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Beyond the Jurisdictional Hurdle of Mixed Disputes under UNCLOS : Obligations of Marine Environmental Protection Revisited
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유엔해양법협약상 혼합분쟁 사안과 해양환경보호의무의 재조명 : 소송전략 측면에서 본 최근의 경향성에 대한 고찰

논문 기본 정보

Type
Academic journal
Author
Min-chul KIM (유민국제법연구소)
Journal
Seoul International Law Academy Seoul International Law Jornal Vol.27 No.1(Wn.52) KCI Accredited Journals
Published
2020.6
Pages
183 - 238 (56page)
DOI
10.18703/silj.2020.06.27.1.183

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Beyond the Jurisdictional Hurdle of Mixed Disputes under UNCLOS : Obligations of Marine Environmental Protection Revisited
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Abstract· Keywords

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This article examines the controversial issue of whether international courts and tribunals have the jurisdiction over the mixed disputes under Section II of Part XV of United Nations Convention on the Law of the Sea (UNCLOS). In addition, it focuses on a new trend to utilize the claims regarding the provisions of Part XII in litigation cases under Part XV involving the territorial sovereignty issues.
In February 2020, the Arbitral Tribunal under Annex VII rendered the award on jurisdiction of the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. The Russian Federation). In this award the Tribunal basically upheld the Russian Federation’s preliminary objection that it has no jurisdiction over Ukraine’s mixed claims, which require the Tribunal to decide on the territorial sovereignty over disputed territory. This decision is in line with the understanding that the jurisdiction of the tribunals under Part XV cannot be extended to the mixed claims involving sovereignty issues. Recently in some cases, however, it is also observed that the plaintiff parties tend to utilize the dispute settlement procedure under Section II of Part XV as policy measures to publicize the sovereignty disputes in the international community. In such cases the plaintiff parties boldly submit the mixed claims involving sovereignty issues together with another distinct claims, the jurisdiction over which can be easily accepted regardless of the decision on the jurisdiction over the mixed claims.
Of particular note is that in such cases the provisions of Part XII concerning the protection and preservation of the marine environment including the environmental impact assessment has been often invoked as the base of the claims for proceeding to the merits phase even when the tribunals would decline the jurisdiction over the mixed claims. In light of such a tendency, States struggling with concurrent land sovereignty issues should proceed to their activities in the disputed territory and the adjacent waters in a careful manner.

Contents

국문초록
Ⅰ. 서론
Ⅱ. 혼합분쟁의 이해
Ⅲ. 판례의 접근법과 최근의 경향
Ⅳ. 해양환경보호의무의 재조명
Ⅴ. 결론
참고문헌
Abstract

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UCI(KEPA) : I410-ECN-0101-2020-361-000893583