Energy at sea: Old Problems, New Challenges Joint development agreements: seabed exploitation in disputed maritime areas Vasco Becker-Weinberg Faculty of Law, Universidade NOVA de Lisboa, Portugal Athens, October 22, 2015

1.Concept and purpose of joint development 2.General legal considerations 3.Mineral resources clause 4.Joint development after maritime delimitation 5.Joint development before maritime delimitation 6.Joint development (and unitization) in Europe 7.Conclusions Outline:

1. Concept and purpose of joint development

 “Never two straws in one glass” (Mouton, The Continental Shelf, RCADI, 1954)  JDA: cooperative efforts between two or more States for the exploration and exploitation of mineral resources that straddle a maritime boundary of are found in areas of overlapping claims … Concept and purpose of joint development

 Before and after maritime delimitation and when resources are partly found in the Area (article 142): a)Activities in the Area shall be conducted with due regard to the of the coastal State concerned b)Consultations shall be maintained with the coastal State c)Avoid infringement of rights and interests of the coastal State d)No exploration of common resources without prior consent of the coastal State Concept and purpose of joint development (cont.)

2. General legal considerations

 Power to negotiate and enter into joint development agreements  Legal nature of agreements: a)Before maritime delimitation b)After maritime delimitation  Relevant principles of the law of treaties  Agreements and third States General legal considerations

 Relevance of mineral resources for maritime delimitation: “the essential unity of a deposit” (?)  Relation with States’ submission for the extension of the continental shelf (Mauritius-Seychelles 2012)  The role of private entities: oil and gas sector a)Information on resources b)Investment in a high-risk and capital intensive industry c)Infrastructure and capabilities General legal considerations (cont.)

3. Mineral resources clause

 Outline of State practice regarding: a)maritime delimitation agreements b)joint development agreements  Legal relevance of mineral resources clauses  Is there an obligation to include m.r.c.?  Non-compliance with m.r.c.  States’ obligations in the absence of m.r.c.: negotiate in good faith, restraint and share info Mineral resources clause

4. Joint development after the delimitation of maritime boundaries

 Basis for joint development after the delimitation of maritime boundaries a)Resource-efficiency b)Access to resources that would otherwise be off-limits c)Reinforcement of capabilities d)Aiding in the delimitation of (partial) maritime boundaries  States’ obligations  Rights and freedoms of third States Transboundary hydrocarbon deposits

5. Joint development before the delimitation of maritime boundaries

 Provisional arrangements of a practical nature (Articles 74(3) and 83(3) of UNCLOS) a)States shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement b)Arrangements are without prejudice to the final delimitation Areas of overlapping claims

 Economic activities in disputed maritime areas  The economic relevance of maritime delimitation  Conflicting titles: ‘making your claims known!’  Identification of the joint development area Areas of overlapping claims (cont.)

 Relation with final delimitation of maritime boundaries  Rights and duties of claiming States  Rights and duties of other States  Settlement of disputes (Part XV of UNCLOS)  Identifying the joint development area Areas of overlapping claims (cont.)

 Protection and preservation of the marine environment in disputed maritime areas  Pollution from seabed activities  Obligation to not cause transboundary harm or damage Areas of overlapping claims (cont.)

 Essential legal and functional elements of joint development  State participation in exploration and exploitation activities  Creation of joint entities Areas of overlapping claims (cont.)

 Access to operations  Safeguard of pre-existing rights  Taxation, sharing of costs and revenues  Employment, health and safety  Protection and preservation of the marine environment  Applicable law and settlement of disputes with and between operators Areas of overlapping claims (cont.)

 Classification and exercise of ‘jurisdiction’  Construction and operation  Removal and decommissioning  States’ responsibility for pollution from seabed activities  Maritime security Oil rigs in disputed maritime areas

6. Joint development (and unitization) in Europe

 Czechoslovakia-Austria, 1960  Ems-Dollard Treaty, 1962  The North Sea, (1964/1965) 1971  The Bay of Biscay (Spain-France), 1974  Frigg Field Reservoir (UK-Norway), 1976  Murchison Field Reservoir (UK-Norway), 1979  Statfjord Field Reservoir (UK-Norway), 1979  Framework Agreement (of the above), 2005 Joint development in Europe

 Jan Mayen (Iceland-Norway), 1980  Unitization Markham Field Reservoir (UK-Netherlands), 1992  The Spanish-French-Italian initiative  The eastern Mediterranean  Spain and Portugal in Macaronesia Joint development in Europe

7. Conclusions

 Cooperation is essential for resource-efficiency  Joint development is economically-driven  Consistency of State practice & ‘do we need a model?’  There is no obligation to develop common offshore hydrocarbon deposits  There is no obligation to enter into joint development agreements Conclusions

 Disputes (should) have no impact on compliance with the fundamental principles enshrined in UNCLOS  UNCLOS does not include provisions on disputed maritime areas or territorial disputes regarding islands and other offshore features  UNCLOS provides rules that are applicable when States fail to reach an agreement on the delimitation of maritime boundaries. Conclusions (cont.)

 States’ obligations in the absence of an agreement: a)Legal consistency and release of claims b)Due regard and mutual restraint c)Negotiate in good faith d)Cooperate and adoption of substantial and procedural duties  Managing/governance in disputed maritime areas: - “addressing a multitude of challenges” Conclusions (cont.)

Vasco Becker-Weinberg Joint Development of Hydrocarbon Deposits in the Law of the Sea Springer Verlag (2014) Obrigado!