海賊行爲 豫防 및 處理에 關한 法制上 改善方案 硏究
- 海賊行爲 豫防 및 處理에 關한 法制上 改善方案 硏究
- Alternative Title
- A Study on the Legal Issues and Countermeasures coping with Piracy
- Issued Date
- 한국해양대학교 대학원
- Today, as the world economy becomes globalized and integrated, the
importance of maritime shipping is also growing. While maritime shipping is
central to South Korea's economy to the extent that its trade volume over
the sea takes up approximately 99.7% of the total trade, South Korea faces
increasing maritime threats such as maritime terrorism, piracy and armed
robbery. Among other maritime security issues, growing piracy and armed
robbery at sea have recently drawn attention of the international commu
-nity. Given the seriousness of the threats, the international community has
relied on the international law such as the United Nations Convention on
the Law of the Sea(UNCLOS) in order to tackle piracy as well as multi
-national anti-piracy operations based on the UN Security Council resolu
-tions. However, it has not seen tangible achievements yet partly because
of the limitations inherent in the international judicial system such as lack
of enforcing power and difficulties in international collaboration.
For South Korea, the M/V Tenyu incident in September 1998 was the
turning point that stimulates the South Korean government to establish
measures against piracy at sea. That said, the government started to realize the necessity to have a proactive and systemic approach to counter-piracy
activities for the safety of merchant vessels and crew of South Korea.
Accordingly, the government has strengthened international cooperation and
deployed the Cheonghae Unit to the Gulf of Aden every six months. A lot
of studies have been conducted on law enforcement against maritime crimes
and the establishment of maritime safety systems particularly since South
Korea experienced several problems in the process of conducting follow-up
actions after the Operation Dawn of Gulf of Aden including handling
captured pirates and legal processes. However, there has been little effort to
study specific problems derived from the lack of enforcing power of inter
-national law and limitations of international institutions as well as mea
-sures to address the problems.
This study analyzes pirate activities that have adverse effects on the Sea
Lines of Communication(SLOC). It also examines problems embedded in
international organizations, international and domestic laws related to anti
-piracy activities from the perspectives of military security and international
First, from the viewpoint of international law, it is required to redefine
the concept of piracy in the 1982 United Nations Convention on the Law of
the Sea. According to the convention, if a piracy occurred within the terri
-torial waters of a coastal state, it is not subject to international regulations
because the matter falls under the coastal state's jurisdiction. In order to
overcome this institutional limitation, there should be an agreement that
helps tackle such problem internationally. At the same time, we should have
a measure to quickly respond to maritime terrorism. Most of all, some kind
of universal jurisdiction should be established among all the states so that
any state can deploy its naval ships or government vessels and seize those
involved in terrorism in the international waters.
Second, the international community should establish an agreement that
supports punitive actions against pirates or armed robbers. Most pirates and
armed robbers exploit bad economic condition and unstable domestic
security of the states. Such state are likely to suffer from corruption within
their own governments. These conditions make it hard to prevent such illegal activities at sea. Therefore, states in the international community
must forge an agreement that each state mandatorily establish domestic
laws defining punishment for piracy and armed robbery. States also need to
work on bilateral or multilateral ways to support law enforcement activities
of other states in the region of concern through joint monitoring and close
Third, we must have a comprehensive counter-piracy strategy based on
international cooperation. For example, states may set up a foundation
through bilateral or multilateral agreement for establishing special courts
and correctional institutions that can accommodate captured pirates and
Fourth, the international community should seek a multilateral maritime
cooperation system. Given the lack of multilateral security institutions in
East Asia compared to Europe, utilizing already existing institutions may be
a good starting point. Further, we need to materialize the South Korea
-ASEAN security dialogue that President Park Geun Hye proposed at the
2013 South Korea-ASEAN Summit.
Fifth, given the fact that threats of piracy spread around the world
including the west coast of Africa and the Indian Ocean, multinational
efforts should be made to prepare for the geographic expansion of piracy.
Sixth, we need a clearer resolution at the UN. Since the UNSC resolution
1816(June 2, 2008) does not clearly define “acts of piracy and armed
robbery,” it is also unclear what measures within the boundary of
international law are allowed to take against pirates in the international
waters. In order to address fundamental problems of piracy, first of all, we
need to establish a clear definition of what constitutes piracy. Then, we
should make sure that the deployed naval forces have self-defense rights,
constabulary authority, and, if necessary, rights for preemptive attacks and
blockade on shore facilities.
From the perspective of domestic law, states should establish domestic
legal tools in a way that they are conducive to the implementation of the
international law. Since South Korea does not have domestic laws that
address the cases involving piracy, there exist many legal problems in the procedure of handling captured pirates. Therefore, South Korea should carry
out the obligation of international cooperation for combating piracy through
the revision of criminal law article 340 that deals with maritime robbery
crime and the criminal law for the harmful behaviors on vessels and
structures on the water. It also should revise legal systems for smooth
international cooperations on legal matters.
Second, a special legislature for the military activities off the coast of
Somalia is required. As the threat from piracy continues, the deployment of
the Cheonghae Unit will also continues for the time being. For the effective
anti-piracy operations, the Unit needs a special law that provides a judical
ground for commanding officers of the ships so that they are allowed to
execute criminal laws against the pirates.
Third, the South Korean government needs to manage maritime related
affairs in a more integrated and efficient manner than now. Maritime affairs
involve many governmental organizations including the Ministry of Foreign
Affairs and Trade, the Ministry of National Defense, the Ministry of Oceans
and Fisheries, the Republic of Korea Navy, and the Korea Coast Guard. We
need an organization that can oversee and manage all these works carried
out by different organizations in an integrated fashion.
Third, shipping companies should make their own preparation for the case
of hijacking including establishing specific procedures and instructions for
responding to piracy situations.
From the perspective of international organizations, efforts to address
fundamental problems in order to eradicate piracy are necessary. When
poverty is a root cause for piracy, strengthening legal measures cannot be a
practical and long-term solution. In this respect, particularly when a coastal
state does not have proper law enforcement system, provision of economic
support as well as training and equipment for law enforcement can be
arranged through international organizations. In such a manner, the inter
-national community can coordinate deployment of naval units to the scene.
Second, various regional organizations for anti-piracy operations should be
established. Such multinational organizations would help all units and forces
engaging in counter-piracy operations including coast guards and naval patrol units share the same current operations picture. The mere fact that
this kind of system exists may create deterrence against piracy.
Thirds, efforts on the part of the shipping industry are also required. The
industry should make sure that it has provided basic instructions and
training for crew members of merchant vessels so that they have proper
knowledge and equipment to protect themselves from piracy.
Fourth, some countries that suffer from piracy do not even consider it a
serious threat or major crime particularly when the pirates do harm to
international shipping, not their countries. It would be important for the
international community to share awareness about the nature of piracy.
Fifth, we should make sure the implementation of the report to the UN
Secretary General by the special advisor that proposed solutions to the
fundamental problems involved in eradicating piracy including the improve
-ment of economic and security situations in the areas of origin.
From the perspective of military institutions, first, the revision of legal
status for the Cheonghae Unit is necessary. The Cheonghae Unit should be
given proper authorities and status so that it can carry out its missions
effectively without any legal obstacles in law enforcement and the use of
force. Therefore, the government should make an effort to provide a legal
ground for the anti-piracy operations in Somalia through making a special
law for military activities.
Second, South Korea should put a lot of efforts in advancing naval forces
that can address both transnational threats such as piracy and North
Korean threats. It should also work on developing a strategy that can lead
to the expansion of the ROK navy’s role in the future.
Third, robust cooperation and coordination among different militaries must
be maintained. Tracking and patrolling activities in anti-piracy operations
often involve entering waters of other countries' jurisdiction. In this respect,
seamless cooperation among different countries would be very useful for
successful anti-piracy operations.
Fourth, there should be efforts to develop effective C2(command and
control) and informational sharing measures for the multinational anti-piracy
operations. As numerous naval forces from different countries operate in the same area, a coordination system is necessary for effective command and
control activities as well as information sharing.
Fifth, for the protection of international shipping, a naval maritime traffic
control system should be established for enhancing the effectiveness of
patrol and convoy operations by multinational naval units.
Maritime security does not depend on a single country. A vessel of any
country can be a target of piracy. For these reasons, international colla
-boration and joint efforts are the keys to protecting maritime traffics all
around the world from threats of piracy. This way, we will be able to
ensure peaceful use of the oceans by the members of the international
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