The Contribution of Trinidad and Tobago in the Development of the Regime of the Continental Shelf

Anthony A.Lucky

The Contribution of Trinidad and Tobago in the Development of the Regime of the Continental Shelf

Anthony A.Lucky*

This paper examines the development of the Regime of the Continental Shelf from a historical perspective.It considers the beginning of the legal aspects of the Regime emanating from the Gulf of Paria Treaty in 1942.The paper then assesses the development and contribution to the regime by Trinidad and Tobago,a country which recognizes that the commercial production of oil and gas is inevitably subject to laws and regulations,nationally and internationally,because of the value and effect of this resource on the economy of any oil producing country;especially where a very large percentage of oil and gas is extracted from its continental shelf.

Ⅰ.Introduction

Rapid global development of the Regime of the Continental Shelf may not have been easily envisaged in the 1930s when the exploration for oil and gas had extended to the sub-marine areas of some coastal states.The literature and articles on legal aspects of the regime are voluminous,as national and international jurists continue to examine and consider new developments in science and technology as they relate to global submarine exploitation.

In examining the contribution of Trinidad and Tobago in the development of the regime of the Continental Shelf,a historical perspective of the twin island Republic is necessary.Trinidad is the southern-most island in the Caribbean archipelago.The Caribbean Sea lies to the north of Trinidad and Tobago,the Atlantic Ocean to the east,the Columbus channel and the Venezuelan mainland to the south and the Gulf of Puria on the western coast of Trinidad.Occupying an area of approximately 1,981 square miles(5,131 sq.km.)and a population of 1, 229,953 in 2009,Trinidad and Tobago is a large producer of oil and natural gas.

Prior to 1962,Trinidad and Tobago was a colony of Great Britain,achieving its independence in August 1962 and Republican status in September 1976.Although exploration and exploitation takes place in the Caribbean Sea north of Trinidad;the major oil finds are located on the island’s south eastern coast in the Atlantic Ocean on its continental shelf.

The period from 1942 onwards has shown both rapid and progressive development of the law of the Sea.I have chosen 1942 because the Gulf of Paria Treaty was concluded during that year,in which the United Kindom and Venezuela divided between themselves the submarine areas of the Gulf of Paria.It is noteworthy that the geological and scientific exploration of the Gulf of Paria began in 1935,because in that year reports revealed that there was a vast oilfield in the submarine areas of the Gulf of Paria.①Suter H.M.,The General and Economic Geology of Trinidad B.W.,2nd ed.,London: H.M.S.O.,1960,pp.1～4.The technocrats recommended that a treaty should be concluded with Venezuela to ensure that the submarine area where the potential field was found would be within the boundary of Trinidad.It can be concluded that specific instructions from the geologists,scientific experts and negotiators were given to the official draftsmen of the Treaty to consider the anticipated results of the scientific findings as they prepared the document.After close examination of Articles 6,7 and 8 of the Treaty,I have no doubt that the beginning of the law of the sea as it relates to the continental shelf is inextricably linked to the commercial production of oil and gas, since no such law had come into existence prior to the Gulf of Paria Treaty.②Discussions with Joyce C.Lynch,Senior Legal Advisor Energy,Policy and Planning Ministry of the Attorney General,Trinidad and Tobago.

The Gulf of Paria Treaty was the first agreement of its kind and was the only bilateral treaty with respect to the sea which sought to regularize the legal position regarding fishing and other related rights between Trinidad and Tobago and Venezuela inter se.It was concluded prior to the Truman Proclamation of 1945 in which the Continental Shelf was defined.It will be argued in this paper that the Gulf of Paria Treaty created an impetus in the development of the regime of the Continental Shelf and contained some features that have become part of that regime.③P.Chandrasekhara Rao,The New Laws of Maritime Zones,New Delhi:Milind Publications Private Limited,pp.93～94.

The Treaty was intended to govern the“submarine areas”in the Gulf of Paria between Trinidad and Venezuela because at that time there was no clear definition of the Continental Shelf.The Treaty has since been superseded by the Maritime Boundaries Agreement which was concluded by the two states in 1990.④Maritime Boundaries Agreement:Treaty between Trinidad and Tobago and Venezuela on the delimitation of Marine and Submarine Areas(signed 18 April 1990,EIF 1991).

The Treaty and the Annexation Orders that followed were unique in thatthe divided areas were annexed to and formed part of each others’territory.In fact,at that time Trinidad and Tobago was a colony of the United Kingdom and Great Britain and both the United Kingdom and Venezuela adhered to the then traditional territorial sea limit of three miles.It follows that a substantial part of the waters of the Gulf of Paria were then considered High Seas.

Ⅱ.Historical Background to the Gulf of Paria Treaty

It is necessary to reexamine the early development in order to fully appreciate the current state of the law of the sea in this age of modernity.

What was taking place in the early 1930s is,in a small way,similar to what is taking place today in the exploration and exploitation of the Continental Shelf.As technology advances the law has to keep abreast of this rapid advancement.It must be noted however that the development of the Law of the Sea in its application to the continental shelf has always been clear and consistent as it strives to keep up with the rapid advancement in science and technology.

In the early 1930s geological surveys by a British contingent showed that there were rich oil-bearing deposits in the sea bed and sub-soil of the Gulf of Paria,the southwest coast of Trinidad between Trinidad and Venezuela.Further studies revealed that these deposits were commercially viable.①Report of Geologist Hans Kluger-Report File for 1935.Ministry of Energy,Port of Spain Trinidad.At that time technology was not what it is at present.Even so,the geologists and marine engineers envisaged that in the years to come exploration and exploitation would advance into the deeper parts of the ocean(parts of which are now defined as the Continental Shelf).

Negotiations between the United Kingdom and Venezuela began on 29 August 1936.It was agreed that the two countries would conclude an agreement after which each government would take parallel action to divide up as national territory between them the sea bed of the Gulf of Paria.②Summary of Negotiations with the Venezuela Government for partition of the submarine areas of the Gulf of Paria;Public Records Office(P.R.O.London-FO 371/22850.)At that time partition of the sea-bed was without precedent.

Exploitation of oil began in 1955 with drilling from the southwestern shore in Point Fortin and La Brea Trinidad.③1955-Production from Soldado oilfield at Trinmar initiated.(See official records of the Ministry of Petroleum and Mines,now the Ministry of Energy.Further the records at H. M.S.O.were not available at the time of writing the books mentioned,i.e.The early 1960s.).The first oil piped from Soldado came ashore in 1957.But the first marine oil is credited to Antilles Petroleum Com-pany,which found oil offshore in 1952.①George E.Higgins,The History of Trinidad Oil,Trinidad:Trinidad Express Newspapers Limited,Port of Spain,1996,p.124.

Ⅲ.Exploration and Exploitation in the Submarine Areas (The Continental Shelf)of Trinidad and Tobago

Drilling for oil began in Trinidad and Tobago around 1857 in the vicinity of Pitch Lake on land and exploitation had its beginnings in 1866 when Walter Darwent drilled his first successful oil well(Aripo).Exploitation that is,full commercial oil production,began on land in the vicinity of Pitch Lake(La Brea)in 1908 and forty-six years later marine drilling for oil began in the Soldado Field by Trinidad Northern Areas Ltd(Trinmar).In 1955 production from Soldado oilfield at Trinmar was initiated.T.N.A.,a joint venture between Trinidad Leaseholds Limited,(Texaco—now Petrotrin)and United British Oilfields Trinidad Limited(later Shell,then Trinto,then Petrotrin,and now D’Arcy Exploration Company)later T.P.D.,B.P.now Trinidad Tesoro bought a one third interest in 1939 and was granted a submarine license covering 231,000 acres in the Gulf of Paria in July 1952.Two years later T.N.A established its first high-seas drilling platform and commenced drilling of the well which would discover the Soldado Main Field.Full scale of development of this field did not get underway until late 1957;because during World War II exploration came to an almost complete halt.In the years that followed,major oil reserves were discovered in the Gulf of Paria.In 1946,after the end of the War,a crew began geophysical surveys and assisted in the exploration of new reserves in the Gulf of Paria.In 1947 a gravity crew began to carry out surveys over land holdings of Trinidad Northern Areas(TNA)and more importantly,over the unexplored marine areas in the Gulf of Paria.②TNA was a consortium of three companies:Trinidad Leaseholds,United British Oilfields and British Petroleum.

Prior to the War,applications for leases had been submitted to the Government but these leases could not be formally granted until the conclusion of the Gulf of Paria Treaty in 1942;and appropriate legislation,related to marine operations,had been enacted by the Trinidad and Tobago Government.③Higgins cit.p.124.

Oil companies became concerned over the remaining production life of the island’s reserves;which led to more exploration in the Gulf of Paria and surrounding marine areas.But it was not until 1954 that the first truly offshore marine exploration well was spudded.This well was TNA’s High Seas No.1.It was later renamed Soldado 1.Soldado 1 was a successful discovery that led to the giant Soldado oilfield,which would later produce more than one third of Trinidad andTobago’s oil production during its peak development in the 1960s.①The Trinidad Oil Economy or Levy Report,Library Ministry of Energy Port of Spain, Trinidad and Tobago.

Early studies by the oil industry were commissioned.The first report was made by W.J.Levy,an American economist.②D.R.Craig,The Craig Report,Library Records,Ministry of Energy Trinidad and Tobago.The report made the following recommendations:

(a)A consolidation,modernization and expansion of the present ordinances and regulations that related to the drilling,production and disposition of oil and gas,and,

(b)The establishment of a separate regulatory authority which would be directly responsible to the administrative council of Government,and charged exclusively with the administration of revised legislation.

It is interesting to note that as a result Trinidad and Tobago was ensuring that it had an update of the practices in the various operations of the petroleum industry in other countries.The legislation that followed was in conformity with international treaties and law at that time.③See the Petroleum Act of Trinidad and Tobago Chapter 62:01 and previous legislation.

Ⅳ.The Continental Shelf

I have read,analyzed and taken note of the opinions of renowned writers and jurists on the influence of the Gulf of Paria Treaty with respect to the development of the Regime of the Continental Shelf.For example:Zdenek J.Slouka,F.A.Vallat,and Andrassy Slouka have opined that the real impetus in the said development can be derived from the Truman Proclamation of 1945.I respectfully disagree.Three years before the Truman Proclamation,the Gulf of Paria Treaty had already been concluded.

The term Continental Shelf does not appear in the Treaty of 1942.The legal draftsmen of this historic document did not consider the submarine areas of the Gulf with the same legal interpretation as such areas are given today(the Territorial Sea is currently 12 nautical miles based on Article 3 of the United Nations Convention on the Law of the Sea).In fact,based on this definition there is apparently no area of high seas between the States in the Gulf of Paria.

In the case of Petroleum Development Ltd.v.Sheik of Abu Dhabi 1951 I. L.R.p144 at p.152.Lord Asquith said:

In 1939 neither contracting party had ever heard of the continental shelf which as a legal doctrine did not exist.No thought of it entered their heads. None such entered that of the most sophisticated jurist.

Bearing the above in mind,it seems to me that the Contracting Parties of the Treaty,through their draftsmen,defined what later became known as the Continental Shelf as“submarine areas”.

In the North Sea Continental Shelf Cases of 1969,Judge Ammoun in his separate opinion stated that:Up to the eve of the 1958 conference,it coul d be claimed that the doctrine of the continental shelf was still not more than a custom in the process of formation.

I am of the view that the“custom in the process of formation”was enshrined in the Treaty.This bilateral agreement,the Gulf of Paria Treaty of 1942,between Trinidad and Tobago and Venezuela triggered a process which could have led to an innovative legal framework for future agreements between States.

The above comments fortify my view that the Gulf of Paria Treaty of 1942 could be deemed the impetus from which the modern concept of the continental shelf emerged.

The principles set out therein with respect to navigation and protection of the environment have been specified,and an orderly process for exploration has been followed.For example,Article 5 of the said Treaty ensures that the status of islands,islets or rocks above the surface of the sea together with the territorial sea is maintained.Article 7 and 8 are a rather modern concept for that time in that they provide a legal obligation to prevent pollution of each others territorial waters during exploitation of their submarine areas.The articles are set out as follows:

Article 5

This Treaty refers solely to the submarine areas of the Gulf of Paria,and nothing herein shall beheld to affect in any way the status of the islands,islets or rocks above the surface of the sea together with the territorial waters thereof.

Article 6

Nothing in this treaty shall be hel d to affect in any way the status of the waters of the Gulf of Paria or any rights or passage or navigation on the surface of the seas outside the territorial waters of the Contracting Parties.In particular passage or navigation shall not be closed or be impeded by any works or installations which may be erected,which shall be of such a nature and shall be so constructed,placed,marked,buoyed and lighted,as not to constitute a danger or obstruction to shipping.

Article 7

Each of the High Contracting parties shall take all practical measures to prevent the exploitation of any submarine areas claimed or occupied by him on the Gulf from causing the pollution of the territorial waters of the other by oil,mud or any other fluid or substance liable to contaminate the navigable waters of the foreshore and shall concert with the other to make the said similarity of the prime objectives measures effective as possible.

Article 8

Each of the Contracting parties shall cause to be inserted in any concessionwhich may be granted for the exp loration of submarine areas in the Gulf of Paria stimulations for securing the effective observance of the two preceding Articles,including a requirement for the use by the concessionaire of modern equipment,and shall cause the operation of any such concession to be supervised in order to ensure that the provisions of the present Treaty are complied with.

Article 9

All dif ferences between the High Contracting Parties relating to the interpretation or execution of this Treaty shall be settled by peaceful means as are recognized by International Law.

I am of the view that when the comparative articles with respect to the Continental Shelf in the 1958 Convention on the Law of the Sea and the 1982 United Nations Convention on the Law of the Sea are examined there is precedent for the definition of the Continental Shelf and the United Nations Convention on the Law of the Sea provision for protection from pollution of the waters,rights of passage and navigation.The draftsmen of the Gulf of Paria Treaty and Annexation Orders demonstrated considerable foresight in respect of the current law of the Sea.They prescribed a formula for the drafting of future treaties,thereby providing the Treaty with the impetus that I mentioned above in the development of the regime of the continental shelf.

It is only fair to mention that some writers have argued that the Gulf of Paria Treaty does not constitute the beginning from which the modern continental shelf doctrine could have emerged.I do not agree.The proponents of this view contend that the Truman Proclamation of 1945 formed the real impetus for the development of the doctrine of the Continental Shelf(See the judgment of the ICJ in the 1969 North Sea Continental Shelf Cases).Other international jurists contend that the treaty could be a useful guide for the division of a common Continental Shelf by adjacent States and acquisition of same as national territory.However this would not be possible today because most,if not all,littoral States have signed,ratified,succeeded or acceded to the United Nations Convention on the Law of the Sea in which the Continental Shelf is defined.

It should be noted that the Gulf of Paria Treaty was concluded during the Second World War.The Pointe-a-Pierre refinery in Trinidad was at that time and for a period afterwards deemed to be the largest refinery in the then British Empire.Crude oil was first supplied to the refinery from the land,and thereafter from the Soldado oil field in the Gulf of Paria.Laws were then passed to provide for an orderly process and to protect the marine environment.

A.Laws(1955-Present)Prior to the 1958 Conventions on the Law of the Sea

It would be convenient to set out the laws which are in the Laws of Trinidad and Tobago from 1955 to the present because it is accepted that the commercial production of oil and gas is inevitably subject to complex laws and reg-ulations because of the value and effect this resource has on the economy of any producing country.In light of exploration and exploitation in the past and continuing at present the following Acts in local legislation as they relate to International Treaties are relevant.

It should be noted that,like other States,Trinidad and Tobago was adhering to International Agreements and keeping pace in its laws with the continuing and rapid development of scientific and technological advancement in the oil and natural gas industries.The following Laws set out below are consistent with the recognition and implementation of International Treaties and Conventions to which Trinidad and Tobago is a party:

Oil pollution of Territorial Waters Act No.25 of 1951 Chap.37:03 Laws of Trinidad and Tobago.

An Act to make provisions against the discharge or escape of oil into the waters of Trinidad and Tobago.

Territorial Sea Act No.38 of 1969

An Act to make provisions with respect to the Territorial Sea of Trinidad and Tobago,the territorial sea was established at 12 nautical miles.

Continental Shelf Act No.43 of 1969.

An Act to make provisions as to the exploitation and exploration of the Continental Shelf;to enable effect to be given to certain provisions of Convention of the High Seas ratified in Geneva on 29thApril 1958;and for matters incidental thereto.In 1986 the above Act was amended so that in would be in conformity with the 1982 United Nations Convention of the Law of the Sea.

The Continental Shelf Act of Trinidad and Tobago Chap 1:52 Laws of Trinidad and Tobago.

An Act to make provisions as to the exploration and exploitation of the Continental Shelf;to enable effect to be given to certain provisions of the Conventions on the High Seas done in Geneva on 29thApril 1958;and for matters connected for those purposes.Since then the United Nations Convention on the Law of the Sea has come into force.PartⅥdeals with the Continental Shelf and Article 76 sets out the definition of the Continental Shelf and matters pertaining thereto.It was necessary to amend the Act so that the definition of the Continental Shelf will be consistent with the Convention.This was done by Act 23 of 1986.The definition is now consistent with the definition in the Convention.

The Petroleum Act and the Regulations Chapter 62:01 Laws of Trinidad and Tobago.

This Act consolidates and amends the law relating to petroleum so as to make better provision for the exploration for,and the development and production of,petroleum,and for matters consequential or incidental thereto.

B.After the Signing and Ratification of the United Nations Convention on the Law of the Sea(UNCLOS)

Trinidad and Tobago signed the Convention in December 1982,and in A-pril 1986 Trinidad and Tobago ratified the Convention.In October 1994 Trinidad and Tobago signed PartⅪof UNCLOS,and in July 1995 gave notice that it would be bound by PartⅪ.The following laws are consistent with the relevant articles of UNCLOS:

Marine Areas(Preservation and Enhancement)Act Chap.37:02 Laws of Trinidad and Tobago

Sec.3:Marine Areas(Restricted Area)Order(1973)

Amended by 37 of 1996

Sec.6:Marine Areas(Preservation etc.)Regulations(1974)

Archipelagic Waters and Exclusive Economic Zone Act Chap.51:06 Laws of Trinidad and Tobago.

An act to declare the Republic of Trinidad and Tobago an archipelagic State,and to define the new areas of marine space appertaining to Trinidad and Tobago in the exclusive economic zone,and in the archipelagic waters,and the nature and extent of the jurisdiction to be exercised by it in each of these areas and to make provision for matters connected therewith in accordance with the United Nations Convention on the Law of the Sea,done in Montego Bay,Jamaica on 10thDecember 1982.

Sec.6:specifies the Archipelagic Baseline of Trinidad&Tobago Order 1988 Notice No.206 of 1988

Amendment 1989(of Printing Error)and Legal Notice No.77 of 1989

Trinidad and Tobago is also a party to the following Conventions:IMO Convention 48;IMO amendments;IMO amendments 93;SOLAS Convention 74;SOLAS Protocol 78;SOLAS Protocol 88;LOAD LINES Convention 66; LOAD LINES Protocol 88;Tonnage Convention 69;COLREG Convention 72; SAR Convention 79;Facilitation Convention 65;MARPOL 73/78;London Convention 72;London Convention Protocol 96;Intervention Convention 69;CLC Protocol 92;Fund Protocol 92;LLMC Protocol 96;SUA Convention 88;SUA Protocol 88l;OPRC Convention 90.

C.Cartagena Convention and Its Protocols

The Cartagena Convention is a comprehensive umbrella agreement for the protection and development of the marine environment.This regional environmental convention provides the legal framework for cooperative regional and national environmental protection.It also provides the legal framework for cooperative regional and national actions in the WCR.The Convention is supplemented by the Oil Spills Protocol,the SPAW Protocol and the LBS Protocol. The Shipping(Marine Pollution)Bill includes provisions of The Cartagena Convention(See PartⅤof the Bill-Prevention of Pollution from Ships).

D.Territorial Waters Act(1970)Deals with the Discharge of Oil in Territorial Waters

It is envisaged and proposed that The Oil Pollution of Territorial WatersAct,currently in force,will be replaced and superseded by a comprehensive Act,which is the Shipping(Marine Pollution)Bill.①The Bill was being considered by a Joint Select Committee of parliament when it lapsed because parliament was prorogued and recently dissolved(elections will take place within three months from 8thApril 2010,the date of prorogation).The Bill provides for powers and jurisdiction in relation to pollution of the seas from ships,intervention on the high seas in cases of oil pollution,dumping of waste at sea,prevention of pollution from ships,preparedness for and response to oil pollution emergencies,liability and compensation for pollution damage and matters incidental thereto.The Bill recognizes,enhances and implements the provisions of relevant international conventions.

When the Bill is passed,it will incorporate the relevant provisions of the 1982 Law of the Sea Convention,the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties;the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region(Catagena de Indias 1983)(PartⅤ,section 39);the 1996 Protocol of the London Convention;the International Convention for the Prevention of Pollution from Ships 1973,as modified by the Protocol fo 1978 relating thereto and Protocol and Annexes thereto(MARPOL)and Solas 1974;the International Convention for the Safety of Life at Sea,1974,including its Protocol of 1978 and all amendments applicable to Trinidad and Tobago.

Ⅴ.Conclusion

International Law of the Sea has come of age since the conclusion of the Gulf of Paria Treaty between Trinidad and Tobago and Venezuela in 1942.This was a noticeable landmark in the development of the Regime of the Continental Shelf.The Law of the Sea has kept abreast of modern technology and most of the principles have been codified in the United Nations Convention on the Law of the Sea in 1982 and the Protocols and Conventions that have followed.

Through active participation during the preparation of the United Nations Convention on the Law of the Sea,delegates from Trinidad and Tobago have made positive contributions in the drafting of the Convention.International jurists of Trinidad and Tobago continue to make valid contributions to the development of the Regime at conferences and symposiums.

In“coming of age”in this age of technological advancement in which there is access to the deep seabed,the law has to provide the necessary guidelines and controls for orderly exploration and exploitation.It is my view that since the very beginning the law has provided the necessary safeguards and will continue to keep abreast of technological advancement.

(Editors:Stephen Pire;WANG Danwei;LIU Yanting)

*ITLOS Judge since September 2003;President of the Chamber for Marine Environment Disputes 2005-2008.