NUS Centre for International Law Series. Cheltenham, UK; Northampton, MA: Edward Elgar; Singapore: NUS Centre for International Law, 2013. xx, 351 pp. (Figures.) US$105.00, cloth. ISBN 978-1-78195-593-2.
The book, Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (hereinafter “the book”), is an excellent work of collective wisdom on solving the disputes in the South China Sea region. Fourteen scholars contributed their intellectual analysis on the possible flashpoints in the East Asian region, and more importantly, they offered an extensive study on joint development, which is a feasible resolution to the disputes. The book mainly covers two aspects of joint development, i.e., a discussion of the legal contents of joint development and an introduction to certain precedents of joint development implemented in Northeast and Southeast Asia, basically around co-operation regarding hydrocarbon resources.
Furthermore, in the book’s final chapter, the editors establish a formula or procedure for constructing a joint development mechanism and for offering a flow of thinking in case the relevant agreement is concluded. These include: 1. Clarifying claims in accordance with the United Nations Convention on the Law of the Sea (UNCLOS) (this is necessary if the claimants want to understand what the legal basis is for each other’s claim); 2. Identifying areas for joint development; 3. Increasing knowledge of features in the Spratly Islands, especially the interpretation of an “island” under Article 121(3); 4. Increasing knowledge of nature and of the location of hydrocarbon resources; and 5. Starting such development in small areas with limited parties that would be easier and less complicated to reach an agreement on the development.
In a nutshell, just like the book notes, “One of the benefits of joint development arrangements is that the claimants concerned can agree on joint co-operation arrangements in a specific defined area without any of them having to give up or clarify their claims to geographic features or maritime space” (327). This is the spirit behind the process of joint development.
Having said that, a couple of supplements could be made to replenish the aforementioned formula/procedure:
- Emphasizing co-operation among Parties concerned is an obligation. One of the issues to be considered is that of the duty of states to co-operate whether they be friends or foes. This concept can be traced back to certain documents made more than four decades ago. For example, a declaration adopted by the United Nations General Assembly in 1970 states, “States have the duty to co-operate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations…” Furthermore, this duty could be characterized into two aspects: a duty to enter into negotiations or a duty to negotiate and to reach an agreement. Obviously both duties of co-operation will require negotiations entered into in good faith (or bona fide). Moreover, the Parties concerned should be obliged to work together in good faith to attempt to reach an agreement. This is also provided in Article 74(3) and Article 83(3) of the UNCLOS. The wording, “in a spirit of understanding and co-operation,” indicates that the Parties concerned should negotiate in a spirit of good faith. The obligation to seek agreement in good faith is also well-defined in some international juridical cases. In the 1969 North Sea Continental Shelf Cases, the International Court of Justice (ICJ) stated, “[T]he parties are under an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful” (101). Also, in its 1984 report on the Gulf of Maine Case, the ICJ stated that the Parties were under duty to negotiate in good faith and with genuine intentions of achieving positive results.
- Joint co-operation mechanism in the utilizing fishery resources could be regarded as another feasible and practical alternative for starting a regional co-operation regime and could be used as a feasible measure to solve the South China Sea disputes, apart from the joint development on hydrocarbon resources mentioned in the book. It sidesteps the issue of sovereignty and focuses upon a common interest co-operatively, namely the utilization of living resources. This is encouraged under Article 123(a) of the UNCLOS. It also defers long-term negotiations with respect to delimitation of the continental shelf relating to the hydrocarbon resource issue. Thus, as co-operative relationships are forged with regard to fishery resources, mutual confidence might be promoted among the Parties concerned that may eventually contribute to successful co-operation with respect to hydrocarbon resources. Under the pressure of heavy demands on food security in the region, fishery resources management is crucial in preventing over-exploitation or overfishing and may become a touchstone of the Parties’ sincerity. Without affecting jurisdictional boundaries as laid down in the UNCLOS, it is certainly possible to have joint co-operation on fishery resources management in the South China Sea as the starting point for further co-operation. If all Parties concerned treat co-operation as a key step toward achieving mutual benefit, then the future for such a regional joint development or joint co-operation mechanism could be assured.
To conclude, this book is informative and pragmatic in its academic nature. In addition, it is also important for providing a great amount of legal discussion on solving the South China Sea disputes through the construction of joint development mechanisms, while also presenting successful past experiences in such matters.
Kuan-Hsiung Wang
National Taiwan Normal University, Taipei, Taiwan