UN 해양법협약상 분쟁해결제도와 우리나라의 대응방안

Abstract

Even though there are many benefits in the sea, there are also complex relationships among related countries in the management and use of the sea because of the characteristics of diversity and flexibility of the sea. As one of International Laws, The Law of the Sea has been developed as an unwritten law by the international practices for the purpose of reasonable and systematical use of these benefits of the sea among the complicatedly related international societies. After the World War II, the International Law Commission of U.N. began to make the International Law for the Sea.

With the effort for making the International Law for the Sea, the United Nations Convention on the Law of the Sea (UNCLOS) had been concluded in 1982 and became effective in 1994. The UNCLOS regulated the systemic organization of the law of the sea and the principles of the uses of the sea as well as focused on building the comprehensive and practical procedures for the settlement of the disputes on the Law of the Sea.

The UNCLOS asks the concerned countries to follow the traditional methods of dispute settlement to solve the dispute peacefully and voluntarily according to the U.N. Charter 33. If the countries cannot reach the agreement, the forcible procedures of the UNCLOS are applied to the disputes. Also, the UNCLOS built the International Tribunal for the Law of the Sea (ITLOS) and the Sea-Bed Dispute Chamber (SBDC) to treat with these disputes professionally.

There can be proposed some improvements for the System for Dispute Settlement because it is not perfect. First, the System for Dispute Settlement allows the broad exceptions on the forcible dispute settlement procedures both comprehensively and optionally. Thus, the most importantly related issues can escape this forcible procedures. Therefore, the comprehensive and optional exceptions should be clearly regulated according to the characteristics of the disputes. Second, the executive authority and system should be established to carry out the decision of the Tribunal practically. Third, to prevent the dispute of jurisdiction among diverse tribunal authorities, the similar system with appeal should be developed to give powerful authority.

With the 12 nautical mile of the Territorial sea and the new systems of the Exclusive Economic Zone (EEZ) and Sea-bed, the original concepts of High Seas changed in meaning of the quality and space. Thus, the possibility of dispute in the declaration of boundary among countries became bigger.

Even though Korea, Japan and China temporarily made a contract about the Fisheries Agreement between each concerned two countries, there are still problems in the decision of the Territorial Waters, Continental shelf and EEZ.

In these decisions of the sea boundaries, Korea should decide these boundaries with all together without separating the Continental Shelf and the EEZ in the way of agreement among the countries according to the principles of the Law of the Sea. The multi-national commission in which all concerned countries are participating should be established. It is reasonable for this commission to treat the decision of boundary collectively.

In the case of dispute among countries in the process of deciding the boundary, the traditional direct dispute settlement system and the U.N. System for Dispute Settlement can be used appropriately. The multi-national commission, cooperative rescue training, the training for the prevention of sea pollution, and the training for the enforcement against international crimes such as piracy or terror among membership countries will be helpful to build the trust among the countries. With this trust among countries, the prevention of dispute will be more important than the settlement of the dispute later on.