09 Nov Critical Legal Analysis of Permissible Unilateral Activities in Disputed Continental Shelf Areas
[Bjørn Kunoy works at the Ministry of Foreign Affairs & Fisheries of the Faroe Islands and is an Adjunct Professor of International Law at the University of the Faroe Islands.]
Consistent with Article 77(1) of the United Nations Convention on the Law of the Sea (UNCLOS), States are vested with sovereign and exclusive rights to exploit and explore the mineral and other non-living resources on the continental shelf. Pending agreement on the delimitation of the continental shelf and/or the EEZ, relevant States are, according to Article 74(3) and Article 83(3) of UNCLOS, obligated “in a spirit of understanding and cooperation [to] make every effort to enter into provisional arrangements and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement”. Accordingly, two “interlinked obligations” arise during this transitional period: (1) a positive obligation incumbent upon the States to seek to agree on a provisional arrangement, and (2) a negative obligation not to take measures that jeopardize or hamper the possibilities for concluding a delimitation agreement. While it is clear that the transitional period expires upon the reaching of a delimitation agreement or, as appropriate, a judicial decision establishing a maritime boundary, it is less clear — and largely untouched in academia — when the transitional period commences. Further, there is uncertainty as to the particular content of the obligation incumbent upon the relevant coastal States during the transitional period.
First, this blog seeks to contribute to the understanding of the period of time during which relevant coastal States are incumbent the above-mentioned negative obligation in Article 83(3). Second, the blog will analyse whether the obligation is one of conduct or whether additional obligations, beyond mere conduct, are embedded therein.
Transitional Period
Consistent with Article 83(2) of UNCLOS, if no agreement on delimitation is reached “within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV”. Pending agreement, the obligations in Article 83(3) of UNCLOS apply throughout “th[e] transitional period”. The expiration of this transitional period will be reached upon the entering into a delimitation agreement or upon the establishment of a delimitation line by a court or tribunal. However, it is less clear when the transitional period commences. This arises, as coastal States are vested with inherent rights to the continental shelf from which it follows that the relevant States are not incumbent upon determining a pre-existing entitlement under Article 77(1-3) of UNCLOS. However, the practice of courts and tribunals suggests that absent the establishment of a dispute in which the claimed entitlement to the continental shelf of State A overlaps with the claimed entitlement of State B, the obligations in Article 83(3) do not arise. Thus, Article 83(3) is only operative upon the establishment ofthe existence of a dispute in which the “respondent was aware, or could not have been unaware, that its views were ´positively opposed` by the applicant”.
The Special Chamber in Ghana/Côte d’Ivoire observed that the obligations in Article 83(3) of UNCLOS arise upon the crystallization of a dispute. Thus, Article 83(3) remains, it would appear fair to say, mute or inoperative until the moment that a dispute arises. According to the Special Chamber, “the transitional period referred to means the period after the maritime delimitation dispute has been established until a final delimitation by agreement or adjudication has been achieved”, a conclusion which, it appears, was confirmed in Somalia v. Kenya. Upon the finding that the dispute was established in 2009, the ICJ concluded that it “will only examine whether the activities conducted by Kenya after 2009 jeopardized or hampered the reaching of a final agreement on the delimitation of the maritime boundary”. Accordingly, while drilling did occur in the disputed area in 2007 it is supposedly (para 209) beyond the scope of Article 83(3) of UNCLOS.
A common feature in land disputes, upon the establishment of a dispute, is the determination of a critical date. Any actions of the disputing parties upon the critical date are without legal effect. In Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), the ICJ observed that acts taken prior to the crystallization of the dispute are irrelevant “unless such acts are the normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them”. Accordingly, the ICJ limited its determination of effectivités from that particular point of time, ie. the crystallization of the dispute. However, it appears to stand in contradiction to the ratio legis of Article 77(1)(3) of UNCLOS to subordinate Article 83(3) upon a finding of the existence of a dispute in the jurisdictional sense. This arises, as proceeding accordingly may have some unforeseen implications that challenge the premise underlying the regime applicable to the continental shelf.
The rights to the continental shelf pre-exist. Consistent with Article 77(2), if the coastal State “does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State”. Accordingly, whether a disagreement on a point of law or fact, a conflict of legal views or of interests between the parties has been established as a condition precedent to determine whether or not the second obligation in Article 83(3) is operative appears to be a non sequitur. It appears axiomatic that the above should not raise any concern in a geographical setting where the choice of relevant base points for purpose of establishing a provisional equidistance line or, as appropriate, a provisional median line cannot be objectively questioned. However, it is rarely the case that disputing parties are in agreement on such questions, including whether features are islands, rocks or low tide elevations. The above is further corroborated in the fact that a valid basepoint for the purpose of establishing maritime zones does not necessarily result in a relevant basepoint for purpose of establishing a provisional equidistance line. Accordingly, notwithstanding Article 300 of UNCLOS consistent with which States Parties to UNCLOS are obligated to exercise the rights and obligations in good faith, making the operation of Article 83(3) contingent upon the fulfilment of certain criteria raises more questions than responses.
This arises, as it is well-established and recognized in the North Sea cases that “no special legal act” needs to be fulfilled to enjoy the exercise of the rights to explore and exploit the resources in the continental shelf. This fundamental principle for the legal regime underlying the continental shelf appears undermined where the safeguards under Article 83(3) are only operative where State A establishes the existence of an entitlement that overlaps with the entitlement of State B for purpose of determining the crystallization of a dispute with a view to ensure that the activities of State B are to be exercised within the perimeters of Article 83(3) of UNCLOS.
Nature of Second Obligation in Article 83(3)
Having determined the temporal framework within which it is demonstrated that Article 83(3) is operative, any substantive and/or procedural obligation in that provision applies only during the established transitional period.
In what seemingly appears to be “likely inspired” by the order on provisional measures in Aegean Sea Continental Shelf(paras 26-27), the arbitral tribunal in Guyana/Suriname unequivocally determined the scope of permissible unilateral acts that fall within the scope of Article 83(3). According to the arbitral tribunal, “acts that do cause physical change would have to be undertaken pursuant to an agreement between the parties to be permissible, as they may hamper or jeopardise the reaching of a final agreement on delimitation”. Thus, these activities may not be pursued unilaterally. According to the arbitral tribunal, unilateral activities that cause physical changes jeopardize or hamper the reaching of a final agreement, the reason for which a distinction is “to be made between activities that lead to a permanent physical change, such as exploitation of oil and gas reserves, and those that do not, such as seismic exploration”.
According to the black letter of Article 83(3) the second obligation not to jeopardize or hamper the reaching of a final agreement appears one that could be classified as an obligation of conduct. The obligation being one of conduct rather than result appears logical in light of applicable circumstances in different geographical and geological settings where the relevant coastal States´ interests may fundamentally diverge. As a way of analogy, Article 63(1-2) of UNCLOS establishes the legal regime applicable to shared and straddling fish stocks. From this provision, obligations of conduct arise on the relevant States, rather than obligations of result. Two reasons underlie this classification of the obligation therein. First, it is not unlikely that States fail to agree on the conservation and management measures sought by Article 63. As noted by Jean Combacau, where the achievement of a particular aim is likely to be achieved, the legal framework establishes “obligations de résultat; là où elle est plus essentiellement aléatoire, ils se bornent à réduire l’aléa et ne mettent en œuvre qu’une obligation de moyens”.
Second, the rights in question are sovereign, a leitmotiv from which establishing an obligation of conduct was, as noted by F. Vicuna, “precisely to avoid the control and legal review of sovereign acts of the coastal State”.
A determination that a particular conduct, easily and objectively identifiable, is a breach of Article 83(3), rather than being determined on a casuistic basis taking into account all relevant circumstances may, it is submitted, be seen to transform the second obligation in Article 83(3) from being an obligation of conduct, to become an obligation of result. Under the standard established in Guyana/Suriname, partially endorsed by the ICJ in Somalia/Kenya, it appears reasonable to ascertain that the second obligation in Article 83(3) is interpreted as having pre-determined substantive characteristics, a feature alien to obligations of conduct. This arises as under the above-mentioned standard, any conduct that results in physical changes to the seabed is inconsistent with Article 83(3). Yet, a contrary conclusion is apparent from the conclusions of the Special Chamber in Ghana/Côte d’Ivoire in which the treaty obligation in Article 83(3) not to jeopardize or hamper the reaching of a final agreement unequivocally is conceived as an obligation of conduct. According to the Special Chamber, because of the conjunction “and” in Article 83(3), the “second obligation qualif[ies] as an obligation of conduct”. These two approaches of the arbitral tribunals in Guyana/Suriname and Ghana/Côte d’Ivoireappear irreconcilable.
It has been observed elsewhere that in Ghana/Côte d’Ivoire, the Special Chamber embraced a method of delimitation that relied on a constitutive approach, rather than the delimitation being a mere declaratory undertaking. According to the Special Chamber, the delimitation “has a constitutive nature and cannot be qualified as merely declaratory”. This understanding differs from the observation of the ICJ in the North Sea cases consistent with which the rights to the continental shelf “can be declared (and many States have done this) but does not need to be constituted”. Further, in Jan Mayen, the ICJ noted, and was reindorsed in Qatar v. Bahrain, on this issue that “the sharing-out of the [disputed area] is the consequence of the delimitation, not vice versa”. For relevance of the above, it is to be observed that in Ghana/Côte d’Ivoire, the Special Chamber noted that actions taken by a State in an area which subsequently has been attributed to the other disputing State in an international judicial decision “cannot be considered to be in violation of the sovereign rights of the latter if those activities were carried out before the judgment was delivered and if the area concerned was the subject of claims made in good faith by both States”. The Special Chamber could not have proceeded on the above conception of delimitation were it to proceed on an understanding that the delimitation is declaratory rather than constitutive of the delimitation line.
Yet, leaving aside this particular question, relying on good faith as a determinant factor for establishing whether the relevant States have abided with Article 83(3) of UNCLOS departs on a significant point from the findings in Guyana v. Suriname. In the latter, the obligation incumbent upon the States is of a substantive nature according to predetermined perimeters whereas in Ghana/Côte d’Ivoire, the undefined conduct of the relevant States is the determinant factor for establishing whether the States are in compliance with the second obligation of Article 83(3) of UNCLOS. Prior to deciding accordingly, the Special Chamber referred to the finding in Nicaragua v. Colombia (Territorial and Maritime Dispute) in which the ICJ refused to uphold the request of the applicant for a declaration that it was entitled to claim compensation for elements of unjust enrichment by the respondent because the activities in question were conducted prior to the establishment of the maritime boundary. A critical distinction in regard to the above-mentioned request for a declaration in Nicaragua v. Colombia (Territorial and Maritime Dispute) is the fact that the activities in question concerned living marine resources in the water column superjacent the seabed. The rights to the latter are not inherent. An important distinction. Further, the resources in question are, in principle, renewable, which is also an important distinction in comparison to minerals. According to Article 77(2) of UNCLOS, the exclusivity of the rights to the continental shelf under Article 77(1) implies “that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State”. Yet, good faith on behalf of State A may not trump the exclusivity clause in Article 77(2) of UNCLOS in so far as it concerns the rights of State B, as observed in Border and Transborder Armed Actions (Nicaragua v. Honduras) that “good faith [..] is not in itself a source of obligation where none would otherwise exist”.
This situation is only possible if the proposition would be accepted that the second obligation in Article 83(3) is a procedural obligation, which does not have substantive characteristics. According to the ICJ in Somalia v. Kenya, on the basis of the presented evidence, it was “not in a position to determine with sufficient certainty that drilling operations that could have led to permanent physical change in the disputed area took place after 2009”. While drilling did occur in the disputed area upon the crystallization of the dispute in 2009, “all of them are located south of and at a great distance from the equidistance line claimed by Somalia as the maritime boundary”. The ICJ is making its appreciation on the basis of a substantive standard. Consequently, it is reasonable to infer from the explanation given by the ICJ that it would not necessarily share the reasoning of the Special Chamber in Ghana/Côte d´Ivoire that a possible drilling on the “wrong” side of the maritime boundary could be alleviated if the activities in question were taken on the basis of good faith of the relevant State.
Concluding Remarks
Decisions of adjudicatory bodies have heterogenous understandings of the expression “not to jeopardize or hamper” in Article 83(3) of UNCLOS. It may be inferred from the ratio legis underlying the Special Chamber in Ghana/Côte d’Ivoirethat the second obligation in Article 83(3) is not vested with substantive characteristics. The violations of the standards therein would depend on the State conduct, to be decided on a case-by-case basis. Yet, it follows from the arbitral tribunal´s decision in Guyana/Suriname, together with the ICJ decisions in Aegean Sea and Somalia v. Kenya, that Article 83(3) is not a mere obligation of conduct. It constitutes a negative obligation with substantive characteristics, which arise from, and are an integral part of, the regime applicable to the continental shelf under international law.