Guyana – Suriname Arbitration under the 1982 Law of the Sea Convention

On 17 September 2007, an award was issued in the dispute between Guyana and Suriname under the 1982 Law of the Sea (LOS) Convention. It concerns the delimitation of the maritime boundary between Suriname and Guyana as well as the lawfulness of various acts committed by these states in the disputed maritime area. Dispute settlement proceedings were initiated by Guyana in February 2004. A five member Tribunal was established under Annex VII of the 1982 Law of the Sea (LOS) Convention.

Suriname initially objected to the jurisdiction of the Tribunal, arguing that the application hinged upon a disputed land boundary terminus and the Tribunal was not competent to decide such territorial issues. However, the Tribunal rejected these objections and proceeded to delimit the maritime boundary between the two states in accordance with Articles 15, 74 and 83 of the LOS Convention.

The territorial sea boundary delimitation was governed by Article 15 of the LOS Convention. In applying this provision, the Tribunal held that it was necessary to adjust the equidistance line in order to take into account special circumstances. It held that ‘special circumstances that may affect a delimitation are to be assessed on a case-by-case basis with reference to international jurisprudence and state practice’ (para. 204). As the parties disagreed on what constituted special circumstances, the Tribunal investigated the drafting history of the provision as well as its predecessor in the 1958 Territorial Sea Convention. Referring to the commentary of the International Law Commission on the 1958 Convention and comments made at the First United Nations Conference on the Law of the Sea, the Tribunal held that ‘special circumstances of navigation may justify deviation from the median line’ (para. 306). Given that the parties were in agreement that all of the Corentyne River was subject to the sovereignty of Suriname, the Tribunal was of the opinion that the maritime boundary should provide appropriate access to the western channel of the River from Suriname’s territorial sea. The Tribunal delimited a line to this effect based on the previous practice of the parties. However, the practice of the parties only supported the use of this line to a three mile limit. Accordingly, the Tribunal decided that, beyond three miles, the line should change direction, making a gradual transition towards a point of equidistance at the 12 mile limit. Maps of the delimitation are included in the Tribunal’s award.

In delimiting the continental shelf and EEZ, the Tribunal noted that it was important to reach a decision that promoted certainty, equity, and stability. The Tribunal followed previous judicial decisions in this field by adopting a two stage approach to delimitation. Firstly, it would posit a provisional equidistance line and then it would determine whether it was appropriate to adjust this line to reflect special circumstances. In this case, the Tribunal did not consider that there were any relevant circumstances that would justify a departure from the equidistance line.

As well as the question of delimitation, the dispute also concerned an incident that had taken place in the disputed area in June 2000. The incident involved CGX Resources Ltd (CGX) which had been granted a concession by Guyana to explore for oil deposits in the disputed area. CGX conducted seismic testing in 1999. There was an exchange of diplomatic correspondance between Suriname and Guyana over these oil exploration activities. In June 2000, CGX intended to commence exploratory drilling in the area. However, the CGX vessels involved in this operation were challenged by the Surinamese navy. It was reported that the vessels were ordered to leave the area within 12 hours, otherwise ‘the consequences will be yours’ (para. 434). The vessels complied with the orders. Guyana claimed that the actions of the Surinamese navy were in violation of the Convention, the UN Charter and customary international law.

In relation to the CGX incident, Suriname raised further objections to the competence of the Tribunal. Suriname argued that the Tribunal had no jurisdiction to contemplate the complaints that Surname was ‘internationally responsible for violating its obligations under the Convention, the Charter of the United Nations, and general international law to settle disputes by peaceful means because of its use of armed force’ (para. 402). The Tribunal rejected the objection. It referred to the decision in M/V Saiga (No. 2) where the International Tribunal for the Law of the Sea (ITLOS) had interpreted Article 293 of the Convention as giving it competence to apply not only the Convention but also the norms of customary international law. The Tribunal in this case therefore held that it was competent to hear these claims. It also rejected other objections related to its jurisdiction based on the co-called ‘clean hands doctrine’. On the merits of the claims, the Tribunal held that the actions of the Surinamese navy were more akin to a threat of military action than law enforcement. Thus, it concluded that ‘the expulsion from the disputed area of the CGX oil rig and drill ship CE Thornton by Suriname on 3 June 2000 constituted a threat of the use of force in breach of the Convention, the UN Charter and general international law’ (dispositif).

This exercise of jurisdiction by the Tribunal is controversial. The Tribunal goes further than the ITLOS in M/V Saiga (No. 2) by deciding claims not only under customary international law but also under another treaty, in casu the UN Charter. The Tribunal invokes Article 293 but it fails to distinguish between jurisdiction and applicable law (See further Harrison, Judicial Law Making and the Developing Order of the Oceans (2007) 22 IJCML 283, at p. 301). Whilst Article 293 of the Convention empowers a court or tribunal to apply ‘other rules of international law’ where they are necessary to decide a dispute, it does not increase the jurisdiction of a court or tribunal to decide claims stemming from sources of law other than the LOS Convention. Yet, this is precisely what the Tribunal did by deciding that Suriname had violated the UN Charter and customary international law. Nor does the LOS Convention itself prohibit the use of force. Guyana’s claim could be interpreted as an allegation that Suriname had failed to comply with the obligation to settle disputes peacefully in Article 279 of the Convention, but the dispositif of the award does not support this interpretation.

This flexible attitude to the jurisdiction of the Tribunal seems to ignore the principle of international law that ‘no state can, without its consent, be compelled to submit its disputes with other states either to mediation or to arbitration, or to any other kind of dispute settlement’ (Advisory Opinion on the Status of Eastern Carelia, PCIJ Reports, Ser. B, No. 5, at p. 27). States Parties to the LOS Convention may have consented to the compulsory submission of many disputes arising under the LOS Convention, but not to disputes arising under other treaties or under general international law. Whilst there may be a factual relationship between disputes arising under various sources of international law, they are surely legally distinct. The decision of the Tribunal in relation to the UN Charter and customary international law must therefore be viewed with scepticism.

That is not to say that the allegations relating to the CGX incident were irrelevant for the purposes of these proceedings. Indeed, the Tribunal also found that Suriname had jeopardised the reaching of a final delimitation under Article 74(3) and 83(3) of the LOS Convention by its ‘threat of force’ against the CGX vessels. Suriname was criticised by the Tribunal for failing to actively attempt to bring Guyana to the negotiating table and for failing to accept offers made by Guyana to co-operate. Moreover, the Tribunal noted that the use of force was not a substitute for pursuing peaceful means of dispute settlement and ‘if bilateral negotiations failed to resolve the issue, a remedy is set out in the options for peaceful settlement envisaged by Part XV and Annex VII of the Convention’ (para. 482). In other words, Suriname should have initiated a claim under the Convention in order to settle the dispute.

Guyana was also found guilty of failing to make every effort to enter into provisional arrangements and not to jeopardise or hamper the reaching of an agreement by allowing the drilling activities to take place in the disputed area. The Tribunal noted that it was necessary to strike a balance between the ability of states to pursue economic development in the disputed area whilst not affecting the rights of any other state in a permanent manner. In its award, the Tribunal stressed that states should cooperate in pursuing such measures. At the same time, not all unilateral acts will violate Articles 74(3) and 83(3) of the Convention. The Tribunal made a distinction between acts that cause a physical change to the marine environment and those that do not. For instance, the Tribunal did not consider that unilateral seismic testing would be inconsistent with these provisions. Unilateral acts which do cause a physical change may, on the other hand, constitute a violation.

It is clear that Articles 74(3) and 83(3) of the Law of the Sea Convention are important obligations for any states involved in a dispute over maritime areas. These provisions clarify what states can do pending the settlement of a dispute with the aim of preventing the aggravation of a dispute prior to its ultimate resolution. The Tribunal’s interpretation of these provisions in this award is therefore an important contribution to the law of the sea and the peaceful settlement of maritime boundary disputes.