형평의 객관화와 해양경계획정

The Objectification of Equity and Maritime Delimitation

Equity has been recognized as a general principle in the domestic law of most nations. A number of international courts have also used the principle of equity as one of the adjudicatory norms. Traditionally, under public international law, its legal status has been considered as a general principle of law recognized by civilized nations. The international community has been stipulating the equity in forms of various declarations and conventions in relation to the international law of the sea, international environment law, and international economic law. In particular, the International Court of Justice (ICJ) in the North Sea Continental Self Case, 1969, affirmed that the principle of equity is an important principle with respect to the maritime delimitation. Unfortunately, the principle of equity was not stipulated in the Third United Nations Law of the Sea Conference. However, when the United Nations Conventions on the Law of the Sea (hereinafter the "LOS Convention") was concluded, international courts constantly ruled that maritime boundaries were delimitated by the principle of equity with regard to relevant circumstances. The principle of equity is codified in Articles 74 and 83 of the LOS Convention, providing an ‘equitable solution’. A maritime boundary has to be delimited by the principle of equity regarding relevant circumstances. The method of median line or equidistance line considering special circumstances is included in the principle of equity with regard to relevant circumstances. Here, the relevant circumstances that have to be considered are so diverse that we cannot explain what they exactly are. However, we can, at least to some degree, categorize them by analyzing the precedents. The ICJ examined such circumstances by reviewing all the maritime delimitation cases, considering the coastal configuration, coastline and proportionality, the existence of islands, natural resources, the natural extension, the economic considerations, the national security, state practice, and so forth. The principle of equity has been criticized due to the lack of predictability as a legal rule. Generally, an international court enables us to predict a certain result by suggesting consistent reasoning on relevant circumstances in each case. For instance, it has a tendency not to provide a legal status of an island which is far away from the mainland and also may not consider pure economic factors, i.e. poverty.