The issue of breach

In Ghana/Côte d'Ivoire, the SC held that the fact that Côte d'Ivoire had not requested Ghana to enter into negotiations on a provisional arrangement of a practical nature prevented Côte d'Ivoire from claiming that Ghana had violated the obligation to negotiate such an arrangement.⁴¹⁹ In other words, the first step required of a State is a proposal to the other claiming State to establish a provisional arrangement in a disputed maritime area. This proposal triggers the other State’s duty to negotiate in good faith.

The Guyana v. Suriname case is more informative as to what actions are required of a State to comply with its obligation to negotiate a provisional arrangement in good faith. In this case, Guyana and Suriname both claimed that the other party breached its duty to make every effort to enter into provisional arrangements of a practical nature.⁴²⁰ The Tribunal stated that the attempts of Guyana and Suriname to reach a provisional arrangement appear to have started in 1989.⁴²¹ In 1991, Guyana and Suriname concluded a MoU: “Modalities for Treatment of the Offshore Area of Overlap between Guyana and Suriname”.⁴²² This MoU provided that further discussions would have to occur if any discoveries would be made.⁴²³ However, over the

416 Conciliation Commission, Decision on Australia’s Objections to Competence of 19 September 2016, para. 81, available at https://pcacases.com/web/sendAttach/1921 (last accessed January 2019).

417 N. Klein, “Provisional Measures and Provisional Arrangements in Maritime Boundary Disputes”, The International Journal of Marine and Coastal Law, 2006, vol. 21 (4), pp. 444-445.

418 Lagoni 1984, op. cit., p. 354; Ong 1999, op. cit., p. 784. See Guyana v. Suriname, Chapter VIII (C).

419 Ghana/Côte d'Ivoire Judgment, para. 628.

420 Guyana v. Suriname, para. 471.

421 Ibid., para. 472.

422 Ibid., paras. 148 and 472.

423 Ibid., para. 472.

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following years, Suriname showed no particular interest in further discussions, despite several efforts made by Guyana.⁴²⁴

The Tribunal drew a distinction between (in)action of Suriname prior to and after 8 August 1998, which is the date when the UNCLOS came into force.⁴²⁵ The Tribunal stated that acts prior to 8 August 1998 could not form the basis of a finding that Suriname breached its obligation under the UNCLOS.⁴²⁶ In this respect, one can recall the rule of State responsibility according to which an act of a State constitutes a breach of an international obligation only when the State is bound by that obligation at the time the act occurs.⁴²⁷ Therefore, the Tribunal declared that only post-8 August 1998 conduct of Suriname was relevant to its consideration, while recognizing that pre-8 August 1998 conduct was also contrary to the duty to make every effort to conclude a provisional arrangement.⁴²⁸ Thus, the Tribunal focused solely on the issue of breach of the UNCLOS-based obligation to cooperate in disputed maritime areas without examining its status under customary international law.⁴²⁹

The Tribunal found that Suriname violated its obligation to negotiate provisional arrangements.

When Suriname became aware of Guyana’s authorization of exploratory drilling in the disputed area, instead of attempting to engage in a dialogue which could have led to a satisfactory solution for both Parties, it resorted to self-help in threating the drilling rig, in violation of the UNCLOS.⁴³⁰ Furthermore, the Tribunal stated that Suriname could have met its obligation if it would have actively attempted to bring Guyana to the negotiating table, or, at least, have accepted a last-minute invitation proposed by Guyana and negotiated in good faith.⁴³¹

As regards Guyana, the Tribunal concluded that it also breached the obligation to make every effort to enter into provisional arrangements.⁴³² The Tribunal held that Guyana failed to inform Suriname directly of its plans for exploratory drilling, although such drilling had been prepared for some time before the incident (the notification in the press by way of CGX’s public announcements was not sufficient).⁴³³ Moreover, Guyana should have sought to engage

424 Ibid., para. 472.

425 Ibid., para. 458.

426 Ibid., para. 474.

427 ARSIWA, draft art. 13. See also Chapter 5.

428 Guyana v. Suriname, para. 474.

429 As noted in Chapter 2, several legal commentators have concluded that a rule of customary international law requiring cooperation is now applicable to shared hydrocarbons located in disputed maritime areas.

430 Guyana v. Suriname, para. 476.

431 Ibid.

432 Ibid., paras. 477 and 486.

433 Ibid., para. 477.

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Suriname in discussions concerning the drilling at a much earlier stage.⁴³⁴ The Tribunal then illustrated the means by which Guyana could have complied with its duty under the UNCLOS, including “(a) giving Suriname official and detailed notice of the planned activities; (b) seeking cooperation of Suriname in undertaking the activities; (c) offering to share the results of the exploration and giving Suriname an opportunity to observe the activities; and (d) offering to share all the financial benefits received from the exploratory activities”.⁴³⁵

Although the Tribunal found that both Guyana and Suriname violated their obligations to negotiate provisional arrangements in good faith, it also noted that after the CGX incident, the Parties acted in conformity with the obligation to make every effort to arrive at a provisional arrangement, even though the joint meetings had not resulted in reaching such an arrangement.⁴³⁶

Thus, a number of conclusions follow from the foregoing. State A cannot invoke State B’s international responsibility for a violation of the obligation to seek a provisional arrangement in the event that State A has not attempted to propose State B such an arrangement. At the same time, once State B is requested to conclude a provisional arrangement, it is required to enter into negotiations concerning this matter. It is expected that both States actively participate in the negotiation process. However, if the negotiations between States have not proved to be fruitful, it does not mean that the obligation to seek a provisional arrangement is breached by failure to achieve a result. Neither does it mean that this obligation ceases. As discussed in Chapter 3.2 above, the obligation continues to apply until State A and State B reach a final agreement on delimitation or a court/tribunal determines a maritime boundary.

It is interesting to note that among the steps Guyana could have taken in order to meet the obligation to make every effort to reach a provisional arrangement, the Tribunal listed the requirement to notify directly of unilateral drilling planned in the disputed area. It does not appear that the Tribunal based its statement upon the findings in relation to the obligation not to hamper or jeopardize, namely that Guyana’s unilateral exploratory drilling was contrary to this obligation.⁴³⁷

434 Ibid.

435 Ibid.

436 Ibid., para. 478.

437 See in detail Chapter 3.4.

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The Tribunal’s logic implies that when State A permits exploratory drilling (as well as other petroleum operations)⁴³⁸ in an area also claimed by State B, State A shall give State B an official notice of these operations. In light of the general principles examined in Chapter 2, the requirement to notify is reasonable and justified. This research does not involve a detailed analysis of State practice regarding notification in disputed maritime areas. However, from the examples available,⁴³⁹ it does not appear to be common for States to inform other States of their (unilateral) hydrocarbon activities. States usually find out necessary information in other sources (e.g., a press release published by a State based on a licensing round). One possible explanation for that might be that each State considers the CS on which hydrocarbon activities take place as appertaining to it. Therefore, it is not uncommon that States claiming sovereign rights over the same maritime area authorize competitive operations in this area without any notice, which often may result in tensions between them.

Subsequent questions are: (a) how does a notification of a planned activity affect this activity;

and (b) what are implications in the absence of such a notification? These questions are interlinked with the question of what hydrocarbon activities are permissible in disputed maritime areas that is addressed in the next sections of this Chapter. At the same time, it could be argued that even if a petroleum operation is indeed allowed (although the following section demonstrates the legal uncertainty concerning this issue), the absence of a notification of that operation may constitute a breach of the duty to cooperate and such general principles of international law as the principle of good faith and the principle of good neighborliness.⁴⁴⁰ Articles 74 (3) and 83 (3) of the UNCLOS set forth two separate duties whose breach should be treated differently.