| Through an introductive part,this research attests that the struggle on natural resources at sea excludes no coastal states.In order to promote stability and peace between neighboring coastal states,UNCLOS forbids unilateral actions within the disputed area(s)and provides a new theory based on mutual cooperation for better governance of ocean and natural resources therein.The event of UNCLOS has led states to cooperate on natural resources found in disputed zones around the world through JDAs.This practice of JDA by states helps these states to defuse their tension regarding the ownership and the management of these natural resources.The practice of JDA requires states to put aside their claims relating to boundary delimitation and focus on the joint management of natural resources.This alternative of resolving maritime boundary delimitation disputes is very few in Africa while many maritime boundary delimitation disputes exist.This study focus on African states practice of JDA in relying on two JDA's cases:the case of Nigeria and Sao Tome and Principe on their EEZ on one hand and,the case of Seychelles and Mauritius on their extended continental shelf on the other hand.For analysis purpose,this research often relies on Senegal and Guinea Bissau case.The aim of this research is to find out legal issues on these JDAs and attract attention of other African states with maritime boundary delimitation disputes to pay attention on these issues in eventual forthcoming JDAs.The first Chapter is an overview on joint development theories in international law.It starts by recognizing that the event of UNCLOS has demonstrated that a new theory,i.e.the principle of mutual cooperation could better govern natural resources' exploitation between states rather than the rule of capture.In fact,this new theory in the law of the sea has previously demonstrated its efficacy in the joint management of international fisheries resources and international water resources.It has been introduced in UNCLOS through articles 74(3)and(83).Nowadays,beside these articles,various sources(either national or international)have confirmed that the practice of contemporary joint development agreements should be based on cooperation.Through the analysis of these sources,the research finds out that development of international law has witnessed three(3)different theories on natural resources' exploitation:the theory of the rule of capture,the theory of exclusive and unilateral exploitation of natural resources and the theory of joint development agreement on natural resources' exploitation.Unlike to the rule of capture which applies to the ownership of wild animals and which is extended by the US courts to apply to oil and gas,the theory of exclusive and unilateral exploitation of natural resources finds its source from article 77 UNCLOS which confers the sovereign and exclusive right to coastal states in order to enjoy exploration and exploitation of natural resources found on their territorial and maritime jurisdictions.This article appears to be a theory of joint development in the sense that no one can undertake activities of exploration and exploitation without the express consent of the Coastal State.States practice show that this theory can better find its application in the case of cross border unitization since Cross-border unitization covers situations where a reservoir lies across a delimited boundary between two countries,and it involves the treatment of a specific petroleum reservoir or field as a single deposit,bringing disputant states to cooperate.If this second theory is based on sovereign and exclusive rights of coastal states and finds its application on cross boundary deposits,the third one,i.e.the theory of joint development agreement on natural resources' exploitation advocates for co-operative arrangements in the exploitation and exploration of resources found in a disputed zone.This theory finds its legal sources form various articles such as articles 74;83 and 123 UNCLOS.These articles make cooperation a legal obligation upon states for the management of resources found on disputed zones.Thus,regardless of the debate concerning the legal nature of this cooperation,this thesis realizes that current practice of international law concerning transboundary resources'management does attest that neighbouring states with reservoirs straddling their boundaries,whether the boundaries are delimited or undefined,are recommended under a multi-layered framework of law to co-operate in order to establish the mechanism of joint development on natural resources through its life cycle from exploration until the depletion of these resources.In this regard,this thesis finds out that various sources(either national or international)have confirmed that the practice of contemporary maritime boundary delimitation disputes between states with overlapping claims should be resolved through cooperation.Moreover,this research finds out various reasons which can justify the envy of states to cooperate various forms of cooperation such as unitization,pooling and joint development agreement(JDA).In fact,these reasons can be explained depending on their needs and circumstances at the time.Thus,according to this need and circumstances states practices attest that there are generally three(3)joint development's management models:single State model,compulsory joint venture model and joint authority model.This chapter is concluded with issue regarding the best model which could be universally accepted as joint development model for all JDA's management.In this regard,the research finds that it will be impossible to determine a best model for all JDAs since scholars have diverged on this issue.Therefore the research suggests that each joint development should be framed in order to respond and reflect the economic-political circumstances that surround it since each JDA has its geographical,temporal and circumstantial divergences.The second Chapter is on the reasons for JDA and on the summary of some existing JDAs which are relevant for the progress of analysis on the topic of this research.Since States enter into JDAs for a variety of reasons depending on their needs and circumstances at the time,this research has found out some reasons which could appear beneficial for states with overlapping claims on disputed zones to conclude JDAs.These include the need for hydrocarbon resources,technical and capacity assistance for the effective exploration and exploitation of hydrocarbon resources,a secure investment framework for oil companies,and good bilateral relations as well as peace and security in the region.As for the summary on existing JDAs,states practices demonstrate that three(3)classes of joint development:joint development that fixes maritime boundary such as UK and Norway JDAs in the North Sea and Bahrain and Saudi Arabia JDA.;joint development that does not fix boundary but focuses on the development of resources only while shelving maritime delimitation as contemplated by Articles 74(3)and 83(3)UNCLOS such as the 1974 Saudi Arabia and Sudan JDA,the 1974 Japan and Republic of South Korea JDA and the 1989 Timor Gap Treaty between Australia and Indonesia.;and joint development that focuses solely on the development of living resources(fisheries),and which delimits boundaries or leaves them undelimited such as the 1993 Colombia and Jamaica JDA,the 2010 Norway and Russia JDA on joint fisheries management on the Barents Sea and the Arctic Ocean.While limiting the scope of this research on the second class of joint development,this research has found out two(4)JDAs on hydrocarbon resources' development in Africa(the 2001 Nigeria-Sao Tome Treaty,the 2012 Seychelles-Mauritius JDA,the 1982 Tunisia-Lybia JDA and the 2004 MoU between Angola and DRC)and one on fisheries resources development(The 1993 Senegal-Guinea Bissau JDA).Unfortunately,due to the lack of data on the 1982 Tunisia-Lybia JDA and the non implementation of the 2004 Angola-DRC's MoU,this research has relied on the 2001 Treaty between Nigeria and Sao Tome,the 2012 JDA between Seychelles and Mauritius and in some extent,on the 1993 Senegal-Guinea Bissau JDA to determine legal issues on JDAs in Africa.Above all,the study on Joint Development Agreements demonstrates that there is no standard or universal definition through which one can be certain to have a clear and irrefutable meaning of JDAs.However,from a variety of definitions or attempts of definition of JDAs one can retain that five fundamental requirements should be concomitantly met for any practical international joint development arrangement:(1)boundary delimitation dispute between two or more states relating to claims of specific areas whether terrestrial or maritime,(2)potential or proven resource deposit within or around the area in dispute,(3)international governmental agreement,(4)joint petroleum operation,and(5)transitional character.Though each of these requirements can be regarded as inter complementary,the first one i.e.boundary delimitation dispute is the most distinctive feature of an international joint development because it triggers negotiations resulting to joint development arrangements.Thus,without boundary delimitation dispute and overlapping claims,an arrangement would not exist and therefore be qualified as international joint development.The third Chapter is the corner stone of this research.It deals with main legal issues on African States' practice of JDA,namely the 2001 Nigeria-Sao Tome and Principe Treaty and the 2012 Seychelles-Mauritius JDA.This chapter starts by enumerating some legal issues relating to articles 74(3)and 83(3)which constitute the legal basis for cooperation under UNCLOS.Here,we have noticed that the necessity of flexibility and predictability does bring states during the negotiations on UNCLOS ?,to formulate the provisions of articles 74(3)and 83(3)with open wording since these provisions serve both the purposes of the rule of law and the necessities of dispute resolution.Thus,the openness of these provisions opens the debate on three(3)legal issues:-What's the substance of articles 74(3)and 83(3)-What's the geographical scope of articles 74(3)and 83(3)-What's the temporal scope of articles 74(3)and 83(3)The openness of these provisions does allow states to make a multitude of possible interpretations regarding the substance,the geographical scope and temporal scope of the'obligation not to jeopardise or hamper the reaching of a provisional arrangement as well as a final delimitation agreement in respect of overlapping continental shelves or exclusive economic zones'.For example,UNCLOS does not establish the circumstances that may jeopardise or hamper the reaching of practical arrangement as well as final delimitation agreement within the CS or the EEZ.In this way,only states practices could give us an idea about the scope of the obligation not to jeopardize or hamper.Unfortunately,the divergence on states practice makes it difficult to ascertain one practice standard regarding the scope of this obligation.These ambiguities might justify some flaws detected in the conclusion of Angola-DRC MoU.It should be recalled that due to these flaws,this MoU couldn't have been implemented by these states parties.In addition,in this chapter,we then recognizes that despite these legal issues,joint developments constitute a great step forward to final boundary delimitation between states in disputes.For this consideration,states usually focus on some common features of joint development scheme such as the specific designation of a JDZ,the inclusion of a non-prejudice clause in the JDA,the obligation to co-operate and negotiate in good faith for the implementation of the JDA,the allocation of criminal and civil jurisdiction within the JDZ,the inclusion of revenue sharing provisions,the inclusion of provisions regarding the resolution of previously granted and overlapping concessions,the inclusion of dispute settlement clauses and gradually the inclusion of environmental protection provisions within the JDA.However,while focusing on the above mentioned features during the negotiation of the JDA,states rarely pay attention on some legal issues which could result from these features.We have realized that some states have exaggerated in delimiting their JDZ.For example,Nigeria and Sao Tome and Principe succeeded in delimiting a JDZ which covers an area of 34,540 square kilometers,equivalent to 10,000 square nautical miles and almost about 35 times the size of Sao Tome and Principe.The size of this JDZ brings us to question how an Island(Sao Tome and Principe in this case)can generate an EEZ and continental shelf and extended continental shelf roughly almost 35 times bigger than itself.The legal issue here is related to the size of this JDZ.Is it as such big to generate such a size of maritime areas?States parties and particularly Nigeria's claim which appears to be too maximalist has resulted in such a size of the 2001 JDZ.Consequently,though there are no or less official claim from third parties states concerning the establishment of Nigeria-Sao Tome and Principe as well as Senegal-Guinea Bissau JDZ in the Gulf of Guinea,this research foresees that complications resulting from third party's claim on JDZ could also happen in the Gulf of Guinea as it has happened in the Gulf of Thailand and in South China Sea.For example,Nigeria-Sao Tome and Principe JDZ could face complications if Cameroon's maritime claims in the Gulf of Guinea before the Commission for the Limits of the Continental Shelf(CLCS)come to be fruitful since this JDZ lies within the area claimed by Cameroon as either its continental shelf or its EEZ,and may be overlapping with its continental shelf beyond 200 nautical miles.In addition,The 2001 JDZ could suffer some instability in future if Cameroon was to adopt a legal position consistent with its claim about the Equitable Line.And if these complications become effective,what will be the future of license granted by one of the state party to the JDA?May the license granted by a state party over the overlapping or disputed zone still continue to exist or should it be void?In my opinion,considering the consequences of the breach of the contract between the granting state and the licensee,repudiation is not a good way to resolve this issue.To resolve this issue,we find out three different alternatives which could be helpful.Firstly,we suggest that the granting state could negotiate so that this license could be accepted by the other states as granted by the granting state on their behalf.In this case,the non granting state(s)should insist so that this grant could be considered while discussing the sharing formula.Non granting state(s)should get the guarantee from the granting state that the sharing formula will be equitably and fairly apportioned in order to reach a balanced outcome accrual.In the case this alternative seems however,impossible,secondly,non granting state(s)could negotiate so that the granting state accepts this license as part of the JDA.Under this alternative,the license should be accepted as granted by the joint development authority.Finally,the third alternative comes from state practice where the granting state could negotiate and convince the non granting state(s)to accept that the area covered by the license should be regarded as a special area within the exclusive control of the granting state.In this case,the non granting state(s)could accept this offer in exchange of some promises from the granting state.However,it should be noted that the last alternative seems not to be fair for there is no big gap between such deal and corruption.Moreover,this behavior may trigger unilateral cancelation of a contract in the JDA.Which remedy could compensate such a cancellation in this case?In this regard,we realized that Seychelles and Mauritius have failed to think about the effects of eventual cancelation of a contract and to provide remedial measures to such damage.Worse,the 1993 Senegal-Guinea Bissau JDA has no provisions regarding the rights and obligations of contractors.Furthermore,even when the claimant states have decided to cooperate on a joint development basis the issue of entitlement to natural resources could cause a problem.Thus,addressing this issue with clear provisions in JDA is important.In fact,some states retain this title whereas other states confer it to management authority.Though African states give due respect to this issue and conferred title to resources to states parties in the JDA,we have noticed that the provisions conferring this right does appear unclear or not detailed enough.For example,rather than conferring this right to states parties,Senegal and Guinea Bissau conceded this right to the Agency which should be helped by the Enterprise according to the 1993 JDA and its protocol.Nigeria and Sao Tome and Principe have avoided such a commitment under the 2001 Treaty by conferring title to resources to the states parties.The issue here is which one could be the best option?In this regard,we believe that the option of retaining title to resources appear to be the best because state's right to property are related to its sovereignty and it could be damageable to confer this right to a management authority exclusively.Still,if title to resources can be established on known discovery and deposit between states in JDA,what about the title on eventual and potential discovery or deposit in the JDZ or disputed area?In this regard,states include unitization clause in their JDAs as precautionary approach and preemptive title to eventual discovery or deposit in their JDZ or disputed area.Unitization is found in all African petroleum JDAs.However,unlike to the 2001 Nigeria-Sao Tome and Principe Treaty,other JDAs have missed to foresee the possibility of unitization in different ways.For example,they ignore that eventual discovery or deposit in the JDZ or disputed area can bring two contract areas to unitize within the zone;a possibility of unitization can also appear reasonable between JDZ and a third party;and even between the JDZ and the Special Regime Area.Also,in this chapter,the issue of revenue sharing has been highlighted through the following two(2)questions:Can we contend disparities of the shares between states parties as an issue?Does Seychelles and Mauritius comply with the obligation to pay compensation or contribute in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles in the 2012 JDA?Revenue and obligations arising from petroleum development activities and they dispatching between states parties are the key element on which JDA is built.With regard to revenue sharing in African JDAs,one could consider the disparities of the shares between states parties as an issue.However,we believe that these disparities do attest that 'there is no comradeship in business though we can cooperate'.This assumption justifies the share between Nigeria and Sao Tome and Principe whereby Sao Tome and Principe is satisfied with 40 percent of the revenue while Nigeria retains 60 percent1 and between Senegal and Guinea Bissau whereby the parties agreed that 85 percent shall be the share of Senegal while Guinea Bissau will be satisfied with 15 percent of the share if eventually they discover petroleum deposit in their JDZ.However,the equal sharing formula is also respected in the 2012 Seychelles-Mauritius JMA.Article 5 of this JDA stipulates that the contracting parties have agreed to share revenue received in respect of natural resource activities carried out in the JMA equally,whereby fifty(50)percent of revenue received shall be remitted to Mauritius and fifty(50)percent of revenue received shall be remitted to Seychelles.By the way,it should be noted the 2012 JDA,is the first JDA in the continental shelf beyond 200 nm,pending the delimitation of their maritime boundaries,and for development in this maritime area Article 82 UNCLOS imposes upon states parties to UNCLOS the obligation to pay a compensation or contribute in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles.We observed that these states failed to mention in their JMA this obligation of Article 82.Curiously,we found out three reasons which could justify this attitude of Seychelles and Mauritius.Firstly,if Seychelles and Mauritius have been mute on this issue we do believe that they presume that they are just enjoying their right pursuant to Article 76,and as such they are not obliged to pay any compensation because they haven't infringe or preempt a third party's right a joint management of natural resources located beyond 200nm of their continental shelf.Secondly,supposed that these states have a good faith and then decide to pay compensation to the international community,how could they assess the amounts to be paid,the value of contributions in kind?In addition,though Article 82(2)has given an idea on the time and the rate of the payment,we still need to know how could them calculate and pay their contribution.Moreover,which criteria the Authority is going to apply in order to reach an equitable sharing between them and the international community?Furthermore,if they decide to make a payment without any guideline on the way to assess,to calculate and to pay the contribution to the Authority,will the Authority be satisfied with any amount they are going to pay?In the case they are not satisfy which dispute settlement forum could be applicable?All these obstacles could explain the discretion of Seychelles and Mauritius vis-a-vis the observance of the requirement of Article 82,UNCLOS.Finally,Seychelles and Mauritius may rely on the provision of Article 82(3)which exempts developing countries which are a net importer of a mineral resource produced from their continental shelf from making payments or contributions to the international community.Another key issue which should be addressed in JDA is the provisions on dispute settlement mechanism.Dispute settlement provisions as well as the ways to terminate joint development agreements are very important for the JDA.African JDAs contain the provisions on dispute settlement though the way these provisions have been included in these JDAs differ from one another on clarity.Furthermore,we have realized that African JDAs neglected criminal offenses issues.Therefore,in order to efficiently resolve criminal offenses with their respective legal orders,more clarity and coherence are needed in African JDAs as well as in states parties' legal order because the lack of coherence or clarity of rules regarding dispute settlement mechanisms or the definition of the applicable law as well as the definition of these criminal offenses within their legal orders could lead to a deadlock situation.Chapter 4 analyses some contemporary maritime boundary delimitation disputes and suggests the alternative of JDA as legal approach to resolve these disputes.This research departs from the remark that many African states,rather than following the steps of their predecessors in finding alternatives to resolve boundary delimitation disputes,prefer a third party dispute resolution which often complies them to make concession of portion or the entire part of rich oil zone.This is the case with Nigeria which lost the 2002 maritime and land delimitation case against Cameroon on Bakassi rich oil field before the ICJ.In addition,Kenya/Somalia and Ghana/Ivory Coast cases are still pending before ICJ and ITLOS although the alternative of joint development agreement could serve these states to avoid third party's proceedings.Since one of the aims of this research is to suggest cooperation scheme to African states,we have analyzed some current maritime boundary delimitation disputes between African states in order to see whether joint development mechanism could serve as legal approach to resolve these disputes.Thus,the study of these pending cases and other hot maritime boundary delimitation disputes between African states permits us to highlight African states' tactics on apprehending maritime resources on disputes zones.In fact,we realized that African states use the tactics of denying the existence of boundary delimitation agreement,challenging the binding force of such agreement,challenging the method of boundary line,opposing equitable principle to equidistance line.Finally,the assessment of these disputes through the factors such as political will of the parties,strong need for oil and gas and urgency of this need,knowledge of the presence of hydrocarbon resources in the overlapping area,unilateral attempt to explore or exploit these resources,sharing of common culture,absence of islands in disputed zones and the existence of the practice of JDA in the region attests that each of these current maritime delimitation disputes could be eligible for JDA if a real and right avenue is created by the parties in disputes.This avenue could come if the states parties could think about joint development mechanism by constructing and developing political will upon trust and close friendship relations.But,the existence of islands in the area disputed by Gabon and Equatorial Guinea can face some complications in concluding a JDA,for each of these states would like to establish sovereignty on these islands.Therefore,this assessment results in the finding that JDA can be a legal approach applicable to these current maritime boundary delimitation disputes in Africa.The thesis even finds out that the application of JDA is a necessity for these disputes and provides many evidences in states' practice to enlighten disputant states that a cooperation scheme like JDA can be the best legal approach to solve these maritime boundary delimitation disputes.The research on this topic permits us to understand that the main legal issues found on these JDAs could be avoided in the forthcoming JDAs between other African states if:States could implement UNCLOS in their domestic law and delimit the limits of their maritime space accordingly;States could make clear and legal claims on overlapping areas;States should consider third party's rights and claims when delimiting their JDZ.If a third party's claim appear to be acceptable according to UNCLOS and international law,the states parties to JDA should include this third party state in their joint development activities,otherwise they should refrain from infringing this third party's right on the disputed zone;In the case a state party to a JDA has granted license to a contractor for exploration or exploitation of resources on disputed zone or over overlapping claims area,states should opt for negotiation rather than cancellation of this license;States could also deeply analyze and foresee all possibilities that could help them to apprehend title on eventual or potential discovery of resources on disputed zone or over overlapping area while including unitization clause. |
PDF Full Text Request