The obligation’s temporal scope

One of the issues that arises is the point in time at which the obligation not to aggravate or extend a dispute is triggered. In the view of the Tribunal in South China Sea, this obligation lasts during the pendency of the dispute settlement proceedings.⁵⁹⁵ In other words, the obligation arises when the proceedings are initiated and ceases when a court or tribunal delivers its final decision on the merits. The obvious explanation as to why the Tribunal reached this view is the formulation of the Philippines’ submission No. 14. The Philippines argued that China had aggravated and extended the disputes “since the commencement of [the] arbitration in January 2013”.⁵⁹⁶ Although the duration of the obligation identified by the Tribunal is justified insofar as an adjudicative process may typically take a number of years, it is worth noting that the obligation is being linked to the notion of dispute in general. Therefore, it is reasonable to argue that the temporal scope of the obligation is broader than the life cycle of a dispute under a dispute settlement mechanism, and the obligation lasts as long as a dispute exists. Consequently, the question is when a particular situation constitutes a dispute. For example, the BIICL’s Report on Undelimited Maritime Areas drew a distinction between

“undelimited” and “disputed” areas where maritime areas falling under the latter category are

594 Ibid., para. 1181. Supra note 589.

595 Ibid., para. 1169.

596 Ibid., para. 1110.

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actively disputed by States.⁵⁹⁷ Chapter 3.2 discussed the factors which may assist to identify that there is a maritime area of overlap between two or more States, but what does it mean that States have a dispute?

At first sight, it may appear to be relatively easy to determine whether a dispute exists or not.

However, it is not uncommon for one of the parties to a dispute to contest the existence of the dispute.⁵⁹⁸ Although many legal instruments, including Part XV of the UNCLOS and article 33 of the UN Charter, presuppose the existence of a dispute, they do not provide the definition of a dispute.

International case law has developed certain criteria in the determination of the existence of a dispute:

1. The ICJ and its predecessor define a dispute as “a disagreement on a point of law or fact, a conflict of legal views or interests” between parties;⁵⁹⁹

2. Whether there exists a dispute “is a matter for objective determination”.⁶⁰⁰ A mere denial of the existence of a dispute does not prove its non-existence.⁶⁰¹ A mere assertion that a dispute exists is not sufficient to constitute a dispute;⁶⁰²

3. “It must be shown that the claim of one party is positively opposed by the other”.⁶⁰³

597 BIICL’s Report on Undelimited Maritime Areas, op. cit. Repeated in BIICL’s Report on the Use of Force, op.

cit., p. 2, para. 2. See also N. A. Ioannides, “Rights and Obligations of States in Undelimited Maritime Areas: The Case of the Eastern Mediterranean Sea”, in: S. Minas and J. Diamond (eds), Stress Testing the Law of the Sea Dispute Resolution, Disasters & Emerging Challenges, Brill, 2018, p. 312.

598 The existence of a dispute is usually challenged at the stage of preliminary objections. States do this to avoid construction adjudication. See also BIICL’s Report on the Use of Force, op. cit., para. 10, p. 7.

599 Mavrommatis Palestine Concessions, Preliminary Objections, Judgment No. 2, 30 August 1924, PCIJ Series A, p. 11; Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, 2 December 1963, ICJ Reports 1963, p. 11. Subsequently recalled in, inter alia, East Timor (Portugal v. Australia), Judgment, 30 June 1995, ICJ Reports 1995, pp. 99-100, para. 22; Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening), Preliminary Objections, Judgment, 11 June 1998, ICJ Reports 1998, para. 87. See also South China Sea, Award on Jurisdiction and Admissibility, 29 October 2015, para. 149.

600 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 30 March 1950 (first Phase), ICJ Reports 1950, p. 74. Subsequently recalled in, inter alia, East Timor, op. cit., p. 100, para. 22; Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, 27 February 1998, ICJ Reports 1998, p. 17, paras. 21-22; Case concerning Certain Property (Liechtenstein v.

Germany), Preliminary Objections, Judgment, 10 February 2005, ICJ Reports 2005, p. 18, para. 24.

601 See, for example, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, op. cit., p. 74.

602 See, for example, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, 21 December 1962, ICJ Reports 1962, p. 328.

603 Ibid. Subsequently recalled in, inter alia, Case concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, 3 February 2006, ICJ Reports 2006, p. 40, para. 90; South China Sea, Award on Jurisdiction and Admissibility, supra note 599, para. 149.

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Thus, one can observe that the threshold for establishing the existence of a dispute is relatively low.⁶⁰⁴ The presence of divergent views is sufficient to constitute a dispute. Ideally, the existence of a dispute presupposes a certain degree of communication demonstrating a conflict of legal views. Nevertheless, as the ICJ has noted in Cameroon v. Nigeria:Equatorial Guinea Intervening and Georgia v. Russia, a State’s failure to respond does not exclude the existence of a dispute in circumstances where such a response is called for.⁶⁰⁵ A key question in respect of maritime delimitation disputes concerns the legal implications attached to the absence of a State’s reaction.⁶⁰⁶

In the context of this thesis, a disagreement between neighboring States as to where a maritime boundary shall lie clearly constitutes a dispute.⁶⁰⁷ Reservations made by States under the UNCLOS in order to exclude the jurisdiction of courts and tribunals over these categories of disputes do not mean the absence of a dispute. This is evident in the delimitation case between Timor-Leste and Australia.⁶⁰⁸ Moreover, the intentional non-characterization by the parties of a situation as a dispute does not prove its non-existence.⁶⁰⁹

Thus, the existence of a dispute does not presuppose that a maritime area of overlapping claims is to be actively disputed. The duty of restraint embedded in the obligation not to aggravate or extend a dispute applies until the conclusion of a delimitation agreement or the determination of a maritime boundary by a court or tribunal (if the latter option is relevant in the circumstances). In other words, the duration of the obligation not to aggravate or extend a dispute is similar to the temporal scope of the obligation not to jeopardize or hamper discussed in Chapter 3.2. Consequently, as underlined in Chapter 3.2, the obligation not to aggravate or extend a dispute, like the obligation not to jeopardize or hamper, continues to apply in a situation where one of the parties to a delimitation dispute does not accept or recognize the final

604 See also Nii Lante Wallace-Bruce, The Settlement of International Disputes: The Contribution of Australia and New Zealand, Martinus Nijhoff Publishers, 1998, pp. 3-18; C. Schreuer, “What is a Legal Dispute?”, in: I. Buffard et al. (eds), International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner, Leiden: Koninklijke Brill, 2008, pp. 959-980; G. Oduntan, International Law and Boundary Disputes in Africa, Routledge, 2015; S. V. Busch, Establishing continental shelf limits beyond 200 nautical miles by coastal state: a right of involvement for other states?, Brill Nijhoff, 2016, pp. 66-69.

605 Cameroon v. Nigeria: Equatorial Guinea Intervening, Preliminary Objections, supra note 599, para. 89; Case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, 1 April 2011, ICJ Reports 2011, para. 30. It seems that the Tribunal in South China Sea has also inferred the dispute(s) from the Philippines’ statements and China’s Position Paper (South China Sea, Award on Jurisdiction and Admissibility, supra note 599, para. 152).

606 See Chapter 3.2.

607 This assertion follows from the extensive case law concerning delimitation disputes.

608 See Chapter 1.

609 For example, Norway and Russia had refrained from the characterization of a disagreement in the Barents Sea as a dispute. See BIICL’s Report on Undelimited Maritime Areas, op. cit., Annex III, para. 7, p. 168.

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decision of an international court or tribunal because this dispute cannot be considered resolved.⁶¹⁰

3.7 Conclusions and observations

(Customary) international law requires claimant States to cooperate with respect to the management of (possible) petroleum resources located in a maritime area that is subject to their overlapping claims.⁶¹¹ However, practice shows that the process of negotiating provisional arrangements in maritime areas of overlapping claims is as difficult as dealing with the issue of delimitation. For a number of different reasons, many States are unable or unwilling (e.g., because State A considers the claim of State B as having no legal basis under international law) to agree on provisional arrangements. The likelihood of such an arrangement in some disputed maritime areas (e.g., between several States bordering the South China Sea and the Mediterranean Sea,⁶¹² and between Ukraine and Russia in the Black Sea) is extremely limited at the time of writing. Therefore, this Chapter paid special attention to the problem of unilateral petroleum activities in disputed maritime areas.

This Chapter concluded that States are required to exercise restraint when engaging in hydrocarbon activities in disputed maritime areas. This requirement derives from the obligation not to jeopardize or hamper contained in paragraph 3 of articles 74 and 83 of the UNCLOS, the obligation not to aggravate or extend a dispute and the general principles of international law such as the no-harm principle and the principle of good neighborliness considered in Chapter 2. However, the existence of the requirement of restraint does not answer the question of the extent to which States shall exercise restraint. As discussed in this Chapter, unilateral petroleum activities and other operations associated with those activities aimed at extracting oil and gas reserves located in disputed maritime areas would certainly be inconsistent with international law and, for that reason, should not be conducted pending a provisional arrangement or delimitation agreement. It remains, however, difficult to draw a general conclusion regarding other types of unilateral petroleum activities preceding the exploitation phase. As argued in this Chapter, the threshold of “(permanent) physical change to the marine environment” as

610 China rejected the South China Sea Award. See Statement of the Ministry of Foreign Affairs of the People's Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of the Philippines, 12 July 2016, available at https://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1379492.shtml (last accessed January 2019). See also supra note 390.

611 States are also required to negotiate a delimitation agreement in good faith under international law. See in detail BIICL’s Report on Undelimited Maritime Areas, op. cit., Chapters 2.1-2.3.

612 See, for example, Ioannides 2018, op. cit., pp. 311–337.

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established in Guyana v. Suriname is not particularly suitable for defining the scope of unilateralism in disputed maritime areas and, consequently, petroleum activities not meeting this threshold, including seismic survey operations, could also be not in compliance of the requirement of restraint.

The absence of a universal threshold or test that can apply in assessing whether a hydrocarbon activity is allowed or not as a matter of international law provides a high degree of uncertainty, in particular for petroleum companies.⁶¹³ One of the recommendations to petroleum companies is that they shall first check the status of the contract area and evaluate the risks associated with its contested character.⁶¹⁴ Petroleum companies may also consider the possibility of contracting with both claimant States.⁶¹⁵ In practice, however, this is often not a realistic option.⁶¹⁶

The Guyana v. Suriname and Ghana/Côte d'Ivoire (although to a limited extent) cases provide coastal States with indications of certain important steps that they should take in disputed maritime areas. State A authorizing a petroleum activity in a maritime area also claimed by State B (and State A is aware of State B’s claims) should inform State B directly of this activity.

State B should abstain from using force against State A’s petroleum activities in the disputed area and should opt for a peaceful course of action, including objecting to these activities, insisting on their cessation and seeking cooperation with State A in undertaking the activities on a joint basis. State A should engage in negotiations with State B in good faith (on the establishment of a maritime boundary and/or the adoption of a provisional arrangement covering the disputed area) and it should not wait until State B takes the initiative in this regard.

The steps described do not guarantee that the issues associated with a disputed area will be resolved, but they may contribute to their resolution.

It is also important to note article 82 of the UNCLOS in the case of exploitation of non-living resources of the CS beyond 200 nm. Insofar as one of the conclusions made in this Chapter is that exploitation activities with respect to hydrocarbon resources located in an area of overlapping claims, including overlapping claims of coastal States to the same area of CS beyond 200 nm,⁶¹⁷ would be in breach of international law, exploitation of hydrocarbon (and

613 See in general M. Pappa, “Private Oil Companies Operating in Contested Waters and International Law of the Sea: A Peculiar Relationship”, OGEL/Oil, Gas & Energy Law, 2018 (1).

614 M. M. Garcia, “Territorial delimitation and hydrocarbon resources”, in: G. Picton-Turbervill (ed), Oil and Gas:

A Practical Handbook, Globe Business Publishing Ltd., 2009, pp. 22-23.

615 Ibid., p. 24.

616 Ibid.: “each state may believe that it has a legitimate claim to the whole contract area and there may also be political objections, particularly if the states do not have friendly relations”.

617 UNCLOS, art. 76.

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other non-living) resources situated in such a disputed area of extended CS is to be carried out on a cooperative basis. Consequently, the obligation to make payments or contributions in kind under article 82 of the UNCLOS becomes a joint obligation of the cooperating States. To date, there is one example, the Seychelles-Mauritius example, where two States have agreed on the cooperative management of an overlapping area of CS beyond 200 nm.⁶¹⁸ The Seychelles-Mauritius example is subject to consideration in Chapter 6.12 of this thesis. However, the implementation of article 82 will not be discussed in detail and the practical import of this article remains to be seen in the context of cooperative resource exploitation in maritime areas of overlapping extended CS claims.⁶¹⁹

618 See Chapter 1.

619 See also Chapter 4.5.

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CHAPTER 4. THE REGIME GOVERNING