국제해양법 분야에서 회색영역(Grey Area)에 적용되는 적절한 고려(Due Regard)에 관한 소고

The Bangladesh/Myanmar Case (2012) stands as a landmark, not only for inaugurating the practical delimitation of the continental shelf beyond 200 nautical miles for the first time, but also for introducing the Grey area in maritime boundary delimitation carried out by international courts and tribunals. Grey areas constitute a distinctive regime in which the superjacent waters constitute one State’s Exclusive Economic Zone(EEZ), while the seabed and subsoil concurrently constitute another State’s outer continental shelf beyond 200 nautical miles. The rights of different States coexist in a vertical dimension thereby complicating the exercise of exclusive jurisdiction by any one State. The international court and tribunal have affirmed that the principles reflected in Articles 56, 58, 78, and 79 of the United Nations Convention on the Law of the Sea(UNCLOS), along with other relevant provisions, are applicable to the legal framework governing Grey areas. Within these zones, each coastal State must exercise its rights and perform its duties with due regard to the corresponding rights and duties of others. Nevertheless, the obligation of due regard is inherently open-textured and ambiguous, as it lacks explicit, universally applicable rules of conduct, thus failing to offer clear substantive standards for resolving concrete conflicts of competing rights. To fill this gap, the study conducts a thorough examination of judicial interpretations and applications of due regard in the context within the EEZ framework under UNCLOS, thereby clarifying its legal nature and substantive content within Grey areas. Conceptualizing Grey areas as zones where a State’s EEZ within 200 nautical miles coexists with the outer continental shelf of another State beyond that distance, this approach proves methodologically sound. Furthermore, the due regard imposes a “general obligation” on coastal States to appropriately consider other States’ rights and duties within the same area, thereby providing a suitable normative foundation for deriving operational criteria in various scenarios of competing rights within Grey areas. This research conducts a detailed analysis of three seminal international cases addressing the obligation of due regard within the EEZ. To implement the due regard effectively, the study critically examines related legal concepts including reasonableness, appropriate measures, balancing acts between competing rights, unjustifiable interference, minimum obligations of good-faith consultation obligations, and the concept of due diligence, as elaborated through case law. The analysis concludes that due diligence constitutes an essential prerequisite for fulfilling the obligation of due regard. The derived insights are then applied to potential competing rights scenarios in Grey areas, offering interpretive frameworks and substantive criteria for applying the due regard in specific contexts. As Grey areas increasingly emerge from the delimitation of continental shelves beyond 200 nautical miles, continued international legal research on the due regard remains crucial for enhancing legal certainty and resolving potential jurisdictional conflicts in these areas.