Maritime Cooperation in a Functional Perspective
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Cooperation between states in the pursuit of marine activities is required, strongly encouraged, or merely suggested in a variety of circumstances. The “cooperative ethic,” in whatever form it takes, may be expressed in the provisions of a convention or derive from the rules of customary international law. There are also situations where this ethic derives from “soft” law, or where norms are still coalescing but have not yet reached the status of legal obligations. All too often, international lawyers are apt to analyze these developments from overly narrow perspectives. They ask, for example, if there is an actual “requirement” to cooperate, implying that a failure to do so amounts to the breach of an international obligation. When a treaty provides that states “should” do something, does this mean they “must” do it? What sort of obligation is entailed when states are enjoined to “make every effort” to do something? In a subsequent essay in this report, Seokwoo Lee subjects relevant provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to a searching analysis to elucidate the key aspects of this legal dimension. 
There is no doubt that these analyses are highly important, but it is equally important to appreciate the context in which the provision in question was formulated. This involves, inter alia, asking why a convention or a customary norm seeks to make an exception to the jurisdictional status quo. This is to the effect that states should identify the marine areas over which they are entitled to exercise sovereignty or sovereign rights for resources and other purposes, and then proceed to regulate ocean activities there as they see fit, taking account of concomitant obligations. The use of the concept of sovereignty means that such rights are exercised without reference to any other state or government. Indeed, the phrase “sovereign rights for the purposes of the exploration for and exploitation of” a resource,  used to describe the nature of exclusive economic zone (EEZ) and continental shelf rights, was chosen deliberately to invoke ultimate—and unilateral—state power. So if those rights are to be modified in some way, that is, a state is to exercise them in concert with a neighbor, it is surely pertinent to ask why. And the answers will rarely be purely legal in nature. They will, rather, be functional.
It is possible to trace the emphasis on the exercise of unilateral state power to the very foundations of the doctrine of the continental shelf in 1945.  The doctrine of the continental shelf was the first legal regime to provide unambiguously for what had hitherto been taboo—the exercise of coastal state rights seaward of the limits of the territorial sea, back then a mere 3 nautical miles (nm) wide. The justification for this radical jurisdictional extension was not merely that the world needed access to the oil and gas in the subsoil of the shelf, but that the only way to ensure orderly exploitation was for the proximate coastal state to assume the appropriate jurisdictional powers. This in turn flowed from the long-established tradition in Western legal systems, dating back to the Middle Ages, of ownership of an identified parcel of land entailing rights over what is beneath it. The notion of the commons gradually gave way to this exclusive proprietary model, which held sway when oil and gas exploration and production began on an industrial scale in the United States in the second half of the nineteenth century.
This model works reasonably well for solid minerals such as coal, but not at all with fugitive substances such as oil and gas, and some of the legal challenges that arise will be considered in a subsequent section of this essay. It may also be important to remember that offshore oil and gas activities have always been controlled by states, while every other marine activity was once pursued by anyone and everyone under the freedom of the seas, and that this freedom was whittled down by encroaching state jurisdiction. Most ocean resources are fugitive, not fixed. This means that in some marine areas, resources contained in the water column are inherently transboundary, and therefore transjurisdictional. Resource ownership and management models based on enclosure within fixed boundaries, such as a wheat farm, simply do not transfer well to the modern offshore.
The thesis of this essay is that international law does not require cooperation merely for the sake of cooperation. States can cooperate with each other for any reason and in any way they choose, subject to the constraints of international law. The argument here is that the legal obligation to cooperate does not exist in a vacuum. It is the manifestation in language of a law of factors derived from science, ecology, or other practical considerations. If that dimension is ignored, the debate quickly becomes somewhat academic in the worst sense of that term. What is more, the functional goal identified by marine scientists, ecologists, resource managers, and the like, may be compromised. Given that international law presupposes a global commitment to sustainable development, species survival, and the protection and preservation of the marine environment and biosphere, such a result is, arguably, a breach of these legal duties on the part of the states concerned.
The Application of the Functional Approach
This section examines two aspects of functional maritime cooperation: first, with respect to an ocean area defined other than by the strict application of the basic rules of international law (i.e., sovereign rights exercised within a zone designated primarily by distance from a coast); and second, where cooperation is required with regard to a specific activity. The essay will not address the joint development of an area, since this will be discussed comprehensively in the subsequent essay by Tara Davenport. However, it is perhaps worth pointing out that UNCLOS clearly expects states party to a jurisdictional dispute that is not amenable to easy resolution to take some sort of action—and surely this is the key point—to provide for a measure of ocean governance and order in the meantime. UNCLOS is, after all, first and foremost concerned with governance, management, control, the discharge of responsibilities by coastal states, and the like. It therefore makes provision for jurisdictional disputes in which clear demarcation of states’ rights and obligations is rendered temporarily impossible. To take the point further, it would be illogical, and certainly a failing, if the convention was to accept the proposition that marine areas that must at the end of the day fall under the jurisdiction of one state or another are, de facto, outside its regulatory schemes, and res nullius to all intents and purposes. Such a result would be difficult to equate with the noble aims enunciated in the preamble to the agreement.
Enclosed and Semi-Enclosed Seas
Part IX of UNCLOS is devoted to the somewhat exiguous “Regime of Enclosed or Semi-Enclosed Seas.” An enclosed or semi-enclosed sea is defined as “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.”  In other words, such ocean areas are natural features in that they are dominated by land, but the waters themselves fall within one of two legal, that is nonnatural, categories. There is no hint here of why enclosed or semi-enclosed seas should be singled out like this, or why they require a discrete regime.
UNCLOS goes on to encourage the littoral states off enclosed and semi-enclosed seas to cooperate in marine scientific research (MSR), the conservation of the living resources, and marine environmental protection.  The first point to make is that the close interconnections between these three topics are readily apparent: they are not separate “sectors,” and indeed are not so regarded today. Again, however, there is nothing in the wording of Article 123 to suggest why the prescribed or hoped-for cooperation will be necessary, or what benefits may accrue from it. While the language is hardly the strongest in terms of the nature of the obligation, and Seokwoo Lee has considered the issues arising from it, I would like to take a different tack and argue that the choice of “legal” language may be less important than it appears. Despite the absence of detailed provisions, it is surely of no small importance to note that the framers of UNCLOS singled out these marine areas for special attention. There must have been a cogent reason for creating the category of “enclosed and semi-enclosed seas,” and enjoining certain forms of cooperation between their littorals.
A brief perusal of the scientific and technical literature suggests why this might be so. Semi-enclosed seas, like the Gulf of Thailand, the South China Sea, and the East China Sea, form discrete marine ecosystems, and the more that is known about them—their physical properties, their living (and hence renewable) resources, and the anthropocentric threats they face—the better. Further, because these marine areas are either barely linked to the world’s oceans (as with the Mediterranean, Adriatic, Aegean, Black, and Azov seas), or are cut off from larger water volumes to a considerable extent (as with the Gulf of Thailand), pollutants or any substances that have an impact on the marine environment in any way are effectively trapped there.
While the various marine uses have some impact on the environment, this may be insignificant compared to land-based sources of pollution. Consider, for example, the impact on the Black Sea of effluence carried by rivers such as the Danube and the Dnieper, which flow through some of the most industrialized parts of Europe, including areas where environmental standards were once not the highest. In the case of the Gulf of Thailand, the impact of shore-based industrial activities and runoff from the Chao Phraya River will be considerable. Two major rivers, the Mekong and the Red, debouch into the South China Sea, and cities such as Manila have major environmental impacts on the sea as well.  Similarly, the heavily populated Shanghai and Yangtze rivers, as well as many other conurbations and drainage basins, are inevitably contributing to the degradation of the East China Sea.
The extensive scientific literature on various aspects of enclosed and semi-enclosed marine environments points to the importance of information-sharing between littoral states, the better to inform policy and lawmaking. To take a hypothetical example, suppose that a semi-enclosed sea, which is within 200 nm of a coastline, is bounded by the territories of three states, and all maritime boundaries have been delimited. State A has no capacity for MSR, and State B is better able to conduct such activities, but only up to a point. State C, on the other hand, has research programs of international caliber. Since each state has absolute rights to control such activities within its own sector, and can, if so minded, make it difficult if not impossible for others to do so, information on their shared ecosystem can never be complete unless they agree to cooperate. In this example, such cooperation might take the form of joint MSR projects undertaken by experts from all three countries with the consent of their governments. This is not the point, of course—the goal of furthering MSR in the shared ecosystem in a manner that will inform policymaking by the three littorals will have been advanced.
The theme of technical and scientific cooperation is taken up by the 1992 Convention on Biological Diversity (CBD),  with particular reference to cooperation in promoting conservation and sustainable use of biological diversity, the development of national policies, and capacity building, especially where developing countries are concerned. Other relevant aspects of the CBD will be addressed in a subsequent section. This reasoning for MSR can be applied to the other sectors marked out for cooperation in enclosed and semi-enclosed seas. Unsustainable or dysfunctional fisheries practices permitted by one or more states will have a deleterious impact on the shared stock.
Similar functional arguments can be made for the promotion of the preservation and protection of the marine environment. Part XII of UNCLOS constitutes a codex for marine environmental protection, but is essentially a framework guiding state actions as regards legislating, monitoring, and enforcing. Its provisions were to be expanded very considerably by another instrument resulting from the 1992 UN Conference on Environment and Development (UNCED), namely section 2, chapter 17, of Agenda 21, which is devoted to the “Protection of the Oceans, All Kinds of Seas, including Enclosed and Semi-enclosed Seas and Coastal Areas and the Protection, Rational Use and Development of their Living Resources.”  The chapter of note has 137 articles, dealing with the following program areas: 
1. integrated management and sustainable development of coastal areas, including exclusive economic zones
2. marine environmental protection
3. sustainable use and conservation of marine living resources of the high seas
4. sustainable use and conservation of marine living resources under national jurisdiction
5. addressing critical uncertainties for the management of the marine environment and climate change
6. strengthening international, including regional, cooperation and coordination
7. sustainable development of small islands
Each program area is structured more or less identically. The “Basis for Action,” or the “why,” is laid out, followed by the “objectives” of the relevant section. The required “Activities” are next specified,  and then the “Means of Implementation.”  Chapter 17 applies to all ocean areas, but there are some provisions particularly applicable to enclosed and semi-enclosed seas. The program area dealing with “sustainable use and conservation of marine living resources of the high seas” includes a provision that “states should, where and as appropriate, ensure adequate coordination and cooperation in enclosed and semi-enclosed seas and between subregional, regional and global intergovernmental fisheries bodies.” 
Exactly the same provision appears in the section on “sustainable use and conservation of marine living resources under national jurisdiction.”  As to when such coordination and cooperation may be “appropriate,” a better question might be to ask when states working together for purposes such as those under discussion could be “inappropriate.” One answer to the first question might proceed from the underlying theme of Agenda 21 and confirmed by reviews of progress with implementation, to the effect that states are not discharging their responsibilities to the level required. There are many and various reasons for this, but Agenda 21 makes it clear that there is no reason why a state lacking capacity in one form or another should shoulder its burdens in isolation, unless it so desires.
These paragraphs must be read in the complete context of the extensive and detailed provisions of the respective program areas, which in turn should be seen against the background of Chapter 17—and indeed all of Agenda 21 itself. For present purposes, it is sufficient to note the continuing focus on the obligations of the littoral states of enclosed and semi-enclosed seas. It should also be emphasized that the notion of cooperation at all levels, from bilateral to global, runs throughout Chapter 17.
Agenda 21 takes up where UNCLOS might be said to leave off: Chapter 17 is replete with references to the 1982 convention and the CBD. It is not a treaty, but was nevertheless adopted by 178 states at UNCED. This degree of approval, and the status accorded to it by UN member governments and commentators, is sufficient to give the agenda authority as something more than a set of guidelines. Questions regarding the normative force of Agenda 21 can perhaps be addressed as follows: if the international community is dedicated to sustainable development of marine resources and the protection and preservation of the marine environment and biosphere—it being plainly understood what these obligations entail—then international adoption of this roadmap derives authority from the commitment to these overarching and fundamental goals. In other words, Agenda 21 and subsequent UN-sponsored meetings convened to discuss progress with its implementation  (which is another indicator of global commitment to it) is “the way forward.” The origins of UNCLOS are to be found in state practice concerning zones of jurisdiction and in the four Conventions on the Law of the Sea from 1958. The origins of Agenda 21 lie in the Stockholm Declaration on the Human Environment,  Our Common Future,  and the like. It might be argued that certain aspects of the law of the sea, including the nature and extent of state rights and responsibilities within the various zones of maritime jurisdiction, were settled by UNCLOS for the foreseeable future. This notion of quasi-permanence is entirely in keeping with the conceptualization of the convention as a “Constitution for the Oceans.”  Agenda 21, on the other hand, like any resource- and environment-related regime, is an organic document that will continue to grow and be cultivated for decades to come.
The decade since the signing of UNCLOS, which was to enter into force two years after the 1992 UNCED in Rio de Janeiro, shows an advance in the conceptual approach of the earlier treaty. Here, MSR, living-resource conservation of all kinds, and the preservation and protection of the marine environment are fully integrated, in that no one issue can be addressed in isolation from the others. What is more, notions of action on the unilateral, bilateral, subregional, and global planes are also intermingled. It should not be forgotten that UNCLOS was signed almost 30 years ago. Few regimes governing natural resource development and management survive unchanged for so long. It should come as no surprise that other types of ocean activity should be included in the list of sectors marked for cooperation between enclosed and semi-enclosed sea littorals. There is a general tendency to view UNCLOS as a closed book, and a wholly comprehensive one at that. Neither view is correct.
It is suggested, therefore, that the question as to why littoral states of enclosed and semi-enclosed seas should cooperate is best posed to the technical experts in MSR, living-resource conservation and management, and the protection and preservation of the marine environment, and indeed anyone with ocean expertise in any sector or activity, not international lawyers. Having said this, note should be taken of a suggested approach to the implementation of Part X of UNCLOS drafted by the Maritime Cooperation Working Group of the Council for Security-Cooperation in the Asia-Pacific, and submitted to the ASEAN Regional Forum.
Marine Protected Areas and Single Ecosystem Management
In 1992 the UN convened the Conference on Environment and Development in Rio de Janeiro. The conference adopted a number of measures of outstanding importance,  including the CBD.  The goal of this agreement is to halt the extinguishing of species of flora and fauna, and to identify, preserve, and protect areas where biological diversity is under threat. Unlike the approach of UNCLOS relating, for example, to the sustainable development of fisheries, the CBD is wholly science-based, with objective technical criteria to be applied as determined by groups of experts, as opposed to states acting individually or collectively.  For example, as a first step toward achieving the goal of preservation and protection, the treaty obligates states parties to assess biological diversity in areas subject to their jurisdiction, including the EEZ. The criteria and standards applicable to this exercise are available from bodies established by the convention.
Once areas of sensitive biodiversity have been identified, the state is required to take whatever measures are required for their protection. This can take the form of a protected area, within which activities can be closely controlled, or perhaps prohibited absolutely.
Single ecosystem management (SEM) is “a collaborative approach to management of resources with ecologically bounded transnational areas...done in an international context and consistent with...international law.”  Widely hailed as a breakthrough in the promotion of optimum living resources management and ecosystem health, productivity, and protection, SEM is currently being applied in many parts of the world in projects funded, inter alia, by the Global Environmental Facility and supported by bodies such as the U.S. National Oceanic and Atmospheric Administration (NOAA). 
Application of this ecologically based concept brings together states that have not always had a record of cooperation. For example, the Bay of Bengal large marine ecosystem (LME) involves the participation of Bangladesh, India, Indonesia, Malaysia, Maldives, Myanmar, Sri Lanka, and Thailand. Six LME projects in the Asia-Pacific are outlined, including one in the South China Sea.  This initiative involves China, Indonesia, Malaysia, the Philippines, Taiwan, and Vietnam. A report on the South China Sea LME by S. Heileman deals with issues of productivity, fish and fisheries, pollution and ecosystem health, socioeconomic conditions, and governance.  The report is remarkable because it examines a wide variety of issues from different disciplinary perspectives, thereby offering the reader a formidable tour d’horizon. It includes significant data on the dollar value of living and renewable resources of all kinds, including surprising figures on mangroves and seagrasses. On the other hand, there are details of ecosystem and habitat destruction, questionable fisheries practices, growing environmental degradation, and socioeconomic matters such as dependence by coastal populations. All in all, it makes salutary reading for those who claim that the status quo in the area, as regards jurisdiction, marine management, and the like, is sustainable.
Spatially, the SEM of LMEs is based on “ecologically bounded” zones, not overlapping claims or the like. The world’s richest area of marine biological diversity, the “Coral Triangle,” is seen by the six states that share jurisdiction over it as a single entity, and they are beginning to approach its management accordingly.  We have here another example of a highly functional “zone,” the bounds of which are determined by the natural world rather than by accidents of political geography and history.
The discussion to date has focused on interstate cooperation, meaning central government to central government. It should not be forgotten that while lawmaking in many countries occurs at a central level, implementation and management is local, at the provincial or sub-provincial levels. This suggests that links between local governments of different countries may be an absolute necessity in the discharge of the international obligations of their respective states. This, in turn, requires a high degree of vertical integration within each state.
Hydrocarbon Fields Straddling Maritime Boundaries
In order to explain the legal issues arising here, it is necessary to review some of the functional foundations of natural resources law, and the way in which the law responds to the physical nature of the resource in question. Functional oil and gas licensing and management regimes always take into account the different physical properties of oil and gas. Oil, once produced, is relatively easy to manage; gas is not, and requires extensive infrastructure investment before production commences or the substance will be lost. In their natural states, in situ, both are wholly different from, say, coal. Hydrocarbons are found in reservoirs, and at enormous pressure. Once the reservoir is perforated, as with any pressure vessel, the substances try to escape by that route. It is the task of the company concerned to ensure that this escape is controlled at all times; otherwise a blowout ensues.
As production continues, natural pressure forces the substances within the reservoir to migrate toward the point or points of perforation. Suppose, however, that more than one interest holder has a stake in the field, but the well has been perforated by only one of them. It is very possible, indeed probable, that substances originally in the tract, or part of the reservoir owned by or subject to the jurisdiction of other interest holders, will be captured by the single producer. This was a common phenomenon in the petroleum-producing jurisdictions of the United States from the early days of the oil industry until the 1920s. Owners who thought they had been “robbed” sought the protection of the courts, which was not forthcoming. They were advised instead to compete with producing parties in an attempt to capture as much of the substances as they could. 
While this approach accords well with the spirit of laissez faire, it is utterly disastrous for a number of reasons. To effect the recovery of what is theoretically the maximum volume recoverable from any hydrocarbon deposit as economically and efficiently as possible, requires proceeding in accordance with a set of rules and principles known in the industry as “good oil field practice.” These require, inter alia, drilling into a structure according to proven engineering principles, that is, placing wells where engineers dictate and not in order to engage in competitive production. Gas, air, or water should be re-injected to maintain pressure, and this task must also be done according to sound engineering principles. In short, assuming that a field has four owners, it is possible that there is no reason for drilling or production operations on the territory of all of them. Competitive drilling is wasteful and expensive, and prejudices the recovery of the maximum recoverable reserves.
This situation is bad enough, but competitive drilling has also led to overproduction. This in turn has resulted in an artificially low price for the product, and a lowering of the threshold at which a field is commercially viable. The result has been the premature abandonment of now-damaged reservoirs from which the maximum recoverable had not been recovered. The only way to address the problem has been for all interested owners to be encouraged, and if necessary, compelled,  to cooperate in treating the field as a single unit, and apportioning costs and proceeds in accordance with the percentage of the reservoir underlying their respective tracts of land. Ideally, one company acts as operator of the field on behalf of all, and wells are drilled and equipment is placed not in regard to tract boundaries, but in accordance with good oil field practice. This technique, known as unitization,  is thought of as a conservation measure, but is one that also preserves the correlative rights of interest holders.
By the early 1950s, it was clear that the international community was more than keen to follow the example of the United States in claiming jurisdiction over the continental shelf for the purposes of the exploration for, and exploitation of, natural resources. There were marked differences in the nature and extent of the claims, but the International Law Commission was working on proposals that might alleviate that situation, and that would bear fruit in the Convention on the Continental Shelf of 1958. One of the earliest treatments of what would soon be termed “continental shelf law” was published in 1954, in the work of M.W. Mouton, a Belgian admiral and international lawyer.  Mouton foresaw trouble ahead if continental shelf resources were divided by maritime boundaries. There would be competitive drilling and ill feeling between the parties if one of them thought that they had been taken advantage of. His advice, therefore, was, “no two straws in one glass”: boundaries should be drawn around—rather than through—hydrocarbon fields.
It has been suggested that this view may have led Bahrain and Saudi Arabia to avoid dividing an oil field situated on the median line between them when concluding their continental shelf boundary treaty in February 1958, a few weeks before the first UN Conference on the Law of the Sea, which was to produce, inter alia, the Convention on the Continental Shelf. The field in question was enclosed in an irregular polygon, allocated to Saudi Arabia but with Bahrain entitled to 50% of the net proceeds.  The agreement did not resemble joint development in any shape or form but rather privileged the preservation of the unity of the deposit.
Unitization, however, does not require or respect the unity of the deposit. The latter concept is irrelevant once the parties commit to unitization. In any case, as the admiral did not perhaps appreciate, it is possible to demarcate the full dimensions of an oil field only after a lot of work has been done on it, including drilling, and production has commenced. His analysis leaves two questions: who will pay for this work to be done, and how will the allocation of the undivided field be determined? Mouton had nothing to say on these matters, a classic example of the consequences of an analysis of a multifaceted issue from one point of view alone, a weakness to which lawyers are sometimes prone.
Neither the 1958 convention nor its 1982 successor contain a word on correlative rights and obligations of states when a maritime boundary is found to have divided a hydrocarbon field. But states clearly saw this as a possibility, as evidenced by a provision in the first boundary treaty signed after the entry into force of the 1958 convention. Article 4 of the 1965 continental shelf boundary treaty concluded by Norway and the United Kingdom states the following:
If any single geological structure or petroleum field, or any single geological structure or field of any other mineral deposit, including sand or gravel, extends across the dividing line and the part of such structure or field which is situated on one side of the dividing line is exploitable, wholly or in part, from the other side of the dividing line, the Contracting Parties shall, in consultation with the licensees, if any, seek to reach agreement as to the manner in which the structure or field shall be most effectively exploited and the manner in which the proceeds deriving there from shall be apportioned. 
This is obviously a complete repudiation of the notion of the “unity of the deposit.” It is unclear whether the framers of the treaty had any specific ideas as to how cross-boundary fields would be exploited effectively or the manner in which the proceeds would be apportioned. It may well have been seen as a contingency that might arise in the unforeseeable future. Nonetheless, the first exploration and production licenses awarded by both countries were exactly on their respective sides of the median line, as if anxious to know of the existence of such fields as soon as possible. It was for this reason that the first known international cross-boundary petroleum reservoir, the Frigg gas field, was discovered in the early 1970s. The development plan for the field was approved in 1974, it came on stream in late 1977, and production ceased in late 2004. 
At the time, the licensees on either side of the boundary were held by consortia led by the British and Norwegian subsidiaries of the French firm Elf Aquitaine, respectively. The legal departments of both were headed by North Americans, as there were relatively few lawyers with oil and gas experience in Britain or Norway at this time. The states treated the field as if it were in Texas or Alberta—they unitized it. A series of inter-consortium agreements provided for the appointment of an expert to make an initial assessment of the volume of the field and the percentages on either side of the boundary; it was recognized that these figures would be revised as more was learned about the field once production started. Other instruments took the form of a unitization agreement, and Elf Aquitaine Norway was appointed as operator to act on behalf of all other interest holders. Elf Aquitaine then submitted a cooperative development plan to the two governments. 
In 1976, Britain and Norway concluded the first-ever treaty pertaining to the unitization of an offshore hydrocarbon deposit that cuts across international maritime boundaries.  They were to conclude more agreements relating to other cross-boundary fields, and Britain has also concluded a unitization agreement with the Netherlands. The Timor Sea Treaty between Australia and Timor Leste  calls for the unitization of fields straddling the boundary between the joint development zone established by that agreement and the continental shelf of either party. The sizeable Greater Sunrise field is subject to this provision. 
The successful North Sea experience shows that unitization constitutes an equitable solution to the problem of apportioning a divided oil field between two states. But it is a complex business, and requires peerless expertise in many fields and continuing political will and realism. For example, petroleum engineers determined that there was no need for any installations to be placed on the British sector of the Statfjord oil field. London wanted one purely to demonstrate British involvement, but was persuaded to drop this demand in light of the cost and because it was ultimately pointless. The Statfjord operation as a whole, said a senior lawyer with Mobil Oil UK, “came of age politically” at this point: the meaninglessness (and expense) of this empty gesture was obvious. 
The intense degree of cooperation required to bring these agreements into being, and a general recognition that the continental shelf boundary should not stand in the way of North Sea oil development, led to the adoption in 2005 of an overarching framework agreement on cross-border cooperation,  thus institutionalizing matters that had been addressed in an ad hoc fashion to this point. This was a case, in other words, where a functionally dictated cooperative regime was realized due to a high degree of mutual trust between two states and to their demonstrable success in resolving cross-boundary issues. The regime, in turn, should also be the means for the depoliticization of matters that many governments find difficult to address: the triumph of the functional (and also rational and efficient) approach.
This remarkably comprehensive agreement commits the two governments to facilitating cross-boundary projects and establishes the outline of regulatory processes and procedures that will apply for authorizing and/or approving activities between them, as well as coordinating such processes and procedures. The agreement, according to a British Foreign Affairs Office memorandum, also “provides for consultation between the two Governments on a wide range of matters relating to cross-boundary projects, sets out principles relating to third party access to pipelines and promotes information sharing between the two Governments, regulatory authorities and relevant system operators to ensure safe, effective and stable operation of the systems.”  As the memorandum makes clear, one objective of the agreement is to save time spent unnecessarily on negotiating agreements on a field-by-field basis.
Cooperation is not limited to matters of principle. The agreement includes provisions relating to cooperation and coordination with respect to a wide variety of operational issues, including health and safety, environmental issues, physical security, and decommissioning. It is clearly envisaged that officials from one state may, in some circumstances, require and shall be granted access to installations on the continental shelf of the other. An intergovernmental Framework Forum has been established to provide for regular consultations between officials of the two states, as have institutionalized cooperation between their licensees. 
The 2005 Framework Agreement is the outcome of a process that began with the Norway–United Kingdom boundary agreement of 1965 and its commitment to seek agreement on the means whereby cross-boundary deposits, or single geological structures as they are more properly called, should be exploited and the revenues apportioned. What is the impact of these developments globally? It can be argued that the presence of single geological structure provisions, modeled more or less on Article 4 of the Norway-UK agreement, in the vast majority of the world’s maritime boundary treaties is evidence of an international determination that there should be no free-for-all when such fields are discovered. Functional, economic, and other rationales have been summarized, but here we are looking at the emergence of a legal rule that reflects these imperatives. Customary international law emerges from a constant and uniform practice accepted as law, an element international lawyers call opinio juris.  Not only is it possible to argue that international practice here is both constant and uniform, but the fact that the obligations are contained in treaties settle the sometimes elusive issue of the presence of opinio juris beyond doubt.
Such provisions are certainly to be found in almost all of the maritime boundary agreements in East and Southeast Asia except those that have no relevance to oil and gas.  Despite its growing popularity with the international community, it would be going too far to claim that unitization per se is a requirement of customary international law.  Some states prefer to divide resources of potentially disputed fields equally, as is their right.  But the requirement to consult and cooperate clearly emerges from an examination of boundary treaties and state practice.
The base for the functional approach to legal development in the oceans is surely apparent from the foregoing. The functional approach requires an understanding of the nature of the substance or activity to be regulated or controlled. Without this information, it is almost impossible to understand why a particular requirement has been brought into being.
Second, where cooperation is functionally required, failure to make efforts to enter into an agreement may constitute a breach of an international obligation. This would be the case where cooperation is mandatory, and even if it is not, where the consequences of failing to cooperate are deleterious as regards the sustainable development of resources or harm caused to the marine environment or biosphere more generally.
Third, international practice shows that while states may appear to be surrendering a measure of unilateral control over offshore activities when they cooperate with their neighbors, they gain in the long run through securing the proper conduct of activities and the furtherance of good neighborliness. Ocean activities are, after all, seldom the only matters on the bilateral agendas of coastal states.
Finally, maritime cooperation promotes sound governance in the oceans. This in turn advances the international legal agenda, which in turn reflects the broader desire to promote good governance and the rule of law between states.
IAN TOWNSEND-GAULT is Associate Professor of Law and Director of the Centre for Asian Legal Studies at the University of British Columbia. He specializes in international law, especially marine resource law, maritime boundaries, maritime cooperation, and the protection of the marine environment. He can be reached at email@example.com.
 United Nations Division for Ocean Affairs and the Law of the Sea, “UN Convention on the Law of the Sea (UNCLOS).”
 The phrase was crafted by the International Law Commission as it worked on what would become the 1958 Convention on the Continental Shelf. The commission was responding to concerns by some states that recognizing rights of “sovereignty” over the shelf would lead, in time, to claims to enormous territorial seas, which a number of states had indeed made before the first UN Conference on the Law of the Sea in March/April 1958. Some conference participants wanted to delete the commission’s formulation in favor of unadulterated sovereignty, but the majority of states preferred the “sovereign rights” formulation. It appears in Parts V and VI of UNCLOS to define the nature of state rights in the EEZ and the continental shelf.
 See the Preamble to the Truman Proclamation of September 1945, the first unambiguous claim to jurisdiction beyond the 3-nm limit: Executive Order no. 9633, Code of Federal Regulations, title 3 (1943–1948).
 “UNCLOS,” art. 122.
 Ibid., art. 123.
 To give some idea of the extent of these impacts, the following “Priority Issues/Areas of Concern” were noted in the 2005 Operational Plan for the Manila Bay Coastal Strategy: absence of integrated management framework, lack of awareness and capacity, lack of resources, water pollution (water quality, column, and sediment), harmful algal blooms, solid waste, toxic and hazardous waste, soil pollution, over-exploitation of resources, destruction/degradation of habitats and ecosystems, coastal hazards (natural and man-made), sea-level rise, changes in shoreline features, and destruction of historical, cultural, archaeological, and unique geological sites. Summarized from Manila Bay Environmental Management Project, Operational Plan for the Manila Bay Coastal Strategy (OPMBCS), December 2005, sec. 3, table 1, http://www.pemsea.org/pdf-documents/publications/opmbcs.pdf.
 “Convention on Biological Diversity (CBD),” June 5, 1992, UN Certified True Copies of Multilateral Treaties Database, chap. 27, sec. 8, art. 18.
 UN Conference on Environment and Development (UNCED), Agenda 21: Earth Summit—The United Nations Programme of Action from Rio (New York: United Nations, 1993), sec. 2, chap. 17, http://www.un.org/esa/dsd/agenda21.
 “Activities” might include management-related activities, data- and information-sharing, and international and regional cooperation and coordination.
 “Means of implementation” include financing and cost evaluation, scientific and technical matters, human resource development, and capacity building.
 UNCED, Agenda 21, par. 17.59.
 Ibid., par. 17.89.
 For example, the Special Session of the General Assembly to Review and Appraise the Implementation of Agenda 21, June 23–27, 1997 (“Rio + 5”) and the Earth Summit 2002 in Johannesburg (“Rio + 10”).
 UN Environment Programme, “Declaration of the United Nations Conference on the Human Environment,” in “Report of the UN Conference on the Human Environment” (Stockholm, June 5–16, 1972), http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503.
 World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987).
 This designation is attributed to Ambassador Tommy Koh, president of the Third United Nations Conference on the Law of the Sea from 1980 to 1982.
 These measures included the Rio Declaration on Environment and Development, Agenda 21, the Framework Convention on Climate Change, and the Statement on Forest Practices.
 The CBD was drafted by what came to be known as the Intergovernmental Negotiating Committee. The work of the committee culminated on May 22, 1992, with the Nairobi Conference for the Adoption of the Agreed Text of the Convention on Biological Diversity. The Rio conference opened two weeks later.
 The Conference of the Parties is the governing body of the convention, and Article 25 established the Subsidiary Body of Scientific, Technical, and Technological Advice to guide convention bodies and states parties in all aspects of implementation.
 “U.S. Ocean Action Plan: The Bush Administration’s Response to the U.S. Commission on Ocean Policy,” National Oceanic and Atmospheric Administration (NOAA), 2004, 36.
 The NOAA-supported initiatives are described in Kenneth Sherman et al., “Global Applications of the Large Marine Ecosystem Concept 2007–2010,” NOAA Technical Memorandum NMFS-NE-208, June 2007. This section relies heavily on this document.
 The other LME projects involve the Gulf of Thailand, the Sulu-Celebes Sea, the Indonesian Sea, the East China Sea, and the Yellow Sea.
 S. Heileman, “South China Sea,” National Oceanic and Atmospheric Administration, LME Brief no. 36, http://www.lme.noaa.gov/LMEWeb/LME_Report/lme_36.pdf.
 The states sharing jurisdiction over the Coral Triangle include Indonesia, Timor-Leste, Papua New Guinea, Solomon Islands, the Philippines, and Malaysia.
 The “rule of capture” was established in U.S. law toward the end of the nineteenth century. Some years later, in Barnard v. Monongahela Natural Gas Co., 216 Pa. 362 (1907), the plaintiff wanted the gas company to stop producing from wells close to his property line on the grounds that substances from the subsurface of his land were being produced. The court refused to interfere, saying that the only remedy was for the plaintiff to do likewise—engage in competitive drilling. The court remarked, “This may not be a very good rule, but neither the courts nor the legislature have given us a better one.”
 The U.S. Supreme Court upheld the right of state legislatures to compel cooperation as being in the public interest, as opposed to a “taking” without due process of law.
 Unitization has been defined authoritatively as “a term…used to denominate the joint operation of all or some portion of a producing reservoir…Pooling [the bringing together of small tracts sufficient for the award of a well license] is important in the prevention of drilling of unnecessary and uneconomic wells, which will result in physical and economic waste. Unitization is important where there is separate ownership of portions of the rights in a common producing pool in order that it may be made economically feasible to engage in cycling [e.g., of gas condensate], pressure maintenance or secondary recovery operations [e.g. injection of water or gas] and to explore for minerals at considerable depth.” For more, see Howard Williams and Charles Myers, Manual of Oil and Gas Terms, 5th ed. (New York: Matthew Bender, 1981), 800–801.
 M.W. Mouton, “The Continental Shelf,” Recueil des Cours 85, no. 1 (1954): 343–465.
 “Frontier Agreement between the Kingdom of Saudi Arabia and the Government of Bahrain,” February 22, 1958, UN Treaty Ser., no. 1733.
 “Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway Relating to the Delimitation of the Continental Shelf Between the Two Countries,” March 10, 1965, UN Treaty Ser. 551.
 Ministry of Petroleum and Energy of Sweden and the Norwegian Petroleum Directorate, Facts 2010—The Norwegian Petroleum Sector (Oslo, June 2010), 183.
 This author had the opportunity to examine the all-important intercompany agreements pertaining not only to Frigg, but also the Statfjord oil field, the largest in the North Sea, as part of his graduate research in 1977–8. A complete account of the complex private/public legal developments can be found in his paper, Ian Gault, “The Frigg Gas Field: Exploitation of an International Cross-Boundary Petroleum Field,” Marine Policy 3, no. 4 (1979): 302–11.
 “Agreement between the Government of the United Kingdom of Northern Ireland and the Government of the Kingdom of Norway Relating to the Exploitation of the Frigg Field Reservoir and the Transmission of Gas therefrom to the United Kingdom,” May 10, 1976, UN Treaty Ser. 1098. Building on their unitization cooperation, Britain and Norway have also entered into agreements broadening their cross-boundary cooperation generally. See the “Framework Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway Concerning Cross-Boundary Petroleum Cooperation,” July 10, 2007, U.K. Treaty Ser. 020/2007.
 “Timor Sea Treaty between the Government of East Timor and the Government of Australia,” May 20, 2002, UN Treaty Ser. 2258. See also the “Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea,” January 12, 2006, UN Treaty Ser. 2483, http://www.dfat.gov.au/geo/east_timor/treaty_120113.pdf. For background and analysis, see Clive Schofield, “Minding the Gap: The Australia-East Timor Treaty on Certain Maritime Arrangements in the Timor Sea,” International Journal of Marine and Coastal Law 22, no. 2 (2007): 189–234.
 See the “Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste Relating to the Unitisation of the Sunrise Troubador Fields,” March 6, 2003, UN Treaty Ser. 2483.
 This contrasts with the demand made by the government of Timor-Leste that the resources of the Greater Sunrise field be piped to that country and processed there (which will require the construction of an oil refinery), as opposed to a pipeline to Darwin in the Australian north. The Australian licensees are far from happy with this demand.
 UK Foreign and Commonwealth Office, “Explanatory Memorandum for the 2005 Cross-Boundary Petroleum Co-Operation Agreement Between the UK and Norway,” http://www.fco.gov.uk/en/publications-and-documents/treaty-command-papers-ems/explanatory-memoranda/explanatory-memoranda-2006a/norwaycoop; and Secretary of State for Foreign and Commonwealth Affairs, “Framework Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Norway Concerning Cross-Boundary Petroleum Co-operation.”
 Foreign and Commonwealth Office, “Explanatory Memorandum.”
 Secretary of State for Foreign and Commonwealth Affairs, “Framework Agreement,” art. 1.
 The elements of customary international law are outlined by the International Court of Justice in a number of seminal cases, including the North Sea Continental Shelf Case (Germany v. Netherlands, Germany v. Denmark), ICJ Rep. 3 (1969); and the Haya de la Torre Case (Colombia/Peru) (usually referred to as the Asylum Case), ICJ Rep. (1951), 71.
 These agreements include “Agreement between the Government of Malaysia and the Government of Indonesia on the Delimitation of the Continental Shelves between the Two Countries,” October 27, 1969, UN Legal Ser. 16, 417; “Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries,” May 18, 1971, UN Legal Ser. 18, 433; “Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas Supplementary to the Agreement of May 18, 1971,” October 9, 1972, UN Legal Ser. 18, 441; “Agreement between the Commonwealth of Australia and the Republic of Indonesia Concerning Certain Boundaries between Papua New Guinea and Indonesia,” January 28, 1973, UN Legal Ser. 18, 444; “Agreement between the Government of the Republic of Indonesia, the Government of Malaysia and the Government of the Kingdom of Thailand Relating to the Delimitation of the Continental Shelf Boundaries in the Northern Part of the Strait of Malacca,” December 21, 1971, Limits in the Seas, no. 81; “Agreement between the Government of the Union of Myanmar, the Government of the Republic of India and the Government of the Kingdom of Thailand on the Determination of the Trijunction Point between the Three Countries in the Andaman Sea,” October 27, 1993, Law of the Sea Bulletin 30 (1996): 66; and “Agreement between the Government of the Socialist Republic of Vietnam and the Government of the Republic of Indonesia Concerning the Delimitation of the Continental Shelf Boundary,” June 26, 2003, UN Treaty Ser. 2457.
 International examples continue to multiply. See “Treaty between the Federal Republic of Nigeria and the Republic of Equatorial Guinea Concerning their Maritime Boundary,” September 23, 2000, UN Treaty Ser. 2205; “Treaty between Equatorial Guinea and Nigeria on Joint Exploration of Crude Oil, Especially at the Zafiro-Ekanga Oil Field Located at the Maritime Boundary of Both Countries,” April 3, 2002, UN Division for Ocean Affairs and the Law of the Sea; and the unitization provisions of the Timor Sea Treaty.
 In addition to the Bahrain–Saudi Arabia agreement cited above, see “Agreement on Settlement of the Offshore Boundary Lines and Sovereign Rights over Islands between Qatar and Abu Dhabi,” March 20, 1969, UN Legal Ser. 16, 403, which provides, inter alia, for equal rights over the Hag el-Bunduq oil field, which is to be exploited by a company from Abu Dhabi.