국제법상 ‘형평’ 개념의 재검토 – ‘케이크 자르기’ 문제를 중심으로 –

‘Equity’ is one of the most frequently appearing terms in various fields of international law, but its normative functions remain unclear. Considering the relationship between law and equity, it is said that there are equity intra legem, equity praeter or extra legem, and even equity contra legem. However, this classification does not clearly present the concept of equity, which coexist both within and outside the law. In particular, even in many multilateral treaties where terms such as ‘equitable sharing’ or ‘equitable solution’ appear, there is no provision defining such terms. There are only some provisions that list factors to be taken into consideration for such sharing or solution. These facts suggest that equity is a norm separate from law, and that research on equity requires an extra-legal rather than an intra-legal approach. In general, equity can be said to be a norm regarding the distribution of something. If this distribution is determined solely by objective criteria, one of the participants may be dissatisfied with the result. Eliminating such dissatisfaction would require methods like those sought by researchers of the ‘cake-cutting problem’, which reflect the participants’ subjective preferences. Research results in this field could be helpful in achieving the ‘equitable sharing’ or ‘equitable solution’ which often arises in international relations. The ‘envy-free’ cake cutting, which is considered one of the most important test of equity, was stipulated in Article 8 of Annex III of the United Nations Convention on the Law of the Sea. However, it was not explicitly stated as ‘envy-free’ cake-cutting. The reason why this provision has not received much attention so far seems to be because it has not been a subject of controversy.