남중국해 영토분쟁과 국제법 (South China Sea Territorial Disputes and International Law)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 35권 / 3호 / 125 ~ 156페이지
· 저자명 : 서영민

초록

In the South China Sea dispute, which can largely be seen as consisting of territorial disputes and maritime disputes, the more fundamental dispute is the territorial dispute concerning the sovereignty over maritime features in the South China Sea. This is because, according to the principle of international law that "the land dominates the sea," maritime rights are derived from land. Therefore, the key legal question in the South China Sea is which country holds sovereignty over the various maritime features, making it one of the most challenging legal issues. In this context, this paper examines whether there are any "islands" or "rocks" within the meaning of Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) that can be subject to claims of sovereignty (territorial ownership) in the South China Sea. If there are no "islands" or "rocks" in the legal sense, it could be argued that no significant territorial dispute exists.
Based on this analysis, the paper further explores on what grounds the disputing parties, such as China, Vietnam, and the Philippines, claim sovereignty (territorial ownership) over the "islands" and "rocks" in the South China Sea. In doing so, the paper will reveal how complex the historical relationships between the maritime features in the South China Sea and the surrounding countries (the disputants) have been. After examining the claims of each claimants, the paper will then analyze which country's claims are more credible under international law by reviewing methods for determining territorial sovereignty (modes of acquisition of territory), critical date, intertemporal law, and the evidentiary value of maps. Based on this review, the paper provides a legal assessment of the claims made by the disputants in the South China Sea.

영어초록

In the South China Sea dispute, which can largely be seen as consisting of territorial disputes and maritime disputes, the more fundamental dispute is the territorial dispute concerning the sovereignty over maritime features in the South China Sea. This is because, according to the principle of international law that "the land dominates the sea," maritime rights are derived from land. Therefore, the key legal question in the South China Sea is which country holds sovereignty over the various maritime features, making it one of the most challenging legal issues. In this context, this paper examines whether there are any "islands" or "rocks" within the meaning of Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) that can be subject to claims of sovereignty (territorial ownership) in the South China Sea. If there are no "islands" or "rocks" in the legal sense, it could be argued that no significant territorial dispute exists.
Based on this analysis, the paper further explores on what grounds the disputing parties, such as China, Vietnam, and the Philippines, claim sovereignty (territorial ownership) over the "islands" and "rocks" in the South China Sea. In doing so, the paper will reveal how complex the historical relationships between the maritime features in the South China Sea and the surrounding countries (the disputants) have been. After examining the claims of each claimants, the paper will then analyze which country's claims are more credible under international law by reviewing methods for determining territorial sovereignty (modes of acquisition of territory), critical date, intertemporal law, and the evidentiary value of maps. Based on this review, the paper provides a legal assessment of the claims made by the disputants in the South China Sea.

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