对马海峡韩国侧法律制度与实践概述［英文］
Korean Practices concerning Straits
「摘要」As known， the Korea Strait （Tsushima Strait in Japanese） is a typical Strait used for international navigation according to Article 37 of 1982 Convention connecting East China Sea with East Korea Sea （Japanese Sea in Japanese） with Tsushima Island of Japan in the middle of it and divided into Western Channel and Eastern Channel. So-called Korean Practices concerning Straits mainly focus on this Strait compared to Cheju Strait etc in the frame of Korean basic maritime practices.
「关键词」high sea corridor
The most valuable practice
The basic system of Korea maritime claims are demonstrated by its domestic laws. Article 1 of the Territorial Sea and Contiguous Zone Act of the Republic of Korea， which was promulgated on December 31st， 1977， entered into force on April 30th， 1978， and amended on December 6th， 1995， defines the outward limit of the territorial sea， “the territorial sea of the Republic of Korea shall be the area of the waters up to the outer limit of twelve nautical miles measured from the baseline. However， the breadth of the territorial sea in the specified area may be determined differently within the limit of twelve nautical miles in accordance with the Presidential Decree”。 Article 4 of the 1977 Territorial Sea Law， supra， provided that， “the boundary between the territorial sea of the Republic of Korea and that of an adjacent or opposite state， unless otherwise agreed between the states concerned， shall be the median line every point of which is equidistant from the nearest points on the baseline from which the breadth of the territorial sea of each of the two states is measured” as amended by Act No.4986， December 6th， 1995 as “the delimitation of the territorial sea and contiguous zone between the Republic of Korea and states with adjacent or opposite coasts， unless otherwise agreed to between the states concerned， shall be the median line joining every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of each of the two states is measured”。
It can be concluded that the principle adopted is 12 nautical miles according to with some exceptions， the straight baselines that the Republic of Korea has employed link basepoints of islands lying on the outer fringe of the Korean coast and on the issue of the delimitation of the territorial sea， Korea adheres to the equidistance-median rule without substantial modification in the amendment. The fundamental exception was specifically defined by the annex to the Presidential Decree No. 8994 of promulgated on April 29th， 1978， Regulation Concerning the Date if Entry into Force of the Territorial Sea Law and Other Related Matter， as the breadth of the territorial sea in the Korea Strait as 3 nautical miles. Concretely， in the Table 2 of Enforcement Decree of Territorial Sea and Contiguous Zone Act No.9162 on September 20th， 1978 amended by Presidential Decree No.13463 on September 7th， 1991， No.15133， July 31st， 1996 and No. 17803， December 18th， 2002， the outer limits of the Territorial Sea in the Korea Strait can be read as： 1）The outer line at a distance of the three nautical miles measured from the straight baselines joining， in order， Basepoint 5 （1.5 Meter Am）， Basepoint 6 （Saeng Do） and Basepoint 7 （Hong Do）； 2） The line drawn from Basepoint 5 （1.5 Meter Am） at 127 degrees intersects the above-mentioned line at a point which is three nautical miles from the Basepoint 5. From this intersection point a line drawn at 93 degrees intersects the outer limit line of twelve nautical miles measured from the baseline； 3） The line drawn from Basepoint 7 （Hong Do） at 120 degrees intersects the line mentioned in number one above at a point which is three nautical miles from Basepoint 7. From this intersection point a line drawn at 172 degrees intersects the outer limit line of the twelve nautical measured from the baseline. As a result， in the Western Channel of Korea Strait the equidistance-median line was not adopted or drawn for its short fall coverage of the whole Channel by the two countries‘ claimed territorial sea.
Actually， Japan has adopted a similar 3-mile limit in the same area a little bit earlier. The reason why these two countries had the same intention of limiting their territorial sea is this Strait plays as a sensitive roll as the unique outlet to the Pacific Ocean for the Former USSR， now Russia from its unique naval port in the Far East—— Vladivostok. Those limitations are capable of creating a high sea corridor with width of 11.8 nautical miles through the Western Channel by avoiding the enforcement of the domestic laws. As a result， the high seas routes according to the Article 36 of 1982 Convention are artificially created and left as Western Channel and Eastern Channel located on the both sides of Tsushima Island parallel with the direction of the Strait. Hence， the foreign vessels including warships are entitled to pass through the Korea Strait on ground of freedoms of navigation in high sea. On the other hand， according to Article 36 of the 1982 Convention， the foreign warships are not justified to enter the territorial sea of the coastal states， for example， Korea， the Southeast part of which， including Puhang， Pusan etc， is the significant industrial and pivotal informational district， being kept at least 5 nautical miles from any possible spying reconnaissance activities on the foreign warships. Even though， why not adopt the equidistance- median rule to cover the Channel territorially as an international strait with the right of transit passage during the peaceful period according to Article 38 of 1982 Convention in the root of Kofu Channel Case of ICJ， providing the basic convenience to the Super Power？ This will step in the most debatable practice.
The most debatable practice
The most debatable part of Korean Practices is in the territorial sea in the Strait the requirement for foreign warships or other government ships to give prior notice to the Korean authority before passing， which seems to happen only frequently in the straits. Article 4 of the Enforcement Decree in 1978， supra， rules that， “if a foreign warship or other government ship operated for non-commercial purposes intends to navigate through the territorial sea， it shall notify the following particulars to the Minister of Foreign Affairs not later than three（3） days （excluding public holidays） prior to its passage in accordance with the latter part of paragraph 1 of Article 5 of the law， except in cases where the area of the waters through which the aforementioned ship navigates forms a strait used for international navigation in which no high seas route exists： （1） Name， type and official number of the ship； （2） Purpose of the passage； and （3） Passage route and schedule”。 This provision emphasized the exception where there is no any alternative high seas route. In fact， in this issue， the innocent passage， the transit passage， and the high seas route are overlapped in combination， theoretically.
Besides Korea Strait， there being only other significant strait on the international law is the Cheju Strait off the Korean southern coast， which is approximately half as wide as the Korea Strait Western Channel. If the Korean current straight baselines were combined with the 12-mile limit of the territorial sea of the Cheju Island， the Cheju Strait would be closed and becomes a territorial strait. In the 1960s and 1970s during the negotiation between Korea and Japan， Korea refused the suggestion by USA and Japan that Korea had better reserve a high sea corridor through the Cheju Strait. Albeit， geographically concurring， an alternate high sea route lies south of Cheju Island. So， Korea can apply both innocent passage and prior notice requirement to the foreign governmental ships passing， which is the same as the situation in Korea Strait. So there is no such kind of strait fulfilling the exception along the Korean coast and the prior notice is an absolute system.
The problem is how to justify this requirement on public international law. The only one ground is the 1956 International Law Commission‘s Draft Articles on the Law of the Sea prepared for the 1958 Conference on the Law of the Sea in Geneva， provided： The coastal State may make the passage of warships through the territorial sea subject to previous authorization or notification. Normally it shall grant innocent passage subject to the observance of the provisions of Articles 17 and 18. But it was not adopted for lack of majority. The 1982 Convention did not explicitly make any reference to the prior notice to or prior authorization from the costal state on passage， either， because NATO and Warsaw blocs deny it. And this can demonstrate the reason why Korea give such seemingly exaggerated convenience in its maritime claim in Korea Strait to the Super Power Soviet Union， which is one of the only two countries with coastal lines in Warsaw blocs and the fundamental representative of the blocs’ opinion in any international affair. Although the era period has passed， the military balance and security requirement in the Far East has not fundamentally changed， resulting in the stability of this kind of claim.
Turning back to the prior notice， even Article 25 of the 1982 Convention is not persuasive or at least not capable of such inference， although the right of transit passage statutorily cannot be barred. The Korean scholars try to justify this requirement in two ways. One is to distinguish the prior notice from the prior authorization regime. But they seem lack of demonstrability besides the denial expression.（1） And this is not the vital argumentation. The key point is on the grounds of Korean security， “as the 1953 Armistice Agreement that the United Nations forces concluded with both North Korea and the People‘s Republic of China （PRC） does not formally terminate the state of war in the Korean peninsula”（2）。 Logically， it’s understandable for Korea to adopt such a requirement. In my opinion， the Korean War has ended fifty years before， even without any testimony of international law， but still， the practical fact that some countries do not require prior notice or authorization does not mean that a state would not be entitled to require such notification or authorization if it deemed it necessary to this requirement as precautionary measures. It should be considered as part of maritime international law. That‘s why Professor Brownlie said， it’s clear that a significant number， and perhaps a majority， of states require prior authorization （or prior notice——author） for the passage of warships， and as a consequence， dogmatic assertions of a right of passage have an aspect of advocacy.（3） I agree with him.
Other Practices
Furthermore， there are contending interests——fishing， shipping， exploration， security， and freedoms of navigation——in use of the Korea Strait between the various countries that most use the Strait （the Koreas， Japan， Russia， China， and the United States）。 These interests tend to interfere with each other. One method for reconciling some of the conflicts between shipping and other interests is with a maritime traffic control （MTC） scheme. There has currently no very active MTC scheme in the Strait until 1997. MTC schemes include active Vessel Traffic Service （VTS） systems and passive Traffic Separation Systems （TSS）。 A VTS system does not seem appropriate for the Korea Strait at this time because of its cost and complexity. However， a TSS would be appropriate. A TSS could possibly alleviate potential conflicts of interest in the Strait. It could increase transparency even while regional navies grow； it could dampen the possibility of low level threats such as piracy； and it could enhance confidence- building in the region. In addition， a TSS in the Korea Strait may prevent serious environmental accident from a catastrophic oil spill. Economic growth in Northeast Asia is expected to continue in the foreseeable future， and tanker traffic is expected to increase along with it. Surviving the Financial Crisis in 1997， the energy needs of the Korea still increased and expanding harbor facilities are not keeping up with demand. Yasu and Ulsan harbors are apparently bulging. Russian and Chinese use of the Strait has somewhat increased， although not significantly， but this may change. Although there have not been any major oil pollution incidents as a result of the interaction between transiting tankers and the fishing fleets， it may be only a matter of time before such an event occurs. It makes sense for the governments whose interests are affected by activities in the Strait to engage in a cooperative dialogue on devising a TSS for the Strait， and to earmark funds that would otherwise be expended on cleaning up future oil spills on furthering this cooperative effort. As a result， until now in 2004， Korean government has authorized 14 items of traffic separation schemes， infra：
Scheme Name Principal Admiralty Charts Authority
Namp‘o 1257 Korean Government
Approaches to Incheon 1270， 1258 Korean Government
Off Ong Do 913， 1258 Korean Government
Maemul Sudo 3365， 3480 Korean Government
Off Bogil Do 3365 Korean Government
Approaches to Wando Hang 3365 Korean Government
Off Hong Do 127 Korean Government
Approaches to Masan 1065， 127 Korean Government
Approaches to Pusan 1259， 1065 Korean Government
Approaches to Kamcheon 1259， 1065 Korean Government
Approaches to Weonsan 54 Korean Government
Heungnam 1316 Korean Government
Ch‘ongjin 1316 Korean Government
Najin 1316 Korean Government
These data can be entitled to reveal the update Korean practices.（4）
「注释」
（1） See Choung Il Chee， Korea and International Law， 1993， Seoul Press for the Institute of International Legal Studies， Korea University， p5； also See D.P.O‘Connell， D.P.， Internaitonal Law of the Sea， ed. by I.A. Shearer， 2 vols. （Oxford： Clarendon Press， 1982-1984） vol. 1， footnote 205， p.290.
（2） See Choung Il Chee， Korea and International Law， op.cit.
（3） See Ian Brownlie， Principles of Public International Law， QC， DCL， FBA， 3rd ed. p.206， Clarendon Press， Oxford 1979.
（4） See，www.ukho.gov.uk/attachments/2004/ annual_nms/ANM17%202004.pdf
黄英亮