• The Journal of Fisheries Business Administration
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• v.34 no.1
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• pp.69-85
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• 2003

The primary objective of this thesis is to study, case by case, the international disputes for fishing rights between fishing nations and costal states never imagined till the introduction of the UN Convention on the Law of the Sea adopted in 1982 and came into effect in November 16, 1994, which governs the high seas and EEZ in a new manner. Such a study is to provide help in the understanding on this new marine system and how to deal with. This is addressed by the perspectives of disputes (a) in the high seas between fishing nations having traditionally enjoyed the principle of the freedom of the high seas and costal states, (b) in the EEZ between fishing nations and costal states possessing the exclusive jurisdiction over living marine resources and sovereign rights for determining allowable catch and the surplus in its EEZ. The article can be divided into four main parts. First, both the general principles of the settlement of international disputes, and the nature and procedures described in the UNCLOS are introduced. Second, it gives cases of tuna long-liner, North Pacific trawler and squid jigger occurred in the coastal states EEZ, and analyses the problem in both terms of its background and final judgment. It further describes the possible issues in case it depends on the International Tribunal for the Law of the Sea for its settlement. Third, closely tied to above, important points such as the right of hot pursuit, prompt release of vessel and crew, and the limits of cooperation with costal states inspector on board fishing vessels are considered mostly based on the UNCLOS, Bilateral Agreement and UNIA. Finally, the article concludes as follows ; The need for broad analyses on the nature of international suits and legal system for the settlement, to win the case before the International Tribunal for the Law of the Sea or coastal states court, is really acknowledged. However, considering the lack of previous studies about it, it is preferably recommended that governmental efforts for making legal standards to cover the judicial costs, for helping industry out of becoming bankrupt.

• Journal of Fisheries and Marine Sciences Education
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• v.28 no.6
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• pp.1761-1771
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• 2016

In respect of the existing relation between Sea-going Vessels and Vessels at anchor, Korean Maritime Safety Tribunal has applied 'Ordinary Practice of Seamen' that is regulated by the article No. 2 of COLREG. That is, general navigation rule is not applied between the two vessels, and the action to avoid collision of vessels by utilizing experience knowledge of the seamen. However, the content of the Ordinary Practice of Seamen included in the revised plan in the process of 2011 "Maritime affairs Safety Act" revision was deleted in the screening of the Office of Legislation due to the reason that it could not specified when the content of deed is not concertized. Furthermore, prior application regulation of international treaty included in the existing "Sea Traffic Safety Act"(Article 5) was deleted in the screening of the National Assembly. So, doubt about whether the Ordinary Practice of Seamen could be continuously applied according to the regulation of the international treaty, nevertheless not specified in domestic law, has been continuously raised. In this situation, recently Central Maritime Safety Tribunal changed precedent by applying of Article 96(3) of Maritime Safety Act without applying Ordinary Practice of Seamen in the Case No. 2015-001. Accordingly, this study intended to review propriety of precedent change and legal issue with the decision of Central Maritime Safety Tribunal excluding Ordinary Practice of Seamen for a collision between Sea-going Vessels and Vessels at anchor.

• Ocean and Polar Research
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• v.44 no.2
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• pp.147-160
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• 2022

SRFC (Sub-Regional Fisheries Commission) requested to the ITLOS (International Tribunal for the Law of the Sea) an advisory opinion relating to the IUU (Illegl, Unreported, and Unregulated) fishing (Case No-21 of the ITLOS). Since, in the UNCLOS, there is no article authorizing the jurisdiction of the ITLOS full court's Advisory opinion, so various scholarly opinion wad divided. But ITLOS delivered its Advisory opinion confirming its jurisdictional competence over the Advisory proceedings with its legal opinion about the IUU issues. It opens new possibility of the alternative dispute settlement mechanism of the ITLOS through the advisory procedures. In reality, there has been a view that ICJ (International Court of Justice) could take the part of a kind of dispute settlement through its Advisory procedures. But the advisory procedures of the ITLOS, with no definite clause in UNCLOS about the advisory procedures, which provides more allowances for the function of advisory opinion as the alternative dispute settlement mechanism. ITLOS accepted the requests of the advisory opinion by the State parties through international organization or themselves directly. And the advisory opinion of the ITLOS aims the interpretation and application into the special issues-specially IUU fishing in Case No. 21 of the ITLOS-. Those factors could enable more enhanced role of the ITLOS as an alternative dispute settlement mechanism. But those possibility has contain risk of excessive and unlimited advisory role of the ITLOS. So it is important to focus on the restriction on the role of the State parties in the request of the advisory opinion to the ITLOS. In this regard it is meaningful that the ITLOS has suggested a kind of legal standing in the advisory procedures in that only coastal States could request the Advisory opinion about the IUU in their EEZ. Furthermore the discretionary power of the ITLOS in the Article 138 of the Rules of the Tribunal could curtail the abuse of the Advisory opinion initiated by the States parties of the UNCLOS. Under this framework, Advisory opinion could broaden more alternative option to the disputes between State parties of the UNCLOS in that after being delivered detailed interpretation of the UNCLOS about the specific issues, States parties could devote themselves to searching for flexible solution for the disputes between State parties. It could obtain legal explanation about the dispute under the Article 297 and Article 298 by detouring the jurisdiction limits through advisory procedures.

• Strategy21
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• s.40
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• pp.144-161
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• 2016

A unanimous Award has been issued on 12 July 2016 by the Arbitral Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea in the arbitration instituted by the Republic of the Philippines against the People's Republic of China. The current security issues in the regional sea shall be carefully reflected to anticipate whether the Award could resolve the existing political conflict or rather will grow military tension in the region. The Award clearly directs the scope of delimiting maritime jurisdiction to coastal States in the Southern China sea, so it seems to help facilitating finding resolutions of regional disputes on maritime boundaries. On the other hand, there are several limitations in reality to implementation of the decisions included in the Award. USA could use the decisions to restrict military activities and exercise of unilateral maritime jurisdiction by China in the region, while China shall encounter guilt to illegitimacy of its activities as well as shaking the legal foundation of its policy in the region. Then the resolution of this dispute through application of international law would rather cause more political confusion. The intension of bringing the case to an international court were to resolve political difficulties. If, however, the political difficulties are not properly reflected in the legal decisions, such decision would possibly raise more political risks.

• Journal of Arbitration Studies
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• v.30 no.3
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• pp.21-45
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• 2020

The major legal issues of this case were governing law questions regarding the liability of the shipowner/employer to its employee. It is true that in the absence of the parties' choice of law, the arbitral tribunal may apply the substantive laws or rules of law which it deems appropriate. However, it does not mean that the arbitral tribunal has arbitrary discretion in choosing the appropriate law as the governing law of the case; rather, the arbitrators should carefully examine the conflict of law rules of the forum and the requirement of the law of the country where the upcoming arbitral award will be enforced. They must bear in mind the role of the "connecting factors" in determination of the governing law. Therefore, the application of an alien law, which has minimal connecting factor with the case, may lead to a conclusion that is hardly understood by the parties. On the same token, the arbitrators must pay attention to applying the mandatory rules of a country, the laws of which not being the governing law of the issue. It is said that the application of the mandatory rules is a necessary evil to secure the enforcement of the award in the country, which has national interest in applying its own law to the issue. Further, arbitrators must pay attention to the consistent application of the law and respect the integrity of a legal system to reach a fair conclusion. The place of service of a seafarer for a vessel navigating international sea ought to be its home port country rather than the country of the ship registry, and the party autonomy in choice of the law in a seafarer employment should be respected.

• Ocean and Polar Research
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• v.33 no.4
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• pp.485-495
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• 2011

On February 11, 2011, upon request of the International Seabed Authority, 'the Seabed Dispute Chamber of the International Tribunal for the Law of the Sea(henceforth Chamber)' rendered its advisory opinion on the responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area. The advisory opinion covered three questions: What are the legal responsibilities and obligations of the sponsoring states with respect to the sponsorship of activities in the Area? What is the extent of liability of a State Party for any failure to comply with the LOS Convention and relevant instruments? What are the necessary and appropriate measures that a sponsoring State must take in order to fulfil its responsibilities? In particular, the Chamber delivered its opinion on the different responsibilities and obligations of developed and developing sponsoring states. This paper reviews the above three questions through analyzing the advisory opinion and makes some recommendations for the fulfillment of the responsibilities and obligations of Korea as a sponsoring states.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.2
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• pp.139-161
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• 2009

The idea of establishing an International Court of Air and Space Law (hereinafter referred to ICASL) is only my academic and practical opinion as first proposal in the global community. The establishment of the International Court of Air and Space Law can promote the speed and promote fairness of the trial in air and space law cases. The creation of an ICASL would lead to strengthening of the international cooperation deemed essential by the global community towards joint settlement in the transnational air and space cases, claims and would act as a catalyst for the efforts and solution on aircraft, satellite and space shuttle's accidents and cases and all manpower, information, trial and lawsuit to be centrally managed in an independent fashion to the benefit of global community. The aircraft, satellite and spacecraft's accidents attributes to the particular and different features between the road, railway and maritime's accidents. These aircraft, satellite and spacecraft's accidents have incurred many disputes between the victims and the air and space carriers in deciding on the limited or unlimited liability for compensation and the appraisal of damages caused by the aircraft's accidents, terror attack, satellite, space shuttle's accidents and space debris. This International Court of Air and Space Law could hear any claim growing out of both international air and space crash accidents and transnational accidents in which plaintiffs and defendants are from different nations. This alternative would eliminate the lack of uniformity of decisions under the air and space conventions, protocols and agreements. In addition, national courts would no longer have to apply their own choice of law analysis in choosing the applicable liability limits or un-limit for cases that do not fall under the air and space system. Thus, creation of an International Court of Air and Space Law would eliminate any disparity of damage awards among similarly situated passengers and shippers in nonmembers of air and space conventions, protocols, agreements and cases. Furthermore, I would like to explain the main items of the abovementioned Draft for the Convention or Statute of the International Court of Air and Space Law framed in comparison with the Statute of the International Court of Justice, the Statue of the International Tribunal for the Law of the Sea and the Statute of the International Criminal Court. First of all, in order to create the International Court of Air and Space Law, it is necessary for us to legislate a Draft for the Convention on the Establishment of the International Court of Air and Space Law. This Draft for the Convention must include the elected method of judges, term, duty and competence of judge, chambers, jurisdiction, hearing and judgment of the ICASL. The members of the Court shall be elected by the General Assembly and Council of the ICAO and by the General Assembly and Legal Committee of the UNCOPUOS from a list of persons nominated by the national groups in the six continent (the North American, South American, African, Oceania and Asian Continent) and two international organization such as ICAO and UNCOPUOS. The members of the Court shall be elected for nine years and may be re-elected as one time. However, I would like to propose a creation an International Court of Air and Space Law in extending jurisdiction to the International Court of Justice at the Hague to in order to decide the air and space convention‘s cases. My personal opinion is that if an International Court on Air and Space Law will be created in future, it will be settled quickly and reasonably the difficulty and complicated disputes, cases or lawsuit between the wrongdoer and victims and the injured person caused by aircraft, satellite, spacecraft's accidents or hijacker and terrorists etc. on account of deciding the standard of judgment by judges of that’s court. It is indeed a great necessary and desirable for us to make a new Draft for the Convention on a creation of the International Court of Air and Space Law to handle international air and space crash litigation. I shall propose to make a new brief Draft for the Convention on the Creation of an International Court of Air and Space Law in the near future.