Marine Biodiversity Joint Exploitation Agreement in the Border Area

of the Continental Shelf between Coastal States

Ria Tri Vinata, Masitha Tismananda Kumala and Peni Jati Setyowati

Law Faculty, Wijaya Kusuma Surabaya University, Jalan Duikuh Kupang XXV/54, Surabaya, Indonesia

Keywords: Joint Exploitation, Marine Resources, Continental Shelf, Delimitation

Abstract: In the era of globalization, which is characterized by trade liberalization and increasingly fierce competition

between nations, all economic sectors must be able to produce goods and services that are highly competitive.

Indonesia, as the largest archipelagic country in the world, Indonesia has a large and diverse marine economic

potential. The state must be able to utilize the economic potential and coastal and marine resources optimally

by considering aspects of environmental sustainability and sustainability. Coastal and marine biological

resources have a substantial chance of experiencing species extinction. This is due to the many exploitation

cases from several parties that occur due to overlapping regulations regarding marine areas. Sources of such

disputes are directed to be used as cooperation objects by entering into agreements on joint exploitation or

joint development. The method in this research is normative. The purpose of this study is to minimize and

resolve disputes that occur between countries, especially Indonesia, related to the protection of natural

resources by entering into agreements on the division of marine areas and increasing the role of local

communities.

INTRODUCTION

In the era of globalization, which is characterized by

trade liberalization and increasingly fierce

competition between nations, all economic sectors

must be able to produce goods and services that are

highly competitive. As the largest maritime and

archipelagic country globally, Indonesia has a large

and diverse marine economic potential. The

development of the national economy that continues

to grow will increasingly depend on the potential of

the marine economy. The state must be able to utilize

the economic potential and coastal and marine

resources optimally by considering aspects of

environmental sustainability and sustainability.

The marine area has enormous uses and benefits

for people's lives and livelihoods. The high marine

biodiversity can reflect the economic potential of

these coastal and oceanic waters. The intrinsic value

of natural resources, namely as wealth or economic

assets for current and future generations. Coastal and

marine biological resources have a huge chance of

experiencing species extinction. This is mainly

because marine biological resources can be shared or

common property or anyone can use them at any time

(Djamali, 1998). This condition will encourage

people to use these resources as much as possible,

without the proper limit of responsibility.

Utilization of natural resources located under and

around the boundary line of the sea, or also known as

transboundary natural resources. Strictly classified as

transboundary natural resources that exist from the

seabed or under the seabed that extends from the

boundary line on both sides of the continental shelf,

so that natural resources from the continental shelf of

the one party, either in whole or in part, can be

exploited from the other party's continental shelf. In

general, border areas contain natural resources that

can be developed to strengthen community resilience

and are the basic capital and opportunities for

accelerating the development of their respective

regions. Likewise, in marine areas where the

boundary line is still a dispute. Some dispute arised

due to the problem of exploitation of its natural

resources (Johnson). In areas that do not yet exist or

where agreement has not been reached on maritime

boundaries or overlaps, a Joint Exploitation

Agreement is needed to share the benefits of marine

resources between states.

Vinata, R., Kumala, M. and Setyowati, P.

Marine Biodiversity Joint Exploitation Agreement in the Border Area of the Continental Shelf between Coastal States.

DOI: 10.5220/0010798600003317

In Proceedings of the 2nd International Conference on Science, Technology, and Environment (ICoSTE 2020) - Green Technology and Science to Face a New Century, pages 153-156

ISBN: 978-989-758-545-6

153

2 RESULTS AND DISCUSSION

2.1 Marine Biodiversity Joint

Exploitation

The sea zonation had occurred since the 15th century

when there was an agreement between Portugal and

Spain with their power to divide the world's seas.

Both of them were the great power of the time which

was very influential. In the 20th century, the effort to

control this sea continues. In 1945 America took even

more aggressive steps. President Harry S. Truman

proclaimed that the seabed around the American

mainland was under American jurisdiction, so that

they had the right to take advantage of their existing

resources. This statement is known as the Truman

Proclamation, which was followed by other Latin

American countries. In 1957, Indonesia declared the

archipelagic concept through the Djuanda

declaration.

The phenomenon of sporadic claims to marine

areas, in 1958, the United Nations felt the need for an

arrangement of control over the sea. The first United

Nations Conference on the United Nations

Conference on the Law of the Sea resulted in the

United Nations Convention on United Nations

Conference on the Law of the Sea 1958 (Arsana,

2016). In its development, there was an increase until

the latest convention was agreed, namely the United

Nations Conference on the Law of the Sea 1982,

which has now been recognized (ratified) by 159

countries and one European Union (Arsana, 2016).

Awareness of the protection of the marine

environment has begun to grow among the states

participating in the convention, especially regarding

the exploitation of natural resources on a large scale

in the marine environment and prevention of water

pollution that occurs due to vessel accidents marine

debris discard. Continental shelf boundaries

agreement, dispute resolution regarding the boundary

line of the continental shelf, or the failure of the

parties to reach the boundary line of the continental

shelf still leaves some problems (Law of the Sea

Bulletin, 1998).

2.2 Joint Exploitation as Dispute

Settlement

If the exploitation is carried out individually by each

party, a dispute will likely arise. In the state's

practices, the settlement of this dispute is made by

some cooperation by the parties. An agreement settles

the dispute on joint exploitation or joint development.

In the first case, the agreement is a continuation of the

agreement on the boundary line of the continental

shelf. In contrast, in the second case, the agreement is

an alternative to the failure of the parties to agree on

the boundary line of the continental shelf. In the

doctrine, literature, or practice of countries, such an

agreement is called a joint exploitation agreement or

a joint development agreement.

Through this agreement, the natural resources that

are the object of cooperation in the continental shelf

boundary area or the overlapping continental shelf

area are legally used as a single unit of deposit to be

further exploited together following or based on the

provisions of the agreement that they have agreed

(Harrison, 2007). Regarding problems that were

initially potential sources of conflict, they were

changed and directed into sources of cooperation. The

cooperation generally includes exploration,

exploitation, and sharing of profits derived from

exploiting natural resources in the area for the

parties—agreement on joint exploitation or joint

development as a continuation.

Suppose the boundary line of the continental shelf

is determined based on the decision of the

international dispute resolution body (judicial or

arbitration body), of course. In that case, the nature of

the agreement regarding the transboundary

exploitation of natural resources is no different from

that based on the pre-existing continental shelf

boundary line agreement (Harrison, 2007). It's just

that the legal basis is the decision of the dispute

resolution body itself. It is different if the conclusion

of the international dispute settlement body does not

correctly determine the boundaries of its continental

shelf but only affirms the principles and rules of

international law that can be applied, such as the

decision of the International Court of Justice in the

North Sea Continental Shelf Case, 1969. In this case,

the definite boundary line of the continental shelf

must be determined in advance by the parties

concerned in the form of an agreement based on the

decision of the dispute settlement body (Law of the

Sea Briefing Book).

In general, the agreements on the continental shelf

boundary line in one of their articles emphasize the

agreement of the parties to effectively exploit

transboundary natural resources located around the

continental shelf boundary line itself (Anglo vs

French Cases 1977, Guinea vs Guinea Bissau Case

1985.)

This kind of provision in the agreements

concerning the boundary line of the continental shelf

provides a legal basis for the parties concerned to

follow up by entering into agreements on joint

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exploitation or joint development. However, suppose

an agreement on the boundary line of the continental

shelf does not explicitly stipulate it. In that case, the

parties may agree on joint exploitation or joint

development if natural resources are found that cross

borders on the boundary line of the continental shelf

(Borgerson, 2009). However, the object of these

agreements, in general, is all or any transboundary

natural resources, so they are not limited to oil and

natural gas only. However, in practice, it turns out that

natural resources in the form of oil and natural gas are

the most commonly found as natural resources that

cross borders. Because of its nature, it also makes it a

natural resource that, if exploited from the side of

the continental shelf on one side, will also be used

on the other side (Borgerson, 2009).

Treaties on the boundaries of the continental shelf

directly and explicitly define oil and natural gas.

However, there are also agreements on the

continental shelf boundary which only mention in

general terms natural resources, without explicit

mention of specific natural resources. Because each

natural resource has different characteristics, each

type of natural resource found across borders requires

its arrangement in an agreement on joint exploitation

or joint development. In other words, the setting is

casuistic. So it is not possible for all- natural resources

found across borders to be regulated in one agreement

on joint exploitation or development (Jakobsen).

In this case, the arrangement of natural resources

in the overlapping continental shelf area can also be

regulated in the form of an agreement or agreement.

However, the agreement is no longer a continuation

of the agreement on the continental shelf boundary

line because the agreement on the continental shelf

boundary line itself does not yet exist. Such an

agreement is only an alternative taken by the parties

in exploiting their natural resources while waiting for

an agreement on the boundary line of the continental

shelf. In other words, the agreement is temporary

(Jakobsen). If the agreement is an alternative to the

absence of an agreement on the boundary line of the

continental shelf in the overlapping area, then while

exploiting its natural resources, the parties can

continue to negotiate to reach an agreement on the

boundary line the continental shelf. This agreement is

sufficient to meet the wishes of countries whose

continental shelf borders, especially in exploiting

their natural resources across borders. This is

evidenced by the increasing number of such

agreements (Agoes, 1991). Thus, the potential for

conflict between the parties can be accommodated

and transformed into a collaboration. This is a

positive step both in bilateral relations between the

two parties or in increasing cooperation between

countries in the region (Agoes, 1991).

On December 11

, 1982, UNCLOS established

the basic principles for marine management,

including making national regulations to conserve

living resources in the open sea and cooperating

with

other countries in the conservation and

management

of living resources in the high seas,

establishing the

outer edge of the continental margin.

Article 83

paragraph 3 of the 1982 United

Nations Law of the

Sea Convention does not exist in

the 1958

Convention on the Continental Shelf.

However, in

the agreement or agreement on joint

exploitation or

joint development, this can be

accepted in the state's

practices. This is evident from

the agreements on the

continental shelf boundaries

in various regions of the

world held between 1958

and 1982 and even later.

Many of those agreements

included provisions whose

content and spirit was the

basis for joint exploitation

agreements. joint

development. Some of them have

been followed up

by holding joint exploitation or

joint development

agreements. Likewise, countries

that fail to reach an

agreement on the boundary line

of the continental

shelf take an alternative by

agreeing on joint exploitation or joint development.

In addition, the existence of an agreement on joint

exploitation of this accelerates the process of utilizing

natural resources from the area for the sake of the

parties' national interests. This treaty resolves the

problems left by the treaty on the boundary line of the

continental shelf as described above. If the parties

stop at the agreement on the boundary line of the

continental shelf, it is equivalent to leaving one

crucial issue that may arise at some point in the future.

Even if the parties fail to reach an agreement on the

determination of the continental shelf boundary line,

without waiting for the birth of an agreement on the

continental boundary line which has failed to be

reached, the parties can proceed directly to form an

agreement or agreement on joint exploitation or

development as an alternative to failure.

Local wisdom in creating sustainable

development is due to the high awareness of

individuals from the world community on the

importance of development that preserves and

protects the environment. In addition, local wisdom

developed by indigenous peoples or indigenous

peoples is considered capable of bridging

development demands while still creating healthy

environmental conditions. The world community's

trust in the effectiveness and efficiency of the role of

local wisdom in creating harmony between

development activities (economics) and ecological

sustainability (ecology) was accommodated in

Marine Biodiversity Joint Exploitation Agreement in the Border Area of the Continental Shelf between Coastal States

155

Agenda 21 and the Convention on Biological

Diversity in Rio Dc Janeiro in 1992.

3 CONCLUSIONS

Whereas the provisions in the legislation relating to

marine living resources, and currently in force, are

more oriented towards the used-oriented approach,

they have not considered aspects of the conservation

of marine living resources and their marine

environment resource-oriented and ecosystem

principles. The technical and scientific aspects of

protecting the sustainability of marine living

resources and the marine environment, in general, are

increasingly affecting the nature of their regulation,

so the determination of technical measures must be

made as flexible as possible to accommodate the

development of the marine ecosystem science.

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