In international litigation of territorial, frontier and/or maritime boundary disputes, international courts and arbitral tribunals, confronted always with a sticky situation of conflicting or even diametrically opposed contentions, have relied for primary evidence on treaties binding upon the parties, and/or diplomatic and official records to determine legal title to territory. At the same time, international jurisprudence has gradually mitigated its previous adamant position to pronounce that a map, when satisfying certain conditions such as accuracy, impartiality and cogency, is well qualified as primary and secondary evidence.
This means that a map is no longer simply a drawing or printing of geographical facts, data and information intended to describe on a certain scale geographic and geomorphic features (topography, configuration, contours, etc.) of the lands, frontiers, mountains, rivers, lakes, coasts and islands. Maps are now taken as constituting a separate category of documentary evidence establishing territorial sovereignty, frontier lines or even maritime boundaries. Maps are thus now regarded as representing political and legal(dispositive) facts and embodying the intentions of the contending parties.
Initially, admissibility of cartographic evidence was ruled out, except for certified or authenticated maps annexed to, incorporated into and identified explicitly in the texts of treaties or official documents. This may explain why in its 2002 Decision Regarding Delimitation of the Border, the five-member Eritrea-Ethiopia Boundary Commission made an express mention that it would produce a final demarcation map of the whole boundary on a scale of 1: 25,000 after the Decision and that it would be definitive. The final map would thus be accorded the standing of a certified map in any further future boundary disputes.
This express reference immediately reminds one of the 1962 Temple of Preah Vihear case, where the International Court of Justice(ICJ) confirmed that the frontier map at issue had never been formally approved by the first Mixed Commission of Delimitation of the frontiers as such, since it had ceased to function prior to the production of the map. Nevertheless, after having sifted through various documents leading to the publication of the map, the ICJ ruled that although the map had lacked a legally binding character in its inception and at the time of its production, it was thus subsequently invested with an official standing.
The grounds given were that the map had been produced by the French Government officers and printed and published by a French cartographic firm of repute in response to a request from the Siamese authorities(p.21). The Court's interpretation and reasoning appear to have been based on the conclusion that the production and publication of the map had been mandated by the first and second Mixed Commission of Delimitation. It is, however, not clear whether the Court accorded the frontier map the status of a certified map or simply that of an officially produced independent map.
It was not until 1986 that the ICJ in the Burkina Faso/Mali Frontier Dispute, faced with an embarrassing situation of no firm documentary evidence, went to great lengths to accept as admissible a semi-official,
independent map produced by an independent institute of France, a third country, and to declare as decisive its probative value. This group of independently produced maps, whether official or unofficial, had long been consigned to evidential obscurity. The ICJ in this case did not make any distinction between general and sketch maps in terms of their admissibility and probative force(paras.94-95 & 155).
International judgments on territorial and/or boundary disputes have increasingly included in their respective texts a panoply of sketch maps(croquis), normally appending an explanatory statement that “this map is produced for illustrative purposes only“. Such a statement is interpreted as intended to accord such sketch maps the status of illustrative or reference maps. In other words, the text of judgment may be adduced by the parties as primary evidence in any future proceedings, while inserted maps may well be invoked as secondary evidence.
In this context, it may be noted that the 1982 UN Convention on the Law of the Sea(UNCLOS) requires the coastal state to publish its maritime boundaries or outer limit lines on charts of large or appropriate scales and also to deposit a copy of each such chart with the United Nations Secretary General. Such illustrative charts are thus interpreted as secondary evidence in any future maritime boundary disputes. The reason for this interpretation is that international courts have only to follow the UNCLOS rules for maritime delimitation, instead of confirming the intentions of the contesting parties as represented on their charts.
It may well be asked, en passant, "Is international jurisprudence on territorial or frontier disputes applicable mutatis mutandis to maritime ones?" In the 2002 Cameroon/Nigeria Land and Maritime Boundary case, the ICJ dismissed the Cameroon's contention that the Court's reasoning in the 1986 Burkina Faso/Mali Frontier Dispute and the 1994 Libya/Chad Territorial Dispute in regard to land boundaries is necessarily transposable to those concerning maritime boundaries.
The Court opined that they were "two distinct areas of law to which different factors and considerations apply"(para.238).
Maps published by a third country may be admissible and enjoy certain evidentiary effect to the extent that they are accurate, impartial and consistent with other evidence, thus credible on the whole. This is especially so when the map was published by a colonial power or suzerain in relation to its former colony. However, according to UN practice, maps published by it are, as a matter of principle, not interpreted as constituting any approval or recognition of title to territory. UN maps are thus not admissible, unless it has been explicitly mandated or delegated to produce or publish maps, entrusted with such a task by express consent of the parties, or required by special circumstances.
Furthermore, contemporary international jurisprudence does not define, nor distinguish between large- and small-scale maps in terms of their admissibility and evidentiary value. Nevertheless, international courts and arbitral tribunals are reputed to be reluctant to recognize the admissibility of maps and charts produced on too small a scale. The reason for this is obvious: They are not precise enough to pinpoint or shed light on particular locations, frontiers and maritime features. The indication of longitudes and latitudes is not considered required or essential either for the admissibility of maps or charts.
Maps are not free from errors in the representation of names or geographical facts. Errors may also occur in transcribing native place-names into the Roman alphabet(misnomer). Transliteration poses considerable problems where indigenous place-names are not matched with the Roman alphabet, as aptly demonstrated in the Island of Palmas arbitration. Erroneous maps, however, may not automatically invalidate their admissibility in toto. Such errors would normally vitiate their probative effect, according to international jurisprudence established in the Palmas case, the 1986 Burkina Faso/Mali case and the 2002 Cameroon/Nigeria Boundary case.
All in all, an impressive array of maps would make out a case of relative strength for a superior claim. Such a rich pool of maps would, when combined with other evidence, produce a 'synergy effect' to stake a claim superior to the other's one. Even if that were not the case, it would be fair to say that a long queue of even illustrative and independently produced maps, though not reckoned to be primary evidence in an international court of law, would, by dint of their visual effect, have considerable impact or apply pressure on the minds of judges towards the formation of legal conviction.
Thus, in the 1998 Eritrea/Yemen Territorial Dispute Arbitration, the Permanent Court of Arbitration(PCA) did not rule on the basis of a plethora of maps of every conceivable period and provenance produced especially by Yemen, saying that they did not represent the real or true intentions of the parties. Nevertheless, the Court did not hide an overall impression that Yemen had "a marginally better case" from the favourable maps discovered to establish "a certain widespread repute" that those islands appertain to Yemen(para.490).
International jurisprudence on map evidence in territorial, frontier or maritime boundary disputes is still at an inchoate stage of development and evolution. There exists no systematic body of the international law of map evidence from A to Z. It begs more questions than answers. But international judgments have demonstrated an increasingly liberal attitude towards admitting map evidence. And international case law on map evidence will certainly obtain in a more coherent form in the future as a material source of international law or de facto applicable rules in the international law of map evidence governing territorial or boundary disputes.
Finally, in line with the developments in international jurisprudence on map evidence, Korean state practice such as diplomatic practice and domestic legislation and policies need be tuned to the evolving international law of map evidence. In particular, in view of the function
of maps representing geographical, political and dispositive facts, tighter legal regulation of official or unofficial map production may be justified. Again, sustained and strenuous efforts should be exerted towards correcting imprecise or incorrect manifestation of geographical and political facts on foreign maps or charts and in relevant international fora.
2007년 EU 리스본조약의 개관
23 페이지
