海賊行爲 豫防 및 處理에 關한 法制上 改善方案 硏究

Abstract

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

institutions.

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

cooperation.

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

other criminals.

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

community.