As the Treaty's title indicates, its main objective is the delimitation of marine areas, putting to an end more than 20 years of negotiations and finally establishing the maritime boundary between Norway and Russia. The delimitation in turn opens the way to the exploitation of mineral resources in these previously disputed areas.
Apart from this, the Treaty envisages certain conditions with respect to the future exploration for, and production of, hydrocarbons, which will be facilitated by the establishment of a clear and undisputed border. Article 5 of the Treaty introduces a unitization requirement for all transboundary hydrocarbon deposits and Annex II to the Treaty further sets forth detailed rules concerning the Unitization Agreement to be concluded between Norway and Russia.
Unitization in this context is the term used to refer to a legal regime governing the joint exploration for, and exploitation of, oil and gas deposits (as well as other types of mineral deposits) that are crossed by various types of borders, (e.g., borders between states, municipalities or simply different landowners). Unitization in respect of onshore oil fields first gained ground in Europe in the 1860s2 when it was put into practice by enabling legislation in the relevant jurisdictions. In the United States it has been practised since the 1930s3 when enabling legislation was enacted there. The unitization of offshore oil and gas fields is a more recent phenomenon. Here it is worth mentioning that Norway has substantial experience in this area of international law, beginning with its involvement in the pioneering Agreement between the Government of the United Kingdom and the Government of the Kingdom of Norway relating to the delimitation of the continental shelf between the two countries (the "UK-Norway Agreement"). This was concluded back in 1965 and has formed the basis of, and been followed up by, a number of North Sea unitization agreements. The most well-known of these, which was concluded between Norway and the UK in 1976, relates to the giant Frigg field4 (the "Frigg Agreement").
Unlike the UK-Norway Agreement, where the unitization formula is not very sophisticated, the unitization requirement envisaged in the Treaty is rather detailed:
"2. If the existence of a hydrocarbon deposit on the continental shelf of one of the Parties is established and the other Party is of the opinion that the said deposit extends to its continental shelf, the latter Party may notify the former Party and shall submit the data on which it bases its opinion.
If such an opinion is submitted, the Parties shall initiate discussions on the extent of the hydrocarbon deposit and the possibility forexploitation of the deposit as a unit. In the course of these discussions, the Party initiating them shall support its opinion with evidence from geophysical data and/or geological data, including any existing drilling data and both Parties shall make their best efforts to ensure that all relevant information is made available for the purposes of these discussions. If the hydrocarbon deposit extends to the continental shelf of each of the Parties and the deposit on the continental shelf of one Party can be exploited wholly or in part from the continental shelf of the other Party, or the exploitation of the hydrocarbon deposit on the continental shelf of one Party would affect the possibility of exploitation of the hydrocarbon deposit on the continental shelf of the other Party, agreement on the exploitation of the hydrocarbon deposit as a unit, including its apportionment between the Parties, shall be reached at the request of one of the Parties (hereinafter "the Unitisation Agreement") in accordance with Annex II.
3. Exploitation of any hydrocarbon deposit which extends to the continental shelf of the other Party may only begin as provided for in the Unitisation Agreement."
As is evident from the provisions quoted above, the requirement for a Unitization Agreement may be triggered by geophysical and/or geological data obtained by either of the Parties to the Treaty. This brings us to the question of the role of such data and of the legal regime for obtaining it.
At the same time, it is important to stress the necessity for the Parties – following the discovery of a deposit – of reaching agreement on the deposit's exploitation, which may only take place by mutual consent. In order to be able to start joint production of the hydrocarbons, the Parties will need to reach agreement on a wide range of issues. This is likely to be no easy task and Annex II of the Treaty provides a framework for resolving difficulties that may arise.