추적권 행사 때 일어나는 제문제* ― 무기사용과 관련하여 ― = To What Extent is the Use of Force Admissible in the Law Enforcement on the Sea?

다국어 초록 (Multilingual Abstract)

The present article is to inquire into the extent which in permissible in the use of force on the sea by the coastal state law enforcement agency. In so doing, the present article in divided into 5 chapters. Introduction, is the use of force permissible in the exercise of hot pursuit?, the extent and level of the force, case studies, and conclusion and proposal.
The International Tribunal for the Law of the Sea, in the M/V “Saiga” (No.2) case, has held as follows. In considering the force used by Guinea in the arrest of the Saiga, the Tribunal must take into account the circumstances of the arrest in the context of the applicable rules of international law. Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law. Therefore, it is submitted that in the use of force, force must be limited in the ambit of the principles of reasonability and necessity.

참고문헌 (Reference)

1 김찬규, "흑해에서의 미․소 군함의 접촉사건과 국제법"

2 김찬규, "중국의 영해법과 기선" 17-35, 1994

3 중앙일보 조인스닷컴, "독도해역 대규모 해경 기동훈련"

4 Yoram Dinstein, "War"

5 J. N. Singh, "Use of Force Under International Law"

6 Alfrecht Randelzhofer, "Use of Force"

7 J. Ashley Roach, "United States Responses to Excessive Maritime Claims"

8 See Nicholas M. Poulantzas, "The Right of Hot Pursuit in International Law"

9 Myres S. McDougal, "The Public Order of the Oceans : A Contemporary Internationnal Law of the Sea"

10 Malcolm D. Evans, "The Law of the Sea"

11 C. John Colombos, "The International Law of the Sea"

12 G. G. Fitzmaurice, "The Case of the I'm Alone"

13 C. C. Hyde, "The Adjustment of the I'm Alone Case"

14 "See text in Law of the Sea Bulletin"

15 M/V, "SAIGA, Saint Vincent and the Grenadines v. Guinea" Judgment, ITLOS Reports 61-, 1999

16 Tore Henriksen, "Politics in Ocean Governance : The UN Fish Stocks Agreement and Regional Fisheries Management Regimes"

17 Military, "Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)" Merits, Judgment, Ⅰ. C. J. Reports 103-, 1986

18 Robert Jennings, "Oppenheim's International Law"

19 Rosemary Gail Rayfuse, "Non-Flag State Enforcement in High Seas Fisheries (2004), p.355. For further see David Anderson, Freedoms of the High Seas in the Modern Law of the Sea"

20 See Jean-Marie Henckaerts, "Mass Expulsion in Modern International Law and Practice"

21 Gerhard von Glahn, "Law Among Nations : An Introduction to Public International Law"

22 Ian Brownlie, "International Law and the Use of Force by States"

23 Antonio Cassese, "International Law"

24 Malcolm N. Shaw, "International Law"

25 J. G. Merrills, "International Dispute Settlement"

26 J. W. Carner, "Hot Pursuit, Illegal Sinking of Vessel on the High Seas - The I'm Alone Case"

27 See Peter Seidel, "Encyclopedia of Public International Law"

28 "Encyclopedia of Public International Law"

29 bid, "Doctrine of Hot Pursuit : A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices"

30 Peter Malanczuk, "Countermeasures and Self-Defence as Circumstances Precluding Wrongfulness in the International Law Commission's Draft Articles on State Responsibility , United Nation's Codification of State Responsibility"

31 "Commentary (1) (ⅲ) to Article 47 of the Draft Articles on the Law of the Sea, reproduced in Arthur Watts"

32 See Zou Keyuan, "China's Marine Legal System and the Law of the Sea"

33 D. J. Harris, "Cases and Materials on International Law"

34 Albrecht Randelzhofer, "Article 2 (4), in The Charter of the United Nations : A Commentary" 118-, 2002