of the ‘obligation of negotiating an agreement'. In reality engagements thus undertaken by States take very diverse forms and have a scope which varies according to the manner in which they are defined and according to the procedures intended for their execution; but the reality of the obligations thus undertaken is incontestable and sanctions can be applied in the event, for example, of an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusal to take into consideration adverse proposals or interests, and, more generally, in cases of the violation of the rules of good faith''.