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The Grenada/Venezuela economic zone connection

Attorney-at-law Anslem Clouden

Attorney-at-law, Anslem Clouden, has released the contents of an article that he did in which he addressed issues that will arise in negotiations between Grenada and Venezuela in order to delineate their boundaries and territorial waters.

The 2008-13 National Democratic Congress (NDC) government of Tillman Thomas had engaged the then ruling Patrick Manning-led People’s National Movement (PNM) government in Port-of-Spain to set the boundary markers in light of oil and gas deposits in waters separating the tow member states of the Caribbean Community (CARICOM).

A Russian outfit known as Global Petroleum Group (GPG) had struck a deal with a New National Party (NNP) government of Dr. Keith Mitchell to explore for oil and gas in Grenada’s territorial waters.

GPG is known to have signed an agreement with the National Gas Company (NGC) of Trinidad & Tobago to co-operate in the energy sector.

Clouden believes that Grenada can only exploit any resources in proximity with Venezuela if talks are held at a governmental level between Caracas and St George’s.

The following article from the attorney-at-law who specializes in law and the sea legal matters highlights some of the things that Grenada needs to pay attention to in approaching the oil-rich South American Republic.

The Exclusive Economic Zone: A Comparison of the National Legislation of Grenada and Venezuela

Part II of the Marine Boundaries Act of Grenada, 1978 deals with the exclusive economic zone.

Section 3(1) defines the EEZ as follows:

There is established, contiguous to the territorial waters, a marine zone to be known as the Exclusive Economic Zone having as its inner limit the boundary line of the seaward limit of the territorial waters and as its outer limit a boundary line which, suspect to sub-section (3) at every point is a distance of 200 miles from the nearest point of the baselines of the territorial waters or such other distance from the nearest point of those baselines as the minister may by order prescribe.

An order read under sub-section (1) is subject to affirmative resolutions of the Senate and the House of Representatives.

Notwithstanding sub-section (1), where the median line as defined by the subsection (4) between Grenada and any adjacent or opposite state is less than 200 miles from the baselines of the territorial waters, the outer boundary limit of the zone shall be that fixed by agreement between Grenada and that other state, but where there is no such agreement, the outer boundary limit shall be the Median line.

The median line is a line every point of which is equidistant from the nearest points of the baselines of the territorial waters, on the other hand, and the corresponding baselines of the territorial waters of any adjacent or opposite state as recognized by the minister on the other hand.

An agreement entered into pursuant to sub-section (3) shall be laid before Parliament and shall be judicially noticed.

In the above Article, a number of important aspects of the Exclusive Economic Zone are enumerated. Firstly, the Article establishes the zone and goes on to speak of its breadth as that of 200 miles from the baselines from which the breadth of the territorial sea is measured.

Sub-sections (3) and (4) of the Act speak of delimitation of the exclusive economic zone is less than 200 miles between Grenada and opposite or adjacent states.

Sub-section (3) also provides for the fixing of the boundary line in such circumstances by agreement. Article 55 of the ICNT, and the counterpart to part II section 3 of Grenada’s statute, used a somewhat different terminology.

Article 55 states that the EEZ is an area beyond and adjacent to the territorial sea. Grenada’s legislation speaks of the zone as being contiguous to the territorial sea.

The Congress of the Republic of Venezuela endorsed into law “AN ACT OF ESTABLISHING AN EXCLUSIVE ECONOMIC ZONE ALONG THE COASTS OF THE MAINLAND AND ISLANDS OF THE REPUBLIC OF VENEZUELA” on July 26, 1978.

Article 1 of this Act established and described the EEZ as an area beyond and adjacent to the territorial sea all along the coast of the mainland and the islands of the Republic of Venezuela.

Article 2 of this Act established the breadth of the zone, the outer limit of which shall be a line every point of which is a distance of 200 nautical miles from the baseline used to measure the breadth of the territorial sea.

The Article provides for delimitation of the zone by agreement between states. The legislation of Grenada, Venezuela, and Article 57 of the ICNT as to the breadth of the exclusive economic zone is the same: they all conform to the 200 nautical mile limit.

However, the suggested method of delimitation of the EEZ between opposite or adjacent states as stipulated by the ICNT on the one hand and the respective national legislation of Grenada and Venezuela on the other hand differs in some material ways.

Grenada, like Venezuela, contemplates delimitation by agreement; however, Grenada goes a step further in that the legislation provides that where there is no such agreement the outer boundary limit shall be the median line.

Grenada contemplates no other method of delimitation in the absence of an agreement save the median line principle. The ICNT, Article 74, while enunciating a similar approach as that of Grenada and Venezuela, says that the delimitation of the exclusive economic zone between states with opposite or adjacent coasts shall be effected by agreement in conformity with international law.

Nevertheless, it goes on to stipulate that such agreement shall be in accordance with equitable principles employing the median or equidistance line where appropriate, and taking account of all circumstances prevailing in the area concerned.

Article 74 moves more to the implementation of equitable principles on delimiting the exclusive economic zone than the relevant sections of the legislation either of Grenada or Venezuela. Although the statutes of the respective countries both contemplate delimitation of the outer boundary limit by agreement, there is no requirement that it be in accordance with equitable principles.

Section 5 of Grenada’s Marine Boundaries Act spells out the rights in and Jurisdiction over the zone. It stipulates that, “There is vested in the Government of Grenada –

All rights in, and jurisdiction over the zone in respect of i.the exploration, exploitation, conservation, protection or management of the natural living and non-living resources of the seabed, subsoil and superjacent waters;

the construction, maintenance or use of structures or devices relating to exploration or exploitation of the resources of the zone, the regulation and safety of shipping or any other economic purpose;

the authorisation, regulation or control of scientific research;

the preservation and protection of the marine environment and the prevention and control of marine pollution;

all other activities relating to the economic exploration and exploitation of the zone; and

all other rights in, and jurisdiction over, the zone recognized by international law.”

Article 3 of the Venezuelan Act provides for the right of the Republic in the exclusive economic zone. It stipulates that the republic has

Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the sea-bed and subsoil and the superjacent waters, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and wind;

Jurisdiction as provided for in the relevant provisions of this Act and the regulations with regard to:

the establishment and use of artificial islands, installations and structures;

marine scientific research;

the preservation of the marine environment.

The rights, set out in this Article with respect to the sea-bed and subsoil shall be exercised in accordance with provisions relating to the Continental Shelf.

Section 5 of Grenada’s legislation does not clearly define the nature of Grenada’s Sovereignty in the zone. It says, “… all rights in and jurisdiction over …” This is in stark contrast to Article 56 of the ICNT and the Venezuelan legislation on the zone. The ICNT says that “… in the exclusive economic zone the coastal state has sovereign rights ….”

In the Venezuelan Legislation the republic has sovereign rights for “… the purpose of exploring. The Venezuelan Act then goes on to enumerate the specific areas over which it has jurisdiction. Many of the areas enumerated in the Grenada legislation fall into the same category as that of Venezuela.

However, with respect to Grenada, the interpreter is unsure as to whether the reference to the enumerated subheadings, i.e. (i), (ii), (iii), (iv), (v), relates to rights in, or to jurisdiction of.

The draftsman may have intended to equate rights with sovereignty, but this is a dangerous assumption to make since sovereignty does not connote or, for that matter, possess the same attributes as rights.

Furthermore, the section does not spell out clearly what areas the state has rights over as opposed to jurisdiction. The terms “rights” and “jurisdiction” seem to be used synonymously and interchangeably. This, in fact, creates confusion in determining the scope and nature of the state’s sovereignty and jurisdiction in the zone.

Unlike the ICNT and the Venezuela legislation, which speak of the “coastal state” or the “Republic” respectively as having sovereignty in the zone, the Grenada Act refers to the Government of Grenada.

Another interesting observation to be made is with respect to Article 56 (1) (c) of the ICNT: “. . . other rights and duties provided for in this Convention . . .” The ICNT clearly distinguishes sovereign rights from rights. They are not, and cannot be, one and the same.

Article 4 of the Venezuelan legislation deals with the rights of other states in the exclusive zone. It states that, “In the exclusive economic zone of the Republic, other states, whether, coastal or landlocked, shall enjoy, subject to the relevant provisions of the present Act, the freedoms of navigation and over-flight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea associated with navigation and communication.”

The provisions in the Venezuelan legislation do not deviate from Article 58 of the ICNT, which speaks of the rights of the other states in the same context. Section 7 of the Grenada Act, while guaranteeing the enjoyment of customary freedom in the zone by coastal states, is silent as to landlocked states.

Section 6 (1) of the Grenada Act is a redundant provision except for the absence of a statement concerning the nature of state’s rights in the zone. The provision states that, subject to this Act, no person shall within the zone, except under or in accordance with an agreement with the Government of Grenada or a permit granted by the Minister –

explore or exploit any resource thereof;

carry out any research or excavation;

conduct any research;

drill in or construct, maintain or operate any structure or device; or

carry out any economic activity.

Any person who contravenes this section is guilty of an offence and is liable … “, etc.

The writer contends that if in Section 5 the Act has stated, as it should, that the State has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, living and non-living, of the sea-bed and subsoil and superjacent waters, then section 6 (1) would not have been necessary.

Article 5 of the Venezuelan Act provides for the conservation of the living resources in the zone; establishes the allowable catch of the living resources in the zone; introduces conservation and management measures so that the living resources are not endangered by over-exploitation.

To that end, the republic shall co-operate with relevant sub-regional, regional and global organisations. This provision takes into consideration the provisions of Article 61 of the ICNT and although not identical to it, it highlights the most salient features. There is no comparable provision in the legislation of Grenada.

Article 6 of the Venezuela Act speaks of the utilisation of the living resources. It states as follows: “The Republic shall promote the optimum use of the loving resources of the exclusive economic zone without prejudice to Article 5 of said Act.”

It stipulates that the National Executive shall determine the capacity of the republic to harvest the living resource of the exclusive economic zone and, if conditions permit, gives states access to the surplus of the allowable catch.

This provision is similar to its counterparts, Article 63 of the ICNT entitled “Utilization of the Living Resources”. Grenada does not have comparable legislation with respect to utilisation of the living resources: however, section 11 does make provision for the granting of fishing permits to foreign fishing vessels. This, however, is the extent to which the Act goes with respect to establishing any type of regulatory control in the zone.

Unlike Article 62 of the ICNT, there is no mention in the Grenada statute as to determine which species may be caught; to regulate the seasons and areas of fishing: or to set standards for the size and amount of gear. The Act is barren as to any conservation measures; however, Part IV contemplates the appointment of marine conservation officers, who are basically enforcement personnel rather than trained conservation officers.

TO BE CONTINUED

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