한중 황해 해양경계획정에서의 고려요소와대응방안에 관한 연구

The issue of maritime boundary delimitation has the nature of a treaty on boundary to which the principle of change in circumstance cannot be applied. The Yellow Sea is a semi-enclosed sea which is located on the same continental shelf and maritime boundary delimitation for the Yellow Sea can be easily concluded compared to the East China Sea where continental shelves are disconnected in between Korea-Japan and China-Japan. It seems that the middle line principle of Korea and equitable solution principle of China are in conflict each other in the Yellow Sea, but from the point that the ‘equity’ claimed by China was in fact never presented as a method for concrete boundary delimitation, the negotiation on boundary delimitation is judged to be carried out taking particular factors in the said waters as a center in working-level procedure. The most important factors for conflict in the Yellow Sea Maritime Boundary Delimitation of both countries are base-point, siltline, resources and proportionality as a verification factor. Among the straight line starting points of China, the most influential factors at the time of the maritime boundary delimitation between Korea-China are the one of No. 9, 10, 12 and 13. We cannot be definitely sure but the starting points of No. 9 and 10, which are located at the distance of approximately 80km from the coast, seem to be low-tide elevations or underwater shoals. According to the interpretation of UNCLOS, in the case of low-tide elevation, its low-water line can carry out the independent role for measuring the range of territorial waters only in case all or a part of the low-tide elevation is located within the width of territorial waters, and from that point the starting points of China are violating the UNCLOS. It is also impossible to set the starting point of territorial waters of “leapfrog” or “stepping stone” types which are in the form of connecting to outside using one low-tide elevation, which exists inside the 12 nautical miles in the waters where low-tide elevations are scattered around, as a medium. The starting points of No. 12 and 13 are located at approximately 69.9 nautical miles from the coast of Shanghai and they are known to be uninhabited islands. It is difficult to acknowledge these starting points based on the point that the starting points cannot be interpreted as that “the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters.”Siltine has been mentioned centering around Chinese academia even though there has been no official mentioning or claim for application by the government of China. The core of the claim is that the origin and the degree of distribution of sediments on the sea-bed of the Yellow Sea should be the basis of the Yellow Sea Maritime Boundary Delimitation. It seems that they use the provision of the Article 4-(a)-(i), which stipulates “the straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude” in the case of the straight line which connects “the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 percent of the shortest distance from such point to the foot of the continental slope”,as the possible ground for the existence of siltline which is claimed by China government. However, the issue of entitlement for the continental shelf which China raises using silt as the ground is in fact based on the technical method of delineation of the outer limits of the continental shelf instead of entitlement and therefore it is not reasonable because it does not make sense at all to claim for the entitlement using the technical method which delimits the outer limit under the situation concerned where reasonable logic for the entitlement was not established yet. The results of recent researches revealed that it is not absolute fact that the silt of the Yellow Sea was originated from China and that the possibility of its inflow from the Gulf of Bohai, which takes up the majority of the sediments of the Yellow Sea according to their claim, is also very limited. The principle of proportionality in the maritime boundary delimitation is applied as a concept that the maritime border line, which is under the control of both parties, should be derived in accordance with the proper proportion of competent waters area and the length of coastline. According to the claim of China, the proportion of the coastline of the Yellow Sea between Korea and China reaches to 1:0.8. However, in view of international precedents and the cases of the conventions between countries, it is difficult for us to accommodate it as a factor to adjust the middle line between the two countries. After all, the attitude of China on the Yellow Sea Maritime Boundary Delimitation does not have legitimacy and transparency but merely shows their own way of interpreting ambiguous maritime boundary delimitation method of UNCLOS. Especially, as long as it is judged that there is no particular factors to consider except for the debates on the starting points of both countries in the Yellow Sea, the approach of deriving and digitizing all factors which both countries intend respectively may serve rather as causes for making both countries' approaches and solutions on maritime boundary delimitation more complicated.