//
you're reading...
On Cooperation in Joint Development

On cooperation in joint development in international law and realities (Chapter I )

 Nowadays, together with the scientific, technological and economic development, the possibility of exploiting the sea by human beings has become ever more expanding; human awareness of the importance of the sea for life, for the economic development and for security and defense of nations has become increasingly raised. That is why the common strategy of human kind in the present day seems being built on the basis of one of the most principal tendencies: the tendency to advance towards the sea and to act as the master of the sea.

However, together with the great benefits brought about by the sea, the enhancement of the jurisdiction of the coastal nations has made the contradictions and disputes on the sea ever more acute and complicated. The disputes arising in the process of delimitating the sea boundaries (particularly the delimitation of the continental shelves and the exclusive economic zones), the disputes concerning the exploitation and use of the sea, especially in the overlapping marine areas, the areas adjacent to the marine boundary delimitations and so on have become ever more numerous, even in some regions, there has been hidden with the danger leading to armed conflicts, threatening the regional and world peace and security.

On cooperation in joint development in international law and realities

So, the solution of cooperation in the joint development could help temporarily shelf all the disputes with the aim of restricting the tension that could lead to the armed race or armed conflicts; the joint development by peaceful means could help to ease off the international disputes and iron out differences.

According to the 1982 UN Convention on the Law of the Sea, while waiting for the signing of the agreement on the marine boundary delimitation, “the states concerned, in the 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” (Section 3, Articles 74 and 83). So the establishment of the area for the joint development through international treaties among the states concerned is in conformity with and observance of the general provisions of international law. The fact shows that once the areas for the joint development are established in the overlapping areas on the continental shelf or in the exclusive economic zone, the legal system for this area is extremely diverse and complicated. Even the parties getting involved in the joint development are the two parties or multi parties, whether the law applied to the area of the joint development is the law of this country or that country (the law of one of the parties or the law of the third country or the mixed law made by the mutual agreement), the legal regime of the area of the joint development shall have to abide by the provisions of the modern international law, especially the 1982 UN Convention on the Law of the Sea.

That is why, when delimitating the area of the joint development in the sea, the states concerned need to study, consider and evaluate in a comprehensive way and find out the optimal solution to build an effective legal mechanism in order to guarantee the fair benefits for the parties, observe strictly all the provisions of international law, especially the 1982 UN Convention on the Law of the Sea.

With a view to providing readers with a useful reference document concerning the aforesaid issue, the National Political Publishing House – Truth has published the book entitled “On Cooperation in Joint Development in International Law and Realities”.  The book is written by the authors who are the experts in the international law area.

We would like to introduce the book to readers.

THE NATIONAL POLITICAL PUBLISHING HOUSE -TRUTH
February 2012

PREFACE

Cooperation in the joint development in the sea can be understood as the agreement among the states with a view to exploiting the resources lying across the determined marine delimitations or in the areas where there is a claim of overlapping sovereignty of these states. Cooperation in the joint development is also the temporary arrangement solution, not detrimental to the claims of the parties and without impacting the final agreement on the settlement of the disputes of the right to sovereignty and territorial sovereignty. (Nguyễn Bá Diến: Cooperation in Joint Development in International Marine Law, the Justice Publishing House, Hanoi, 2009, p. 24).

The question here is that is the cooperation in the joint exploitation of the marine resources beneficial or harmful to sovereignty, security and interests of the coastal states? If it is harmful, so why are there hundreds of agreements on the joint exploitation in a lot of different regions in the world? If it is beneficial, so why are there a lot of coastal states which have to be so cautious before coming to agreement in the joint exploitation? And especially important is how the coastal states still protect their national sovereignty, security and interests while they cooperate in the joint exploitation?

Through the analysis of the international legal basis of the cooperation in the joint development and the realities in the joint development in the world and in the Southeast Asian region, the book tries to find out the answer to the above-said questions.

All the opinions cited in this book are only the personal viewpoints of the group of authors without reflecting the official viewpoint of any state agency. It is hoped that the book will be served as a useful reference document for readers.

The Group of Authors

Chapter I

INTERNATIONAL LEGAL BASIS OF COOPERATION IN MARINE JOINT DEVELOPMENT

The international legal basis of the cooperation in the marine joint development among the states concerned in the sea areas is the international treaties on the sea, the fundamental principles of international law and the principles of the international law of the sea.

I.  INTERNATIONAL TREATIES ON THE SEA

International treaties on the sea are the international legal basis of greatest importance for cooperation in the joint development on the sea. These treaties comprise the 1982 UN Convention on the Law of the Sea (the 1982 Convention on the Law of the Sea in short) and the concrete treaties on cooperation in the joint development among the states concerned.

1. The 1982 Convention on the Law of the Sea

a/ On the temporary solution:

In accordance with the 1982 Convention on the Law of the Sea, in case there is an overlapping concerning the claim to the sea areas and continental shelf of the states concerned, the states are held responsible to negotiate with one another in such a way as to be in conformity with international law so as to be able to delimit the sea boundary by equal means. While waiting to sign the agreements on the marine boundary delimitation, “the states concerned, in the 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” (Section 3: Articles 74 and 83 of the 1982 UN Convention on the Law of the Sea).

The temporary arrangements mentioned in the 1982 Convention on the Law of the Sea include the arrangements of cooperation in exploration and exploitation of the marine resources; cooperation in environmental protection and the marine ecosystems. The temporary arrangements shall not jeopardize the final planning. Or in other words, the temporary arrangements shall not make any impact on the results of the overlapping maritime delimitation already reached by the concerned parties during or after implementing the temporary arrangements.

It should be noted here that the agreement on the joint development is not the binding obligation in accordance with international law in general and with the 1982 Convention on the Law of the Sea in particular and it is also not the obligation in accordance with international law (Nguyễn Bá Diến: Cooperation in Joint Development in the International Law of the Sea, ibid, p. 32). The joint development is only one of the temporary arrangements the states could select, not one priority among the above-said temporary arrangements.

b/ On the contiguous marine area:

The 1982 Convention on the Law of the Sea supplies an important legal basis to determine the overlapping marine area among the states: it is the marine area created by the legal claim to sovereignty of a coastal state with the contiguous or opposite coasts without having reached yet any agreement on the marine delimitation. That legal basis is the provisions of the 1982 Convention on the Law of the Sea on determining the marine areas falling under sovereignty, the right to sovereignty and jurisdiction of the coastal states such as territorial waters, the contiguous territorial waters, the exclusive economic zones and the continental shelf. The overlapping sea waters are often created by the states concerned as the joint development areas when there is yet to be any marine delimitation.

c/ On the States’ obligation of cooperation in the process of cooperation in the joint development

The states concerned could set up the areas for joint exploitation when necessary. However, in the process of cooperation in the joint development, these states shall have to observe the following definite obligations:

– Not to make any impact on the rights and the freedom of other countries in the waters under the national jurisdiction of the coastal states, in which there is the right to lay the underwater pipe and cable lines on the continental shelf of the coastal state, the right to have free navigation, the right to conduct the marine scientific researches (but there must be an agreement of the coastal state) as recognized by the 1982 Convention on the Law of the Sea.
– It is obligatory to carry out the marine environmental protection and other marine ecosystems in accordance with the stipulations of the 1982 Convention on the Law of the Sea and other globally popular international treaties on environmental protection.

– In case there is enclosed or semi-enclosed sea – as defined by Article 122 of the 1982 Convention on the Law of the Sea, it is gulf, basin or sea surrounded by two or more states and connected to another sea or the ocean by the narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal states, then in accordance with Article 123 of the 1982 Convention on the Law of the Sea: “States bordering on enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end, they shall endeavor, directly or through an appropriate regional organization:

a) to coordinate the management, conservation, exploration and exploitation of the living resources of the sea;
b) to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;
c) to coordinate their scientific research policies and undertake where appropriate joint programs of scientific research in the sea;
d) to invite, as appropriate, other interested states or international organizations to cooperate with them in furtherance of the provisions of this article.”

2. The specific treaties on cooperation in the joint development

The 1982 Convention on the Law of the Sea only points out the general principle for the temporary solutions, in which there is the form of cooperation in the joint development. The agreements among the states concerned shall concretize the cooperation in the joint development.

In the specific treaties on cooperation in the joint development, the states concerned shall have to agree to the ways of implementing the joint exploitation in conformity with the provisions already agreed upon by the states concerned.

II. FUNDAMENTAL PRINCIPLES OF INTERNATIONAL LAW AND INTERNATIONAL LAW OF THE SEA RELATING TO COOPERATION IN JOINT DEVELOPMENT

1. The fundamental principles of modern international law

The fundamental principles of modern international law have the binding value towards all the members of the community of states. These principles are widely taken note of in the international legal documents, in which there is the UN Charter and the Declaration on the Principles of International Law Adjusting the Friendly Relations and Cooperation on October 24, 1970. These principles are also the important basis to adjust the relations among the states in the marine relations in general and in the joint exploitation in particular. The fundamental principles of international law that could be applied to the cooperation in the joint development comprises: the principle of equality in sovereignty among states; the principle of the national right to self-determination; the principle of not using force or threatening to use force; the principle of devotion and volunteer to implement the international commitments.

a/ The principle of equality in sovereignty among states

Equality in sovereignty among the states is the foundation of the modern international relations. Equality in sovereignty among the states comprises the following contents: all the states enjoy equal footing in the legal aspect; have the right to self-determination in the entire domestic and foreign affairs; without being imposed from other subject of international law; independence, sovereignty, the unification and territorial integrity are respected.

The principle of equality in sovereignty among the states is the most fundamental foundation of all the cooperative activities in the joint development in the sea. According to this principle, the relevant states are equal among equals in the legal aspect; equal in all activities and in sharing equal benefits from the joint exploitation; at the same time, it is obligatory to respect sovereignty, the right to sovereignty and jurisdiction concerning the sea waters of other states determined as conforming to the provisions of the 1982 Convention on the Law of the Sea.

b/ The principle of the right to self-determination:

The right to self-determination is the freedom of each nation to choose the road and form of development that conforms to their own conditions, the right to enjoy equality with other nations, the right to determine their own natural resources.

According to this principle, the states concerned have the right to make a decision on the agreement to conduct the joint exploitation or not to conduct the joint exploitation. Not any nation has the right to force other nation to join the joint exploitation if that nation does not accept it.

c/ The principle of not using force or threatening to use force

Section 4, Article 2 of the UN Charter provides: “All UN members shall refrain in their international relations from the threat or use of force; or from the use of any strength to control, threaten or force that runs counter to international law for a sovereign nation.”

According to this principle, a nation is not allowed to use force or threat to use force or use any other strength to force other nations to have cooperation in the joint exploitation.

d/ The principle of devotion and volunteer to implement international commitments

The principle of devotion and volunteer to implement international commitments is also the important principle that adjusts directly the agreements on the joint exploitation and the joint exploitation activities of the states concerned.

In accordance with this principle, cooperation in the joint exploitation can only be agreed upon on the basis of volunteer of each sovereign state, without being forced by other states. And once agreed upon, the states concerned shall also have the obligation to devote to implementing their commitments in the agreement on the joint exploitation.

2. The principles of international law of the sea

Besides, the joint exploitation activities shall also have to abide by the fundamental principles of international law of the sea which has been widely recognized, it is the principle of freedom of the high sea; the principle of land dominating sea; the principle of environmental protection and the marine ecosystems.

a/ The principle of freedom of the high seas:

The principle of freedom of the high seas includes the freedom of the high seas and a number of freedoms of other states in the sea waters falling under the jurisdiction of the coastal states.

In accordance with the freedom of the high seas, the high seas is left open to all states, whether the states with sea or without sea. This principle does not allow any state to occupy any sea waters and place that sea waters under its sovereignty. In that spirit, the states concerned are not allowed to turn the high seas into the area for the joint exploitation.

While conducting the joint exploitation activities, the states joining the joint exploitation activities shall also have the obligation to respect a number of definite freedoms of other states in the sea waters falling under the national jurisdiction. These freedoms comprises the right to have harmless passage in the territorial waters of the coastal states; the freedom to navigation, the freedom to aviation, the freedom to place the underground cable and pipe lines in the exclusive economic zone of the coastal states, the freedom to place the cable and pipe lines on the continental shelf of the coastal states; the freedom to conduct the sea scientific researches in the exclusive economic zone and on the continental shelf with the agreement of the coastal states.

b/ The principle of land dominating sea:

Land dominates sea is the specific manifestation of the res nullius theory, that allows the coastal states to expand their national sovereignty towards sea. The 1982 Convention on the Law of the Sea stipulates that territorial sovereignty is the prerequisite to expand the national sovereignty to the territorial sea and other waters like the archipelagic waters (1,2,3. Articles 2, 192 and 194 of the 1982 Convention on the Law of the Sea).

So, the claim to the sea sovereignty of a state runs counter to the principle of land dominating sea and it is the claim unsuitable to the international law of the sea and it cannot be termed as the legal claim, and therefore, it cannot be considered as the basis to determine the overlapping sea waters.

c/ The principle of environmental protection and the marine ecosystems:

In accordance with the principle of environmental protection and the marine ecosystems, all the states participating in the use of the sea shall have to respect the principle of environmental protection and maintenance and protection of the marine ecosystems (1,2,3. Articles 2, 192 and 194 of the 1982 Convention on the Law of the Sea). While conducting the cooperative activities of the joint exploitation, the states concerned are responsible to take necessary measures to protect the marine environment and ecosystems in the areas of the joint exploitation and not do harm to environment of the sea waters lying outside the areas of the joint exploitation.

Translated by Manh Chuong

This article originally appeared at http://www.vietnam.vn/on-cooperation-in-oint-development-in-international-law-and-realities-chapter-i–c1068n20130220152305056.htm

Advertisements

Discussion

Trackbacks/Pingbacks

  1. Pingback: On cooperation in joint development in internat... - November 18, 2013

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow South China Sea on WordPress.com

Enter your email address to follow this blog and receive notifications of new posts by email.

Join 25 other followers

%d bloggers like this: