INTRODUCTION: Joint Development Agreements (JDAs) are agreements entered into between states for the economic exploitation of an area that overlaps their maritime boundaries and over which they have a claim or right to under international law. The purpose of such agreements is to ensure economic exploitation of the area pending whenever an agreement is reached or a decision given as to the boundary lines between them. JDAs are of three types. The first is the one used as an alternative to a boundary line; the second is the one used as an additional element in a boundary settlement; the third is used to regulate oil and gas fields lying across established boundary lines, 1 in which case it could also be referred to as Cross-Border Unitisation. 2 It is with the first type that this paper is concerned. This paper submits that the use of JDAs does not dispense with the need for international maritime boundary delimitation. It considers the key features of existing JDAs, and in two paragraphs, explains the reasons justifying its position. Relevant provisions of the United Nations Convention on the Law of the Sea, 1982 would also be made referenced to. KEY FEATURES OF JDA: JDAs are of different models;
however, there are key features common to all of them
irrespective of the model. First, is the provision for a Joint Development Zone (JDZ). A JDZ is used to refer to the area which would be governed by the JDA. Establishment of a JDZ is a crucial challenge to the success of a JDA, because the JDZ is usually the area behind the
JT Biang, ‘The Joint Development Zone between Nigeria and SA Tome and Principe: A Case of Provisional Arrangement in the Gulf of Guinea International Law, State Practice and Prospects for Regional Integration’ <http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/tanga_0910_came roon.pdf> accessed 28 Nov 2011. 2
N MacLeod ‘Unitisation’ in Oil and Gas Law – Current Practice and Emerging Trends G Gordon, J Paterson and nd E Usenmez (eds) (2 Edn Dundee University Press, Dundee 2011) 3 R Lagoni, ‘Interim Measures Pending Maritime Delimitation Agreements’ (1984) 78(2) American Journal of International Law <http://www.heinonline.org/HOL/Page?handle=hein.journals/ajil78&div=21&collection=journals&set_as_curs or=3&men_tab=srchresults> accessed 28 November 2011
entire controversy of boundary delimitation. 4 The area covered by the zone would also be specified, and a graphical description of it provided. This to ensure certainty of the area the states desire to be covered by the JDA. An example is seen in Article 2 of the Treaty between Nigeria and Sao Tome and Principe, 2001.
In the Timor Sea Treaty between
Australia and East Timor, it is referred to as the Joint Petroleum Development Area.
some JDAs, for example the one between Japan and the Republic of Korea, the JDZ would be further divided into sub zones each of which would be explored and exploited by the concessionaires of both states. 7 Second is the creation of a Joint Commission.
The members of the Commission are
appointed by the states to the JDA. They are charged with the duty to establish policies and regulations relating to the activities in the JDZ and also to oversee the operations of the Joint Authority. The Joint Authority is charged with the responsibility of managing the activities relating to the exploration and exploitation of the resources in the JDZ, and unlike the Joint Commission, is usually given legal personality both under international law and the laws of the respective states.
G Jiangun ‘Joint Development in the East China Sea: Not an Easier Challenge than Delimitation’ (2008) 23 International Journal of marine and Coastal Law <http://www.heinonline.org/HOL/Page?handle=hein.journals/ljmc23&div=5&collection=journals&set_as_curs or=4&men_tab=srchresults> accessed 28 November 2011 5
‘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 <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/STP-NGA2001.PDF> accessed on 30 November 2011 6
Article 3 of The Timor Treaty, Dili, 20 May 2002 (1) <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUSTLS2002TST.PDF> accessed on 30 November, 2011 7
‘Agreement Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the two countries’ 1974, between Japan and the Republic of Korea <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/jap-kor1974south.pdf> accessed on 30 November 2011 8 Article XXIV of the 1974 Japan and Republic of Korea Agreement; Article 6 (c) of the Timor Sea Treaty; Article 7 and 8 of the Nigeria and Sao Tome and Principe Treaty
Thirdly, the JDA would specify the percentage for sharing the benefits and obligations arising from development activities carried out in the JDZ. This would usually be determined by the extent of a state’s entitlement to the overlapping area. Fourthly, the JDA is made without prejudice to delimitation. This feature ensures that the JDA would neither affect the outcome of any final decision on maritime boundary delimitation between the countries, nor used in determining their claims to the area sought to be delimited. Finally, the duration of the JDA would also be specified. This feature states the life span of the JDA and possible room for extension or review. It shows that the JDA is meant to serve a temporal purpose. BETWEEN JDAs AND DELIMITATION: Coastal states having overlapping maritime boundary claims are allowed by the United Nations Convention on the Law of the Sea (UNCLOS), 1982
to enter into ‘provisional
arrangements’ pending delimitation of their maritime boundaries. Article 74(3) and 83(3) UNCLOS relating to the Exclusive Economic Zone and the Continental Shelf respectively, provides thus: Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation. (Emphasis mine) Para 1 mentioned above, provides that the delimitation of the exclusive economic zone (Article 74) or the Continental Shelf (Article 83) between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice (ICJ).
<http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf> accessed 22 November 2011
Article 38 of the Statute of the ICJ
lists the laws, conventions, customs, judicial decisions
and teachings the Court would be guided by in adjudication of disputes brought before it. As can be seen from the above provisions, the law giving states the liberty to enter into legal arrangements for the exploitation of natural resources that straddle their international boundaries, of which the JDA is an offspring, makes such arrangements provisional. The history of the provisions of Article 74(3) and 83(3) of the UNCLOS reveals the intendments of those that proposed the above provisions as well as those of the draftsmen. According to Lagoni, “at a very early stage of the 3rd United Nations conference on the Law of the sea, states became aware of the problems of interim measures pending the delimitation of maritime zones…”
This awareness led to the proposals that gave rise to
the provisions of Article 74(3) and 83(3) of the UNCLOS, not as an alternative to boundary delimitation, but as “interim regimes and practical measures that could pave the way for provisional utilization of such areas pending final delimitation”.
This fact was recognised
and re-emphasised by the International Court of Justice in the Guyana v Suriname case. 13 JDAs are one of such provisional arrangements that have been identified by Lagoni
states could enter into pending final delimitation of their maritime boundaries. Indeed, they have been of wide usage among coastal states that have problems with delimiting their boundaries. However, despite its wide usage, it cannot be an alternative to delimitation because they are created to serve an interim purpose. This fact is acknowledged and reflected in most JDAs used by coastal states. These JDAs contain duration provisions and clauses that make them to be without prejudice to final delimitation. An example is the Treaty between Nigeria and Sao Tome and Principe.
It is stated in the preamble to the
treaty that the Treaty is without prejudice to the eventual delimitation of their respective maritime zones by agreement in accordance with international law; and Article 51 fixes its duration for 45 years. 10
<http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0> accessed 22 November 2011
R Lagoni, (n 2) 349 ibid 357 13 Guyana v Suriname, Award of the Arbitral Tribunal, 2007 <http://www.pca-cpa.org/upload/files/GuyanaSuriname%20Award.pdf> accessed on 27 November 2011 14 R Lagoni, (n 2) 361 15 (n 3) 12
Secondly, economic reasons might seem to be the major reason while states struggle to delimit their maritime boundaries. As far back as 1609, the quest for control of the high seas for economic benefits had begun to emerge and was the reason for the proclamation of King James 1 of England in 1609 forbidding unlicensed fishing by foreigners off the coast of Britain. 16 The realisation by states of the growing importance of the non-living resources of the high seas and its vitality to their economic development, after the Second World War, gave rise to the concept of the continental shelf, 17 and thus the quest for states to lay claim over as much portion of the sea as they could. An example of this fact was identified by the International Court of Justice in the Gulf of Maine case
when they noted that the real
subject of dispute was Georges Bank because of the potential resources of its subsoil and its enormous fishery resources. However, the provisions of the UNCLOS that establishes the rights of states over the EEZ and the Continental Shelf shows that there are other reasons why international maritime zones should be delimited. With respect to the EEZ, Article 56(1)(a) of the UNCLOS provides that the states have sovereign rights for the purpose of exploring … conserving and managing the natural resources, whether living or non-living, … and with regard to other activities … such as the production of energy from the water, currents and winds. The states also have jurisdiction under Article 56(1)(b) to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment.
SP Kim, Maritime Delimitation and Interim Arrangements in North East Asia (Brill Academic Publishers, Leiden 2004) 17 N Dundua, ‘Delimitation of Maritime Boundaries Between Adjacent States’ <http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/dundua_0607_geo rgia.pdf> accessed on 27 November 2011 18 Judgment of 12 October 1984 given by the Chamber Constituted by the Order made by the Court on 20 January 1982 in the Gulf of Maine Case, Para 232 <http://www.icj-cij.org/docket/files/67/6369.pdf> accessed on 30 November 2011
With respect to the Continental Shelf, Article 77(1) gives the states sovereign rights over the Continental Shelf for the purpose of “exploring it”. The above provisions give states rights that cannot be exercised through the medium of a JDA. This is because JDAs are principally entered into for solely economic reasons. According to Ibrahim F. Shihata and William T. Onorato: Joint development is, in fact, a procedure under which boundary disputes are set aside, without prejudice to the validity of the conflicting claims, and the interested states agree, instead, to jointly explore and exploit and to share any hydrocarbons found in the area subject to overlapping claims. 19 The preamble to the JDA between Japan and the Republic of Korea
reveals the reason
behind the agreement which is: “carrying out jointly exploration and exploitation of petroleum resources in the southern part of the continental shelf adjacent to the two countries”. Similarly, the Timor Treaty acknowledges that one of the reasons behind the Treaty is the awareness of “the need to maintain security of investment for existing and planned petroleum activities in an area of seabed between Australia and East Timor”. 21 Unfortunately, economic reasons are not the sole purpose for the delimitation of international maritime boundaries. There are other reasons for delimitation of maritime boundaries as shown in the provisions of the UNCLOS cited above. Thus, despite the existence of JDAs, there is still the need to delimitate international maritime boundaries, to establish conclusive maritime boundaries and forestall the possibility of future maritime boundary disputes either when the years of the JDA are ended, or when a non-economic need arises for other usage of the high seas.
IFI Shitata and WT Onorato, ‘Joint Development of International Petroleum Resources in Undefined and Disputed Areas in’, in G Blakes and ors (eds) Boundaries and Energy: Problems and Prospects (Luwer Law International, Boston/London/The Hague 1998) 433 cited in JT Biang ‘The Joint Development Zone between Nigeria and Sao Tome and Principe: A Case of Provisional Arrangement in the Gulf of Guinea International Law, State Practice and Prospects for Regional Integration’, pg 4 <http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/tanga_0910_came roon.pdf> accessed 28 Nov 2011, 20 21
(n 6) Preamble to The Timor Treaty (n 5)
CONCLUSION: Despite the widespread use of JDAs by coastal states, they cannot be used as an alternative to delimitation of international maritime boundaries. This is because first, they are by creation meant to serve as provisional arrangements pending the final delimitation of maritime boundaries, and secondly, they donâ€™t achieve the purpose delimitation is supposed to achieve, as they serve only economic purposes. Those that think otherwise might be forced to change their stance when the resources in the areas covered by the JDAs have been depleted.
BIBLIOGRAPHY BOOKS: Gordon G, Paterson J and Usenmez E, Oil and Gas Law – Current Practice and Emerging Trends (eds) (2nd Edn Dundee University Press, Dundee 2011) Kim SP, Maritime Delimitation and Interim Arrangements in North East Asia (Brill Academic Publishers, Leiden 2004)
ONLINE JOURNALS: Jiangun G ‘Joint Development in the East China Sea: Not an Easier Challenge than Delimitation’ (2008) 23 International Journal of marine and Coastal Law <http://www.heinonline.org/HOL/Page?handle=hein.journals/ljmc23&div=5&collection=jou rnals&set_as_cursor=4&men_tab=srchresults> accessed 28 November 2011 Lagoni R, ‘Interim Measures Pending Maritime Delimitation Agreements’ (1984) 78(2) American Journal of International Law <http://www.heinonline.org/HOL/Page?handle=hein.journals/ajil78&div=21&collection=jou rnals&set_as_cursor=3&men_tab=srchresults> accessed 28 November 2011 INTERNET SOURCES: http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf> accessed 22 November 2011 http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0> accessed 22 November 2011 http://www.pca-cpa.org/upload/files/Guyana-Suriname%20Award.pdf> accessed on 27 November 2011 http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/ dundua_0607_georgia.pdf> accessed on 27 November 2011 http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/t anga_0910_cameroon.pdf> accessed 28 Nov 2011,
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/t anga_0910_cameroon.pdf> accessed 28 Nov 2011. http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/STPNGA2001.PDF> accessed on 30 November 2011 http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUSTLS2002TST.PDF> accessed on 30 November, 2011 http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/japkor1974south.pdf> accessed on 30 November 2011 http://www.icj-cij.org/docket/files/67/6369.pdf> accessed on 30 November 2011