‘shared natural resources’
CHAPTER 3. THE REGIME GOVERNING DISPUTED HYDROCARBONS * HYDROCARBONS*
3.3 The obligation to seek provisional arrangements of a practical nature nature
3.3.1 The legal content of the obligation
The language used in articles 74 (3) and 83 (3) of the UNCLOS indicates that there is no obligation to enter into a provisional arrangement of a practical nature. States are only obligated
397 Other examples can be found in the map over disputed territories, available at http://metrocosm.com/disputed-territories-map.html (last accessed January 2019).
398 South China Sea, Part VI.
399 For a review of different views, see Van Logchem 2015 (2017), supra note 396.
400 See, for example, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, Chapter V (A) (2) (b).
401 See also Chapters 3.1 and 3.6.
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to “make every effort” to arrive at such a provisional arrangement. The requirement to “make every effort” was considered in Guyana v. Suriname where the Tribunal acknowledged that this requirement “leaves some room for interpretation” either by States or by any dispute settlement body.402 Nevertheless, the Tribunal was of the view that the obligation is framed in a way that imposes on the parties “a duty to negotiate in good faith”,403 which requires “a conciliatory approach to negotiations, pursuant to which they would be prepared to make concessions in the pursuit of a provisional arrangement”.404
However, it is well known that the duty to negotiate in good faith does not imply an obligation to reach an agreement.405 States are required to enter into negotiations with a view to concluding an agreement and not merely to go through a formal process of negotiation.406 The negotiations are to be “meaningful, which will not be the case when either of [the Parties] insists upon its own position without contemplating any modification of it”.407 Thus, the first obligation stemming from articles 74 (3) and 83 (3) of the UNCLOS constitutes a requirement to be involved in negotiations moving towards the reaching of a provisional arrangement of a practical nature, regardless of whether the negotiations would be fruitful or not.
The concept of provisional arrangements of a practical nature is not further developed in the UNCLOS. It has been observed that the term ‘arrangement’ is employed to disassociate it from an ‘agreement’.408 The former term is used to indicate a document having other functions than the delimitation of a maritime boundary between neighboring States.409 An arrangement may take the form of both formal treaties between States, and informal documents such as notes verbales, exchange of notes, agreed minutes, memoranda of understanding.410 Thus, States may title a provisional arrangement as they determine, including the use of the term ‘agreement’ or
‘treaty’. Articles 74 (3) and 83 (3) of the UNCLOS make it clear that a possible arrangement is intended to be temporary, namely until a maritime boundary is established. At the same time, nothing prevents States from continuing the application of the already concluded provisional
402 Guyana v. Suriname, para. 461.
403 See also Ghana/Côte d'Ivoire Judgment, para. 627.
404 Guyana v. Suriname, para. 461.
405 North Sea Continental Shelf, para. 87.
406 Ibid., paras. 85 (a) and 87.
407 Ibid., para. 85 (a).
408 Kim 2004, op. cit., p. 46.
409 Ibid.
410 Lagoni 1984, op. cit., p. 358; Kim 2004, op. cit., pp. 46-47. See also Appendix I.
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arrangement (or some elements of this arrangement), even after the reaching of a final boundary agreement.411
Articles 74 (3) and 83 (3) of the UNCLOS also contain the requirement that provisional arrangements should be “of a practical nature”. Although the articles provide no precision concerning the meaning of the phrase ‘of a practical nature’, it has been construed to mean that such arrangements are to provide practical solutions to problems which may arise regarding the use of a maritime area in dispute.412 In other words, neighboring States themselves shall determine whether it is appropriate to enter into negotiations relating to provisional arrangements.
The last sentence of articles 74 (3) and 83 (3) of the UNCLOS provides that “[provisional]
arrangements shall be without prejudice to the final delimitation”. Indeed, a large number of existing (and terminated) provisional arrangements include a clause identical to the said provision.413 The requirement of non-prejudice appears to imply that nothing contained in the provisional arrangement may affect the legal position and claims of a State in relation to the delimitation dispute.414 However, not every interim arrangement contains a “without prejudice”
clause. Consequently, it elicits the question of whether the absence of such a clause (particularly in provisional arrangements concluded between States that are not parties to the UNCLOS) has any significant legal implications. Of course, its insertion is preferable for avoiding legal uncertainty. Nonetheless, even if a “without prejudice” clause is not included in a provisional arrangement, there is no reason to believe that this arrangement is inconsistent with the requirement of non-prejudice to a final delimitation. An interesting question relates to the inclusion in the (terminated) CMATS Treaty of a 50-year moratorium on discussing, negotiating or otherwise pursuing the settlement of maritime boundaries between Timor-Leste and Australia.415 Although the Conciliation Commission did not discuss the issue of whether this moratorium was compatible with the non-prejudice requirement existing under paragraph 3 of articles 74 and 83 of the UNCLOS, one can suppose that in a similar situation such an issue might arise. However, it is worth noting that the Conciliation Commission did not interpret the
411 Lagoni 1984, op. cit., p. 358. See, for example, the Timor Sea example (Chapters 1 and 6) and the Saudi Arabia-Kuwait example (in particular Chapter 7).
412 Lagoni 1984, op. cit., p. 358.
413 See, for example, Japan-S. Korea Agreement, art. XXVIII; TST, art. 2; CMATS Treaty, art. 2; Barbados-Guyana Treaty, Preamble; Nigeria-STP, Preamble.
414 Ibid. See also Fisheries Jurisdiction case (United Kingdom of Great Britain and Northern Ireland v. Iceland), Judgment, 25 July 1974, ICJ Reports 1974, para. 37.
415 CMATS Treaty, art. 4.
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moratorium as precluding delimitation negotiations between the Parties, including under article 298 (1) (a) (i) of the UNCLOS. 416
In sum, the first obligation contained in articles 74 (3) and 83 (3) of the UNCLOS constitutes a duty to cooperate in respect of various practical issues that may arise in a disputed maritime area. Although this obligation leaves States with considerable discretion as to the extent of efforts that must be made and the type of provisional arrangement that should be concluded, its importance should not be completely dismissed.417 The obligation to make every effort to reach an interim arrangement is not merely a recommendation, but rather a binding rule “whose breach would represent a violation of international law”.418 The following section provides guidance on how to act in good faith in fulfilling the obligation to seek a provisional arrangement.