Dividing the Sea: the 1982 Law of the Sea Convention, Maritime Case Law, and the Current Dispute Be
| Jurisdiction | United States,Federal |
| Publication year | 2006 |
| Citation | Vol. 9 No. 1 |
Gonzaga University
Cite as: Andre Verani,
Dividing the Sea: the 1982 Law of the Sea Convention, Maritime Case Law, and the Current Dispute Between Guyana and Suriname
I. Introduction
The Third United Nations Conference on the Law of the Sea (hereinafter "Conference") opened on December 3, 1973 and concluded September 24, 1982 after nine years of highly sensitive and complex negotiations. One hundred and sixty-four States registered for the Conference and an average of one hundred and forty delegations took part in each of the Conference's sessions, of which there were twelve. Over one hundred observers also took part. [1] The Convention entered into force on November 16, 1994 and as of July 2004 had received 145 ratifications or accessions. [2] The United Nations Convention on the Law of the Sea (hereinafter "Convention") was unique in its vast scope encompassing all sea and ocean-related issues and in the near universal participation of the world's States in its development.
Another distinguishing factor of the Convention was its incorporation of compulsory and binding dispute settlement procedures as an essential part of the agreement. [3] The conference considered, yet ultimately decided against, the formulation of an optional protocol for States wishing to accept binding dispute settlement. [4] Rather, the Convention obliges all States Party which have been unable to resolve their sea-related disputes peacefully through negotiation, conciliation or other means of their choice to invoke or accept binding dispute settlement under one of the permitted forums: the International Court of Justice, the International Tribunal for the Law of the Sea, an ad hoc arbitration panel, or a special arbitration panel for certain defined categories of disputes. [5]
Early in 2004, the nation of Guyana invoked the binding arbitration procedure available in the Convention's Annex VII, thereby forcing the nation of Suriname, also a party to the Convention, to accept binding arbitration of their ongoing maritime boundary dispute. [6] The neighboring South American Caribbean nations of Guyana and Suriname ratified the Convention on November 16, 1993 and July 9, 1998 respectively. [7] The long-standing maritime boundary dispute between Guyana and Suriname, and prior to their formation as independent nations, between the colonial governments that administered their territories, Great Britain and Holland, is the subject of this paper. Since the principle of
After analyzing both nations' historical arguments pertaining to maritime delimitation, I will interpret and apply the Convention to the Guyana/Suriname maritime dispute in light of the relevant international case law concerning maritime delimitation. Since Article 32 of the Vienna Convention on the Law of Treaties allows for the use of the Convention's negotiating history to confirm or clarify the meaning of the Convention's text, [9] I will explore the negotiating history of Articles 15, 74, and 83 which pertain to delimitation of territorial seas, exclusive economic zones and continental shelves for States with opposite or adjacent coasts. Article 293 of the Convention exemplifies the principle that a treaty takes precedence over general international law, unless the treaty attempts to opt out of jus cogens norms or erga omnes obligations, by stating that: "A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention." [10] Thus, if a conflict were to arise between general principles of international law as delineated in the maritime case law and the Convention, the Convention should govern.
In brief, this paper will: (1) explore the negotiating history of the Convention, (2) discuss the history of the maritime boundary dispute between Guyana and Suriname, which was submitted to arbitration in accord with the Convention, (3) analyze issues of interpretation or application of the Convention which arise in the Guyana/Suriname dispute, including an assessment of the negotiating history of the Convention pertaining to maritime delimitation, (4) analogize to past maritime delimitation decisions of the International Court of Justice and ad hoc arbitration panels, and (5) offer my conclusions regarding the interpretation or application of the Convention, in light of the maritime case law, to the current Guyana/Suriname maritime delimitation dispute.
II. Negotiating History: the 1982 UN Convention on the Law of the Sea
Article 32 of the 1969 Vienna Convention on the Law of Treaties states that a treaty's "preparatory work" and the "circumstances" of a treaty's conclusion may be used as supplementary means of treaty interpretation, yet very little official travaux préparatoires exists for the Convention. [11] The official legislative history which does exist can be accessed in part at the United Nations Division for Ocean Affairs and Law of the Sea website [12] and in part through the Official Records of the Third United Nations Conference on the Law of the Sea. [13] To learn how the Convention was negotiated, one must rely in part on the first hand accounts of those who participated in the Conference negotiations.
A. A "Gentlemen's Agreement:" Deciding Substantive Matters by Consensus
Before the Conference officially began, the negotiators arrived at what was termed a "gentlemen's agreement." [14] The General Assembly approved of this agreement [15] under which substantive decisions were to be made by consensus, with voting as a last resort. "At the close of the second session of UNCLOS III in June 1974, the delegates adopted the Gentlemen's Agreement and incorporated it as an appendix to the rules of procedure for the conference. These rules of procedure included specific rules by which consensus was to be put into effect." [16]
The General Assembly and Conference negotiators believed that consensus decisions would result in wider acceptance of the treaty than could be achieved by reliance on voting. [17] Widespread acceptance of the Convention, to be achieved through consensus decision-making, was integral to the achievement of a novel and uniform legal regime governing the seas and oceans which was deemed essential by nations seeking to institutionalize and universalize new legal principles, such as the right of passage through international straits, the 200 mile exclusive economic zone, and the common heritage seabed regime. [18] Although one would expect that the "gentlemen's agreement" consensus decision-making approach to conference negotiation would have led to a large number of bilateral and multilateral trade-offs between States across the full range of Law of the Sea issues, relatively few such deals seem to have been made. Some commentators have theorized that the Convention's subject matter was too extensive for all but a few of the largest delegations to have an accurate picture of the status of the negotiations as a whole. [19] Most of the trading done by States appears to have occurred within the context of the discrete committees and informal working groups that negotiated the Convention by dividing it into smaller, more easily negotiable subject matter areas. [20]
B. A "Package Deal": Simultaneous Negotiation of all Law of the Sea Issues
In 1973, the General Assembly convened the Conference in order to "adopt a convention dealing with all matters relating to the law of the sea." [21] Thereafter, "this simultaneous negotiation of issues became known as the 'package deal.'" [22] This approach differs markedly from the one adopted in the 1958 Geneva Conventions on the Law of the Sea, which separated law of the sea issues into four main subject matter areas: (1) territorial sea and the contiguous zone, (2) the high seas, (3) fishing and conservation of living resources of the high seas, and (4) the continental shelf. [23] Prior to the 1982 Convention, States could consent to one, all, or none of the 1958 Geneva Conventions on the...
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