The International Law Commission and State Responsibility: Application of a Comparative Paradigm on Oil and Watercourses

Article excerpt

This article covers transboundary issues relating to the aggregate of legal norms derived from international law to determine the extent to which States within the international community may be held responsible under international law for acts that breach international obligations concerning oil production: risk of harm, or harm to the environment within State jurisdiction. Examples which show the emergence of transnational normative development in relation to state responsibility (1) are provided.

This is achieved by creating a paradigm by applying the United Nations International Law Commission Report on State Responsibility (2). The Report includes provisions for: state responsibility for internationally wrongful acts; new legal relationships; new rights; corresponding obligations and duty; and duty incurring state responsibility. International situations have resulted in new legal consequences found in the Unocal Case (3) and in the Chevron Case. (4) Also, the Spratly Islands (5) dispute brings to light all aspects of liability for injurious consequences arising from obligations, pinning regional States to become antagonistic units.

Examples of Possible Regional Conflict Areas

There has been recent evidence of confrontation between China and Vietnam with demands that the other cancel its contract. China and Vietnam both grant exploration contracts to United States Oil Companies: 1992 China National Offshore Oil Corporation with Crestone Energy for exploration of Wan'an Bei Block 21= 25, a 155 [km.sup.2] section of the south western South China Sea that includes the Spratly Islands. Crestone's contract includes Vietnam's Block 133 and Block 134, where Petro Vietnam and Conoco Phillips Vietnam Exploration & Production, which is a section of Conoco Phillips, agreed to evaluate prospects in April 1992. (6)

The South China Seas area is another example of conflict arising in one of the major shipping lanes on the high seas, where it is estimated one trillion dollars value of oil, gas and fish can be found. (7) Natural gas is located in the littoral States in the area such as Brunei; Indonesia; Malaysia; Thailand; Vietnam; and the Philippines. There have been suggestions to create pipelines to link the gas producing regions of the Pacific Rim, with the South China Seas as central in scope. Malaysia has been the most active in oil and natural gas production, and is the largest producer in this region. Cambodia has claimed territorial jurisdiction in areas of the Gulf of Thailand and has signed exploration contracts with several companies. Thailand has also begun to follow suit. China has developments in the offshore oil fields of Yacheng. Indonesia is in the Natuna gas fields. Malaysia has escalated production since 1997 from the Malaysian Lawit field. Vietnam is interested in the Nam Con Son Basin. (8)

Obligation Incurred by the State Whose Act is Internationally Held Wrongful: International Law Commission Report (9) on State Responsibility

The objective of this aspect of the paradigm is to determine the extent to which a State may be held responsible under the sources of international law for acts that breach international obligations concerning the use of a shared contiguous territory. Existing norms and developing norms of general international law are examined to find which legal rules would bind States in terms of rights, duties and obligations. This exercise will serve to indicate whether a State can be held responsible for acts constituting utilization of territorial jurisdiction under international law where there may be risk of damage to other States. This will be done by concentrating on the fact that 'an obligation' is a mirror reflection of a 'right' of another State, and that the term 'norm' implies the idea of an obligation erga omnes. (10)

States currently enjoying the use of their own territory, or other jurisdiction, for purposes of oil production have been: i) using armed measures to protect oil exploration; ii) in violation of jus cogens (11) crimes against humanity; and iii) involved in civil disputes, causing unrest on foreign grounds. …