해양공동개발에 관한 국제법체제 연구

A Study on International Legal Regime of the Maritime Joint Development

Maritime joint development has developed to ensure the balance between protecting Coastal States’s sovereign rights and allocating shared natural resources equitably in the overlapping continental shelf and the transboundary oil and gas deposits. Cases of joint development for offshore oil and gas resources have expanded increasingly around the world, both in terms of its number of cases and geographical distribution, particularly around the semi-enclosed seas surrounded by several coastal states. Both of joint development agreement in the overlapping claims area and unitization agreement in the mineral deposits across the boundary are main forms for maritime joint development, as they are one of the most preferred cooperative mechanisms among coastal states. Joint development agreement in the overlapping continental shelf is based on the provisional arrangement under article 83, paragraph 2 of United Nations Convention on the Law of the Sea of 1982 (UNCLOS). However, despite the general principle of cooperation or principle of good faith can be applied to such resources by analogy, there is no explicit provision requiring the cooperative development of transboundary non-living resources under UNCLOS. International courts have continued to recommend a joint development zone instead of determining the continental shelf after International Court of Justice (ICJ) stated the possibility of joint development in the North Sea Continental Shelf Cases of 1969. In addition, UN General Assembly adopted a series of resolutions including the relevant principles governing shared natural resources. However, International Law Commission (ILC) decided not to take up the consideration of the transboundary oil and gas under the topic of shared natural resources in view of the political sensitivity and diverse regional situations. Therefore, it seems to be difficult to expect generalization or codification of legal regime or rules regulating the transboundary oil and gas, and it is appropriate that these resources are governed by the rules of international customary law or bilateral agreements. Despite a number of State practice regarding joint development of offshore oil and gas, it is uncertain whether there is an obligation in customary international law to cooperate maritime joint development or enter into joint development agreement. However, even if there is no obligation requiring maritime joint development, the manner to cause the significant damage to transboundary deposits or promote competitive exploration and exploitation is generally contrary to the principle of good faith. As to the joint development of oil and gas in South China Sea between Korea, China and Japan, Korea cannot compel China and Japan to cooperate for maritime joint development, because it is difficult to argue for the obligation to enter into joint development agreement under international law. However, considering the results from prolonged negotiations with territorial disputes between Korea, China and Japan, trilateral joint development in the overlapping continental shelf of South China Sea is the most practical way for Korea. Reflecting on the Korea’s experience and lessons of other successful joint development cases, Korea should actively develope more practical joint development proposal in South China Sea to China and Japan in order to attract these States to the negotiating table.