준거법을 이용한 유엔해양법협약 제15부 국제재판소의 관할권 확대 가능성에 대한 소고(小考) - 2020년 Enrica Lexie호 사건에 대한 중재결정을 중심으로 -

Article 293(1) of the United Nations Convention on the Law of the Sea (UNCLOS) about applicable law does not presuppose that Part XV courts and tribunals can extend their jurisdiction by utilizing the concept of applicable law. In accordance with this premise, the 2020 Arbitral Award concerning the Enrica Lexie incident rendered by the Annex VII Arbitral Tribunal did not accept that the jurisdiction of the Arbitral Tribunal can be extended by the application of applicable law. However, the Enrica Lexie case showed the possibility that the jurisdiction of Part XV courts and tribunals could be extended invoking applicable law. The reason for this is that the Annex VII Arbitral Tribunal dealt with the issue of State immunity, which seems unrelated to the dispute concerning the interpretation or application of the UNCLOS. The case-law of Part XV courts and tribunals has not showed a consistent trend in relation to the interpretation or application of Article 293(1) of the UNCLOS. It has not presented a consistent position on whether a specific treaty other than the UNCLOS can be used as applicable law. In the case of using customary international law as applicable law, Part XV courts and tribunals have dealt with disputes which are not disputes concerning the interpretation or application of the UNCLOS. In particular, how Part XV courts and tribunals can exercise their jurisdiction over ‘incidental questions’ raises questions about what incidental questions are, and whether exercising jurisdiction over incidental questions should be regarded as an expansion of jurisdiction. In the case-law of Part XV courts and tribunals, it is found that the courts and tribunals have been reluctant to exercise their jurisdiction over an incidental connection between a dispute and some matters regulated by the UNCLOS. However, if a dispute is a minor issue ancillary to the dispute concerning the interpretation or application of the UNCLOS, and if the necessity criterion is fulfilled, Part XV courts and tribunals can exert their jurisdiction over incidental questions. In the case of dealing with a dispute which cannot be regarded as a dispute concerning the interpretation or application of the UNCLOS, if Part XV courts and tribunals actively invoke the notion of an incidental question, such an approach could lead to the expansion of jurisdiction. In fact, Part XV courts and tribunals do not deny the expansion of their jurisdiction to incidental questions. Therefore, in the future, Part XV courts and tribunals will have to establish more developed criteria for deciding whether an issue is an incidental question.