엠/브이 사이가(M/V "Saiga")호 사건 : 신속한 석방절차 사건 Prompt Release 1997년 국제해양법재판소 판결 Judgment of Year 1997 of the International Tribunal for the Law of the sea

홍성근 한국외국어대학교 외국학종합연구센터 법학연구소 2004 외법논집 Vol.16 No.-

This case, M/V "Saiga", is the first case before the International Tribunal for the Law of the Sea after the adoption of the Rules of the Tribunal and its inauguration. This case was concerned with the arrest off the coast of West Africa by Guinea of the oil tanker M/V "Saiga" flying the flag of Saint Vincent and the Grenadines. The arrest took place on the 28 October 1997. Within ten days of the arrest there had been no agreement between the parties to go before any other court. The application for release was then filed with the Tribunal by Saint Vincent and the Grenadines on 13 November. The application of Saint Vincent and the Grenadines was based on the article 292 of the United Nations Convention on the Law of the Sea related to the prompt release of vessels and crews. Saint Vincent and the Grenadines requested the Tribunal to order the prompt release of the "M/V Saiga", its cargo, and crew detained in Conakry, Guinea. Guinea claimed that the M/V "Saiga" was engaged in smuggling activities off its coast when arrested. The arrest was claimed to be in the exercise of the right of hot pursuit. Guinea also insisted that the Tribunal should have no jurisdiction in the matter and that the claim should be inadmissible. In view of the urgency attached to these proceedings and the humanitarian considerations for the crew, the Tribunal had to comply with the United Nations Convention on the Law of the Sea and the Rules of the Tribunal. The whole procedures consisted of written and oral proceedings before the Tribunal took three weeks. The Tribunal with the full bench of 21 judges delivered its judgment and ordered the prompt release of the oil tanker M/V "Saiga" and its crew from detention in Conakry, Guinea. The judgment was unanimous as to the Tribunal' having jurisdiction, but divided into 12 to 9 on the question of the release. In addition to the amount of gasoil discharged from the M/V Saiga, Saint Vincent and the Grenadines are to deposit the amount of 400.000 United States Dollars as a security for the release.

제2차 엠/브이 사이가(M/V "Saiga")호 사건 : 국제해양법재판소의 1998년 잠정조치 명령 및 1999년 본안 판결 Order of Provisional Measures(1998) and Judgment of Merits(1999) of ITLOS

홍성근 한국외국어대학교 외국학종합연구센터 법학연구소 2004 외법논집 Vol.17 No.-

On 13 January 1998, the Government of Saint Vincent and the Grenadines(St. Vincent) filed a request for the prescription of provisional measures concerning the arrest and detention of the oiltanker M/V "Saiga" and its crew on 28 October 1997 by the customs authorities of Guinea with the Registrar of the International Tribunal for the Law of the Sea(the Tribunal). The request was for Guinea not to interfere with the freedom of navigation and related rights of St. Vincent. It further requested that Guinea immediately comply with the judgment of the Tribunal of 4 December 1997, in the M/V "Saiga" case. The request was based on article 290 of the United Nations Convention on the Law of the Sea(the Convention). Article 290 of the Convention provides that provisional measures may be prescribed by a court or a tribunal if it considers that certain requirements have been met, namely that prima facie the tribunal which is to be constituted would have jurisdiction and the urgency of the situation so requires. On 11 March 1998, the Tribunal delivered its order on the request for the prescription of provisional measures in the case between St. Vincent and Guinea. The Tribunal's decision was unanimous on all measures. In the meanwhile on 22 December 1997, the Government of St. Vincent notified Guinea that it was submitting the dispute in respect of the M/V "SAIGA" to arbitration. Then by Agreement between the parties dated 20 February 1998 (1998 Agreement), the arbitral proceedings instituted by St. Vincent were transferred to the Tribunal. The 1998 Agreement between the Parties provides that the written and oral proceedings before the Tribunal shall comprise a single phase dealing with all aspects of the merits, including damages and costs, and the objection as to jurisdiction raised by Guinea. By the order of the Tribunal of 20 February 1998, the Tribunal accepted the case. The case was entered into the list of cases as "the M/V "SAIGA"(No.2) case(Saint Vincent and the Grenadines v. Guinea) ". The dispute concerns the interpretation and application of the Convention. The proceedings on the merits raised many important issues, including jurisdiction, bunkering of vessels at sea, freedom of navigation, enforcement of customs legislation, contiguous zone, right of hot pursuit, Security Council resolution 1132, damages and costs, etc. After the written and oral proceedings, on 1 July 1999 the Tribunal delivered its judgment on the merits.

船舶國籍 부여조건으로서의 眞正한 連繫와 국제사회의 대응

김인현(In-Hyeon Kim) 한국해사법학회 2006 해사법연구 Vol.18 No.1

Article 91 of UNCLOS says that ""Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship."" It can be easily found that the condition for ""genuine link"" is not manifestly stated in the article. About 50% of the vessel in the world is reportedly operated as the vessel of flag of convenience, which means that it does not have any real relationship between the vessel and the its flag. This vessel shows large ratio of accident because the government of the vessel"s flag does not exercise their function of the flag state. Some scholars allege that the definition of the genuine link in Article 91 of UNCLOS is problematic in this respect. The writer researched the historical background of the genuine link definition in this paper and concludes that international community did not reach an agrement to make the definition of the genuine link precisely in the UNCLOS because industrial nations wanted to maintain the flag of convenience vessel. The writer shows the tendency that instead of regulating the substandard vessel resulted from flag of convenience vessel by fortifying the definition of genuine link in the UNCLOS, international shipping community launched more realistic approach such as Port State Control. While the writer supports IMO"s safety initiative, he makes a proposal for revision of Article 91 of UNCLOS.

테러와의 전쟁을 위한 무력사용

張信(Shin Chang) 대한국제법학회 2005 國際法學會論叢 Vol.50 No.3

오랜기간 선제무력사용이론은 국제법학에서 논란을 제공하고 있다. 미국에 있어서 예방적 무력사용이론의 토대는 1992년 당시 조지 부시 대통령의 “국방계획지침’에서 발견되지만, 10년후 조지 W. 부시 대통령은 미국의‘국가안보전략’에서 이러한 정책을 공식화되었다. 그런데 NSS에서는 ‘선제무력행동’을 자위권의 범주에 포함시키고 있다. 국제법은 지난 수세기 동안 국가가 자위권을 행사함에 있어 일단 먼저 공격을 받아야 할 것을 요구한 것은 아니었다. 그런데 NSS에 따르면 모든 국제법학자가 동의하는 것은 아니지만, 원칙적으로 예방적 자위권은 국제법에서 허용되는 것이라고 보는 것이다. 결국 이러한 입장에서 ‘급박성’이라는 개념을 확대적용하려는 미국의 정책이 선제무력사용이론에서의 새로운 논란의 핵심이라고 할 수 있다. 그렇다면 미국에게 선제무력사용을 정당화하기 위한 방법은 어떠한 것이 있겠는가? 달리 말하면 오로지 자위권의 행사만이 미국이 원용할 수 있는 유일한 법적 근거인가? 여기서 긴급피난(긴급상태)은 원용될 수 없는가? 그래서 본 고는 국제법상 국가책임의 조각사유 중 하나인 긴급피난에 초점을 맞추고자 한다. 더 나아가 테러와의 전쟁과 긴급피난의 원용가능성을 살펴보고자 한다. 결론적으로 긴급피난은 ‘전통적’인 테러에 대하여는 적용하기 어려우나, ‘새로운’테러, 즉 대량살상무기를 갖춘 테러리즘에 대하여는 그 원용가능성을 쉽게 부인하기 어렵다고 본다. 다만 실제 적용함에는 ‘급박성’요건이 계속 논란을 가져올 수 있을 것이다. 이러한 견해에 입각하여 국제법위원회의 국가책임에 관한 규정초안(2001. 제 25조), 기타 국제사법기관의 판결, 국가실행, 국제법학자의 학설, 국제사법재판소의 관련 판결을 고찰하였다. Among the most controversial concepts in the agora of international legal minds is the theory of pre-emptive use of force. Although some argue that the seeds of the strategy of pre-emptive force may be found in the 1992 "Defense Planning Guidance" U.S. President George Bush announced. After 10 years later, it has been codified by the George W. Bush in the U.S. National Security Strategy. It perceives "acting pre-emptively" as being within the right of self-defence. For centuries international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Hence the NSS document finds that anticipatory self-defense is permissible in international law, even if not all international law scholars agree. The U.S. efforts to broaden the concept of "imminence" are the central legal issue in the new strategy of preemptive use of force. At a more practical level, it might be asked how the United States would justify a preemptive use of force where the use of force was found necessary. Put another way: Is the preemtive use of force only legally conceivable under self-defense? Or does international law already provide a more suitable excuse for the use of force in exceptional circumstances? It is suggested that a defense for the use of force might be found in the necessity excuse. So this article addresses the controversial issue of the possibility of excusing the use of force by reference to necessity. This leads to a more specific examination of use of force against terrorism and the necessity excuse. Based on this study, it is concluded that the necessity excuse is not normally available in the case of use of force against "traditional" terrorism. With regard to the "new" terrorism, including terrorism employing weapons of mass destruction, the necessity excuse may be appropriate but the issue of imminence will continue to cause problems in considering preemptive strikes. Under that direction, the main part of this Article examines the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts(2001, Art.25 Necessity), the opinions of international judicial bodies, of states, and of international legal scholars, and of International Court of Justice.