국제재판소의 유엔해양법협약 제15부 법규범 형성에의 기여(원제목: ‘Judges Make UNCLOS Part XV’)

• 발행기관: 국제법평론회
• 저자명: 조훈
• 간행물 정보: 『국제법평론』제65호, 143~156쪽, 전체 14쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2023.06.30

영문 초록

One of the greatest achievements of the Third UN Conference on the Law of the Sea was the introduction of the compulsory dispute settlement system into the United Nations Convention on the Law of the Sea (UNCLOS) as an integral part (Part XV). The introduction of the compulsory jurisdiction system was due to the shared need for comprehensive and effective dispute settlement mechanisms to prevent discretionary interpretation and application of the Convention. Thus, Part XV of UNCLOS maintains the overall balance and holds the whole structure of the Convention. Recently, the Part XV system of UNCLOS has been at the centre of controversies and debates among academics, which were mostly based on the views that tribunals have vigorously expanded the applicability of compulsory jurisdiction and that contradictions within the case-law have raised an inconsistency problem in interpreting and applying Part XV. However, the current thesis calls such criticisms into question. Instead, this research argues that the judicial findings concerning the compulsory dispute settlement system of UNCLOS can be analysed and assessed through the concept of judicial law-making. Among the different ways of understanding the concept of judicial law-making, this thesis considers that courts and tribunals may create and shift the normative expectations of other subjects of international law through the interpretation of a treaty. International judicial bodies’ interpretation of a norm in a treaty may inevitably affect all other states parties to the same treaty because their authority as judicial organs enables them to shape the meaning of the law and to make their decisions a reference point for other subjects of international law. In this regard, this thesis argues that judicial law-making may happen when international judicial bodies interpret the provisions of UNCLOS Part XV to find a way to apply the rules to actual cases. In brief, the present thesis will show what rules Part XV tribunals have created concerning the compulsory dispute settlement procedures of UNCLOS and how this system has developed through the clarification of norms by international adjudication. In this respect, this research will propose a different perspective on the study of the dispute settlement system under UNCLOS and the role of Part XV tribunals.

목차

Ⅰ. 서 론

Ⅱ. 사법적 법규범 형성 이론과 이의 적용

Ⅲ. 유엔해양법협약 제15부에 대한 사법적 해석의 법규범 형성에의 기여

Ⅳ. 평가 및 결론

키워드

유엔해양법협약 강제관할권 사법적 법규범 형성 제15부 재판소 절차법규범 UNCLOS Compulsory Jurisdiction Judicial Law-Making Part XV Tribunals Procedural Law