남극해 포경사건에 대한 조약해석 관점에서의 재조명: 母조약과 일체를 이루는 부속문서를 통해 개정되는 다자조약의 발전적 해석

Evolutionary interpretation of treaties refers to the notion that the meaning of treaty provisions may develop or change over time. This approach would be one of the most moderate and useful methods for the purpose of providing flexibility and adaptability within the text of the treaties. Despite its usefulness, it has some risky aspects in that it could not be based on the explicit intention of subjects establishing treaties. In other words, by the process of presuming common intention of the parties it can cause a substantial change in the meaning of treaty provisions. In this regard evolutionary interpretation should be applied with careful approach. The ICJ’s judgement of the Whaling in the Antarctic case (Australia v. Japan: New Zealand intervening) in March 2014 dealt with conflicting opinions about the interpretation in terms of the meaning of the Article 8 of the International Convention for the Regulation of Whaling (hereinafter referred to as “ICRW”). The ICRW has some interesting characteristics of establishing and modifying whaling regulatory régime through amendments to the “Schedule” by the International Whaling Commission (hereinafter referred to as “IWC”). Taking such unique mechanism into consideration, the Court’s majority ruled ICRW as an evolving instrument. This paper aims to review ICJ’s approach from the perspective of treaty interpretation. Based on the mechanism involving evolution though amendments to the “Schedule”, the Court’s majority carried out somewhat different kinds of evolutionary interpretation distinct from the method which had applied in the ordinary cases adapting evolutionary interpretation before. Such unique approach can be called as interpretation of an “evolving instrument”, which actually led to the stricter interpretation about the meaning of the Article 8 of the ICRW. However, some problems may be raised in the process of interpretation of an “evolving instrument” compared to ordinary evolutionary interpretation. Against such a backdrop, this paper will overview the concept of the evolutionary interpretation and its requirements in the ICJ’s judgments, and try to re-examine the Whaling in the Antarctic case from the perspective of teaty interpretation. Also, this paper will touch on the problems and implications arising from process of evolutionary interpretation of the treaties amended through the annexed documents, such as “Schedule”, “Annex”, “Appendix”, regardless of its official name, forming an integral part of the mother treaty or framework convention.