미국의 ‘대세적’ 200해리 이원 대륙붕 주장 그리고 남겨진 국제법적 과제

On 19 December 2023, the United States published The Outer Limits of the Extended Continental Shelf of the United States of America: Executive Summary to claim its own continental shelf beyond 200 NM (nautical miles). However, although it announced the 2023 Executive Summary on the premise that the contents of Article 76, Paragraphs 2 to 7 of the UNCLOS (United Nations Convention on the Law of the Sea), which can regulate the outer limits of the continental shelf beyond 200 NM, reflect customary international law, the United States is a ‘non-party’ to the UNCLOS. Therefore, there is a lot of controversy surrounding this claim of the United States to the continental shelf beyond 200 NM. The assertion of the United States regarding the contents of Article 76, Paragraphs 2 to 7 of the UNCLOS seems reasonable at first glance. In this regard, the 2012 Bay of Bengal case of the ITLOS (International Tribunal for the Law of the Sea) provides strong evidence. As can be seen from the fact that ITLOS linked the concept of natural prolongation with that of the outer edge of the continental margin in this case, not only Article 76, Paragraph 1 but also Article 76, Paragraph 4 should be viewed as reflecting customary international law. The reason for this is that Article 76, Paragraph 1 includes the concept of ‘outer edge of the continental margin’. Moreover, whether the contents of Article 76, Paragraphs 2 to 7 reflects customary international law seems to be confirmed empirically through ‘State practice’ and ‘opinio juris’. Moreover, regarding the submission(s) to the CLCS (Commission on the Limits of the Continental Shelf) by ‘non-parties’ to the UNCLOS, such as the United States, discussions can take place from the perspectives of both ‘rules’ and ‘context’. From the perspective of ‘rules’, it is important to note that Article 3, Paragraph 1 of Annex II to the UNCLOS includes the expression ‘coastal States’ rather than States Parties. In other words, from the perspective of rules, it should not be overlooked that States submitting relevant data on their outer limits of the continental shelf to the CLCS are not limited to parties to the UNCLOS. From the perspective of ‘context’, in order to not provide non-parties to the UNCLOS with the privileges of establishing final and binding outer limits of the continental shelf beyond 200 NM despite the absence of the recommendation(s) from the CLCS, and to delimit the continental shelf beyond 200 NM between a party and a non-party, there seems to be no compelling reasons for the CLCS to ignore or reject the review of information related to the continental shelf beyond 200 NM submitted by a non-party. For example, this is such a case where the Bahamas expresses its ‘consent’ to the submission to the CLCS by the United States. Rather, it should not be overlooked that rejecting the use of CLCS by non-parties without compelling reasons leads to the unintended result of granting excessive privileges to non-parties.