[발제 Ⅲ] 한국에서 국제인도법상의 중요 이슈

이장희(Jang-Hie Lee) 대한적십자사 인도법연구소 2011 人道法論叢 Vol.- No.31

통일후 조중국경조약의 국가승계문제

이장희(LEE, Jang-Hie) 백산학회 2011 白山學報 Vol.- No.91

This study treats State Succession of the Boundary convention between the North Korea & China(1962) after the “Unified Korea” regarding the Gando Convention between Japan-China in 1909. The Gando convention is legally based on the 1905 Japan-Korea Protectorate Treaty. This treaty(1905) has never been ratified by Korea Emperor Gojong. Furthermore, the Japanese officials used military coercion against Korean cabinet members to forcibly conclude the treaty. This 1905 Japan-Korea protectorate treaty is null and void. So the Gando convention is also null and void. Therefore, China’s territorial sovereignty over the Gando has no legal title at all. In the perspective of international law, the Gando territorial dispute still remains unresolved. This study focuses on the relationship between positive international law and the territorial issue of Gando after the “Unified Korea”. Despite that the Vienna Convention on Succession of States in Respect of Treaties has been concluded in 1978 and has become effective since in 1996, only few states remain as the members of the treaty. The 1978 treaty is not a general international law. Furthermore, China, South Korea and North Korea did not sign this treaty. It is said that the 1978 treaty would be a kind of codification of state practice, but there were, in the meantime, many state practices inconsistent with the treaty. In case of state succession issues, the successor state continuously creates new state practices through concluding new conventions with the concerned states. So, state practices are very inconsistent. And analyses of state practices show that the state succession to treaty varies according to two types of changes: the change of the territorial sovereignty and the change in patterns of treaties which directly relate to the state succession. In the case of the border treaties, which are dispositive treaties, successor state tends to prevail regardless of the type of the change in the territorial sovereignty. Article 11 of the 1978 Vienna Convention provides for the principle of continuity for a boundary established by a treaty. However, this principle should not be applied simply to all the boundary conventions. Article 11 of the Boundary Convention on succession of States in Respect of Treaties(1978) should not be applied to the 1962 and 1964 agreements between China and North Korea. Herein, special historical charters regarding the Korean division and the Japanese colonial times should be taken into consideration. Article 12 of German unification treaty does not accept the principle of automatic succession regarding treaties of predecessor state(East Germany). In conclusion, article 11 of the 1978 convention (the principle of continuity) should not be applied automatically to the boundary treaty in 1962 and the boundary protocol in 1964 between North Korea and China. They will be disputed by the Unified Korea regarding state succession in the future. The case of article 12 of German unification treaty would be a good example in resolving this problem. Therefore, regarding the boundary treaties of North Korea and China, intensive consultations between the “Unified Korea” and China shall precede before reaching to a conclusion on this matter.

집속탄금지협약의 성립배경과 국제인도법적 문제

이장희 ( Lee Jang-hie ) 한국외국어대학교 법학연구소 2011 외법논집 Vol.35 No.1

This article composed of five parts: historical background on adopting CCM, the basic obligations of CCM, Concepts of International humanitarian Law, the Legal analysis of CCM under International humanitarian Law and Korean Response towards CCM. Cluster munitions have been a persistent humanitarian problem for decades. Although used in only a few dozen armed conflicts over the last forty years, these weapons have killed and injured large numbers of civilians in war-affected countries. Cluster munitions have unique characteristics that make them a grave danger to civilian men, women and children. At the time they are used during conflict, cluster munitions can disperse explosive submunitions (bomblets) over very wide areas, potentially causing very high civilian casualties when especially in populated areas. In addition, a high portion of submunitions fail to explode as intended, leaving a long-term legacy of explosive contamination. Many thousands of civilian men, women and children have been tragically killed and injured by coming into contact with unexploded submunitions. On 16 February 2010 Burkina Faso became the 30th State to deposit its instrument of ratification for the Convention. On 1 August 2010, the Convention will become binding for those States that have already ratified it. It will become binding for other States as and when they ratify it. By adopting and signing the Convention, States have taken a major step towards ending the death, injury and suffering caused by these weapons. States must continue to adhere to the Convention, and all governments, armed forces and armed groups in particular those who possess - and stockpile cluster munitions - must fully implement its provisions. Only then can the international community claim success against the dangers posed by these weapons. Cluster munitions in Lebanon are set to haunt civilians for years to come Lebanon is one of the 107 States that signed the Convention on Cluster Munitions, which entered into force on 1 August 2010. Four years after the five-week conflict in Lebanon between Israel and Hezbollah, unexploded cluster munitions continue to kill and maim civilians. Israel used cluster munitions containing up to four million individual bomblets, of which hundreds of thousands failed to explode on impact. These devices contaminated an area of 43 square kilometres in and around the villages of southern Lebanon. In 2003 Protocol V/CCW(Convention on Conventional Weapons )on explosive remnants of war for ending the death, injury and suffering caused by cluster munition has been adopted. However Protocol V had many problems to tackle the above suffering since it was not enough to meet the needs of victims from cluster munitions. In this context a new independent convention is needed outside the framework of CCW, That is Oslo Process just as Ottawa Convention Process. The Convention on Cluster Munitions is a new treaty outside the framework of CCW to end the suffering caused by cluster munitions. The Convention is an important addition to international humanitarian law. It establishes new rules to ensure that cluster munitions are no longer used and that the existing humanitarian problems associated with these weapons are addressed. Importantly, the Convention has specific provisions which aim to meet the needs of victims and affected communities. Main provisons of CCM: 1)The basic obligations of the convention include : A time table to destroy stockpiles; A framework for clearance; Robust provisions on victim assistance. 2)Measures to promote implementation and ensure compliance: states are required to report annually to the UN Secretary-General on a range of matters including the types and numbers of cluster munitions destroyed, the size and location of cluster munition contaminated areas, the status and progress of clearenance programs, the measures taken to provide risk education and warnings, the status of victim assistance programs and the national measures taken to prevent and suppress violations of the convention. In addition, Meetings of States Parties will be held regularly to review the status and operation the Convention. 3)Relations with States not Party to the convention: According to General Principles on the use of weapons(Rule 70), the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited. In its advisory opinion, International Court of Justice(ICJ) affirmed that the prohibition of means methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering was one of the "cardinal principles" of International humanitarian law. This rule has been Customary international humanitarian law. Cluster munitions obviously cause superfluous injury or unnecessary suffering to civilian men, women and children, against the principle of military necessity and the principle of humanity. It means not only violations of CCM but also infringes upon Customary international humanitarian law. The Korean Peninsula is not a safety zone from cluster munitions. South Korea is the second largest exporter of cluster munitions to foreign countries such as Pakistan. Besides, Korea is divided into the South and the north, creating special security situations, on the Korean peninsula. Yet we need the wisdom to turn this worst situations into a good opportunity for bargaining of conventional arms reduction between the two Koreas by making a suggestion of simultaneous accession to the CCM.

한미군사관계의 국제법적 조명

李長凞(Lee Jang Hie) 대한국제법학회 1996 國際法學會論叢 Vol.41 No.2

발제강연 2 : 한반도에서 국제인도법상 현안문제

이장희(Jang-Hie Lee) 大韓赤十字社 人道法硏究所 2009 人道法論叢 Vol.- No.29

노르웨이-영국의 직선기선 분쟁(1951/Fisheries Case)이 영유권 문제에 주는 국제법적 함의

이장희 ( Lee Jang-hie ) 한국외국어대학교 법학연구소 2007 외법논집 Vol.25 No.-

This article treats legal analysis & evaluations of Fisheries case( United Kingdom v. Norway) (ICJ Judgement of December 18th 1951). This article consists of Five parts: Introduction, Facts Findings, Decisions, Legal Issues and Legal Implications for the Territorial Sovereignty Issues The United Kingdom filed with the ICJ an Application in which it challenges the validity of the Norwegian Decree of July 12th,1935, which delimited the Norwegian fishery zones off a part of the Norwegian coast. It considers that the delimitation so effected is contrary to the precepts of international law and asks the Court to state the principles of international law applicable for defining the base-lines by reference to which the Norwegian Government is entitled to limit its fisheries zones. The United kingdom Government pointed out that the law of June 2nd,1906, which prohibited fishing by foreigners ,merely forbad fishing in “Norwegian territorial waters”, and it deduces from the very general character of this reference that no definite system existed. The Court is unable to accept this interpretation, as the object of the law was to renew the prohibition against fishing and not to undertake a precise delimitation of the territorial sea. In her Counter-Memorial and Rejoinder, and in her arguments in Court, Norway contended that the limitation of these fisheries zones established in the 1935 Decree was not in conflict with the percepts international law and that it corresponded, in any event, to historic rights long possessed by her and which she indicted. In the light of these considerations and in the absence of convincing evidence to the contrary, the Court is bound to hold that the Norwegian authorities applied their system of delimitation consistently and uninterruptedly from 1869 until the time when the dispute arose. From the standpoint of international law, it is now necessary to consider whether of the Norwegian system encountered any opposition from foreign States. Norway has been in a position to argue without any contradiction that neither the promulgation of her delimitation Decrees in 1869 and in 1889, nor their application of a well-defined and uniform system, it is indeed this system itself which would reap the benefit of general toleration, the basis of an historical consideration which would make it enforceable as against all States, The general toleration of foreign States with regard to the Norwegian practice is unchallenged fact. For a period of more time than sixty years the United Kingdom Government itself in non way contested it. The Court is thus led to conclude that the method of straight lines, established in the Norwegian system, was imposed by the peculiar geography of the Norwegian coast ; that even before the dispute arose ,this method had been consolidated by a constant and sufficiently long practice, in the face of which the attitude of government bears witness to the fact that they did not consider it to be contrary to international law. The above Judgement of the Court(1951) is of great importance, not only to the Parties to the case, but also to territorial sovereignty issues in the context of “acquiescence” or ''implicit admission, in international law.

북한의 국제법 일반에 대한 동향과 전망

이장희(Lee Jang Hie) 북한법연구회 2004 북한법연구 Vol.7 No.-

본고는 북한의 일반 국제법 및 개별 국제법 사항에 대한 입장과 향후 변화전망 그리고 국제법분야에서 남북한 협력에 대해 다음과 같은 점을 지적하고자한다. 이 연구는 19기년 법학사전, 1988년 「현대국제법연구2002년 「국제법사전』및 김일성종합 대학학보 수록 학술 논문 그리고 다양한 학술논문 등을 상호 비교 연구하였다. • 국제법 일반에 대하여, 북한은 국제법 존재자체에 대해서 부인하지는 않는다. 북한은 국제법을 체계적으로 보지 않고 단편적으로 접근하고 있으며, 명시적으로 합의한 것만 국제법으로 인정하려고 하기 때문에 국제관습법에 대해서 소극적이다. 그리고 북한도 사회주의 국가의 일반성향 처럼 국제법을 정책수단시 하는 측면이 매우 농후하다. • 국제법 개별사항에 대한 입장으로는, 1) 북한 국제법은「주체의 국제법 리론」과 「논문의 서술방식」의 도그마적 특성으로 인해 국제법의 보편성을 확보하는 데 많은 어려움이 있다. 2002년 r국제법사전」에서 많이 개선되긴 해도 이러한 도그마가 강하게 아직도 지배하고 있다. 2) 국제법의 정의에서는 종전의「국가간의 법』에 치중,r국제사회의 법」이라는 현대적 흐름에는 아직도 미흡하다고 본다. 3) 국제법주체에서 주로 독립성을 갖춘 주권국가를 지나치게 강조하포 국제기구에 대한 국제법의 주체성 인정에는 소극적이다. 민족과 민족해방단체를 국제법의 주체로 인정하고 있다. 4) 국제법의 法源에서는 조약을 중시하고^ 국제관습법에 대해서는 매우 소극적이다. 북한은 명시적으로 합의한 것은 인정하지만,합의하지 않는 것에 대해서는 소극적이다. • 국제법에 대한 전반적 평가와 전망을 해보면, 1) 국제적 문제에 대해 국제법에 기초하여 주장을 펴는 사례가 증가하고 있고> 충실하게 응하려고 노력하고 있다. 2) 이념성,민족주의적 색체(주체사상과 김일성교시)에서 점차 탈피하여 합리적이고 객관적인 국제규범에 근거한 주장을 펴고 있다. 3) 군사적 정치적 이념적 문제에 대한 국제법 논문보다 대외경제 개방과 관련하여 1990년 중반이후 국제중재, 공업소유권, 국제환경,국제기구, 국제사법 등 에 관한 논문이 점차적으로 많아지고 있다. 4)북한은 국가이익의 견지에서 점차적으로 그리고 선별적으로 국제법의 보편성을 수용하는 방향으로 전환되어 가고 있은 과정이다. 5) 남북한은 국제법분야에 상호 협력을 통해 민족공동의 이익을 도모할 수 있는 이유가 매우 많다.(일제과거청산,간도 영유권문제 등) 6) 남북한 국제적 협력을 도모하기 위해 각자 체결한 양자조약 및 다자조약의 현황에 대한 정보 공유 및 협력은 매우 필요하다고 본다. This article treats with The North Korea s Attitude toward General International Law, International Legal special Issues,Cooperation possibility in international legal current issues between The South and North Korcas & Its Prospective. This study bases on a comparative research of three original materials of the North Korea : Legal Dictionary(1971)M, A Study to the Modem International Law(1988)M, and International Law Dictionary(2002)M which were published by the North Korea. The North Korea does nt ignore the existence of International Law itself. She does not consider International Law as systematically. Her approach to international Law is very fragmentary. She recognizes only international norms with which she agrees. As a result she is very negative towards International customary law. She takes use of intemtaonal law as political tool such as former other socialistic countries. Her international kw had very difficulties for keeping the universality of International law because of its dogmatic & ideological character in former times. Nowadays her international law gradually approaches to the universal international law in academic writings and international legal practices. She tries to ai^ue very often her international position on the base of international law.

國際人權規約上 自決權에 관한 硏究

李長熙(Jang-Hie Lee) 대한국제법학회 1980 國際法學會論叢 Vol.25 No.1·2

안중근 재판에 대한 국제법적 평가

이장희 ( Lee Jang-hie ) 한국외국어대학교 법학연구소 2009 외법논집 Vol.33 No.2

This article treats Ahn Jung Guen's Judicial Trial from international legal points of views. The patriotic deed of Martyr Ahn Jung-Guen is neither a simple terrorism, nor the civil war. His patriotic deed should not be underestimated in world history & in international law. His patriotic deed comes from lawful armed conflicts on a right of self-determination of Korean patriotic soldier against the Japanese Imperialism & colonialism since 1904. His assassinated Ito Hirobumi because Ito was a terrible obstacle for restoration of Korean sovereignty & for the oriental peace. His patriotic deed is due to the oriental peace & the public interests. Ahn Jung-Guen, the prominent Korean independence fighter was executed in 1910 for having assassinated Ito Hirobumi. His trial was unfair in many aspects because Korean Judicial Power was seized by the Japanese imperialism. He asserted Japan's occupation and aggression at that time was null and void including various kinds of forcibly-contracted agreements, treaties and consequences of such accords. This means independence fighters have the properness, morality and legitimacy for their struggle against the Japanese imperialism during the colonial period. Some legal issues from international law points of views should be pointed out regarding for his judicial trial as follows: 1) The patriotic deed of Martyr Ahn Jung-Guen is neither a simple terrorism, nor the civil war. 2) He had the right of belligerency at war time. He must have get a humanitarian treatment as prisoners of war in international humanitarian law. 3) His right of defense in the court was terribly limited. He had no access to Korean advocate. Therefore his trial was unfair. 4) The court made a wrong application of the law to Ahn's trial. The court applied Japanese criminal law. not international humanitarian law or Korean criminal law to his trial.

한-미 주둔군지위협정의 문제점과 개정방향

이장희(Jang-Hie LEE),장주영(Chu-Young CHANG),최승환(Seung-Hwan CHOI) 대한국제법학회 2001 國際法學會論叢 Vol.46 No.2