January 7, 2006

Guyana-Suriname maritime boundary dispute - Decision possible by mid 2007 if case taken

Starbroek News

Guyana expects that the UN International Tribunal on the Law of the Sea (ITLOS) will honour its request for equitable delimitation of the boundary with Suriname, co-agent of Guyana's legal team Paul Reichler says.  However, ITLOS will first have to pronounce on whether it has jurisdiction to decide on the merits of the Guyana/Suriname maritime boundary dispute.

Updating the media yesterday, Reichler of the US-based Foley Hoag law firm, said the legal team hoped the dispute would be fully resolved in a manner consistent with international law and the decision would thereafter be respected. 

The border dispute between Guyana and Suriname came to a head when a Surinamese military gunboat forcibly evicted a CGX oil rig from Guyana's waters in June 2000.  In February 2004, Guyana initiated arbitral proceedings, in accordance with the UN Convention on the Law of the Sea, in a bid to resolve the issue and allow for the exploitation of its natural resources, after trying in vain to reach agreement with Suriname on joint exploration and exploitation arrangements. After proceedings to peacefully settle the dispute failed, Guyana invoked the provisions of Article 287 of the Convention to obtain a legally binding settlement of its maritime border dispute with the neighbouring country.

Reichler is currently in Guyana with some members of the legal team including co-agent and former foreign affairs minister, Sir Shridath Ramphal, Professor Philippe Sands QC, and Andrew Loewenstein of Foley Hoag.   The team said arguments at this time were sub judice and in keeping with agreements between the parties involved, would be made public some time later.   Reichler said team members were working with the government and the technical and professional staff of the Ministry of Foreign Affairs on the nature and content of Guyana's argument in the reply to Suriname 's counter-memorial, which was presented on November 1 last year. The counter-memorial was in response to Guyana's memorial or legal text, which was presented to the tribunal on March 1 last year.   Guyana's reply will be the second round of the legal text, which must be filed with the tribunal by March 15. After this, Suriname will submit its second written pleading or 'rejoinder', which is due by August 1 this year.  Oral hearings, which are expected to be the next stage, will take place in October/November this year in Washington DC.  Reichler estimates that the hearings, where the legal arguments would be presented to the sitting tribunal, will take about two or three weeks. Following the hearings the arbitration award will be presented. 

There has been no decision as to whether the hearings will be public. However, in other cases, such as Australia and New Zealand versus Japan; Ireland and England; and Malaysia and Singapore, the hearings were all public.  Guyana has no objection to the hearings being public but the tribunal and Suriname will also need to decide.  The two-part award will first determine finally whether the tribunal does have jurisdiction to decide on the merits of the dispute. Suriname has objected to the tribunal arguing that it does not have jurisdiction to decide on the merits of the dispute. But he said Guyana has contended throughout that the tribunal does have jurisdiction to delineate the maritime boundary. And assuming that it does, Reichler said, it will then issue part two.  The award, he said, will consist of a boundary line from the point of the coast where the sea meets the land for a distance of 200 miles. "The boundary may or may not be a straight line. It may or may not have various segments to it but both sides have asked that there be a single maritime boundary that extends through the territorial sea and the continental shelf, a distance of 200 miles," he said. 

The legal team expects the award to be issued and made public by the tribunal within eight months after the close of the hearings in November, which means that it should be some time in the first half of 2007. "Maybe between April and June" he said.   The award will be binding on both states and will constitute the internationally recognized maritime boundary between Guyana and Suriname which would have the consequences of committing Guyana and Suriname to exploit the resources on each side that may lie within or under the sea.  Asked why Suriname objected to the tribunal deciding on the case, Sir Shridath said it would be unwise to speak on behalf of Suriname. 

However, Sands said there was nothing unusual about a state objecting to jurisdiction. In nine cases out of ten, he said, states have objected. He said he would not read anything sinister into Suriname 's objections.  Asked about research and accessing archival materials, Sir Shridath said the materials the team has had to plough through were monumental. In the initial stages they had to make use of materials and public records covering some 200 years that were available in Guyana and in Britain.  A lot of the issues concerning boundaries were transacted between Britain and the Netherlands and the records lie in their repositories.  In terms of the records available in Guyana, he said while they exist, many have not been properly archived, but they have nevertheless survived the ravages of time and tropical conditions. The research process included taking oral statements from persons who would have been involved in the issue at one stage or another.

He noted that British records were available to Guyana and Suriname but Guyana did not have as complete access to the Dutch archives since Suriname had objected to giving Guyana access.  That issue was addressed in the process by the tribunal, which issued orders for Guyana and the tribunal to access relevant materials.   Guyana, he said was in the process of availing itself of those materials. As part of the arrangement, he said, an independent authority will examine the materials and if relevant they will be made available to Guyana and the tribunal.

Asked whether archival materials on the same issue could differ, Sands explained that while the issues may be the same interpretation could differ.  In terms of denial of access to archival materials, he said the tribunal could draw an inference on the issue depending on its nature.  Sands said it was not unusual for two states to resolve their boundary disputes by international tribunal describing it as the way states resolve their international disputes in the modern world. He said there was a long history of states going to international arbitration or international courts or tribunals such as the International Court of Justice in The Hague for a resolution. He referred to some cases in Europe, the Middle East and Africa.

The track record in the decisions taken in disputes has been good, he said. He cited the award in the case between Libya and Chad in 1980 when the International Court of Justice gave a large tract of land to Chad. Libya has complied absolutely with the judgment.  He noted that the case between Guyana and Suriname was only the second case concerning a boundary delimitation of the sea to be invoked under the UN Convention on the Law of the Sea. The very first case involving delimitations in boundaries on fishing rights was between Barbados and Trinidad, which was taken to ITLOS by Barbados two weeks before Guyana submitted its case. The oral hearings in that case were held in London in October and the award is expected during the first half of next year.