1 1Professor of International Law of the Sea, Faculty of Law, Utrecht University, The Netherlands; Deputy Director of the Netherlands Institute for the Law of the Sea, Faculty of Law, Utrecht University, The Netherlands
This article provides a comprehensive analysis of the unanimous 2006 Award of the Five-Member Tribunal established under Annex VII of the 1982 Law of the Sea Convention (LOSC) by Barbados and Trinidad and Tobago regarding the delimitation of their fish and oil-rich Exclusive Economic Zones (EEZ) and Continental Shelves (CS). It surveys the procedural significance of several unprecedented pronouncements made by the Arbitral Tribunal with respect to Articles 281–283 LOSC and their relationship to LOSC Articles 74 and 83, which allowed the Tribunal to uphold its compulsory jurisdiction over the delimitation of the EEZ/CS up to 200 nautical miles and of the outer CS beyond this limit. The article commences with the Tribunal's appraisal of the modern law and process of equitable maritime boundary delimitation, followed by its application of that law consistently with the vast jurisprudence of the International Court of Justice and previous arbitral tribunals. In a two-stage process, the Tribunal drew a provisional, single equidistant boundary line and then considered whether that line needed to be adjusted in view of special circumstances and the proportionality test for an equitable result. This process is traced against the background of the factual and legal contentions disputed by the parties in the Western and Eastern sectors. The Tribunal also provided an important incentive for resolution of the associated fisheries dispute by calling upon the parties to conclude, pursuant to LOSC Article 63, a new agreement on Barbados's access to flying fish stocks in Trinidad's EEZ.