Blurring the lines? Maritime joint development and the cooperative management of ocean resources

Issues in Legal Scholarship

Volumn , Issue 11, 2009, Pages

  Schofield, Clive ^a  

^a UNIVERSITY OF WOLLONGONG   (Australia)

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EID: 67449089974     PISSN: None     EISSN: 15398323     Source Type: Journal    
DOI: 10.2202/1539-8323.1103     Document Type: Article

References (117)

1. Four Conventions emerged from the first United Nations Conference on the Law of the Sea, held in Geneva in 1958: Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964); Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964); Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); and Convention on Fishing and Conservation of the Living Resources of the High Sea, opened for signature 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966).
2. United Nations, United Nations Conventions on the Law of the Sea, U.N. Sales No.E.97.V.10 (1983). See, 1833 UNTS 3, entered into force November 16 1994, available at .
3. Although technically the correct abbreviation for a nautical mile is "M," with the "nm" referring to nanometres. However, "nm" is widely used by many authorities (for example the UN Office of Ocean Affairs and the Law of the Sea) and appears to cause less confusion than "M," which is often taken to be an abbreviation for metres.
4. J. R. V. Prescott and C. H. Schofield, The Maritime Political Boundaries of the World (Martinus Nijhoff Publishers 2005), at p. 9. For a global summary of claims to maritime jurisdiction see, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, Table of Claims to Maritime Jurisdiction (2007) at
5. Figures courtesy of Dr. P. A. Symonds, Senior Adviser - Law of the Sea at Geoscience Australia (personal communication, July 2008). It should be noted, however, that not every State claims maritime jurisdiction out to 200nm and that there are alternative ways of making these global calculations. For example, Pruett has calculated that should every coastal State make 200nm maritime claims, 44.5 per cent of the oceans would be subject to national jurisdiction (quoted in Prescott and Schofield, The Maritime Political Boundaries of the World, at p. 9). All these figures exclude actual and potential claims to continental shelf rights beyond 200nm from the coast.
6. Generally see, P.J. Cook and CM. Carleton, eds., Continental Shelf Limits (Oxford University Press, 2000).
7. At the time of writing (July 2008) the CLCS, had received 12 Submissions from (in order of Submission): the Russian Federation (2001), Brazil (2004), Australia (2004), Ireland (2005), New Zealand (2006), France, Ireland , Spain and the United Kingdom (joint submission) (2006), Norway (2006), France (2007), Mexico (2007), Barbados (2008), the United Kingdom (2008), and Indonesia (2008). See the CLCS website for further details at .
8. Ibid, at p. 3.
9. In accordance with UNCLOS, Article 76(5), coastal State claims "either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath." The coastal State may therefore chose the most seaward of these constraint lines. Thus, assuming the existence of continental margin capable of being claimed by the coastal States under UNCLOS Article 76(4), where the 2,500m isobath is further seaward than the 350nm limit, coastal States in excess of 700nm from one another may need to delimit a maritime boundary between their extended shelf jurisdictions.
10. See, in particular, the compendium of maritime boundary agreements contained in the International Maritime Boundaries series of volumes: J.I. Charney and L.M. Alexander, eds., International Maritime Boundaries, Vols. I and II (Martinus Nijhoff Publishers 1993); J.I. Charney and L.M. Alexander, eds., International Maritime Boundaries, Vol. III (Martinus Nijhoff 1998); J.I. Charney and R.W. Smith, eds., International Maritime Boundaries, Vol. IV (Martinus Nijhoff 2002); and, D.A. Colson and R.W. Smith, International Maritime Boundaries, Vol. V (Martinus Nijhoff 2005).
11. Even reaching a clear understanding of the number of potential maritime boundaries worldwide is problematic as certain assumptions need to be made such as whether to count maritime boundaries composed of multiple distinct segments as one boundary or several. It is, furthermore, difficult to predict the number of potential maritime boundaries that may need to be delimited beyond 200nm from the coast, given that many coastal States have yet to make extended claims to continental shelf claims. (M.A. Pratt, International Boundaries Research Unit, personal communication, June 2008. See also, Prescott and Schofield, The Maritime Political Boundaries of the World, at pp. 217-218.)
12. UNCLOS, Articles 74(3) and 83(3).
13. Brief outlines of the key attributes of each of the maritime joint developments are provided here. Greater emphasis has, however, been devoted to those joint zones in the Asia-Pacific region, reflecting the focus of the present symposium. It is worth noting that the joint development arrangements reviewed do not comprise an exhaustive list of all such mechanisms. For example, a number of joint arrangements that are now defunct, such as that which existed offshore the, now divided, Kuwait-Saudi Arabia Neutral Zone, are not considered here.
14. Bahrain- Saudi Arabia Boundary Agreement Dated 22 February 1959 (signed 22 February 1958, entered into force 26 February 1958). Treaty text available at . See also, Charney and Alexander, International Maritime Boundaries 1993, Vol. II, at pp. 1489-1497.
15. Ibid. Second Clause.
16. Agreement between the Government of Argentina and the Government of Uruguay Relating to the Delimitation of the River Plate and the Maritime Boundary Between Argentina and Uruguay, (signed 19 November 1973, entered into force 12 February 1974). Treaty text available at: . See also, Charney and Alexander, International Maritime Boundaries 1993, Vol. II, at pp. 757-766.
17. Ibid. Article 73.
18. Ibid. Article 66.
19. Ibid. Article 78.
20. Ibid. Article 42.
21. Ibid. Article 43.
22. Treaty between Australia and the Independent State of Papua New Guinea concerning sovereignty and maritime boundaries in the area between the two countries, including the area known as Torres Strait, and related matters, 18 December 1978 (entry into force, 15 February 1985). Treaty text available at [1985] ATS 4 and . See also, Charney and Alexander, International Maritime Boundaries 1993, at pp. 929-975.
23. Charney and Alexander, International Maritime Boundaries 1993, at p. 929.
24. Treaty between Australia and Papua New Guinea, Article 2. Australia did, however, recognise Papua New Guinea's sovereignty over three uninhabited islands (Kawa, Mata Kawa and Kussa Islands) that it had previously regarded as Australian (Article 2(3)).
25. The agreement provides that the territorial seas of specific, listed, islands "shall not extend beyond three miles" from the relevant baselines and that, furthermore, the territorial seas in question "shall not be enlarged or reduced, even if there were to be any change in the configuration of the coastline or a different result from any further survey." This had the consequence of creating 3nm breadth territorial sea enclaves around several Australian islands located in the northern part of the Torres Strait (Treaty between Australia and Papua New Guinea, Article 3).
26. nd edition, Wollongong Papers on Maritime Policy, 12 (Centre for Maritime Policy 2001), at pp. 104-105; and Renton, D. (1995) "The Torres Strait Treaty after 15 Years: Some Observations from a Papua New Guinean Perspective," pp.171-180 in Crawford, J.R. and Rothwell, D.R., eds., The Law of the Sea in the Asian Pacific Region (Martinus Nijhoff 1995).
27. Article 23 of the treaty, revenues are split 75:25 according to whose jurisdictional sector of the zone the fish are caught in.
28. Agreement between Norway and Iceland on Fishery and Continental Shelf Questions, 28 May 1980 (entered into force 13 June 1980). Treaty text available at .
29. Agreement on the Continental Shelf between Iceland and Jan Mayen, 22 October 1981 (entered into force 2 June 1982). Treaty text available at . See also, Charney and Alexander, International Maritime Boundaries 1993, at pp. 1755-1765.
30. Agreement on the Continental Shelf between Iceland and Jan May en, Articles 5 and 6.
31. Ibid. Article 8.
32. Charney and Alexander, International Maritime Boundaries 1993, at p. 1757.
33. Agreement between the Government of the Kingdom of Denmark together with the Home Government of the Faroe Islands on the one hand and the Government of the United Kingdom of Great Britain and Northern Ireland on the other hand relating to the Maritime Delimitation in the area between the Faroe Islands and the United Kingdom, 18 May 1999 (entered into force 21 July 1999). Treaty text available at . See also Charney and Smith, International Maritime Boundaries 2002, at pp. 2955-2977.
34. Charney and Smith, International Maritime Boundaries 2002, at p. 2956.
35. Ibid.
36. Ibid. 2959-2960.
37. Denmark-UK Agreement, Article 5.
38. Ibid. Article 6.
39. Ibid. Article 7.
40. Agreement between the People's Republic of China and the Socialist Republic of Viet Nam on the Delimitation of the Territorial Sea, the Exclusive Economic Zone and Continental Shelf in Beibu Bay/Gulf of Tonkin (25 December 2000) and Agreement between the People's Republic of China and the Socialist Republic of Viet Nam on Fisheries Cooperation for the Gulf of Tonkin. For treaty text, see . See also Colson and Smith, International Maritime Boundaries, at pp. 3745-3758.
41. Colson and Smith, International Maritime Boundaries, at p. 3748.
42. Ibid.
43. Keyuan, Z., "The Sino-Vietnamese Agreement on Maritime Boundary Delimitation in the Gulf of Tonkin," Ocean Development and International Law, 36 (2005), 13-24, at p. 16.
44. Ibid. 3749. See also, Thao, N.H., "Maritime Delimitation and Fishery Cooperation in the Tonkin Gulf," Ocean Development and International Law, 36 (2005), at pp. 25-44.
45. Agreement on Historic Waters of Vietnam and Kampuchea, 7 July 1982 (entered into force 7 July 1982). See, Charney and Alexander, International Maritime Boundaries 1998, at pp. 2364- 2365.
46. Agreement on Historic Waters of Vietnam and Kampuchea, Article 2.
47. Ibid. Article 3.
48. Ibid.
49. Thailand protested against the agreement in a Note to the UN Secretary General dated 9 December 1985, stating that: "Regarding the claims to the so-called 'historic waters', which purport to appropriate and subject certain sea areas in the Gulf of Thailand and in the Gulf of Tonkin (Gulf of Bac Bo) to the regime of internal waters, the Government of Thailand is of the view that such claims cannot be justified on the basis of the applicable principles and rules of international law," UN Law of the Sea Bulletin 7 (April 1986), at p. 111.
50. In a Note to the UN Secretary General dated 17 June 1987, the United States government protested against the Cambodian-Vietnamese agreement, stating that the claim was made known internationally "less than five years ago" and the short period of time that it had been in existence was "insufficient" to demonstrate the required effective exercise of authority for such a historic claim. Furthermore, with regard to the issue of acquiescence, the U.S. Note continued, "the United States has not acquiesced in this claim, nor can the community of States be said to have done so. Given the nature of the claim first promulgated in 1982, such a brief period of time would not permit sufficient acquiescence to mature," UN Law of the Sea Bulletin 10 (November 1987), at p. 23. See also J. A. Roach and R.W. Smith, United States Responses to Excessive Maritime Claims, 2nd edition (Martinus Nijhoff Publishers 1996), at pp. 39-40; and Schofield, C.H. and Tan-Mullins, M. "Claims, Conflicts and Cooperation in the Gulf of Thailand," Ocean Yearbook, 22 (Martinus Nijhoff 2008), at pp. 91-92.
51. Agreement between Japan and the Republic of Korea Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries, 30 January 1974 (entered into force 22 June 1978). Treaty text available at: < http://www.un.org/Depts/los/ LEGISLATIONANDTREATIES/PDFFILES/TREATIES/jap-korl974north.tif>. See also Charney and Alexander, International Maritime Boundaries 1993, at pp. 1057-1089.
52. The parties' dispute over sovereignty concerning the islands of Dok-do (to Korea) or Takeshima (to Japan) also frustrated progress towards the delimitation of a maritime boundary further north.
53. Agreement between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, 30 January 1974 (entered into force 22 June 1978). Treaty text available at .
54. Article 28 of the Japan-Korea treaty states that: "Nothing in the Agreement shall be regarded as determining the question of sovereign rights over all or any portion of the Joint Development Zone or as prejudicing the positions of the respective Parties with respect to the delimitation of the continental shelf."
55. The agreement may be extended if no maritime boundary is delimited, although it can be terminated by either side with three years' notice (Japan-Korea treaty, Article 31(2)).
56. Thus a joint venture or consortium is not allowed for the exploration or exploitation of any of the sub-zones. For details on licensing in the Japan-South Korea Agreement, see Miyoshi (1993).
57. Article 19 of the Japan-Korea treaty provides that: "the laws and regulations of one Party shall apply with respect to matters relating to exploration and exploitation of natural resources in the sub-zones with respect to which the Party has authorized concessionaires designated and acting as operators."
58. Japan-Korea treaty, Article 27.
59. Ibid. Article 24.
60. Charney and Alexander, International Maritime Boundaries 1993, at p. 1058.
61. Agreement Relating to the Joint Exploration of the Natural Resources of the Seabed and Subsoil of the Red Sea in the Common Zone, 16 May 1974.
62. Prescott and Schofield, The Maritime Political Boundaries of the World, at p. 488.
63. Dzurek, D.J., Parting the Red Sea: Boundaries, Offshore Resources and Transit, Maritime Briefing, 3, 2 (International Boundaries Research Unit, 2001), at p. 16.
64. Indonesia was, in the words of former Indonesian Foreign Minister Mochtar, "taken to the cleaners" by Australia when these agreements were negotiated (quoted in Kaye, 2001, at p. 54).
65. 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, 11 December 1989. For treaty text, see . See also, Charney and Alexander, International Maritime Boundaries 1993, at pp. 1245-1328.
66. Indeed, the Timor Gap Treaty, which together with its annexed model production sharing agreement and Petroleum Mining Code runs to in excess of 100 pages.
67. Treaty between the Kingdom of Thailand and Malaysia Relating to the Delimitation of the Territorial Seas of the Two Countries, 24 October 1979 (entered into force 15 July 1982). Treaty text available at . See also, Charney and Alexander, International Maritime Boundaries 1993, at pp. 1091-1098.
68. Memorandum of Understanding between the Kingdom of Thailand and Malaysia on Delimitation of the Continental Shelf Boundary between the Two Countries in the Gulf of Thailand, 24 October 1979 (entered into force 15 July 1982). Treaty text available at . See also Charney and Alexander, International Maritime Boundaries 1993, at pp. 1099-1123.
69. Memorandum of Understanding between the Kingdom of Thailand and Malaysia on the Establishment of a Joint Authority for the Exploitation of the Resources of the Sea-Bed in a Defined Area of the Continental Shelf of the Two Countries in the Gulf of Thailand, done on 21 February 1979. Treaty text available at http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ TREATIES/THA-MYS1979CS.PDF>. See also, Charney and Alexander, International Maritime Boundaries 1993, at pp. 1107-1123.
70. Agreement between the Government of Malaysia and the Government of the Kingdom of Thailand on the Constitution and Other Matters Relating to the Establishment of the Malaysia-Thailand Joint Authority. See Charney and Alexander, International Maritime Boundaries 1993, at pp. 1111-1123.
71. See Schofield, C.H., "Unlocking the Seabed Resources of the Gulf of Thailand," Contemporary Southeast Asia 29, no. 2 (August 2007) 286-308, at pp. 292-293.
72. See also, Schofield and Tan-Mullins "Claims, Conflicts and Cooperation," 75-116, at pp. 108-111.
73. Agreement between the Government of the Kingdom of Thailand and the Government of the Socialist Republic of Vietnam on the Delimitation of the Maritime Boundaries between the Two Countries in the Gulf of Thailand, 9 August 1997 (entered into force 28 February 1998), Article 2. Treaty text available at . See also, Charney and Smith, International Maritime Boundaries 2002, at pp. 2,692-2,694.
74. Schofield, "Unlocking the Seabed Resources of the Gulf of Thailand," 300 and Schofield and Tan-Mullins, "Claims, Conflicts and Cooperation," 112-113.
75. Memorandum of Understanding between Malaysia and the Socialist Republic of Vietnam for the Exploration and Exploitation of Petroleum in a Defined Area of the Continental Shelf Involving the Two Countries was signed on 5 June 1992 and entered into force on 4 June 1993. See Charney and Alexander, International Maritime Boundaries 1998, at pp. 2335-2344.
76. See Schofield, "Unlocking the Seabed Resources of the Gulf of Thailand," 297.
77. The two governments do, however, retain a right of veto with regard to any agreements their national oil companies might reach. In practical terms, as Petronas had already issued production-sharing contracts for the overlapping area, PetroVietnam agreed to a commercial arrangement whereby these existing contracts would remain valid and petroleum operations would be directly managed by Petronas.
78. See, Schofield and Tan-Mullins, "Claims, Conflicts and Cooperation," 111-112.
79. The treaty was signed on 12 November 1993 (entered into force 14 March 1994). Treaty text available at . See also Charney and Alexander, International Maritime Boundaries 1998, at pp. 2179-2204.
80. Charney and Alexander, International Maritime Boundaries 1998, at p. 2181.
81. Colombia-Jamaica Treaty, Article 3(2).
82. Ibid. Article 3(3).
83. Ibid. Article 3(5 and 6).
84. Ibid. Article 4.
85. See, Churchill, R.R., "Falkland Islands - Maritime Jurisdiction and Cooperative Arrangements with Argentina," Current Legal Developments, International and Comparative Law Quarterly, 46 (1997) 463-477, at pp. 463-467.
86. lb id. 468-471.
87. Treaty between the Federal Republic of Nigeria and the Democratic Republic of Sao Tome and Principe on the Joint Development of Petroleum and other Resources, in Respect of Areas of the Exclusive Economic Zone of the Two States, 21 February 2001 (entered into force 16 January 2003), Article 4. For treaty text see: . See also, Colson and Smith, International Maritime Boundaries, at pp. 3638-3682.
88. Nigeria-Sao Tome and Principe Treaty, Articles 3 and 18 and Colson and Smith, International Maritime Boundaries 3638. See also, Groves, H., "Offshore Oil and Gas Resources: Economics, Politics and the Rule of Law in the Nigeria-Sao Tomé e Príncipe Joint Development Zone," Journal of International Affairs 59, 1 (Fall/Winter 2005) at pp. 81-96.
89. Ibid. Article 9.
90. Ibid. Article 9.
91. Ibid. Article 43. The parties are able to conduct such activities independently but are also to consult with one another. See also Schofield, C.H., "Cooperative Mechanisms and Maritime Security in Areas of Overlapping Claims to Maritime Jurisdiction," pp. 99-115 in Cozens, P. and Mossop, J., eds., Capacity Building for Maritime Security Cooperation in the Asia-Pacific (Centre for Strategic Studies: New Zealand 2005).
92. Timor Sea Treaty (Dili, 20 May 2002, entry into force 2 April 2003). For treaty text, see .
93. C.H. Schofield, "Dividing the Resources of the Timor Sea: A Matter of Life and Death for East Timor," Contemporary Southeast Asia, 27(2) (August 2005), 255-280.
94. This agreement is often referred to as the Greater Sunrise International Unitisation Agreement, or Sunrise IUA. 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, Dili, 20 May 2002. Source: United Nations, , and, 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, Dili, 6 March 2003. Source: United Nations, .
95. Transcript of the Prime Minister, the Hon John Howard, MP, Joint Press Conference, Philip Street, Sydney, 12 January 2006 . For a copy of the treaty text see: .
96. Consequently, rather than an 18.1 per cent share in Greater Sunrise as would have been the case under the earlier accords, East Timor stands to gain a full 50 percent share in the revenues deriving from the development of those fields..
97. CMATS, Article 2.
98. The parties are restricted from the direct or indirect initiation of, or participation in, any proceedings relating to maritime boundary delimitation in the Timor Sea before "any court, tribunal or other dispute resolution mechanism" or even raising such issues in "any international organisation." CMATS, Article 4.
99. Or, "until the date five years after the exploitation" of the area covered by the treaty ceases, "whichever occurs earlier," CMATS, Article 12.
100. CMATS, Article 12.
101. CMATS, Article 8 refers to a line which is defined by means of a list of coordinates of latitude and longitude, referred to World Geodetic System 84 and joined by geodesic lines, contained in a treaty Annex. The line so defined is consistent with the southern boundary of the JPDA with Australia to exercise jurisdiction to the south and East Timor to the north.
102. CMATS, Article 9. For a more in depth analysis of the CMATS Treaty see, Schofield, C.H., "Minding the Gap: The Australia - East Timor Treaty on Certain Maritime Arrangements in the Timor Sea," International Journal of Marine and Coastal Law, 22, 2 (2007) at pp. 189-234.
103. The China - Japan agreement was signed on 11 November 1997 and entered into force on 1 June 2000; the South Korea - Japan agreement entered into force in January 1999; and the China -South Korea agreement entered into force on 30 June 2001. See S.P. Kim, "The UN Convention on the Law of the Sea and New Fisheries Agreements in North East Asia," Marine Policy, 27 (2003) 97-109.
104. See, Schofield, "Cooperative Mechanisms and Maritime Security."
105. Colson and Smith, International Maritime Boundaries, at pp. 3743-3744.
106. It can be inferred that the area of overlap between the parties has been reduced following the resolution of Cambodia and Vietnam's sovereignty dispute over islands. Uncertainty does, however, persist in relation to the southern limit of the area covered by the MoU. See McDorman, T.L., "Maritime Boundary Delimitation in the Gulf of Thailand," Hogaku Shimpo [The Chuo Law Review], CIX, no. 5-6 (March 2003) 253-280, at pp. 278-279. See also Schofield, "Unlocking the Seabed Resources of the Gulf of Thailand," 301-303 and Schofield and Tan-Mullins, "Claims, Conflicts and Cooperation," 113-115.
107. McDorman, "Maritime Boundary Delimitation," 277.
108. Cambodia-Thailand MoU, Article 2.
109. Ibid.
110. "China, Japan reach principled consensus on East China Sea issue," Xinhua News Agency, 18 June 2008 .
111. Ibid.
112. See Manicom, J., "Hu-Fukuda Summit: The East China Sea Dispute," China Elections and Governance, ; and, "Fukuda, Hu Put Focus on Future," Japan Times, 8 May 2008, .
113. "China, Japan reach principled consensus on East China Sea issue," Xinhua News Agency, 18 June 2008. See also "Japan, China Agree on Investment, Joint Gas Project in E. China Sea," Kyodo New Agency, 18 June 2008 .
114. Ibid.
115. E.L. Richardson, "Jan Mayen in Perspective," American Journal of International Law 82 (1988), at pp. 443-458.
116. See Schofield, "Cooperative Mechanisms and Maritime Security."
117. Stormont, W.G. and Townsend-Gault, I., "Offshore Petroleum Joint Development Arrangements: Functional Instrument? Compromise? Obligation?" in The Peaceful Management of Transboundary Resources, G.H. Blake, C.L. Sien, C.E.R. Grundy-Warr, M.A. Pratt, and C.H. Schofield, eds. (Graham and Trotman 1995), pp. 51-76.