In the February issue of Current Affairs we opened the debate on whether Guyana should abandon its b
On Tuesday, February 24, 2004 the Government of Guyana implemented a decision to refer the prevailing maritime dispute between the states of Guyana and Suriname to the International Tribunal under the aegis of the United Nations Convention on the Law Of the Sea (UNCLOS). By virtue of the provisions of Article 287 of the Convention, a five person Arbitration panel is to be convened which will adjudicate, and rule, on the specific issues brought before it. At the time of writing this article, we have not been privy to the detailed Statement of Claim presented on Guyana's behalf and moreover, to the answer and/or defence and/or counter-claim if any, of Suriname. We will therefore refrain from commenting on the merits or demerits of the case of either party. For the moment rather we will engage in a general review and discussion of the various dispute resolution options available to Guyana notwithstanding the decision already taken to proceed by way of arbitration.
While the adoption of alternative dispute resolution is gaining currency in Guyana for the settlement of domestic disputes particularly in the commercial law jurisdiction, it is perhaps timely to enquire whether, and to what extent, these same measures can be employed to settle Guyana's long-standing boundary controversies and disputes with its neighbours. Undoubtedly, the principles of dispute resolution remain the same for international disputes as they do for domestic ones, though the level of skill and degree of sophistication can be said to be more refined in the international arena than that in the domestic, and the consequences of failure more dire. It would seem best that in relations between persons, groups and of course nations, every effort is made to move away from the zero-sum/winner take all form of dispute resolution giving way to a more win/win and universally satisfactory situation. This view is reinforced by the fact that a long-term and peaceful solution is favoured where the parties will remain bound to each other through considerations of geographic location, cultural and economic ties and migration.
After almost four decades of independence, Guyana remains no closer to comprehensively resolving its territorial disputes and controversies, which if looked upon in socio-economic terms, have proven devastating. Guyana finds itself bound up in knots from which it is proving difficult to extricate and whilst there has not been a full-fledged resort to the use of force to settle them, certainly, the threat of force remains significant. 1 This is not to say that there have not been valiant efforts at resolution but at best, these have been ineffectual. From time to time there appears an innocuous report in one of the nation's dailies that the UN Good Officer appointed to settle the Guyana/Venezuela border controversy is visiting; or that he met the representatives of Guyana and/or Venezuela to advance the process of settling the dispute. On the other hand the nation has a flimsy knowledge of the affairs between Guyana and Suriname knowing only that the two sides have meetings in each other's capitals from time to time. Progress appeared slow and tedious, and for the most part, retarded. Ever so often, some incident or event causes diplomatic puffs of smoke to be bellowed about a map incorrectly drawn, or a diplomatic note improperly sent. Whether it is so or not the nation has a sense that the back door diplomacy and bilateral negotiations are not delivering tangible benefits. This may not in fact be so but the perception is the reality.
What then are the options open to the Government and people of Guyana? There are five recognized, and to a lesser extent, accepted ways of settling international disputes: war, litigation, arbitration, mediation and bilateral negotiation. A less recognized and perhaps unofficial method of dispute settlement is that of simply doing nothing by appearing to ignore the issue as a distinct strategy of defusing its significance and prominence while preserving the status quo. All five of these mechanisms have been applied either in totality, or in combination, in this hemisphere which is widely accepted as being the one with the most hotly contested territorial issues in the world. However, since the formation of the League of Nations and the emergence of the successor organization the United Nations the resort to force for the settlement of international disputes has been eschewed though not abandoned. 2 Perhaps because of the propensity for larger states to apply the threat or use of force on smaller and more vulnerable states as an extension of coercive diplomacy, every international organization, which has emerged since World War II, has built in provisions for the peaceful settlement of disputes.
This article will examine the Guyana/ Suriname border dispute in the context of the available options other than conflict, with a view to establishing which if any, either wholly or in part, has usefulness in assisting Guyana, and indeed Suriname, in settling their differences. Discounting conflict and war as a preferred option to resolve our territorial dispute with Suriname, the four remaining alternatives are of course litigation, arbitration, mediation, and bilateral negotiation. 3 Whilst not wishing to recommend a most favoured option, the paper will discuss the suitability or applicability of the various options; the article will then explore the mechanism through which this can best be achieved.
It has long been accepted that the most important benefit to be derived in international dispute resolution is peace. It is more important to obtain a domestically and internationally acceptable decision than to simply have a decision. Where parties remain as neighbours sharing common borders, resources and influences, it is paramount that the result obtained finds acceptance both at home and with the government and people of the other disputant state. For this reason, the choice of dispute resolution mechanism and the manner of approach are to be carefully examined prior to making a decision. Equally important in the decision making process, is the choice of forum to be adopted after deciding on the nature of the mechanism to be adopted. Will the United Nations' structure prove more beneficial than that of the Organisation of American States, or the European Union, as against an ad hoc Arbitration Panel, and which forum's rulings will the defeated party most likely consider itself bound by, are all imperative questions that must be answered before proceeding. In short, a cost/benefit analysis has to be undertaken taking into account political, economic, social and even regional considerations.
International Litigation
Guyana's dispute with Suriname has two aspects, which are inextricably bound. The first relates to the historical New River Triangle area whilst the second pertains to maritime rights that flow from the drawing of the lines of demarcation. It will be difficult for any adjudicating panel to consider one aspect and not the other. There are at present several fora to which Guyana can turn for adjudication of the issue of the right of ownership and development of the New River Triangle. The best known of these is the International Court of Justice (ICJ). 4 The ICJ, being the World's Court, cannot simply be invoked as a matter of course as one does in a domestic legal system unless or until, one of three situations exists: 1) the party states have jointly agreed to approach the ICJ; or 2) there is an existing treaty with a jurisdictional clause proclaiming the ICJ as the forum for the resolution of a dispute arising under that treaty; or 3) both states have made declarations under a statue or treaty that the ICJ is the forum to which they will turn in the event of any dispute between them.
The decision to approach the ICJ on this matter would, besides the presence of one or all of the conditions precedent mentioned above, depend on a number of other circumstances and variables including the constitution of the Court, the timeliness of its decisions, the manner of deliberations and findings of similar cases dealt with; the relative strength of the case and of course, the financial cost and other socio-political considerations. International litigation is by no means a walk in the park and can involve years of preparation, years of arguments, and years of waiting for a decision and of course in the context of Guyana, billions of Guyana dollars. In a presentation to the UN General Assembly in 2000, the then President of the Court Justice Gilbert Guillaume observed that with diminishing resources and increasing case load, the ICJ is likely to be unable to deliver justice in less time than presently obtains. He forewarned that the current delays were likely to become more pronounced when he said, "from 2002, those delays may well last several years in some cases."
Guyana has, as a nation, resisted the resort to litigation for the resolution of its disputes and controversies. This decision may not necessarily flow from the point of view that the cases were weak ones likely to be lost but rather on the premise that diplomatically at least in the 1970s and 1980s, Guyana's best strategy was one of putting its erudite and highly skilled officers to work to influence world opinion that the resort to force to settle any claim was not acceptable and moreover, settled boundaries must be respected. To have done otherwise would have been to act in violation of the hallowed principle of uti possedetis, which ensured that newly emerging, and independent states inherited the colonial borders in place at the time of independence. 5
5 It is believed that litigation before the ICJ still remains a less potent option despite the fact that the geo-political climate has changed since the 1990s, and that Guyana's standing internationally has been redefined. There was at one time a belief harboured that Guyana's resort to the ICJ would not only have to permit an acceptance that the claims and objections to its settled borders were valid but moreover, there was a strong possibility that foreign influences may very well ensure that all historical gains would be erased in the process. Nevertheless, the cost and frustrations of delay still remain strong considerations for addressing the issue. In the author's view several factors also militate against the litigation route. These include the fact that the matter of the New River Triangle (including maritime boundaries) is now urgent with the recent display of force by the Surinamese government and of course the declining economic health of the country desperately in need of an urgent boost, which would come from the exploration and exploitation of petroleum and gas resources.
There are other known difficulties in using litigation, which make it unattractive. It is said that litigation favours a more "distributive" or "zero-sum" approach in that there is either a winner or a loser. The more the process moves along a continuum, it will tend to favour one party as against the other. Litigation by its very nature will naturally seek to resolve strict questions of ownership of land and resources rather than striving to achieve a more collaborative or optimal solution.
Notwithstanding the demerits of the use of litigation, it remains by far the most advantageous option in terms of bringing finality to a matter. The decisions of the Court are final and binding, and bring the weight and credibility of the entire UN system including that of its member states to buttress the authority of the court or tribunal thereby ensuring a greater degree of acceptability and compliance.
Arbitration
By arbitration we mean the settlement of disputes by a person or body of persons in an adversarial setting. That is, with arguments and a binding decision. The rules and principles of law are expected to be applied by the arbitrator(s) and one attractive feature is the relative speed with which awards are made. Arbitration closely resembles litigation with its greatest advantage being the ability to choose or influence the appointment of the arbitrator(s) as opposed to dealing with a pre-determined panel of judges with built-in notions, and biases. Arbitration can also be useful in providing a face-saver for governments in a highly charged atmosphere where nationalist sentiment dominates and militates against compromise. In this instance, the parties allow someone else to make the decision for them and avoid a harsh domestic response. In practice as well, there has been an element of mediation creeping into arbitral awards that seek to ensure that despite the zero-sum scenario, both sides gain something.
There are however several draw backs to arbitration, which act against its acceptance in many instances. These include:
1. It can only work if both parties seek a settlement and agree to the process and its outcomes.
2. Arbitral awards can be difficult, or almost impossible, to enforce because they have less international authority than the ICJ process. The Guyana/Venezuela situation is often cited internationally as a case in point.
Arbitration, notwithstanding its weaknesses, still remains a powerful mechanism to resolve international disputes. The weight of international opinion has to be brought to bear on the countries involved to ensure acceptance of awards especially where there is asymmetry between them in size, military capability, economic strength, diplomatic prowess and population.
Note on the United Nations Law
of the Sea Arbitral Tribunal
The Government of Guyana's decision to refer Suriname's claims and objections to Guyana's exploration and exploitation of maritime resources in the area contiguous to Suriname's waters to the United Nations is a bold step that must be supported. Though this is a form of arbitration the decision is binding on the the parties who have both subscribed to the UN Convention on the Law of the Sea. Whilst the outcome in any litigation is uncertain, it is perhaps wise in circumstances such as those faced by Guyana and Suriname, to have a third-party resolve the issue. Apart from the economic and other benefits to be reaped by a favourable decision, the intervention of a third party can in fact assist both parties to dismount from the emotive and patriotic heights they were driven to ascend. In this way, constituents can be satisfied that a decision, even if unfavourable, was not "by consent" or the result of collusion and connivance of and between respective Government representatives.
The processes under the United Nations Convention of the Law of the Sea allow for a single state to trigger the Tribunal's jurisdiction and this must be seen as a major advantage. The greatest advantage to be derived however will be that Suriname if unsuccessful, will be legally obliged to accept the ruling of the Tribunal.
Mediation
Mediation, we know, is the process through which disputes are resolved by a neutral third party who makes no binding decisions but uses skills and training to get both or all parties to a dispute to arrive at workable, optimal or amicable or satisfactory resolution of the dispute in issue. Like the situation which obtains in the resolution of domestic disputes, nations sometimes solve their differences through mediation. The most important criterion for making mediation work however is a willingness to want to solve the problem through non-violent means. Again, nations tend towards mediation for a variety of reasons which are influenced by facts such as whether their cases are similar in strength, the desire to preserve good relations between them, and winning the acceptance of their constituencies.
Perhaps of all the forms of dispute settlement which minimises the zero-sum effect mediation is the most attractive because both parties generally arrive at mutually satisfactory outcomes in less time, with less contention, and at less cost than litigation and arbitration. Generally speaking, a mediated settlement of a dispute is considered more wholesome than one imposed through litigation or arbitration. In the Belize-Guatemala case, mediation was employed with Guyana's Sir Shridath Ramphal and Washington-based attorney Paul Riechler working together to forge agreement.7 Because of the obvious lack of legal principles and precedent in mediation, it is sometimes frowned upon to provide a binding and long lasting solution to a problem.
Bilateral Negotiation
In the context of the Guyana/Suriname dispute, the alternative method most familiar to Guyanese is bilateral negotiations where simply put, the parties meet together in teams, either on an ad hoc, or on a scheduled basis, to solve the dispute or issue exacerbating a dispute. There is no direct involvement whatsoever by any third person except by way of providing expert advice or opinion to one side or the other, or in facilitating the talks by playing host or lending expertise and resources. In some instances, both parties may agree to have an expert render an opinion for inclusion in the discussions. This opinion is however non-binding and is treated only as a guide or aid in arriving at a decision.
Since independence Guyana has chosen to engage in bilateral negotiations with Suriname and the only noticeable gain has been the absence of conflict. What may have been appropriate decades ago is now irrelevant as worsening economic conditions now place pressure on the Government to find a solution to this bugbear.
The preservation of the status quo engendered by the bilateral initiatives was maintained until June, 2000 with the occurrence of the infamous gunboat incident. Even after the June 3, 2000 incident Guyana reiterated its desire for negotiations to be ongoing in a Note Verbale issued to the Suriname Ambassador to Guyana. These discussions have been ongoing ever since and in various forms and it is respectfully submitted that in real terms, they have served no useful purpose whatsoever.
Bilateral negotiations and dialogue with or without the aid of facilitators is not a casual exercise and involves set precepts, which require skill and assiduity to maintain. The most important feature of successful negotiation is the presence of a good and respectful relationship between the negotiators. Other considerations to be applied include the personalities, training and experience and backgrounds of the negotiators, the physical setting for the talks, known precedents and benchmarks, and the underlying fears, interests and motivations of both sides to name a few. In time, and with the benefit of information about the Guyana/Suriname talks, we will be able to discern why they failed thus necessitating a resort to arbitration.
Use of Facilitators in Aid of Negotiation
The utilization of third parties as facilitators and mediators has, like every area of dispute resolution, to be carefully examined before being implemented. Much depends on who they are, and what resources and skills they bring to the dispute. Most especially, a facilitator must be acceptable to both parties, be and appear impartial, and be a neutral third party. Whether Prime Minister P. J. Patterson of Jamaica satisfied all of the above criteria in 2000 is doubtful.
Guyana in 2000 manoeuvred the intervention of Caricom to assist in the management of the crisis with Jamaica's Prime Minister P J Patterson being appointed facilitator of that dialogue that began in St. Vincent and concluded in Montego Bay, Jamaica. Unfortunately, the role of the facilitator came to an end once the threat of hostilities abated and thereafter, no further part was played by the Prime Minister. In a paper entitled: "Guyana and Suriname, Their Oil, and the Failed Negotiations of July, 2000," I analysed the failure of the Caricom process to be as a result of several factors: 8
8 A failure to tackle the problem immediately rather than one month thereafter in Jamaica. The moment of "ripeness" for the settlement had passed within days of Suriname exhibiting its gunboats.
- The fact that in May 2000 the incumbent Suriname President had been defeated in elections, and was due to demit office in August of the same year thus making him the person with the least legitimate authority to make a binding decision on behalf of Suriname.
- Suriname's Best Alternative to a Negotiated Agreement (BATNA) was stronger than Guyana's in that Guyana had more to lose if there was no settlement. It suited the Suriname Government to have matters remain as they were before exploration started.
-The possible unease with Prime Minister P.J. Patterson as facilitator/mediator. Suriname had objected to the description of "mediator" clearly signaling its regard for the process.
- CGX's own actions of declaring its intention of ceasing exploration if no agreement was reached may have helped to influence the outcome of the talks. This decision allowed Suriname to play for time and allow the declared outcome to materialize to its benefit.
- National sentiment in both nations in July/August 2000 was strong thus favouring a preservation of the status quo rather than taking political risks.
Conclusion
It is said that Latin America has the strongest tradition to resolve disputes through the formal legal process rather than risk conflict.9 Guyana and Suriname should preserve this tradition by committing themselves to a resolution of the issue peacefully. Of all the options reviewed, the two best suited to the resolution of our dispute are arbitration and mediation. Guyana has chosen the former option and so the matter of getting Suriname's approval may appear academic but is still vitally important having regard to the preservation of long-term relations.
Guyana has taken the brave step and seeks to have a long-term resolution of the issue with Suriname. Knowing that there is great potential for oil and gas discovery in the area known as the Guiana Basin is reason enough to initiate some movement away from talks that were stagnating to more affirmative action. The options have been described above and vary along a spectrum, which begins with war and ends with bilateral negotiations. We have had as a nation enough experience to know that arbitration by itself has its dangers but is still a useful dispute resolution mechanism. We know that waging war to secure our territory is out of the question but we must guard against the possibility that one of our neighbours may think otherwise. Litigation before the International Court of Justice is costly and becoming too protracted, and in fact provides no guarantee of victory. The two remaining options are arbitration and mediation or better yet, an admixture of the two. The people of Suriname feel that in a negotiated process they have the upper hand both factually and psychologically. It is not in their interest to have a speedy resolution but rather to sit on the issue and allow Guyana's position to weaken over time. Delay when conjoined with worsening political and economic woes internally could affect Guyana's ability to effectively bargain in a negotiated process. Suriname on the other hand is advertising internationally for companies to apply for oil exploration concessions in areas contiguous to the New River Triangle. Immediate action is necessary.
Mediation is, in the author's considered opinion, the favoured option but this has now been displaced as a result of the decision to seek arbitration. As each case turns on its own facts and circumstances, it may well be accepted when all the facts are known, that the mediation option was not as viable as previously believed. Importantly, there is still the need to condition and satisfy domestic constituencies and to ensure the continued good relations between the states and so the case for mediation continues to be argued. Guyana, and by extension Caricom should start to prepare for the outcome not only for the Guyana-Suriname arbitration but also for the outcome of the Barbados-Trinidad & Tobago process. In the same manner that mediation is encouraged in domestic law situations to be utilized before, during, and at the end of cases, so too is it being argued that in addition to the ensuing arbitration, Guyana advocates the use of mediators in combination with the litigative process. Guyana's experience with Venezuela based on its rejection of the 1899 Arbitral Award cannot be ignored.
Guyana has submitted the dispute to arbitration and this in itself has its imperfections as it does advantages but by no means is it being suggested that arbitration is a lesser option to that of mediation. The most obvious disadvantage {from a long-term point of view} to the process is the fact that Suriname is not a willing party. This must have consequences for our relations as neighbours and as signatories to the Caricom Charter. It is not too late to perform the wise and preferable duty of mobilizing all diplomatic and political assets to persuade Suriname to accept the inevitability of the arbitration option with a built-in feature of mediation. This can only strengthen the legitimacy and acceptability of the award that is to come. One cannot ignore as well the vast numbers of Guyanese working and residing in Suriname and the effect if any that the latest action is likely to have on their well being. For now, we will have to manage carefully and successfully the fall-out of this decision.
It is interesting that within Caricom, there are five nations with territorial disputes yet the Heads of State have not yet seen the wisdom of creating a mechanism for both inter and intra state dispute settlement.10 While some problems may appear complex and unmanageable and best suited for a more developed forum there is still a need for at the very least a secondary dispute resolution system managed by Caricom. What good will the Single Market and Economy, free movement of skills and labour, and legal and political union be if there is no way of dealing with the inevitable squabbles which rear their heads? One writer puts it bluntly when he analyses the emerging problem thus:
"The change in international maritime law (the 1982 United Nations Convention on the Law of the Seas) and the development of new technology to exploit marine and seabed resources raised the salience of many territorial disputes."11
The activism of the CARICOM secretariat has by necessity increased over the last five years to address internal political issues and the call is here being made for the role of the Regional Negotiating Machinery (RNM) to be adapted to include a component to address crisis management and dispute resolution within and between states. The reality is that internal crises seen in Guyana, St. Vincent, Trinidad & Tobago, and Haiti are likely to increase and to have contagion effects, and too is the prospect of inter-state disputes likely to rise as seen by the recent Barbados-Trinidad & Tobago dispute and so CARICOM cannot shirk its responsibility of acting as assuager of contentious issues. So the oft- repeated adage- to be forewarned is to be prepared is deserving of restatement.
Sources:
1. Dominquez, Jorge I, with Mares, Ronald, Orozco, Manuel et al, Boundary Disputes in Latin America, Washington, D.C. Peaceworks, United States Institute of Peace, 2003.
3. Goldberg, Stephen B., Sander, Frank E. A., Rogers, Nancy H., and Cole, Sarah R. Dispute Resolution: Negotiation, Mediation, and Other Processes. 4th ed. New York, Aspen Publishers, 2003.
2. Merrills, J. G., International Dispute Settlement, 2nd ed. Great Britain, Cambridge University Press, 1996.
4. Trotman, Raphael G. C., Guyana and Suriname, Their Oil, and the Failed Negotiations of June, Mass. Tufts University, 2001.
6. Walde, Thomas, Methods of Settling Boundary Disputes: Escaping from the Fetters of Zero-Sum Outcomes, Oil-Gas Energy Law Intelligence Newsletter, vol. 2.
*Raphael Trotman is an Attorney-at-Law and Member of Parliament, and the holder of a Bachelor's Degree in Law from the University of the West Indies, Barbados, a Master's Degree in International Relations from the Fletcher School of Law & Diplomacy, Tufts University, Mass. USA, a Post-Graduate Certificate in Mediation from Harvard Law School, Harvard University, Mass. USA, and is a Fellow of the Center for Hemispheric Defense Studies, National Defense University, Washington, D.C., USA.
1Even now with Guyana invoking the right to arbitration under the Law of the Sea Convention, the Suriname government is expected to react to the sentiments of its citizens by making bold statements of disapproval via its military. The power dimension in dispute resolution cannot be ignored.
2 The recent decision of the United States of America to invade Iraq with a "coalation of the willing" has led to an intense debate internationally about the future and utility of the United Nations, and of the effectiveness of its Security Council. One point of view is that member states may now be less inclined to honour their international obligations.
3 The fact that war is not an option does not absolve the Guyana authorities of the duty to remain at a state of preparedness having regard to the fact that Suriname utilized its gunboats in 2000 thereby raising the spectre of conflict.
4 Unfortunately CARICOM has no dispute settlement mechanism but with the advent of the Caribbean Court of Justice it is hoped that the original jurisdiction of the Court can be enlarged to receive complaints or requests for interventions and opinions arising out of territorial disputes.
5 Venezuela raised its claim to Guyana's territory in 1965 obviously in contemplation of the effect of the principle, and with an intention to negative it prior to independence in 1966.
6 Arbitration under Annex vii of the Law of the Sea Convention is however compulsory where parties are signatories to the Convention and have not submitted reservations as to its jurisdiction before the process is invoked.
7 It should be noted that despite the excellent working relations of the mediators and government officials, the people of Guatemala rejected the terms of the settlement in a referendum. This mediation was successful to a point but still considered a failure overall because it could not surmount the last and ultimate obstacle of gaining the acceptance of the people.
8Tufts University, December, 2001.
9 See, Territorial Disputes in Latin America by Jorge I. Dominquez.
10 Some commentators may wish to point to the Republic of Dominica-Venezuela issue and extend the number of CARICOM states with territorial problems to six but at this stage it is preferred not to treat this as an active dispute.