At a recent public forum, my senior QC school mate, Mr. Stanley Ming, urged the audience to focus more on the future, as we forecast our development trajectory. I subscribe to a different viewpoint, which says that our future is conditioned by the past: we need to know from whence we cometh, in order to determine the chosen path ahead.
Perhaps nowhere is the merit in my preferred approach more relevant than in the search Guyana has conducted over the decades for lasting solutions to our territorial issues with our neighbours, both to the west and to the east: recently, at the International Court of Justice, Guyana’s legal team was able to rely persuasively on the historical record to buttress our legitimate claim to the Essequibo.
As regards the resolution of the issues with our neighbour to the east, the situation is multifaceted and not straightforward. In fact those issues are three separate and distinct areas of contention: the maritime area off the Corentyne coast; the Corentyne river itself; and the land area further up the Corentyne, known as the New River Triangle.
Regarding the first, matters had reached a head at the turn of the century, when Suriname sent its gunboats to scuttle an oil exploration rig which had been operating in the Corentyne area under a Guyanese concession, even running its vessels all the way up to Guyana’s Corentyne coast. Fortunately, good sense prevailed in this matter, and the two countries agreed to a binding third party resolution at the UN International Tribunal on the Law of the Sea (ITLOS).
But it is as regards the other two territorial issues with Suriname – the watercourse of the Corentyne river and its source – that reliance on history has also proven to be invaluable. The records show that back then (as was the case in 2000) following reports in the 1920’s of the discovery of oil east of the Corentyne river, the British and the Dutch colonisers were anxious to resolve the delimitation issues between them.
In 1936, two Boundary Commissions were set up – one to locate the land boundary terminus and the other to define the boundary further upstream in the New River area. Regarding the former, the land point of the boundary was identified on the west bank of the Corentyne river, effectively making the Corentyne river part of the sovereign territory of Suriname. In relation to the New River, the recommendation was to award the New River triangle, located to the left of the Kutari River and bordered further west by the New River, as part of British territory. With this in mind the British actually sent forward a draft treaty to the Dutch in 1939.
Alas, the advent of World War II scuttled plans for a settlement of the issues. However, once more the record will show that in the 1950’s and again in 1961, the British submitted another draft treaty to the Dutch in an attempt to resolve the issues.
The record further shows that along the way, the Dutch had a change of heart – notwithstanding their prior agreement to these positions. Thus they reverted to a previous position of the “thalweg” or mid-point channel in the Corentyne river as the boundary and asserted that the more westerly New River, not the Kutari, was the source of the Corentyne river, thereby now claiming the 6000 square mile New River Triangle!
As explained in the excellent February 2009 Stabroek News article by (then) historian Mr. David Granger, “The defence of the New River, 1967-1969”, relations deteriorated between the newly-independent Guyana and the semi-autonomous Surinamese government, even though the Dutch had made it clear that “they were not at war with Guyana”. Several attempts were made by Suriname to occupy interior locations, including the infamous Camp Tigri in the New River triangle and to construct airfields and settlements, accompanied by jingoistic rhetoric.
By a combination of military force to remove the Surinamese presence from the New River area and diplomatic initiatives to de-escalate the situation, the two neighbours have since then moved on to maintain an uneasy tolerance for each other. As stated above, the low point in relations came with the eviction of the CGX exploration vessel off the Corentyne in 2000 – again as is the case now, a resource-driven crisis – for which resort to international third-party settlement was required.
Thus ever so often over the decades, Suriname has resorted through a number of devices to assert its territorial claims against Guyana: these include using the opportunity of international fora – including CARICOM meetings! – to display a map of Suriname that is not internationally recognized and which includes the New River triangle as part of its territory; and the withholding of licences for Guyanese fishermen (remember fish in offshore stocks have no passport!) and lately, charges for Guyanese to use the Corentyne border river. The most recent version is the announcement of plans to unilaterally pursue the financing and construction of the Corentyne river bridge!
As was famously said by a PPP Minister in 1953, albeit in relation to the acts of the British Governor, “this confounded nonsense must stop”. It is normal practice in border rivers for the riparian states and their nationals to have rights of user for transport, commerce and other peaceful activities; in other words, licences should be issued (expeditiously) in the normal course of dealing, and use of the river not be made subject to prohibitive charges and onerous conditions, such as the berthing of fishing vessels on the Suriname side. Respectfully, the principles of comity and good neighbourly relations, as members of a regional integration movement, require no less.
In this regard, the assurances given by President Chan Santokhi at the start of this administration’s tenure in 2020 are yet to materialise. However, given the coalition politics of Suriname, it is very difficult for such assurances to remain intact, with several moving parts in their administration – political parties, the military, private sector, subsectors within the private sector, trade unions, civil society…
In a recent interaction with the media, H.E. President Irfaan Ali said that ‘[G]uyana is interested in being part of a project that covers two sovereign sides in a joint manner…There is no other official position before me, there is no other request before me’.
I am unsure how the concept of sovereignty would apply ‘in a joint manner’ to a bridge over a river that has been recognized for decades as part of the sovereign territory of one state – sovereignty would extend upwards from the river to the space within which the bridge would occupy. Have the issues been fully thought through, for example: which country would own the bridge, set fees and conditions for its usage, in what currency would those fees be payable, which law would apply on the bridge, can Suriname unilaterally restrict traffic on the bridge, or even close it…
As regards the ‘position’ and ‘request’ on the table, it should be noted that the statement of a government minister responsible for infrastructure in the Parliament of a sovereign nation is regarded as evidence of that country’s current state practice; Guyana has historically relied on similar statements in the Venezuelan National Congress to support its case on that country’s acquiescence in the 1899 Arbitral award and the 1905 Agreement crystallising it.
Given the latest contretemps over the plans by Suriname for the unilateral financing and construction of the bridge, President Ali should use the opportunity of the CARICOM Summit in Saint Lucia for a “side-bar” with his Surinamese counterpart, to seek clarification as to what is the current ‘position’ and ‘request’ before Guyana. An important question is how can a country unilaterally make plans to build a bridge over a border river, which has to land on the other side in the sovereign territory of another country?
So what then, is the way forward? Decades ago, in his seminal piece “The Guyana-Suriname Conflict: Is the Moment Opportune for Third Party Intervention?”, the late Tyrone Ferguson quoted a member of the Suriname National Assembly thus: ‘the pain of Tigri still sticks in our throats’. Given all the back-sliding, foot-dragging and “boogaloo” that has characterized Guyana-Suriname bilateral relations, one wonders whether such sentiments might still be harboured in the inner workings of the Surinamese body politic. Be that as it may, a number of possibilities abound:
· Reactivation of the Guyana-Suriname Boundary Commission. In a previous life of mine in the last century as Secretary of the Boundary Commission, I had started, on a personal basis with my Surinamese counterpart Ambassador Robby Ramlakhan, to identify areas and issues for discussion which the two Chairman – Senior Counsel Mr. Ralph Ramkarran on our side, with his Surinamese counterpart Mr. Hans Lim A Po Sr. – could take forward. That Commission could be resurrected and staffed with technical advisers – cartographers, surveyors, geologists and most importantly, skilled negotiators to progressively address the issues at hand.
· Use of the good offices procedure under Article 191 of the Revised Treaty of Chaguaramas. Some names come readily to mind – Judge Patrick Robinson of Jamaica, former Judge of the ICJ, or a former President of the CCJ, e.g. Judge Adrian Saunders or Judge Sir Dennis Byron – to start the process of identifying the issues and the way forward as a means of dispute resolution.
· An Arbitration Panel of distinguished jurists from both within and without the Region. The advantage of such a panel, while having the attraction of being an impartial quasi-judicial third-party mechanism, is that the parties get to decide on the composition of the panel.
· A joint approach by Guyana and Suriname to the ICJ, as was done with the case of the Belize-Guatemala dispute, to bring certainty to the issues through binding third party judicial settlement.
To create the objective conditions and an environment conducive to the peaceful resolution of this long-standing differendum, the Heads of State of the two sides could commit to an accord, under the auspices of the Conference of Heads of Government of CARICOM, to a de-escalation of tensions and the maintenance of good neighbourly relations for a period of ten years, or until the issues are resolved, whichever is the earlier, with a built-in reporting modality to the Conference.
Simply put, there is too much at stake for Guyana and Suriname not to seek a resolution of this long-festering sore in their good neighbourly relations, here on the cusp of their economic take off and given the current challenges for small states in the global environment: in the oil and gas sector; sustainable harvesting of fishery resources; cross-border trade and the movement of people and factors of production under the CSME; and of course, President Ali’s own vision for the building out of his idea of an energy corridor and the trans-continental linkages with French Guiana, Suriname, Brazil and Guyana.
Discussion