해수면 상승과 국가성 : 수몰 위기에 있는 소도서국가의 존속 가능성을 중심으로

국문 초록 (Abstract)

해수면 상승이 가속화되면서 머지않아 해발고도가 낮은 섬나라 및 저지대 연안국들의 영토가 침수될 것으로 예상되고 있다. 국가의 개념을 정의할 때 흔히 원용되는 '국가의 권리 및 의무에 관한 몬테비데오 협약' 제1조는 물리적 영토를 국가의 요건 중 하나로 보고 있다. 이에 따라 해수면 상승으로 인해 영토를 상실하게 될 소도서국가는 국가성(statehood) 또한 상실할 것으로 보아야 할 것인지가 문제된다.
본 논문은 총 4장으로 구성되며, 해수면 상승으로 인해 소도서국가들이 영토를 상실하게 된다 하더라도 국가성을 여전히 유지할 수 있음을 제안하는 것이 주된 목적이다. 제1장 서론에 이은 제2장에서는 과거부터 현재에 이르기까지 논의되고 있는 국가성의 여러 기준들을 분석하였다. 먼저 제2장 제1절에서는 소도서국가의 존속을 위한 첫 번째 대안으로 몬테비데오 기준의 한계점을 찾은 후 그것이 소도서국가들에 대한 몬테비데오 기준의 적용을 배제시킬 수 있는 이유가 될 수 있는지에 대해 검토하였다.
제2장 제2절에서는 두 번째 대안으로 국가성의 현대적 기준, 그중에서도 특히 자결권이 영토를 상실한 소도서국가의 존속을 뒷받침할 수 있는지에 대해 살펴보았다. 자결권은 구속력 있는 국제인권규약에 명시된 인권이기는 하지만, 식민통치라는 시대적 맥락하에서 발달한 개념임을 고려할 때 소도서국가 거주민들이 이를 향유할 수 있다고 단정할 수는 없다. 이에 따라 제2절에서는 자결권에 대한 전통적 견해와 현대적 견해를 각각 다룸으로써 식민지 인민이 아닌 소도서국가 주민들도 자결권의 주체가 될 수 있도록 자결권의 의미가 변화해왔음을 강조하였다.
제3장 제1절에서는 앞서 제2장에서 다룬 국가성의 전통적 기준과 현대적 기준에 관한 논의만으로는 소도서국가의 존속을 주장하는 데에 한계가 있음을 짚었다. 이러한 한계를 고려하여 제2절에서는 소도서국가의 존속을 위한 세 번째 대안을 모색하였다. 국가의 성립요건과 존속요건을 구별할 것을 제안한 후, 존속요건에 의할 경우에는 소도서국가의 국가성이 유지될 수 있는지에 대해서 살펴보았다. 구체적으로는 국가 존속의 추정(the presumption of State continuity)에 관한 이론이 소도서국가의 사례에도 적용될 수 있는지에 대해 알아보았다.
마지막으로 네 번째 대안으로 영토 없는 국가(deterritorialized State)의 가능성을 검토하였다. 물리적 영토 없이도 국가 기능이 수행된 사례들을 분석함으로써 영토가 국가성의 필수적 요소는 아니라는 주장을 뒷받침하였다. 이와 더불어 이론적으로만 논의되어 온 영토 없는 국가 개념의 현실화 가능성 및 한계점에 대해 살펴보았다.
제4장 결론에서는 앞서 다룬 네 가지 대안들의 내용과 한계점을 정리하였다. 특히 최종적인 대안으로 제시한 영토 없는 국가의 실현을 위해 향후 연구가 더 필요한 부분들에 집중하였다. 구체적으로는 소도서국가의 거주민들을 수용할 주재국(host State)을 어떻게 결정할 것인지, 영토 없이도 온전한 주권의 행사가 가능할 것인지 등의 문제를 짚으며 논문을 마무리하였다.

다국어 초록 (Multilingual Abstract)

Along with the acceleration of sea-level rise, it is expected that Small Island Developing States (SIDS) will soon become inundated. The most widely cited source of the concept of States is Article 1 from the 'Montevideo Convention on the Rights and Duties of States' which considers physical territory as one of the States' prerequisites. For this reason, there rises a question of whether SIDS will still continue to be States even after their inundation.
This paper consists of four chapters, and the main objective is to prove that SIDS could maintain their statehood even after the loss of territory due to inundation. Following the first chapter which is the introduction, chapter 2 analyzes the various types of criteria for statehood that are being discussed from the past to the present. As the first alternative to support the continuity of SIDS, the first section(I) of chapter 2 looks for the limitations of the Montevideo criterion and examines whether if that can be the reason to prevent it from being applied to the case of SIDS.
As the second alternative for supporting the continuity of SIDS, the second section(II) of chapter 2 examines the modern criteria of statehood, especially focusing on whether if the right of self-determination can be a basis for the continuity of SIDS. The right of self-determination is one of the human rights specified in the International Covenants on Human Rights which is legally binding. However, it cannot be concluded that the inhabitants of SIDS can always be the subjects of the right of self-determination, considering that self-determination is a concept that was developed during the era of colonization. For this reason, the second section(II) of chapter 2 analyzes both the traditional views and modern views on self-determination in order to prove that the concept of self-determination has changed so that not only colonial people but also noncolonial people can become the subjects of the right of self-determination as well.
The first section(I) of chapter 3 recognizes the limitations of supporting the continuity of SIDS based on the two alternatives specified in the previous chapters. Considering these limitations, the second section(II) proposes a third alternative which is distinguishing the requirements for state establishment from the requirements for state continuity. This paper also examines whether if the theory on the presumption of State continuity can be applied to the case of SIDS as well.
Lastly, the possibility of a deterritorialized State is examined as the fourth alternative to support the continuity of SIDS. By reviewing State practices in which State functions were performed without physical territory, this paper demonstrates that physical territory is not an essential element of statehood. In addition, the possibility and limitations of realizing the concept of deterritorialized State are examined, considering that the concept has only been discussed in theoretical terms until now.
In chapter 4 which is the conclusion, the contents and limitations of the four alternatives discussed above are summarized. In particular, this paper points out some points where further research is needed in order for the realization of a deterritorialized State. For instance, questions such as how to convince other States to accommodate the residents of SIDS or whether it is possible to exercise full sovereignty even without territories are raised in the conclusion.

목차 (Table of Contents)

• 차 례
• 국문요약 ····························································································································v
• 제1장 서론 ·························································································1
• 제1절 연구의 배경 ········································································································1
• 제2절 연구의 목적 및 논문의 구성 ··········································································4
• 제3절 연구의 방법 ········································································································6
• 제2장 국가성의 기준 ·······································································8
• 제1절 국가성의 전통적 기준 ········································································8
• I. 국가성에 관한 국제문서 ··················································································8
• 1. 1933년 국가의 권리 및 의무에 관한 협약(몬테비데오 협약) ············8
• 2. 1949년 국가의 권리와 의무에 대한 선언문 초안 ··································8
• 3. 1956년 조약법에 관한 비엔나 협약 초안 ················································9
• 4. 1987년 미국 대외관계법 제3차 리스테이트먼트(Restatement [Third] of Foreign Relations) ··············································································10
• 5. 1991년 구유고슬라비아 국제회의 중재위원회의 의견서(Opinions of the Arbitration Commission of the 1991
• International Conference on the Former Yugoslavia) ·························································11
• II. 몬테비데오 기준의 네 가지 요건 ······························································12
• 1. 항구적 인구 ··································································································12
• 2. 한정된 영토 ··································································································13
• 3. 정부 ················································································································13
• 4. 타국과 관계를 맺을 능력 ··········································································14
• III. 국가성의 전통적 기준에 대한 소결 ··························································15
• 제2절 국가성의 현대적 기준 ······································································16
• I. 합법성(legality)에 관한 국가실행 ····························································18
• 1. 인종차별: 반투스탄(Bantustans)의 독립 불승인 ································19
• 2. 무력사용: 북키프로스 튀르크 공화국(TRNC)의 독립 불승인 ············20
• 3. 자결권(right of self-determination) ··················································21
• (1) 남로디지아(Southern Rhodesia) 독립의 불승인 ······························21
• (2) 콩고를 비롯한 식민지 독립의 승인 ····················································23
• II. 소도서국가의 존속 근거로서 자결권 ··························································25
• 1. 자결권의 개념 ······························································································25
• 2. 자결권의 주체 및 자결원칙의 적용범위에 관한 논쟁 ························27
• 3. 자결권에 대한 전통적 견해 ······································································28
• (1) 1941년 대서양 헌장(Atlantic Charter) ··········································28
• (2) 1945년 UN 헌장 ······················································································29
• 1) 자결권에 관한 직접조항 ····································································29
• 2) 자결권에 관한 간접조항 ····································································30
• 3) 자결권에 관한 UN 총회 결의안 ························································31
• 4. 자결권에 대한 현대적 견해 ······································································33
• (1) 1966년 경제적, 사회적 및 문화적 권리에 관한 국제규약(ICESCR)과 시민적 및 정치적 권리에 관한 국제규약(ICCPR) ··················34
• (2) 1970년 국가 간의 우호관계와 협력에 관한 국제법원칙 선언(Declaration on Principles of International Law
• concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations) ············36
• (3) 1981년 인간과 인민의 권리에 관한 아프리카 헌장(African Charter on Human and Peoples' Rights) ······································38
• (4) 2007년 토착민족의 권리에 관한 UN 선언문(United Nations Declaration on the Rights of Indigenous Peoples) ················39
• 5. 자결권에 대한 전통적 견해와 현대적 견해의 조화 ····························41
• 6. 자결권을 근거로 한 국가 존속의 가능성 ··············································43
• (1) 자결권 주체로서 소도서국가 거주민 ················································43
• (2) 국가 소멸이 불러올 자결권의 침해 ··················································44
• III. 국가성의 현대적 기준에 대한 소결 ····························································48
• 1. 국가성의 현대적 기준이 지니는 한계점 ················································48
• 2. 국가 존속의 근거로서 자결권이 지니는 한계점 ··································50
• 제3장 국가성 딜레마 ·····································································53
• 제1절 국가성 딜레마의 발생 ········································································55
• 제2절 국가성 딜레마의 해소 ········································································55
• I. 국가의 성립요건과 존속요건의 구별 ··························································55
• 1. 국가의 존속요건의 정의 ············································································55
• 2. 국가의 성립요건과 존속요건을 구별할 필요성 ····································56
• II. 국가 존속의 추정(The presumption of State continuity) ··················59
• 1. 국가 존속의 추정에 관한 이론적 근거 ··················································59
• 2. 국가 존속의 추정에 관한 국가실행 ························································62
• (1) 영토 변화에 관한 국가실행 ································································62
• (2) 정부 변화에 관한 국가실행 ································································63
• (3) 군사점령에 관한 국가실행 ··································································64
• 3. 국가 존속의 추정이 갖는 한계점 ····························································65
• III. 영토 없는 국가(deterritorialized State)의 가능성 ····························69
• 1. 국가요소로서 영토의 기능 ········································································69
• 2. 영토 없이도 국가 기능이 수행된 사례 ··················································70
• (1) 교황청(Holy See) ··················································································70
• (2) 몰타 기사단(Sovereign Order of Malta) ········································71
• (3) 망명정부(governments in exile) ······················································72
• 3. 소도서국가의 영토 없는 국가로의 전환 ················································73
• (1) 이론 ··········································································································74
• (2) 현실화 방안 ····························································································75
• (3) 한계점 ······································································································78
• 제4장 결론 ·······················································································79
• 참고문헌 ···························································································82
• ABSTRACT ···························································································94