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«J. TANGA BIANG The United Nations – The Nippon Foundation of Japan Fellowship Programme 2009-2010 DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA ...»

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THE JOINT DEVELOPMENT ZONE BETWEEN NIGERIA AND SAO TOME AND

PRINCIPE:

A CASE OF PROVISIONAL ARRANGEMENT IN THE GULF OF GUINEA

INTERNATIONAL LAW, STATE PRACTICE AND PROSPECTS FOR REGIONAL

INTEGRATION

J. TANGA BIANG

The United Nations – The Nippon Foundation of Japan Fellowship Programme 2009-2010

DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA

OFFICE OF LEGAL AFFAIRS,

UNITED NATIONS

NEW YORK, 2010

AUTHOR

TANGA BIANG J.

Diplomat, Division of Legal Affairs and Treaties, Ministry of External Relations, Republic of Cameroon.

i

SUPERVISORS

Prof. Alain Piquemal Dr. François Bailet Professeur agrégé de droit public, Division for Ocean Affairs Directeur du Centre d’Etudes et de Recherches sur le and the Law of the Sea, Droit des Activités Maritimes et de l’Environnement, Office of Legal Affairs, Institut du Droit de la Paix et du Développement, United Nations Université de Nice-Sophia Antipolis ii

DISCLAIMER

The views expressed herein are those of the author and do not necessarily reflect the views of the Government of Cameroon, the United Nations, The Nippon Foundation of Japan, or the University of Nice-Sophia Antipolis (Centre d’Etudes et de Recherches sur le Droit des Activités Maritimes et de l’Environnement-Institut du Droit de la Paix et du Développement).

© 2010 Tanga Biang J. Tous droits réservés.

iii To Pr. Alain Didier Olinga, From the International Relations Institute of Cameroon iv « Nous savions déjà, depuis Valery, que les civilisations étaient mortelles ; nous apprenons maintenant que l’espèce humaine, la vie et peut-être l’univers le sont aussi. Au monde-horloge, réglé par une mathesis universelle, modèle d’un ordre stable et parfait […], succède maintenant un cosmos incertain, jailli du désordre et toujours menacé d’entropie ».

OST (F.), La nature hors la loi, L’écologie à l’épreuve du droit, Paris, Editions La Découverte, 2003, p. 243 ; quoted from Galax Yves Landry Etoga, La Gouvernance de la biodiversité marine et cotière dans leGolfe de Guinée, Research Paper, United Nations-Nippon Found

–  –  –

My gratitude and my appreciation to the Nippon Foundation of Japan and the United Nations for granting me this Fellowship Award to conduct this research.

I would also like to thank the University of Nice-Sophia Antipolis, and especially the Institut du Droit de la Paix et du Développement (IDPD) created under the auspices of late Pr. René-Jean Dupuy for accepting my placement there.

I am profoundly grateful to Pr. Alain Piquemal, Director of the IDPD-University of Nice-Sophia Antipolis, who did far more than could have been expected from someone assuming such duties as his, in order not only to secure my placement at the Institute, but also to make sure that I had the best material and academic conditions for my research. I really enjoyed the opportunity he granted me to attend a full semester course with students of “Master 2 Droit et Pratique des Affaires Internationales (Parcours Professionel)”.The interesting discussions held during the seminars there helped me to have a better understanding of commercial dispute settlement in relation with my thesis. I thank Mme Pascal Lesouin, Pr.Piquemal’s Secretary, as well as Stephane from the IDPD for helping me in many ways. I remain grateful to Pr. Louis Balmond, and Pr. Philippe Saunier, respectively Dean and Deputy Dean of the IDPD, for their regardful concern as to my stay among them.

I extend my special feelings of gratefulness to Mr. Serguei Tarassenko, Director of DOALOS, not only for accepting to receive me in that prestigious Division, but also for his kindness.

Through him, may all the personnel of Doalos find the expression of my gratitude to them, among which Charity, Olga, Nena, Maria, Vita, Cristina, Simone, Charlotte, Esperanza, Fiona, Nicola, Daisi, Lin, Valentina, Carlos, Shawn, Luigi and Michele. All of them had brought a lot of warmth to my stay in New York. I am grateful to Ms. Gabriele Goettsche-Wanli, DOAOLS Deputy Director for being so gracious to me, as well as Ms. Alice Hicuburundi, Mr. Andre Tahindro and Mr. Michael Shewchuk for the same reasons.

vi I am grateful to Oki, Leyla and Bob, un-nippon fellows, as well as Louise Hulander and Nkeiru Scotcher, on internship at the DOALOS, for their kindness and readiness in helping me.

My debt towards Dr. Francois Bailet, Supervisor of the Fellowship Program cannot be stated. He made impossible efforts to remain available and kind, despite my clumsiness and weaknesses, which are countless. I secured my placements only thanks to his personal involvement. Nothing would have been achieved without him.

I am thankful to the High Authorities of the Ministry of External Relations of Cameroon for accepting my participation to this Programme. I am particularly thankful to the Chief of the Division of Legal Affairs and Treaties, Mr. Ambassa Ntede R., for suggesting this Programme to me and for supporting my application.





Ultimately, I thank my sweetheart, Mua Nlima, who suffered so much from this eight-month separation, and who gave birth to our son, Biang Alexandre Shaka, in my absence.

–  –  –

Joint Development Zones have become one of the major trends of international law since the 1990s. As part of the State practice on provisional arrangements, joint development zones are governed under articles 74(3) and 83(3) of the 12 December 1982 United Nations Convention on the Law of the Sea. These provisions advise or oblige States to contemplate “provisional arrangements” of “a practical nature” when they face deadlocks in negotiations over maritime delimitation. This means that if States cannot agree on their maritime boundaries, they can or should instead consider cooperation on the disputed maritime areas, for a transitional period, while remaining under the duty of carrying negotiations on.

This is exactly what happened in the Gulf of Guinea around year 2000 between Nigeria and Sao Tome and Principe. While trying to achieve the delimitation of their respective economic exclusive zone, they soon faced a deadlock. Ultimately, both States, explicitly referring to the relevant provisions of the United Nations Convention on the Law of the Sea, decided to establish a JDZ off their coasts, which covers the whole area of their overlapping claims, that is a part of their potential respective economic exclusive zone. The Treaty was signed on 21 February 2001 and is the second one on the Atlantic shores of Africa. It entered into force in 2003.

The discussion reveals that this instrument is in compliance with international law. It is also an important contribution to the expression of opinio juris over the provisions of the United Nations Convention under consideration.

The current general concerns over global warming and ocean governance entails a prospective analysis of the issues at stake in that treaty, as it deals with potential exploitation of both hydrocarbons and fishery resources. The legal principles to be applied in matter of conservation and management of ocean resources make it a necessity for the parties to that agreement to broaden their views over cooperation and to consider instead a regional framework, rather than a bilateral one, in order to efficiently meet the economic and environmental set forth in their

–  –  –

Maps:

- Map 1:

Cameroon’s 1998 Equitable Line claim in the Gulf of Guinea

Map 2:

The N/STP JDZ in the Gulf of Guinea

- Map3:

Overlapping Maritime Claims: the JDZ and Cameroon’s Equitable Line

- Map 4:

Annexe 8 of Cameroon’s Preliminary Information Indicative of the outer limits of its Continental Shelf submitted before the CLCS on 11 Mai 2009 in accordance with document SPLOS/183

Appendices:

1. Two claim lines materializing a possible JDZ between China and Japan in the East China Sea

2. Claims from Nigeria, Equatorial Guinea and Sao Tome and Principe and the disadvantageous median position of Cameroon.

3. The Bissau Guinea/Senegal JDZ.

4. The Japan-South Korea JDZ.

5. The Australia Indonesia Zone of Cooperation.

6. The Colombia-Jamaica JDA.

7. The Kuwait Saudi Arabia Neutral Zone

8. The Bahrain –Saudi Arabia JDZ

9. The Sudan-Saudi Arabia Common Zone

10. The JDZ between France and Spain in the Bay of Biscay

11. The Argentina-United Kingdom Special Area xi

12. The Iceland-Norway Joint Development Area

13. The Libya-Tunisia Joint Exploration Zone

14. Abu Musa Island

15. The Malaysia- Thailand Joint Development Area and Malaysia-Vietnam Defined Area.

16. The Barbados-Guyana 2003 JDZ according to a map produced in 2005 by Barbados before an arbitral tribunal

17. The N/STP JDZ and Cameroon’s EEZ and Extended Continental Shelf areas according to a map produced in 2005 by Barbados before an arbitral tribunal

18. The blue area where Cameroon claims an Extended Continental Shelf in the Gulf of Guinea

19. Map showing the relative positions of the N/STP JDZ and the area where Cameroon claims an Extended Continental Shelf xii OUTLINE AUTHOR

SUPERVISORS

ACKNOWLEGMENTS

ABSTRACT

LIST OF ACRONYMS

LIST OF MAPS

OUTLINE

INTRODUCTION

PART I THE JDZ BETWEEN NIGERIA AND SAO TOME AND PRINCIPE:

COMPLIANCE WITH INTERNATIONAL LAW, ISSUES AND STATE PRACTICE.. 17

CHAPTER I : THE JDZ TREATY: GENESIS, STRUCTURE, ORGANISATION AND

ISSUES

SECTION I: THE FEBRUARY 21 2001 TREATY: GENESIS AND STRUCTURE......... 19 A. The 2001 Treaty: genesis, context and negotiations

1. Genesis and context

2. Negotiations

B. The 2001 Treaty: its organization

C. The main features of a complex Treaty

1. The Treaty and its divisions

2. The JDZ and its institutions: achieving cooperation and equity

SECTION II: THE JDZ: SOME LEGAL AND MANAGEMENT ISSUES

A. International practice and coastal State jurisdiction in the JDZ

1. The JDZ: a result of deadlocked boundary negotiations

2. The EEZ legal regime and the jurisdiction in the JDZ

B. Managing third States rights and interests

1. Respecting neighboring States boundary claims around the JDZ

2. Rights and freedoms of other States in the JDZ

3. Rights of Land-Locked and Geographically Disadvantaged States

C. Commitment to protect environment

xiii

CHAPTER II: COMPARING THE 2001 JDZ WITH THE BROADER PRACTICE OF

JOINT DEVELOPMENT

SECTION I: COMPARING THE JDZ WITH EARLIER STATE PRACTICE............... 55 A. Comparing the 2001 N/STP JDZ to universal State practice of joint development

1. The 22 February 1958 Agreement between Bahrain and Saudi Arabia: the first JDZ in the Persian Gulf

2. The 7 July 1965 Agreement between Kuwait and Saudi Arabia

3. The Norway-Iceland Arrangement for Jan Mayen

4. The France-Spain Joint Development Zone of 29 January 1974

5. Japan-Korea Joint Development Zone

6. Argentina-Great Britain 1995 Joint Declaration

7. The 21 February 1979 Malaysia-Thailand MOU in the Gulf of Thailand........... 71

8. The 11 December 1993 Columbia-Jamaica Treaty establishing a JDZ.............. 74 B. The African practice

1. Sudan - Saudi Arabia

SECTION II- COMPARING THE JDZ WITH CURRENT STATE PRACTICE............. 82 A. The 18 June 2001 MOU between Cambodia and Vietnam

1. The MOU and the N/STP-JDZ: maritime cooperation in two gulfs

B. The Barbados-Guyana Arrangements on their EEZ

1. Sharing both living and non-living resources

C. The Timor Sea Treaty: a provisional arrangement in the Indian Ocean........ 887

2. General features: some likeness and differences

D. The Tunisia-Algeria 2002 Arrangements: a provisional boundary as provisional arrangement

PART II- THE JDZ AND OCEAN GOVERNANCE MATTERS: ENVIRONMENT,

FISHERY, HYDROCARBONS AND REGIONALISM

CHAPTER III: THE JDZ AND FISHERY MATTERS

SECTION I-THE LEGAL FRAMEWORK OF FISHING IN THE GULF OF GUINEA 100

A. The International Legal Framework and Context of Ocean Management..... 100 xiv

1. So-called developed States: lessons from Copenhagen. Irresponsible States and Criminal Economies

2. The LOSC

3. The other sources of ocean management law

B. Nigeria, Sao Tome and Principe and the International Legal Framework of Ocean Management

3. Nigeria and the International Legal Framework of Ocean Management.......... 107

4. Sao Tome and the International Legal Framework of Ocean Management in the Gulf of Guinea

SECTION II- THE FISHERY ISSUE IN THE JDZ AND THE RELEVANCE OF THE

REGIONAL CONTEXT FOR ENVIRONMENTAL PROTECTION

A. Assessing seizure capacity and LLGDS interests in the JDZ: between political will and scientific requirement

1. Assessing hydrocarbons pollution hazards

CHAPTER IV: THE JDZ: REGIONAL RELEVANCE AND PROSPECTS OF

INTEGRATION IN THE BLACK GULF

SECTION I: EXPANDING THE JDZ PERSPECTIVE IN THE FRAMEWORK OF THE

GGC: A HOOLISTIC APPROACH TO SUBREGIONAL MARITIME DISPUTES...... 116

A. THE GGC: A MULTIPURPOSE TOOL FOR SUBREGIONAL

COOPERATION IN MARITIME AREAS

1. The Gulf of Guinea Commission: a new instrument with multidimensional potential

2. The JDZ: A Partial Fulfillment of the GGC Objectives



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