유엔해양법협약상 해양환경소송사건을 통해 본 일본의 원전 오염수 방류 문제 - 청구취지 구성 등 소제기시 시사점을 중심으로 -

Abstract

This article explores the litigation cases regarding the marine environmental protection under the United Nations Convention on the Law of the Sea (UNCLOS). In addition, an effort is made to suggest Korea’s possible arguments and draw the policy implications when Korea refers the issue of Japan’s radioactive contaminated water discharge to an arbitral tribunal in accordance with the UNCLOS Annex Ⅶ. Until now, the Annex Ⅶ tribunals have dealt with the violation of the marine environmental protection obligation in the following cases: the MOX Plant (Ireland v. U.K.) case, the Land Reclamation (Malaysia v. Singapore) case, the Chagos Marine Protected Area (Mauritius v. U.K.) case, the South China Sea (The Philippines v. China) case, and the Coastal State Rights (Ukraine v. Russia) case. Of these cases, the South China Sea Arbitral Tribunal rendered the award on the merits with regard to the substantive violation of the marine environmental protection obligations under the UNCLOS Part XII. Furthermore, the noteworthy provisional measures orders were made in the MOX Plant case, and the Land Reclamation case by the International Tribunal for the Law of the Sea (ITLOS). Theoretically, the marine environmental litigation cases have the feature that it is relatively easy to reach the decision on the merits beyond the jurisdictional stage. This is because the spatial scope of application of the marine environmental protection obligations is wide and there is no jurisdictional limitation set by the Section Ⅲ of the UNCLOS Part XV. However, in the substantive aspects, there exists a degree of uncertainty in terms of the contents and scopes of the marine environmental protection obligations under the UNCLOS Part XII. Thus, it is rather difficult to clearly judge a violation of such obligations, and furthermore, the supplementation by other international rules and standards may be necessary. The role of the experts of the specific field is also regarded as important. Despite such limitations, given the claimants’ submissions in the previous litigation cases and the conclusions made by the tribunals thereof, Korea can invoke the following obligations under the UNCLOS Part XII against Japan with regard to the contaminated water release: the obligation of measures to prevent, reduce and control pollution of the marine environment, the obligation of cooperation, and the obligation of the environmental impact assessment. In principle, Korea is also able to request for provisional measures to the ITLOS or the Annex Ⅶ tribunal. However, in order to draw more meaningful decision, it is paramount for Korea to prove the marine environmental pollution based on the scientific evidence according to the objective international standards, and to effectively present such arguments in the proceedings. In addition, considering the risks associated with filing a lawsuit, it is reasonable to fully consider the possibility of resolving the issue by the means other than litigation under the fundamental consideration of policy goals.