단일해양경계 설정과 어업문제 고려의 양립가능성 문제

Only ‘neutral circumstances’ should be taken into account, when a single maritime boundary is established. Therefore, fisheries issues such as catch of fish and dependence on fish cannot be considered in establishing a single maritime boundary, because they are not regarded as neutral circumstances. Although the 1984 Gulf of Maine case of the Chamber of the International Court of Justice referred to the criterion, whether there might be “catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned”, in order to take into consideration fisheries issues, the Arbitral Tribunal in the 2006 Maritime Delimitation (Barbados/Trinidad and Tobago) case assured that ‘catastrophe’ does not mean ‘injury’. It follows that the concept of catastrophe cannot, in fact, be invoked in establishing a single maritime boundary. Fishing ‘activities’ in themselves (different from fisheries issues such as catch of fish and dependence on fish) may be regarded as one of the relevant circumstances under the name of ‘historic rights’ or ‘the conduct of the States concerned’. However, international courts and tribunals have not considered fishing activities in the high seas (before the exclusive economic zone or the exclusive fishery zone of a coastal State was declared) or fishing activities of the States concerned in maritime areas to which there are their entitlements. It should be noted that international courts and tribunals have not rejected the concept of historic rights as one of the relevant circumstances. That is to say, the concept of historic rights is the only way to the consideration of fishing ‘activities’ in establishing a single maritime boundary. Nevertheless, it should also be borne in mind that, although a traditional fisheries regime exists based upon the concept of historic rights, it is another question whether the existence of a traditional fisheries regime can affect the establishment of a single maritime boundary.