The Bizarre Happenings on Isla De Aves International Law Essay

Introduction

I will call this paper The Isla de Aves story due to the bizarre happenings in the last few centuries regarding this tiny island in the Caribbean. Formally it is an island under Venezuelan domain. There have been many disputes and minor conflicts, even international conflicts, around the island. All parties involved were sensible enough to keep arms and wars out of it. The problems concerning the island changed throughout the centuries, as new eras brought new headaches to the issue. In this paper the various conflicts with Aves Island shall be explored under the question of which role international arbitration has played in the conflict so far. Indeed, international aspects of Aves Island seem to be the only constant in the history of "The Isla de Aves story". The question why it's so important can be answered easily. International boarders and boundaries made an ever changing set of 'actors' in the Aves spectacle. UNCLOS proceedings brought together new neighbours, in most cases unwillingly. Exclusive economic zone is one major key phrase of this paper, as the modern quarrels are due to the extension of the EEZ after UNCLOS proceedings in the United Nations. The - with some exceptions - worldwide ratification caused already settled boarder conflicts to rise again, or let new disputes arise. Even armed conflicts were fought in the aftermath of it. Most interestingly for this paper is the fact, that Venezuela, who insist on the 200 mile exclusive economic zone around Aves Island, didn't even sign the UNCLOS treaties! With the refusal in mind a first glimpse of how confusing and furthermore absurd the argumentation in the disputes is. Thus said, it is clear that the extension of sea boarders up to 200 nautical miles brought problems in sea-demarcation, especially in island cases and additionally, when former colonial and imperial powers retreat and leave a power vacuum. In the case of the Caribbean, where Dutch, English, French and Spanish settlements can be found, the question of who would be the legitimate successor is difficult to sort. One part of this paper will examine to what extent colonial powers settled the conflict regarding Aves Island and what role international arbitration plays in the conflict until today. Compared to similar conflicts in other parts of the world, which were taken to the International Court of Justice, in the Isla de Aves story the parties involved try to sort out the conflict without applying to the International Court of Justice. Especially the island state Dominica will be examined, as it is the only remaining party questioning sovereignty rights of Venezuela, because according to the island officials, Dominica would be the legitimate successor to Spanish rule. Innumerable cases like the Aves Island are treated there since its establishment in 1945. Claims for standardized arbitration arise from time to time, but the participation in the International Court of Justice is voluntary. Opponents to such postulations fear cuttings in state sovereignty. A part of this paper will deal with the situation. Various arguments from all parties will be provided throughout the paper, starting with the historical situation and the arbitration by Queen Isabella II in 1865. All the arguments brought forward by all the parties involved now and then will be treated shortly. The paper, consisting of three parts regarding the historical background to the story, a juridical and a political, will provide an insight into the problem and will explain the role of international arbitration.

Why is Aves Island so interesting?

Why Aves Island is so interesting to all the parties might sound quite absurd to remote observers. In fact it hardly plays a role in international diplomacy. Bilateral relations are spoiled to a certain extent, especially between Dominica and Venezuela. Maritime boarders have been agreed between the major forces in the area. Former opponents like France, the Netherlands and Great Britain have agreed boarder treaties with Venezuela. Surprisingly, even the United States could negotiate a common border with Venezuela. Why this sounds surprising is the fact, that both countries have quite difficult bilateral relations since Hugo Chavez was elected president in 1999. From the very beginning, the South American leader saw his role and agenda as a liberator of Latin America out of US-imperialist policies [1] .

Touristic potential

Nonetheless, the island and its surrounding area is more than just a diplomatic dispute. Crude oil, natural gas and other natural resources, especially noticeable big fishing grounds are assumed to be in the waters around Bird Island [2] . Economics not enough, Dominica recognizes the island's touristic potential, which is yet unfulfilled. Only very few tour operators organise day trips to the island from Venezuelan mainland, naturally. The island has been protected by Venezuelan government by declaring it as a national park. Rare seabirds and green turtles use the island as a resting and breeding place [3] . The protection and preservation of the island is not enough, according to officials and politicians from Dominica. With the acceptance by the UNESCO, Venezuela is responsible for the conservation of this natural resort. However, Dominica feels it is the duty of the island state to care for the island, which has been protected by Venezuelan naval boats for several decades now [4] .

Economic incentives

Another neglected aspect of Aves Island is seafaring. Since it is a very tiny, shallow island - the highest elevation is below three metres - it is easily overseen by big ships. Many ships have been wrecked in history around the island. Here we can find the reason why the island shall be persevered and Venezuela is not just obliged, but also in their interest eager to 'fill' up the vanishing islet. As soon as the island would disappear below sea level, Venezuela's legitimation of the 200 sea mile exclusive economic zone, according to United Nations Law of the Sea Convention, would be obsolete [5] . This zone, established by Venezuela in 1978 had aroused boarder issues with several Caribbean and even European [6] states. They were solved after 1980, when Great Britain, France, the Netherlands and the United States agreed treaties with Venezuela. However, consent is missing with Dominica. For whatever reason can be chosen from one of the examples above, as the argumentation for the island changes from time to time. Interestingly, Dominica agreed preferential relations with Venezuela in the context of 'PetroCaribe', a project initiated by Hugo Chavez' government in 2005. Two Caribbean organisations play a major role throughout the conflict regarding the Isla de Aves, and shall be furthered mentioned in the course of this paper. Caribbean Community and Common Market (CARICOM) is a community compared to the European Union and is formerly known as the Caribbean Free Trade Area (CARIFTA) [7] . The second and strongly connected to CARICOM is PetroCaribe [8] , a partnership initiated by Venezuela, allowing contractual partners to buy cheap crude oil. A more detailed explanation of the agenda and the terms of contract will leave its mark throughout the paper.

Historical background of the Isla de Aves 'story'

The island has come into international attention in 1865. Back then, there was a struggle by Dutch settlers from neighbouring islands to clarify the possession of the island. Originally it must have been discovered by Avaro Sanzze in 1584 [9] , but it was neither settled nor well documented. Actually, the island has never been in Venezuelan interest before 1854. Not even the geographical 'studies' by Agustín Codazzi, financed by the Venezuelan government mapped the island [10] .

Dutch settlers and miners from the United States

Before the 1850s Aves Island was regularly visited by Dutch settlers from Eusebia and St. Kitts to collect bird and turtle eggs, as the island is a breeding area for both, birds and turtles [11] . At first, no conflicts arose, as Venezuela's interest for the island was little. The Spaniards - Venezuela's predecessors - were similarly uninterested. This hasn't changed for the following centuries until the 1850s. The famous arbitration by Queen Isabella II, which followed in 1865, provoked Venezuela's interest for the island.

1865 - Queen Isabella II clears possession

Then, the unhappy Dutch settlers bemoaned the missing legal status of the island, to whom it belonged etc. American guano exploiting triggered the discussions. As the Spaniards were the first to enter the Caribbean centuries earlier, it was obvious that the Dutch went to the Spanish queen to settle the conflict. There the sought a sentence in their favour. Instead, the island was said to be Venezuelan from now on [12] . Isabella's argumentation is easy to follow. As the island was in Spanish administrative spheres, Venezuela was the most 'natural' successor to have sovereignty rights over it. Even in 1865 her arbitration was disputed, despite being accepted by most parties [13] . Later bilateral treaties between Venezuela and surrounding European neighbours after the 1960s indicate that the arbitration, combined with minor geopolitical interests, made the island unattractive for Europe's former colonial powers. Moreover, the former colonial powers were the first to have bilateral treaties with Venezuela. If the arbitration by Isabella II is considered, the Dutch were the first to acknowledge the sovereignty of the island. In the 20th century France, the Netherlands and the United States negotiated treaties. The island attracted international attention due to the United States' seizure of the Island. Another historically important 'incident' in that period were the so called guano acts by the United States [14] . Big guano resources on the island effectively made it American. Although the American captain didn't conquer the island immediately - there was no military presence neither by Venezuela nor by Dutch settlers - the guano resources were exploited by the United States in the 19th century until the early 20th century, without insistent protests by Venezuela [15] . After the guano resources were gone, the American miners left the island. During the course of the 20th century, however, Venezuela reiterated its sovereignty over the island on several occasion. The establishment of Simon Bolivar military naval base sent out several warnings to Venezuela's Caribbean neighbours. First it was claimed to be a permanent settlement [16] . Extreme weather conditions, however, make a permanent settlement impossible. During the hurricane season the base and therefore the island is empty. Historically the island was never settled. The geographical circumstances and the weather condition make permanent settlements impossible. Its size doesn't provide enough protection against hurricanes. The Caribbean is well known for its hurricanes, but even in the hurricane-free time of the year, there is no settlement documented. Again the major issue and reason not to settle on Aves Island is its size. When it was first discovered, it was not larger than 500 metres calibre [17] .

UNCLOS and Venezuela

Despite the establishment of the 200 sea mile exclusive economic zone, Venezuela hasn't signed the contract. When the proceedings and negotiations took place, Venezuela's government refused to sign the contract. The establishment of the exclusive economic zone in 1978 was, according to Venezuela and many other states which implemented the 200 mile EEZ on their coastlines, common law, and wouldn't need further pieces of International Law [18] .

Juridical background and consequences of the conflict

International mediation and arbitration - the solution?

The quarrel about Isla de Aves has become a rather bizarre conflict, mainly taken out on media issues. Venezuela has to shrug off claims from almost half of the Western Caribbean island states. Some of them are former European colonies and still benefit from their status as former colonies, as European countries and even the European Union as a whole support the island states' claims for the island. Venezuela's refusal to take the case to the International Court of Justice is for some protagonists in the conflict hard to take, but from an International Law perspective, Venezuela only sticks to its sovereignty rights [19] . Main opponent to Venezuela's sovereignty over the island is Dominica, who claims it for the state itself. Others only deny Venezuela's stance on the definition of the island itself, which is claimed as a rock by Dominica, but has been granted the legal status of an island by UNCLOS [20] . Treaties between Venezuela, the United States, France and the Netherlands, valid since 1980 should have settled the issue. The prospect of crude oil and natural gas under the sea around a 200 exclusive economic zone would enable Venezuela to exploit it, the surrounding island states don't want to be left aside. Therefore the insistence on taking the case to the International Court of Justice is comprehensible. Venezuela's stance on refusing it is ensured by International Law and no state has to subordinate to the Court [21] . EEZ disputes aren't reduced to Venezuela and the Caribbean. The definition and relatively late establishment of the UNCLOS caused confusion and disturbances. Countries could claim up to 350 nautical miles of state territory, still without the EEZ up to date mark. Regulations from 250 nautical miles are intact. Aves Island is a mixture of several disputes. On the one hand, the classification as an island is stressed, on the other hand only the EEZ is under dispute and third, the ownership of the island in general is questioned [22] .

Sovereignty rights and International Court of Justice

UNCLOS, however, acknowledges states the right to settle conflicts arising due to the overlap of new boarders as a consequence of UNCLOS establishment. There is no question about the ownership of the Island. Despite rather weak claims by St. Kitts and Dominica, Venezuela's sovereignty over the island isn't substantially challenged. Historically the island was appointed to Venezuela as the legitimate successors of Spanish rulers [23] . Up to now, the question, if Queen Isabella was the right one to rule on the issue, is justly there. Nowadays the Spanish Queen would not be taken as a referee in such a dispute, as in 1865, when Venezuela was still a prolonged arm of Spanish colonial rule. Since all the European rivals gave up their interest in Bird Island, the Caribbean Community lost strong allies. As sovereign states they aren't obliged to subject to international arbitration [24] . It might sound unfair to the eyes of the Caribbean parties that Venezuela refuses to take the case to the International Court of Justice, as they were willing to subordinate exactly to the same methods when Queen Isabella II ruled on the issue, in favour of Venezuela [25] . The Caribbean states are supported by the United States - at least according to claims by vice president of Venezuela Jos© Vicente Rangel. There is no legal base for it, nonetheless. Only some dubious statements which just undermine the traditional diplomatic conflicts between the two countries indicate support. There hasn't been any legal assistance for the countries neither by the United States, nor the European Union. Even the remote Caribbean has strong connections to the European Union, as the Netherlands and France could help their former possessions in the area. However, there is no sign of assistance from Europe, the official strategy paper for foreign affairs doesn't include any sign of rejection of Venezuelan claims. Additionally, the prospect of better economic relations to South America makes the little island states dispensable [26] . To return to the role of International arbitration in the 'Aves story' it's important to mention that the participation in international institution is by choice. Thus said, it's clear that any recommendation by such doesn't necessarily have legitimate power. The dependence of International organisations on National Law and the participation of each state makes International arbitration difficult [27] . As indicated in the historical case with Queen Isabella II, Venezuela only subjects to it, as long as they're assured the sentence is going in their favour. Venezuela's juridical and political resilience is underlined by several bizarre spectacles. One was the construction of the scientific-military base Simon Bolivar on the island. It was set up in 1978 by the Venezuelan Navy in a military action, including several naval boats and soldiers, taking the island. Therefore the island is inhabited and fulfils the qualifications to be counted as an island. This naval base was the place for several spectacles like a speech by President Hugo Chavez, directly broadcast from the island [28] . As if such demonstrative actions wouldn't be enough, some years ago one of the highest army generals married on the island. Again international protests followed, although there is no legal background to it. As the island is Venezuelan territory, all the neighbouring islands could only watch the wedding. Provocative shows seem to be the expertise of Hugo Chavez, also in this case. Despite claims to implement standardized arbitration in similar conflicts, there is not enough power to enforce arbitration. To reject common International Laws would restrict state sovereignty substantially [29] . Furthermore, other states in history were always allowed to sort similar conflicts on their own, or with mediation. Most importantly everything was willingly so far. The International Court of Justice therefore can have massive influence. In other cases, however, it has to observe helplessly. Consequences of the conflict can't be deduced at the moment, due to the progressing negotiations in the area. Unless there are no new aspects relevant for international law, at least the legal situation is unchanged. The use to enforce UNCLOS worldwide and an 'artwork' for demarcation in similar cases are obvious if the abstruse situation in the Isla de Aves story is considered [30] .

Political background of the Isla de Aves story

Hugo Chavez' foreign policies

A quite bizarre show is 'behind the scenes' regarding political aspects of the Isla de Aves story. Above, the historical and juridical situations indicate the complexity of the issue. Political parties add fuel to the fire, especially from Venezuela's perspective. Hugo Chavez and other political and subsequently military officers are actors in this 'play'. When Hugo Chavez reign as president of Venezuela started, he stated that he would not have any resentment against others. His main priority in foreign policies would be the Caribbean and Latin America. Ironically Chavez kept his promise, but by a large in a negative way. However, Venezuela's stance in this respect explains to some extent the friction between the South American state and the United States. More or less 'traditional' frictions in the relationship between Venezuela and the United States were renewed under president Hugo Chavez. When he reiterated the sovereignty over Aves Island in his Aló Presidente speech, the United States urged the Venezuelan government to stay calm. Nonetheless, naval boats were stationed near the island to prove strength and the South American state's determination to control the island. Initial point for this show was the resentment of some Caribbean neighbours to Aves Island. The United States were the first ones the Venezuelans had bilateral boarder treaties with. Considering these treaties, the warning the Americans have issued can be seen as serving for the traditional opposition status the United States want to have. [31] In quick succession, other major world powers agreed bilateral treaties with Venezuela, but also some of the Eastern Caribbean states, former Dutch colonies [32] . Hugo Chavez wants to establish Venezuela as the leading regional power. Bird Island and the exclusive economic zone around it are therefore necessary. The economic influence Venezuela has established in the Caribbean under Hugo Chavez is huge. By bringing to life the PetroCaribe deal which allows member states to buy cheap crude oil in exchange for services or at very low credit rates [33] .

Opponents and argumentation

The main opponents to Venezuela's 200 nautical miles exclusive economic zone are, as mentioned above, its direct Caribbean neighbours. Former or still European neighbours have all closed boarder treaties with Venezuela, already in the 1970s or even earlier. The recent 'uprisings' and resentments are therefore not supported by other states than from the Caribbean. As the European Union is anxious to improve the bilateral relations with Venezuela [34] , even former colonies are left alone with their position. But not even the so called Caribbean community finds a single position against Venezuela. The South American state is really clever to undermine the CARICOM's quest for fighting off Venezuela's claims together. Strategic partnerships, like the PetroCaribe or the OECS make the Isla de Aves story even more complex [35] .

Conlusion

The manifold Isla de Aves story is yet to be solved. In the last few years, a possible solution seems to be imminent, without real progress being observed. Despite the membership request for the Organisation of Eastern Caribbean states by Venezuela, possession and sovereignty rights over the island remain unclear. International organisation have played a major role throughout the last few decades. Neutral forces were not involved in the story so far. Neither the OECS, the CARICOM or other regional economic or political entities have contributed to find a solution, which could be accepted by all arguing parties. Especially the unity of the OECS and CARICOM is permanently undermined by Venezuela. St. Kitts, Antigua and Barbuda, other comparatively small island states in the Eastern Caribbean like the fiercest opponents to Venezuela, Dominica, have changing relationships to the South American state. Also Dominica, who tried to solve the issue to their advantage by Venezuela friendly policies until 2004, when a change in government brought a change in the relationship to Venezuela, generally. This didn't hinder the country to participate in the PetroCaribe program. The PetroCaribe deal is quite astonishing for several reasons. On the one hand, Venezuela could sell their crude oil for much higher prices to the United States or somewhere on the world market, but the country wants to have cheap oil for the nearest, regional neighbours under the agenda of safe energy sources for South America have the priority for Venezuela. On the other hand, Hugo Chavez uses the agreement wrongly for his own interest, notably to force loftier position in the Aves case. Dominica's refusal to relinquish its interest on Bird Island is even more admirable under this circumstances. Nonetheless the government took over much more 'peaceful' stances. Unlike Barbados, who completely denied to sign the agreement. Speculated pressure by the United States was disclaimed, but these speculations remain. The possibility of signing at a later point in time is still there, though it seems unlikely that Barbados' stance will change soon. Venezuela's geopolitical interest for Aves Island is thus easy to understand, but the economic power it shows off under Hugo Chavez would still be prevailing without the exclusive economic zone around Aves Island. However, the 'Bolivarian' state seems to favour the idea of applying pressure with the island. Despite my description of the definitely existing touristic potential the island has, it's rather overestimating what's happening than underestimating. Of course day trips from Dominica would be a very nice adventure, but the little sand bank, as it is a bird sanctuary and natural reserve already, couldn't bear too much of it anyway, in order to have a measurable impact on a national economy. Its biodiversity is worth keeping and caring for, indeed, but to make a national case out of a few metres of sand in the enormous Caribbean sea is definitely politics and rhetoric. The historic value of the island is to be doubted, too. Queen Isabella's II arbitration was, however, the only international arbitration or mediation so far! Nowadays, the Spanish queen wouldn't be asked to rule on an issue, in which personal or national Spanish interests are included. Despite Venezuela's independence some decades earlier, Venezuela still had strong connections to their former 'colonial masters'. Regardless of her motivation to assign Isla de Aves to Venezuela, her arbitration is the starting point, though, to show the often bizarre argumentation all the parties included have used. Even the United States, a quite underrepresented power in this paper, played a big part in the story of the island so far. Until 1912, they exploited and mined guano there. US-doctrines often raise question marks on international politics, as did the guano acts from 1856. Based on this legal act, it considered the island United states territory, as big guano resources were there. The United States 'interventions' were mentioned in the paper, but are not worth calling them interventions. As explained in the text, the United States were the first to accept maritime boundaries with Venezuela in 1978 and virtually legitimating Venezuela's exclusive economic zone. I have tried to show which role the European Union played in the story. Unfortunately, they didn't really have one. Although I have found hints at the conflict in the strategic paper for relations with Venezuela, it respects all sovereignty rights and just as many jurists would argue, says it's the case of every country to take certain problems to the International court of Justice, unless they want to. Standardized international arbitration is therefore, just a theoretic construct. It's illusionary to say that one day every country would accept United Nations institutions. It seems as it will go on that everyone just accepts the peanuts of it. Just like Venezuela perfectly serves as a role model.

Literature

Charney, Jonathan and Colson, David and Smith, Robert. International maritime boundaries. Danvers: Brill Publishers, 2005 Jonathan Charney, David Colson and Robert Smith. International maritime boundaries, (Danvers: Brill, 2005) Davis, Michael Esq. "Bird Island, OECS and the potential Venezuelan Membership" thedominican.net, December 15, 2008 https://www.thedominican.net/articlesone/aves.htm (accessed December 10, 2010) European Union, 'Venezuela. Länderstrategiepapier 2007-2013' (11/04/2007) Fontaine, Thomas. "Aves Island a strategic Island in the Caribbean Sea. Should Dominica Stake a claim to the Island?" thedominican.net, October 21, 2002, https://www.thedominican.net/articles/bird-island.htm (accessed January 15, 2011) Garrisson, Scott, 'Sovereignty of Aves Island: An Argument Against Compulsory, Standardized Arbitration of Maritime Boundary Disputes Subject to Review by the International Court of Justice'; The University of Miami Inter-American Law Review 185, nr. 38 (2006) Kwiatkowska, Barbara; Dotinga, Harm, 'International Organizations and the law of the Sea Documentary Yearbook, Vol. 1, Netherlands Institute for the Law of the Sea, 1985 Welsch Friedrich; Werz, Nikolaus, 'Der Wahlsieg und der Regierungsbeginn von von Hugo Chávez Frías in Venezuela', Universität Rostock: Institut für Politik- und Verwaltungswissenschaften, 1999 Zuloaga, Guillermo, 'The Isla de Aves Story', Geographical Review 45/2 (1955): 172 - 180

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