유엔해양법협약상 강제적 분쟁해결제도의 적용 한계에 대한 연구

Abstract

From ancient times, ocean has been recognized as an important resources for human. All State have keep interests to the ocean economically, politically and strategically and have struggled to secure their interests in various ways, each other. As a by-product of the competitions, such a many disputes have been occurred among States. In principle, marine disputes have originated under the conflict between mare liberum and mare clausum. International community had made a effort to regulate the marine dispute in a manner of peaceful and speedy dispute settlement procedure since the early 20th century. As the result, the sophisticated dispute settlement system including the compulsory procedures entailing binding decisions was established in the 1982 United Nations Convention on the Law of the Sea.

Under the system, prior to the resort to compulsory settlement system entailing binding decisions, the parties to dispute has an obligation to enter into negotiations with a view to arriving at an agreement in advance. This obligation applies to all types of disputes, including ones that involve the interpretation or application of the Convention. The parties to dispute should choose the peaceful means and proceed expeditiously to an exchange of views. It is entitled "General Provisions" essentially requires States to settle disputes through diplomatic channels prior to referring the matter to the compulsory settlement system found in Section 2 of Part XV.

If the dispute were not resolved under the General Provisions, the compulsory dispute settlement systems might be applied to dispute. The compulsory dispute settlement procedure is certainly justified with respect to some issues under the Convention and prescribes for limitations and optional exceptions to apply of the procedures. The complicated formulation of exceptions and limitations of the procedures which were established in the Convention indicate when dispute settlement is necessary for the functions of the substantive rules.

Article 297 of the Convention, which deals with some of the limitations and exceptions to mandatory dispute resolution, predominantly addresses how the dispute settlement system will apply and operate with respect to the freedoms of the high seas in the EEZ and on the continental shelf.

Disputes concerning the interpretation of application of the provisions of this convention with regard to marine scientific research and fisheries shall be settled in accordance with the compulsory dispute settlement. But, if the dispute originates the exercise of right of discretion by coastal State, the compulsory dispute settlement procedures would not apply.

Article 298 of the Convention allow for States Parties to exclude certain categories of disputes from compulsory settlement system entailing binding decisions. States may declare when signing, ratifying or acceding to this Convention or at anytime thereafter, that they do not accept the system available under Section 2 for those disputes relating to sea boundary delimitations, involving historic bays or titles, military activities and Security Council of the United Nations is exercising the functions assigned to it by the Charter of the United Nations.

These provisitions were prepared for the needs of the State because States didn't want to apply the compulsory dispute settlement system entailing binding decisions about the disputes involved the crucial interests of the States.

The dispute settlement system of the Convention is named for a superior and comprehensive system, but this system is not widely used owing to the limitations of the prerequisite and the limitations on applicability of the compulsory dispute settlement system.

The objective of this study is to analyze the limitations of the compulsory dispute settlement procedures in applying the procedures to the dispute.

Under the Objective, the contents of this thesis as follow :

Chapter Ⅱ defines the causes and types of marine dispute and examines the negotiation history of the 3rd United Nations Conference on the Law of the Sea relating to the dispute settlement system.

Chapter Ⅲ reviews the pre-conditions for the application of the compulsory dispute settlement procedures.

Chapter Ⅳ analyses the limitations on applicability of the compulsory dispute settlement procedures through the elaborate examination on the Article 297 and 298 of the Convention.

Chapter Ⅴ, as a conclusion of this study, summarise the results of this study and suggests some measures for preparing future disputes with neighboring States.