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Joint Development Agreements in Areas of Overlapping Claims: Legal Regime

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Joint Development of Hydrocarbon Deposits in the Law of the Sea

Part of the book series: Hamburg Studies on Maritime Affairs ((HAMBURG,volume 30))

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Abstract

The delimitation of maritime boundaries is a complex and on many occasions, a lengthy procedure that may very well prove to be, depending on the circumstances, an unattainable task when States make overlapping maritime claims. Likewise, territorial disputes regarding islands or their importance for the purpose of delimitation may also contribute towards the difficulty in settling maritime boundaries.

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Notes

  1. 1.

    On the drafting of Articles 74 and 83 of UNCLOS see Tullio Scovazzi, “The evolution of international law of the sea: new issues, new challenges”, in: 286 Recueil des Cours de l’Académie de Droit International (2001), pp. 194–200; Tanja, supra note 60 in Chap. 3, pp. 92–116; Oude Elferink, supra note 60 in Chap. 3, pp. 27–33; Brown, supra note 60 in Chap. 3, pp. 331–350; Lagoni, supra note 70 in Chap. 2 pp. 349–354.

  2. 2.

    Report of the Chairman of negotiating group 7, Document A/CONF.62/L.47, UNCLOS III Off. Rec., V. XVIII, pp. 76–77, para. 5 [online: http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html (accessed on August 2013)].

  3. 3.

    Report by the Chairman of Negotiating Group 7 on the work of the Group at its 17th–27th meetings, NG7/24, 14 September 1978, Document A/CONF.62/RCNG/2, UNCLOS III Off. Rec. Volume X, pp. 170–172 [online: ibid].

  4. 4.

    Ibid.

  5. 5.

    Ibid; Report of the Chairman of the Negotiating Group 7, Document NG7/45, UNCLOS Off. Rec. Volume XII [online: ibid].

  6. 6.

    Supra note 87 in Chap. 3.

  7. 7.

    Article 40 of the UN Charter.

  8. 8.

    The early versions of Articles 74(3) and 83(3) of UNCLOS read: “Pending agreement or settlement, the States concerned shall make provisional arrangement, taking into account the provisions of paragraph 1.”, which in turn stated that “[t]he delimitation of the [EEZ/continental shelf] between adjacent or opposite States shall be effected by agreement in accordance with equitable principles, employing, where appropriate, the median or equidistance line, and taking into account of all relevant circumstances.” ICNT, Document A/CONF.62/WP.10, UNCLOS III Off. Rec. Volume VIII [online: http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html (accessed on August 2013)]. Also see Articles 62 and 71 of the RSNT (part II), Document A/CONF.62/WP.8/Rev.1/PartII, UNCLOS III Off. Rec. V [online: ibid].

  9. 9.

    Report by the Chairman of Negotiating Group 7 on the work of the Group at its 17th–27th meetings, NG7/24, 14 September 1978, Document A/CONF.62/RCNG/2, UNCLOS III Off. Rec. Volume X, p. 171 [online: ibid]. Also see Report of the Chairman of the negotiating group 7, Document NG7/45, UNCLOS Off. Rec. V. XII [online: ibid]; Reports of the Committees and Negotiating Groups on negotiations at the resumed seventh session contained in a single document both for the purposes of record and for the convenience of delegations, Document A/CONF.62/RCNG/1, UNCLOS III Off. Rec. Volume X., pp. 123–124 [online: ibid].

  10. 10.

    Guyana/Suriname, supra note 25 in Chap.  2 , para. 460.

  11. 11.

    Brown, supra note 26 in Chap. 3, p. 159. Edward Duncan Brown underlines that “it can certainly do no harm to encourage restraint and practical co-operation pending the establishment of boundaries.” On the drafting history of Article 83(3) of UNCLOS see UNCLOS: A Commentary, supra note 36 in Chap.  5 , pp. 948–985. It underlines the concern manifested by certain States regarding the possible interpretation of this provision as introducing a moratorium prohibiting economic activities in the disputed maritime area (p. 975).

  12. 12.

    Lagoni, supra note 70 in Chap. 2 p. 358.

  13. 13.

    Delimitation of the Maritime Boundary in the Gulf of Maine Area, supra note 60 in Chap.  3 , paras. 87, 89, 112–113.

  14. 14.

    Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J. Reports 1988, paras. 37–38; Interpretation of Peace Treaties, Advisory Opinion: I.C.J. Reports 1950, p. 74; Case concerning Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment of 2 December 1963: I.C.J. Reports 1963, p. 27; Case of the Mavrommatis Palestine Concessions, supra note 39 in Chap.  4 , pp. 11–12; Case concerning the Temple of Preah Vihear, supra note 103 in Chap.  3 , pp. 30–33; Aegean Sea Continental Shelf case, supra note 53 in Chap.  3 , paras. 84–85.

  15. 15.

    Case concerning the Temple of Preah Vihear, ibid, p. 16.

  16. 16.

    Rainer Lagoni, “Overlapping claims to continental shelf areas (preconditions and possible solutions)”, in: The Aegean issues: Problems and Prospects (Foreign Policy Institute: 1989), p. 149.

  17. 17.

    Legal status of Eastern Greenland, Judgment, 1933 P.C.I.J. Series A/B, No. 53, p. 46.

  18. 18.

    Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), paras. 174, 176–208; Territorial and Maritime Dispute (Nicaragua v. Colombia) 2012, supra note 53 in Chap.  3 , para. 80.

  19. 19.

    Territorial and Maritime Dispute (Nicaragua v. Colombia) 2012, ibid, paras. 80–84. Also see Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment, I.C.J. Reports 2002, para. 135.

  20. 20.

    Territorial and Maritime Dispute (Nicaragua v. Colombia) 2012, ibid, paras. 95, 102, 103. The Court eventually acknowledged that Colombia had sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla.

  21. 21.

    On China’s claims supporting the right to offshore development of oil and gas see Paul C. Yuan, “China’s jurisdiction over its offshore petroleum resources”; in: 12-2 Ocean Development and International Law (1982), pp. 191–208. Also see Choon-ho Park, “Joint development of mineral resources in disputed waters: the case of Japan and South Korea in the East China Sea”, in: The South China Sea. Hydrocarbon Potential & Possibilities of Joint Development, edited by Mark J. Valencia (Pergamon Press: Oxford, New York, Toronto, Sydney, Paris, Frankfurt, 1981), p. 1337.

  22. 22.

    Supra note 3 in Chap. 5.

  23. 23.

    Case Concerning Maritime Delimitation in the Black Sea, supra note 53 in Chap.  3 , para. 99. Also see Continental Shelf (Tunisia/Libya), supra note 10 in Chap.  3 , para. 75.

  24. 24.

    Francisco Orrego Vicuña, “Regional cooperation in non-living resources: joint management zones”, in: Ocean Governance: Sustainable Development of the Seas, edited by Peter Bautista Payoyo (United Nations University Press: Tokyo, New York, Paris, 1994), pp. 172–174.

  25. 25.

    North Sea Continental Shelf cases, supra note 46 in Chap.  3 , paras. 39–43; Aegean Sea Continental Shelf case, supra note 53 in Chap.  3 , para. 86; Continental Shelf (Tunisia/Libya), supra note 10 in Chap.  3 , para. 48; Continental Shelf (Libya/Malta), supra note 60 in Chap.  3 , para. 49.

  26. 26.

    North Sea Continental Shelf cases, ibid, para. 96; Aegean Sea Continental Shelf case, ibid, para. 86; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, para. 185. On this last case see Barbara Kwiatkowska, “The Qatar v. Bahrain maritime delimitation and territorial questions case”, in: 33–34 Ocean Development and International Law Journal (2002), pp. 227–262; Ibid, “The Qatar v. Bahrain maritime delimitation and territorial questions case”, in: 3–6 Maritime Boundaries (2003), pp. 1–44; Yoshifumi Tanaka, “Reflections on maritime delimitation in the Qatar/Bahrain case”, in: 52 International and Comparative Law Quarterly (January 2003), pp. 53–80; Maurice Mendelson, “The curious case of Qatar v. Bahrain in the International Court of Justice”, in: 72 British Yearbook of International Law (2001), pp. 183–211.

  27. 27.

    North Sea Continental Shelf cases, supra note 46 in Chap.  3 , paras. 43, 96; Continental Shelf (Tunisia/Libya), supra note 10 in Chap.  3 , paras. 68, 70, 73, 75; Continental Shelf (Libya/Malta), supra note 60 in Chap.  3 , paras. 61–62; Case Concerning Maritime Delimitation in the Black Sea, supra note 53 in Chap.  3 , paras. 77, 99.

  28. 28.

    Ian Townsend-Gault and William G. Stormont, “Offshore petroleum joint development arrangements: functional instrument? Compromise? Obligation?”, in: The Peaceful Management of Transboundary Resources, edited by Gerald H. Blake, William J. Hildesley, Martin A. Pratt, Rebecca J. Ridley and Clive H. Schofield (Graham and Trotman/Martinus Nijhoff: London, Dordrecht, Boston, 1995), p. 58.

  29. 29.

    Cameron, supra note 36 in Chap. 4, pp. 565–567. Also see Ian Townsend-Gault, “Petroleum development offshore: legal and contractual issues”, in: Petroleum Investment Policies in Developing Countries, edited by Nicky Beredjick and Thomas Wälde (Graham and Trotman: London, 1988), p. 145; Lagoni, supra note 63 in Chap. 2, p. 243.

  30. 30.

    Guyana/Suriname, supra note 25 in Chap.  2 , para. 461.

  31. 31.

    Idem, paras. 471–486, 488.

  32. 32.

    Idem, para. 477.

  33. 33.

    Idem, paras. 466–467, 480–481.

  34. 34.

    In this respect Zou Keyuan, concluding that “joint development is a most feasible mechanism to shelve disputes and pave the way for cooperation pending settlement of territorial and/or maritime disputes over certain sea area die to overlapping claims”, identified the following characteristics included in its concept of joint development: “1. It is an arrangement between two countries; 2. It is usually concerned with an overlapping maritime boundary area; 3. It can be used as a provisional arrangement pending the settlement of the boundary delimitation disputes between the countries concerned; 4. It is designed to jointly develop the mineral resources in the disputed area or in a defined area shared by two countries.” Zou Keyuan, “A new model of joint development for the South China Sea”, in: Recent Developments in the Law of the Sean and China, edited by Myron H. Nordquist, John Norton Moore and Kuen-chen Fu (Martinus Nijhoff Publishers: Leiden, Boston, 2006), p. 157; Ibid, supra note 66 in Chap. 2, p. 155.

  35. 35.

    “Nevertheless, if the interested countries have a will to set aside the formidable issue of delimitation for a while in favour of prospective economic profits to accrue from a provisional compromise settlement, they have a chance to devise a joint development scheme. It is also possible that they may defuse their tense relations by such a provisional measure for at least a certain period of time” Miyoshi, supra note 2 in Chap. 4, pp. 3, 41. Also see Masahiro Miyoshi, “The basic concept of joint development of hydrocarbon resources on the continental shelf”, in: 3-1 International Journal of Estuarine and Costal Law (February 1988), p. 5.

  36. 36.

    Fisheries Jurisdiction case, supra note 40 in Chap.  3 , paras. 37, 41.

  37. 37.

    Alexandros Yannis, “The concept of suspended sovereignty in International Law and its implications in international politics”, in: 13-5 European Journal of International Law (2002), pp. 1038–1052; Jonathan I. Charney, “International maritime boundaries for the continental shelf: the relevance of natural prolongation”, in: Liber Amicorum Judge Shigeru Oda, vol. 2, edited by Nisuke Ando, Edward McWhinney and Rüdiger Wolfrum (Kluwer Law International: The Hague, London, New York, 2002), pp. 1028–1029.

  38. 38.

    On provisional measures under UNCLOS see Natalie Klein, “Provisional measures and provisional arrangements in maritime boundary disputes”, in: 21 International Journal of Marine and Coastal Law (2006), pp. 444–449, 460.

  39. 39.

    Supra note 79 in Chap. 3.

  40. 40.

    Article 77 (2) in fine, (3) of UNCLOS.

  41. 41.

    Articles 77(2), (4) and 81 of UNCLOS.

  42. 42.

    Ibid.

  43. 43.

    Articles 58(1), 78 and 79 of UNCLOS.

  44. 44.

    Report of the Chairman of the Negotiating Group 7, Document NG7/45, UNCLOS Off. Rec. Volume XII [online: http://untreaty.un.org/cod/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html (accessed on August 2013)].

  45. 45.

    Article 298(1) lit. (a) of UNCLOS.

  46. 46.

    Article 300 of UNCLOS.

  47. 47.

    The text of Article 290(1) of UNCLOS reads: “If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, Sect. 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.”

  48. 48.

    Klein, supra note 38, pp. 452–453. Also see Igor V. Karaman, Dispute Resolution in the Law of the Sea (Martinus Nijhoff Publishers: Leiden, 2012), pp. 198–199.

  49. 49.

    Mark J. Valencia, “Taming troubled waters: joint development of oil and mineral resources in overlapping claim areas”, in: 23-3 San Diego Law Review Association (May–June 1986), p. 670; M.C.W. Pinto, “Maritime boundary issues and their resolution an overview”, in: Liber Amicorum Judge Shigeru Oda, vol. 2, edited by Nisuke Ando, Edward McWhinney and Rüdiger Wolfrum (Kluwer Law International: The Hague, London, New York, 2002), pp. 1115–1142; Fox (et al.), supra note 111 in Chap. 3, p. 315; Lagoni, supra note 46 in Chap. 2, p. 281; Johnston/Valencia, supra note 38 in Chap. 4, p. 37, note 41.

  50. 50.

    The text of Article 121(1) of UNCLOS reads: “An island is a naturally formed area of land, surrounded by water, which is above water at high tide.”

  51. 51.

    See Myron H. Nordquist, “Textual interpretation of article 121 in the UN Convention on the Law of the Sea”, in: Coexistence, Cooperation and Solidarity. Liber Amicorum Rüdiger Wolfrum, vol. 1, edited by Holger P. Hestermeyer, Doris König, Nele Matz-Lück, Volker Röben, Anja Seibert-Fohr, Peter-Tobias Stoll and Silja Vöneky (Martinus Nijhoff Publishers: Leiden, Boston, 2012), pp. 991–1036; Clive Schofield, “The trouble with islands: the definition and role of islands and rocks in maritime delimitation”, in: Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, edited by Seoung-Yong Hong and Jon Van Dyke (Martinus Nijhoff Publishers: 2009), pp. 21–37; Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (Martinus Nijhoff Publishers: Leiden, Boston, 2005), pp. 57–89; Barbara Kwiatkowska and Alfred H.A. Soons, “Entitlement to maritime areas of rocks which cannot sustain human habitation or economic life of their own”, in: 21 Netherlands Yearbook of International Law (1990), pp. 139–181.

  52. 52.

    In the case between Qatar and Bahrain the ICJ did not specifically refer to Article 121(3) of UNCLOS but did observed that the entitlement to maritime rights accorded to an island in paragraph 2 is expressly limited by reference to paragraph 3. In the case between Nicaragua and Colombia, the Court considered that the legal regime of islands was an indivisible regime and had the status of customary international law. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, supra note 26 in Chap.  6 , paras. 167, 185 and 195; Territorial and Maritime Dispute (Nicaragua v. Colombia) 2012, supra note 53 in Chap.  3 , para. 139.

  53. 53.

    North Sea Continental Shelf cases, supra note 46 in Chap.  3 , para. 57; Continental Shelf (Libya/Malta), supra note 60 in Chap.  3 , paras. 53–54, 64–73; Maritime Delimitation and Territorial Questions between Qatar and Bahrain, supra note 26 in Chap.  6 , paras, 185, 219; Case Concerning Maritime Delimitation in the Black Sea, supra note 53 in Chap.  3 , paras. 102, 166–168, 179–188. Also see Maritime Delimitation in the Area between Greenland and Jan Mayen, supra note 33 in Chap.  4 , paras. 68, 69, and Separate Opinion of Judge Schwebel, para. 128; Delimitation of the Maritime Boundary in the Gulf of Maine Area, supra note 60 in Chap.  3 , para. 157; Land and Maritime Boundary between Cameroon and Nigeria, supra note 83 in Chap.  3 , para. 301.

  54. 54.

    Continental Shelf (Tunisia/Libya), supra note 10 in Chap.  3 , paras. 129–131. Also see Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic on the Delimitation of the Continental Shelf, Decision of the Court of Arbitration dated 30 June 1977, reproduced in: 54 International Law Reports 1979, p. 6, paras. 194–203. On the relevance given to islands for the purpose of maritime delimitation see Derek W. Bowett, “The arbitration between the United Kingdom and France concerning the continental shelf boundary in the English Channel and South-Western approaches”, in: 49 British Yearbook of International Law (1978), pp. 1–29. Also see Robert Beckman and Clive Schofield, “Moving beyond disputes over island sovereignty: ICJ decision sets stage for maritime boundary delimitation in the Singapore Strait”, in: 40 Ocean Development and International Law (2009), pp. 1–35; Clive Schofield and Dustin Kuan-Hsiung Wang, “The regime of islands under UNCLOS: implications for the South China Sea”, in: Maritime Energy Resources in Asia: Legal Regimes and Cooperation, edited by Clive Schofield (The National Bureau of Asian Research: Seattle, 2012), pp. 61–77.

  55. 55.

    The text of Article 121(2) and (3) of UNCLOS reads: “2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” On the interpretation of this provision, see Yann-Huei Song, "Article 121(3) of the Law of the Sea Convention and the disputed offshore islands in East Asia: a tribute to Judge Choon-Ho Park", in: Governing Ocean Resources. New Challenges and Emerging Regimes. A Tribute to Judge Choon-Ho Park, edited by Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee and Jun-Hyun Paik (Martinus Nijhoff Publishers: Leiden, Boston, 2013), pp. 61–97.

  56. 56.

    Arbitration between the United Kingdom of Great Britain and Northern Ireland and the French Republic, supra note 54, para. 184.

  57. 57.

    Case Concerning Maritime Delimitation in the Black Sea, supra note 53 in Chap.  3 , paras. 180, 184, 187. Also see Territorial and Maritime Dispute (Nicaragua v. Colombia) 2012, supra note 53 in Chap.  3 , para. 180; Aegean Sea Continental Shelf case, supra note 53 in Chap.  3 , para. 83; Maritime Delimitation and Territorial Questions between Qatar and Bahrain, supra note 26 in Chap.  6 , paras. 191–195, 201, 219.

  58. 58.

    Bangladesh/Myanmar, supra note 71 in Chap. 3, para. 169; Territorial and Maritime Dispute (Nicaragua v. Colombia) 2012, supra note 53 in Chap.  3 , para. 178.

  59. 59.

    Agreement between Iceland and Norway concerning Fishery and Continental Shelf questions between Iceland and Jan Mayen, done on 28 May 1980 and entered into force on 13 June 1980; Report and Recommendations to the Governments of Iceland and Norway of the Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen, done on June 1981 [online: http://untreaty.un.org/cod/riaa/cases/vol_XXVII/1-34.pdf (accessed on August 2013)], reproduced in: 20 International Legal Materials (July 1981), pp. 797–842. See International Maritime Boundaries, vol. 2, supra note 125 in Chap.  3 , pp. 1755–1760. Edward Duncan Brown underlines the fact that the Commission recommended a joint development area instead of a line of delimitation, which was in fact the Commission´s mandate, concluding that “[i]t would be a mistake to treat this case as being akin to a delimitation case decided judicially in accordance with international law” and that “it would be more accurate to regard the whole settlement process a seamless web which started in direct diplomatic negotiations, continued through conciliation process in which nominees of the parties were joined by an independent chairman, and ended in a bilateral treaty based on the fruits of the conciliation process.” Adding, that “this case offers a good example of the flexibility of the conciliation process, where a commission is free to draw upon approaches and methods sanctioned by law but equally free to consider extra-legal methods where a recommendation ex aequo et bono might lead to what the parties will consider to be an acceptable equitable solution.” Brown, supra note 26 in Chap. 3, pp. 177–179.

  60. 60.

    Agreement on the Continental Shelf between Iceland and Jan Mayen, done at Oslo on 22 October 1981 and entered into force on 2 June 1982, reproduced in: International Maritime Boundaries, vol. 2, supra note 125 in Chap.  3 , pp. 1762–1765. This Agreement favoured Iceland due to the economic differences between the latter and Norway at the time of the execution of the agreement and also considering Norway’s advantage regarding know-how of offshore production acquired with the production of oil and gas in the North Sea. The Agreement established that the costs of surveys would be solely borne by Norway and that the implementation of the gathered data towards the creation of the joint development area would be carried out by Norwegian authorities. In the event that any of the information collected during the aforementioned surveys would have economic value, the benefits deriving from such interest would be shared by the states in the agreed proportion. See Willy Østreng, “Reaching agreement on international exploitation of ocean mineral resources (with special reference to the joint development area between Jan Mayen and Iceland)”, in: Geology and Hydrocarbon Potential of the South China Sea and Possibilities of Joint Development, edited by Mark J. Valencia (Pergamon Press: New York, Oxford, Toronto, Sydney, Paris, Frankfurt, 1985), pp. 555–571; Elliot L. Richardson, “Jan Mayen in perspective”, in: 82 American Journal of International Law (1988), pp. 443–458.

  61. 61.

    On the agreement see Miyoshi, supra note 2 in Chap. 4, pp. 34–35.

  62. 62.

    Memorandum of Understanding between Iran and Sharjah concerning the island of Abu Musa, done on 24 November 1971, reproduced in: Ali A. El-Hakim, The Middle Eastern States and the Law of the Sea (Manchester University Press: Manchester, 1979), pp. 208–211. On the memorandum see Miyoshi, ibid, pp. 10–12.

  63. 63.

    Iran occupied a group of islands in the Persian Gulf in 1971, including the island of Abu Musa which was also partially occupied by the emirate Sharjah. This situation resulted in both countries claiming sovereignty on the adjacent maritime areas of Abu Musa. The Iranian law on exploration and exploitation of the continental shelf, dated 19 May 1949, declared Iranian jurisdiction over all natural resources of the seabed and subsoil of the continental shelf of the Persian Gulf and the Gulf of Oman. See Kamyar Mehdiyoun, “Ownership of oil and gas resources in the Caspian Sea” in 94-1 American Journal of International Law (January 2000), p. 181.

  64. 64.

    On the conflict between Argentina and the United Kingdom regarding the Falkland Islands (Malvinas) and the precedents and prospects for joint development see Vasco Becker-Weinberg, “Recalling the Falkland Islands (Malvinas) Sovereignty Formula”, in: 27 Ocean Yearbook (2013), pp. 411–433.

  65. 65.

    Treaty Concerning the Joint Management of the Continental Shelf in the Mascarene Plateau Region between the Government of the Republic of Seychelles and the Government of the Republic of Mauritius, done at Vacoas on 13 March 2012 and entered into force on 18 June 2012, reg. n. 49783 U.N.T.S., 11 July 2012 [online: http://www.mfa.gov.sc/uploads/files/filepath_45.pdf (accessed on August 2013)].

  66. 66.

    Treaty Concerning the Joint Exercise of Sovereign Rights Over the Continental Shelf in the Mascarene Plateau Region, done at Vacoas on 13 March 2012 and entered into force on 18 June 2012, reg. n. 49782 U.N.TS., 11 July 2012 [online: http://www.mfa.gov.sc/uploads/files/filepath_44.pdf (accessed on August 2013)].

  67. 67.

    On 1 December 2008, Mauritius and the Seychelles jointly submitted to the CLCS information on the limits of their continental shelf beyond 200 nm see Receipt of the Joint Submission made by the Republic of Mauritius and the Republic of Seychelles to the Commission on the Limits of the Continental Shelf, 12 December 2008, UN Doc. CLCS.14.2008.LOS (Continental Shelf Notification) [online: http://www.un.org/depts/los/clcs_new/submissions_files/musc08/clcs14_2008e.pdf (accessed on August 2013)]. The original joint submission was revised on 12 March 2010 concerning the Mascarene Plateau region [online: http://www.un.org/depts/los/clcs_new/submissions_files/musc08/SMS-ES-DOC_Rev.pdf (accessed on July 2013)]. The revised submission only represented a partial submission in respect of a portion of the extended continental shelf claimed by each of the two States. The submissions for the other portions will be made by each of the two States individually. The CLCS on 30 March 2011 adopted the recommendations on the limits of the continental shelf and recognized the legal entitlement of Mauritius and the Seychelles to delineate the outer limits of the continental shelf beyond their 200 nm limits in the Mascarene Plateau region, thus recognizing that these two countries had an additional 396,000 km2 of the Indian Ocean see Summary of the Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Joint Submission made by Mauritius and Seychelles concerning the Mascarene Plateau region on 1 December 2008, p. 5, para. 19 and p. 21, paras. 59 to 62 [online: http://www.un.org/depts/los/clcs_new/submissions_files/musc08/sms08_summary_recommendations.pdf (accessed on July 2013)].

  68. 68.

    See Statement by the Ministry of Foreign Affairs of the Seychelles [online: http://www.mfa.gov.sc/static.php?content_id=36&news_id=278 (accessed on July 2013)].

  69. 69.

    Bangladesh/Myanmar, supra note 71 in Chap. 3, para. 472.

  70. 70.

    Ibid, para. 373.

  71. 71.

    Ibid, para. 376.

  72. 72.

    Ibid, para. 379.

  73. 73.

    Ibid, para. 392.

  74. 74.

    Ibid, para. 393.

  75. 75.

    See Catherine Redgwell, “International Environmental Law”, in: International Law, edited by Maclom D. Evans (Oxford University Press: Oxford, 2010), pp. 687–721; Elisa Morgera, Corporate Accountability in International Environmental Law (Oxford University Press: Oxford, 2009), pp. 11–18; Peter H. Sand, “The evolution of international environmental law”, in: The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Brunnée and Ellen Hey (Oxford University Press: Oxford, 2007), pp. 30–43; Malgosia Fitzmaurice, “International Protection of the Environment”, in: 293 Recueil de Cours de l’Académie de Droit Internationale de La Haye (2001), pp. 22–47; Hugo Caminos, “Enforcement jurisdiction under the United Nations Convention on the Law of the Sea. An overview”, in: Coexistence, Cooperation and Solidarity. Liber Amicorum Rüdiger Wolfrum, vol. 1, edited by Holger P. Hestermeyer, Doris König, Nele Matz-Lück, Volker Röben, Anja Seibert-Fohr, Peter-Tobias Stoll and Silja Vöneky (Martinus Nijhoff Publishers: Leiden, Boston, 2012), pp. 737–776; David Ong, “The progressive integration of environmental protection within offshore joint development agreements”, in: Exploitation of Natural Resources in the 21st Century, edited by Malgosia Fitzmaurice and Milena Szuniewicz (Kluwer Law International: The Hague, London, New York, 2003), pp. 113–141; Tullio Treves, “Codification du droit international et pratique des États dans le droit de la mer”, in: 223 Recueil de Cours de l’Académie de Droit Internationale de La Haye (1990), pp. 171–176; Jon Van Dyke, “Giving teeth to the environmental obligations in the LOS Convention”, in: Oceans Management in the 21st Century: Institutional Frameworks and Responses, edited by Alex G. Oude Elferink and Donald R. Rothwell (Martinus Nijhoff Publishers: Leiden/Boston: 2004), pp. 167–186; Rüdiger Wolfrum, “Means of ensuring compliance with and enforcement of international environmental law”, in: 272 Recueil de Cours de L’Académie de Droit Internationale de La Haye (1998), pp. 9–154; Alexander Yankov, “The concept of protection and sustainable development in the marine environment”, in: 18 Ocean Yearbook (2004), pp. 267–283; Sandrine Maljean-Dubois and Lavanya Rajamani, La mise en oeuvre du droit international de l’environnement/Implementation of International Environmental Law (Martinus Nijhoff Publishers: Leiden, Boston, 2011), pp. 484–488; Sands, supra note 93 in Chap. 5, pp. 3–122, 391–458; Rothwell/Stephens, supra note 26 in Chap. 3, pp. 338–382; Churchill/Lowe, supra note 68 in Chap. 2, pp. 328–399; Tanaka, supra note 23 in Chap. 3, at 253–311; Brown, supra note 26 in Chap. 3, at 336–397.

  76. 76.

    See Articles 197–199, 204, 208(1), (2), (4) and (5), 211(1), 214, and 217(1) of UNCLOS. Also see The MOX Plant Case (Ireland v. United Kingdom), Request for provisional measures, I.T.L.O.S. No.10, 2001, para. 82; Case Concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, I.T.L.O.S. No.12, 2003, para. 92; Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Requests for Provisional Measures, Order, I.T.L.O.S. Nos. 3 and 4, 1999, para. 78.

  77. 77.

    Article 5(1) and (7) of the 1958 Convention on the Continental Shelf.

  78. 78.

    Articles 24 and 25 of the 1958 Convention on the High Seas.

  79. 79.

    Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Oxford University Press: Oxford, New York, 2009), p. 387; Pierre-Marie Dupuy, “Formation of customary international law and general principles”, in: The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Brunnée and Ellen Hey (Oxford University Press: Oxford, 2007), pp. 455–456. Other examples after the entry into force of UNCLOS include: the 1995 Fish Stocks Agreement and the reference made in its Preamble to Chap. 17 of Agenda 21, concerning the sustainable use and conservation of marine living resources of the high seas (see Sects. 17.44–17.69); the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1972, done at London on 7 November 1996; and the Convention on Biological Diversity.

  80. 80.

    Resolution (UNGA) n. 2995 (XXVII), 15 December 1972. Also see Article 74 of the UN Charter.

  81. 81.

    The Declaration was approved during the first global environment conference, the 1972 United Nations Conference on the Human Environment held in Stockholm see A/CONF.151/26 (Vol. I), Report of the United Nations Conference on the Human Environment, Stockholm, 5–16 June 1972 (United Nations publication, Sales No. E.73.II.A.14. and corrigendum), chap. I. Also see Resolution (UNESC) n. 1346 (XLV), 30 July 1968 and Resolution (UNGA) n. 2398 (XXIII), 3 December 1968, recommending and calling the United Nations to convene a Conference on the Human Environment; and Article 3 of the Charter of Economic Rights and Duties of States, adopted by the Resolution (UNGA) n. 3281 (XXIX), 12 December 1974.

  82. 82.

    Section I(7), (8), (12) of the Resolution (UNGA) n. 44/228, 22 December 1989. This Resolution decides to convene the 1992 United Nations Conference on Environment and Development. Also see Resolutions (UNGA) n. 1803 (XVII), 14 December 1962; n. 3201 (S-VI), 1 May 1974; n. 3362 (S-VII), 16 September 1975; n. 1514 (VX), 14 December 1960; n. 1515 (XV), 15 December 1960; and n. 626 (VII), 21 December 1952.

  83. 83.

    Chapter 17 of Agenda 21 (Protection of the Oceans, all kinds of Seas, Including Enclosed & Semi-enclosed Seas, & Coastal Areas & the Protection, Rational Use & Development of their Living Resources). Agenda 21 was adopted during the 1992 United Nations Conference on Environment and Development that took place in Rio de Janeiro, of which also resulted the Rio Declaration on Environment and Development (A/CONF.151/26, Vol. I), the Statement of Forest Principles, the United Nations Framework Convention on Climate Change (A/CONF.151/26, Vol. III) and the Convention on Biological Diversity. In 1997 the United Nations adopted the Programme for the Further Implementation of Agenda 21, (UNGA Doc. A/RES/S-19/2, 19 September 1997).

  84. 84.

    Agenda 21 was followed by the Johannesburg Declaration on Sustainable Development adopted at the 2002 World Summit on Sustainable Development and the Plan of Implementation of the World Summit on Sustainable Development, which recognized that ensuring the sustainable development of the oceans requires an effective global and regional coordination and cooperation, acknowledging in this respect the importance of States ratifying or acceding and implementing UNCLOS and also the relevance of Chap. 17 of Agenda 21 for achieving sustainable development. See Report of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August–4 September 2002 (United Nations publication, Sales No. E.03.II.A1 and corrigendum), chap. I, resolution 1, annex. Also see Resolution (UNGA) n. 55/1999, 20 December 2000.

  85. 85.

    Article 87(1) lit. (d) of UNCLOS.

  86. 86.

    S.S. Lotus (France v. Turkey), 1927 P.C.I.J., Series A, No. 10, pp. 18–19: “Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.” See Award between the United States and the United Kingdom relating to the rights of jurisdiction of United States in the Bering’s sea and the preservation of fur seals, decision of 15 August 1893, reproduced in: United Nations Reports of International Arbitral Awards, vol. XXVIII, pp. 263–276. Also see Hossein Esmaeili, The Legal Regime of Offshore Oil Rigs in International Law (Dartmouth/Ashgate: Aldershot, Burlington USA, Singapore, Sydney, 2001), p. 88.

  87. 87.

    Case concerning Right of Passage over Indian Territory (Merits), Judgement of 12 April 1960, I.C.J. Reports 1960, p. 11: “Whereas the international legal system is essentially based upon mutual respect of sovereignties; Whereas, in order to justify the discretionary power which the Union of India claims to possess in respect of Portuguese transit, it would be necessary to accept that, while recognizing the sovereignty of Portugal over the enclaves, it tacitly reserved a right at its will to render impossible the exercise of that sovereignty; Whereas such a reservation cannot logically be admitted and would be contrary to the elementary requirements of good faith.”

  88. 88.

    The Island of Palmas Case (or Miangas) (US v. Netherlands), Award of the Tribunal, P.C.A., 4 April 1928, para. 839: “Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its negative side, i.e. to excluding the activities of other States; for it serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian.”

  89. 89.

    Article 194(2) of UNCLOS.

  90. 90.

    Trail Smelter Case (United States, Canada) 16 April 1938 and 11 March 1941, reproduced in: United Nations Reports of International Arbitral Awards, vol. III, 1965. Also see Corfu Channel case, Judgment of April 9th, 1949, I.C.J. Reports 1949, p. 22; Case concerning Right of Passage, supra note 87, pp. 19, 43.

  91. 91.

    Corfu Channel case, ibid, p. 18.

  92. 92.

    Article 221 of UNCLOS extends the jurisdiction of coastal States regarding the adoption of enforcement measures beyond the territorial sea to protect their coastline from pollution or the threat of pollution resulting from maritime casualties.

  93. 93.

    Articles 240 lit. (d) and 263(1), (3) of UNCLOS.

  94. 94.

    Article 194(2) and (4) of UNCLOS. Also see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para. 29.

  95. 95.

    The MOX Plant Case, supra 76, paras, 82, 84, 89(1). Also see Lac Lac Lanoux Arbitration, supra note 39 in Chap.  4 , p. 133; Corfu Channel case, supra note 90, p. 18.

  96. 96.

    Article 194(2), (3)c) and (4) of UNCLOS. Also see Gabčíkovo-Nagymaros Project, supra note 40 in Chap.  4 , para. 80.

  97. 97.

    Gabčíkovo-Nagymaros Project, supra note 40 in Chap.  4 , para. 152: “It is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it.” Phosphates in Morocco (Italy v. Fr.), 1938 P.C.I.J., Series A/B, No. 74, p. 28: “That being so, it is in this decision that we should look for the violation of international law—a definitive act which would, by itself, directly involve international responsibility. This act being attributable to the State and described as contrary to the treaty right of another State, international responsibility would be established immediately as between the two States.” Dickson Car Wheel Co. Case (1931) (US v. Mexico), reproduced in: United Nations Reports of International Arbitral Awards, vol. IV, p. 678: “Under international law, apart from any convention, in order that a State may incur responsibility it is necessary that an unlawful international act be imputed to it, that is, that there exist a violation of a duty imposed by an international juridical standard. The above cited Convention requires further the existence of damage suffered by a national of the claimant Government. It is indispensable therefore, in order that a claim may prosper before this Commission, that two elements coexist: an unlawful international act and a loss or injury suffered by a national of the claimant Government.” Also see Yearbook of the International Law Commission, Second Report on State Responsibility, by Mr. Roberto Ago, Special Rapporteur, The Origin of International Responsibility, UN Doc. A/CN.4/233 (1970), p. 187.

  98. 98.

    Request for Advisory Opinion submitted to the Seabed Disputes Chamber, supra note 77 in Chap.  2 , paras. 178, 179, 210.

  99. 99.

    Ibid. paras. 179, 193–197.

  100. 100.

    The Factory at Chorzów (Claim for Indemnity), The Merits, 1928 P.C.I.J., Series A, No. 17, para. 48.

  101. 101.

    Morgera, supra note 75, pp. 25–24, 44–46.

  102. 102.

    Article 30 of the Charter of Economic Rights and Duties of States, supra note 81. The ICJ recognized “that the environment is not an abstraction but represent the living space, the quality of life and the very health of human beings, including generations unborn.” See Legality of the Threat or Use of Nuclear Weapons, supra note 94, para. 29. Also see Gabčíkovo-Nagymaros Project, supra note 40 in Chap.  4 , para 140. In this case, the ICJ stated that “[t]he Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. Throughout the ages, mankind has, for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effects upon the environment. Owning to new scientific insights and to a growing awareness of the risks for mankind—for present and future generations—of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set fort in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.”

  103. 103.

    Article 87(2) of UNCLOS. See Request for an Examination of the Situation in Accordance with paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, para. 64.

  104. 104.

    South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, para. 88: “For these reasons the Court, bearing in mind that the rights of the Applicants must be determined by reference to the character of the system said to give rise to them, considers that the "necessity" argument falls to the ground for lack of verisimilitude in the context of the economy and philosophy of that system. Looked at in another way moreover, the argument amounts to a plea that the Court should allow the equivalent of an "actio popularis", or right resident in any member of a community to take legal action in vindication of a public interest. But although a right of this kind may be known to certain municipal systems of law, it is not known to international law as it stands at present, nor is the Court able to regard it as imported by the "general principles of law" referred to in Article 38, paragraph 1 (c), of its Statute.” Ibid, Dissenting Opinion of Judge Jessup, pp. 387–388: “I must repeat, as indicated above, that the municipal law analogy which I have been discussing is far from perfect and the differences in the international law situation must be clearly noted. I agree that there is no generally established actio popularis in international law. But international law has accepted and established situations in which States are given a right of action without any showing of individual prejudice or individual substantive interest as distinguished from the general interest.” Also see South West Africa Cases, supra note 39 in Chap.  4 , Separate Opinion of Judge Jessup, p. 425; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Arechaga and Sir Humphrey Waldock, pp. 369–370, 521–522; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, Dissenting Opinion of Judge de Castro, pp. 387–390. On this subject see the comments to Article 48 of the 2001 ILC Draft Articles on Responsibility of States for International Wrongful Acts provides that “[a]ny State other than an injured State is entitled to invoke the responsibility of another State” if “the obligation breached is owed to the international community as a whole” and thus “may claim from the responsible State: cessation of the internationally wrongful act, and assurance and guarantees of non-repetition (…) and performance of the obligation of reparation (…) in the interest of the injured State or of the beneficiaries of the obligation breached.” Several of these Articles have been considered to reflect customary international law see Request for Advisory Opinion submitted to the Seabed Disputes Chamber, supra note 77 in Chap.  2 , para. 169.

  105. 105.

    See Malgosia Fitzmaurice, “International responsibility and liability”, in: The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Brunnée and Ellen Hey (Oxford University Press: Oxford, 2007), pp. 1020–1022; Sands, supra note 93 in Chap. 5, pp. 184–191. For an interpretation of Article 288(1) of UNCLOS allowing a State to pursue a case based on community interests see Rüdiger Wolfrum, “Enforcing community interests through international dispute settlement: reality or utopia”, in: From Bilateralism to Community Interest. Essays in Honour of Judge Bruno Simma, edited by Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine Von Schorlemer and Christoph Vedder (Oxford University Press: Oxford, 2011), pp. 1132–1145; Also see Bruno Simma, “From bilateralism to community interest in international law”, in: 250 Recueil de cours de l’Académie de Droit Internationale de La Haye (1994), pp. 217–384. On this topic also see Katrien Beekman, “Transboundary damage to the environment per se: remedial measures and standing”, in: Revue Belge de Droit International (1996-2), pp. 480–483.

  106. 106.

    Anderson, supra note 71 in Chap. 2, pp. 480–481.

  107. 107.

    Johnston/Valencia, supra note 38 in Chap. 4, p. 36.

  108. 108.

    Article 24 of the Agreement between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, done at Seoul on 30 January 1974 and entered into force on 22 June 1978, published at 1225 U.N.T.S. 114 [online: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/jap-kor1974south.pdf (accessed on August 2013)], reproduced in: International Maritime Boundaries, vol. 1, supra note 42 in Chap. 2, pp. 1063–1089. See Masahiro Miyoshi, “The Japan-South Korea agreement on joint development of the continental shelf”, in: Geology and Hydrocarbon of the South China Sea and Possibilities of Joint Development, Proceedings of the Second EAPI/CCOP Workshop. East-West Center, Honolulu, Hawaii, 22–26 August 1983, edited by Mark J. Valencia (Pergamon Press: New York, Oxford, Toronto, Sydney, Paris, Frankfurt, 1985), p. 548; Ibid, “Is joint development possible in the South China Sea?”, in: Sustainable Development and Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21, edited by Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman (The Law of the Sea Institute/University of Hawaii: 1983), pp. 615–616; Ibid, “The Japan/South Korea joint development agreement 1974”, in: Joint Development, vol. 2, supra note 70 in Chap. 2, pp. 89–97; Choon-ho Park, East Asia and the Law of the Sea (Seoul National University Press: Seoul, 1988), pp. 132–133; Ibid, “China and maritime boundary issue”, in: 22 German Yearbook of International Law (1979), pp. 130–135.

  109. 109.

    On the joint commission created by the Joint Declaration on Cooperation over Offshore Activities in the Southwest Atlantic, done on 27 September 1995 [online: http://www.falklands.info/history/95agree.html (accessed on August 2013)] see Becker-Weinberg, supra note 64, pp. 416–417.

  110. 110.

    On this agreement see Hans-Dietrich Treviranus, “Der deutsch-niederländische Ems-Dollart-Vertrag”, in: 23 Zeitschrift für Ausländisches Offentliches Recht und Völkerrecht (1963), pp. 536–553.

  111. 111.

    Mochtar Kusuma-Atmadja, “Joint development of oil and as by neighboring countries”, in: Sustainable Development and Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21, edited by Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard Oxman (The Law of the Sea Institute, University of Hawaii: 1983), p. 592.

  112. 112.

    Kim, supra note 38 in Chap. 4, p. 149.

  113. 113.

    Articles 5 to 11 of the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, done on 11 December 1989 and entered into force on 9 February 1991, reproduced in: ibid, 1256–1328 [Timor Gap Treaty].

  114. 114.

    Article 6 of the Exchange of Notes Constituting an Agreement between the Government of Australia and the United Nations Transitional Administration in East Timor (UNTAET) concerning the Continued Operation of the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia of 11 December 1989, done on 10 February 2000, [online: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-TLS2002EX.PDF (accessed on August 2013)] [Timor Sea Treaty].

  115. 115.

    Articles 6 to 14 of the Agreement Nigeria/Sao Tome and Principe, supra note 21 in Chap. 4.

  116. 116.

    Article 4 of the Management and Cooperation Agreement between the Government of the Republic of Senegal and the Government of the Republic of Guinea-Bissau, done at Dakar on 14 October 1993 and entered into force 21 December 1995, published at 1903 U.N.T.S. (1996) 34–63 [online: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/SEN-GNB1993MC.PDF (accessed on August 2013)]; Protocol of Agreement Relating to the Organization and Operation of the Agency for Management and Cooperation between the Republic of Guinea-Bissau and the Republic of Senegal instituted by the agreement of 14 October 1993, done at Bissau on 12 June 1995 and entered into force 21 December 1995. The Agreement and Protocol are reproduced in: International Maritime Boundaries, vol. 3, supra note 5 in Chap.  5 , pp. 2258–2278.

  117. 117.

    Article 4 of the Agreement Mauritius/Seychelles, supra note 66.

  118. 118.

    Article 4 lit. (e), idem.

  119. 119.

    Kamal Hossain, “Choice of petroleum development regime on joint development of offshore oil and gas”, in: Joint Development, vol. 2, supra note 70 in Chap. 2, pp. 72–76.

  120. 120.

    Memorandum of Understanding for the Common Petroleum Development of the Lower Congo Basin between the Democratic Republic of Congo and the Republic of Angola, done on 18 June 2003, published in the Diário da República de Angola, 1a S., n. 61, 30 July 2004 (in Portuguese), [online: http://www.minpet.gov.ao/VerLegislacao.aspx?id=276 (accessed on August 2013)]. See Resolutions of the Angolan Government n. 3/08 of 21 January 2008, published in the Diário da República de Angola, 1a S., n. 7, 21 January 2008 (in Portuguese); n. 8/08 of 21 January 2008, published in the Diário da República de Angola, 1a S., n. 11, 21 January 2008 (in Portuguese); and n. 33/08, of 23 April 2008 published in the Diário da República de Angola, 1a S., n. 67, 23 April 2008 (in Portuguese).

  121. 121.

    Ibid.

  122. 122.

    See Fox (et al.), supra note 111 in Chap. 3, pp. 214–217; Ian Townsend-Gault, “The impact of a joint development zone on previously granted interests”, in: Joint Development, vol. 2, supra note 70 in Chap. 2, pp. 174–184.

  123. 123.

    Articles 17 and 29(2) of the Universal Declaration of Human Rights, done at Paris on 10 December 1948, Resolution (UNGA) n. 217 A (III), 10 December 1948, United Nations Doc A/810 at 71 (1948). [online: http://www.un.org/en/documents/udhr/ (accessed on August 2013)]. Resolutions (UNGA) 42/114 and 42/115, 7 December 1987; 43/123, 8 December 1988; and 43/124 and 45/98, 14 December 1990. Also see Resolution (UNGA) 523 (VI) 12 January, and 629 (VII), 21 December, both of 1952, and Resolution (UNGA) 1803 (XVII), 14 December 1962. On the right to compensation see Andrea Giardina, “Nationalisation et indemnisation en Droit International”, in: Le Droit Pétrolier et la Souveraineté des Pays Producteurs (Librairie Générale de Droit et de Jurisprudence: Paris, 1973), pp. 39–49.

  124. 124.

    International Law Association, supra note 15 in Chap. 2, p. 17.

  125. 125.

    Lagoni, supra note 70 in Chap. 2 pp. 357–358.

  126. 126.

    Saudi Arabia v. Arabian American Oil Company (Armaco), Arbitral Award, 27 International Law Reports (1963), pp. 166–167, 227.

  127. 127.

    Sapphire International Petroleums Ltd. v National Iranian Oil Company, Arbitral Award, 35 International Law Reports (1967), p. 184. Also see Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, para. 33: “When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them. These obligations, however, are neither absolute nor unqualified. In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of al1 States. In view of the importance of the rights involved, al1 States can be held to have a legal interest in their protection; they are obligations erga omnes.”

  128. 128.

    Ibid pp. 187–188.

  129. 129.

    See Ian Townsend-Gault, “Joint development of offshore mineral resources-progress and prospects for the future”, in: 12-3 Natural Resources Forum (1988), p. 282.

  130. 130.

    On Article 82 of UNCLOS see UNCLOS: A Commentary, supra note 36 in Chap.  5 , pp. 930–947. Also see International Law Association, Third Report of the International Committee on Legal Issues of the Outer Continental Shelf to the Biennial International Law Association Conference in Rio de Janeiro, Brazil, 17–21 August 2008, by David M. Ong (Seventy-Third Conference: Rio de Janeiro, 2008).

  131. 131.

    Article 82(3) of UNCLOS.

  132. 132.

    Article 56(1) lit. (b), (i) of UNCLOS.

  133. 133.

    Article 60(1) lit. (b) and (c), (2) of UNCLOS.

  134. 134.

    Article 73(1) of UNCLOS.

  135. 135.

    Article 60(3) of UNCLOS.

  136. 136.

    Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste relating to the Unitization of the Sunrise and Troubadour fields, done at Dili on 6 March 2003 [online: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-TLS2003UNI.PDF (accessed on August 2013). Also see Memorandum of Understanding between the Government of the Democratic Republic of East Timor and the Government of Australia Concerning an International Unitization Agreement for the Greater Sunrise field, done at Dili on 20 May 2002 [online: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS-TLS2002SUN.PDF (accessed on August 2013)]; Memorandum of Understanding between the Government of the Democratic Republic of Timor-Leste and the Government of Australia relating to the Exploitation of the Sunrise and Troubadour Petroleum Fields in the Timor Sea, done on 6 March 2003 [online: http://www.anp-tl.org/webs/anptlweb.nsf/vwAll/Resource-SunriseTroubadour%20-%20Memorandum%20of%20Understanding%20/$File/12.Sunrise%20MOU%20-MEMORANDUM%20OF%20UNDERSTANDING.pdf?openelement (accessed on August 2013)].

  137. 137.

    Supra note 108.

  138. 138.

    Article 23 of the Protocol, supra note 116.

  139. 139.

    Article 10 of the Timor Sea Treaty, supra note 114.

  140. 140.

    Article 18 of the Timor Gap Treaty, supra note note 113.

  141. 141.

    Article 12 of the Agreement Mauritius/Seychelles, supra note 66.

  142. 142.

    Article 10 of the Timor Sea Treaty, supra note 114.

  143. 143.

    Annex C under Article 6 lit. (b), (v) of the Timor Sea Treaty, ibid.

  144. 144.

    The text of Article 1(21) of the Agreement Nigeria/Sao Tome and Principe, supra note 21 in Chap. 4, reads ““Pollution” means the introduction of substances or energy into the marine environment, including estuaries, which results or is likely to result in deleterious effects such as harm to living resources and marine life, hazards to human health, impairment of quality for use of sea water or reduction of amenity.”

  145. 145.

    Article 9.5 lit. (o), ibid.

  146. 146.

    Article 30.5 lit. (c), ibid.

  147. 147.

    Supra note 21 in Chap. 4.

  148. 148.

    Article 19 of the Treaty between US/Mexico, supra note 67 in Chap. 2.

  149. 149.

    Saudi Arabia v. Armaco, supra note 126, pp. 166–167. Also see on the arbitration Petroleum Development (Trucial Coast) Ltd. v. Sheik of Abu Dhabi Award of Lord Asquith of Bishopstone, 1951, Award of Lord Asquith of Bishopstone, in: 1 International and Comparative Law Quarterly (1952), pp. 250–251.

  150. 150.

    Saudi Arabia v. Armaco, ibid, pp. 169–172. The Tribunal acknowledged that: “[P]ublic international law should be applied to the effects of the Concession, when objective reasons lead it to conclude that certain matters cannot be governed by any rule of the municipal law of any State, as is the case in all matters relating to transport by sea, to the sovereignty of the State on its territorial waters and to the responsibility of States for the violation of its international obligations.”

  151. 151.

    Ibid, p. 168. The Tribunal concluded that: “Should a new concession contract incompatible with the first, or a subsequent statute, abolish totally or partially that which has been granted by a previous law or concession, this could constitute a clear infringement, by the second contract, of acquired rights or a violation, by the subsequent statute, of the principle of non-retroactivity of laws, with the only exception of rules of public policy. This is because a legal situation acquired by virtue of a previous special statute cannot be abrogated by a subsequent statute—generalia specialibus non derogant—unless the legislator has expressly given retroactive effect to such statute, which the State cannot do in respect of concessions, without engaging its responsibility.”

  152. 152.

    On dispute settlement mechanisms commonly used in the oil and gas industry see Margaret Ross, “Dispute Management and Resolution”, in: Oil and Gas Law. Current Practice and Emerging Trends, edited by Greg Gordon and John Paterson (Dundee University Press: Dundee, 2007), pp. 431–460.

  153. 153.

    Supra note 19 in Chap. 4.

  154. 154.

    Article 22 to 29 of the Timor Gap Treaty, supra note 113; Article 14 of the Timor Sea Treaty supra note 114.

  155. 155.

    Articles 39 to 44 of the Agreement Nigeria/Sao Tome and Principe, supra note 21 in Chap. 4.

  156. 156.

    Article 3 Agreement Mauritius/Seychelles, supra note 66.

  157. 157.

    Article 7, ibid.

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  1. International Max Planck Research School for Maritime Affair, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany

    Vasco Becker-Weinberg

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Becker-Weinberg, V. (2014). Joint Development Agreements in Areas of Overlapping Claims: Legal Regime. In: Joint Development of Hydrocarbon Deposits in the Law of the Sea. Hamburg Studies on Maritime Affairs, vol 30. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-43570-0_6

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