Venezuela’s new neighbour

This is because areas subject to its maritime jurisdiction and control effective by the 1990 Treaty have been infringed and abrogated by the delimitation line handed down by the judgment of April 11 2006 in The Hague. That judgment adversely affects the legal status of the 1990 Treaty in maritime areas extending from Points 21 to 22 and opens up a legal mine-field.

It must be noted that Map VI of the Judgment albeit illustrative, does not recognise the continuation of the 1990 boundary to Point 22. That is located 300 nautical miles in the Atlantic Ocean marking the edge of the continental margin of TT and Venezuela. The 2006 boundary cuts the 1990 boundary at a distance of 200 nautical miles (Point 11) measured from the base point on Little Tobago. Mysteriously, the boundary does not even extend to the point where the 200 nautical miles arc from Barbados also cuts the 1990 boundary.

Why did the Tribunal’s boundary stop on this TT/Venezuela Boundary that Barbados does not recognise and not continue southwards to the Barbados/ Guyana equidistance notional boundary? Is the 1990 Line a special circumstance or an equitable criterion? What is the legal significance of this deliberate and selective omission? Does it reflect the position of Barbados, that to my mind is wholly untenable? Does it also reflect in the minds of the Arbitral Tribunal the disparities in the power/political strength between TT and Venezuela that caused the Tribunal not to go beyond the line into Venezuelan waters located north of the notional equidistance boundary?

It is to be noted that Barbados, as a member of the international community and fronting directly on the maritime area delimited in 1990, is not to be regarded from both practical and legal viewpoints as any other Third State. It did not lodge an official protest when its rights stood potentially to be adversely affected. It had a legal obligation and duty to reserve its position. Its continued failure to do so for 15 years meant that it was estopped from claiming it does not recognise the 1990 Treaty or that the 1990 Treaty Line is not opposable or binding on it. Venezuela may wish to bring this to the attention of the Bajans. Does Venezuela now have to commence negotiations with Barbados because they are now adjoining States, thanks to a convoluted judgment issued by the Tribunal?

It is to be noted that Barbados represented to the Tribunal that the 1990 Treaty, which was incidentally ratified at a publicly televised ceremony in PoS with its High Commissioner to TT Mr Da Silva in attendance, was not opposed to it. That cannot be upheld by international law and assented to by a Tribunal worth its salt having regard to the lack of the requisite protest by Barbados. The evidence suggests that TT agreed, to my astonishment, with the Bajans during the hearings of the Tribunal on this point.

Venezuela cannot accept the ruling of this court. It must demonstrate its outrage employing all the legal means available to it to protest this injustice. It appears to me that, while Venezuela was able to get to Points 22 with the assistance of TT, it can now abandon TT and negotiate a new boundary between new 11 and 22 with Barbados and leave TT stuck at 11.

Venezuela may have to decide whether it will accept Barbados as its northern partner to the 1990 boundary from points 21 (11) to 22 and allow it unjustifiably to share in the South American continental shelf extending beyond 200 miles. That would be a legally cumbersome situation since Barbados is neither party to nor successor to TT in the 1990 Agreement.

Venezuela must also protest against the Barbados/Guyana EEZ Cooperation Agreement. That agreement infringes on Venezuelan jurisdiction and control in an area that is located south of the agreed 1990 boundary and perhaps on the notional equidistance Barbados-TT-Guyana boundary.

Venezuela must initiate bilateral discussions with TT to assess the extent of the defence of the TT/Venezuela Treaty during the hearings of the Arbitral Tribunal. It must protest the lack of co-operation afforded by TT preparatory to, during and ex- post hearings/judgment.

This could only have happened because the responsibility for dealing with this sea boundary was handled by the Ministry of the Attorney General instead of the Ministry of Foreign Affairs, where the institutional memory and law of the sea expertise in maritime boundary delimitation are available.