Guyana Invokes Annex VII of United Nations Convention on Law of the Sea Against Suriname for Disputed Maritime Boundary
April 09, 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 10Âº 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 33Âº (34Âº 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 10Âº 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 34Âº 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 firstname.lastname@example.org