해양환경법상의 환경정의 구현방안에 관한 연구

Abstract

Marine environment has provided humans with numerous benefits in terms of the resources essential for survival. In other words, the marine environment offers humans various services, including fishery products, pollution purification, leisure and tourism, and habitats for marine life. In spite of this, humans do not value these benefits but instead engage in countless uses and development activities both on land and in the ocean to improve their economic lives, which pollute the ocean. As a result, marine ecosystems are being harmed and important marine habitats are disappearing, threatening human health and welfare. Particularly, the socially disadvantaged groups, such as local residents, low-income groups, disabled people, older people, and children, who live adjacent to the marine environment or use it, suffer the most from environmental inequality compared to developers, high-income people, and adults. This is because, in comparison to the land environment, the financial resources to effectively manage pollution in the marine environment are lacking; people living in close proximity to the coastal environment cannot fully enjoy the benefits of the marine environment, and those who use the marine environment are adversely affected. Moreover, when a plan or project affecting the marine environment is established, practical stakeholders such as local residents are excluded from the decision-making process, or they participate informally without access to relevant information. Furthermore, aside from the damage to ships caused by oil pollution, victims of marine pollution do not receive adequate compensation for personal injury and material damage caused by the majority of pollution sources. Polluters are not held accountable for restoring damaged or destroyed marine environments. To solve the problem of marine pollution-induced environmental inequality, it is necessary to apply the taxonomy of environmental justice and the legal rationale developed in America and institutionalized throughout the world to real life. Environmental justice can be divided into the following categories: “distributive justice” relates to environmental benefits and cost-bearing equity; “procedural justice” involves ensuring that members of the society can participate in environmental decision-making processes while receiving fair treatment; and “corrective justice” deals with compensation and relief for environmental damage, such as pollution or harm. This theory is institutionalized to address social inequality caused by environmental pollution through fundamental constitutional rights such as environmental and equal rights, as well as principles of general environmental law such as sustainable development, the principle of common but differentiated responsibilities, the preventive principle and precautionary principle, and the polluter-pays principle. In an effort to address environmental inequality caused by marine pollution, Korea adopted the acts on marine environment management, which specify various legal systems related to marine environmental benefits and costs, risk distribution, access to information, participation in decision making, damage relief for marine pollution, and responsibility for restoring marine pollution. However, domestic marine environment legislation lacks details regarding the subject of imposition, calculation criteria, and usage, and thus fails to fairly distribute liabilities by not taking into account the benefits provided by the marine environment and the costs incurred from marine pollution. Further, due to a gap between the legal system and reality, a lack of reflection on the marine environment, and an uncertain standard, the law has been ineffective in reducing the risk of marine pollution borne by the socially disadvantaged. Furthermore, the current legislation makes it difficult for them to gain access to information related to marine pollution. This is because investigation methods are limited; the information systems are disjointed; and there are no regulatory provisions allowing disclosure of information. Additionally, there is a limitation that direct stakeholders, such as local residents, cannot actually participate in the decision-making process related to marine pollution due to the lack of opinion gathering procedures, government-led committees, and formal procedures. Korea’s legislation provides damage relief to victims of marine pollution in an unfair manner due to a limited range of beneficiaries, insufficient compensation, and an inadequate estimation of natural resource damage. The state has largely assumed legal responsibility for marine pollution, while the actual polluters are not held accountable or bear only secondary responsibility, resulting in an unfair distribution of blame. To overcome these limitations in Korea’s marine environment legislation, attention must be paid not only to various multilateral maritime environment agreements, such as the United Nations Convention on the Law of the Sea and the OSPAR agreement, but also to the efforts made by foreign countries, such as the United States and the United Kingdom, to address the environmental inequality of marine pollution from the environmental justice perspective contained in their marine environmental legislation. Foreign legislation promotes policies aimed at reducing the risk of marine pollution by categorizing its causes from a distributive justice perspective and establishing the precautionary principle and the polluter-pays principle. These laws also assess the value of marine ecosystem services in various ways based on scientific data and charge polluters with costs of damage according to the intensity of use and harm to the marine ecosystem, thereby fairly distributing the conveniences and benefits to the marine environment. In terms of procedural justice, it necessitates notification, information distribution, and consultation, along with surveillance or monitoring in connection with marine environmental impact assessments, so that different types of information about marine pollution can be provided to the affected countries or the public. Specifically, the public has the opportunity to participate in environmental impact assessment procedures by submitting opinions. Corrective justice stipulates that, under the polluter-pays principle causing pollution, the perpetrator of marine pollution must compensate for the damage to natural resources in addition to the victim’s injuries. The principle of common but differentiated responsibilities holds that all nations are responsible for the consequences of contamination of the marine environment, but nations that directly cause pollution must enact legislation or implement policies on restoration. Given the limitations of domestic law and the implications of international law discussed above, it is necessary to strengthen judicial review through a legal interpretative approach and improve government marine policy through a legislative approach in order to implement environmental justice in Korean marine environmental law. In the case of a legal interpretation approach, environmental rights must be interpreted as specific judicial rights from the perspective of distributive justice or strictly examined based on the principle of proportionality for equal rights. A procedural justice perspective requires a more rigorous examination of dispositions containing substantive and procedural flaws in environmental impact assessments, an expansion of the scope of disclosable information related to marine pollution, and a limited interpretation of non-disclosable information, thus strengthening victims’ access to information. Additionally, for the purpose of corrective justice, it is necessary to broaden the scope of plaintiff eligibility for marine pollution damage litigation in order to enhance the possibility of victim compensation. Moreover, the damage and value of the marine environment must be carefully assessed to broaden the scope of pollution-causing factors, so that responsibility can be distributed practically. Next, in terms of a legislative approach, reorganizing the marine environment financial system from a distributive justice perspective is necessary to reflect the cost of the benefits. At the same time, the precautionary principle should be applied to evaluating and managing the risk of marine pollution. Further, regarding the procedural justice perspective, the overall information system must be improved to ensure access to information related to marine pollution by enhancing the marine environment investigation and information systems and advancing the Marine Environmental Impact Assessment Information Support Systems. It is also important that the system be reorganized to allow local residents to participate in the decision-making process on marine pollution management by establishing procedures for collecting opinions from local residents, reorganizing committee members, and expanding participation in marine environmental impact assessments. Finally, to achieve corrective justice, marine polluters should be held accountable for restoration in light of the estimated damage to the marine environment, such as through legal mandates. Additionally, instituting class or collective action against marine pollution damage is imperative to ensure that marine pollution victims receive timely and adequate damage compensation, both in public and private law.