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International Agreements Between Nonstate Actors as a Source of International Law

Published online by Cambridge University Press:  22 March 2019

Melissa Loja
Melissa Loja*
Affiliation:
Centre for International Law, National University of Singapore; Ph.D. student, under the supervision of Professor Simon Young, Faculty of Law, University of Hong Kong.
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Extract

International issues that are resolved traditionally through agreements between states are managed currently through agreements between government agencies and corporate entities. Government agencies and corporate entities are nonstate actors that have no formal capacity to engage in international lawmaking. Are their international agreements a source of international law?

Information

Type
New Voices in International Law: Paper Presentations
Information
Proceedings of the ASIL Annual Meeting , Volume 112 , 2018, pp. 151 - 155
Copyright
Copyright © by The American Society of International Law 2019 

International issues that are resolved traditionally through agreements between states are managed currently through agreements between government agencies and corporate entities. Government agenciesFootnote 1 and corporate entitiesFootnote 2 are nonstate actors that have no formal capacity to engage in international lawmaking.Footnote 3 Are their international agreements a source of international law?

The question is addressed in a case study of petroleum agencies and corporations in ninety-eight countries.Footnote 4 These agencies and corporations are authorized to conclude agreements to settle disputes over petroleum resources that are shared by states across maritime zones and boundaries (shared resources).Footnote 5 Their agreements are subjected to linguistic and procedural criteria for purposes of identification as a source of international legal rules on shared resources. The present paper summarizes some of the data and findings in the case study.

Postmodern Formalism

The data are discussed using the formalist tools of postmodern legal positivism. Formalism filters law from the mass of social norms through the application of secondary rules of recognition. Secondary rules designate (1) the appropriate authority that can create law, and (2) the appropriate form or procedure that manifests law-creation.Footnote 6 Norms that accord with these secondary rules are identified as law.Footnote 7

Secondary rules are dynamic for they are continually shaped by the social practices of law-applying authorities.Footnote 8 Law-applying authorities engage in an argumentative process in which they publicly and purposively make assertions as to international law on a subject matter within their competence, and in the process adopt criteria to point to its sources.Footnote 9 Law-applying authorities include legal advisers, courts, and even nonstate actors.Footnote 10 They consider the traditional sources of international law under Article 38 of the International Court of Justice Statute as only a starting point.Footnote 11 It is possible for their social practices to bring about secondary rules that admit nonstate actors as lawmakers, and their international agreements, source of law.Footnote 12 This is the case with petroleum agencies and corporations and their international unitization agreements.

Petroleum Agencies and Corporations as Appropriate Authorities

This discussion deals with the status of nonstate actors as international lawmaker. It presents data on petroleum agencies and corporations in Asia, where there are ongoing resource disputes.

Thailand deals with its shared resources solely through interstate agreements, without participation from its petroleum agency and corporations.Footnote 13 The Philippines also has no law or regulation that allow its petroleum agency or corporations to participate in international agreements on shared resources. In 2005, Philippine National Oil Corporation (PNOC) agreed with PetroVietnam and China National Offshore Oil Corporation (CNOOC) on the joint survey of disputed waters in the South China Sea.Footnote 14 Local legislators questioned the authority of PNOC and let lapse the agreement.Footnote 15

Like Thailand, Malaysia traditionally dealt with shared resources through interstate agreement.Footnote 16 Yet, the national petroleum corporation (Petronas) issued contracts where it designated itself as representative of Malaysia and contractors in international unitization agreements.Footnote 17 Malaysia subsequently confirmed this authority of Petronas through a treatyFootnote 18 and official statements.Footnote 19 Similar to Petronas, the national petroleum corporation of Brunei (PetroleumBrunei) issued contracts where it assumed the authority to conclude international unitization agreements with its foreign counterparts.Footnote 20 Brunei only recently confirmed this authority of PetroleumBrunei in official statements.Footnote 21

Likewise, Vietnam's petroleum agency assumed authority to regulate activities relating to shared resources, even without prior grant from law or treaty. The petroleum agency issued a model contract that delegated to private contractors the capacity to conclude international unitization agreements with their foreign counterparts.Footnote 22 This delegated authority was confirmed in a subsequent law, and subjected to stringent procedural requirements.Footnote 23

China's petroleum law,Footnote 24 contract,Footnote 25 and its maritime boundary agreementFootnote 26 with Vietnam do not grant CNOOC authority to enter into international unitization agreements. Yet, since 2006, CNOOC and PetroVietnam have been entering into agreements on joint exploration along the countries’ maritime boundary in the Gulf of Tonkin.Footnote 27 The participation of CNOOC and PetroVietnam in these agreements is affirmed by China and Vietnam in joint statementsFootnote 28 and through attestation of the agreements by their heads of government.Footnote 29

Only Indonesia's petroleum agency has express authority to decide on the appropriate international regulation of shared resources. The country's petroleum regulation provides that the petroleum agency has discretion on the disposition of shared resources, provided that existing boundary agreements and the optimum benefit of the country are taken into consideration.Footnote 30

The foregoing discussion indicate that there are nonstate actors that are vested by the state with authority to act as parties to international agreements. The authority is conferred by treaty, law, regulation, contract, official statement, or ceremonial act. The next discussion is whether their international agreements are susceptible to formal criteria for purposes of identification as source of legal rules.

International Agreements Between Petroleum Agencies and Corporations

The international unitization agreements of the petroleum agencies and corporations of Brunei, China, Indonesia, Malaysia, and Vietnam are identifiable as source of international legal rules on shared resources based on certain formal criteria: namely, formal/linguistic, procedural, and ceremonial approval by the respective national governments.

Both formal and procedural approval of the national government is required of international unitization agreements entered into by contractors of Vietnam. Formal approval must be obtained from both Vietnamese and foreign governments.Footnote 31 Moreover, procedural approval involves endorsement of the proposed international unitization agreement at various levels of government, from the national petroleum corporation, petroleum agency, other government agencies, and to the prime minister.Footnote 32

Only procedural approval is required of international unitization agreements involving the petroleum agencies and corporations of Brunei and Malaysia. This consists of prior consultation with and concurrence of the contractor with the key terms of the international unitization agreement.Footnote 33 However, ceremonial approval appears to be additionally required, as indicated by the joint statement issued annually by the governments of Brunei and Malaysia, to express their continuing concurrence with the terms of the negotiations between their respective agencies and corporations.Footnote 34 With respect to China, the joint exploration agreement between CNOOC and PetroVietnam took effect after approval by the respective national governments.Footnote 35 Amendments to the agreement, such as on the expansion of the exploration area, are attested to by the heads of government in a formal ceremony and reported in a joint statement.Footnote 36

Indonesia's only requirement is that unitization by the contractor is with the approval of the petroleum agency, taking into account the terms of existing boundary agreements and the optimum benefit of Indonesia.Footnote 37

In sum, there are international agreements between nonstate actors that are subject to formal, procedural, or ceremonial approval.Footnote 38

Conclusion

From the foregoing discussion it is reasonable to generalize that there are nonstate actors that are appropriate parties to international agreements. Their authority derives from the state and is expressed in treaty, law, regulation, contract, or ceremonial act. There are international agreements between nonstate actors that are amenable to formal, procedural, and ceremonial approval by the national governments for purposes of identification as a source of international law.

Footnotes

This panel was convened at 3:00 p.m., Thursday, April 5, 2018, by its moderator Laurence Helfer of Duke University School of Law, who introduced the panelists: Melissa H. Loja of the University of Hong Kong Faculty of Law; Asaf Lubin of Yale Law School; Sarah Mason-Case of the University of Toronto Faculty of Law; and Nathan Yaffe of the New York University School of Law.

1 Council of Europe Directorate General of Legal Advisers, Expression of Consent by States to be Bound by a Treaty Analytical Report and Country Reports, at 13–15.

2 Malanczuk, Peter, Multinational Enterprises and Treaty-Making, in Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in the International Legislative Process 58–62 (Gowlland-Debbas, Vera ed., 2013).

3 77 Int'l L. Ass'n Rep. Conf. 608, 619–29 (2016). For the International Law Association, international lawmaking involves “entering into treaties[,] … making binding unilateral commitments[,] … [and] providing practice and/or opinio juris for the purpose of identifying norms of customary international law (CIL).” See 75 Int'l L. Ass'n Rep. Conf. 658–59 (2012).

4 Melissa Loja, International Agreements Between Nonstate Actors as a Source of International Law: A Case Study of International Unitization Agreements Between Petroleum Agencies and Corporations (1937–2018) (unpublished dissertation thesis pending with Faculty of Law, University of Hong Kong) (on file with author).

Future research will focus on international relations dynamics behind the choice of nonstate international agreement, similar to work done in Raustiala, Kal, Form and Substance in International Agreements, 99 AJIL 581–614 (2005) and Helfer, Laurence, Flexibility in International Agreements, in Interdisciplinary Perspectives on International Law and International Relations (Dunoff, Jeffrey L. & Pollack, Mark A. eds., 2013).

5 See Inter-Governmental Cooperation Agreement Between Mauritania and Senegal on the Joint Exploitation of the Grand Turue/Ahmeyim Field, Feb. 12, 2018, available at http://www.petrole.gov.mr/spip.php?article398. The petroleum ministers signed the agreement in the presence of the heads of state.

6 Jean d'Aspremont, Formalism and the Sources of International Law, at chs. 7–8 (2011).

7 Id. at 26.

8 d'Aspremont, Jean, Subjects and Actors in International Lawmaking, in Research Handbook on International Lawmaking 42–45 (Brolmann, Catherine & Radi, Yannick eds., 2016).

9 Id.

10 Id.

11 Id.

12 Id.

13 1979 Malaysia-Thailand Joint Development Agreement, available at https://www.mtja.org/assets/pdf/en/memorandum_en.pdf [hereinafter Malaysia-Thailand JDA].

14 CNOOC/PETROVIETNAM/PNOC Joint Statement on the Signing of a Tripartite Agreement for Joint Marine Seismic Undertaking in The Agreement Area in the South China Sea, available at http://ph.china-embassy.org/eng/zt/nhwt/t187333.htm.

15 House Resolution No. HR01739, available at http://www.congress.gov.ph/legisdocs/basic_17/HR01739.pdf.

16 Malaysia-Thailand JDA, supra note 13, at n. 12.

17 1987 Model Contract Between Petronas and Contractor, Art. 19.5, available at http://dev2.barrowscompany.com.

18 1992 Memorandum of Understanding Between Malaysia and the Socialist Republic of Vietnam for the Exploration and Exploitation of Petroleum in a Defined Area of the Continental Shelf Involving the Two Countries, Art. 3, available at https://cil.nus.edu.sg/wp-content/uploads/formidable/14/1992-MOU-between-Malaysia-and-Vietnam-for-the-Exploration-and-Exploitation-of-Petroleum.pdf.

19 2009 Statement of Tun Abdullah Ahmad Badawi on the Exchange of Letters Between Malaysia and Brunei Darussalam, para. 6, available at https://www.kln.gov.my/archive/content.php?t=7&articleId=735675; 2017 Joint Statement on the 20th Annual Leaders’ Consultation Between Malaysia and Brunei Darussalam, paras. 5–6, available at http://www.mofat.gov.bn/Lists/Press%20Room/news.aspx?ID=639&ContentTypeId=0x01040055E31CAE71A9C144B21BBB007363093500B667C4949BC69D4394F4AC8FA016E767 [hereinafter 2017 Joint Statement].

20 2006 Brunei and Loon Brunei Production Sharing Agreement (PSA), Art. 11.5, available at http://www.resourcecontracts.org/contract/ocds-591adf-9845812582/view#/pdf [hereinafter 2006 Brunei and Loon Brunei PSA].

21 2013 Joint Statement on the 17th Annual Leaders’ Consultation Between Brunei Darussalam and Malaysia, para. 6, available at http://www.mofat.gov.bn/Lists/Press%20Room/news.aspx?ID=30&ContentTypeId=0x01040055E31CAE71A9C144B21BBB007363093500B667C4949BC69D4394F4AC8FA016E767.

22 2013 Model Contract, Decree No. 33/2013/ND-CP, Art. 18.2.2 [hereinafter 2013 Model Contract].

23 Law 95/2015/ND-CP, Art. 67(5) [hereinafter Law 95/2015].

24 2016 Law on Exploration and Development of Resources in Deep Seabed Areas.

25 2012 Petroleum Contract Between CNOOC and Primeline for Contract Area 33/07 in the East China Sea, available at http://www.resourcecontracts.org/contract/ocds-591adf-6266688800/download/word.

26 Beibu/Bac Bo Gulf Boundary Agreement Between China and Vietnam, Art. 7, 2336 UNTS 41860 (2004).

27 2006 Vietnam – China Joint Exploration Agreement in the Agreed Offshore Area in the Gulf of Tonkin, as reported in 2013 Vietnam-China Joint Statement, available at http://www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns130624152141/newsitem_print_preview. The text of the agreement itself is confidential.

28 Id.

29 Vietnam-China Joint Statement, June 24 2013, available at http://www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns130624152141/newsitem_print_preview [hereinafter Vietnam-China Joint Statement].

30 2004 Petroleum Regulation of Upstream Oil and Gas Business Activities, Art. 43 [hereinafter 2004 Petroleum Regulation].

31 2013 Model Contract, supra note 22, at n. 21.

32 Law 95/2015, supra note 23, at n. 22.

33 2006 Brunei and Loon Brunei PSA, supra note 20, at n. 19; 1991 Model Contract Malaysia Deepwater Block A&B, Art. 19.5.

34 2017 Joint Statement, supra note 19, at n. 18.

35 Petrovietnam and CNOOC Signed the 4th Amendment to the Agreement on Joint Exploration in the Gulf of Tonkin, para. 1 (June 21, 2013), available at http://english.pvn.vn/?portal=news&page=detail&category_id=95&id=3683.

36 2013 Vietnam-China Joint Statement, supra note 29, at n. 26.

37 2004 Petroleum Regulation, supra note 30, at n. 29.

38 These forms of international agreements between nonstate actors are not recent nor confined to Asia; they have been employed as early as 1937, and in the Middle East, Africa, America, and Europe. See Petroleum Concessions Limited Agreement Between the Shaikh of Dubai, Art. 4, May 22, 1937, available at https://www.qdl.qa/en/archive/81055/vdc_100036588493.0x000009; Framework Agreement Between the Republic of Cyprus and the Arab Republic of Egypt Concerning the Development of Cross-Median Line Hydrocarbons Resources, Dec. 12, 2013, available at http://www.mof.gov.cy/mof/gpo/gpo.nsf/All/A88D02909DC27F10C2257D20002C1DB5/$file/4196%2025%207%202014%20PARARTIMA%201o%20MEROS%20III%20.pdf; Transboundary Hydrocarbon Agreements, 43 U.S.C. § 1356b(b)(1)–(2); Hydrocarbon Exploration and Production Regulation, Art. 23, Feb. 29, 2016, available at http://www.bndh.gob.do/wp-content/uploads/2016/04/Decree-establishing-the-Rules-of-Exploration-and-Production-of-.pdf; Mining Act of the Netherlands, Arts. 23, 42, Jan. 1, 2003.