해양경계획정에 적용할 수 있는 ‘3단계 방법론’에 대한 비판적 소고

Since the 2009 Black Sea (Romania v. Ukraine) case of the International Court of Justice (ICJ), the so-called ‘three-stage methodology’ has been employed as the ‘standard’ methodology by international courts and tribunals dealing with maritime boundary delimitation. The binding rule governing the delimitation of the exclusive economic zone or the continental shelf is the ‘achievement of an equitable solution’, as stipulated in Article 74(1) or 83(1) of the United Nations Convention on the Law of the Sea (UNCLOS) and recognized as part of customary international law by the ICJ. The three-stage methodology has been established to apply this open-textured rule in a given delimitation case, and the methodology is often complimented because it seems to assure not only objectivity but also predictability in applying the rule. Nevertheless, the three-stage methodology has its limitations. Firstly, it is, at the first stage, possible to subjectively select base points necessary to construct a provisional equidistance line. This means that the ‘application’ of the equidistance method would be subjective although the method in itself is objective. Secondly, within the framework of the three-stage methodology, relevant circumstances seem to take up their position only at the second stage. However, because of the existence of relevant circumstances, a provisional bisector line could be drawn at the ‘first’ stage, instead of a provisional equidistance line. Thirdly, it is questionable whether or not the third stage conducting the disproportionality test is a necessary step in maritime boundary delimitation. The reason for this is that any delimitation lines constructed through the first and second stages have not been adjusted at the third stage since the Black Sea (Romania v. Ukraine) case. Taking into account the limitations of the three-stage methodology described above, the methodology has to be regarded as a ‘just’ methodology. Moreover, transparency and the predictability of the delimitation process as a whole enhanced through the three-stage methodology do not automatically lead to the achievement of an equitable solution. If another methodology produces an equitable solution in a specific delimitation case, it could be employed, instead of the three-stage methodology. In fact, the concept of ‘relevant circumstances’ predominates the process of delimiting maritime boundaries for the achievement of an equitable solution. It is, therefore, desirable for international courts and tribunals to adopt an appropriate methodology taking into consideration relevant circumstances in a given delimitation case, without the need to only adhere to the employment of the three-stage methodology.