I. INTRODUCTION
State practice reveals and international jurisprudence and scholarship confirm that the main reason States conclude a maritime delimitation agreement is their desire to reap the benefits of offshore natural resources, mainly hydrocarbons.Footnote 1 However, maritime delimitation is not an easy endeavour, hence many maritime areas remain undelimited, generating tensions among the interested States. Over the last few years, activities in areas where no delimitation agreements exist have soared because of increased energy needs and technological progress. With a view to precluding conflicts in areas where two or more States’ maritime claims overlap, Articles 74(3) and 83(3) of the 1982 UN Law of the Sea Convention (LOSC or the Convention)Footnote 2 impose two obligations on the States involved. In particular, pending delimitation agreement States are under duty to ‘make every effort to enter into provisional arrangements of a practical nature’. At the same time, the interested parties should abstain from acts that might ‘jeopardize or hamper the reaching of the final agreement’. Failure on the part of States to observe these obligations triggers State responsibility, albeit the duties under concern are not owed to any State but to all the LOSC parties. In any event, these provisions do not seem to envisage an absolute ‘moratorium’ of activities in undelimited areas. As this article demonstrates, States appear to be entitled to carry out several activities as long as they act in good faith and their operations are not prejudicial to the aim of reaching a delimitation agreement. Be that as it may, unilateral drilling in an undelimited area should always be prohibited as it engenders irreversible consequences which put at risk the conclusion of the final agreement, while seismic surveys might also aggravate a dispute and cause permanent damage to the marine environment.
II. THE LEGAL REGIME APPLICABLE TO UNDELIMITED MARITIME AREAS
A. The Theoretical Background
1 Introduction
By way of definition, ‘“undelimited” maritime areas are areas where the continental shelves or exclusive economic zones (EEZs) of States overlap or may potentially overlap, and no final delimitation is in place (whether by agreement or judicial award)’.Footnote 3 Some States put forward excessive claims aiming to designate a large maritime area as ‘disputed’, which could result in the stagnation of activities within it. Therefore, only those assertions which are made by States in good faith within the purview of international law and which pay regard to the potential rights of third States should be taken into account.Footnote 4 Such conduct demonstrates that the claimant State seeks only to enjoy its maritime entitlements in an undelimited maritime area and is not attempting to encroach upon another State's legitimate rights or prevent any legitimate economic activities from taking place. Additionally, in determining the relevant maritime area in delimitation cases, the International Court of Justice (ICJ) has stressed that: ‘[t]he relevant area comprises that part of the maritime space in which the potential entitlements of the parties overlap’.Footnote 5 This view accords with the general obligation of good faith under international law, also reflected in the LOSC, to refrain from abuse of rights by setting out extreme claims.Footnote 6 Bearing this in mind, it is argued that the term ‘undelimited’ should be preferred over the term ‘disputed’, as it is more neutral and objective,Footnote 7 especially when excessive claims have been made in respect of an extensive maritime area which can hardly be considered as disputed in its entirety.
Usually, maritime areas rich in natural resources become a ‘bone of contention’ among neighbouring States striving to avail themselves of the dividends from hydrocarbons found in the seabed and subsoil of the waters adjacent to their coasts. In order for a State to undertake unimpeded offshore hydrocarbon activities a definitive delimitation of its maritime space is indispensable.Footnote 8 As Leanza notes:
[i]n the absence of total delimitation, it seems that no State has the right to the … resources or to grant concessions for their exploration in the areas still disputed and subject to claims by adjacent or opposite States … Delimitation of the continental shelf can be determined only through agreement of the States involved, and until such agreements have been entered into, none of the coastal States can claim exclusive use of the disputed area.Footnote 9
However, the rule that sovereign rights over the natural resources of the continental shelf belong to the coastal State ipso facto and ab initio implies that such rights exist before boundary delimitation has been concluded. In other words, a delimitation agreement or a judgment delimiting a given maritime area does not have a constitutive character, that is, they do not generate sovereign rights over the continental shelf. Rather, they determine the extent up to which every State is entitled to enjoy those rights. Hence, no State should attempt to exercise those rights within an area covered by overlapping claims prior to any definitive delimitation since doing so would run the risk of encroaching upon another State's sovereign rights, if that area was subsequently allocated to the latter.Footnote 10 Until the conclusion of such an agreement, Articles 74(3) and 83(3) LOSC stipulate two obligations for the interested parties:
Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during the transitional period, not to jeopardise or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.Footnote 11
States should respect these duties even when no negotiations for a delimitation agreement have commenced.Footnote 12 Nonetheless, the duty to ‘make every effort to enter into provisional arrangements’, entails an obligation of conduct and not of result; thus, the States involved are not obliged to reach a provisional arrangement.Footnote 13 On any account, the final delimitation could very well disregard any provisional measures agreed prior to its conclusion.Footnote 14 Although it is not clear whether the relevant provisions form part of customary international law, they impose a duty on the States concerned to act in good faithFootnote 15 and observe the customary principle of peaceful settlement of disputes. Consequently, even non-States parties to the LOSC should observe these principles which, although they do not require the conclusion of an agreement, they do necessitate positive action by the parties so as to fulfil the aim of the particular provisions, which is to prevent conflict and safeguard their respective rights.Footnote 16
Apart from restricting several unilateral activities in undelimited areas, particularly the exploitation of natural resources, Articles 74(3) and 83(3) LOSC could be construed as promoting certain activities in such areas, since it was not the intention of the drafters to impose a complete ‘moratorium’ in cases where a delimitation agreement had not been reached.Footnote 17
As the authoritative Virginia Commentary notes: ‘[t]he phrase “not to jeopardize or hamper the reaching of the final agreement” does not exclude the conduct of some activities by the States concerned within the disputed area, so long as those activities would not have the effect of prejudicing the final agreement.’ Furthermore, it is mentioned that during the Third United Nations Conference on the Law of the Sea (UNCLOS III) several delegations criticised a compromise formula inflicting a duty on States to ‘refrain from activities or measures which may aggravate the situation’ since they considered that clause as introducing a moratorium on economic activities pending delimitation.Footnote 18
The drafters’ reluctance to freeze all activities in undelimited areas is aptly illustrated by the Report of the Chairman of Negotiating Group 7 in 1979:
…a number of delegations have found it necessary to suggest prohibitive rules against arbitrary exploitation of natural resources or other unilateral measures within the disputed area. Such rules are aimed to prevent States from acting in a manner which could prejudge or impede the completion of the final delimitation. While the concept of a moratorium has raised considerable criticism in this connexion, many delegations seem to agree that the parties to a delimitation dispute should avoid activities which could aggravate the situation.Footnote 19
Moreover, the Arbitral Tribunal in the Guyana v Suriname case endorsed the position that not all activities should be prohibited in an undelimited maritime area pending delimitation:
The first obligation contained in Articles 74(3) and 83(3) is designed to promote interim regimes and practical measures that could pave the way for provisional utilization of disputed areas pending delimitation. In the view of the Tribunal, this obligation constitutes an implicit acknowledgment of the importance of avoiding the suspension of economic development in a disputed maritime area … The second obligation imposed by Articles 74(3) and 83(3) of the Convention, the duty to make every effort … not to jeopardise or hamper the reaching of the final agreement”, is an important aspect of the Convention's objective of strengthening peace and friendly relations between nations and of settling disputes peacefully. However, it is important to note that this obligation was not intended to preclude all activities in a disputed maritime area.Footnote 20
2. The duty of mutual restraint
As noted in the excerpt from the Chairman's Report, the drafters of the Convention explicitly referred to the need to avoid unilateral exploitation of natural resources in an undelimited area. Therefore, it can be argued that they considered unilateral drilling as an action that could aggravate the dispute and jeopardize the reaching of a final agreement. The prohibition on putting the final arrangement at risk and ‘a specific duty to exercise mutual restraint in a difficult situation for the States concerned’ have long been acknowledged, notwithstanding the fact that certain activities could be considered legitimate provided that they would not endanger the final settlement.Footnote 21
An example of restraint according to good faith with respect to drilling in undelimited areas is the conduct of Canada in the Gulf of Maine against the backdrop of its dispute with the United States:
Although Canada declined to commit itself to an agreed moratorium respecting oil and gas operations in the disputed area, the boundary dispute has naturally had an inhibiting effect on exploration for and exploitation of the mineral resources of this area. In order to avoid any aggravation of the dispute that might have made a negotiated settlement more difficult … Canada has unilaterally exempted its permittees from the work requirements that are normally demanded by Canadian regulations. The result of this measure … has been that no drilling has been carried out in the disputed area and the mineral resource potential of the area remains to be fully determined.Footnote 22
Another interesting case concerns the tensions over an undelimited area between Lebanon and Israel. Notably, although Israel has delineated blocks in the area in question, no hydrocarbon activities have taken place in the particular undelimited maritime area.Footnote 23 This conduct is an indication of Israel's exercise of restraint, which, either consciously or unintentionally observes the obligation set forth in Articles 74(3) and 83(3) LOSC not to ‘jeopardize or hamper the reaching of the final agreement’, in spite of the fact that it is not a party to the LOSC (Lebanon is a State party). The situation has become more complicated given that in early 2017, Lebanon enacted two decrees necessary for the commencement of a licensing round (concerning the delineation of blocks and on the bidding process)Footnote 24 and expressed its determination to grant concessions in the undelimited maritime area (Lebanese Blocks 8, 9 and 10 overlap in part with Israeli Blocks 1, 2 and 3).Footnote 25 Inevitably, this provoked a reaction on the part of Israel,Footnote 26 but Lebanon has already granted a licence for Blocks 4 and 9,Footnote 27 spurring additional turmoil.Footnote 28 However, the French oil company Total, which is one of the licensees of the Lebanese Block 9, has said that it is fully aware of the dispute between the two States and, as a result will operate at a distance of 25 km from the disputed area.Footnote 29 This is an important development since it helps reduce the tension between the States and demonstrates that oil companies might be reluctant to operate in areas where the legal regime is undefined.Footnote 30
The duty of mutual restraint from undertaking unilateral exploration and exploitation operations in an undelimited area could also stem from the provisions of Articles 56, 58, 60, 77, 80, 81 and 246(5) LOSC dealing with exclusive sovereign rights, jurisdiction and ‘due regard’ obligations.Footnote 31 In particular, Articles 56(1)(a) and 77(1) LOSC stipulate that the coastal State enjoys exclusive sovereign rights over the natural resources of the continental shelf/EEZ. Articles 56(1)(b)(i), 60 and 80 LOSC grant exclusive jurisdiction to the coastal State as regards the establishment and use of installations and structures on the continental shelf and in the EEZ, while by virtue of Article 81 LOSC the coastal State ‘shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes’. Furthermore, according to Article 246(5) LOSC, the coastal State may withhold its consent to the carrying out of marine scientific research if such project involves activities related to exploration and exploitation of natural resources. Lastly, Articles 56(2) and 58(3) LOSC envisage that the coastal State shall have ‘due regard’ to the rights and duties of third States when exercising its sovereign rights in its EEZ, while when exercising their rights and carrying out their duties in the EEZ of another State, third States shall have ‘due regard’ to the rights, duties and laws of the coastal State.
Arguably, if a State drills in an undelimited area which subsequently transpires to fall within another State's jurisdiction, the former has violated the latter's exclusive sovereign rights.Footnote 32 This view is predicated on the rule that the sovereign rights of a coastal State over its continental shelf exist ipso facto and ab initio, namely they belong to a State inherently and exist independently of both declaration and delimitation. A range of legal instruments enshrine this rule, while international courts and tribunals have repeatedly stressed its significance,Footnote 33 with the exception of the recent and controversial Ghana/Côte d'Ivoire case.Footnote 34 Delimitation establishes the definitive limit up to which a State may exercise its pre-existing sovereign rights over the continental shelf and not to the creation of such rights. Bearing this in mind, it is argued that, when a maritime dispute exists, it would be safer for States to exercise their rights over the undelimited area closer to their coasts and landwards of the median line (in case of opposite coasts) or at a distance from the equidistance line (in case of adjacent coasts) and in all cases to avoid unilateral drilling. Competing States should abstain from carrying out activities in close proximity to the hypothetical median/equidistance line and/or in the undelimited area lest they breach the other party's rights, should it subsequently be determined that the area falls under the jurisdiction of that other state.
3 Good faith
The principle of good faith is an essential component of and permeates the legal framework regulating the conduct of States in undelimited maritime areas. Therefore, a brief discussion of several features of the principle of good faith is necessary. On the whole, it is a background principle supporting legal rules and providing guidance with respect to their implementation, but it does not create obligations in and of itself.Footnote 35 Furthermore, the fact that it is embodied in fundamental instruments such as the UN Charter (Article 2(2)) and the Friendly Relations Declaration highlights its significance.Footnote 36 The 1969 Vienna Convention on the Law of Treaties contains several references to good faith (Articles 26, 31, 46 and 69) since States by concluding treaties they pledge to exercise their rights and perform their obligations in a benevolent way in compliance with international law.Footnote 37 The Arbitral Tribunal in the Philippines v China case acknowledged the pivotal role good faith has in international relations and its importance regarding the prevention of tensions.Footnote 38 The ICJ has also lent its weight to good faith:
One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential.Footnote 39
The principle of good faith should be used as a yardstick in circumscribing and assessing State conduct in relation to a number of issues. For instance, as mentioned earlier, a maritime claim made by a State can be considered legitimate if it is made in good faith since this indicates that there is no attempt to impinge upon the legitimate rights of another State (abuse of rights)Footnote 40 and the State's assertions are based on legal entitlements rather than legally unfounded maximalist political positions. In the case of natural resources, albeit every State has exclusive rights over those, it should not exercise those rights in a way which is detrimental to another State's rights. As alluded to above and analysed further below, the principle of good faith dictates that States should not act unilaterally in undelimited maritime areas in a manner which inflames tensions and/or impairs the rights of other States. Additionally, and in order to resolve a dispute, States need to engage into meaningful negotiations, namely to participate in those talks and cooperate in good faith;Footnote 41 in other words, they need to show ‘reasonable regard’ for the other party's rights.Footnote 42 Bearing this in mind, it is submitted that the principle of good faith, in essence, imposes limitations on the manner in which States may exercise their sovereignty/jurisdiction in order to uphold the respective parties’ rights and mitigate conflicts.Footnote 43
4. State responsibility
It should also be pointed out that a breach of the obligations enshrined in Articles 74(3) and 83(3) LOSC gives rise to State responsibility and imposes the duty on the wrongdoer to cease the unlawful behaviour and guarantee non-repetition.Footnote 44 According to Article 48(1)(a) of the ILC Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA):
Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group … .
As the commentary to Article 48 ARSIWA stresses: ‘obligations protecting a collective interest of the group may derive from multilateral treaties or customary international law. Such obligations have sometimes been referred to as “obligations erga omnes partes”’.Footnote 45 In the Genocide case, the ICJ noted that States parties have ‘a common interest’, namely to fulfil the purposes of the Genocide Convention.Footnote 46 In Belgium v Senegal the ICJ referred to and endorsed the concept of obligations erga omnes partes. In particular, the Court stressed that:
These obligations [stemming from the Convention against Torture] may be defined as “obligations erga omnes partes” in the sense that each State party has an interest in compliance with them in any given case … The common interest in compliance with the relevant obligations under the Convention against Torture implies the entitlement of each State party to the Convention to make a claim concerning the cessation of an alleged breach by another State party … It follows that any State party to the Convention may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes … .Footnote 47
Therefore, it can be argued that the obligations of restraint and non-aggravation of a dispute in an undelimited maritime area form a collective/common interest derived from Articles 74(3) and 83(3) LOSC and are owed to the parties to the LOSC. Consequently, any State party to the LOSC is entitled to invoke the responsibility of another State party, despite the fact that there might be no violation of the former's sovereign rights.
Within this context, it is worth examining the common law ‘rule of capture’. This particular concept was developed in US domestic law following the first onshore oil and gas activities in the 1840s and it envisages that the first to drill a well is entitled to capture the entirety of the hydrocarbons found.Footnote 48 Nevertheless, this doctrine has been rendered obsolete and cannot be accepted in cases of transboundary deposits, that is, hydrocarbon deposits straddling the maritime boundaries of two or more States, since that would cause a violation of the sovereign rights of another State.Footnote 49 According to Lagoni, when it comes to a transboundary reserve, the rule of capture should not be applied and the interested States should enter into negotiations with a view to reaching an agreement on the allocation of the common deposit.Footnote 50 Additionally, the rule of capture cannot be applied in undelimited maritime areas either, as unilateral drilling in those areas might jeopardize the reaching of a final agreement. Besides, as emphasized above, it is also possible that the State acting unilaterally will have infringed another State's sovereign rights if the area in which it operated is subsequently determined to be within the latter's area of jurisdiction. An example of State practice against the rule of capture is the conduct of Vietnam and China in the South China Sea, where both States have rejected the application of the rule of capture in the cases of both transboundary reserves and reserves situated in undelimited maritime areas.Footnote 51
Moreover, if a State has granted licences for hydrocarbon activities in an undelimited area, which is later determined to appertain to another State, it might be under an obligation, according to the relevant contracts, to compensate the oil company to which it has awarded a concession, since that permit will become invalid.Footnote 52 For instance, in the wake of the settlement of a maritime dispute between Malaysia and Brunei in 2009, Malaysia had to revoke a licence it had granted to the US oil company ‘Murphy’ for blocks previously situated in the disputed area, since by virtue of the agreement those blocks now fell within Brunei's maritime areas. As a result, Malaysia awarded ‘Murphy’ ‘equally lucrative stake holdings in substitute blocks’ by way of compensation.Footnote 53
In any event, mere claims over an undelimited maritime area do not seem sufficient to hinder reaching a final agreement since they are of a declaratory nature.Footnote 54 On the other hand, activities supported by military action seeking to assert a State's claims over a given undelimited maritime area and to create a fait accompli will be at variance with the obligation to not jeopardize, as the Arbitral Tribunal held in the Philippines v China Award.Footnote 55
At this point, it is important to recall the distinct natures of the legal regimes of the continental shelf and EEZ. In the former, the coastal State has inherent, exclusive sovereign rights. This is not the case as regards the EEZ: third States do enjoy certain rights within the EEZ given that the establishment of the EEZ concept was a compromise aiming at striking a balance between the freedom of the high seas on the one hand and coastal States’ economic interests on the other.Footnote 56 Consequently, a State does not have an automatic entitlement to the waters above its continental shelf unless it has made a claim to an EEZ and such a claim cannot of course be definitive until there has been a delimitation agreement. Thus, it could be argued that activities undertaken by a third State in the water column in an undelimited maritime space at a certain distance from the shores of another coastal State and closer to the provisional median/equidistance line might not constitute a violation of the latter's sovereign rights.Footnote 57 Nonetheless, if a State has declared an EEZ, even without having concluded a delimitation agreement, third states should act in good faith, have ‘due regard’ to the rights of the coastal State and not carry out activities that can be detrimental to the coastal State's rights in the water column in close proximity to the outer limit of the latter's territorial sea.Footnote 58
In any case, even if a State has proclaimed an EEZ, in the absence of delimitation and in the event of overlapping EEZ entitlements its claimed exclusive rights cannot be considered definitive.Footnote 59 Therefore, any attempt on the part of a coastal State to prevent other States from exercising certain activities in the waters of an undelimited area claiming to be part of its EEZ would be hard to justify, especially the closer to the provisional median/equidistance line these activities take place. This is all the more so if we consider that certain aspects of the high seas freedom apply even when a duly declared and delimited EEZ is in place and the coastal State is under an obligation to have due regard to the rights and duties of other States in its EEZ.Footnote 60
5. Interim measures
Non-aggravation of disputes is also particularly important in the context of provisional measures procedures. As the Permanent Court of International Justice (PCIJ) put it:
…the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute.Footnote 61
Judge Elias also noted that: ‘the aggravation or expansion of the dispute must relate to a situation or state of fact which may be worsened by act of one or both parties pending the final decision—that is, something done which might frustrate the giving of an effective decision.’Footnote 62
In the Ghana/Côte d'Ivoire case, the Special Chamber of the International Tribunal for the Law of the Sea (ITLOS) examined, inter alia, whether a tacit delimitation agreement existed between the Parties. The Chamber noted that States align their blocks with those of their neighbouring States ‘out of caution and prudence to avoid any conflict and to maintain friendly relations with their neighbours’. Nevertheless, the Special Chamber did not assimilate the limits of the oil blocks to a maritime boundary because it did not want to ‘penalise’ such cautious and prudent behaviour. This notwithstanding, the Chamber praised the Parties’ conduct aimed at avoiding tensions.Footnote 63
6. Environmental harm
Further, States should be careful when carrying out activities in undelimited areas in order to avoid the risk of damaging the environment both in undelimited areas and areas within the maritime zones of other States.Footnote 64 The Special Chamber of ITLOS highlighted this point in the Ghana/Côte d'Ivoire (Provisional Measures) case in applying Articles 192–193 LOSC, when it stressed the importance of inter-State cooperation in order to thwart serious environmental harm.Footnote 65 Aware of the risk of irreversible negative effects to the seabed stemming from oil drilling, as well as from the cessation of such activities, the Chamber ordered Ghana to strictly monitor its activities in the undelimited area, while it also ordered both States to cooperate with a view to preventing serious harm to the marine environment.Footnote 66
B. Case Law Relevant to Undelimited Maritime Areas
In the Aegean Sea Continental Shelf case (Request for Interim Protection), Greece requested interim measures in respect of the exploration activities Turkey had carried out in areas of the Aegean Sea in which Turkey and Greece had overlapping claims. In the opinion of the ICJ, these activities did not entail the risk of physical harm of the seabed and subsoil and no installations were established on the disputed continental shelf:
[w]hereas seismic exploration of the natural resources of the continental shelf without the consent of the coastal State might, no doubt, raise a question of infringement of the latter's exclusive right of exploration; whereas, accordingly, in the event that the Court should uphold Greece's claims on the merits, Turkey's activity in seismic exploration might then be considered as such an infringement and invoked as a possible cause of prejudice to the exclusive rights of Greece in areas then found to appertain to Greece … this power [to issue interim measures] is conferred on the Court only if it considers that circumstances so require in order to preserve the respective rights of either Party; and whereas this condition, as already noted, presupposes that the circumstances of the case disclose the risk of an irreparable prejudice to rights … the Court is unable to find in that alleged breach of Greece's rights such a risk of irreparable prejudice to rights in issue before the Court as might require the exercise of its power under Article 41 of the Statute to indicate interim measures for their preservation.Footnote 67
In other words, the Court took the view that since the mere conduct of seismic surveys does not generate any irreversible damage to the seabed, subsoil and their natural resources, and as it does not create any new rights nor deprive the other State of any rights it might be entitled to,Footnote 68 such activities could be permissible under international law and did not warrant the indication of provisional measures, even though this could constitute a potential violation of an exclusive Greek right to exploration.Footnote 69 Therefore, according to the Court, the ‘litmus test’ for resolving whether oil and gas activities in undelimited maritime areas might be sufficiently detrimental to another State's rights in order to justify awarding provisional measures is whether the activities cause irreparable damage to the geological structure of the seabed and subsoil, which might subsequently be awarded to that State.
It should not escape notice that the threshold for prescribing interim/provisional measures is higher than that for determining whether there has been a breach of the obligation not to jeopardize or hamper the reaching of a final agreement.Footnote 70 Irrespective of whether an exploratory activity might be sufficient for the issuance of interim/provisional measures by a court or tribunal, it may very well constitute an infringement of the obligations stipulated in Articles 74(3) and 83(3) LOSC, which do not require a violation of a State's sovereign rights.
Given the finding of the ICJ that seismic research in an undelimited area, which later might be determined to appertain to Greece, might constitute a violation of its exclusive sovereign rights to explore the natural resources of its continental shelf,Footnote 71 it would be reasonable to infer, a minore ad maius, that unilateral activities in an undelimited area causing serious damage—such as a permanent change to the seabed (e.g. oil drilling)—would most likely be a violation of the coastal State's sovereign rights, if the area in question subsequently comes to fall within its jurisdiction.Footnote 72 Following the same line of thinking, it is argued that if unilateral exploration and exploitation activities in undelimited areas might be considered as detrimental to a State's sovereign rights following a delimitation, they might also constitute a breach of the obligation ‘to not jeopardize’, which anyway requires a lower evidentiary threshold than the violation of sovereign rights.
In the Guyana v Suriname dispute, the first case to have discussed Articles 74(3) and 83(3) LOSC, the Arbitral Tribunal examined the conduct of exploration and exploitation activities in undelimited waters. In construing Articles 74(3) and 83(3) LOSC, the Tribunal held that these provisions reflect the need to avoid ‘the suspension of economic development in a disputed area’ and seem to impose an obligation to enter into negotiations in good faith.Footnote 73 The Tribunal upheld the distinction between acts causing permanent physical change (drilling operations), and those that do not (seismic surveys). On this basis, the Tribunal stated that since the latter activities do not result in irreparable physical change, they do not hamper the reaching of a final agreement and, hence, should be permissible; whereas drillings undertaken unilaterally are to be considered unlawful since they may jeopardize the reaching of a final agreement.Footnote 74 Finally, the Tribunal found both the threat of the use of force by Suriname against a drill ship operating on behalf of Guyana and the conducting of unilateral exploratory drilling by Guyana in the undelimited area without prior consultation with Suriname to be in breach of the obligations laid down in Articles 74(3) and 83(3) LOSC.Footnote 75
After the application of Côte d'Ivoire for provisional measures seeking to achieve cessation of the unilateral drilling activities of Ghana in an undelimited maritime area, a Special Chamber of ITLOS (constituted to hear the dispute between the two States) in its Order of 25 April 2015 emphasized the risks which Ghana's exploration and exploitation activities, including exploratory drilling, posed for the environment and noted that damage to the seabed and subsoil could not be remedied by compensation.Footnote 76 In the end, the Chamber concluded that Ghana's activities might cause irreparable harm to the Ivorian sovereign rights and, therefore, ordered Ghana not to commence any new drilling.Footnote 77 The Chamber also reiterated an important point, namely ‘any action or abstention by either party in order to avoid aggravation or extension of the dispute should not in any way be construed as a waiver of any of its claims or an admission of the claims of the other party to the dispute’.Footnote 78
A noteworthy aspect of the Order is that the Chamber took into consideration any financial losses Ghana was likely to suffer if its current hydrocarbon activities ceased. Striking a balance between the protection of the rights of both parties, even though it prohibited any future activities, the Chamber did not order the termination of Ghanaian activities already taking place, distinguishing its position from previous case law, and, probably, paving the way for the creation of a precedent sanctioning unilateral drilling ex post facto.Footnote 79 However, as Tanaka notes, the fact that Ghanaian oil and gas activities took place on its side of the equidistance line may have played a role in the Chamber's decision.Footnote 80 In any case, the argument that Ghana did nothing wrong because it undertook hydrocarbon operations on its side of the equidistance line is not satisfactory and generates uncertainty as any financial losses on the part of Ghana could be compensated, and there is a risk that other States may use the decision in order to justify unilateral drilling in an undelimited area.Footnote 81
Another crucial point is the Chamber's finding that access to information concerning natural resources falls within the ambit of a State's exclusive rights,Footnote 82 something which the ICJ had alluded to in the Aegean Sea Continental Shelf case.Footnote 83 This is a jurisprudential reminder that even exploration for the purpose of acquiring seismic data in another State's continental shelf/EEZ constitutes a violation of sovereign rights and should be prohibited. This is because by virtue of Articles 56(1)(a) and 77(1) LOSC, exploration for natural resources in a duly delimited continental shelf/EEZ is vested exclusively in the coastal State. Hence, the affected State can request return of any date acquired and, if the delinquent State has sold such data to third parties (such as oil companies), it may also seek compensation. Moreover, unilateral seismic activities in an undelimited maritime area may also provoke political or forceful reaction on the part of another State interested in the area against the State operating unilaterally, hence exacerbating tension.Footnote 84
What is more, even though international courts and tribunals have sanctioned unilateral seismic research in undelimited areas because they consider such activities do not cause permanent damage to the marine environment, recent scientific data suggests otherwise. In particular, it has been argued that seismic surveys may have a serious impact on the marine environment that might indeed be irreversible.Footnote 85 In light of the new evidence, perhaps the position that seismic activities do not cause irreparable harm should be revisited.
Notwithstanding the above, on the merits the Chamber condoned the unilateral drilling operations undertaken by Ghana in the undelimited maritime area. It rightly found no violation of Ivorian sovereign rightsFootnote 86 since at the time the drilling took place there was no definitive determination as to whether the area was under Côte d'Ivoire's jurisdiction, and it was eventually decided that Ghana's oil drilling had in fact taken place in areas to which it was entitled. In any event, the finding that there was no breach of Ivorian sovereign rights does not bear upon the matter of State responsibility triggered by unilateral drilling operations in undelimited areas. The reason is that a violation of sovereign rights is not a precondition for determining whether there has been an infringement of Article 83(3) LOSC, which imposes an obligation on States to show restraint and not to perform activities in an undelimited area that might jeopardize the reaching of the final agreement. As the Special Chamber noted, the obligation ‘not to jeopardise or hamper the reaching of a final agreement’ is an obligation of conduct and States have to act ‘in a spirit of understanding and cooperation’ pending delimitation. Although the Chamber itself admitted that ‘[i]t would … have been preferable if Ghana had adhered to the request of Côte d'Ivoire earlier to suspend its hydrocarbon activities in that area’, it did not attach any legal significance to the fact that Ghana did not terminate its drilling and, thus, did not hold Ghana internationally responsible for its unilateral activities in the undelimited maritime area.Footnote 87
At any rate, when a State operates unilaterally in another State's duly defined maritime areas violating the latter's sovereign rights it is other rules that apply and not Articles 74(3) and 83(3) LOSC. This strengthens the argument that Articles 74(3) and 83(3) LOSC serve a purpose other than directly protecting a State's sovereign rights. Rather, these particular provisions promote restraint and prohibit unilateral drilling lest the reaching of a final agreement is jeopardized and States’ sovereign rights are violated following the drawing of a maritime boundary.Footnote 88 The fact that Côte d'Ivoire asserted that Ghana's unilateral activities had taken place in the Ivorian maritime area might have played a role in the Chamber's judgment. This is because the Chamber could not have considered activities in the undelimited area as actions that had occurred in the Ivorian maritime area, given that jurisdictional competence within the area was undefined prior to the delimitation.
Since a breach of Articles 74(3) and 83(3) LOSC is not contingent on whether the activities are being carried out in a State's maritime area and whether they infringe its sovereign rights, it suffices to prove that they are being performed in an undelimited/disputed maritime area and that the responsible State is (a) aware that one or more States have made claims in good faith and (b) that those activities might jeopardize or hamper the reaching of a final agreement. An example highlighting the ‘awareness/knowledge’ element of this formulation can be found in the Special Chamber's judgment. The Chamber thought that since Côte d'Ivoire had been conducting parallel hydrocarbon operations and its proposals for delimitation of the maritime area were well known, Ghana ‘was or should have been aware’ that it was operating in a disputing area.Footnote 89 Despite this, Ghana had continued drilling in the undelimited area, risking exacerbating tension and hampering the reaching of a final agreement. As the ICJ has put it, even if one State considers that its activities are taking place on its own territory, this does not preclude their potential unlawfulness.Footnote 90
It should also be stressed that although the two obligations in Articles 74(3) and 83(3) LOSC are ‘interlinked’, the obligation ‘not to jeopardise’ should be respected even when negotiations have not taken place.Footnote 91 Put another way, neither of the parties is absolved of its duty ‘not to jeopardise’ simply because there is no invitation by the other to enter into negotiations.
Being mindful of the above and in accordance with the Guyana v Suriname Award, the Chamber should have resolved that unilateral drilling activities in the undelimited area constituted a breach of Article 83(3) LOSC, even if no violation of the sovereign rights of Côte d'Ivoire eventually materialized once the boundary was established, since Ghana neither showed restraint nor good faith once Côte d'Ivoire had raised its objections.
Judge Paik (now President of the ITLOS) noted that even though the activities were conducted by Ghana in an area finally assigned to it, this fact does not eliminate wrongfulness stemming from the violation of the obligation provided for in Article 83(3) LOSC. As he rightly remarked: ‘to condone the unilateral activities of such a scale in the circumstances of the present case would certainly send a wrong signal to States pondering over their next move in a disputed area elsewhere’.Footnote 92
Interestingly enough, Judge Evensen had supported a similar position in the Tunisia/Libya case:
[a]ny acceptance by the Court that the drilling of oil-wells, in an area which was disputed, should have any relevance for the delimitation, would really be an invitation to Parties to violate certain basic trends laid down in the Fourth Geneva Convention of 1958 and the draft convention of 1981, and might invite aggressive attitudes, through the staking out of claims, instead of conciliatory approaches.Footnote 93
C. Activities Permissible in Undelimited Areas
Having concluded that unilateral drilling in an undelimited area should always be prohibitedFootnote 94 and seismic surveys might also jeopardize the reaching of a final agreement, it is worth considering which activities might be permitted in such areas. Recalling the relevant conventional and customary rules, as well as the pertinent case law and State practice, and given the reluctance of the drafters of the Convention to accept a complete ‘moratorium’ in undelimited areas, it is argued that several activities carried out in good faith within the hypothetical median/equidistance limit could be considered permissible provided they do not jeopardize the reaching of a final agreement. The reason why express reference to the median/equidistance line is made is that both claims made and activities undertaken within this limit demonstrate good faith,Footnote 95 which is an essential component of Articles 74(3) and 83(3) LOSC. This view has been confirmed in the Ghana/Côte d'Ivoire case, where the Special Chamber in essence determined that Ghana's hydrocarbon activities did not trigger the latter's State responsibility because they had taken place ‘only in an area attributed to it’.Footnote 96 It is also supported by the preparatory works of UNCLOS III, since the Informal Single Negotiating Text included a provision on undelimited areas (Article 61(3)) which provided that pending a delimitation agreement States should not extend their EEZ beyond the median line.Footnote 97
Of course, there are instances where the median/equidistance line cannot be easily defined because of territorial disputes (e.g. over islands). In such cases, pending delimitation, the State purporting to act on its side of the median/equidistance line in an undelimited area should exercise additional caution since the uncertainty in respect of the location of the boundary is high and activities in such an area run a serious risk of encroaching upon an area that might at a later stage be allotted to another State.
It is also stressed that a coastal State may undertake unilateral activities pertaining only to the water column within its proclaimed EEZ in areas landward of the median/equidistance line, and so closer to its coast, without having concluded a delimitation agreement. This is because activities relating to the water column (e.g. fishing) usually do not cause irreparable damage that might pose a serious threat to the reaching of a final agreement as long as they are undertaken in a sustainable fashion.Footnote 98 A State which has declared an EEZ will have a stronger claim to undertake activities concerning the water column than a State undertaking activities in the high seas given the additional rights accorded to the coastal State by virtue of the EEZ regime.Footnote 99 Nonetheless, as stated above, it should be noted that without a delimitation agreement, the full extent of the area in which a coastal State is entitled to exercise its sovereign rights is not determined with certainty.Footnote 100
Some activities in an undelimited maritime area which could be permissible include: regulation and monitoring of fishing; naval patrols; search and rescue operations; regulation and surveillance of archaeological excavations regarding underwater cultural heritage; marine scientific research regulation and monitoring; control of navigation; pollution control activities.Footnote 101 These activities should not be considered equivalent to effectivités, since such activities undertaken in the marine domain cannot be used to justify the appropriation of maritime areas.Footnote 102 Notably, though, such kinds of activity illustrate the special interest which a coastal State may have in a given undelimited maritime area, namely a State's ‘predominant interest’,Footnote 103 which could play a role in a future delimitation. In contrast, unilateral drilling operations should be considered to be a violation of these provisions since they cause irreparable physical change and are the gravest form of unilateral conduct, and as such they jeopardize the reaching of a final agreement, whilst seismic surveys might also put the conclusion of a final agreement to risk.
III. CONCLUSION
Owing to the increased interest of States in the exploration and exploitation of offshore natural resources, their increased technological capacity to conduct such operations and the fact that many maritime areas in which there are overlapping claims remain undelimited, disputes are inevitable in the years to come. In an effort to stave off and de-escalate tensions, Articles 74(3) and 83(3) LOSC impose two obligations on States parties pending the conclusion of a delimitation agreement, namely to enter into negotiations for the establishment of practical arrangements and to avoid activities that might jeopardize the reaching of the final agreement. Even though these provisions have yet to crystallize into customary international law, they do reflect general principles of good faith and peaceful resolution of disputes, which should be observed by all States. After a thorough study of relevant theory and case law, it is submitted that since unilateral drilling in undelimited maritime areas constitutes the gravest form of violation that might occur pending a delimitation because of the irreversible damage it causes and the serious risk it poses to the reaching of the final agreement, it should be prohibited in every case. Furthermore, unilateral seismic surveys in undelimited areas, although tolerated by international jurisprudence, might also jeopardize the reaching of the final agreement by causing permanent harm to the marine environment and generating financial damage to the State to which jurisdiction might ultimately be accorded, if the resulting data was available to or used by a third State. Such activities may trigger State responsibility as they might be at odds with the obligations embodied in Articles 74(3) and 83(3) LOSC and which are owed to all States parties to the Convention. According to ARSIWA, any party to the LOSC is entitled to ask the wrong-doing State to cease its operations and guarantee non-repetition of the unlawful conduct. However, these duties do not purport to stand in the way of all unilateral activity in an undelimited area, as the LOSC preparatory works and relevant case law demonstrate. As a result, various forms of unilateral activities should be understood to be permitted in undelimited areas provided they are performed in good faith and do not put the conclusion of a final arrangement at risk.
