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Dear Nuno, Sorry for the delay in responding. I have been travelling. You are right to identify the perils of not studying an award thoroughly. Your email is correct on point 1. The award in the Barbados v Trinidad and Tobago case did not address the question of precendence between entitlements of overlapping zones. The reason that it did not do so was because the tribunal concluded that Trinidad did not have continental shelf beyond its 200 miles and, therefore, the tribunal did not have to address the question. If Trinidad did have continental shelf beyond its 200 miles, the tribunal would have had to address the question. This is all laid out in the text of the award itself. The relevant parts of the award are as follows: 1) It was agreed by the parties in their pleadings and the tribunal in the award that the CLCS has no competency to deal with the division of maritime territory. It only has competency to determine the location of the outer limit. See, for example, paragraph 87 of the award, where the tribunal quotes Trinidad's own pleadings: "Indeed, Trinidad and Tobago maintains, the CLCS "has no competence in the matter of delimitation between adjacent coastal States; that competence is vested in a tribunal duly constituted under Part XV of the Convention." " 2) Trinidad claimed that the tribunal was such a tribunal and therefore had jurisdiction to delimit the parties' single maritime boundary out to the edge of the continental shelf. See award paragraphs 63 (c) and 217(ii). 3) Barbados claimed that the tribunal did not have jurisdiction to delimit the parties' single maritime boundary out to the edge of the continental shelf on the basis that the dispute about continental shelf beyond 200 miles had not properly been submitted to the tribunal (a procedural, not a substantive, objection). See award paragraphs 80 and 213. 4) The tribunal ruled in favour of Trinidad and against Barbados on this point. It held that the dispute about the delimitation of the continental shelf beyond 200 miles had properly been submitted and that the tribunal had jurisdiction to resolve the dispute. Indeed, the tribunal ruled that it had no option but to resolve the dispute aboout the continental shelf beyond 200 miles. The reason, it said, was because, in law, there was only one single continental shelf, not an inner and a separate outer continental shelf. What it had to delimit was the entire continental shelf entitlement as between Barbados and Trinidad. See award paragraph 213: "The Tribunal considers that the dispute to be dealt with by the Tribunal includes the outer continental shelf since [the tribunal then dismisses two procedural objections of Barbados that are not relevant here] and (iii) in any event there is in law only a single "continental shelf" rather than an inner continental shelf and a separate extended or outer continental shelf." See also paragraphs 384 (i) and (ii). No ambiguity about that. The tribunal did not say that it was only going to delimit the "inner" continental shelf. It did not say that it was going to ignore the dispute about the area beyond 200 miles. On the contrary, it expressly recognised that it had to deal with the dispute and that the dispute required a delimitation of the entire continental shelf, both within and without 200 miles. And that is what the tribunal did, giving, in the process, no continental shelf to Trinidad beyond its 200 miles. In the tribunal's view, there was no way that its award could possibly avoid resolving the dispute over the delimitation of the continental shelf beyond 200 miles. The tribunal expressly accepted that it was obliged to delimit the continental shelf claims as between Barbados and Trinidad in their entirety. It would be beyond belief that the tribunal so clearly and repeatedly recognised in the award that it had an obligation to delimit the full continental shelf as between the parties but then failed to do so and only delimited the "inner continental shelf", having just said that there was no such thing. Not surprisingly, it did not fail to delimit the full continental shelf. The fact that the tribunal delimited the continental shelf in such a way that gave Trinidad no share beyond its 200 miles does not mean that it failed to delimit the full continental shelf. 5) In paragraph 368, the tribunal delimited the single maritime boundary between Barbados and Trinidad, including a delimitation of the entire continental shelf, as described in paragraphs 381 and 382 and Maps V and VI of the award. This delimitation resulted in a single maritime boundary that follows the equidistant line, until its eastern end, and that terminates at Trinidad's 200 mile limit where it intersects Trinidad's southern boundary line (its boundary with Venezuela as per the Trinidad - Venezuela treaty). The tribunal expressly confirmed its holding that: "the single maritime boundary which the Tribunal has determined is such that, as between Barbados and Trinidad and Tobago, there is no single maritime boundary beyond 200 nm." (Paragraph 368) "[T]here is no single maritime boundary beyond 200nm." Thus, the award has not ignored the area beyond 200 miles. The Tribunal did not listen to but then, contrary to its own statement of its own task, ignore Trinidad's claim. The award is not silent on the issue; it makes a positive determination: there is no single maritime boundary beyond 200 miles. There is no single maritime boundary beyond 200 miles because only one of the parties has maritime territory beyond 200 miles. If both parties had maritime territory beyond 200 miles, then there would have to be a single maritime boundary there. It is not possible for there to be no single maritime boundary between Barbados and Trinidad and Tobago beyond 200 miles if Trinidad has continental shelf beyond its 200 miles, given that the tribunal said that there is only one single continental shelf and its job is to delimit it both within and without 200 miles. Therefore, there can be no doubt that the award gives Trinidad no continental shelf beyond 200 miles. The tribunal reinforced this in the very next sentence: "The problems posed by the relationship in that maritime area of CS and EEZ rights are accordingly problems with which the Tribunal has no need to deal." Again, the only way that the problems posed by that relationship were not problems with which the Tribunal had need to deal, given that the award had recognised that the tribunal had the jurisdiction and therefore the obligation to deal with the question of to whom belongs the continental shelf beyond 200 miles, was if Trinidad has no continental shelf beyond 200 miles and thus the problems were moot for the resolution of the dispute. The tribunal reinforced this yet again in the following sentence when it concluded: "The Tribunal therefore takes no position on the substance of the problem posed by the argument advanced by Trinidad and Tobago." Again, the only way that the Tribunal could take no position on the substance of the problem posed by Trinidad's claim - given that it had recognised that it had the jurisdiction and thus obligation to deal with the claim - was because it had denied Trinidad's claim to continental shelf beyond 200 miles outright and therefore the substance of the problem was moot and had no relevance to the delimitation. 6) The tribunal's finding that it had jurisdiction to deal with Trinidad's claim to continental shelf beyond 200 miles, combined with the fact that it said that it did not need to deal with the substance of the problem associated with relative entitlements to maritime space that were raised by Trinidad's claim, necessarily reflected the tribunal's conclusion that Trinidad does not have continental shelf beyond 200 miles. That is confirmed in the text cited above, the description of the delimitation of Barbados' and Trinidad's single maritime boundary as stopping at Trinidad's 200 mile limit where it interstects with Trinidad's southern boundary, and the award's Maps V and VI. 7) Lest the vampire of Trinidad's claim to continental shelf beyond 200 miles rise from the coffin once more, the tribunal hammered its stake into the heart of that claim in the final paragraph of the award (paragraph 385 (2)): "Claims of the Parties inconsistent with this Boundary are not accepted." It is not possible for a claim by Trinidad to continental shelf beyond its 200 mile limit to be consistent with the single maritime boundary delimited by the award. A simple look at Maps V and VI suffice (point 11 is at Trinidad's 200 mile limit). Kind regards, Robert ________________________________ From: International boundaries discussion list [mailto:[log in to unmask]] On Behalf Of Nuno Antunes Sent: 18 May 2009 13:15 To: [log in to unmask] Subject: Re: deadline day Dear Martin, Alex and Irini (Hi there!) (While I was writing the text below, Irini made comments similar to mine, so apologies for any repetition...) What I meant by "no court has ever addressed this issue directly" was that there has been no statement of law, "de lege lata", affirming that there is no precedence between the two types of entitlement. While I'm more than willing to stand corrected on this assertion, I think it is an exact statement. Although I have not studied the Barbados/Trinidad and Tobago Award thoroughly, if I understand it correctly (and please correct me if I am wrong) the following points can be taken out of it: (1) the Tribunal made no pronouncement on the issue of precedence between entitlements; (2) the Tribunal took notice of Trinidad and Tobago's claim of an entitlement beyond 200 miles, but decided not to deal with the substance of its claim; (3) while declaring that it had jurisdiction to decide upon the delimitation of a maritime boundary in relation to that part of the continental shelf extending beyond 200 nm, in practice, the Tribunal delimited a maritime boundary that, "de facto", "locked" Trinidad and Tobago within 200 miles. (Question: I am correct in assuming that Point 11 lies at the 200-mile limit, or not?) This considered, I must say that I have some difficulty to see how we can infer from this decision that there is no precedence of entitlements. In fact, at first glance, it would appear to me that the opposite argument may more easily be made. It seems highly unlikely that the Tribunal was unaware that beyond the point at which the boundary ended it would have to face not only the 200-mile entitlement of Barbados, but also that of Guyana. (Again, please correct me if I'm wrong.) Should this be the case, it does not seem a coincidence to me that the Tribunal stated the following, in para.374: "This terminal point [i.e. Point 11] marks the end of the single maritime boundary between Barbados and Trinidad and Tobago and of the overlapping maritime areas between the Parties." First, the Tribunal states that this is the end of the "overlapping maritime areas between the Parties". If the CS beyond 200 miles claims had the same precedence as the 200-mile claims, then this statement would be inaccurate. Or am I missing something here? Secondly, it does seem to me that the notion of "single maritime boundary" (as viewed by the Tribunal) was not inclusive of CS areas beyond 200 miles (which again raises difficulties in putting the two entitlements at the same level of precedence). A totally different question, of course, is whether the CS beyond 200 miles in the area in question is a natural prolongation of Barbados or of Trinidad and Tobago. And it appears that Trinidad and Tobago has a case in stating that there are CS areas beyond 200 miles which are the natural prolongation of its territory. Finally, the findings of the Barbados/Trinidad and Tobago Award also have to be examined in light of and by comparison with the Canada/France (St.Pierre & Miquelon) Award. In any event, this is not to win an argument. All that I was trying to mention was that the argument that there is no precedence between entitlements is not an open and shut case. Best regards, Nuno 2009/5/18 Irini Papanicolopulu <[log in to unmask]> Dear Martin, Alex and Nuno, thank you for your very interesting comments. If I remember correctly, the Barbados/Trinidad award did not take any position on the issue, which was argued by the parties. If I may add my personal views, I quite agree with Nuno: it will be a very hard case for a State to argue that its claim to an extended CS can encroach upon another State's EEZ, in particular in cases of opposite States (having to prove, among others, why it wishes to depart from the provisional equidistance). In any event, even if it succeds to claim the seabed, the superjacent waters will still belong to the second State's EEZ. Maybe, the only possibility could be for the potentially zone-locked State to ensure an agreed lateral boundary which gives it acess to seabed beyond 200 miles, and then make its claim... Best regards Irini ----- Original Message ----- From: Oude Elferink, A. (Alex) <mailto:[log in to unmask]> To: [log in to unmask] Sent: Monday, May 18, 2009 12:53 PM Subject: Re: deadline day Dear Nuno, Thanks for your interesting views. Just two minor points. The award in Barbados/Trinidad is pertinent to this matter. Secondly, it seems to me that your suggestion that what is also relevant are protest of "affected States" is possibly a bit biased. The protest of "zone-locked" States against their neighbors trying to block them are of course equally relevant. Best regards, Alex _______________________________________________ Alex G. Oude Elferink Netherlands Institute for the Law of the Sea (NILOS) School of Law Utrecht University Achter Sint Pieter 200 3512 HT Utrecht The Netherlands European Union tel: .. 31 (0)30 2537033 fax: .. 31 (0)30 2537073 email: [log in to unmask] <mailto:[log in to unmask]> _______________________________________________ ________________________________ Van: International boundaries discussion list [mailto: [log in to unmask]] Namens Nuno Antunes Verzonden: maandag 18 mei 2009 11:19 Aan: [log in to unmask] Onderwerp: Re: eadline day Dear Martin and Alex, Allow me to throw in my 2 cents... With respect to what Alex has just noted, I should say that I'm not totally convinced about there not being a precedence between EEZ/CS within 200M and CS beyond 200M. To the best of my knowledge, no court has ever addressed this issue directly. I believe there is (little or) no doubt about a precedence between 12-mile TS entitlements and EEZ/CS within 200M entitlements (the former naturally prevailing over the latter). Along analogous lines of thought, I actually think that (all things considered) a reasonable argument can be made to support the idea that there is a precedence between EEZ/CS within 200M and CS beyond 200M (cf. pp.137-145 of my book). But I do grant that this is yet to be tested before a court; and that State practice will be pivotal to arriving at a better groudned conclusion. By State practice I mean not only bilateral CS delimitation agreements, but also in terms of unilateral acts - e.g. whether or not the States affected by claims made by zone-locked States (at least some on the basis "leapfrogging entitlements") will protest such claims. 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