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張孝相 명지대학교 1973 明大論文集 Vol.6 No.-
The most pressing issue regarding the law of the sea is the need to achieve agreement on the breadth of the territorial sea. The Geneva Conferences on the Law of the Sea of 1958 and 1960 failed to agree on the breadth. Since 1960, support has grown for claims to extend it. Nine Latin American countries have gone so far as to extend the unilateral claims to a 200-mile territorial sea to protect their fishing rights. The 200-mile claims of the Latin American states are likely to be endorsed by a number of other states in similar situations. It is demonstrated throughout this article that the most influential single factor in the attempts on the part of “have-not” states to extend the limits of territorial seas is their interest in coastal fisheries. The coastal states interests are the foremost of several elements which have interacted to influence the course and pattern of the boundaries and the regime of the international law of the sea. A divergence may be discerned in state practice on the breadth of the territorial sea. Reference is therefore made to relevant precedents and practices with a view to singling out from a mass of unilateral practices anarchically applied those which corresponds to the rules of law. This analytical description indicates that the twelve-mile territorial seas have now in effect, though not yet in form, become the generally accepted norm. It is clear that the negotiating positions of various states are now substantially closer together than their juridical positions. Among the parameters of a possible eventual agreement at the 1973 Conference on the Law of the Sea is a 12-mile territorial sea.
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張孝相 명지대학교 1971 明大論文集 Vol.4 No.-
A new environment of golden promise looms on the distant horizon and it is not governed by any clear, compelling law. The determination of boundaries between the continental shelves of adjacent states gives rise to the most difficult problems and to some major disputes. This analytical description has been prompted by the claim laid by Japan to the whole of the "Area 7" and part of "Area 5," declared by our Government to be the continental shelf appertaining to this peninsula. This paper addresses itself-by an analysis of Article 6 of the Convention on the Continental Shelf and the judgment by the International Court of Justice in the North Sea Continental Shelf Cases-to refuting every misguided rhetoric and argument advanced by Japan. Two points do call for comment. First, the so-called equidistance principle may not be held applicable in the submarine areas. Furthermore, the principle is not "an inescapable a priori accompaniment of basic continental shelf doctrine." Second, the Japanese claim may not be justified by Torishima and Danzogundo islands. For the purpose of drawing a boundary, islands should be treated on their merits, very small islands or sand banks being considered as having no continental shelf but only an appropriate territorial sea. In the delimitation of continental shelf boundaries due regard must be had for the fact that the submarine areas are a prolongation or continuation of the territory, an extension of it under thesea. Among the matters dealt with in this paper, in greater or lesser degree, are recent developments abroad regarding the continental shelf, its outer limit embodied in the criterion of exploitability, and the regime that is to govern all the seabed beyond national jurisdiction. The over-all legal issues may simply be stated: What principles and rules of international law are applicable to the delimitations between the States of the areas of the continental shelf? How far do and should the exclusive rights of the coastal state extend? And what legal rime should govern exploitation beyond the limits of national jurisdiction?
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張孝相 명지대학교 1975 明大論文集 Vol.8 No.-
The continuing, largely pessimistic, public discussion on the value of the United Nations so often dwells upon what the Organization cannot do. It has been possible, however, for the U.N. to play with considerable success a somewhat more restricted role of peace-keeping operations, as distinct from enforcement action. The successes that the U.N. has had with voluntary peace-keeping do not, of course, compensate for the fact that Article 42 has become a dead letter. The U.N., however, remains useful as a "container" if not as an authoritative "resolver", as was originally anticipated in the juristic blueprint of the Charter. The text of the Charter gives a quite misleading picture of the U.N. as it is today, especially with respect to the working of the Organization in the maintenance of international peace and security. The term "peace-keeping" does not appear in the Charter. The development of the idea of peace-keeping forces has so far been pragmatic. U.N. peace-keeping now seems to be firmly established as one of the processes to which states can resort. The essential function of U.N. peace-keeping is far more political than military. It is a military presence auxiliary to political action, designed to hold the line for peaceful adjustment by imposing restraints on the will to resume fighting. Peace-keeping function is an extension of political action to contain conflict and set the stage for peaceful settlement. Many questions arise with respect to authorization, organization, direction and financing of peace-keeping operations. To date, the Special Committee on Peace-keeping Operations has not been able to come up with any generally acceptible answers to the questions of the authority to establish and the method of financing these operations. This is why reference has been made of practices of States and of their implication for the future. There is also an urgent need to improve the procedural and physical machinery for developing peace-keeping techniques and the operational skills required in their practical application. Special attention is therefore drawn to deadlocked talks regarding peace-keeping guidelines. Peace-keeping in the forseaable future will probably have to be improvised an on ad hoc basis, though the know-how, procedures, and personnel could be strengthened. Looking ahead, the future of peace-keeping will be greatly influenced by the extent to which the Communist states are willing to commit themselves to responsible participation in the operations. In closing, it may be added that the measure of success that the U.N. has achieved in discouraging and controlling the use of armed force has not been accompanied by equal success in bringing about accommodation of the conflicting interests. The essence of peace-keeping is not only to separate the disputants and keeps them apart, but ultimately to bring them together.
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