국제해양법상 역사적 권리 인정 여부에 대한 고찰

• 영문명: A Study on the Recognition of the Historical Rights in the Law of Sea - Focusing on the South China Sea Arbitration Case -
• 발행기관: 충북대학교 법학연구소
• 저자명: 오시진(Oh, Si Jin)
• 간행물 정보: 『법학연구』第29卷 第2號, 443~464쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2018.12.30

영문 초록

Because of the recent South China Sea Arbitration case (PCA), the question of historical rights has risen to surface. Considering the text and the travaux préparatoires of UNCLOS, the South China Sea Arbitration case concluded that there is no room to claim for historical rights in international legal system legally. The Court decided that preexisting rights such as historical rights which is incompatible with UNCLOS cannot be recognized. The Court noted that when China ratified the UNCLOS, Chinese claim to the nine-dash-line as its historical rights were replaced by UNCLOS. However, even though it is true that the term “historical rights” cannot be found in UNCLOS, the stance of the Court is not unproblematic. It is necessary to explain further why Article 311 of UNCLOS and Article 30(3) are applied to the case of historical rights even when it has nothing to do with treaty. Moreover, the Court’s explication was not sufficient how Article 293 of UNCLOS, the dispute resolution clause, is applied to the present case. Considering such, it is necessary to scrutinize whether or not UNCLOS is a comprehensive legal system which denies the further possibility of the existence of customary law. Present study notes that the Preamble of UNCLOS explicitly states the contrary. Furthermore, previous international court’s cases do not deny the compatibility or existence of historical rights with UNCLOS.

목차

Ⅰ. 서론

Ⅱ. 남중국해 중재판정에서의 역사적 권원과 권리

Ⅲ. 역사적 권리 개념의 인정여부

Ⅳ. 결론

키워드

역사적 권리 역사적 권원 해양법협약 국제관습법 남중국해사건 historical rights historical title UNCLOS customary international law South China Sea Arbitration