경계미획정 수역을 규율하는 국제법적 체제에 관한 비판적 소고 - 유엔해양법협약 제74조 제3항 및 제83조 제3항에 관한 논의를 중심으로 -

Articles 74(3) and 83(3) of the United Nations Convention on the Law of the Sea (UNCLOS) set up the legal regime to govern undelimited maritime areas. These impose two obligations: the obligation to enter into provisional arrangements of a practical nature and the obligation not to jeopardize or hamper the reaching of the final agreement. However, provisional arrangements of a practical nature are not necessarily made because the obligation to enter into provisional arrangements of a practical nature is merely the obligation of conduct. Moreover, international courts and tribunals have not developed objective criteria to determine whether a unilateral activity conducted by a State is in violation of the obligation not to jeopardize or hamper the reaching of the final agreement or not. For these reasons, the two obligations cannot govern undelimited maritime areas effectively. In the 2007 Guyana-Suriname case, the Arbitral Tribunal illustrated the concept of “activities of the kind that lead to a permanent physical change.” However, the concept cannot play a key role in determining whether the obligation not to jeopardize or hamper the reaching of the final agreement has been breached or not. In fact, even the Tribunal did not regard the concept as the sole criterion to determine whether the obligation not to jeopardize or hamper the reaching of the final agreement has been violated or not. It mentioned that “[a]ctivities that would meet the standard required for the indication of interim measures, in other words, activities that would justify the use of an exceptional power due to their potential to cause irreparable prejudice, would easily meet the lower threshold of hampering or jeopardizing the reaching of a final agreement.” This means that even activities of the kind which ‘do not’ lead to a permanent physical change could result in the alleged violation of the obligation under Articles 74(3) and 83(3) of the UNCLOS in a given case. Furthermore, good faith or the plausibility test also lacks criteria to determine whether the obligation not to jeopardize or hamper the reaching of the final agreement has been breached or not. Such a drawback found in Articles 74(3) and 83(3) of the UNCLOS could lead to the restriction of freedom of the States concerned. As the case may be, maritime scientific research or seismic exploration, which does not lead to a permanent physical change, could also violate the obligation not to jeopardize or hamper the reaching of the final agreement. Ultimately, limitations on the legal regime governing undelimited maritime areas set up by the UNCLOS have to be overcome throughout the making of provisional arrangements of a practical nature or the reaching of the final agreement.