ICJ의 1985년 리비아-몰타 사건과 대륙붕의 거리 기준 우위론

Revisiting the ICJ’s 1985 Libya/Malta case and the Primacy of the Distance Criterion under the Continental Shelf Regime: Implications and Prospects for the 1974 Korea-Japan Joint Development Agreement and the East China Sea

This article considers the theory of the primacy of the distance criterion over the natural prolongation under the continental shelf regime, which was resulted from the 1985 judgment of the International Court of Justice (ICJ) in the Libya/Malta case. In addition, an effort is made to suggest the influence on the Japan’s position as to the continental shelf in the East China Sea, including the issue of the 1974 Korea-Japan Joint Development Agreement (JDA), and further, draw implications for Korea and prospects in the East China Sea. The doctrine of the natural prolongation of the land territory suggested in the ICJ’s judgment in the North Sea Continental Shelf cases enabled Korea to conclude the JDA with Japan. However, shortly after, the introduction of the exclusive economic zone regime based on the distance criterion made the natural prolongation doctrine lose its power. Particularly, in the 1985 Libya/Malta case, the ICJ presented a ruling that could be misread as meaning that a State’s natural prolongation entitlement to a continental shelf beyond 200 NM cannot extend within 200 NM of another State. This judgment is presumed to have had some impact on Japan’s passive attitude toward the implementation of the JDA. Japan has taken the position that Korea’s continental shelf claim beyond 200 NM cannot be recognized legally in the East China Sea. However, this theory seems to be very doubtful because it ignores the natural prolongation entitlement without grounds. There was no subsequent case law that explicitly acknowledged the theory. In the ICJ’s pending case concerning the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 NM from the Nicaraguan Coast, the ICJ is addressing this issue now. In order to prepare for the future of the East China Sea, it is necessary to understand Japan’s relevant legal position and its basis. Moreover, particular attention should be paid to the forthcoming judgment in the abovementioned Nicaragua v. Colombia case.