유엔해양법협약 제97조 제1항과 형사재판권 -부산고법 2015. 12. 16. 선고 2015노364 판결에 대한 평석 -

The paper examined the legislative purpose and history of UNCLOS §97 ①, and reviewed the interpretation and application issues of the Busan High Court's ruling on the Ernest Hemingway case. The main contents of this paper are briefly summarized as follows. First, marine pollution is subject in principle to the application of UNCLOS §97 ①, but only when the exclusive economic zone reaches the extent that it has a significant impact on the resources or environment of the offshore country. However, in the case of Hemingway, this is not the exception, making it difficult to apply the Marine Pollution Control Act in Korea. Second, the U.N. Convention on the Law of the Sea aims to establish a peaceful order by properly harmonizing the sovereignty of each country through mutual understanding and cooperation. It is not intended to cause the parties to relinquish their sovereignty or to make unconditional concessions. Therefore, UNCLOS §97 ① should not be considered to apply to cases of apparent deliberate criminal cases targeting the victims. This is a logical contradiction unless you accept an exception to marine murder that is more serious than a maritime robbery. Third, our court's appeal ruling excludes legitimate criminal jurisdiction through excessive expansion of international law. This is in stark contrast to the fact that some foreign countries tried to prosecute the deaths of many of their own citizens on the grounds of negligence. In conclusion, the UNCLOS is an international law that aims to achieve peaceful maritime order based on mutual understanding and cooperation between countries, and thus has some ambiguity and uncertainty. Therefore, it is necessary to carefully examine the scope of the provisions under UNCLOS §97 ① on the basis of various international cases, even in order to exercise our legitimate sovereignty.