국제법상 해적행위 처벌을 위한 집행조치의 효율성에 관한 고찰 -소말리아 해역의 해적행위를 중심으로-

The purpose of this article is to examine the scope of enforcement powers in the context of piracy in waters off the coast of Somalia by analyzing the UN Convention on the Law of the Sea and the relevant Security Council Resolutions. Furthermore, this article asserted whether such Resolutions has any impact on the criminal prosecution of pirates. The upsurge of pirate attacks particularly in the Gulf of Aden since 2008 has caught a considerable degree of international attention, which led to the adoption of a series of resolutions by the UN Security Council. The current legal framework on piracy, while providing a universal jurisdiction over pirates through the UN Convention on the Law of the Sea, may not be the ideal guideline for the actual prosecution and punishment of pirates. Although the criminal trials for the pirates are undergoing in some countries, states have either been unable or unwilling to prosecute pirates for various reasons, including political, financial, and logistical considerations by undertaking a catch-and-release practice. To overcome the limits inherent in the regime of the Law of the Sea, notably Security Council Resolutions 1846 and 1851 have complemented the loopholes regarding the personal and geographical scope under the UN Convention on the Law of the Sea. While these Security Council Resolutions have had a considerable impact on the scope of enforcement powers, they did not alter the current legal framework pertaining to the criminal prosecution of pirates. Rather significantly, the resolution 1851 called for the enhanced interstate cooperation in criminal matters by requesting states and regional organizations to conclude a special agreement known as 'shiprider agreement,‘though the challenges and risks of utilizing such agreement are likely to be ahead.