Guyana Invokes
Annex VII of United Nations Convention on Law of the Sea
Against Suriname for Disputed Maritime Boundary
By Thomas W. Donovan
April 2004
On February 25, 2004, the Government
of Guyana invoked arbitration against its neighboring
coastal state, Suriname, under Article 287 and
Annex VII of the United Nations Convention on
the Law of the Sea. As both states are parties
to the Convention, Suriname promptly responded
to the Statement of Claim and currently an arbitration
panel is being developed. These Caribbean countries
dispute a maritime boundary which extends through
their territorial sea, Exclusive Economic Zone,
and onto the Continental Shelf. The disputed
area has proven petroleum reserves, and has
gained significant international attention since
the Suriname navy evicted a Guyanese-licensed
oil platform in June 2000.
With the parties on the brink of
hostility and at a diplomatic impasse, arbitration
for one of three disputed boundary regions (a
boundary river and inland territory are also
disputed) between Suriname and Guyana is a significant
step for the peaceful resolution of disputes
in the developing world.
The diplomatic impasse over the
offshore boundary stems from a colonial history
that left the two countries without firm borders
at their independence. Suriname (emerging from
Dutch rule in 1975) and Guyana (independence
gained from Great Britain in 1966) attempted
on several occasions in the twentieth century
to ratify a boundary accord to settle their
boundary river, offshore, and inland territorial
("The New River Triangle") differences. The
most notable event was a 1936 Mixed Commission
decision which, although not signed, would have
granted Dutch Guiana a 10º east of true north
maritime extension in the Caribbean Sea for
the 3 mile territorial waters it claimed at
that time, simultaneously granting British Guiana
control of the New River Triangle (a 6,000 square
mile extension of territory located inland and
contiguous to the northern Amazon).
A contrary position was asserted
by the Government of the Netherlands in 1961-1962
negotiations, this time giving British Guiana
a 33º (34º was also considered) maritime extension,
but with the Dutch retaining control of the
New River Triangle. The Corentyne (or "Courantyne")
River, the large dividing river between the
parties, has, in its entirety, been under consistent
Dutch and later Suriname control. The islands
in the river are deemed Suriname territory,
and local authorities have reportedly prevented
Guyanese fishing on the river. Normally a thalweg,
or middle point of a navigable channel in a
river, forms the boundary between two adjacent
countries. However, through inheritance of
title, Suriname contends that the land boundary
terminus lies on the Guyana bank of the Courantyne
River.
Today, Suriname contends that the
earlier 10º prolongation extends throughout
the Continental Shelf, Territorial Sea and Exclusive
Economic Zone and wishes to continue to link
the resolution of the New River Triangle to
the maritime issues. Guyana argues that a 34º
prolongation is applicable. The long-standing
Guyanese concessions within this "triangle
of overlap" signify historic title, as
Suriname has effectively relied on their presence
since their initial appearance over fifty years
ago. The decision to invoke Annex VII of the
Law of the Sea Convention is the first time
that either country has been willing to arbitrate
only one section of the three disputed territories.
All previous attempts to settle the dispute
intrinsically linked inland territory and maritime
zones.
Since the eviction of the Guyanese
licensed oil platform in June 2000, there have
been diplomatic negotiations, regional efforts
through the Caribbean Community (CARICOM), and
even third party intervention by the Foreign
Minister of Jamaica to settle the dispute amicably.
However, all have failed.
The basic tenet underlying the
settlement of disputes under the Law of the
Sea Convention is that the parties are bound
to use only peaceful means, exchange views without
delay, behave in accordance with the requirements
of the United Nations Charter, and seek a solution
by negotiation, mediation, arbitration or judicial
settlement in good faith. For procedural settlement
of disputes, Article 287 of the Convention gives
the parties a choice among four possible fora:
two courts (the International Court of Justice
and the International Tribunal for the Law of
the Sea) and two arbitration panels (an Annex
VII arbitral tribunal and an Annex VIII special
arbitral tribunal.) A state may elect to arbitrate
different aspects of a dispute in two different
forums. Thus the parties may utilize the Annex
VII arbitration as the "basic" means
for dispute settlement, but could elect other
tribunals such as Annex VIII special arbitration
for issues relating to such things as fisheries,
environmental protection, scientific research
and navigation.
If no agreement to the contrary
is in force, or if one state party believes
all further activity will be futile in resolving
the dispute, as is the case with Suriname and
Guyana, arbitration in accordance with Annex
VII is appropriate. Annex VII requires a declaration
and written notice to the United Nations formally
invoking the procedure as well as informing
the opposing party to the action. Because Suriname
and Guyana are the only parties to the dispute,
the arbitral panel will be chosen from a list
of named arbitrators maintained by the United
Nations Secretary General. Each party may nominate
one arbitrator at its discretion (Guyana has
named Thomas Franck and Suriname named Hans
Smit), and the parties may jointly nominate
the remaining arbitrators. The body may then
appoint two scientific experts while hearing
a case. Decisions are taken by a majority vote,
supported by reasons, and are final and binding
on the parties.
Before a Party may utilize any
Annex VII tribunal, however, the moving party
must show that it has complied with various
prerequisites within the Law of the Sea Convention.
The most notable to the Suriname - Guyana instance
is Article 286, which provides that disputes
shall be forwarded to a tribunal where no settlement
has been reached by recourse to other peaceful
means. Although a preliminary matter, any party
seeking dispute resolution by a tribunal must
allege that other peaceful means have been exhausted.
This prerequisite appears to have been satisfied
because the joint border commission has been
unable to reach a conclusion that is acceptable
to both countries.
Under Annex VII each arbitration
panel determines its own procedure and the parties
may even agree to determine procedure themselves.
If the contracting parties have yet to identify
a preference, as in the Suriname - Guyana instance,
they are obliged, unless they otherwise agree,
to rely on the procedure prescribed by the Annex
VII Tribunal.
Guyana has requested the Tribunal
to grant provisional measures under Article
290 of the Convention. Provisional measures
are appropriate when one party is taking action,
or proposing to take action, which would prejudice
the rights of the opposing party. Provisional
measures are analogous to the common law "temporary
order" whereby the rights of the parties are
preserved until a binding decision is rendered.
In order to order provisional measures under
Article 290, the Tribunal would need to find
that it appears to have jurisdiction ("prima
facie" jurisdiction) and that the measures
are appropriate "to preserve the respective
rights of the parties to the dispute or to prevent
serious harm to the marine environment."
Guyana has requested that, pending
the decision of the Tribunal, the following
provisional measures be granted: Suriname should
(1) refrain from any threat or use of armed
force in the maritime zone, (2) refrain from
reprisals against the Guyanese citizens, in
particular fishermen, (3) refrain from activities
which hinder the resumption of exploration in
the disputed areas, and (4) stop all conduct
which could hinder the exploitation of deposits.
Disputes such as the Suriname -
Guyana maritime boundary dispute will be decided
by the interpretation of the Law of the Sea
Convention. The rules for interpretation are
summarized in the 1969 Vienna Convention on
the Law of Treaties. The basic rule is that
a treaty will be interpreted in good faith and
through the ordinary meaning given to its terms
in their context. "Context" includes
not only the treaty, its preamble and annexes,
but also other relevant instruments, such as
protocols, made in connection with the treaty.
Any subsequent agreement between Suriname and
Guyana must be taken into account, as must any
subsequent practice of parties in the application
of the treaty which establishes their agreement
concerning its interpretation.
Questions have been raised by Guyana's
timing of its invocation of Annex VII. Surinamese
officials assert that Guyana acted in bad faith
with its invocation, filing its Statement of
Claim with the United Nations first, and then
informing the Embassy of Suriname in Guyana
only when the Surinamese President was abroad
and could not react promptly. Furthermore,
Suriname claims, Guyana's decision to forward
the issue to the United Nations occurred simultaneously
with the bilateral boundary commission meeting
to decide the same border.
In any case, the decision by Guyana
to invoke the United Nations Convention on the
Law of the Sea is the most significant step
in a boundary dispute that is more than two
hundred years old. With Suriname's prompt response
and adherence to the Annex VII timeline for
dispute settlement, a tenable maritime boundary
could finally be not too far off. International
law has developed considerably since the inception
of the Guyana - Suriname dispute, as mechanisms
and precedents now exist to give binding, final
results.
About the Author:
Thomas W. Donovan, B.A., M.A., American
University, J.D., New York Law School, is the
author of "Suriname-Guyana Maritime and Territorial
Disputes: A Legal and Historical Analysis" from
the Florida State Journal of Transnational
Law and Policy and "Challenges to the Territorial
Integrity of Guyana: A Legal Analysis" in the
Spring 2004 University of Georgia Journal
of International and Comparative Law. Correspondence
should be addressed to tomdonovan@sprintpcs.com
_________________________________________________________________________
The purpose of ASIL Insights is to provide concise
and informed background for developments of
interest to the international community. The
American Society of International Law
does not take positions on substantive issues,
including the ones discussed in this Insight.
ASIL
Insights may be found on the ASIL
Web Site.
Educational copying is permitted with due acknowledgement.
