UN해양법협약과 이행협정 체제 환경 기준의 構造的 整合性에 대한 법적 검토: 오염･해로운 영향･심대한 해 기준 등을 중심으로

This paper aims to comprehensively structure the environmental standards embedded in the UNCLOS and its implementing agreements regime and to analyze the vertical and horizontal consistency in the regime. For this purpose, the paper first examines the structural relationships among “pollution,” “harmful effects,” “serious harm,” “significant and harmful changes,” and “minor or transitory effects” across UNCLOS and its implementing agreements regime. UNCLOS stratifies pollution, serious pollution, and substantial pollution but does not provide clear criteria for differentiation among these levels. The concepts of harmful effects and serious harm appear with varying scopes and illustrative elements in different articles, annexes, and the deep seabed rules. The Fish Stocks Agreement introduces a precautionary approach with separate reference points (limit and target reference points) as principles of environmental management. Notably, the BBNJ Agreement newly incorporates standards such as minor or transitory effects, significant and harmful changes, and serious or irreversible harm. In the analysis of vertical consistency, it is confirmed that UNCLOS, as the highest-level general instrument, provides the normative framework for the implementing agreements. Vertical consistency between legal instruments is found to be partially achieved in the context of implementing agreements and exploration regulations. However, due to the lack of clear hierarchy among major environmental standards such as significant pollution, harmful effects, and serious harm, vertical consistency is evaluated as still insufficient. Regarding horizontal consistency, additional work and cooperation is needed to secure consistency. Without horizontal consistency, there could arise interference issues between the implementing agreements. Based on the above analysis, this paper proposes procedural and substantive solutions to enhance the structural consistency of environmental standards under the UNCLOS and its implementing agreements regime. First, as a procedural recommendation, it is suggested to utilize the enabling clauses within the UNCLOS implementation system, such as Article 145, Article 162(2)(o) of UNCLOS; Annex I, Section 15 of the UNCLOS Part XI Implementing Agreement; and Articles 38 and 48(6) of the BBNJ Agreement. Second, as a substantive recommendation, the paper suggests securing vertical and horizontal consistency. The objective for vertical consistency is to establish a clear hierarchy among the internal environmental standards within UNCLOS and its implementing agreements regime, so that the relationship between standards and the obligations stemming from them can be clearly understood by implementing actors. As for horizontal consistency, it is recommended that the implementing agreements and the forthcoming exploitation regulations—assign equivalent status to specific environmental standards, ensuring that a single standard is not interpreted differently within the UNCLOS and implementing agreement regime. This would prevent confusion among implementing actors as well as attempts to exploit differences by choosing the legal instrument with the lowest environmental standard for implementation.