‘shared natural resources’
2.4 General and specific obligations to cooperate
This section explores whether the understanding of disputed and transboundary hydrocarbons as shared natural resources implies a duty to cooperate.
2.4.1 The general duty to cooperate and its forms
The general duty to cooperate constitutes a basic principle of public international law. Article 1 (3) of the UN Charter sets out that one of the purposes of the UN as an international organization is to achieve international cooperation in order to solve problems of an economic, cultural or humanitarian character. Further, article 2 of the Charter contains the relevant legal principles to be respected by both the organization and its members for the achievement of the purposes enshrined in article 1. However, this general aim of cooperation is not reflected in article 2. On the other hand, Chapter IX of the Charter is wholly dedicated to the question of
“international economic and social co-operation”. An array of issues, concerning which States pledge themselves to cooperate internationally in the socio-economic field, can include, for instance, those related to education, public health, environmental protection.303
The UNGA has reaffirmed the general duty to cooperate by its Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States.304 The Declaration proclaims the duty to cooperate as one of the principles of international law, which
301 See, for example, US-Mexico Agreement, art. 2.
302 K. N. Casper, “Oil and Gas Development in the Arctic: Softening of Ice Demands Hardening of International Law”, Natural Resources Journal, 2009, vol. 49 (3/4), pp. 832-833. See also Glossary.
303 UN Charter, arts. 55 and 56; B. Garcia, The Amazon from an International Law Perspective, Cambridge University Press, 2011, p. 5.
304 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, UNGA Resolution 2625 (XXV) of 24 October 1970, 13 UNR 337, 4th principle.
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consequently applies to all States,305 including the non-members of the UN.306 The ICJ has highlighted that the unanimous approval of this Declaration has to be regarded as “an acceptance of the validity of the rule or set of rules declared by the resolution”.307
According to the Declaration, States “have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, […]”.308 However, the Declaration employs the verb ‘should’ when it comes to cooperation in the economic, social and cultural fields, as well as in the domain of science and technology. Such usage does not correspond to the mandatory ‘shall’ contained in the initial part under the heading “The duty of States to co-operate with one another in accordance with the Charter”.309 Therefore, the Declaration does not make it clear whether States have recognized the legal duty to cooperate in the specific context of socio-economic issues.
There is considerable debate in the literature as to customary status of the duty to cooperate.310 It is noteworthy that since the 1970s, the general duty to cooperate has got an extensive follow-up in multilateral treaty law. The general duty to cooperate is spelled out in many legal instruments regulating different fields of international law. Prior to the examination of the duty to cooperate in the field of shared natural resources, it is important to distinguish two types of this duty: a pactum de negotiando and a pactum de contrahendo. The main difference between them is that the former contains a mere obligation to negotiate in good faith, while the latter imposes an obligation to reach an agreement. Thus, the pactum de negotiando creates a weaker commitment than a pactum de contrahendo since it does not go so far as to require the conclusion of an agreement at any cost.311 The issue of whether a particular legal instrument constitutes a pactum de negotiando or a pactum de negotiando should be considered with caution.312 For instance, at first glance, it may appear that there is a pactum de contrahendo
305 Ibid., General Part, point 3 of the Declaration.
306 F. X. Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law, The Hague: Kluwer Law International, 2000, p. 271.
307 Nicaragua v. the US, para. 188.
308 UNGA Resolution 2625 (XXV), supra note 304, 4th principle.
309 Ibid., paras. 1 and 2 of the 4th principle of cooperation.
310 See, for example, Perrez 2000, op. cit.
311 L. McNair, The Law of Treaties, Clarendon Press Oxford, 1986, pp. 27-29 and p. 567.
312 Owada has noted that “whether an instrument constitutes a pactum de contrahendo or a pactum de negotiando and imposes legal obligations is a delicate issue of legal interpretation. An imprecise or unclear formulation of the commitment in question often raises doubts as to its legally binding character, and an ambiguous or indeterminate clause may be construed only to reflect the parties’ common understanding on joint political goals”. See H. Owada, “Pactum de contrahendo, pactum de negotiando”, Max Planck Encyclopedia of Public International Law (online version, updated: April 2008), available at
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concerning the delimitation of the EEZ and CS.313 Nevertheless, it is generally understood that these provisions establish a pactum de negotiando.314
As observed below in this thesis, duties to cooperate in respect of shared hydrocarbons may take the form of both a pactum de contrahendo and a pactum de negotiando, although the latter form prevails.315
2.4.2 The duty to cooperate with respect to shared natural resources
A number of resolutions adopted by the UNGA include the duty of States to cooperate regarding shared natural resources. UNGA Resolution 3129 (XXVIII) underlines the necessity to establish “adequate international standards for the conservation and harmonious exploitation of natural resources common to two or more States”.316 It is further stressed that cooperation shall be developed “on the basis of a system of information and prior consultation”.317 This statement echoes with article 3 of the Charter on Economic Rights and Duties of States that provides for cooperation between States sharing natural resources “on the basis of a system of information and prior consultation in order to achieve optimum use of such resources without causing damage to the legitimate interests of others”.318 Thus, the main message enshrined in these UNGA Resolutions is that States are expressly required to cooperate prior to any exploitation of a shared natural resource.
The UNEP draft Principles urge States sharing a natural resource to cooperate in order to conserve and utilize it in a harmonious manner.319 The requirement to cooperate is further transformed into specific commitments, including the exchange of information, notification, and consultation between States that share natural resources.320 Moreover, the UNEP draft Principles reflect such modern obligations of States under international law as the duty to prevent transboundary harm and the duty to conduct an environmental impact assessment (EIA).321
http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1451 (last accessed January 2019).
313 UNCLOS, arts. 74 (1) and 83 (1).
314 North Sea Continental Shelf, pp. 46-47. See also T. Cottier, Equitable Principles of Maritime Boundary Delimitation: the Quest for Distributive Justice in International Law, Cambridge University Press, 2015, p. 219.
315 See Chapters 3 and 4 in this respect.
316 UNGA Resolution 3129 (XXVIII), supra note 270, para. 1.
317 Ibid., para. 2.
318 UNGA Resolution 3281 (XXIX), supra note 270.
319 UNEP draft Principles, supra note 271, principles 1 and 2.
320 Ibid., principles 5, 6 and 7.
321 Ibid., principles 3 and 4. See D. Dam-De Jong, International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations, Cambridge University Press, 2015, p. 146.
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More recently, the duty to cooperate is firmly established in the context of some categories of shared natural resources. One of the most sophisticated legal regimes in this respect relates to shared water resources. The duty to cooperate has been codified in a number of instruments dealing with international watercourses322 and shared groundwater resources.323 States are obligated to cooperate in order to attain equitable and reasonable utilization and adequate protection of these shared water resources.324 The process of cooperation among States is framed by specific requirements to exchange information, notify, conduct an EIA, consult and negotiate.325
The management and conservation of shared fish stocks is also governed by the duty to cooperate.326 Unlike shared water resources, the duty of States to cooperate with respect to shared fisheries resources is formulated in more concrete manner. States are required to cooperate directly or through regional fisheries management organizations (RFMOs) or arrangements.327 It is notable that apart from the general procedural requirements encapsulated in the duty to cooperate, the institutional component of the duty to cooperate in the context of shared fisheries resources is strong.
Thus, the development of the legal regimes governing the management of water and fisheries resources supports the argument that the duty to cooperate exists and includes concrete procedural requirements. Nevertheless, whereas the duty to cooperate has been enshrined in the context of shared water and fisheries resources, there are many other types of shared natural
322 Watercourses Convention, art. 8. Other legal instruments are described by M. M. Rahaman, “Principles of Transboundary Water Resources Management and Water-related Agreements in Central Asia: An Analysis”, Water Resources Development, 2012, vol. 28 (3), pp. 478-480.
323 ILC’s draft Articles on the Law of Transboundary Aquifers, 2008, art. 7. See Chapter 1.
324 It is worth to note that article 8 of the Watercourses Convention refers to “optimal utilization and adequate protection of an international watercourse” (emphasis added), while article 7 of the ILC’s draft articles on the Law of Transboundary Aquifers uses the wording “equitable and reasonable utilization and appropriate protection”
(emphasis added) of a transboundary aquifer or aquifer system. These objectives of the general duty to cooperate appear to be equivalent. See C. Leb, Cooperation in the Law of Transboundary Water Resources, Cambridge University Press, 2013, p. 85.
325 Pulp Mills, para. 81. See also Perrez 2000, op. cit., pp. 304-317; C. Leb, “One step at a time: International law and the duty to cooperate in the management of shared water resources”, Water International, 2015, vol. 40 (1);
O. McIntyre, Environmental Protection of International Watercourses under International Law, 2013, pp. 221-229; Leb 2013, supra note 324; O. McIntyre, “The Role of Customary Rules and Principles of International Environmental Law in the Protection of Shared International Freshwater Resources”, Natural Resources Journal, 2006, vol. 46 (1), pp. 186-189.
326 UNCLOS, art. 63; FSA, art. 5. The typologies of shared fish stocks: R. Churchill, “The Management of Shared Fish Stocks: the Neglected “Other” Paragraph of Article 63 of the UN Convention of the Law of the Sea”, in: A.
Stratu et al. (eds), Unresolved Issues and New Challenges to the Law of the Sea: Time Before and Time After, Brill Academic Publisher, 2005, p. 5; G. Munro et al., “The conservation and management of shared fish stocks: legal and economic aspects”, FAO Fisheries Technical Paper 465, 2004; N. Oral, Regional Co-operation and Protection of the Marine Environment Under International Law, 2013, pp. 169-173.
327 Ibid.
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resources, such as air, forests and mountains, in respect of which no specific rules of international law exist.328 However, as discussed in Chapter 2.2, the mentioned resources are covered by the concept of shared natural resources and, consequently, it is reasonable to argue that the duty to cooperate also applies to such resources, including shared hydrocarbon resources.
However, it is important to emphasize that each resource type within the concept of shared natural resources has its own (physical or geological) characteristics which make that type different from the others. This fact was clearly reflected by the example of the groundwater-oil and gas resources dichotomy.329 It suggests that the difference between characteristics of shared natural resources is likely to impact on the content of the legal rules governing the management of these resources. For instance, the objectives of the duty to cooperate may differ depending on whether a renewable or non-renewable shared natural resource is the subject of cooperation.
A distinction can be made between the goals aimed at utilization of a shared natural resource and that directed to its conservation and protection. While cooperation in respect of shared renewable natural resources usually aims at achieving both objectives, States sharing a non-renewable petroleum deposit are primary required to cooperate on the issue of economic exploitation of that deposit.330 One of the relevant characteristics of petroleum resources is that unlike, for example, solid mineral resources (e.g., polymetallic nodules), they can migrate when exploited.331 This characteristic is essential when considering the regime applicable to petroleum resources straddling maritime boundaries.332
An interesting observation is that although the duty to cooperate has evolved significantly since the adoption of the UNEP draft Principles, its core procedural elements have remained unchanged. There are requirements to inform, notify, consult and negotiate in good faith that flow from the characterization of a particular natural resource as “shared”. Thus, States that share a natural resource shall, in giving effect to the duty to cooperate, comply with these procedural requirements in good faith.
328 There are a few regional treaties concerning transboundary forests, including the Amazon Cooperation Treaty and the Congo Basin Conservation Treaty. See Dam-De Jong 2015, op. cit., p. 146.
329 See, for example, Report of the ILC on the work of its fifty-ninth session (7 May-5 June and 9 July-10 August 2007), UN Doc. A/62/10, paras. 161-166, available at http://legal.un.org/docs/?symbol=A/62/10 (last accessed January 2019).
330 See Chapters 3 and 4 in this regard.
331 See Becker-Weinberg 2014, op. cit., pp. 8-9; Mossop 2016, op. cit., p. 139.
332 See Chapter 4.
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2.4.3 The existence of a requirement to cooperate in respect of shared hydrocarbons
As discussed above in this section, both disputed and transboundary hydrocarbon deposits fall under the concept of shared natural resources. Such classification gives rise to the duty on States sharing a hydrocarbon deposit to cooperate because this duty constitutes a fundamental principle of the body of norms applicable to the management of any shared natural resource.
Thus, in the context of shared hydrocarbons, States are required to cooperate by means of information exchange, consultation and negotiation in good faith.333
Many provisions of the UNCLOS stress the general duty to cooperate.334 The UNCLOS also contains provisions that can be read as referring to shared petroleum resources. As indicated in Chapter 3, one of the obligations set forth in articles 74 (3) and 83 (3) of the UNCLOS is a duty to cooperate with respect to petroleum resources located in undelimited maritime areas.335 Chapter 4 however questions the applicability of these articles to transboundary hydrocarbons.
In this respect, Chapter 4 will consider the question of whether article 142 of the UNCLOS could serve as a relevant provision since it concerns the analogous situation of resource deposits lying across the boundary between the Area and an area subject to national jurisdiction.
This thesis also examines relevant State practice and case law in order to confirm that the duty to cooperate with respect to shared hydrocarbons exists. The existence of this duty enjoys substantial support in the legal literature.336 However, the question remains whether the scope of the duty to cooperate varies depending on whether there is a boundary line in place or not.
With this in mind, Chapters 3 and 4 will consider the regimes of cooperation in both situations of petroleum resource sharing.