爭議海域既有石油合同的法律問題研究
發(fā)布時間：2018-08-17 10:31
【摘要】：爭議海域既有石油合同是一個真實存在,且目前關注度較低的問題。然而無論日后爭議海域進行劃界或者共同開發(fā),既有石油合同都是一個繞不開的問題。即便爭議海域長期處于既無法完成劃界,又無法實現(xiàn)共同開發(fā)的狀態(tài),既有石油合同的存在還會導致當事國在爭議海域單方面實施石油活動,進而在爭議海域引發(fā)緊張局勢。對這一問題進行研究,也符合中國的現(xiàn)實需要。由于中國與周邊許多國家存在海上爭端,而這些爭議海域被普遍認為蘊藏豐富的油氣資源,并且許多爭端當事國已就爭議海域的石油資源開發(fā),與石油公司簽訂了石油合同。對于這些爭議海域,中國政府無論是試圖進行劃界或者共同開發(fā),既有石油合同都是一個必須處理的問題。如果爭端長期得不到解決,中國政府還必須采取措施應對這些既有石油合同以及隨后的一系列單方面行動。因此,研究該問題兼具理論價值和現(xiàn)實意義。本文的主體內容共有四章,其主要觀點概括如下：第一章梳理了爭議海域既有石油合同的基本理論問題。首先,對“爭議海域”、“既有石油合同”進行界定。其中“爭議海域”是指由于兩個或兩個以上國家不同的海洋劃界主張或者陸地領土爭端,所產生的歸屬存在爭議的領海、專屬經濟區(qū)或大陸架,其中歸屬存在爭議的專屬經濟區(qū)或大陸架是研究的重點�！凹扔惺秃贤笔侵妇蛢蓚�或兩個以上國家間爭議海域內石油資源的勘探開發(fā),由爭端任一當事國在達成共同開發(fā)或劃界協(xié)定之前,與石油公司所單方面締結的石油合同。其次,剖析了既有石油合同的四大種類：特許協(xié)議、合營協(xié)議／聯(lián)合作業(yè)協(xié)議、產品分成合同、服務合同。還總結了影響石油合同中石油生產國與石油公司關系的四大因素：石油生產國的石油資源儲量、政治穩(wěn)定程度和經濟發(fā)展水平、石油公司實力大小、國際油價。再次,分析了既有石油合同產的原因,具體包括：國內外政治、經濟以及法律三大因素。最后,論述了爭議海域未來可能的三種走向：完成海上劃界、實施共同開發(fā)、維持爭議現(xiàn)狀。第二章著重討論爭議海域既有石油合同的法律效力問題。第一,對既有石油合同的國內法依據(jù),作了一個簡要的分析。爭端當事國的國內法一方面明確規(guī)定對爭議海域享有主權或主權權利,另一方面又允許當事國與外國石油公司就海上石油資源的開發(fā)訂立合同。第二,既有石油合同的國際法依據(jù)才是本章的重點研究內容。(1)只要爭端當事國的海洋主張在國際法上具備初步基礎,在最終劃界前就可以推定其主張有效,自然就可以在爭議海域行使主權或主權權利,這也為爭議海域內的既有石油合同提供了法律基礎。(2)雖然原則上當事國可以在爭議海域行使主權或主權權利,但是相較于無爭議海域,在爭議海域所能行使的主權或主權權利是不完整且非常有限的,國際法還對其具體的行使方式加以限制,即不危害或阻礙最后協(xié)議的達成,即禁止所有會對海洋環(huán)境造成無法彌補損害的非臨時性的單方面行為。具體而言,單純的訂立石油合同的行為以及石油公司在爭議海域所實施的臨時性的勘探活動(以地震勘探為代表),沒有危害或阻礙最后協(xié)議的達成；而其所實施的非臨時性的勘探活動(以鉆探為代表)以及開采活動,在沒有依據(jù)反措施或取得其他當事國同意的情況下,明顯違反“不危害或阻礙最后協(xié)議的達成的義務”。一旦當事國在爭議海域實施了危害或阻礙最終劃界協(xié)議達成的石油活動,首先需要承擔停止不法行為以及承諾和保證不重復的國際法律責任。其次,對于其不法行為所造成損害,由于對海洋環(huán)境的損害是不可逆的,因此其他當事國可以要求其進行補償。如果其他當事國認為要求補償會加劇矛盾,還可以選擇抵償?shù)男袨?要求不法行為國承認自己行為的不法行為并作出道歉,或者請求國際法庭宣告其行為具有違法性。第三章探討既有石油合同在不同情況下的處理方法。1.研究如何在劃界談判中處理既有石油合同。既有石油合同要想作為海洋劃界中的考慮因素,必須獲得其他當事國的默認,或者當事國之間就此達成默示協(xié)議。但是在實踐中,對于默認和默示協(xié)議都有著很高的認定標準,這也就意味著,在絕大多數(shù)的劃界談判中,當事國是無法主張自己的既有石油合同可以作為劃界的考慮因素。既然在劃界談判中既有石油合同的當事國無法爭取將整個合同區(qū)域劃歸自己,那么就必須采取一些措施來避免或減少外國石油公司所遭受的損失。如果合同當事國完全喪失合同所在海域,那么應當首先爭取獲得該海域的其他當事國,同意與外國石油公司重新訂立石油合同；當這一做法未能成功時,合同當事國還可以嘗試與外國石油公司就開發(fā)其他海域的石油資源重新訂立石油合同；當上述方法均未奏效時,合同當事國只能與外國石油公司協(xié)商具體補償事宜。如果合同當事國只失去部分的合同所在海域,并且發(fā)現(xiàn)單一石油資源跨界分布,在其他當事國尚未進行商業(yè)開發(fā)的情況下,應當積極爭取由原合同中的外國石油公司完全負責跨界石油資源的開發(fā)；若是其他當事國已確定開發(fā)己方海域的石油公司,那么只能由原合同中的外國石油公司與其他當事國所確定的石油公司簽署聯(lián)合經營協(xié)議,合作開發(fā)整個石油資源。2.在共同開發(fā)談判中既有石油合同的處理方法有所不同。由于“不受共同開發(fā)影響”未能顧及其他當事國的訴求,除非得到其他當事國的同意,否則無法實現(xiàn)�！皢畏矫嫒∠扔惺秃贤眲t忽略了外國石油公司的訴求,不具有可行性�！耙罁�(jù)合同條款終止合同”完全基于合同當事國與外國石油公司的事先約定,在不違背石油公司意志的情況下終止了既有石油合同,為當事國雙方的共同開發(fā)掃清了障礙；而“將既有石油合同納入共同開發(fā)”則比較全面的顧及了各方的利益,因此這兩種方法比較具有可行性。3.同樣,在維持爭議海域現(xiàn)狀的過程中,既有石油合同還會引發(fā)海洋環(huán)境污染以及海上執(zhí)法問題。爭端當事國在爭議海域的石油活動,必然要受《聯(lián)合國海洋法公約》中所規(guī)定的環(huán)境保護義務的約束。如果合同當事國的石油作業(yè)產生了海洋環(huán)境污染,那么其他當事國是可以主張適用公約所規(guī)定的強制解決程序。至于海上執(zhí)法活動,是可以針對合同當事國單方面授權的非臨時性石油活動的。但在執(zhí)法過程中,要嚴格控制使用武力,即便訴諸武力,也應嚴格遵循程序性要求,防止“過度使用武力”。對于海軍執(zhí)法問題,由于其身份的特殊性,盡量不參與執(zhí)法行動。對于海上執(zhí)法可能引發(fā)的對峙問題,首先應當通過事先溝通機制進行預防；如果對峙未能避免,當事國之間應啟動危機管控機制。第四章則是在前三章的基礎上具體分析中國周邊爭議海域的既有石油合同問題。雖然中國與朝鮮、韓國在黃海存在爭議區(qū)域,但并不存在既有石油合同問題。在東海地區(qū)雖然存在既有石油合同問題,但總體上不是很棘手。中日韓三方重疊區(qū)內的石油資源前景不明,對石油公司吸引力有限,因此該區(qū)域的既有石油合同問題將不是中國政府關注的重點。對于中日東海大陸架之爭,一方面,中國要抵制日方將“中間線"以西海域“爭議化”的企圖。另一方面,中國政府應密切關注“中間線”以東海域日方既有石油合同區(qū)塊的最新動向。如果日本方面將來執(zhí)意推進在爭議海域的石油作業(yè),中國可以對日本方面的石油活動采取執(zhí)法行動；除此之外,中國還可以依據(jù)反措施,在“中間線”以東海域,與石油公司簽訂石油合同,進行石油資源開發(fā)。為了預防中日之間出現(xiàn)海上對峙,有必要建立東海爭議海域石油活動的事先溝通機制。對于未能阻止的危機,要通過磋商機制和聯(lián)絡機制來管控和處理。南海的既有石油合同問題則復雜的多,在相當長的時間內是無法完成海上劃界的,共同開發(fā)的前景也不樂觀。在此期間,一方面中國的合法石油活動可能會遭到其他聲索國的干擾；另一方面中國也需要抵制其他聲索國的非法石油活動,必要時還需要采取執(zhí)法行動。這也就意味著南海地區(qū)會時常出現(xiàn)緊張局勢。為了不使局勢失控,中國有必要與其他聲索國直接建立危機管控機制,具體包括會談機制和熱線機制。此外,中國也需要積極引導東盟,使其在維護南海和平與穩(wěn)定方面發(fā)揮建設性作用。
[Abstract]:Existing oil contracts in disputed waters are a real issue and have received little attention at present. However, no matter whether the disputed waters are delimited or jointly developed in the future, the existing oil contracts are an unavoidable issue. The existence of the contract will also lead to unilateral oil activities in the disputed waters, which will lead to tension in the disputed waters. It is also in line with China's actual needs to study this issue. Many of the parties to the disputes have signed oil contracts with oil companies for the exploitation of oil resources in the disputed waters. Whether the Chinese government attempts to delimit or jointly develop the disputed waters, the existing oil contracts are a problem that must be dealt with. If the disputes remain unresolved for a long time, the Chinese government must also adopt them. Measures should be taken to deal with these existing oil contracts and a series of subsequent unilateral actions. Therefore, the study of this issue has both theoretical value and practical significance. The main contents of this paper are divided into four chapters, and the main points are summarized as follows: Chapter 1 reviews the basic theoretical issues of existing oil contracts in disputed waters. The "disputed sea area" refers to the disputed territorial waters, exclusive economic zones or continental shelves, in which the disputed exclusive economic zones or continental shelves are the focus of the study. "Oil contract" refers to the oil contract unilaterally concluded with the oil company by either of the parties to the dispute before reaching a joint development or demarcation agreement on the exploration and exploitation of oil resources in the disputed waters between two or more countries. Secondly, it analyzes the four types of existing oil contracts: concession agreement, joint venture agreement/joint venture agreement. It also summarizes the four factors that affect the relationship between oil producers and oil companies in oil contracts: oil reserves in oil producing countries, political stability and economic development level, the strength of oil companies, international oil prices. The second chapter focuses on the legal validity of the existing oil contracts in the disputed waters. First, the domestic legal basis for the existing oil contracts is provided. A brief analysis is given. On the one hand, the domestic law of the parties to a dispute clearly stipulates their sovereignty or sovereign rights over the disputed sea area, on the other hand, it allows the parties to conclude contracts with foreign oil companies for the exploitation of offshore oil resources. Second, the international law basis for existing oil contracts is the focus of this chapter. The maritime claims of the parties concerned have a preliminary basis in international law and can be presumed to be valid before the final delimitation. Naturally, they can exercise sovereignty or sovereignty rights in the disputed sea area, which provides a legal basis for existing oil contracts in the disputed sea area. (2) Although in principle, the parties may exercise sovereignty or sovereignty in the disputed sea area. Sovereign rights, however, are incomplete and very limited compared with undisputed waters. International law also restricts the way in which sovereign rights can be exercised, i.e. it does not jeopardize or hinder the conclusion of a final agreement, that is, it prohibits all non-provisional orders that cause irreparable damage to the marine environment. Specifically, the mere conclusion of oil contracts and the temporary exploration activities (represented by seismic exploration) carried out by oil companies in the disputed sea areas do not jeopardize or hinder the conclusion of the final agreement, while the non-temporary exploration activities (represented by drilling) and exploitation activities carried out by the oil companies are not in accordance with the law. It is a clear breach of the obligation not to endanger or hinder the conclusion of the final agreement, if the countermeasures are taken or with the consent of other parties. Once the parties have carried out an oil activity that endangers or hinders the conclusion of the final delimitation agreement in the disputed sea area, they must first assume international law of cessation of the wrongful act and undertaking and guaranteeing non-repetition. Liability. Secondly, in the case of damage caused by its wrongful act, other parties may claim compensation because the damage to the marine environment is irreversible. If other parties believe that the claim for compensation will aggravate the contradiction, they may also choose the act of compensation, requiring the wrongful State to acknowledge the wrongful act and act accordingly. Chapter III explores the treatment of existing oil contracts in different circumstances. 1. Study how to deal with existing oil contracts in delimitation negotiations. If an existing oil contract is to be considered as a factor in maritime delimitation, it must be acquiesced by other parties, or by the parties concerned. However, in practice, both tacit and tacit agreements have a high standard of determination, which means that in most delimitation negotiations, the parties can not claim that their existing oil contracts can be considered as delimitation factors. If the contracting party completely loses the sea area where the contract is located, it should first try to obtain other parties in the sea area and agree to renew the oil contract with the foreign oil company. If this approach fails, the contracting party may also attempt to re-enter into an oil contract with a foreign oil company for the exploitation of petroleum resources in other sea areas; if none of the above approaches works, the contracting party may only negotiate with a foreign oil company for specific compensation. If the contracting party loses only part of the sea where the contract is located. Where a single transboundary distribution of oil resources is found, the foreign oil companies under the original contract should be actively sought to be fully responsible for the development of the transboundary oil resources in the absence of commercial exploitation by the other parties; if the other parties have determined to develop the oil companies in their own maritime areas, the foreign countries under the original contract should only be responsible for the development of the transboundary oil resources. Oil companies sign joint venture agreements with other parties to develop the entire oil resources. 2. The treatment of existing oil contracts in joint development negotiations is different. Since "unaffected by joint development" fails to take into account the appeals of other parties, unless the other parties agree, otherwise Unable to achieve. "Unilateral cancellation of existing oil contracts" ignores the appeal of foreign oil companies and is not feasible. "Termination of contracts on the basis of contract terms" is entirely based on the prior agreement between the contracting parties and foreign oil companies, and terminates existing oil contracts without violating the will of the oil companies, for both parties. Joint development clears up the obstacles, while "bringing existing oil contracts into joint development" takes into account the interests of all parties, so the two methods are more feasible. 3. Similarly, in the process of maintaining the status quo of disputed waters, both oil contracts will lead to marine environmental pollution and maritime law enforcement issues. The petroleum activities in the disputed waters of a country must be bound by the obligations of environmental protection stipulated in the United Nations Convention on the Law of the Sea. For non-temporary oil activities authorized unilaterally by the contracting parties, however, the use of force should be strictly controlled in the process of law enforcement, and even if resorting to force, procedural requirements should be strictly followed to prevent the "excessive use of force." For the issue of naval law enforcement, due to the particularity of its status, as far as possible do not participate in law enforcement actions. The possible confrontations should be prevented first by means of a prior communication mechanism; if the confrontation is not avoided, the parties should start a crisis control mechanism. Chapter IV analyzes the existing oil contracts in the disputed waters around China on the basis of the previous three chapters. Although there is an existing oil contract problem in the East China Sea, it is not very difficult in general. The prospect of oil resources in the tripartite overlap zone between China, Japan and South Korea is uncertain and the attraction to oil companies is limited. Therefore, the existing oil contract problem in the region will not be the focus of the Chinese government. On the one hand, China should resist Japan's attempt to "disputed" the waters west of the "middle line", on the other hand, the Chinese government should pay close attention to the latest trend of the existing oil contract blocks in the waters east of the "middle line". In addition, China can sign oil contracts with oil companies in the waters east of the "middle line" to exploit oil resources. In order to prevent a sea confrontation between China and Japan, it is necessary to establish a communication machine in advance for oil activities in disputed waters in the East China Sea. The existing oil contracts in the South China Sea are much more complicated, and the demarcation of the sea can not be completed for a long time. The prospects for joint development are not optimistic. On the one hand, China's legitimate oil activities may encounter other voices during this period. On the other hand, China also needs to boycott illegal oil activities of other Soviet countries and take enforcement actions if necessary. This also means that tensions often arise in the South China Sea. In addition, China also needs to actively guide ASEAN to play a constructive role in maintaining peace and stability in the South China Sea.
【學位授予單位】：武漢大學
【學位級別】：博士
【學位授予年份】：2016
【分類號】：D993.5
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本文編號：2187327
[Abstract]:Existing oil contracts in disputed waters are a real issue and have received little attention at present. However, no matter whether the disputed waters are delimited or jointly developed in the future, the existing oil contracts are an unavoidable issue. The existence of the contract will also lead to unilateral oil activities in the disputed waters, which will lead to tension in the disputed waters. It is also in line with China's actual needs to study this issue. Many of the parties to the disputes have signed oil contracts with oil companies for the exploitation of oil resources in the disputed waters. Whether the Chinese government attempts to delimit or jointly develop the disputed waters, the existing oil contracts are a problem that must be dealt with. If the disputes remain unresolved for a long time, the Chinese government must also adopt them. Measures should be taken to deal with these existing oil contracts and a series of subsequent unilateral actions. Therefore, the study of this issue has both theoretical value and practical significance. The main contents of this paper are divided into four chapters, and the main points are summarized as follows: Chapter 1 reviews the basic theoretical issues of existing oil contracts in disputed waters. The "disputed sea area" refers to the disputed territorial waters, exclusive economic zones or continental shelves, in which the disputed exclusive economic zones or continental shelves are the focus of the study. "Oil contract" refers to the oil contract unilaterally concluded with the oil company by either of the parties to the dispute before reaching a joint development or demarcation agreement on the exploration and exploitation of oil resources in the disputed waters between two or more countries. Secondly, it analyzes the four types of existing oil contracts: concession agreement, joint venture agreement/joint venture agreement. It also summarizes the four factors that affect the relationship between oil producers and oil companies in oil contracts: oil reserves in oil producing countries, political stability and economic development level, the strength of oil companies, international oil prices. The second chapter focuses on the legal validity of the existing oil contracts in the disputed waters. First, the domestic legal basis for the existing oil contracts is provided. A brief analysis is given. On the one hand, the domestic law of the parties to a dispute clearly stipulates their sovereignty or sovereign rights over the disputed sea area, on the other hand, it allows the parties to conclude contracts with foreign oil companies for the exploitation of offshore oil resources. Second, the international law basis for existing oil contracts is the focus of this chapter. The maritime claims of the parties concerned have a preliminary basis in international law and can be presumed to be valid before the final delimitation. Naturally, they can exercise sovereignty or sovereignty rights in the disputed sea area, which provides a legal basis for existing oil contracts in the disputed sea area. (2) Although in principle, the parties may exercise sovereignty or sovereignty in the disputed sea area. Sovereign rights, however, are incomplete and very limited compared with undisputed waters. International law also restricts the way in which sovereign rights can be exercised, i.e. it does not jeopardize or hinder the conclusion of a final agreement, that is, it prohibits all non-provisional orders that cause irreparable damage to the marine environment. Specifically, the mere conclusion of oil contracts and the temporary exploration activities (represented by seismic exploration) carried out by oil companies in the disputed sea areas do not jeopardize or hinder the conclusion of the final agreement, while the non-temporary exploration activities (represented by drilling) and exploitation activities carried out by the oil companies are not in accordance with the law. It is a clear breach of the obligation not to endanger or hinder the conclusion of the final agreement, if the countermeasures are taken or with the consent of other parties. Once the parties have carried out an oil activity that endangers or hinders the conclusion of the final delimitation agreement in the disputed sea area, they must first assume international law of cessation of the wrongful act and undertaking and guaranteeing non-repetition. Liability. Secondly, in the case of damage caused by its wrongful act, other parties may claim compensation because the damage to the marine environment is irreversible. If other parties believe that the claim for compensation will aggravate the contradiction, they may also choose the act of compensation, requiring the wrongful State to acknowledge the wrongful act and act accordingly. Chapter III explores the treatment of existing oil contracts in different circumstances. 1. Study how to deal with existing oil contracts in delimitation negotiations. If an existing oil contract is to be considered as a factor in maritime delimitation, it must be acquiesced by other parties, or by the parties concerned. However, in practice, both tacit and tacit agreements have a high standard of determination, which means that in most delimitation negotiations, the parties can not claim that their existing oil contracts can be considered as delimitation factors. If the contracting party completely loses the sea area where the contract is located, it should first try to obtain other parties in the sea area and agree to renew the oil contract with the foreign oil company. If this approach fails, the contracting party may also attempt to re-enter into an oil contract with a foreign oil company for the exploitation of petroleum resources in other sea areas; if none of the above approaches works, the contracting party may only negotiate with a foreign oil company for specific compensation. If the contracting party loses only part of the sea where the contract is located. Where a single transboundary distribution of oil resources is found, the foreign oil companies under the original contract should be actively sought to be fully responsible for the development of the transboundary oil resources in the absence of commercial exploitation by the other parties; if the other parties have determined to develop the oil companies in their own maritime areas, the foreign countries under the original contract should only be responsible for the development of the transboundary oil resources. Oil companies sign joint venture agreements with other parties to develop the entire oil resources. 2. The treatment of existing oil contracts in joint development negotiations is different. Since "unaffected by joint development" fails to take into account the appeals of other parties, unless the other parties agree, otherwise Unable to achieve. "Unilateral cancellation of existing oil contracts" ignores the appeal of foreign oil companies and is not feasible. "Termination of contracts on the basis of contract terms" is entirely based on the prior agreement between the contracting parties and foreign oil companies, and terminates existing oil contracts without violating the will of the oil companies, for both parties. Joint development clears up the obstacles, while "bringing existing oil contracts into joint development" takes into account the interests of all parties, so the two methods are more feasible. 3. Similarly, in the process of maintaining the status quo of disputed waters, both oil contracts will lead to marine environmental pollution and maritime law enforcement issues. The petroleum activities in the disputed waters of a country must be bound by the obligations of environmental protection stipulated in the United Nations Convention on the Law of the Sea. For non-temporary oil activities authorized unilaterally by the contracting parties, however, the use of force should be strictly controlled in the process of law enforcement, and even if resorting to force, procedural requirements should be strictly followed to prevent the "excessive use of force." For the issue of naval law enforcement, due to the particularity of its status, as far as possible do not participate in law enforcement actions. The possible confrontations should be prevented first by means of a prior communication mechanism; if the confrontation is not avoided, the parties should start a crisis control mechanism. Chapter IV analyzes the existing oil contracts in the disputed waters around China on the basis of the previous three chapters. Although there is an existing oil contract problem in the East China Sea, it is not very difficult in general. The prospect of oil resources in the tripartite overlap zone between China, Japan and South Korea is uncertain and the attraction to oil companies is limited. Therefore, the existing oil contract problem in the region will not be the focus of the Chinese government. On the one hand, China should resist Japan's attempt to "disputed" the waters west of the "middle line", on the other hand, the Chinese government should pay close attention to the latest trend of the existing oil contract blocks in the waters east of the "middle line". In addition, China can sign oil contracts with oil companies in the waters east of the "middle line" to exploit oil resources. In order to prevent a sea confrontation between China and Japan, it is necessary to establish a communication machine in advance for oil activities in disputed waters in the East China Sea. The existing oil contracts in the South China Sea are much more complicated, and the demarcation of the sea can not be completed for a long time. The prospects for joint development are not optimistic. On the one hand, China's legitimate oil activities may encounter other voices during this period. On the other hand, China also needs to boycott illegal oil activities of other Soviet countries and take enforcement actions if necessary. This also means that tensions often arise in the South China Sea. In addition, China also needs to actively guide ASEAN to play a constructive role in maintaining peace and stability in the South China Sea.
【學位授予單位】：武漢大學
【學位級別】：博士
【學位授予年份】：2016
【分類號】：D993.5
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本文編號：2187327
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