TT wins fishing row

A high-powered arbitral tribunal handed down its decision in The Hague in The Netherlands yesterday. In a 116-page judgment, the tribunal found in favour of Trinidad and Tobago and rejected claims of the Bajans that they have a right to fish in waters off Tobago.

Although the ruling was clearly in favour of this country, former Barbados Attorney General and deputy prime minister Mia Mottley claimed victory in a four-page release from Bridgetown, Barbados yesterday.

In his reaction to the judgment, Trinidad and Tobago’s attorney general John Jeremie said the tribunal “rejected each and every claim made by Barbados on all counts, including the attempt by the Barbados government to secure all of the area south of the median line which they regarded as their fishing ground, that is just off Tobago.”

According to the decision of the six-member tribunal, Trinidad and Tobago and Barbados are now obligated to sit down and negotiate in good faith so the fisherfolk of Barbados can gain access to the fisheries in TT waters.

The tribunal pointed out that Trinidad and Tobago has the right and duty to conserve and manage the living resources of waters within their jurisdiction.

However, there was not much shifting of the boundaries between both countries.

The tribunal was headed by Judge Stephen M. Schwebel, former President of the International Court of Justice (ICJ). The other members were Ian Brownlie QC, of Blackstone Chambers, London; Professor Vaughan Lowe, Chichele Professor of International Law at Oxford University; Professor Francisco Orrego Vicuna, and Sir Arthur Watts QC.

On April 30, 1979, TT and Barbados entered a memorandum of understanding on matters of cooperation covering hydro-carbon exploration and fishing.

In 1986, TT adopted the “Archipelagic Waters and Exclusive Economic Zone Act” in order to define TT as an archipelagic state and to claim its exclusive economic zones (EEZ).

Between 1988 and 2004, TT arrested several Barbados fishermen off Tobago and accused them of illegal fishing. In November 1990, both countries concluded a fishing agreement allowing Barbados fishermen access to TT’s EEZ and facilitating access to Barbadian markets for TT fish. Between July 2000 and November 2003, both countries engaged in several rounds of bilateral negotiations which included maritime boundary negotiations and fisheries negotiations.

But they failed to reach an agreement and when talks broke down in November 2003, it was decided to hold further talks in February 2004.

But as fate would have it, two Barbados fishermen — Joseph Mason, 47, and Samuel Firebrace, 61 — were arrested by the TT Coast Guard fishing off Tobago on February 6, 2004. Although no evidence was offered against them at the Scarborough Magistrates’ Court two days later, their arrests angered Mottley who initiated arbitration proceedings pursuant to the 1982 United Nations Convention on the Law of the Sea.

The tribunal considered the full range of evidence presented by Barbados but did not find any to suggest that the fisherfolk had traditionally fished for flying fish off Tobago for centuries.

“Evidence supporting that contention is, if understandably, nevertheless distinctly, fragmentary and inconclusive. The documentary record prior to the 1980s is thin,” the tribunal concluded.

The judgment continued, “The tribunal is aware of the risk of giving undue weight to written reports which may represent no more than a record of hearsay evidence and oral tradition.”

As to the second core of contention, Barbados has not succeeded in demonstrating that the results of past or continuing lack of access by Barbados fisherfolk to the waters in issue, will be catastrophic.

“The tribunal accepts that communities in Barbados are heavily dependent upon fishing and that the flying fish is central to that independence. But injury does not equate with catastrophe.

Nor is injury in the course of international economic relations treated as sufficient legal ground for border adjustment.”

The tribunal found that the fisher- folk had been fishing in the EEZ of Trinidad and Tobago without the licensed permission and were therefore subject to lawful arrest.