해상경계에 관한 권한쟁의와 섬의 영향력 조정에 관한 연구 - 헌법재판소 2024. 8. 29. 2022헌라1 결정을 중심으로 -

Abstract It is no exaggeration to say that the competence dispute adjudication on the maritime delimitation is ultimately a question of how and to what extent to adjust the influence of the island that can affect the disputed maritime area. If there is an island under the jurisdiction of one of the local governments to the dispute in the disputed maritime area, the coastline of the mainland is extended to the location of the island, which has a very large impact on the maritime delimitation in the disputed maritime area. Disputes over maritime delimitation between countries have been occurring continuously since long before there were domestic competence disputes over maritime delimitation between local governments, and even in these cases, the existence of islands has been a major concern for international courts. Accordingly, the International Courts generally included all islands of both countries as the starting point of the equidistanceㆍmedian line and used this as the basis for maritime delimitation of the territorial sea, exclusive economic zone, and continental shelf. However, in some cases where a specific island is very small or located very close to the mainland and interferes with the other party’s seaward projection, it was recognized as the starting point of the territorial sea but excluded from the starting point of the exclusive economic zone and continental shelf (the International Court of Justice’s Black Sea decision regarding Serpents’ Island; the International Tribunal for the Law of the Sea’s Bay of Bengal decision regarding St. Martin’s Island). Furthermore, depending on specific circumstances such as the location of the disputed maritime area and the length of the relevant coastline, it included all relevant islands as the starting points but setting the low weights on some islands in order to adjust the ratio of the relevant maritime area reasonably (the International Court of Justice’s Caribbean Sea decision regarding the islands of Nicaragua and Colombia). In the 2022hun-ra1 decision, the competence dispute between local governments on maritime delimitation, the Constitutional Court of Korea recognized the customary maritime delimitation in some of the disputed maritime area, and also proceeded with the demarcation of the maritime boundary according to the equitable principle. In this decision, the court's opinion of five justices included both the uninhabited islands under the jurisdiction of Namhae and the inhabited islands under the jurisdiction of Tongyeong as the starting points and drew a provisional equidistanceㆍmedian line at a ratio of 1:1 to demarcate the maritime boundary. But the dissenting opinion of four justices proposed a new legal theory to secure specific validity in the disputed maritime area by adjusting the provisional equidistanceㆍmedian line by giving a weighting of 1:3 between the uninhabited islands and the inhabited islands. In this paper, understanding the content of the 2022hun-ra1 decision, I will first organize the litigation requirements for the competence dispute of maritime delimitation and the flow of the Constitutional Court's precedents on the merits of the maritime delimitation adjudication. Then, I will sequentially review the confirmation of the maritime boundary under the customary law and the maritime delimitation according to the equitable principle, thereby seeking the implications of the the decision and improving measures for the adjustment of provisional equidistanceㆍmedian line.