TT-Barbados Dispute: Gift Speaks Of Hostile Act

Senator Knowlson W Gift, Minister of Foreign Affairs of Trinidad and Tobago, on Thursday night addressed the nation on the current dispute with Barbados which he referred to as "hostile" on the part of Barbados and gave the assurance that Trinidad and Tobago would defend itself in the strongest possible way. Here is the full text: Good evening, Ladies and Gentlemen, I propose to address you this evening on four matters which have been receiving considerable media attention in recent times. Regrettably, not all of this has been accurate or well-informed. This is not to cast blame on the media. For good reason, bilateral negotiations on complex and sensitive issues, conducted in good faith, tend to be clothed in confidentiality. When the need for a media release arises, this is usually done by mutual agreement. Departure from this time-honoured practice can create difficulties for the successful resolution of problems.

As you know, Ladies and Gentlemen, the Honourable Prime Minister, Patrick Manning led a delegation to Barbados on February 16 which included the Honourable Kenneth Valley, Minister of Trade and Industry, and myself, as well as the Director of Legal and Marine Affairs in the Ministry of Foreign Affairs, Mr Gerald Thompson. We returned to Trinidad and Tobago immediately following the discussions with Prime Minister Owen Arthur and his delegation, having agreed that a Joint Press Release would be issued in the afternoon after the Barbados Cabinet would have had an opportunity to consider Prime Minister Manning's proposal to deal with the fishing issue.

The communication received from the Ministry of Foreign Affairs and Foreign Trade in Barbados late that afternoon was not the expected draft Press Release but, quite unexpectedly, a Diplomatic Note formally advising us of the initiation by the Government of Barbados of dispute settlement proceedings under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS). The Government of Barbados has further advised that as a result of their referral "all prior negotiations on maritime boundary delimitation and fisheries are now deemed to have been suspended." Now that Barbados has abandoned the bilateral process for a binding settlement by a third party, without any prior notice or intimation to Trinidad and Tobago, the opportunity to present itself for us to set the record straight, and to clear up some of the misinformation, spurious assertions and downright tendentious statements that have characterised reports on the matter of the negotiations between Trinidad and Tobago for new Fishing Agreement and also for maritime boundary delimitation treaty.

Fishing Issues

The Government of the Republic of Trinidad and Tobago and the Government of Barbados concluded a Fishing Agreement at Port-of-Spain on November 23, 1990. The Agreement was for one year and covered the period January 1 to December 31, 1991. The Agreement provided for, inter alia, access by forty boats owned by Barbadian nationals to a fishing area within the Exclusive Economic Zone (EEZ) of Trinidad and Tobago. Each vessel owner had to pay a licence fee of US $800 and was permitted to make five (5) trips per season. Additionally, the Barbados Government could have authorised the importation of 300 metric tonnes of fish to supplement that caught by its nationals. Only five Barbados vessels availed themselves of the opportunities provided under the agreement, and only 74.7 metric tonnes of fish were exported to Barbados.

One month before the expiry of the then existing Agreement, the Barbados Government submitted proposals for a new Agreement in November, 1991. However, Cabinet by Minute No 3 of 2nd January, 1992, proposed an extension of the 1991 Agreement on existing terms to cover 1992. This offer was not accepted by the Government of Barbados which recommended the negotiation of a new Agreement. Trinidad and Tobago's decision to opt for an extension of the old Agreement rather than negotiate a new one was influenced by considerations of conservation reflected in the UNDP/FAO Project - Establishment of Data Collection Systems and Assessment of the Fisheries Resource. This project found that the flying fish resource which was being harvested at the time by Trinidad and Tobago vessels was almost at the point of maximum exploitation. The Agreement provided, inter alia, for access by forty Barbadian fishing vessels to fish in a defined area in Trinidad and Tobago waters under specific conditions including payment of a fee of US $800 per vessel and submission of a fishing plan detailing the times the various vessels were allowed to fish. Exporters from Trinidad and Tobago were to be allowed access to the Barbados market to the tune of 300 metric tonnes of associated pelagic species.

Trinidad and Tobago fisherfolk found their access to the Barbados market constrained by:

(a) The delay in the approval of licences by Barbados authorities to Barbados importers which adversely affected sales;

(b) During the period January to April, Trinidad and Tobago exporters could not sell fish to Barbados since the Barbados exporters claimed that they had enough supplies. The Trinidad and Tobago exporters had to find alternative markets or store the fish until there was a demand in Barbados, thereby incurring storage costs and the risk of quality deterioration;

(c) payment by Barbados importers were untimely and presented problems to Trinidad and Tobago exporters.

The main shortcomings in the implementation of the 1991 Fishing Agreement resulted in an inadequacy of data to enable a meaningful evaluation of the operations of that Agreement to inform a successor arrangement. There was an extended hiatus in the resumption of negotiations which only got underway in March 2002. While Barbados appears willing to disregard our concerns about the preservation of our fishing stock, it bears noting they adopt a different attitude with respect to their own. The Barbados Fisheries Management Plan 2001-2003 focuses on access to the resources of other countries in the Eastern Caribbean, in particular Trinidad and Tobago.

The Plan also recognises the need to protect Barbados' fishing resources from illegal exploitation. Their Fisheries Division, Coast Guard and Marine Police are empowered to undertake enforcement in fisheries related matters. We therefore find it rather perplexing that the Attorney General and Deputy Prime Minister of Barbados, the guardian of that country's constitution, is reported to have advised the fishermen of her country to "boldly go where they have gone before". Interestingly, this statement appears to be a call to the fishermen of Barbados to violate that country's Marine Boundaries Jurisdiction Act of 1979 which provides in Section 3 (3) that: ". . . . . . Where the median line as defined by subsection (4) between Barbados and any adjacent or opposite State is less than 200 miles from the baselines of the territorial waters, the outer boundary limit of the Zone shall be that fixed by agreement between Barbados and that other State; but where there is no such agreement, the outer boundary limit shall be the median line."

Let me tell you, Ladies and Gentlemen, anything beyond the "median line," in the particular context, falls indisputably within the jurisdiction of the Republic of Trinidad and Tobago. Forgive me for concluding that this appears to be an incitement to Barbados fishermen to violate Barbados law as well as the laws of Trinidad and Tobago. We will not tolerate this. Ladies and Gentlemen, I must draw attention to the inexplicable and dramatic change in the position of the Government of Barbados regarding the negotiations for a new Fishing Agreement. Let me remind you that on 9th of February, 2004 the Barbados Foreign Minister and I had agreed that the fishing negotiations would resume in the last week of February. By the 16th February, the Government of Barbados had abruptly declared all prior negotiations on fisheries and maritime boundary delimitation negotiations suspended. Is this, Ladies and Gentlemen, good faith negotiating?

Ongoing maritime boundary delimitation negotiations

With respect to maritime delimitation there have been 12 days of negotiations over five rounds, beginning in 19-20 July, 2000 and culminating in the Fifth Round which was held in Barbados during the period 19-21 November, 2003. During those five rounds, Barbados has steadfastly declined the invitation from Trinidad and Tobago to put its proposal for a maritime boundary on the table. Instead, it has insisted that international law mandates that the negotiations begin with the drawing of a median line between the two States. Nothing could be further from the truth as any cursory examination of the case-law and literature on the subject will attest. The Government of Trinidad and Tobago has not publicly spoken of the delimitation negotiations before because both sides had agreed not to discuss the ongoing negotiations in the Media. Barbados' unilateral action in abandoning the negotiations relieves us of this constraint.

Trinidad and Tobago is recognised as an Archipelagic State in accordance with Part IV of UNCLOS. The implication of this is that in delimiting our various maritime zones, whether it is the 12-mile territorial sea, the 200-mile Exclusive Economic Zone, or the continental shelf, the archipelagic baselines (which mark the points from which the territorial sea is measured), must be taken into account. Consistent with its designation as an Archipelagic State in accordance with Part IV of UNCLOS, Trinidad and Tobago has presented proposals for the delimitation of the Exclusive Economic Zone and Continental Shelf in the Caribbean Sea and Atlantic Ocean Sectors. Barbados has refused to present proposals, insisting that both sides must start from the median/equidistance line. In drawing their median/equidistance line, Barbados has chosen to ignore the 76-mile long straight archipelagic baseline stretching from Little Tobago to East Rock, off Trinidad's East coast. The effect of Barbados' approach is to deny Trinidad and Tobago's archipelagic status as it applies to the East coast, and Trinidad and Tobago's maritime zones in the Atlantic Ocean sector. We consider this unacceptable. Trinidad and Tobago has no intention of abandoning the use of its archipelagic baselines in its maritime boundary delimitation negotiations.

1990 Trinidad and Tobago-Venezuela Delimitation Treaty

The Government of Trinidad and Tobago has always considered its treaty commitments to be sacrosanct. This is why this country would not consider repudiating the 1990 Trinidad and Tobago-Venezuela Treaty on the Delimitation of Marine and Submarine Areas. We will not repudiate the Treaty for two very salient reasons. Firstly, international law imbues boundary agreements with a special status. In the language of the law, maritime boundary agreements, as does any boundary treaty, "have a vocation for permanence and stability", according to the Handbook on the Delimitation of Maritime Boundaries published by the United Nations. International caselaw and the jurisprudence of the International Court of Justice and arbitral tribunals support this point. "In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality".

The 1969 Vienna Convention on the Law of Treaties establishes the sacrosanct nature of such agreements. Trinidad and Tobago cannot repudiate this Treaty and remain in fidelity to the dictates of international law on matters of this nature. Secondly, we have examined the grounds of objection and find them to be lacking in merit, including Barbados' allegation that the Treaty compromised its maritime claims and prejudiced Guyana's land and maritime interests. As we examine the rapidly unfolding dispute, demonstrated in the daily receipt of Diplomatic Notes with their every changing focus - indeed the latest one was received mid-afternoon today.

It seems that the real focus of the Barbados Government goes way beyond any consideration of the conclusion of a fishing treaty. The Government will have more to say on this at a later stage. With respect to the Treaty itself, the review of the Treaty conducted by this Cabinet has concluded that it does not prejudice the interests of Guyana and Barbados, and that its provisions have turned out to be in the best interest of Trinidad and Tobago because, by providing the certainty and predictability that investors demand, it has facilitated the development of the non-living resources of Trinidad and Tobago's Continental Shelf in the Atlantic Ocean. The world would be an immeasurably more unsafe place if boundary treaties solemnly entered into by authorities competent so to do were capable of being upset, capriciously or arbitrarily, at any time by anyone so inclined. It is truly amazing that in 2004, some 14 years after the signing and registering of the Trinidad and Tobago-Venezuela Delimitation Treaty with the United Nations, the Prime Minister of Barbados can make the astonishing claim that the 1990 Trinidad and Tobago-Venezuela Treaty on the Delimitation of Marine and Submarine Areas "purports unilaterally to appropriate to Venezuela and Trinidad and Tobago an enormous part of Barbados' and Guyana's maritime territory, as well as one-third of Guyana's land territory". All of this in respect of a Treaty that has been reported and commented upon with approval by publicists and writers on the Law of the Sea, including some in our own region. Is it not revealing that Guyana has never protested that the Treaty prejudices its territorial integrity by "unilaterally (appropriating) to Venezuela . . . one-third of its land territory?

Barbados accuses Trinidad and Tobago of having compromised the territorial integrity of Guyana. This is the same Trinidad and Tobago that in 1970, under the leadership of Dr Eric Williams, in a profound act of regional solidarity, ensured through the Port-of-Spain Accord, that Guyana's newly won independence was not held hostage to the territorial claim by Venezuela. We have consistently maintained this position within the Councils of CARICOM. The international community has had notice of the Trinidad and Tobago-Venezuela Treaty since its registration in 1992 with the UN Secretariat, in accordance with Article 102 of the Charter. This Treaty in no way prejudices the rights and interests of Guyana in respect of its maritime jurisdictions, nor does it encroach on maritime space to which Guyana or Barbados may legitimately lay claim. What of the view, Ladies and Gentlemen, that the Treaty of Chaguaramas as revised and the CARICOM Single Market and Economy (CSME) which it has brought into being, confers a right of access by Member States to the living resources of the EEZs of other Member States. Let me state categorically that the Treaty of Chaguaramas, which the Government of Trinidad and Tobago will continue to honour, confers no such right.

There is under the Treaty no right of access to the EEZs of Member States of the Community. In other words, there exists no CARICOM commons by virtue of which Member States are entitled to automatic access to the living resources of the EEZs of other Member States. We have not demanded it from the Government of Guyana nor the Government of Suriname, although Trinidad and Tobago fishermen have expressed a desire to gain access to the resources of these two countries. It is for this reason that the Government of Trinidad and Tobago has attempted, without success thus far, to negotiate access to the fisheries resources of Guyana for some of its fishermen. A similar request to Suriname has also not borne fruit. Even as we will continue to pursue these approaches, we accept that our CARICOM partners are exercising their sovereign prerogative. We expect them to respect ours as well. This Government, too, is fully committed to protecting the rights of its citizens, and more so, those of the fisherfolk in Tobago, whose welfare the Government is obligated to protect and advance. I gratefully acknowledge the full support and contribution of the Tobago House of Assembly in these efforts.

We have noted the claim about historic fishing rights in Trinidad and Tobago's Exclusive Economic Zone. We dismiss it completely and unequivocally. When, as has happened, Trinidad and Tobago fishermen have been arrested and fined for fishing illegally in Guyana's EEZ, the Government of Trinidad and Tobago has not taken the position that its fishermen have a right to fish in that country's EEZ. It has not argued that the economic relationship between the States obliges Georgetown to conclude a fishing agreement with Port-of-Spain. It has instead advised its citizens of their obligation to respect the laws of other States and has sought to negotiate a fishing agreement on its own merits, without importing into those discussions any extraneous considerations, and it has conducted those discussions within the usual parameters permitted by diplomatic discourse.

Recourse to Article 286 and Annex VII of UNCLOS

Barbados has chosen to invoke the binding dispute settlement procedure, in respect of the maritime boundary delimitation negotiation, without any prior note, intimation or suggestion to Trinidad and Tobago whatsoever. The Prime Minister and his delegation which included the Minister of Foreign Affairs were in discussions with his Barbadian counterpart and his Acting Minister of Foreign Affairs. No mention was made of the intention of the Government of Barbados to pursue this matter under UNCLOS in the more than two (2) hours of talks which took place between the two Prime Ministers and their delegations. We learnt of it only after our return to Trinidad and Tobago on Monday. I must tell you, it is not normal to conduct diplomatic relations in this way, not even among States that are hostile to each other. Be that as it may, Barbados has exercised its sovereign right in a matter within its competence and we propose to respond in the manner expected of us by international law, and with due regard for proper protocol.

Such deliberate, unilateral, and one might even add, precipitate action could only spring from a feeling or perception that there is advantage to be gained by Barbados or disadvantage to be suffered by Trinidad and Tobago. Ladies and Gentlemen, we were given no notice of a development that the Government of Barbados had obviously carefully planned in advance. Rest assured, we will be about the business of preparing to defend the interest of Trinidad and Tobago and prosecute this country's case to the fullest before the Annex VII arbitral tribunal. There are time frames to be followed and deadlines to be met. The first deadline for the appointment of our member of the arbitral tribunal is 30 days after the receipt of the notice. The notice we received is dated February 16, the very same day that the two Prime Ministers met. Yet, as I have told you before, the matter was not discussed with our Prime Minister and his delegation. This development, I regret to say, can easily be construed as being indicative of a lack of good faith, as well as inconsistent with the spirit of the Caribbean Community that we are in the process of fashioning.

This notwithstanding, we intend to ensure that Trinidad and Tobago is in a position to comply fully and in a timely manner with all the stipulations contained in Annex VII of UNCLOS, since we are determined to defend the national interest of Trinidad and Tobago. Before I close, let me summarise and underscore the position of Trinidad and Tobago in what for us, and indeed undoubtedly for CARICOM, has become a most regrettable and unfortunate development. I wish to reiterate Trinidad and Tobago's full commitment to the regional integration movement and to the revised Treaty of Chaguaramas creating a Single Market and Economy designed to serve the welfare of our peoples. Barbados is one of the most important economic partners of Trinidad and Tobago in the Caribbean Community and we would make every effort to keep it that way.

But, my fellow citizens, in the light of recent erratic pronouncements and actions, which some have stated may have stemmed from economic problems in the Barbados economy, I give you the assurance that the Government of Trinidad and Tobago will protect the interests and safeguard the integrity of Trinidad and Tobago. We are fully conscious of our obligation to protect the interests of our agricultural and manufacturing sectors, our fisherfolk, our living and non-living marine resources by stepping-up surveillance and patrols of the maritime areas under the jurisdiction of Trinidad and Tobago. We therefore view the introduction or imposition by the Government of Barbados of any punitive measures likely to injure the economy of Trinidad and Tobago as a hostile act, and we will respond accordingly.

Let us hope that it does not come to that.
Ladies and Gentlemen, thank you and Good Night.

PORT-OF-SPAIN
February 18, 2004