Strengthening the Law Applicable to Flags of Convenience States and Vessels against Overfishing on the High Seas

Sri Wartini 이준국제법연구원 2023 Journal of East Asia and International Law Vol.16 No.1

This paper analyzes the need to strengthen the law applicable to Flag of Convenience (FoC) States and vessels with the goal of sustaining fish stocks and combatting overfishing on the high seas. FoC States and vessels can escape law enforcement conducted by the other flag states. Due to the lack of political will of FoC States to enforce the law and obligations imposed on FoC vessels to conduct conservation on the high seas, FoC vessels instead contribute significantly to the deterioration of fish stocks on the high seas. FoC vessels overexploit these resources and engage in illegal, unreported, and unregulated (IUU) fishing, which harms the fish stocks on the high seas. The results of the study indicate that there are some legal lacunas in international legal obligations for FoC States and vessels to conserve the fish stocks on the high seas. Existing international legal instruments are ineffective in combating over-exploitation of fish stocks on the high seas by FoC vessels. Hence, strengthen the laws applicable to the FoC States and FoC vessels is urgently needed.

미국의 동아시아 진출과 동해

김하영 ( Ha Young Kim ) 고려대학교 역사연구소 (구 역사학연구회) 2012 사총 Vol.76 No.-

This study aims to look into the changing values of East Sea in the history of the United States advance to East Asia. When profit-seeking whalers advanced to East Sea in the mid-19th century, East Sea was the ground for whale hunting. In the early 20th century, the United States as a growing maritime nation did not take any distinct policy regarding East Sea. The end of the Second World War and the formation of international Cold War system after 1945 changed American interests in East Asia. Confronting with communist countries, the United States formed military alliances with Japan and South Korea. Thus East Sea got a new importance as the space for securing American strategic interests. During the Korean War, East Sea as the sea of confrontation was also utilized as transportation route as American vessels carried military materials and personnel for the conduct of war. The nature of East Sea as the sea of confrontation was clearly revealed when American intelligence ship Pueblo was captured by North Korean navy on East Sea in January 1968. In human history, oceans have been used in different ways such as the source of resources, the route for transportation, the route for the exchange of knowledge and culture, or the instrument for power. For the last one and half century, the value of East Sea to the United States changed with the changing American interests in East Asia. East Sea was the ground for realizing the interests of whalers in the 19th century. With the changing international politics and growing American involvement in East Asia in the 20th century, the United States has been using East Sea as an instrument for power projection in order to secure American strategic interests in East Asia. This position will continue with the increasing importance of East Asia for the United States.

기후변화로 인한 해수면 상승과 국제법 쟁점 연구 -소도서국가와 해양경계획정을 중심으로-

김민수(Kim MinSoo) 국제법평론회 2017 국제법평론 Vol.0 No.47

The purpose of this research is to check and identify international legal issues caused by climate change and sea level rise, such as its impact on the small island states and maritime delimitation, and is to suggest legal and policy solutions to resolve this matters. This study is presented with some analyses on the issues and the problems related with small island states and maritime delimitation. Various policy options to solve this problem are provided. The first issue to discuss is about the feasibility of adoption of Equity to offer preferential treatment to small island states and its specific condition for actualization, if possible, are reviewed afterwards, since the small island states are the most vulnerable group confronted by the rising sea level. Assuming some or all of the small island states’ territory is submerged, this study examines a problem whether if the state itself should be naturally become extinct and a method how to protect its people. Also, this research checks if the maritime jurisdiction could be maintained despite the disappearance or changes of the baseline. Also, this study deals with the effect of sea level rise on the maritime demarcation and the related issues. Especially it considers a problem whether or not the effect of maritime delimitation agreement between the states remains intact despite the changes in the baseline due to the sea level rise. It also deals with the balance of interests between the contracting parties and the non-contracting party. The maritime delimitation between the contracting parties, inevitably, has an international dimension and thus has an impact on the other states. It concludes that if the contracting parties take measures to stick to the established boundaries even though a new maritime demarcation is needed to reflect the changes of baseline stemming from the sea level rise, those measures could constitute an impingement on the rights of the third party. The study further examines the proper way of distribution of right between the coastal and non-coastal states, and reviews the role of the Third-party Dispute Settlement Body. Finally, it provides with various legal and institutional methods to resolve the problems related with the effect of sea level rise on the maritime delimitation and the related issues. As a suggestion, it suggests the appropriate measures to protect inhabitant of small island states. It also proposes the introduction of “Special Waters” including the concept of ‘waters established by Convention’ through the reinterpretation of “historical waters” and ‘buffer zone’ as a method of spatial solution, the conclusion of ‘Agreement for Implementation of UNCLOS for Sea Level Rise and Maritime Delimitation, and the generation of the international consensus through the process of the revision of the UNCLOS, and the formation of new customary international law with local customary law in the lead.

국제공역 보호를 위한 항만국 관할권

김현정(Hyun Jung Kim) 서울국제법연구원 2012 서울국제법연구 Vol.19 No.1

항만국 관할권은 주권행사지역인 자국의 항구에 자발적으로 들어온 자국 및 외국 선박에 대하여 공해 환경 보호와 관련된 국제법 규칙 위반 여부를 조사하고, 위반시 집행조치 또는 소송을 제기할 수 있는 권한을 말한다. 항만국 관할권은 해양법이 ``연안국 對 기국``이라는 기본 구도에서 탈피하고 있음을 보여준다. 즉, 국가들이 자국과 직접적인 관련이 없더라도 보편적 이익인 국제공역 보호를 위하여 행동할 필요가 있음을 자각한 것이다. 그러나 유엔해양법협약 제218조 1항이 의도한 이와 같은 혁신적 시도는 항만국이 공해상 불법 배출 선박에 대한 소송제기권한을 행사하지 않음으로써 성공하지 못하였다. 이러한 문제점을 인식하고 최근 국가들은 항만국 관할권을 재량사항에서 의무사항으로 발전시키고 있다. 국제협약과 지역수산기구는 편의항만국 발생을 방지하고, 국가들에게 공해상 불법·비보고·비규제 어업을 예방, 근절하기 위한 조치를 자국 항구에서 취할 것을 의무화하고 있다. 이로써 항만국 관할권은 공해 자원 보호를 위한 국제공동체 모든 구성원의 공동 책임이 실현되는 중요한 예로 탈바꿈하게 되었다. Port State Jurisdiction means the power to investigate and institute proceedings against a foreign ship voluntarily entering the port when the ship allegedly violates international rules on the protection of the marine environment on the high seas. The development of this concept illustrates that fundamental framework of the law of the Sea breaks gradually from the ``confrontation between the coastal State and flag State``. Therefore, it is argued that States need to more actively act for the protection of an international public domain which belongs to universal interests, regardless of their own interests. However, such an innovative attempt that Article 218 of the UN Convention on the Law of the Sea intended is not so successful or at least looks perfunctory because of the indifferent attitudes of Port States to the jurisdiction. Any Port State does not exercise this permissive jurisdiction to institute legal proceedings regarding illegal vessel discharge on the high seas. In the response to these challenges, States agree to transform the concept of jurisdiction from the right to intervene into the obligation to intervene. This effort is achieved through the Agreement on Port State Measures adopted in the FAO in 2009 and the application of Port State measures in Regional Fisheries Management Organizations. Consequently, States are legally obliged to take measures to prevent and eliminate illegal, unreported and unregulated fishing on the high seas while port of convenience practice is no longer allowed. Finally, the Port State Jurisdiction serves as one of the most meaningful examples which assume the common responsibility of the international community to protect the marine resources of the high seas.

선박기인 해양오염에 대한 국가관할권의 한계와 문제점 및 향후 발전과제

이윤철(Yun-Cheol Lee),민영훈(Young-Hun Min) 한국해사법학회 2007 해사법연구 Vol.19 No.2

  전통적인 기국등록제도는 소위 편의치적제도의 도입으로 과거 수십년 동안 현저히 약화되어 왔다. 따라서 국제사회는 항만국이나 연안국에게 자국의 관할수역 내에서 국제규칙을 준수하지 않는 선박에 대하여 관할권을 행사하도록 요구해 왔다. 이는 최근 항만국관할이 기국관할보다 훨씬 강조되게 된 계기가 되었다. 항만국 관할 및 통제는 기국관할이 안고 있는 한계와 문제점을 보충할 수 있는 것이 사실이다. 특히 유엔해양법협약에서는 타국의 공해나 배타적 경제수역에서 해양오염관련 IMO 해사협약 등의 국제규칙을 위반한 선박에 대하여 항만국으로 하여금 소송을 제기할 수 있도록 규정하고 있다. 따라서 모든 국가는 해양환경보호를 위해서 사전예방적 차원의 항만국통제뿐만 아니라 사후규제적 차원의 항만국집행관할권의 행사에도 적극적으로 동참해야 할 것이다.   Traditional flag State registers have weakened significantly in the past several decades because some States have introduced so called flags of convenience. So that, the international community has had to request port States or coastal States to exercise jurisdiction in their territorial sea or in their own waters over ships not complying with internationally accepted rules and regulations. Thus, port State jurisdiction has been stressed very much more than flag State jurisdiction in recent years. It is true that port State jurisdiction and control can effectively complement the limitation and insufficiency that flag State jurisdiction bears. In particular, the UNCLOS(United Nations Convention on the Law Of the Sea) allows port states, in certain circumstances and conditions, to institute proceedings for violations of international standards established through competent international organizations such as IMO on the high seas and in the Exclusive Economic Zones of other States.<BR>  This paper aims at studying the legal regime for the control of marine pollution from vessels under the UNCLOS and proposes some considerations for the improvement of the regime.

20세기 초 해권론의 수용과 중국 국민국가 - 손중산(孫中山)의 인식 사례를 중심으로

왕중침(Wang, Zhong-Chen) 동북아시아문화학회 2020 동북아 문화연구 Vol.1 No.63

This study inquired into the role of the sea in the process of transformation of the view of the world, which occurred by the rupture of the tribute system and penetration into the Elements of the International Law system of the treaty system, from “Sinocentrism” to “Nation-State” of the modern system, and clarified the correlation with propagation of the notion of “Sea Power” in particular. In the change of perception regarding the international relations, the greatest attributes can be found in the diverse maritime disputes happened in many sea areas. During this process, the revolutionary group aiming at building a modern nation-state in China required a new form of view of the world. Various incidents and diplomatic disputes that had been slowing shaking the system of the late Qing Dynasty were closely related to the maritime disputes as in the cases of the Taiwan Expedition or the Ganghwa Island incident. In effect, most of incidents that led to changes in international relations during this period corresponded to international disputes arisen in many sea areas. The concept of territory of a modern nation-state including the land and the ocean awoke the importance of the sea in them. From the perspective of China, they started to realize, in a natural manner, that varied rights and interests that they lose the sea areas are connected to the national existence. In particular, the intellectuals began to recognize that the basic role of a state consists in keeping and controlling the sea and waters with autonomy, and exercising sovereign power even toward the sea. Based on the case of Sun Yat-sen, this study inquired into the process of which the intellectuals accepted awareness of the sea power. Sun Yat-sen had strong cognition of the importance of acquiring and exerting sea power, in other words, the sea rights to promote industrial development of the Republic of China, by exercising sovereignty based on evident recognition of the territorial waters of one’s country, and developing harbors by the coasts and rivers. The traditional Chinese society was obsessed with the tribute order among the intraregional countries focused on the inland areas. On the contrary, Sun Yat-sen from the revolutionary group was already planning the industrial development of which the foreign capital is drawn through the openness of the sea and the capital can spread into China through many harbors of each region. Historically, Sun Yat-sen is considered a leader who designed the implementation of industrialization by taking advantage of the ocean in the most active manner. Thus, the vision of Sun Yat-sen intending to transform China that fell behind in modernization into a new modern nation-state system based on the concept of a wealthy country though the sea, in other words, the openness possessed by the value of “a state with prosperous ocean” can be considered a symbol of the first modern intellectual figure capable of identifying the maritime values as the flow of wealth.

'南蠻' 및 '海南'諸國과 隋唐代 中國의 국제관계 - '冊封朝貢關係'를 중심으로

정면 동북아역사재단 2012 東北亞歷史論叢 Vol.- No.35

This article examines the Chinese tribute system from the seventh century to the tenth century in Huanan(華南, South China), which involved foreign states in the South Seas(海南諸國, Southeast Asia). The states in the Huanan region and the Southeast Asia area also communicated with Chinese states by participating in the heqin (和親,friendly relations) system or the neishu (內屬, internal obedience) system in a similar way that the political entities of other regions of ancient East Asian world did. The Chinese tribute system can be characterized as investiture-tribute relations (冊封朝貢關係), which involved the conferment of office and peerage and the tribute exchange either in the form of heqin or neishu . A summary of the findings of this article follows. First, this article reveals how Chinese people understood the states of the Huanan region and the Southeast Asia area in the Tang period. Chinese people gathered information on most of the Southeast Asian area, though that information was more or less incorrect. This article shows that, through “the maritime Silk Road,” communication between Chinese states and the states of the Southeast Asian area expanded and that Buddhism, the most common religion in Southeast and East Asia,also played a role in this process. Second, relationships between Chinese states and each of the political entities of the Huanan region and Southeast Asia in the Tang period varied. The regions of that period were called “southern barbarians” and “southwestern barbarians” or divided into jiaoneiman (徼內蠻, barbarians within the frontier fortress) and jiaowaiman (徼外蠻,barbarians beyond the frontier fortress). In general,“southern barbarians” and jiaowaiman meant the people residing in the states of today’s Southeast Asia(海南諸國) while the “southwestern barbarians”and jiaoneiman pointed to the people of the states of today’s Huanan region. “Jiao ” (徼) was a military facility similar to “se ” (塞) in the northern region. It can be speculated that historical memories of the establishment of bianjun (邊郡, frontier prefectures) were deployed in separating jiaoneiman from jiaowaiman . Third, although different names were used to identify peoples and states in the Southeast Asia and Huanan regions, there were similarities between them when it came to their diplomatic ties to Chinese states. Furthermore, the states of ancient Southeast Asia and the Huanan region were quite similar to those of ancient East Asia in terms of their diplomatic and political practices involving Chinese states, which included acts of exchanging delegations, forming an alliance,establishing administrative districts such as jimizhou (羈縻州),appointing government employees, and sending tribute to Chinese states. This article emphasizes that the relationship between Chinese states and the states in the Huanan region and part of the Southeast Asia in ancient times should be seen as a relationship between states, not as a relationship between a central government and local governments. In this way, this article argues against the claim of the People’s Republic of China, which has defined the boundary of the historic “China” based on the current borders of the People’s Republic of China. This article also argues that the history of the investiture-tribute system between ancient Chinese states and states in Southeast Asia and East Asia cannot be used to discern which ancient states near Chinese states belonged to the historic “China.” Rather, the history of the investiture-tribute relations or the investiture-tribute system shows us that the system was used to distinguish the historic “China” from the historic “non-China.”

미국의 남중국해 ‘항행의 자유 작전’과 중국의 대응이 주는 전략적 함의

김덕기 ( Kim Duk-ki ) 한국군사학회 2018 군사논단 Vol.96 No.-

The purpose of this paper is to find out the strategic implications of US Freedom of Navigation Operations(FONOPs) in the South China Sea and China’s response strategy. In recent years, the cause of military tension in the South China Sea related to US FONOPs and China’s respond strategy lies in US-China’s global hegemonic strategies stemming from hegemonic competition in the world, not merely military competition. This paper found the following conclusions. First, the United States will continue to support the Obama administration’s ‘Pivot to Asia Strategy’ and the Trump Administration’s ‘Into-Pacific Strategy’ to strengthen control in the Asia-Pacific region, including the South China Sea. Second, China will respond to the US with a ‘Strategy to Grow into a Big Country’ based on the ‘One Belt and One Road’ and Asian Infrastructure Investment Bank(AIIB) strategies that encompass all areas of politics, economy and diplomacy. Third, the United States recognized that the potential threats to sea lines of communications(SLOCs) in the South China Sea are widespread, ranging from pirates, maritime terror to emerging competitors like China, and will further strengthen the FONOPs in the region. Fourth, the ‘Sea Silk Road’ strategy based on ‘One Belt and One Road’ strategy to connect major SLOCs including the South China Sea will continue to clash with US FONOPs. Lastly, the United States is in the position that the FONOPs can be available in the EEZ of other countries. On the other hand, China has the position that it can have exclusively exercise sovereign rights and jurisdiction over EEZ except for some freedom of navigation in the high seas. This difference position between the United States and China is bound to cause conflict. In conclusion, Republic of Korea should express its position on the timely issues related to national vital interests related to US-China conflict over the FONOPs. In the South China Sea issue, even under the confrontation between the United States and China, Seoul must be able to respond with the principle without any hesitation, and we can secure our position in the long term. The ROK government should recognize that disputes arising from the FONOPS in the South China Sea can have a negative impact on our national economy and security, and should cooperate to resolve them peacefully.

남중국해 스카버러 쇼울을 둘러싼 중국과의 해양 분쟁 가열 조짐으로 인한 필리핀-미국 안보협력 강화 : 그 근원적 이해관계(Real Interests) 및 지역안보(Regional Security)에의 함의

박광섭 한국아시아학회 2013 아시아연구 Vol.16 No.2

This study was trying to find out the real interests and implications for regional security by deeply examining the Philippines-United States security cooperation strengthened in the cause of maritime dispute surrounding the Scarborough Shoal territorial issue in the South China Sea between the Philippines and China. In the results of research, the real interests on the Philippines' side were to solve the most pressing problems which should overcome an absolute lack of military power through the United States assistance, and make use of the United States as a pressure card toward China in the international society. On the other hand, the real interests on the United States' side were to have strategic decisions which should make use of the Philippines as a pivot in the process of driving 'the re-balancing strategy toward the Asia-Pacific region', and eventually restrain the power of China as a new rival in the 21st century. Meanwhile, the Scarborough Shoal territorial issue in the South China Sea has made a motive to enter a 'new honeymoon era' in the Philippines-United States relations. It has eventually formed 「the Frame of Philippines-United States vs. China」 which has four implications for the Southeast Asia and the Asia-Pacific region in large. In other words, 「the Frame of Philippines-United States vs. China」implies the possibilities: firstly, to be proliferated a 'proxy war' between the United States and China; secondly, to expand the scale and frequency of joint military exercises or military drills for themselves in the South China Sea around the Scarborough Shoal by all involved parties; thirdly, to take place internal troubles in ASEAN, which is especially able to include the probability to occur mutual frictions to emerge 'pro-American group' and 'pro-China group' inside ARF(ASEAN Regional Forum) as the only Multilateral Security Organization in the Asia-Pacific region and EAS(East Asia Summit) as Comprehensive Dialogue Channel in East Asia; and lastly, to accelerate an arms race between the United States and China in the Asia-Pacific region. 본 연구는 최근 남중국해 스카버러 쇼울 영유권 문제를 둘러싼 필리핀-중국 간의 해양 분쟁 가열 조짐으로 인해 강화된 필리핀과 미국 간의 안보협력 관계를 깊이 있게 고찰해 보고, 그 근원적 이해관계(real interests)와 지역안보(regional security)에의 함의(implications)를 찾아내고자 하는 것이었다. 연구결과, 필리핀 입장에서의 근원적 이해관계는 미국의 지원을 받아 군사력의 절대적 열세를 극복해야 하는 시급한 문제와 국제사회에서 대(對) 중국을 향한 압박카드로 미국을 활용해야 하는 문제이었으며, 미국 입장에서의 근원적 이해관계는 ‘아태지역으로의 재균형 전략’ 차원에서 필리핀을 중심거점(pivot)으로 활용할 가치가 있다는 판단과 종국적으로 21세기의 새로운 라이벌국인 중국의 세력 확장을 견제하려는 전략적 판단이었던 것으로 드러났다. 한편, 남중국해 스카버러 쇼울 영유권 분쟁문제는 필리핀과 미국 간의 관계를 ‘신밀월시대(新蜜月時代)’로 접어들게 하는 동인(motive)이 되었으며, 이는 결국 「필·미 대(對) 중국 간의 대결구도」를 형성하게 되어 동남아지역 넓게는 아태지역에 크게 네 가지의 중요한 함의를 갖게 하였다. 즉, 「필·미 대(對) 중국 간의 대결구도」양상은 첫째, 미국과 중국 간의 ‘대리전’으로 확산될 가능성을 배제하기 어렵다는 점이다. 둘째, 관련국들로 하여금 남중국해 인근해역에서 합동군사훈련을 비롯한 자체 군사훈련의 규모 및 빈도를 확대시켜 나갈 가능성이 높다는 점이다. 셋째, 아세안 회원국들 간 내부 분열이 일어날 수 있으며, 특히 아태지역의 유일한 다자안보협의체의 성격을 지닌 ARF와 동아시아의 포괄적 대화협의체의 성격을 지닌 EAS 내(內) ‘친미세력’과 ‘친중세력’을 출현시켜 상호 간 마찰이 발생할 개연성(probability)이 있다는 점이다. 마지막으로 미국과 중국이 아태지역에서 군비경쟁을 가속화시킬 가능성이 매우 크다는 점이다.

해양관할권의 확대에 대한 해양강대국과 연안국의 대립 - 영해제도의 역사와 현대적 의의를 중심으로 -

이창위 동북아역사재단 2011 東北亞歷史論叢 Vol.- No.34

Maritime powers and coastal states have long been opposed to each other over the legal status and the breadth of the territorial sea. The conflict over territorial seas was settled by the 1982 United Nations Convention of the Law of the Sea. It could be said that the territorial sea regime was developed together with the history of the law of the sea. Taking into account this background, this article deals with conflict over maritime creeping jurisdiction between maritime powers and coastal states from the historical viewpoint of the territorial sea regime as well as its modern significance. Specifically, this article examines the history of the territorial sea regime, attempts to fix the breadth of the territorial sea, and discusses conflict between maritime powers and coastal states. With regard to conflict between maritime powers and coastal states,the United Kingdom, the United States, and China are forwarded as examples. Both the United Kingdom and the United States have been traditional maritime powers for centuries, while China has been a continental power for a long time. However, China has been changing into a maritime power recently. It remains to be seen how China will alter its maritime policy. China is a significant point for observing the context of changing maritime circumstances. 이 논문은 해양강대국과 연안국의 대립과 타협이라는 관점에서 영해제도의 역사적 발전과 그에 대한 현대적 의의를 고찰한 것이다. 구체적으로, 영해제도의 성립과정 및 그 범위에 대한 갈등을 살펴보고, 이어서 국제정치적 내지 역사적 맥락에서 영미 양국과 중국의 영해제도 수용과정을 고찰하여 해양법의 현대적 의미를 평가했다. 영해제도는 해양관할권 확대의 상징으로서 해양법의 역사적 발전과 함께 정착했기 때문에 그 중요성을 간과할 수 없다.