Sunday, May 3, 2009

The Gulf of Venezuela & International Law

On a world thirsty for energy, oil is the cause of numerous international conflicts. For example, take Venezuela and Colombia, states that assert sovereign rights over the Gulf of Venezuela, an area with petroleum potential. Their desire for the black gold has not only shaped policy decisions on whether to participate in many international treaties, but has also attempted against their diplomatic and economic relations.

Venezuela and Colombia survived more than three hundred years under Spanish rule before achieving independence in the nineteenth century. Ever since, their representatives have struggled to delineate their jurisdictional boundaries. The negotiations began in 1833 and when they finished in 1941, the neighbors had only settled their land frontier but their marine spaces delimitation remained controversial.

Discussions took place throughout the twentieth century without any arrangement and nowadays, the continental shelf delimitation of the Gulf of Venezuela and the marine rights of a small group of islands located at the entrance to the Gulf are the matter subject of debate.

The history of the dispute is simple. After achieving independence from Spain in 1810, Venezuela and Colombia were part of a nation called Gran Colombia. In 1829, Venezuela separated from Gran Colombia to become an independent nation and incorporated into its Constitution the doctrine of uti possidetis juris of 1810, meaning that the country inherited the original borders of the previous state (meaning, Capitanía General de Venezuela, as it was called before claiming its independence. Colombia did the same and thus, both Colombia and Venezuela’s territorial limits should have remained the same as under Spanish administration. However, the exact borders were impossible to ascertain and the controversy arose.

The first attempt to settle the conflict was in 1833, when Colombia and Venezuela negotiated the Michelena-Pombo treaty. However, the treaty failed despite Colombia’s ratification, since the Venezuela legislature formally rejected the treaty in 1840. Venezuelan Congressmen argued that their country would lose sixty-two miles of coastline, together with its corresponding land. The funny thing these days is that if ratified by the Venezuelan legislature, the Michelena-Pombo treaty would have granted Colombia roughly two-thirds of the Guajira Peninsula but no land with coastline on the Gulf.

Following the failure of Michelena-Pombo treaty came the Spanish Arbitral Award of 1891, arbitration in charge of King Alfonso XII of Spain. In 1885 the Spanish King died and Queen Maria Cristina was the one who handed down the award in 1891. The award designated the starting demarcation on the Atlantic coast on a location that was never found by either of the parties. The imprecision of the Award was an unbeatable obstacle to the correct demarcation.

Colombia and Venezuela also tried a Swiss Arbitral Award, but the real solution came in 1941, with the Santos-López Contreras Treaty, instrument that granted Colombia a small coastline on the Gulf, a marine space that had been traditionally Venezuelan. Nevertheless, such treaty made no reference to the maritime rights in the Gulf and the delimitation of marine and submarine areas between the two states is still an issue.

It is impossible not to resort in international law with the purpose of seeking a legal solution to the dispute. Although international law does not necessarily provide the solution to the problem, a review of the actual international legal order regarding law of the sea is very useful. Traditionally, the territorial sea was considered to extend only three miles from the coastal state baseline. Since mid-twentieth century, most States have claimed a twelve-mile limit and other States, including most of Latin America, have emphasized their rights to a 200-mile territorial sea.

The right to extract minerals from the sea prompted to the creation of the continental shelf as a legal concept. Such concept emerged on the international sphere in 1958, with the appearance of the Geneva Convention on the Continental Shelf. Such Convention, defined the continental shelf in terms of its exploitability rather than upon its geological nature. According to Article 1, the term “continental shelf” refers:
(a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.
The equidistance provision suffered a review by the International Court of Justice in the North Sea Continental Shelf Cases. The Court held that the use of the equidistance method was not obligatory as between the parties and the principles enumerated in Article 6 of the North Sea Continental Shelf Cases did not constitute customary international law. The Court expressly held:
Delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the others.
In 1994 the United Nations Convention on the Law of the Sea (“UNCLOS”) went into effect, and by 2006, 149 countries had ratified it. By defining the concepts of territorial sea, contiguous zone, continental shelf and exclusive economic zone, UNCLOS has brought consistency to the seaward extent of coastal nations’ jurisdictional claims.

Regarding territorial sea, UNCLOS sets a twelve-mile limit. Its Article 3 establishes that all States have the right to establish the breadth of the territorial sea up to a limit not exceeding twelve nautical miles from the baselines. Still, under the new twenty-four mile limit, the concept of contiguous zones has acquired relevance, and in 1997 more than fifty states had claimed a contiguous zone.

UNCLOS fails to provide a solution to the Gulf problem, especially since neither Colombia nor Venezuela is party to it. Nevertheless, it is important to remember that the 1958 Continental Shelf Convention might still bind both countries, particularly because States are bound by customary international law.

Going back to our central issue, is very important to keep in mind that the Gulf is of vital economic importance to Venezuela, since navigation rights are crucial to minimize oil transportation costs. The Gulf is the only route connecting Lake Maracaibo with the Caribbean Sea and world oil markets. Moreover, the city of Maracaibo is significant because it holds one of the four major Venezuelan oil fields, and Maracaibo is very close to the Texas Port. Therefore, if Colombia were to have sovereign rights on the Gulf and proceeded unilaterally to exploitation of its oil reserves, it would obstruct the shipping lanes of Venezuelan oil tankers leaving Maracaibo.

Colombia position is a line that divides the Gulf in half between the opposite peninsulas of Guajira and Paraguaná and then apply the equidistant principle between the adjacent States, starting at Castilletes. Such proposition is legally based on Article 6 of the Continental Shelf Convention. Venezuela counters that the equidistant principle is not the obligatory method of delimitation by referring to the ICJ decision on the North Sea Continental Shelf cases.

International law does not provide an answer to the maritime boundary dispute. No treaty article on continental shelf delimitation is binding concurrently upon Venezuelan and Colombia. Although both nations ratified the 1958 Continental Shelf Convention, Venezuela made a reservation to Article 6, which relates to the means used in delimiting continental shelf areas.

The Venezuelan delegate back then, mentioned that among the reasons for this reservation was the existence of “special circumstances” in the Gulf of Venezuela. Venezuela’s purpose in rejecting this provision was to exclude the principle of equidistance as the mandatory method of delimitation.

Additionally, there is not common understanding of customary maritime delimitation law and neither States are subject to the International Court of Justice compulsory jurisdiction, so it is impossible that the controversy will be solved by the Court without the express consent of both states.

The truth is that Colombia and Venezuela need oil. Both are important oil producers and Venezuela’s petroleum industry constitutes more than three-quarters of total Venezuelan export revenues, about half of total government revenues, and about one-third of the GDP. In order to maintain a solvent government and to preserve Chávez’s popularity through the funding of social programs, it is imperative that Chávez continues to pursue profitable oil undertakings. On the other hand, Colombia is the third largest Latin American oil exporter and has consistently been one of the United States’ top ten suppliers. Oil exportation provides a third of Colombia’s revenue, making it its number one exporting commodity.

Oil is power and the maritime delimitation between Colombia and Venezuela is a proof of such assertion. Anyhow, it is important to acknowledge that many times international law does not provide an answer to conflict between States and only the determination of the governments to solve the struggles will make a difference. If Chávez’s government gives away maritime rights, Venezuela and all the next governments will be forever bound to respect such agreement. It would be another disastrous legacy of Chávez and his fellows.

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