유엔해양법협약 제15부 발전과 재판관 소수의견의 역할

Appending individual opinions has been a well-established practice of international adjudication. Individual opinions may carry many functions such as securing freedom of expression or safeguarding judicial impartiality. Above all, many authors have emphasised that they can contribute to the development of international law. From this point, this article argues that individual opinions may develop the dispute settlement system under Part XV of the United Nations Convention on the Law of the Sea (‘UNCLOS’). Part XV of UNCLOS contains procedural law which regulates international judicial actions as well as the means by which states can enforce their rights in the courts and tribunals. When it comes to the judicial development of substantive rules of international law, international courts must persuade other actors of international law to have a substantial impact on their normative expectations. In contrast, the courts and tribunals may enjoy an authoritative status over the developmental process of procedural law where there will be little option for other subjects of international law but to follow what the court has decided. However, this should not be construed that only judgments or awards can develop the Part XV system. Even to a degree that differs from majority opinions, individual opinions also entail normative authority over certain international law issues. For this reason, disputing parties before international courts frequently refer to individual opinions to strengthen their claims. As such, individual opinions may develop the dispute settlement system under UNCLOS through their reasons, doctrines and criticisms. Accordingly, this paper examines how individual opinions can develop the procedural law under UNCLOS by dividing them into two categories. The first is the case where the legal determinations delivered by individual opinions were accepted as the majority opinion of the later cases. Under this category, the article suggests that individual opinions may develop the Part XV system by delivering a more persuasive approach to the interpretation or application of procedural provisions than majority opinions. Moreover, this paper highlights their role in providing supplementary reasons to support the ruling of the court. The second category concerns the cases where the determinations of the judges delivered by individual opinions have not yet been taken by subsequent proceedings. Here, it is contended that they may raise criticisms over the majority opinion which a later decision may possibly correct. Moreover, Individual opinion can provide points that influence and direct the future development of this system. Lastly, this article highlights that judges may express their own ‘new international law’ resisting old ideas by appending individual opinions to the judgments.