Assigning maritime boundaries to Tobago? Attorney General Faris Al-Rawi says it cannot happen—unless we are prepared to have the country of Trinidad and Tobago suffer massive economic grief.
In last weekend’s consultations in Tobago on the Constitution (Amendment) (Tobago Self-Government) Bill, 2020 and its companion bill the Tobago Island Administration Bill, 2021, Al-Rawi declared that he had received advice from international experts—named as Gerald Thompson, a former T&T ambassador to the United Nations and Anthony Lucky, a current T&T judge on the United Nations Tribunal for the Law of the Sea—that if Tobago, as part of the country of T&T, were to be given maritime boundaries, the country would forfeit some two-thirds of its 200-mile Exclusive Economic Zone (EEZ) and therefore lose a massive proportion of the potential wealth in its waters.
He didn’t go into the details of the expert claim, preferring to content himself with the observation that it was not a simple matter.
When asked, inevitably, if, as an alternative to the boundaries, an arrangement could be worked out whereby Tobago could be allowed to use its obvious maritime resources without the peril of penalties under international sea law—for example, to construct a marine park as per the Marine Park Bill already passed in the THA legislature and forwarded to the Parliament—he replied that it was possible but that the bill would soon be receiving the Government’s focus.
When pressed about Tobago’s access to other resources in its waters, he suggested, somewhat gingerly, that that was a matter that could—would?—be discussed as part of the way forward.
And what about the six-mile boundary enshrined in the current THA Act, #40 of 1996? Did it result in the loss of a part of the country’s EEZ? No, he said, because the relevant law was never operationalised. But his experts had advised him that the law was unworkable and that is the reason why it was left out in the new Amendment Bill.
The law states that ‘Tobago’ includes the island of Tobago and ‘such part of the territorial sea of T&T comprising those areas of the sea having as their inner limits the baselines of Tobago as determined in accordance with section 5 of the Territorial Sea Act, and as their outer limits, a line measured seaward from those baselines, every point of which is distant six nautical miles from the nearest point of those baselines unless the contrary is expressly stated therein… .’
This definition is the law, but on the basis of the expert advice he sought and received, Al-Rawi says that that law is useless and has been so from the beginning, only that we are only now finding out.
Its proposed replacement is to be found in Section 3 (2) of the Tobago Island Government Bill, 2021: ‘A reference to “Tobago” means the Island of Tobago, Little Tobago, St Giles Island, Marble Island, Goat Island, Sisters Island and the internal and inland waters of Tobago.’
The definition treats with the island’s internal constitution only and completely ignores its external space; and it is now clear that it was an attempt to incorporate the contrary advice of Messrs Thompson and Lucky.
Clearly, the non-definition of Tobago’s maritime borders is a big matter which cannot be facilely left to the discretions of two experts and the AG’s concurrence. The whole country needs to engage in a discussion on it, especially in the face of a dubious and suspicious claim that annihilates determination of Tobago’s maritime boundaries for the purpose of democracy.
Until now, I was under the impression in a fool’s paradise that, where nation-states are concerned, a baseline is drawn between the outermost points of the outermost islands of the nation-state and that all waters inside this baseline are ‘archipelagic waters’. The nation-state has jurisdiction over these waters just as it does over its internal waters. While I allow that there are caveats for existing rights (such as fishing rights of immediately adjacent states and for innocent passage as in territorial seas, it can hardly be disputed that the nation-state has sovereignty over all of its archipelagic waters.
Furthermore, I was under the impression that in the EEZ the nation-state has sole rights to exploit all natural resources, but that provision is made for foreign nations to have freedom of navigation in, and overflight of, the EEZ, subject of course to the regulation of the nation-state. The point to note is that once the baselines of the nation-state are defined, the EEZ is only affected by the location of adjacent nation-states, not by internal boundaries of elements and areas of the state.
Or so I thought, and still do.
So what’s going on here? A shameless, boldfaced attempt to deny Tobago ownership of its maritime oil and gas resources? Where else in the world has a country lost a part of its EEZ because it has divided up its waters between its constituent parts?
