NOW THAT THE SHIP HAS DOCI(ED A Postscript to the Shipricler Debate *Kathy Ann Brown
There appears to be some confusion in
the region as to whether Barbados and Jamaica signed the much heralded Shiprider agreement, i.e. the Agreement
Concerning Maritime Counter-Drug Operations, as has been signed by other CARICOM states, norably, Trinidad and Tobago, the OECS countries and Belize or the slightly different arrangement entered
into by the Bahamas. The
agreements
signed by the Governments of Barbados and Jamaica with the U.S. are Agreements C onc e rning C o- ope ration in Supp re s s in g
Illicit Maritime Drug Trfficking. They establish a very different regime for cooperation
in maritime
counter-drug
activities than that proposed by the U.S. in the Shiprider agreement. The offensive and controversial aspects of the Shiprider
arrangement have been either omitted or reworked and the revised documents which have emerged provide the region with a choice of two acceptable legal frameworks for cooperation in the suppression of the illicit traffic in narcotic drugs based on the fundamental principles of reciprocity and respect for sovereignty and the rule of law. The Shiprider agreement attempts to
rewrite basic rules of international law
within the Caribbean region. The greatest dangerposedby the agreement stems from the powerwhich international law ascribes to its subjects. International law is built on treaties and other forms of state practice. State practice over time may craft new rules of law completely contrary to formerly well established principles. It is therefore possible for a multilateral treaty or a series Page 48
of bilateral agreements to shape new customary rules of law paralleling treaty law. This sort of mechanism, based on a process of transfusion of treaty law into customary law, has been used by the U.S.
to clarify rules of international law in
keeping with its interests, particularly in the fields of intellectual property rights and foreign investment. Typically, in these instances there has been some controversy overthe which govern.
""tt.T.Tes
The rules governing the law of the sea have been largely settled by th e 1982 United Nations Convention on the km of the Sea. U.S. President Reagan, in refusing to sign
the 1982 Convention, declared that
the
compromises reflected in the convention
third state flag vessels. In enlisting one Caribbean government after another the U.S. has strung together a
series of bilateral Shiprider agreements which threatened to emerge overtime as a norrn sanctioning broad U.S. competence
within the Caribbean region. In the post CARICOM-U.S. summit era the Shiprider arrangement looms less ominously. In standing up for principle Barbados and Jamaica have highlighted the unacceptable nature of the offensive aspects of the Shiprideragreement. Moreover, if various statements made by leaders in the Eastern Caribbean are to be believed the Shiprider agreement may well unravel and with it the U.S. proposed "seamless web" which has stretched like a dark cloud hanging over the Caribbean Sea.
which were satisfactory to the U.S. had
Comparison of the Barbados and
emerged as customary rules of law and as such were binding on all states, while others which the U.S. found objectionable were merely rules of treaty law and bound only those states which signed the convention.
Jamaica Agreements and the
Among the rules stated
in the l9B2
Convention which, undoubtedly, reflect customary international law are rules goveming jurisdiction within the territorial sea and internal waters and others relating to the treatment of vessels on thehigh seas. Although states may choose to derogate from these customary rules in theirrelations interse they arenot free to implement their agreements so as to erode the rights of third parties as may arise, for example, in the treatment of third state nationals or
Shiprider - Highlights
I.
Nature and Scope
In contrast with the
Shiprider
arrangement, both Barbados and Jamaica agreements are reciprocal in nature. The
significance
of this should not
be
minimized. The principle of reciprocity is a useful check in defining relationships between sovereign states and increasesin
value with the likelihood rhar rights conferred in the agreement may actually be acted upon by the weaker state. The majority ofthe rights conferredwithin U.S. waters and U.S. airspace in the Barbados and Jamaica agreements, admittedly, are not likely to be invoked by eitherBarbados CARICOM PERSPECTIVE JUNE 1997