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해협통항제도에 관한 연구

Title
해협통항제도에 관한 연구
Authors
이윤주
Issue Date
1988
Department/Major
대학원 법학과
Publisher
이화여자대학교 대학원
Degree
Doctor
Abstract
“航行의 自由(freedom of navigation)”는 人間이 船舶을 사용하여 바다를 航行하기 시작한 이래 “公海自由의 原則”의 일부로서 Rhodia 海法과 그리이스로 거슬러 올라가 國際法上에서는 가장 오래되고 널리 인정되고 있는 原則 가운데 하나이다. 그러나 海洋法의 法典化를 시도한 1958년과 1960년의 제1·2차 UN海洋法會議에서 領海範圍에 대한 合意의 실패 이후 12海里 領海 主張이 가속화되어갔다. 이에 따라 종래 公海水域에 놓여 있는 海峽들이 대부분 領海로 편입되게 되어 이들 水域에서의 “航行의 自由”가 심각한 도전을 받게 되었다. 이러한 상황하에서 第3次 UN海洋法會議가 개최되어 海洋法 全般에 걸쳐서 再檢討 作業이 이루어지게 된바 海峽通航制度에 관한 문제는 海峽使用國과 海峽沿岸國간의 상층하는 利害關係로 會議過程에서 상당한 진통을 겪었다. 결국 1982년 4월 20일 채택된 UN海洋法協約에는 1974년 제2회기에서 英國이 제안한 案에 들어있던 “通過通航(transit passage)”이라는 새로운 개념을 도입하여 “國際航行에서 사용되는 海峽(straits used for international navigation)을 그 地理的인 特性에 따라서 각각 無害通航制度와 通過通航制度를 적용하는 “二重制度(dual regie)”가 채택되었다. 그러나 아직은 同 協約이 發效된 상태는 아니며 우리나라의 경우 署名은 하였으나 批准을 남겨두고 있다. 따라서 本稿에서는 傳統國際法上에서의 海峽通航制度를 檢討하고 1982년에 새로이 채택된 UN海洋法協約上의 海峽通航制度가 탄생하기까지의 過程 및 그 制度의 內容을 分析하였다. 또한 이들 諸分析을 바탕으로 하여 우리 나라가 海峽通航制度와 관련하여 처한 立場 즉 濟州海峽과 大韓海峽등의 國際航行에 사용되는 海峽을 가진 海峽沿岸國으로서 뿐만 아니라 海運에 國家經濟를 크게 의존하고 있는 海峽使用國으로서의 立場을 분석하고 이에 따른 問題點을 살펴보고 그 對備策을 생각하여 보는데 이 論文의 目的이 있다. ; Perhaps no other subjects has been discussed at the international plane with as much enthusiasm in recent times as the law of the sea. The oceans have become the focal point of a struggle for power among nations. Yet freedom of the high seas - and in particular freedom of navigation ? is one of the oldest and most widely recognized principles of international law. For example, the Rhodian sea Codes incorporating this principle, are the earliest known maritime laws. Both the Greeks and Romans adopted them for the regulation of seaborn commerce and navigation. In antiquity and during the first half of the Middle Ages, the high seas were open for navigation to all. But since the end of the twelfth century, claims to monopolies over parts of the oceans have been made at different times by a number of states. In the thirteenth century it was generally admitted that coastal states had exclusive rights over the seas adjacent to their shores, However, it was not settled how far into the sea a state might lawfully extend its rule, and what powers it could exercise in its marginal sea or even in sea areas farther off its shores. The seventeenth century witnessed a long political and legal struggle between the adherents of the principle of freedim of the high seas(i.e., res communies, or free concurrent use by all states) and those who regarded as lawful the appropriation of vast ares of the oceans by one state. Among the distinguished writers who took part in this controversy, he two most famous were Hugo de Groot(Grotius), from the Netherlands, and John Selden, who defended the British idea of a closed Sea concept. By the of the seventeenth century, the principle of mare liberum had gained the upper hand. Since the eighteenth century, this principle ? and in particular freedom of navigation ? has been universally recognized and “on doit le tenir pour un sxiome du droit maritime international du temps de paix.” The right to freedom of navigation on the high seas is severely restricted. However, a right of access to and from the oceans, as well as free transit between their different parts, is also recognized. A glance at the atlas discloses that in many cases the necessary ‘interchanges’ are international straits. Freedom of passage through straits is of the utmost importance for the international community because it is an indispensable prerequisite to the exercise of freedom of navigation the high seas. On the other hand, since navigation near a state’s shores may be a source of danger to the security of the coastal State, the riparians strive to assure themselves a right of supervision and regulation of traffic in striats in their vicinity. Generally, no problem arises with regard to straits which are broad enough to contain a strip of high seas in their middle because navigation in this area would be free to all, in accordance with the principle which applies to the high seas. But when the strait is not wider than the territorial seas of the riparians, or when the strip of high seas within the strait is not navigable, the conflict of interests between the users and the coastal state does arise. The continuing controversy over passage through international straits is rooted in the failures of the first two United Nations Law of the Sea Conferences in 1958 and 1960 to arrive at an internationally recognized limit for the territorial sea of all coastal states. Proposals presented at the second conference is 1960 had essentially provided a choice between a six and a twelve-mile territorial sea. However none of tese proposals, including a joint U>S. ? Canadian compromise of a six-mile zone of exclusive fishing rights, obtained a two thirds majority for adoption, the U.S. ? Canadian proposal failing by one vote. None of the territoial proposals had dealt adequately with passage through international straits. A narrow territorial sea would affect the security of states adjacent to international straits. A wide territorial sea would “close” most straits used for international navigation by placing them whinin the territorial seas of the neighboring coastal states. Since 1960, moreover, the rapid increased in the number of independent states which had no part in the development of the customary law of the sea as expounded in many parts of the four conventions adopted in 1958 had brought into question the obligation of new states to follow customary rules. These new states see no legal reason to be bound by customary rules which were formulated before they come into existence. Many new states have, therefore, unilaterally enlarged the sea spaces which are subject to their jurisdiction by extending the breadth of their territorial seas. The relatively new technical as well as legal developments are likely to affect not only freedom of navigation on the high seas themselves but also passage through straits it is natural that technical impediments to navigation would make themselves more intensely felt in narrow passages. As to the impact of the extension of coastal states’ jurisdiction, it would have a twofold bearing upon straits. First, it would inevitably increase the number of straits which are entirely claimed as part of the territorial sea by the riparians and thus subject to the special straits regime. Second, it would concomitantly make freedom of navigation on the high sea even more dependent upon the right of passage through such straits. The extension of coastal state jurisdiction is absolutely intolerable to the big maritime powers, including both the United States and Soviet Union, because they want to maintain their absolute freedom of navigation and maximum manoeurvrabiltiy. Nonetheless, the major maritime states feared that reopening the issues would generate unexpected proposals and result in the loss of an imperfect but bearable regime. In the end, it was Ambassdor Pardo’s famous call for action on the seabeds in the 1967 Genral Assembly that began the movement which led eventually to a General Assembly resolution calling for the Third United Nation Conference in the Law of the Sea (UNCLOS III). The general trend in the new law of the sea described by Dupuy and Piquemal: “ …the wind of History is presently blowing away from land towards the sea, in favor of the coastal states, to the detriment of the sea wind, which is the symbol of the freedom of the sea a concept preached by the big sea powers” The only exception to this is the case of passage through the straits used for international navigation. Preparations for UNLOS III began in the late 1960s. From 1974 to 1981 the conference provided an excellent forum for virtually all the states of the world to discuss and clarify the legal regime of international straits among other items in the long agenda. From the onset of the conference, two theories on the regime of straits were presented. The maritime nations insisted on retaining freedom of navigation through the more than one hundred international straits that would be overlapped by 12-mile territorial seas. But a number of states bordering straits made it clear that they wonted the regime of innocent passage to apply to international straits. Following many years of delicate negotiations, both groups struck a compromise e in the form of “transit passage” through straits, an entirely new concept in international law. The basic problem to solve was the establishment of a satisfactory equilibrium between the particular interests of coastal states and the general interests of international maritime navigation: in other words, to ensure the security of coastal States while safeguarding international maritime navigation. In order to do this, one had, among other things, to take seriously into consideration the economic realities, as well as the scientific and technical progress achieved in recent years. Finally, there was a clear need for a settlement which would open the way to remedying the insufficiencies of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone and more specifically those in connection with the passage of warships through the above mentioned straits that serve international navigation. The purpose of this monograph is to focus attention on the straits issues arising in the law of the sea. This thesis is composed of seven chapter. Chapter I deals with an introduction, outlining the purpose category of this study. Chapter II examines the concept of straits and the legal regime of straits under traditional law. Geographically, a strait can be defined as “a narrow contraction of the sea between two territories, being of certain limited width and connecting two seas otherwise separated at least in that place by the territories in question.” Legally, however, a strait is not defined quite as easily. As is often the case in the international law of the sea, geographical definitions are contorted into complex and ambiguous legal definitions to account for the economic and political aspects which relate to their function as vital avenues of the world ’ maritime traffic. Central to a legal definition of straits, therefore, is the issue of navigation. Under traditional international law, it can be said that the legal regime of straits is an unimpeded right of innocent passage. Chapter III discusses the concept and problems of innocent passage under both traditional law and the United Nations Convention on the Law of the Sea adopted in 1982. It examines the judgement given in the Corfu Channel Case(Merits) on the position of the passage of war and merchant vessels through straits that lie in territorial waters. In so for as innocent passage through straits in concerned, the most salient characteristics of the innocent passage regime prior to the 1982 convention are as follow: - submarines must navigate on the surface; - there is no right of overflight; - the meaning of innocence is subject to different interpretations; - the coastal state has certain rights to regulate innocent passage. The 1982 Convention changes this situation by changing the meaning of innocence and the scope of the coastal state regulatory powers. The relevant provisions are Article 19, defining innocent passage; Article 21, providing the parameters of coastal state laws or regulations governing innocent passage; Article 24, defining the duties of the coastal state ; and Article 30, allowing an exception for warships. If a strait is less than 24 miles across and if the bordering state or states extend their territorial sea to 12 miles the strait is effectively closed to high seas passage. The coastal state is empowered by Article 16(1) to “take the necessary steps” (which are not defined) to prevent non-innocent passage, but Article 16(4) does not allow it to suspend, as it can in the other parts of the territorial sea, innocent passage “through straits used for international navigation” between parts of the high seas or between them and a foreign territorial sea. Chapter IV deals primarily with the groundwork of the UN Sea-Bed Committee and the debate in the Second Committee of UNCLOS III insofar as straits are concerned. It examines the main straits, proposals and the debate on them. The proposals from some of the developed maritime states conceived of a novel dual straits regime, one for transit passage and another for innocent passage. On the other hand, some developing straits states wanted to retain the traditional regime, which applies the principle of innocent passage to territorial straits. They were only prepared to clarify and redefine the concept of innocent passage. This was the period just before UNCLOS III in 1973, and the debate in Sub-Committee II of the UN Sea-Bed Committee repeatedly showed a deadlock. The two camps were suspicious of each other’s motives, and no compromise was in sight. Much was to be left to the Conference to resolve. However, the trends and direction of straits’ issues were discussed. The dual regime was tentatively incorporated into the SNT 1975. Therefore, “straits” was one of the subjects in the ICNT/Rev.1 that was regarded as fairly settled. Following many years of delicate negotiations, both groups struck a compromise in the form of “transit passage” through straits, an entirely new concept in international law. Chapter V examines the 1982 Law of the Sea Convention adopted by UNCLOS III on 30 April 1982, which has incorporated important changes with repect to the legal regime of straits. Whereas the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone had included but one article on straits, the 1982 Convention devoted an entire section to the subject under the title “Straits Used for International Navigation.” Part III of the text makes and then examines the distinction between four categories of straits. They are : 1. Straits in which passage is regulated in whole or in part by longstanding international conventions in force, specifically relating to such straits. In these areas, Part III of the Convention is preempted by the existing legal regimes that provide for freedom of navigation. 2. Straits in which there exists “ a route through the high seas, or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics”. By definition, these areas haven an equally usable corridor which is part of high seas freedom of navigation. Therefore, there is no need to apply Part III of the convention. 3. Straits which are “used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone”. With one exception, these areas will be governed by the regime of transit passage, definedas “the exercise in passage from the high seas or an exclusive economic zone to another part of the high seas or an exclusive economic zone to another part of the high seas or an exclusive economic zone”. 4. Straits which lie “between a part of the high seas of an exclusive economic zone and the territorial sea of a foreign State”. In these area, the regime of non-suspendable innocent passage in accordance with Article 45 and section 3 of Part II of the convention will apply. Since the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone also provides for non-suspendable innocent passage in the cate-gory of straits, no changes from the current law are made, aside from the clarifications in the regime of innocent passage provided by section 3 of Part II of the convention. Chapter VI gives a detailed analysis of the Republic of Korea’s position on the grime of passage through straits. It can be said that the Republic of Korea(the ROK) has special concern as a user state no less than as a bordering state. The ROK is completely surrounded by sea except as its northern border which is blocked by the armistice line. As a result, the ROK is an insular country. It is therefore impossible for the ROK to enjoy world trade without an effective merchant marine fleet and safe sea lanes of communication. On the other hand it is also encircled by three major powers of the world: Japan China and the Soviet Union. With China and the Soviet Union, it shares land borders, the island chain of Japan surroundeds it to the east and the south. All three of these neighbors have regarded the Korean peninsula as of vital strategic value to each of them. The ROK, as one of the strait states bordering two straits used for international navigation ? the Western Korea Straits (between the ROK and Japan) and the Cheju Strait (between the mainland of South and its own Cheju Island), supported the stratis states’ position for security. The matter of security is one of upmost concern for the ROK because its survival as a nation depends on it. The Western Korea Strait is 22.75 miles wide and the Cheju Strait is 12, so that an extension of the territorial sea by Japan and the ROK raises a concern about the passage through the two straits of Soviet military vessels on their way to or from Vladivostock, the base of the Soviet Pacific Fleet. In the Cheju Strait, which now falls entirely within the ROCK territorial sea. The security problems are not so serious to date, albeit potentially as volatile as in the Western Korea Strait. This latter strait has been defined as a strait used for international navigation (Article 3. Enforcement Decree). The prior-notice requirement on foreign warships and noncommercial government vessels has been compromised except in case where “the waters through which the aforesaid vessels(s) navigate in which there is no high-seas area” (Article 4. Enforcement Decree). Now a basic question remains unanswered; Is the Cheju Strait a strait used for international navigation? This question is a crucial one when the 1982 UN Law of the Sea Convention comes into force, since there is a possibility that the regime of transit passage is to be applied to straits used for international navigation between one part of the high seas or an exclusive economic zone. Geographically, maritime access to and from some northeast Asian ports requires passage through straits used for international navigatinron. To reach any of the ports facing the Sea of Japan, for example, shipping have to use one of the three straits, namely, the Soya, Tsugaru, or Korea, or four if the Eastern and the Western Channels of the Korea Strait are counted separately. This means that, in this region, sealane defense involves highly complicated and sensitive problems of straits passage as well. In the four waterways in question, either channel of the Korea Strait can be sampled out as representing a cross-section of what relates to the defense of all the sea lanes in this region. The 1982 UN Law of the Convention authorizes coastal states to claim as the outer limit of their territorial sea up to twelve natical miles and also provides for the regulation of passage by foreign vessels through straits enclosed by such territorial seas. If, therefore, both Japan and the Republic of Korea claimed the twelve natical mile limit in the Korea Straits, approximately 18.5 natical mile of the Western Channel would fall completely under their territorial sea regimes. However, if the two coastal states apply the three natical miles limit to both channels (as well as to Japan’s Ohsumi, Soya, and Tsugaru Straits), they would provide a “high seas” corridor open for foreign vessels to pass through. Elsewhere along their respective coasts, the twelve nautical mile limit would apply. Sealanes of Communication (SLOC) security has become in recent years a matter of considerable political and military concern for all the countries whose survival and security depend on the free use of the as. It is essentially a matter of the security of the high seas. Therefore, “the Law of the Territorial Sea” and “Enforcement Decree on the Law of the Territorial Sea” concerning the Western Channel of the Korea Straits and Cheju Strait” need constant review to keep them computable with ROK security in general and the security of its seaplanes in particular. This must done with the legitimate interests of other states in mind. The changes in the political, economic and sociological structure of the international society must be accompanied by changes in the law. Customary international law is a living discipline evolving continuously in the light of the new situations. New treaties must incorporate and further new trends more beneficial to the needs of the international society. Therefore, compromise of conflicting local interests will have to be made to achieve a treaty expounding a new law of the sea which safeguards not only essential local interests but in sensitive to the larger interests of the international community of states.
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