북방한계선(NLL) 문제에 관한 국제법적 검토와 대응방안

The Cheonan Sinking Incident and Yeonpyoung Island Bombing Incident in the Yellow Sea between the North and South Koreas resulted directly from the unclear and controversial demarcation of their maritime boundary. In March 2010 and November 2011 respectively, the two Koreas had armed skirmishes in the disputed sea areas around the so-called Northern Limit Line (NLL) which was unilaterally drawn by the United Nations Command (UNC) after the conclusion of the Armistice Agreement concerning the Korean War in 1953, but its validity has been rejected by North Korea since 1973. On September 1999 did the North Korean military authorities declare that they had set up a "North Korean Military Demarcation Line in the West Sea (Yellow Sea)" which overlaps with the existing NLL. It is likely that the different lines existing in the same area definitely have caused and will continue to cause maritime conflicts. It is therefore imperative that the legality of the NLL be demonstrated. The analysis in this article will combine a legal and a practical approach that will strengthen ROK Government's position, while recognizing the legal implications and identifying the need for the subsequent agreement on a clear maritime boundary line subject to the condition that North Korea should agree to take specific measures for trust-building between two Koreas. When the 1953 Armistice Agreement is interpreted in accordance with the ordinary meaning to be given to its term, it can be said that the maritime military demarcation line was not included in it. However, the NLL should be given credit for playing a significant part in the armistice structure which has lasted to this day, considering the object and purpose of the Armistice Agreement, Article 11 in the South-North Basic Agreement of 1992, the North Korea’s subsequent acquiescence for 20 years after a cease-fire and the history surrounding the conclusion of the Armistice Agreement. In these scheme to put an end to the state of war, there was no possibility for any legal vacuum left for any subsequent action to draw a new sea boundary line of the western sea in between two combatants. The United Nations Convention on the Law of the Sea (UNCLOS) provisions related to delimitation of maritime boundaries shall not be directly applicable to the NLL as relevant rules of international law applicable in the relations between the North and South Koreas, because UNCLOS is not for wartime but only for peacetime. In light of the North Korea’s continued military provocations in and around the NLL, the following measures should be taken into account by the South Korea. First, the South should consistently maintain the view that the NLL is a military demarcation line in the sea, not a territorial sea or EEZ delimitation line. Second, the South may make a request to the UN Secretary-General on the creation of an ad hoc panel to investigate the cases such as the North Korea’s torpedoing of its Cheonan naval vessel and the bombing of its Yeonpyeong Island, seeking the understanding that the North Korea should respect the NLL until the conclusion of a renewed inter-Korean maritime borderline agreement. Third, the South should make clear its position that fixing a military demarcation line in the western sea is not going to happen until military tension between two Koreas is eased and the trust between them is built. Lastly, if military tensions lessen on the Korean Peninsula in the near future, the South will be able to seek a way to resume the discussion on the creation of the so-called the “West Sea Special Peace and Cooperation Zone”, a proposal included in the inter-Korean summit declaration made on Oct. 4, 2007.