200해리 이원 대륙붕 제도의 두 가지 쟁점

Two legal issues concerning the continental shelf beyond 200 nautical miles

The continental shelf can extend, only as the natural prolongation of a land territory, beyond 200 nautical miles in accordance with the article 76 of the United Nations Convention on the Law of the Sea (LOS Convention). For that reason, the Convention establishes a complex procedural mechanism where an international institution, Commission on the Limits of the Continental Shelf (CLCS), intervenes in determining the outer limits of this extended continental shelf. Given that a number of States have currently presented submissions to the CLCS, this paper addresses two legal issues concerning the continental shelf beyond 200 nautical miles: Firstly, the research points out some uncertainties of the article 76 of the LOS Convention, including the resulting difficulties associated with its application. Actually, the legal nature of the extended continental shelf is controversial, whereas the role of the CLCS is too ambiguous to achieve the purpose which the mechanism for establishment of the outer limits intends in the context of the article 76 §8 of the Convention. Additionally, one faces a series of unpredicted practical difficulties in applying this provision; for example, the CLCS suffers from the heavy workload, whereas it is expected that various types of disputes among the CLCS, the requesting State, the latter and the third State will be mushrooming. Secondly, the LOS Convention does not pay enough attention to the consequences that the extended continental shelf claim would cause to the regime of the high seas. Simultaneously, States are interested only in extending their jurisdiction in the maritime area beyond 200 nautical miles. The national legislation of some States that have presented submissions or preliminary information to the CLCS could have impact on the freedom of other States on the waters superjacent to the continental shelf beyond 200 nautical miles. The research, addressing these two issues, finds the unilateralism of coastal States which utilize the ambiguity found in the provisions of the LOS Convention regarding the extended continental shelf. On the other hand, the paper infers that this unilateralism may compromise the principle of freedom of the high seas. Nevertheless, this does not mean that such unilateral behaviors of States necessarily lead to the formation of a new international customary rule. Instead, the paper argues that it might be at present more appropriate to consider such a kind of behavior as a noncompliance with existing rules of the law of the sea.