The core content of the obligation and its significance

From the outset, it is worth emphasizing that the requirement to “make every effort” also applies to the obligation not to jeopardize or hamper, not only to the obligation to seek provisional arrangements.⁴⁵³ It would be a significant difference if the UNCLOS had stipulated an absolute obligation not to jeopardize or hamper. However, for convenience, the considered obligation is abbreviated as ‘the obligation not to jeopardize or hamper’ in this thesis. The temporal scope

449 Ghana/Côte d'Ivoire Judgment, para. 594.

450 Ghana/Côte d'Ivoire, Separate Opinion of Judge Paik, para. 18, available at https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits/C23_Judgment_23.09.2017_SepOp_P aik_orig.pdf (last accessed January 2019).

451 See in detail N. Ermolina and C. Yiallourides, “State responsibility for unilateral hydrocarbon activities in disputed maritime areas: The case of Ghana and Côte d’Ivoire and its implications”, JCLOS Blog, 23 November 2017, available at http://site.uit.no/jclos/files/2017/11/JCLOS-Blog-231117_Ghana-blog_final.pdf (last accessed January 2019).

452 Ghana/Côte d'Ivoire, Separate Opinion of Judge Paik, supra note 450, para. 18. Judge Paik has also noted that State B may be able to claim for compensation with respect to damage arising from activities of State A (for example, on the basis of unjust enrichment) conducted on the CS attributable to State B.

453 Guyana v. Suriname, para. 459; Ghana/Côte d'Ivoire Judgment, paras. 626-627.

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of this obligation and the meaning of the phrase ‘make every effort’ have been discussed in Chapters 3.2 and 3.3.1 above, respectively.

Paragraph 3 does not define the terms ‘jeopardize’ and ‘hamper’. According to the Concise Oxford Dictionary, the verb ‘jeopardize’ means to “put (someone or something) into a situation in which there is a danger of loss, harm, or failure”, while ‘hamper’ means to “hinder or impede the movement or progress of”.⁴⁵⁴ Thus, the obligation not to jeopardize or hamper appears to mean that States having overlapping claims regarding a certain maritime area must make every effort not to engage in activities that might endanger the reaching of a final agreement on delimitation or impede the progress of negotiations to that end.⁴⁵⁵

It is clear that the obligation not to jeopardize or hamper does not necessarily exclude all activities unilaterally conducted within undelimited maritime areas, but rather those that would jeopardize or hamper the reaching of a final delimitation agreement.⁴⁵⁶ However, it is unclear which types of activities are to be regarded as having the effect of jeopardizing or hampering.

In the framework of this Chapter, the principal question relates to the nature of unilateral hydrocarbon activities that is likely to breach the obligation not to jeopardize or hamper.⁴⁵⁷ Anderson and van Logchem, and van Logchem writing separately, affirm that the question of what type of conduct jeopardizes or hampers is not likely to be answered in the abstract. They argue that the assessment of whether a particular unilateral action amounts to jeopardizing or hampering is subjective.⁴⁵⁸ However, a court or tribunal dealing with a (putative) breach of the obligation not to jeopardize or hamper would be likely to apply an objective criterion, as the Tribunal in Guyana v. Suriname did (or attempted to do).⁴⁵⁹ The Tribunal introduced a standard of “(permanent) physical change to the marine environment” that in general terms implies that petroleum activities which satisfy this standard shall not be permitted in undelimited maritime

454 The definitions are taken from the BIICL’s Report on Undelimited Maritime Areas, op. cit., para. 75, p. 22, which refers to the Concise Oxford Dictionary (10^th edition, OUP 1999), pp. 759 and 644, respectively.

455 Ibid., paras. 76-83. See also Ghana/Côte d'Ivoire, Separate Opinion of Judge Paik, op. cit., para. 6.

456 Nandan and Rosenne (eds), op. cit., p. 815. See also Guyana v. Suriname, para. 465.

457 Apart from hydrocarbon activities, the same question can be asked in the context of other unilateral activities undertaken in undelimited maritime areas such as fishing, laying submarine cables or pipelines, marine scientific research or enforcing national legislation. Another question is whether other conduct (e.g., rejection of a proposal to negotiate a delimitation agreement or the expulsion of diplomats) may also be considered as being inconsistent with the obligation not to jeopardize or hamper.

458 Anderson and van Logchem, op. cit., p. 206; van Logchem 2014, op. cit., p. 186.

459 BIICL’s Report on Undelimited Maritime Areas, op. cit., para. 85, p. 25.

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areas and those which do not, are to be allowed.⁴⁶⁰ This Chapter discusses the reasonableness of such an approach with respect to the obligation not to jeopardize or hamper.

The existence of an objective standard as to what constitutes jeopardizing or hampering may be seen as also desirable for ensuring the stability of private petroleum companies’ activities in undelimited maritime areas and the investment flow.

The issue of unilateral conduct is of a practical importance. There are a number of examples where States, despite the existence of a disputed maritime area, carry out unilateral exploration and/or exploitation activities in such area. The ongoing Somalia v. Kenya case exemplifies this scenario.⁴⁶¹ In other situations, the legality of unilateral petroleum activities has not yet been challenged before a judicial body (for different reasons).⁴⁶²

It is also important to note that there are examples where neighboring States have abstained from or suspended hydrocarbon activities in undelimited areas following an agreement or a protest from one of the States.⁴⁶³ In some cases, unilateral hydrocarbon activities resulted in the conclusion of provisional arrangements.⁴⁶⁴ This elicits the question of whether the duty of restraint embodied in the obligation not to jeopardize or hamper reflects customary international law. In 1984, Lagoni stated that articles 74 (3) and 83 (3) of the UNCLOS could be the basis for an emerging customary rule.⁴⁶⁵ His observation was based on the fact that paragraph 3 represented an element of progressive development within the rules on delimitation that did not

460 See Chapter 3.4.3 in this respect.

461 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), ICJ, pending, latest developments are available at https://www.icj-cij.org/en/case/161 (last accessed January 2019).

462 See such examples in: A. Rizza, “The Falkland Islands and the UK v. Argentina Oil Dispute: Which Legal Regime?”, Institut für Völker- und Europarecht, 2011, p. 76. The China’s deployment of an oil rig in an area that is also claimed by Vietnam (“China optimistic of finding gas off Vietnam, could test ties further – experts”, Reuters, 28 May 2014, available at http://www.reuters.com/article/china-vietnam-gas-idUSL3N0O72NT20140528 (last accessed January 2019)). Another example is in the Mediterranean Sea where Turkey argues that the Greek Cypriot Administration is not entitled to issue exploration and exploitation licenses in the “Block 6” because this Block belongs to the CS of Turkey (“Turkey threatens Cyprus, oil giants ENI and TOTAL, and to annex Northern Cyprus”, Keep Talking Greece, 3 May 2017, available at http://www.keeptalkinggreece.com/2017/05/03/turkey-threatens-cyprus-eni-total-annex-northern-cyprus/ (last accessed January 2019)).

463 Such examples are mentioned in paras. 9.46-9.48 (with the relevant footnotes) of the Counter-Memorial of Cote

d’Ivoire in Ghana/Cote d’Ivoire, available at

https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.23_merits/pleadings/Counter_Memorial_final_V ol.I_Eng_TR.pdf (last accessed January 2019).

464 See, for example, I. Townsend-Gault, “Petroleum development offshore: legal and contractual issues”, in: N.

Beredjick et al. (eds), Petroleum Investment Policies in Developing Countries, 1988, p. 150: “[South] Korea suggested joint development after Japan had objected to Korean licensing in the areas claimed by her”. J.

Saravanamuttu, “Malaysia’s Approach to Cooperation in the South China Sea”, in: S. Wu and K. Zou (eds), Non-Traditional Security Issues and the South China Sea: Shaping a New Framework for Cooperation, Routledge, 2016, pp. 83-84 concerning the Malaysia-Vietnam cooperation. See also Chapter 6.

465 Lagoni 1984, op. cit., p. 367.

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in themselves go beyond existing customary international law.⁴⁶⁶ Can one now affirm that the duty of restraint is an international custom?

States usually do not announce the legal motivation behind their decision not to conduct petroleum activities.⁴⁶⁷ Therefore, it is difficult to establish whether States consider themselves bound by the duty to exercise restraint in undelimited maritime areas (opinio juris), which is necessary for the formation of customary international law. It is also important to bear in mind that there are many examples where States continue hydrocarbon activities despite objections of their neighbors. Even if the duty of restraint has the status of customary international law, this does not provide a clear answer to the question of the extent to which a State shall exercise restraint in an undelimited maritime area.

3.4.2 Guyana v. Suriname – the key case on the application of the obligation Guyana v. Suriname is the leading case in which the obligation not to jeopardize or hamper was considered in detail. Ten years after the Tribunal rendered its Award in Guyana v. Suriname, the ITLOS’s SC had an opportunity to elaborate the meaning of the obligation not to jeopardize or hamper in Ghana/Côte d’Ivoire. However, the SC did very little in this respect partly because of the submissions’ formulation of Côte d’Ivoire.⁴⁶⁸ Thus, Guyana v. Suriname remains the only one where the obligation not to jeopardize or hamper has been applied and interpreted in the context of unilateral hydrocarbon activities in disputed maritime areas.

In Guyana v. Suriname, the Tribunal considered the obligation not to jeopardize or hamper in the context of the legality of exploratory drilling authorized by Guyana in an area where the maritime claims of Guyana and Suriname overlapped. When considering this obligation, the Tribunal heavily relied on a provisional measures Order indicated by the ICJ in Aegean Sea Continental Shelf (Greece v. Turkey).⁴⁶⁹

It is worth noting that the regime of provisional measures has a different origin. The power to prescribe provisional measures is given, inter alia, to the ICJ and the ITLOS under provisions set forth in their constituent instruments.⁴⁷⁰ There are several requirements that must be met in order for these judicial bodies to exercise this power.⁴⁷¹ Although the regime of provisional

466 Ibid., p. 368. See Chapter 1 on the dichotomy between progressive development and codification.

467 BIICL’s Report on Undelimited Maritime Areas, op. cit., paras. 137-141.

468 Ghana/Côte d’Ivoire Judgment, para. 633. See Ermolina and Yiallourides, op. cit. See also Chapter 3.2.2.

469 Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order, 11 September 1976, ICJ Reports 1976, p. 3.

470 ICJ’s Statute, art. 41; ITLOS’s Statute, art. 25.

471 See in detail Chapter 3.5.

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measures is of a special nature, the legal requirements developed by international courts and tribunals for prescribing provisional measures may nevertheless provide some assistance in interpreting the obligation not to jeopardize or hamper.⁴⁷²

The Tribunal underlined that the “exceptional” power to prescribe provisional measures is triggered only when activities carried out in disputed maritime areas might cause irreparable prejudice to the rights of the parties.⁴⁷³ However, the Tribunal stated that cases dealing with the prescription of provisional measures are informative as to what type of activities “should be permissible” in disputed areas pending a delimitation agreement or a provisional arrangement.⁴⁷⁴ It automatically means that the informative value of provisional measures is also contained in explaining which activities are to be prohibited in disputed maritime areas.

The Tribunal further held that activities to which the prescription of provisional measures would be justified, “would easily meet the lower threshold of hampering or jeopardizing the reaching of a final agreement” on delimitation.⁴⁷⁵ In other words, the Tribunal characterized the threshold for prescribing provisional measures as being higher than the threshold for identifying activities that jeopardize or hamper under the meaning of articles 74 (3) and 83 (3) of the UNCLOS.

Despite this observation, the criteria that guided the Tribunal in its analysis of whether a breach of the obligation not to jeopardize or hamper had occurred were those “used by international courts and tribunals in assessing a request for [provisional] measures, notably the risk of physical damage to the seabed or subsoil”.⁴⁷⁶ Hence, it is difficult to understand the extent to which the obligation not to jeopardize or hamper actually diverges from the regime of provisional measures.⁴⁷⁷ Moreover, it leaves open the question of whether activities that would not meet the standard for prescribing provisional measures, can nevertheless be regarded as jeopardizing or hampering the reaching of a final agreement.⁴⁷⁸

While the Tribunal blurred the line between the obligation not to jeopardize or hamper and the regime of provisional measures, the practice of prescribing provisional measures seems to maintain this division. It clearly follows from Ghana/Côte d’Ivoire in which the SC made no

472 Guyana v. Suriname, paras. 468-469. A similar approach has been adopted by a number of legal scholars long before the Award in Guyana v. Suriname: see Lagoni 1984, op. cit., pp. 365-366; Miyoshi 1988, op. cit., pp. 10-11; Ong 1999, op. cit., pp. 798-799; Kim 2004, op. cit., pp. 57-58; Klein 2006, op. cit. (repeated in Klein 2018, op. cit., pp. 140-141).

473 Guyana v. Suriname, para. 469.

474 Ibid.

475 Ibid.

476 Ibid.

477 Van Logchem 2014, op. cit., p. 187-188.

478 See Chapters 3.4.3 and 3.5 in this respect.

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mention of articles 74 (3) and 84 (3) of the UNCLOS in its Order, even though both Parties mentioned those provisions in their submissions. One possible explanation might be that the Chamber considered these articles irrelevant in the context of provisional measures. Moreover, the circumstances surrounding Ghana/Côte d’Ivoire differed significantly from those in Guyana v. Suriname.

Thus, the conditions for prescribing provisional measures could contribute to the clarification of the content of the obligation not to jeopardize or hamper. However, considering that the regime of provisional measures has been established independently from paragraph 3, it is debatable whether findings of a dispute settlement body on the obligation not to jeopardize or hamper would significantly influence the development of the requirements within the institution of provisional measures. This suggests that there may be a one-sided relationship between the regime of provisional measures and paragraph 3.⁴⁷⁹