THE LANDMARK 2006 UNCLOS ANNEX VII BARBADOS/TRINIDAD AND TOBAGO MARITIME DELIMITATION...

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I. INTRODUCTORY REMARKS

I am delighted to be a part of this special celebration for Professor Louis B. Sohn and to see so many distinguished friends, including eminent International Court

of Justice (ICJ) Judges Thomas Buergendial, Sir Kenneth Keith, and Stephen M. Schwebel, Judge Thomas M. Franck, International Tribunal for Law of the Sea (ITLOS) President Rudiger Wolfrum, Ambassador David A. Balton, and such best friends as Ashley Roach, David Freestone, Lee Kimball and Tucker Scully, Daniel Dzurek, John Noyes, and of course now "Orange" Judge ad hoc of Ukraine in Romania v. Ukraine Maritime Delimitation in the Black Sea case, Professor Bernard H. Oxman, whose name-along with that of Shabtai Rosenne-has always been the closest to Louis Sohn.

My words of warmest gratitude go to Associate Dean Susan L. Karamanian, whose unlimited endiusiasm and a lot of hard work brought us here together today.

Having reviewed all heartwarming tributes placed in memory of Louis B. Sohn at the American Society of International Law (ASIL) website and made by Judge Buergendial, UN Secretary-General (UNSG) Kofi A. Annan, and many states during the latest Meeting of States Parties to the United Nations Convention on the Law of the Sea (UNCLOS) in New York, it occurred to me that Louis Sohn's outstanding achievements are marked by three keywords: excellence, which he represented in every respect; UNCLOS, of which he was a principal architect; and dispute settlement within the framework of the United Nations Charter, the drawing up of which he was indeed privileged to attend in San Francisco.1

I therefore decided to focus my presentation on the landmark UNCLOS Annex VII Barbados/Trinidad and Tobago Maritime Delimitation (Jurisdiction and Merits) Award, which was rendered on the eve of the ICJ's 60th Anniversary and represents the same three keywords that are characteristic of Louis Sohn's achievements. The Award2 also substantiates the view of the ICJ Presidents and ASIL President Jose E. Alvarez, with whom Professor Sohn would certainly agree, that international law will become ever more important in the future.3 This is especially true because, as David Freestone recently remarked, "nowhere is the impact of general international law felt more strongly than in the context of maritime boundary delimitation," which forms the very subject matter of this Award.4

The Barbados/Trinidad and Tobago Award marked a continuation of the recent 1998/1999 Eritrea/Yemen Territorial Sovereignty and Maritime Delimitation (Phases I-II) Awards, the 2001 Qatar v. Bahrain Maritime Delimitation and Territorial Questions (Merits) Judgment, 2001/2002 Newfoundland and Labrador/Nova Scotia (Phases I-II) Awards and the 2002 Cameroon v. Nigeria; Equatorial Guinea Intervening Land and Maritime Boundary (Merits) Judgment, which enjoy the highest prominence of vast jurisprudence concerning equitable maritime boundary delimitation. This jurisprudence is often intertwined with territorial acquisition and land boundary delimitation, as is proven by the pending ICJ Nicaragua v. Honduras Maritime Delimitation in the Caribbean Sea (Merits), Nicaragua v. Colombia Territorial and Maritime Dispute (Preliminary Objections), Malaysia/Singapore Pedra Branca/Pulau Batu Puteh and Romania v. Ukraine Maritime Delimitation in the Black Sea cases, as well as the pending UN Equatorial Guinea/Gabon Corisco Bay Islands and Guyana/Venezuela Good Offices, and the OAS Belize/Guatemala Territorial and Maritime Delimitation Mediation.5

From amongst five UNCLOS Annex VII Tribunals, the Barbados/Trinidad and Tobago Maritime Delimitation Arbitral Tribunal was the first to render its Award on the merits.6 These Tribunals, which were welcomed in an illuminating Message delivered by the ICJ on the occasion of the UNCLOS 20th Anniversary on December 10, 2002, include the inaugural Australia/New Zealand v. Japan Southern Bluefin Tuna Tribunal under presidency of then ICJ President Stephen M. Schwebel, followed by the Ireland v. United Kingdom Mox Plant Tribunal under presidency of the former International Tribunal for the Law of the Sea (ITLOS) President Thomas A. Mensah, which both involved the doctrine of treaty parallelism between dispute settlement procedures laid down in "an umbrella" UNCLOS Part XV and "self-contained" clauses agreed in its implementing treaties that fall within the ambit of "sister" Articles 281-282; Malaysia v. Singapore Land Reclamation in and around the Straits of Johor Arbitration under Christopher Pinto's presidency, which was discontinued when the parties reached the 2005 Settlement Agreement; and the Annex VII Barbados/Trinidad and Tobago and Guyana/Suriname Tribunals, which were presided over by Judge Schwebel and former ITLOS President Dolliver Nelson, respectively, and were requested to adjudge equitable maritime boundary delimitation joindy with certain preliminary objections that were raised to jurisdiction of these Tribunals by Trinidad and Tobago (and also Barbados) and by Suriname.7

The first three environmentally-focused cases (Southern Bluefin Tuna, Mox Plant and Straits of Johor) were coupled with provisional measures prescribed by the ITLOS under UNCLOS Article 290(5) pending establishment of the respective Annex VII Arbitral Tribunals. As is typical of most cases instituted by means of unilateral applications, all of these arbitrations involved certain objections to the Tribunals' jurisdiction and/or admissibility of the applicants' claims. The Registry of the inaugural Southern Bluefin Tuna case was provided by the International Centre for Setdement of Investment Disputes (ICSID) in Washington, D.C., while the Permanent Court of Arbitration (PCA) in the Peace Palace, The Hague served as the Registry of the four subsequent Annex VII Arbitrations listed above and also of the 1998/1999 Eritrea/Yemen (Phases I-II) Awards and the 2003 OSPAR Mox Plant Award.8

II. THE COURSE OF THE PROCEEDINGS AND THE PROCEDURAL AND SUBSTANTIVE COMPLEXITY OF THE 2006 BARBADOS/TRINIDAD AND TOBAGO (JURISDICTION AND MERITS) AWARD

A. The Course of the Barbados/Trinidad and Tobago Proceedings

The Barbados/Trinidad and Tobago dispute emerged during nine rounds of negotiations concerning delimitation of the maritime boundary in the Western, Central, and Eastern sectors of their overlapping claims to the continental shelf and 200-mile exclusive economic zone (EEZ) in the Caribbean Sea (five rounds) and associated questions posed by the continuing access for Barbadian fisherfolk to flyingfish stocks south of prospective equidistance in the Western sector (four rounds). Having understood that the negotiations deadlocked when, according to Barbados, the Prime Minister of Trinidad and Tobago declared on February 16, 2004 the issue of the maritime boundary "intractable" and invited Barbados to proceed, if it so wished, with arbitration,9 Barbados invoked the compulsory arbitration provisions of Part XV, section 2 of the UNCLOS. The parties were deemed to have accepted, pursuant to "Riphagen (or Montreux) clause" of Article 287(3), arbitration in accordance with Annex VII, because-like in the Southern Bluefin Tuna, Straits of Johor and Guyana/Suriname cases-neither of the parties to the Barbados/Trinidad and Tobago dispute had made a declaration under UNCLOS Article 287.10

Professor Louis B. Sohn, whose commitment to excellence is legendary, would certainly appreciate that the UNCLOS Annex VII Barbados/Trinidad and Tobago Maritime Delimitation (Jurisdiction and Merits) Award marked landmark progress in both compulsory jurisdiction and equitable maritime boundary delimitation, because it resulted from the teamwork of illustrious international lawyers. In particular, the members of the Arbitral Tribunal included: eminent President Stephen M. Schwebel, former ICJ Judge (19812000), who also presided over the inaugural Annex VII Southern Bluefin Tuna Tribunal and was the member of the 1984 Gulf of Maine Chamber and the 1998/1999 Eritrea/Yemen Arbitral Tribunal and whose ICJ presidency (1997-2000) marked the busiest docket of 22 new cases in the history of the Court;the leading ICJ Counsel and co-author of the celebrated Oppenheim's International Law, Sir Arthur Watts KCMG QC, who also was the member of the Annex VII Malaysia v. Singapore Straits of Johor and Ireland v. UK Mox Plant Arbitral Tribunals; another leading ICJ Counsel Mr. Ian Brownlie CBE QC (appointed by Trinidad and Tobago) with considerable experience in territorial and maritime cases, whose Public International Law has customarily paid considerable attention to the law of the sea; and two leading law of the sea experts, Professor Francisco Orrego Vicuña, who also serves as Chile's Judge ad hoc of the suspended ITLOS EC/Chile Swordfish Chamber, and Professor Vaughan A. Lowe (appointed by Barbados), who served previously as Japan's Counsel (together with Shabtai Rosenne and Sir Elihu Lauterpacht CBE QC) in the Southern Bluefin Tuna case, as Singapore's Counsel (togetiier with Michael Reisman) in the Malaysia v. Singapore case, and as Ireland's Counsel in the Mox Plant cases.11

The highest cumulated competence of the five-member Tribunal was duly matched by other leading international lawyers representing the parties, including Barbados' counsel who served as Bahrain's Counsel in the Qatar v. Bahrain case - eminent Sir Elihu Lauterpacht CBE QC, Michael Reisman, Robert Volterra, and Jan Paulsson - and Trinidad and Tobago's counsel -James Crawford SC (who is currendy the Director of Lauterpacht Research Center) and Christopher Greenwood CMG QC.12

Upon its establishment, the Tribunal adopted the Rules of Procedure and issued four Orders in 2004, which were followed by the joining of Trinidad and Tobago's Preliminary Objections to merits phase13 and by Hearings (including cross-examination of witnesses) in London on October 17-28, 2005.14 The vital interests of the two states in valuable oil and fishery resources and high intensity of the factual and legal (bodi procedural and substantive) contentions forcefully disputed by the parties as represented by the leading international counsel, were accompanied by a number of procedurally incidental issues that arose in the context of confidentiality of the proceedings and treatment of evidence. In particular, these issues included: Guyana's attempt to obtain the Barbados/Trinidad and Tobago pleadings, which could lead to its attempt to intervene in the arbitral proceedings, which both parties did not agree to afford it;15 alleged "self-help" measures by Barbados with respect to Trinidad and Tobago's oil blocks; the admissibility of the Joint Reports recording Barbados/Trinidad negotiations; submission by both parties of certain supplementary evidence; and confidentiality of the arbitral proceedings, which Trinidad and Tobago departed from in press reports published during the confidential London hearings.16

B. The Procedural and Substantive Complexity of the 2006 Barbados/Trinidad and Tobago (Jurisdiction and Merits) Award

The unanimous Barbados/Trinidad and Tobago Maritime Delimitation (Jurisdiction and Merits) Award was rendered on the eve of the ICJ's 60th Anniversary, which was celebrated with UNSG Kofi A. Annan's participation on April 12, 2006.17 The Award became, on par with the 2001 Qatar v. Bahrain Maritime Delimitation and Territorial Questions (Merits) Judgment, the best of all judicial and arbitral decisions concerning maritime boundary delimitation.18 The posting on the Internet of the Award's text and its voluminous written and oral pleadings marked the unprecedented instance of allowing public access to the inter-state arbitral proceedings involving boundary delimitation.19 The posting also facilitated appreciation of the Barbados/Trinidad and Tobago Award's remarkable consistency with the richness of judicial precedents relied upon during those proceedings.20 Although this arbitration was instituted upon the unilateral application of Barbados, whose proposal for simultaneous exchange of pleadings was rejected by Trinidad and Tobago to the advantage of sequentially-filed pleadings, it is important that the Award's tide (also repeated on the title pages of all pleadings) does not use the term "versus," but states: "Arbitral Tribunal Constituted Pursuant to Article 287, and in Accordance with Annex VII, of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration Between: Barbados and the Republic of Trinidad and Tobago - Award of the Arbitral Tribunal" (emphasis added).21 This, in combination with the joining of Preliminary Objections to the Tribunal's jurisdiction to the merits phase, and with not only the filing of those objections by Trinidad and Tobago, but also the filing of one objection by Barbados, justifies the use of a slash (/) instead of versus (v.) in the abbreviated title of the Barbados/Trinidad and Tobago Award on the PCA website and subsequendy in the present essay and elsewhere.22

The substantial, 385-paragraph Barbados/Trinidad and Tobago (Jurisdiction and Merits) Award's format and composition was closely modeled on ICJ judgments, with "the total comprising a unity."23 It commences with the introductory qualités comprising the formal history of the proceedings and narrative of the facts as well as the arguments of the parties concerning jurisdiction and the merits, which are presented in a helpful form of questions raised by many specific procedural and substantive issues disputed in tins complex case, followed by the final submissions of the parties (Chapters I- III, paras 1-187) .24

The subsequent, 198-paragraph legal reasoning of the Annex VII Arbitral Tribunal deals with preliminary objections to the Tribunal's jurisdiction (Chapter IV, paras 188-218) and with equitable maritime boundary delimitation (Chapters V-VIII, paras 219-383 and Technical Report), which comprises general considerations concerning applicable law and the delimitation process (Chapter V, paras 219-245), followed by three sectors of the Barbados/Trinidad and Tobago boundary. While the short Central segment 16-mile equidistant line was not disputed by the parties and is tiius dealt with in one paragraph (Chapter VII, para.294), the delimitation in two other disputed sectors is addressed by 136 paragraphs of the Award dealing with the Western sector (Chapter VI, paras 246-293) and the Eastern sector (Chapter VIII, paras 295-383).

The Award ends with the operative clause {dispositif), comprised of three decisions concerning jurisdiction (para.384), two decisions related to maritime delimitation (para.385(l)-(2)), and one decision committing the parties to resolve the issue of Barbados' access to fisheries within Trinidad and Tobago's EEZ (para.385(3)). The Award is signed, for purposes of authentication, by President Schwebel, four arbitrators, and the Registrar.

The parties differed as to whether the maritime boundary and fisheries negotiations were part of a single negotiating process/dispute or separate negotiations/disputes. Trinidad and Tobago, which supported the latter option, therefore, contested in its 2004 Preliminary Objections the Annex VII Tribunal's jurisdiction on the ground of non-fulfillment of preconditions laid down in Part XV, section 1 for resorting to section 2 procedures and on the ground that Article 297(3) of section 3 requires automatic exclusion from those procedures of fisheries disputes. For its part, Barbados considered fisheries as an inherent part of the dispute over the EEZ/CS delimitation falling within the Tribunal's jurisdiction which, however, in Barbados' view (contested by Trinidad), could not cover the outer continental shelf beyond 200 miles that was claimed by Trinidad and Tobago in areas overlapping with the EEZ claimed by Barbados in the Eastern sector.

By means of its notably complex and unanimous resolution, the Barbados/Trinidad and Tobago Tribunal clarified that the dispute concerned legal rules and the resulting boundary line delimiting the EEZ/CS areas that appertain to each of the parties "on the basis of international law," as referred to in UNCLOS Articles 74/83.25 The Tribunal also dismissed Trinidad and Tobago's objections and upheld its jurisdiction over delimitation of these overlapping EEZ/CS areas.26 The Tribunal effected this delimitation by drawing a single, equidistance-based boundary line that starts from the tripoint between Barbados, Trinidad and Tobago, and Saint Vincent and the Grenadines and ends at the intersection of the Barbados/Trinidad and Tobago boundary with Trinidad and Tobago/Venezuela Treaty's boundary.27 Whereas such a single boundary line did not involve overlapping areas of the outer continental shelves extending beyond 200 miles, the Tribunal concluded it had jurisdiction, which Trinidad and Tobago contended and Barbados contested, over such delimitation as well.28

The Tribunal also upheld its jurisdiction to consider the possible impact upon a prospective delimitation line of Barbadian fishing in waters affected by the delimitation.29 Given that the Tribunal excluded actual applicability of such an impact in the instant case and thereby separated the fisheries issues from the dispute over maritime boundary delimitation, the Award's dispositif upheld Trinidad and Tobago's preliminary objection that the Tribunal had no jurisdiction to render a substantive decision as to fisheries regime in waters forming part of the Trinidad and Tobago's EEZ by virtue of Article 297(3). Therefore, and since Barbados' dependence on straddling stocks of flyingfish has kept fisheries controversies at the heart of these proceedings, the five-member Tribunal unanimously found it appropriate to adjudge that both parties were under a duty codified in Article 63 to agree upon measures of conservation and management of these stocks and to negotiate in good faith and conclude a new fisheries agreement.30

III. JURISDICTION OF THE UNCLOS ANNEX VII BARBADOS/TRINIDAD AND TOBAGO ARBITRAL TRIBUNAL

In deciding for the first time upon its compulsory jurisdiction (la compétence de la compétence) over maritime delimitation dispute pursuant to Article 288(4) of Part XV, section 2 of the UNCLOS, the Annex VII Barbados/Trinidad and Tobago Arbitral Tribunal made a number of significant and unprecedented contributions to enhancing the potential of such jurisdiction under UNCLOS Part XV. Professor Louis Sohn, who as Kofi Annan put it, "was a firm believer in the importance of the United Nations and of the rule of law in setding international disputes," would be certainly both delighted and proud that all these contributions were made by the Tribunal in close reliance upon the famous Volume V of the Virginia Commentary, which Louis Sohn co-edited with Shabtai Rosenne and which was intensively quoted by both parties during the Barbados/Trinidad proceedings.31

The Barbados/Trinidad and Tobago Tribunal commenced its consideration of jurisdictional issues by recalling the parties' general obligation codified in Articles 279-280 of section 1 to settle their disputes by peaceful means of their own choice within the framework of the United Nations Charter,32 which is paralleled by the requirements in identical Articles 74/83(l)-(2) that the EEZ/CS delimitation has to be effected "by agreement on the basis of international law" and that if it cannot be reached "within a reasonable period of time," the states concerned shall resort to the procedures provided for in Part XV.

The Tribunal then approached provisions of section 1 (in particular "sister" Articles 281-282 and Article 283), coupled with Articles 74/83, from two important perspectives in terms of preconditions of resorting unilaterally to compulsory procedures of section 2, pursuant to Article 286, where no setdement has been reached through the agreed means.

A. "Sister" Articles 281-282 and Articles 74/83

First, noting that UNCLOS Article 282, which covers standing bilateral or multilateral treaties providing for resort to compulsory procedures that can apply in lieu of section 2 procedures, was of no relevance to the instant dispute, the Tribunal made an unprecedented pronouncement concerning preconditions set forth in its "sister" Article 281.33 Keeping in mind that in the 2003 Malaysia v. Singapore (Provisional Measures) Order, ITLOS considered the application of Article 281 to the agreement of both parties that their negotiations would be without prejudice to Malaysia's right to proceed with Part XV, section 2 procedures, the five-member Barbados/Trinidad and Tobago Tribunal authoritatively elevated this application to the status of general rule enshrined in Article 281 and placed it into the inter-related context of Articles 74/83 by clarifying that:

Article 281 is intended primarily to cover the situation where the Parties have come to an ad hoc agreement as to the means to be adopted to settle the particular dispute which has arisen. [. . .] In the present case the Parties have agreed in practice, although not by any formal agreement, to seek to settle their dispute through negotiations, which was in any event a course incumbent upon them by virtue of Article 74(1) and 83(1). Since their defacto agreement did not exclude any further procedure [as is required by Article 281(1)], and since their chosen peaceful settlement procedure - negotiations - failed to result in a settlement of their dispute, then both by way of Article 74(2) and 83(2) and by way of Article 281 (1) the procedures of Part XV are applicable (emphasis added).34

The Barbados/Trinidad and Tobago holdings quoted above enhance the compulsory jurisdiction of Annex VII Tribunals, the ICJ, and the ITLOS over maritime delimitation and other UNCLOS-related disputes. The holdings also provide an important clarification of the scope of agreements falling within the ambit of Article 281, which has been hotly debated in a follow-up to the 2000 Southern Bluefin Tuna (Jurisdiction and Admissibility) Award. The Annex VII Southern Bluefin Tuna Tribunal dismissed its jurisdiction because of a "self-contained" dispute settlement clause in the 1993 Southern Bluefin Tuna Convention (Article 16, modeled upon Article XI of the Antarctic Treaty) solely on the ground of Article 281, which was entirely disregarded by the 1999 ITLOS Southern Bluefin Tuna (Provisional Measures) Order.35 The dismissal raised the issue of a number of other special treaties implementing the UNCLOS that, like the 1993 Convention, could be considered as "excluding any further procedures" of UNCLOS Part XV, section 2 and being applicable mutatis mutandis to the 1995 UN Fish Stocks Agreement.36

The Trinidad/Barbados and Tobago Tribunal's present clarification quoted above, that Article 281 is intended primarily to cover not standing agreements but ad hoc agreements between states to settle their maritime boundary or any other disputes by negotiations, means a bright future for compulsory jurisdiction, because it logically follows that the potential bar posed by self-contained clauses of standing agreements, such as the 1993 Southern Bluefin Tuna Convention, is very limited. The Tribunal's clarification is particularly welcomed when the 2006 European Commission v. Ireland Mox Plant Judgment of the European Court of Justice (ECJ) determined that compulsory procedures on unilateral request, agreed to in special treaties (Articles 292 EC and 192-193 Euratom) falling under sister Article 282, pose a serious bar to the UNCLOS compulsory procedures.37 In view of strong concerns displayed in the Mox Plant Judgment over a risk of a ruling by Annex VII, or any judicial or arbitral forum other than the ECJ, on the scope of obligations imposed on the EU member states by Community law (of which UNCLOS forms a part), even an option of joint institution by Ireland and Britain of the Mox Plant proceedings outside the Community judicial system would perhaps not (in the case of this EC law dispute par excellence) be legitimate, despite the consentbased ending clause ("unless the parties to the dispute otherwise agree") of UNCLOS Article 282 that provides that the parties can joindy agree to use other procedures not laid down in their special treaties.38

The 2005 Belgium/Netherlands Iron Rhine Award was distinct from the Mox Plant case, because both parties agreed that the core of their Iron Rhine dispute related to the 1839 Separation Treaty and they both requested the Arbitral Tribunal "to render its decision on the basis of international law, including European law if necessary, while taking into account the Parties' obligations under Article 292 of the EC Treaty."39 The Iron Rhine Tribunal construed its position as analogous to that of a domestic court with respect to preliminary rulings under EC Article 234 (previously 177), but the Tribunal ultimately did not find an ECJ ruling necessary given that there was no need for the Tribunal to interpret European Community (EC) law.40 In the case of a singular Mox Plant dispute centered at the alleged violations of the EC legislation, resumption of the Annex VII Mox Plant Arbitration - which was initiated by Ireland unilaterally and raised serious objections of Britain to the Annex VII Tribunal's jurisdiction that were endorsed by the 2006 ECJ Mox Plant Judgment - could perhaps materialize upon the joint agreement of Britain and Ireland that the Annex VII Tribunal should request from the ECJ a preliminary ruling in order to render an Award adjudging the merits of the Mox Plant case.41

The jurisdictional problems revealed in both the Southern Bluefin Tuna and the Mox Plant cases did not, however, prevent the procedural decisions in those cases from impacting the ultimately satisfactory resolution of the disputes concerned and the exposition of certain doctrines and concepts. Those doctrines and concepts include the doctrine of treaty parallelism, as between UNCLOS Part XV and "self-contained" procedures agreed to in special treaties covered by Articles 281-282, as well as the effects of EC participation in UNCLOS as a mixed agreement (of which provisions fall both within the exclusive Community's competence and within its competence shared with member states), which contributes to the development of procedural law for the peaceful resolution of oceans disputes.42

B. Article 283 and Articles 74/83

second, the Barbados/Trinidad and Tobago Arbitral Tribunal reaffirmed the holdings endorsed by other courts that UNCLOS Article 283 (and corresponding requirements of Article 281) cannot reasonably be interpreted to require that the parties should embark upon further and separate exchanges of views regarding its settlement by negotiations when several years of negotiations have already failed to resolve a dispute.43 Such a situation would amount to what Barbados' Counsel Michael Reisman characterized colorfully as "Baron Van Munchausen tactics" and "Ground Hog Day scenario."44 In this context, the Barbados/Trinidad and Tobago Tribunal again drew several unprecedented conclusions on the relationship (not involved in previous jurisprudence) between .Articles 74/83 and 283. They included the authoritative findings that the requirements of Article 283(1)-(2) for settlement by negotiations are subsumed within the negotiations that Articles 74/83 require the parties to already engage in; and that reference in Articles 74/83(2) to "the States concerned" (in the plural) resorting to the procedures of Part XV must be understood as referring to those procedures in the terms in which they are set out in Part XV, namely by either joint or unilateral action of states.45

It, therefore, appears that, had the part concerning maritime boundary delimitation of the Cameroon v. Nigeria; Equatorial Guinea Intervening dispute been submitted to the ICJ pursuant to UNCLOS Part XV, the Court would have rejected Nigeria's Preliminary Objection based on Articles 74/83 in reliance on the reasoning similar to that nowapplied by the Annex VII Tribunal in the Barbados/Trinidad and Tobago (Jurisdiction and Merits) Award.46 Moreover, while the five-member Tribunal was well aware that delimitation negotiations under Articles 74/83, like all obligations to negotiate in international law, must be meaningful but not necessarily successful, it endorsed in another part of its reasoning the restrictive Lake Lanoux standard as to "the reality and nature of an obligation to negotiate an agreement," which should be construed as equally applicable to the Tribunal's holdings concerning Articles 74/83.47

C. Other Jurisdictional Holdings, Including on Jurisdiction over Delimitation of the Outer Continental Shelf Beyond 200 Miles

The Tribunal also upheld arguments by Barbados that unilateral invocation of the Annex VII arbitration could not by itself be regarded as an abuse of right contrary to the general rule codified in UNCLOS Article 300.48 The Tribunal stressed that unilateral exercise of a right envisaged by paramount Article 286 without discussion or agreement with the other party (which could incline that party to opt out of the compulsory procedures by making a declaration under Article 298(1) (a)) is "a straightforward exercise of the right conferred by the treaty," a concept similar to the unilateral institution of ICJ proceedings in reliance on the Optional Clause under Article 36(2) of the Court's Statute.49

The foregoing jurisdictional findings did not require separate fulfillment with respect to the outer continental shelf beyond 200 miles, because this shelf was, in the Barbados/Trinidad and Tobago Tribunal's view, included within the scope of the dispute submitted to arbitration and falling within its jurisdiction. After reluctance originally displayed in the 1992 Canada/France (Saint Pierre et MiqueUm) Maritime Delimitation Award and relied upon by Barbados, the Tribunal was now convinced that its jurisdiction over delimitation of the outer continental shelf would not - as Trinidad and Tobago argued - interfere with the core functions of the Commission on the Limits of the Continental Shelf (CLCS), whose practice must, in accordance with UNCLOS Article 76(10) and the 2004 CLCS Rules of Procedure (Rule 46 and Annex I), remain without prejudice to delimitation of these areas between the states concerned and resolution of the respective territorial disputes.50 If any of the numerous pending disputes were submitted to third-party settlement, the ICJ or Arbitral Tribunal would most likely rely upon the pioneering decision of the Barbados/Trinidad and Tobago Tribunal to uphold, its jurisdiction and it would effect such delimitation of the outer continental shelf beyond 200 miles as might perhaps also apply to certain portions of the Caribbean shelf involved in the Nicaragua v. Colombia Territorial and Maritime Dispute case (provided Colombia's Preliminary Objections are dismissed and this case proceeds to the phase of Merits) .51 The same would apply to an eventual third-party involvement in seaward extension (beyond Point D) of the 1984 Gulf of Maine single (perpendicular) boundary that, upon agreement of both parties, was stopped by the ICJ Chamber at a point on the U.S. 200-mile limit, a point that is only about 176 miles from Canada's baselines and beyond which lies a potential grey area of overlapping Canada's EEZ and the U.S. outer continental shelf, followed by the outer shelf of both states still extending beyond 200 miles for a considerable distance.52 In view of the "final and binding" nature of all the judgments and awards, it appears that the CLCS will not make any recommendations on such a shelf, but will take due notice of its delimitation between opposite/adjacent states, notwithstanding whether such an outer continental shelf will53 or will not border on the International Seabed Area.54

The Barbados/Trinidad and Tobago Award marked the first jurisprudential application of automatic exclusion from compulsory procedures under UNCLOS Part XV, section 2 of disputes over fisheries in the 200-mile EEZ pursuant to Article 297(3), which the Tribunal considered in the context of the role played by fisheries in the Western sector of maritime delimitation analyzed further below.55

IV. BARBADOS/TRINIDAD AND TOBAGO EQUITABLE MARITIME BOUNDARY DELIMITATION AND FOREIGN ACCESS TO STRADDLING FISH STOCKS IN THE EEZ

A. Relevant Geography and Factual Context

Highlighting the geographical setting of the dispute, the 2006 Barbados/Trinidad and Tobago Maritime Delimitation (Jurisdiction and Merits) Award specifies that the islands of Trinidad and Tobago lie off the northeast coast of South America and Trinidad and Venezuela are a litde over seven miles apart at their closest point.56 The Award notes that Barbados is not part of the volcanic Windward Islands which start seventy miles to the northwest and comprise Grenada, St. Vincent and the Grenadines, St. Lucia, Martinique, Dominica, and others and collectively, with islands farther north, make up the Lesser Antilles Islands. The island of Barbados (of 441 square kilometers and a population of 272,200) is situated northeast of Tobago by 116 miles and nearly eighty miles east of St. Lucia. The Republic of Trinidad and Tobago comprises the islands of Trinidad (of 4,828 square kilometers and a population of 1,208,300), the island of Tobago nineteen miles to the northeast (of 300 square kilometers and a population of 54,100), and a number of much smaller islands that are close to those two main islands and are all essentially the eastward extension of the Andean range of Soudi America. East of Trinidad and Tobago, the coast of South America trends in an east-southeasterly direction, first with part of the coast of Venezuela, then the coasts of Guyana, Suriname, and French Guyana. The Windward Islands lie as a string of islands in a south to north orientation starting direcdy north of the Boca del Dragon, which is the channel between the northwest corner of the island of Trinidad and the Peninsula de Paria of Venezuela.

In contrast to the Eritrea/Yemen and Qatar v. Bahrain cases, where only one of the parties (Yemen and Bahrain) ratified the UNCLOS, both Trinidad and Tobago and Barbados ratified it on April 25, 1986 and October 12, 1993, respectively. By virtue of the 1978 Marine Boundaries and Jurisdiction Act and the 1986 Archipelagic Waters and Exclusive Economic Zone Act, Barbados and Trinidad and Tobago established their 12-mile territorial sea (TS) and 200-mile EEZ; Trinidad and Tobago also claimed an archipelagic status and baselines conforming with UNCLOS Part IV and producing a water to land ratio of 1.4:1 (2,027 square miles: 1,540 square miles).57 The 1978 Act favored delimitation by equidistance between Barbados and any adjacent or opposite state located less than 400 miles apart (Article 3(3)-(5)), while the 1986 Act of Trinidad and Tobago displayed preference for delimitation "on the basis of international law in order to achieve an equitable solution" (Article 15).58 The Barbados/Trinidad and Tobago Tribunal held, in accordance with the well-recognized principle that "the delimitation of sea areas has always an international aspect" ["la délimitation des espaces maritimes a toujours un aspect international"] :

The fact that in 1978 Barbados enacted legislation providing that in the absence of agreement with a neighboring State the boundary of its EEZ would be the equidistance line does not result in any form of recognition of, or acquiescence in, the equidistance line as a definitive boundary by any neighboring State.59

Since the mid-1990s, Barbados has also been preparing its submission to the CLCS concerning the limits of its outer continental shelf beyond 200 miles.60

Both states were constrained from reaching their full 200-mile EEZ entitlement and any full potential outer continental shelf claim in the Eastern sector by their mutual presence (with equidistance extending to 192 miles from Trinidad and Tobago's baselines, or 220 miles from the southern part of the island of Trinidad until their terminus at the tripoint with Guyana), as well as by the presence of Venezuela, Guyana, and Suriname.61 The 1990 Trinidad and Tobago/Venezuela Delimitation of Submarine Areas Treaty, which superseded the famous Gulf of Paria Treaty, established the southern limit of Trinidad and Tobago's entitlement to maritime areas.62 Guyana, which in early 2002 protested that the 1990 Treaty encroached on its provisional maritime boundaries and its potential claims to the outer continental shelf, concluded with Barbados the Exclusive Economic Zone Treaty on December 2, 2003. The treaty established a joint fishery and minerals development zone to the south of the Trinidad and Tobago/Venezuela boundary. In early 2004, Guyana instituted the UNCLOS Annex VII Guyana/Suriname proceedings, followed by Guyana's unsuccessful attempt to obtain access to the pleadings in the parallel Annex VII Barbados/Trinidad and Tobago Arbitration.63

B. An Appraisal of Modern Application of the Law and Process of Equitable Maritime Boundary Delimitation Infra Legem

Prior to the drawing of a single Barbados/Trinidad and Tobago boundary, the Tribunal appraised the substantive issues pertaining to the modern application of the law and process of equitable maritime delimitation by mutually-reinforcing decisions of the ICJ and arbitral tribunals, combining the need for predictability and stability within the rule of law and the need for flexibility, entailing certain degree of judicial discretion, in the outcome.64 Having appraised the equitable principles as developed in treaty and customary law and international jurisprudence, in an unprecedented express exposition of both its "right and duty to exercise judicial discretion in order to achieve an equitable result," the Barbados/Trinidad and Tobago Tribunal held that:

Within those constraints imposed by law, the Tribunal considers that it has both the right and the duty to exercise judicial discretion in order to achieve an equitable result. There will rarely, if ever, be a single line that is uniquely equitable. The Tribunal must exercise its judgment in order to decide upon a line that is, in its view, both equitable and as practically satisfactory as possible, while at the same time in keeping with the requirement of achieving a stable legal outcome. Certainty, equity, and stability are thus integral parts of the process of delimitation (emphasis added).65

The paramount, and sometimes underestimated, importance of the rule codified in identical UNCLOS Articles 74/83(1) providing for the effecting of EEZ/CS delimitation "by agreement on the basis of international law, as referred to in Article 38 of the ICJ Statute, in order to achieve an equitable solution," was anticipated by the Canada/United States Delimitation of the Maritime Boundary in the Gulf of Maine Area Chamber (of which Judge Stephen M. Schwebel was a member) when it stated that: "Although the text is singularly concise it serves to open the door to continuation of the development effected in this field by international case law."66 The soundness of the visionary Gulf of Maine anticipation was confirmed twenty years later by the Barbados/Trinidad and Tobago Tribunal, which construed Articles 74/83(1) as follows:

This apparently simple and imprecise formula allows in fact for a broad consideration of the legal rules embothed in treaties and customary law as pertinent to the delimitation between the parties, and allows as well for the consideration of general principles of international law and the contributions that the decisions of international courts and tribunals and learned writers have made to the understanding and interpretation of this body of legal rules.67

The Tribunal also reaffirmed that the equitable principles/relevant circumstances rule of customary law, codified in Articles 74/83 (EEZ/CS), produces much the same result as the equidistant/special circumstances rule now retained in Article 15 (TS).68

Whereas Trinidad and Tobago characterized the boundary line proposed by Barbados, which was aimed at preserving its interest in flyingfish stocks in the Western sector, as illustrating what President Schwebel criticized in his Denmark v. Norway Opinion as "maximalist claims," Trinidad and Tobago has in fact made such "maximalist claims" itself with a view to obtaining the largest access to the Atlantic ("salida al Atlántico") in the Eastern sector.69 Neither of these amazing claims was ultimately rewarded by the Tribunal in the two-stage process of drawing a provisional, single equidistant boundary and then considering whether that boundary must be adjusted in light of primarily geographical and other special circumstances, as well as the test of proportionality a posteriori to obtain an equitable result.70 The Tribunal was cautious to reaffirm the well-established position of all other courts by stressing that the Barbados/Trinidad and Tobago boundary was without prejudice to boundaries between eitiier of the parties and any third state that did not fall within the Tribunal's jurisdiction.71

C. Equitable Maritime Boundary in the Western sector and Barbados' Access to Straddling Fish Stocks in Trinidad and Tobago's EEZ

Barbados contended that the Tribunal had two legal options at its disposal when faced with conflict over access to fisheries in the context of boundary delimitation in the Western sector. The Tribunal could adjust the provisional equidistance to ensure equitable access for the vulnerable population, which occurred in the 1993 Denmark (Greenland) v. Norway (Jan Mayen) Judgment with the application of the Gulf of Maine exception for "catastrophic repercussions," which would take into account the maximalist adjustment proposed by Barbados, depriving Tobago's coastline of any effect in terms of generating an EEZ.72 Or the Tribunal could keep the equidistance intact but establish a regime of non-exclusive access of that population that would guarantee continuation of its fishing rights, as did the Eritrea/Yemen Arbitral Tribunal in its 1998/1999 Awards by means of perpetuating the traditional fishing regime around the islands of Jabal al-Tayr, the Zubayr Group, and the Zuqar-Hanish Group, which were attributed to the sovereignty of Yemen.73

Accentuating the primacy of predictable criteria of geographical character and the uniqueness of the liberal Jan Mayen resolution, the Barbados/Trinidad and Tobago Tribunal upheld Trinidad's arguments as to the absence of conditions that would justify the Gulf of Maine exception in the instant case and the Tribunal rejected the applicability of the Eritrea/Yemen solution, which was devised in the specific context of awarding the sovereignty and with a view to excluding the impact of fisheries on the course of the boundary.74 This and the Qatar v. Bahrain holdings on "the right of innocent passage accorded by customary international law," which merely drew attention to legal provisions relevant to the position of the parties as that position resulted from the boundary line drawn by the ICJ, was, according to the Barbados/Trinidad and Tobago Tribunal, "very different from saying that a Tribunal has an inherent power to create a right of access by way of a remedy infra petita in a delimitation dispute."75

Having rejected the impact of fishing activities on the actual course of boundary lines along the singular Jan Mayen application and the relevance of the Eritrea/Yemen, Qatar v. Bahrain and several other precedents for granting Barbados fishery access by means of a remedy infra petita in the present case, the Barbados/Trinidad and Tobago Tribunal considered itself barred from ruling upon the rights and duties of the parties in relation to fisheries within waters that fall in the Trinidad and Tobago's EEZ as a result of the drawing of a single equidistant boundary. In the Tribunal's view, such a ruling would be ultra petita, because disputes over these fisheries rights and duties fall outside its jurisdiction by virtue of automatic exceptions to compulsory jurisdiction laid down in UNCLOS Article 297(3) .76 Given that both parties have requested that the Tribunal express a view on the question of Barbadian fishing witiiin Trinidad and Tobago's EEZ, the Tribunal - basing itself on the ICJ and ITLOS practice, the binding commitments made by the agents of bodi parties, and on their duties concerning fisheries straddling their EEZs - identified and applied the third legal option of calling upon the parties to not only negotiate in good faith but also to conclude an agreement providing Barbados (the world's "land of flying fish) with fishery access to Trinidad and Tobago's EEZ on mutually-acceptable conditions conforming with the rules codified in the UNCLOS.77

The rationale of the Tribunal's unanimous decision is significant in its principal reliance on a duty of both parties, codified in UNCLOS Article 63 and the 1995 UN Fish Stocks Agreement, to agree upon measures of conservation and management of the straddling stocks. Furthermore, the decision is significant because of the Tribunal's express emphasis on the dependence of Barbadian access to Trinidad and Tobago's EEZ not upon the nature (artisanal or traditional) of the Barbadian fishing, but upon the limitations and conditions of their future Fisheries Agreement and upon the fundamental "right and duty of Trinidad and Tobago" as a coastal state "to conserve and manage the living resources of waters within its jurisdiction," pursuant to Articles 56 and 61-62.78 The Tribunal's appreciable awareness of the coastal state's unquestioned and exclusive sovereign rights over fisheries in its EEZ, as reaffirmed and consolidated by the Barbados/Trinidad and Tobago Award, points to the binding commitments made by the parties' agents as primarily underlying the justification for the legitimacy of the Tribunal's directing the parties to conclude the new agreement and provide Barbados access to flyingfish stocks within Trinidad and Tobago's EEZ.

D. Equitable Maritime Boundary in the Eastern sector, Disparity in Lengths of Coastal Frontages and the Ultimate Test of Proportionality a Posteriori

The governing role of single all-purpose equidistance as the equitable boundary delimiting the overlapping entitlements to the continental shelf and the EEZ was also reinforced in the Easter sector by the Tribunal, in accordance with international jurisprudence, without prejudice to the separate existence of the legal regimes of those maritime spaces.79 At the first stage of drawing a provisional equidistant line, the Tribunal did not find persuasive Trinidad and Tobago's distinction of the Caribbean Sea and Adantic Ocean as two different sectors where the parties would allegedly be in the relationship of oppositeness and adjacency respectively, because the distinction between opposite and adjacent coasts, while relevant in limited geographical circumstances, had no weight where the delimitation was concerned with vast ocean areas.80 The Tribunal agreed with Barbados that identification of basepoints contributing to the calculation of the equidistance have a role in effecting the delimitation, but it dismissed Barbados' contention that these basepoints are solely determinative of the coastal lengths:

But relevant coastal frontages are not stricdy a function of the location of basepoints, because the influence of coastlines upon delimitation results not from the mathematical ratios or from their contribution of basepoints to the drawing of an equidistance line, but from their significance in attaining an equitable and reasonable outcome, which is a much broader consideration.81

Accordingly, broad coastal frontages (some of which even have a clearly easterly orientation) of the island of Trinidad and the island of Tobago, and the resulting disparity in coastal lengths between the parties were the major and objective relevant circumstances taken into account at the second stage of the Tribunal's decisionmaking process of considering whether this disparity was sufficiently great to justify a major or limited adjustment of the provisional equidistance.82

The Tribunal squarely ruled out any effect, influence, or relevance of the 1987 Dominica/France (Guadeloupe and Martinique) Delimitation Treaty, which Trinidad and Tobago relied upon as applying in the region north of Barbados and as entailing a recognition of a departure from the equidistance in order to avoid a cutoff effect (depriving Dominica and Martinique of an outlet to the Adantic), and which was found by the Tribunal as having no connection at all to the Barbados/Trinidad and Tobago dispute, direct or indirect.83 Nor did the Tribunal (which previously, upon request of bodi parties, rejected Guyana's attempt to obtain an access to the Barbados/Trinidad and Tobago pleadings) accept Barbados' contentions regarding the relevance of the 2003 Barbados/Guyana EEZ Treaty, which the Tribunal held to be res inter alios acta in respect of Trinidad and Tobago and, as such, not having any influence on the present delimitation, except in so far as it would reflect the limits of Barbados' maritime claim.84 The Tribunal rejected the parties' hydrocarbon activities as a justification for the adjustment of the provisional equidistance because they did not meet the test determined by the 2002 Cameroon v. Nigeria; Equatorial Guinea Intervening (Merits) Judgment that the activities should be based on express or tacit agreement between the parties.85

Most importantly, in view of the disparity of the lengtiis of coastal frontages abutting the disputed area of overlapping claims, the Tribunal rejected Trinidad and Tobago's maximalist claim aimed at facilitating its "salida al Atlántico" by the use of disputed turning Point A and the vector approach, which the Tribunal found as not adjusting but substituting equidistance by wholly artificial construction and, thus, untenable as a matter of law and method.86 As a result of this Tribunal's appreciable compliance with the fundamental equitable principle that maritime delimitation is "not a question of totally refashioning geography" ("il ne s'agit pas de refaire totalement la géographie"),87 the single equidistant boundary did not delimit the outer continental shelf beyond 200 miles and the Tribunal did not, therefore, need to deal with the controversial - and according to Barbados, practically "unworkable" - trumping of Barbados' EEZ by Trinidad and Tobago's outer continental shelf, which involved the use of the maximalist Point A and vector approach.88

Relying upon Trinidad and Tobago's contention however, that courts consistently minimize cut-off (or encroachment) effects that are necessarily a matter of both delimitation and entitlement,89 the Tribunal exercised its judicial discretion by adjusting the last segment of a single equidistance in accordance with the coastal frontages of both the islands of Trinidad and of Tobago, as well as the resulting disparity in coastal lengths between the parties, and the Tribunal ended that boundary at the point where it intersects the boundary established in the 1990 Trinidad and Tobago/Venezuela Treaty.90 Although the Tribunal considered the 1990 Treaty as "quite evidently res inter alios acta in respect of Barbados and every other country," it was bound to take the treaty into account in so far as it established the southern limit of Trinidad and Tobago's entitlement to maritime areas and as it pardy determined the maximum extent of overlapping areas between Barbados and Trinidad and Tobago. In other words, a critical element of the single boundary line drawn by the Tribunal in the Eastern sector was the fact that by reason of its treaty with Venezuela, Trinidad and Tobago had itself excluded the possibility that the Tribunal draw a line extending into waters already allotted under that Treaty to Venezuela.91 While stressing, in reliance on the judicial and arbitral decisions, that the test of proportionality is not a mathematical exercise that results in the attribution of maritime areas as a function of the length of the coasts of the parties or other such exact ratio calculations, President Stephen M. Schwebel and Arbitrators Sir Arthur Watts, Ian Brownlie, Francisco Orrego Vicuna, and Vaughan Lowe unanimously determined that the single equidistant boundary subject to the above adjustment satisfied a broader sense of proportionality as the ultimate a posteriori test of the equitableness of that boundary.92

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E. Postscript on "Unworkable" EEZ/Outer Continental Shelf Overlap

As regards Trinidad and Tobago's maximalist claim to its "salida al Atlántico," which the Tribunal found untenable within equitable maritime boundary delimitation infra legem effected in the Eastern sector,93 it appears that the ICJ, ITLOS, and otiier arbitral tribunals would not easily accept similar claims, even if they were advanced in different geographical contexts that would not preclude application of such 'claims, unless upon joint request of both parties to a particular dispute. Such a joint request does not seem likely in practice, given that even treaties concluded as a result of direct negotiations between states, which are not constrained by the limits set out by the applicable law, only very exceptionally provide for different boundaries for the continental shelf and the EEZ, as is exemplified by the 1978 Australia/Papua New Guinea Torres Strait (Joint Protected Zone) Treaty.94

Nevertheless, Trinidad and Tobago's unsuccessful attempt and the high-quality pleadings of both parties provided an interesting opportunity for considering pros and cons of the unusual solution of trumping Barbados' EEZ by Trinidad and Tobago's outer continental shelf extending beyond 200 miles. First, Trinidad and Tobago's contention that its rights to such a shelf could not be trumped by Barbados' EEZ, because their claims to the shelf were prior to Barbados' claims to the EEZ, was correcdy countered by Barbados' argument that the outer limits of the shelf beyond 200 miles were only laid down in the UNCLOS (Article 76) and do not become "permanendy" valid until their establishment through the CLCS procedure and completion of the respective maritime boundary delimitations.95 In addition, the historical precedence of the shelf doctrine relied upon by Trinidad and Tobago was not entirely accurate. President Truman's 1945 Proclamation on the Continental Shelf was - as is often forgotten, but the Tribunal was likely well aware - accompanied by his simultaneous Proclamation on Coastal Fisheries, which unintentionally triggered claims by Chile, Ecuador, and Peru (CEP); Mexico; Argentina; and other states to a 200-mile zone, which they considered juridical precedents of the EEZ.96

The central consideration putting the soundness of such overlapping EEZ/Outer Continental Shelf (EEZ/Outer CS) area into doubt amounts to what Barbados repeatedly characterized as an "unworkable situation of overlap between sea-bed and water column rights."97 Although application of this solution was precluded due to the Tribunal's primary reliance upon geographical circumstances and the Tribunal took no position on the substance of the problem posed by Trinidad and Tobago's claim, certain doubts as to practical implementation of the overlap could be inferred from the Tribunal's general emphasis that its single boundary line had to be "both equitable and as practically satisfactory as possible, while at the same time in keeping with the requirement of achieving a stable legal outcome."98 This holding was meant to express an overall approach of the Tribunal to equitable maritime boundary delimitation, but when read from the viewpoint of suggested EEZ/Outer CS overlap, it could be construed as implying that such an overlap neither would be "as practically satisfactory as possible," nor would it contribute to "a stable legal outcome."

All sovereign rights and jurisdiction that the coastal state possesses within its EEZ - except tiiose over pelagic fisheries (sedentary fisheries remaining within shelf rights), non-resource related economic activities, and vessels source pollution - are the same as its rights and jurisdiction within the continental shelf; therefore, the shelf regime within 200 miles is, as UNCLOS Article 56(3) evidences, absorbed by the legal regime of the EEZ.99 Within the overlapping EEZ/Outer CS, it would be on its face possible to confine Barbados' competences only to its sovereign rights over pelagic fisheries and non-resource related economic activities - such as production of energy from waters, currents, or winds - and to its jurisdiction over vessel-source pollution. But even such reduced EEZ rights could create conflicts. For example, Barbados could insist on setting up dirough the International Maritime Organization (IMO) of special areas under UNCLOS Article 211 (5) that could affect Trinidad and Tobago's shelf rights or Barbados could undertake, pursuant to Article 220(5)-(6), physical inspection and detention of vessels of Trinidad or other states engaged in maritime operations within what would also be Trinidad and Tobago's outer continental shelf.100

The most sensitive part would be effecting a clear-cut distinction of all the remaining rights and jurisdiction, which would then in principle be absorbed from the Barbados' EEZ back into Trinidad's Outer CS, but which could nevertheless raise all kinds of practical controversies concerning the specific competences over artificial islands and installations under Articles 60/80;101 marine scientific research under Articles 246 and 253;102 submarine cables and pipelines under Article 79, coupled with Article 56(3);103 and ocean dumping under Article 210.104 Both Barbados and Trinidad and Tobago could also unnecessarily chase each other's and third states' vessels within the right of hot pursuit applicable to alleged violations of the relevant EEZ and shelf legislation of each state, pursuant to Articles 56(1)(c) and 111.

Unless jointly and exceptionally agreed upon bona fide by both parties, as was not the case in the Barbados/Trinidad and Tobago proceedings, the establishment of any area of overlapping EEZ/Outer CS, involving the intertwined rights and jurisdiction of the two coastal states, which would have to be duly coordinated with the high seas jus communicationis exercised within this area by all other states by virtue of Articles 58 and 78, could, as Barbados correctly maintained, be viewed as "a formula for chaos and conflict."105 The Award that endorsed this solution - in its maximalist form claimed by Trinidad and Tobago or in any lesser form of a narrower corridor - would, therefore, amount to dispute stimulation instead of dispute resolution, which would be particularly unwarranted in the strategically important region of the Caribbean Sea.

Similarly, it would appear preferable to avoid the grey area of overlapping EEZ/Outer CS of less than about 100 square miles between Canada and the United States in the Gulf of Maine and, instead, to fix - by means of bilateral negotiations or any future third-party settlement - their single boundary beyond the 1984 Gulf of Maine Judgment's Point D in a way that would either extend Canada's EEZ to the exclusion of the potential U.S. outer continental shelf or would extend the U.S. shelf (or grant the United States an additional EEZ area) to the exclusion of Canada's potential EEZ. In each case, the boundary could be somewhat shifted in favor of the state whose maritime area was excluded and, in the case of resolution by bilateral negotiations (any judicial or arbitral forum could not engage in this kind of trade-offs), such exclusion could be balanced by awarding that state sovereignty over the disputed Machias Seal Island and North Rock. For example, Canada's sovereignty over these islets could be agreed jointly with extension of the U.S. outer continental shelf throughout the whole grey area. Or, less preferably - their single boundary line could be fixed in a way that would reinforce Canada's reduced EEZ but would establish the joint outer continental shelf of both states within the grey area.106

Whether by means of bilateral negotiations or any future third-party settlement, the determination of the Canada/U.S. boundary beyond Point D could be coupled with resolution of the Machias Seal dispute and the ensuing completion of their single boundary landward of Point A, which the ICJ Chamber left undefined.107

It also seems noteworthy that , while the Barbados/Trinidad and Tobago Award is significant in the clear upholding - in continuation of more hesitant approach adhered to by the 1992 Canada/France Award - of the Tribunal's jurisdiction over delimitation of the outer continental shelf, France abandoned in early 2006 the extension of its outer shelf off Saint Pierre et Miquelon (called by France "a discontinued juridical shelf). This was due to France's concern that the required "leapfrogging" over Canada's EEZ could, despite technically favorable sea-bed conditions, affect its friendly relations with Canada by posing difficult political and legal issues exemplified above.108

V. CONCLUDING REMARKS

The Barbados/Trinidad and Tobago (Jurisdiction and Merits) Award unanimously resolved the complex maritime delimitation dispute to the satisfaction of both parties and provided incentive for resolving their associated fisheries dispute,109 thereby promoting resource development and friendly relations between the two Caribbean island states110 and providing encouragement for peaceful settlement of other (e.g., OAS Belize/Guatemala,111 UN Guyana/Venezuela,112 Annex VII Guyana/Suriname113 or Venezuela (Aves Island)/Eastern Caribbean states114) territorial and maritime disputes in this strategically important region. The revival of the Aves Island dispute in parallel to the Barbados/Trinidad and Tobago proceedings gave rise to the interesting issue of whether Article 13 of the UNCLOS Annex VII, providing that: "The provisions of this Annex shall apply mutatis mutandis to any dispute involving entities other than States Parties," could apply to Venezuela as a non-party to the Convention.115

At the same time, the Award illuminated the ICJ's 60th Anniversary116 by enhancing the potential of compulsory jurisdiction under UNCLOS Part XV and by reinforcing and enriching the doctrine of equitable maritime boundary delimitation in a manner consistent with notably successful jurisprudence of the World Court and Arbitral Tribunals. The Barbados/Trinidad and Tobago jurisdictional -holdings, which were largely unprecedented, provided far-reaching incentives for acceleration of former ICJ President Stephen M. Schwebel's optimistic concept of "judicial habit stimulating healthy imitation" amongst international courts117 and for promotion of the important work of the CLCS, which - as the Award authoritatively clarified - is not affected, but is facilitated, by judicial and arbitral settlements concerning delimitation of the outer continental shelf beyond 200 miles.118 Significantly, this promotion occurred in the context of the peaceful resolution of disputes in the Caribbean region, which is credited with commencing the evolution of the continental shelf doctrine even prior to the 1945 Truman Proclamations by the precursory 1942 Gulf of Paria Treaty.119

The legal reasoning and conclusions in the Barbados/Trinidad and Tobago Award, drawn against the background of its voluminous pleadings, will undoubtedly attract many other full-scale academic analyses and will guide judges, counsel, legal advisers, and other practitioners in applying and implementing UNCLOS as a part of the global system of peace and security in the decades to come.

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PROF. DR. BARBARA KWIATKOWSKA*

AUTHOR_AFFILIATION

* Professor Barbara Kwiatkowska is Professor of International Law of the Sea at the Faculty of Law, Utrecht University and the Deputy Director of the Netherlands Institute for the Law of the Sea (NILOS). The author requested that The George Washington International Law Review preserve the original construction of the footnotes in her article. While this is not the normal practice of this publication, the editors abide by this request, and therefore do not apply the Bluebook system of legal citation.