争议海域既有石油合同的法律问题研究
发布时间：2018-08-17 10:31
【摘要】：争议海域既有石油合同是一个真实存在,且目前关注度较低的问题。然而无论日后争议海域进行划界或者共同开发,既有石油合同都是一个绕不开的问题。即便争议海域长期处于既无法完成划界,又无法实现共同开发的状态,既有石油合同的存在还会导致当事国在争议海域单方面实施石油活动,进而在争议海域引发紧张局势。对这一问题进行研究,也符合中国的现实需要。由于中国与周边许多国家存在海上争端,而这些争议海域被普遍认为蕴藏丰富的油气资源,并且许多争端当事国已就争议海域的石油资源开发,与石油公司签订了石油合同。对于这些争议海域,中国政府无论是试图进行划界或者共同开发,既有石油合同都是一个必须处理的问题。如果争端长期得不到解决,中国政府还必须采取措施应对这些既有石油合同以及随后的一系列单方面行动。因此,研究该问题兼具理论价值和现实意义。本文的主体内容共有四章,其主要观点概括如下：第一章梳理了争议海域既有石油合同的基本理论问题。首先,对“争议海域”、“既有石油合同”进行界定。其中“争议海域”是指由于两个或两个以上国家不同的海洋划界主张或者陆地领土争端,所产生的归属存在争议的领海、专属经济区或大陆架,其中归属存在争议的专属经济区或大陆架是研究的重点。“既有石油合同”是指就两个或两个以上国家间争议海域内石油资源的勘探开发,由争端任一当事国在达成共同开发或划界协定之前,与石油公司所单方面缔结的石油合同。其次,剖析了既有石油合同的四大种类：特许协议、合营协议／联合作业协议、产品分成合同、服务合同。还总结了影响石油合同中石油生产国与石油公司关系的四大因素：石油生产国的石油资源储量、政治稳定程度和经济发展水平、石油公司实力大小、国际油价。再次,分析了既有石油合同产的原因,具体包括：国内外政治、经济以及法律三大因素。最后,论述了争议海域未来可能的三种走向：完成海上划界、实施共同开发、维持争议现状。第二章着重讨论争议海域既有石油合同的法律效力问题。第一,对既有石油合同的国内法依据,作了一个简要的分析。争端当事国的国内法一方面明确规定对争议海域享有主权或主权权利,另一方面又允许当事国与外国石油公司就海上石油资源的开发订立合同。第二,既有石油合同的国际法依据才是本章的重点研究内容。(1)只要争端当事国的海洋主张在国际法上具备初步基础,在最终划界前就可以推定其主张有效,自然就可以在争议海域行使主权或主权权利,这也为争议海域内的既有石油合同提供了法律基础。(2)虽然原则上当事国可以在争议海域行使主权或主权权利,但是相较于无争议海域,在争议海域所能行使的主权或主权权利是不完整且非常有限的,国际法还对其具体的行使方式加以限制,即不危害或阻碍最后协议的达成,即禁止所有会对海洋环境造成无法弥补损害的非临时性的单方面行为。具体而言,单纯的订立石油合同的行为以及石油公司在争议海域所实施的临时性的勘探活动(以地震勘探为代表),没有危害或阻碍最后协议的达成；而其所实施的非临时性的勘探活动(以钻探为代表)以及开采活动,在没有依据反措施或取得其他当事国同意的情况下,明显违反“不危害或阻碍最后协议的达成的义务”。一旦当事国在争议海域实施了危害或阻碍最终划界协议达成的石油活动,首先需要承担停止不法行为以及承诺和保证不重复的国际法律责任。其次,对于其不法行为所造成损害,由于对海洋环境的损害是不可逆的,因此其他当事国可以要求其进行补偿。如果其他当事国认为要求补偿会加剧矛盾,还可以选择抵偿的行为,要求不法行为国承认自己行为的不法行为并作出道歉,或者请求国际法庭宣告其行为具有违法性。第三章探讨既有石油合同在不同情况下的处理方法。1.研究如何在划界谈判中处理既有石油合同。既有石油合同要想作为海洋划界中的考虑因素,必须获得其他当事国的默认,或者当事国之间就此达成默示协议。但是在实践中,对于默认和默示协议都有着很高的认定标准,这也就意味着,在绝大多数的划界谈判中,当事国是无法主张自己的既有石油合同可以作为划界的考虑因素。既然在划界谈判中既有石油合同的当事国无法争取将整个合同区域划归自己,那么就必须采取一些措施来避免或减少外国石油公司所遭受的损失。如果合同当事国完全丧失合同所在海域,那么应当首先争取获得该海域的其他当事国,同意与外国石油公司重新订立石油合同；当这一做法未能成功时,合同当事国还可以尝试与外国石油公司就开发其他海域的石油资源重新订立石油合同；当上述方法均未奏效时,合同当事国只能与外国石油公司协商具体补偿事宜。如果合同当事国只失去部分的合同所在海域,并且发现单一石油资源跨界分布,在其他当事国尚未进行商业开发的情况下,应当积极争取由原合同中的外国石油公司完全负责跨界石油资源的开发；若是其他当事国已确定开发己方海域的石油公司,那么只能由原合同中的外国石油公司与其他当事国所确定的石油公司签署联合经营协议,合作开发整个石油资源。2.在共同开发谈判中既有石油合同的处理方法有所不同。由于“不受共同开发影响”未能顾及其他当事国的诉求,除非得到其他当事国的同意,否则无法实现。“单方面取消既有石油合同”则忽略了外国石油公司的诉求,不具有可行性。“依据合同条款终止合同”完全基于合同当事国与外国石油公司的事先约定,在不违背石油公司意志的情况下终止了既有石油合同,为当事国双方的共同开发扫清了障碍；而“将既有石油合同纳入共同开发”则比较全面的顾及了各方的利益,因此这两种方法比较具有可行性。3.同样,在维持争议海域现状的过程中,既有石油合同还会引发海洋环境污染以及海上执法问题。争端当事国在争议海域的石油活动,必然要受《联合国海洋法公约》中所规定的环境保护义务的约束。如果合同当事国的石油作业产生了海洋环境污染,那么其他当事国是可以主张适用公约所规定的强制解决程序。至于海上执法活动,是可以针对合同当事国单方面授权的非临时性石油活动的。但在执法过程中,要严格控制使用武力,即便诉诸武力,也应严格遵循程序性要求,防止“过度使用武力”。对于海军执法问题,由于其身份的特殊性,尽量不参与执法行动。对于海上执法可能引发的对峙问题,首先应当通过事先沟通机制进行预防；如果对峙未能避免,当事国之间应启动危机管控机制。第四章则是在前三章的基础上具体分析中国周边争议海域的既有石油合同问题。虽然中国与朝鲜、韩国在黄海存在争议区域,但并不存在既有石油合同问题。在东海地区虽然存在既有石油合同问题,但总体上不是很棘手。中日韩三方重叠区内的石油资源前景不明,对石油公司吸引力有限,因此该区域的既有石油合同问题将不是中国政府关注的重点。对于中日东海大陆架之争,一方面,中国要抵制日方将“中间线"以西海域“争议化”的企图。另一方面,中国政府应密切关注“中间线”以东海域日方既有石油合同区块的最新动向。如果日本方面将来执意推进在争议海域的石油作业,中国可以对日本方面的石油活动采取执法行动；除此之外,中国还可以依据反措施,在“中间线”以东海域,与石油公司签订石油合同,进行石油资源开发。为了预防中日之间出现海上对峙,有必要建立东海争议海域石油活动的事先沟通机制。对于未能阻止的危机,要通过磋商机制和联络机制来管控和处理。南海的既有石油合同问题则复杂的多,在相当长的时间内是无法完成海上划界的,共同开发的前景也不乐观。在此期间,一方面中国的合法石油活动可能会遭到其他声索国的干扰；另一方面中国也需要抵制其他声索国的非法石油活动,必要时还需要采取执法行动。这也就意味着南海地区会时常出现紧张局势。为了不使局势失控,中国有必要与其他声索国直接建立危机管控机制,具体包括会谈机制和热线机制。此外,中国也需要积极引导东盟,使其在维护南海和平与稳定方面发挥建设性作用。
[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.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D993.5
，
本文编号：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.
【学位授予单位】：武汉大学
【学位级别】：博士
【学位授予年份】：2016
【分类号】：D993.5
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本文编号：2187327
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