유엔해양법협약상 강제관할권 확장 담론에 대한 반론

Counter-Arguments to the Claims over the Jurisdictional Expansion of UNCLOS Part XV

Recently, the compulsory dispute settlement system of UNCLOS has been at the centre of controversies and debates among academics. Many authors have criticised judicial decisions concerning the rules of Part XV of UNCLOS that the courts and tribunals seised of jurisdiction following the rules of Part XV have vigorously attempted to expand the purview of compulsory jurisdiction beyond those conferred by the Convention. Among many other grounds of the jurisdictional expansion claims, this paper mainly focuses on the arguments based on Part XV tribunals’ case-law of article 293 and the exercise of incidental jurisdiction. Within past proceedings under UNCLOS Part XV, tribunals have addressed the issues that are not directly regulated by the provisions of the Convention by virtue of either article 293 or their incidental jurisdction. As these cases showed the tribunals’ exercise of jurisdiction beyond the four-corners of UNCLOS, the claim of jurisdictional expansion appears to be a correct appraisal of judicial practice under Part XV. However, this paper calls such criticisms into question - What if the case-law of Part XV tribunals turns out that they are not actually ‘expanding’ the purview of their jurisdiction? On this basis, the purpose of this paper is to raise counter-claims to these so-called ‘jurisdictional expansion’ claims. Accordingly, against the recently raised jurisdictional expansion claims, three major counter-arguments will be made – 1) the ambiguity of the criteria for determining whether the jurisdiction has been expanded; 2) the necessity of broadening the viewpoint; and 3) the possibility of different interpretations concerning the role of Part XV tribunals. Hopefully, these counter-arguments may provide a new approach to the study on the role of Part XV tribunals and their contributions to the development of the dispute settlement system of UNCLOS.