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International Agreements Between Nonstate Actors as a Source of International Law

  • Melissa Loja (a1)
Extract

International issues that are resolved traditionally through agreements between states are managed currently through agreements between government agencies and corporate entities. Government agencies and corporate entities are nonstate actors that have no formal capacity to engage in international lawmaking. Are their international agreements a source of international law?

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Footnotes
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This panel was convened at 3:00 p.m., Thursday, April 5, 2018, by its moderator Laurence Helfer of Duke University School of Law, who introduced the panelists: Melissa H. Loja of the University of Hong Kong Faculty of Law; Asaf Lubin of Yale Law School; Sarah Mason-Case of the University of Toronto Faculty of Law; and Nathan Yaffe of the New York University School of Law.

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References
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1 Council of Europe Directorate General of Legal Advisers, Expression of Consent by States to be Bound by a Treaty Analytical Report and Country Reports, at 13–15.

2 Malanczuk, Peter, Multinational Enterprises and Treaty-Making, in Multilateral Treaty-Making: The Current Status of Challenges to and Reforms Needed in the International Legislative Process 5862 (Gowlland-Debbas, Vera ed., 2013).

3 77 Int'l L. Ass'n Rep. Conf. 608, 619–29 (2016). For the International Law Association, international lawmaking involves “entering into treaties[,] … making binding unilateral commitments[,] … [and] providing practice and/or opinio juris for the purpose of identifying norms of customary international law (CIL).” See 75 Int'l L. Ass'n Rep. Conf. 658–59 (2012).

4 Melissa Loja, International Agreements Between Nonstate Actors as a Source of International Law: A Case Study of International Unitization Agreements Between Petroleum Agencies and Corporations (1937–2018) (unpublished dissertation thesis pending with Faculty of Law, University of Hong Kong) (on file with author).

Future research will focus on international relations dynamics behind the choice of nonstate international agreement, similar to work done in Raustiala, Kal, Form and Substance in International Agreements, 99 AJIL 581614 (2005) and Helfer, Laurence, Flexibility in International Agreements, in Interdisciplinary Perspectives on International Law and International Relations (Dunoff, Jeffrey L. & Pollack, Mark A. eds., 2013).

5 See Inter-Governmental Cooperation Agreement Between Mauritania and Senegal on the Joint Exploitation of the Grand Turue/Ahmeyim Field, Feb. 12, 2018, available at http://www.petrole.gov.mr/spip.php?article398. The petroleum ministers signed the agreement in the presence of the heads of state.

6 Jean d'Aspremont, Formalism and the Sources of International Law, at chs. 7–8 (2011).

7 Id. at 26.

8 d'Aspremont, Jean, Subjects and Actors in International Lawmaking, in Research Handbook on International Lawmaking 4245 (Brolmann, Catherine & Radi, Yannick eds., 2016).

9 Id.

10 Id.

11 Id.

12 Id.

13 1979 Malaysia-Thailand Joint Development Agreement, available at https://www.mtja.org/assets/pdf/en/memorandum_en.pdf [hereinafter Malaysia-Thailand JDA].

14 CNOOC/PETROVIETNAM/PNOC Joint Statement on the Signing of a Tripartite Agreement for Joint Marine Seismic Undertaking in The Agreement Area in the South China Sea, available at http://ph.china-embassy.org/eng/zt/nhwt/t187333.htm.

15 House Resolution No. HR01739, available at http://www.congress.gov.ph/legisdocs/basic_17/HR01739.pdf.

16 Malaysia-Thailand JDA, supra note 13, at n. 12.

17 1987 Model Contract Between Petronas and Contractor, Art. 19.5, available at http://dev2.barrowscompany.com.

18 1992 Memorandum of Understanding Between Malaysia and the Socialist Republic of Vietnam for the Exploration and Exploitation of Petroleum in a Defined Area of the Continental Shelf Involving the Two Countries, Art. 3, available at https://cil.nus.edu.sg/wp-content/uploads/formidable/14/1992-MOU-between-Malaysia-and-Vietnam-for-the-Exploration-and-Exploitation-of-Petroleum.pdf.

19 2009 Statement of Tun Abdullah Ahmad Badawi on the Exchange of Letters Between Malaysia and Brunei Darussalam, para. 6, available at https://www.kln.gov.my/archive/content.php?t=7&articleId=735675; 2017 Joint Statement on the 20th Annual Leaders’ Consultation Between Malaysia and Brunei Darussalam, paras. 5–6, available at http://www.mofat.gov.bn/Lists/Press%20Room/news.aspx?ID=639&ContentTypeId=0x01040055E31CAE71A9C144B21BBB007363093500B667C4949BC69D4394F4AC8FA016E767 [hereinafter 2017 Joint Statement].

20 2006 Brunei and Loon Brunei Production Sharing Agreement (PSA), Art. 11.5, available at http://www.resourcecontracts.org/contract/ocds-591adf-9845812582/view#/pdf [hereinafter 2006 Brunei and Loon Brunei PSA].

21 2013 Joint Statement on the 17th Annual Leaders’ Consultation Between Brunei Darussalam and Malaysia, para. 6, available at http://www.mofat.gov.bn/Lists/Press%20Room/news.aspx?ID=30&ContentTypeId=0x01040055E31CAE71A9C144B21BBB007363093500B667C4949BC69D4394F4AC8FA016E767.

22 2013 Model Contract, Decree No. 33/2013/ND-CP, Art. 18.2.2 [hereinafter 2013 Model Contract].

23 Law 95/2015/ND-CP, Art. 67(5) [hereinafter Law 95/2015].

24 2016 Law on Exploration and Development of Resources in Deep Seabed Areas.

25 2012 Petroleum Contract Between CNOOC and Primeline for Contract Area 33/07 in the East China Sea, available at http://www.resourcecontracts.org/contract/ocds-591adf-6266688800/download/word.

26 Beibu/Bac Bo Gulf Boundary Agreement Between China and Vietnam, Art. 7, 2336 UNTS 41860 (2004).

27 2006 Vietnam – China Joint Exploration Agreement in the Agreed Offshore Area in the Gulf of Tonkin, as reported in 2013 Vietnam-China Joint Statement, available at http://www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns130624152141/newsitem_print_preview. The text of the agreement itself is confidential.

28 Id.

29 Vietnam-China Joint Statement, June 24 2013, available at http://www.mofa.gov.vn/en/nr040807104143/nr040807105001/ns130624152141/newsitem_print_preview [hereinafter Vietnam-China Joint Statement].

30 2004 Petroleum Regulation of Upstream Oil and Gas Business Activities, Art. 43 [hereinafter 2004 Petroleum Regulation].

31 2013 Model Contract, supra note 22, at n. 21.

32 Law 95/2015, supra note 23, at n. 22.

33 2006 Brunei and Loon Brunei PSA, supra note 20, at n. 19; 1991 Model Contract Malaysia Deepwater Block A&B, Art. 19.5.

34 2017 Joint Statement, supra note 19, at n. 18.

35 Petrovietnam and CNOOC Signed the 4th Amendment to the Agreement on Joint Exploration in the Gulf of Tonkin, para. 1 (June 21, 2013), available at http://english.pvn.vn/?portal=news&page=detail&category_id=95&id=3683.

36 2013 Vietnam-China Joint Statement, supra note 29, at n. 26.

37 2004 Petroleum Regulation, supra note 30, at n. 29.

38 These forms of international agreements between nonstate actors are not recent nor confined to Asia; they have been employed as early as 1937, and in the Middle East, Africa, America, and Europe. See Petroleum Concessions Limited Agreement Between the Shaikh of Dubai, Art. 4, May 22, 1937, available at https://www.qdl.qa/en/archive/81055/vdc_100036588493.0x000009; Framework Agreement Between the Republic of Cyprus and the Arab Republic of Egypt Concerning the Development of Cross-Median Line Hydrocarbons Resources, Dec. 12, 2013, available at http://www.mof.gov.cy/mof/gpo/gpo.nsf/All/A88D02909DC27F10C2257D20002C1DB5/$file/4196%2025%207%202014%20PARARTIMA%201o%20MEROS%20III%20.pdf; Transboundary Hydrocarbon Agreements, 43 U.S.C. § 1356b(b)(1)–(2); Hydrocarbon Exploration and Production Regulation, Art. 23, Feb. 29, 2016, available at http://www.bndh.gob.do/wp-content/uploads/2016/04/Decree-establishing-the-Rules-of-Exploration-and-Production-of-.pdf; Mining Act of the Netherlands, Arts. 23, 42, Jan. 1, 2003.

This panel was convened at 3:00 p.m., Thursday, April 5, 2018, by its moderator Laurence Helfer of Duke University School of Law, who introduced the panelists: Melissa H. Loja of the University of Hong Kong Faculty of Law; Asaf Lubin of Yale Law School; Sarah Mason-Case of the University of Toronto Faculty of Law; and Nathan Yaffe of the New York University School of Law.

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Proceedings of the ASIL Annual Meeting
  • ISSN: 0272-5037
  • EISSN: 2169-1118
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