단일대륙붕 개념의 ‘축소’에 대한 비판적 고찰

Article 1 of the 1958 Convention on the Continental Shelf codified two criteria (the criterion based upon a depth of 200 meters and the exploitability criterion) in order to describe the continental shelf. In spite of the combination of the two criteria, the regime of the continental shelf was not divided into two types. That is to say, the concept of a ‘single’ continental shelf was implied. Moreover, considering the statement of the ICJ (International Court of Justice), in the 1969 North Sea Continental Shelf cases, that “the land is the legal source of the power which a State may exercise over territorial extensions to seaward”, the ‘sole’ basis for the entitlement to the continental shelf was understood as the notion of natural prolongation derived from ‘the land territory or the coast’. The reference of the ICJ is a useful statement which implies the ‘same’ basis for the entitlement to either the continental shelf within 200 nautical miles or the continental shelf beyond 200 nautical miles. Reflecting the implication of the North Sea Continental Shelf cases, Article 76(1) of the UNCLOS (United Nations Convention on the Law of the Sea) was, in consequence, codified. In the 2006 Barbados v. Trinidad and Tobago case, the Annex VII Tribunal stated that “in any event there is in law only a single “continental shelf” rather than an inner continental shelf and a separate extended or outer continental shelf”. The Tribunal provided for a clear interpretation which is in accordance with Article 76(1) of the UNCLOS, denying the distinction between continental shelves. However, in the 2023 Nicaragua v. Colombia case, the ICJ misunderstood the well-established concept of a single continental shelf by saying that there are two bases for the entitlement to the continental shelf. In other words, the ICJ tried to, in a limited way, accept the concept of a single continental shelf in terms of the ‘rights’ which can be exercised. This is a narrow interpretation about the concept of a single continental shelf. However, this narrow interpretation would reject jurisprudence well-settled by international courts and tribunals so far, regarding the delimitation of the continental shelf beyond 200 nautical miles carried out based upon the concept of a single continental shelf with the same basis for the entitlement to the continental shelf. In addition, in the 2023 Nicaragua v. Colombia case, on the premise that “under customary international law, a State’s entitlement to a continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured may not extend within 200 nautical miles from the baselines of another State”, the ICJ has resulted in the precedence for the regime of the exclusive economic zone over that of the continental shelf ‘within 200 nautical miles’. This should also be the subject of criticism because of leading to the formation of a ‘hierarchy’ between the continental shelf within 200 nautical miles and the continental shelf beyond 200 nautical miles.