유엔해양법협약 제12부와 국가관할권
Part XII of the UN Convention on the Law of the Sea and State Jurisdiction
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Abstract
UN Convention on the Law of the Sea of 1982(hereafter “LOSC”) establishes a comprehensive legal regime for the oceans, thus described as a “constitution of the sea.” This is also the case with regard to the protection of the marine environment and Part XII of LOSC provides for a comprehensive legal framework for the control of marine pollution. Consequently, Part XII of LOSC also serves as international legal basis upon which the existing and future marine environmental treaties should be formulated and interpreted. Inspired by these considerations, the writer intends in this paper to examine the structure and contents of Part XII, with reference to the structure and contents of prescriptive and enforcement jurisdiction of States. Under the provisions of Part XII, States are generally obliged to prescribe and enforce anti-pollution laws and regulations concerning all known sources of marine pollution. With regard to anti-pollution jurisdiction between States, Part XII has redistributed prescriptive and enforcement jurisdiction between coastal and flag States, enhancing the power of the former at the expense of the latter’s traditional primacy in the regulation of shipping. Further, Part XII has introduced novel development into the law of the sea by providing for port State’s universal enforcement jurisdiction. When enacting and enforcing anti-pollution laws and regulations concerning certain sources of marine pollution, States are obliged to include and enforce international rules and standards. By way of this, Part XII attempts to render environmental obligations of States to be more effective, on the one hand, and prevent the abusive exercise of jurisdiction by States, on the other. In general, Part XII of LOSC indicates that the law of the sea has become an environmentally stronger regime.
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