국제법상 해적제도와 관련 국내입법의 검토

Abstract

Piracy off the Somali coast which shows a rapid increase in numbers of its occurrence since the beginning of Somalia's civil war in the early 1990s has threatened to the safety of international shipping. This has induced international concern over the rise in acts of piracy by many international organizations, including the UN. After all, the UN Security Council, by a series of its Resolutions in 2008, called upon states, regional and international organizations to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia by deploying naval vessels and military aircraft and through seizure and disposition of boats, vessels, arms and other related equipment used in the commission of piracy and armed robbery at sea off the coast of Somalia. Pursuant to these Resolutions, many states and regional and international organizations took the initiatives to counter piracy off the coast of Somalia by escorting vessels and to repress acts of piracy and armed robbery at sea therein. The Korean Government also dispatched a naval contingent, named "Chunghae", to Somali waters in March 2009 to escort Korean merchant ships passing the Gulf of Aden and to cooperate with the international efforts to secure the safety of international navigation off the coast of Somalia. Relating to the dispatching a Korean naval contingent to Somali Waters to combat piracy, Korean Criminal Law reviewed in the present article to judge whether it corresponds with piracy law in international law. In the United Nations Convention on the Law of the Sea (UNCLOS) of 1982, "maritime piracy" consists of: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating an act described in subparagraph (a) or (b). On the other hand, Korean Criminal Law does not contain a provision for piracy, but for robbery at sea as a specified type of usual crimes which therefore cannot cover all the types of constituting piracy defined in the UNCLOS of 1982. This gap between international law and Korean domestic law about piracy may cause the incompetency for Korea to exercise the "universal jurisdiction" because of the principle of "Nullum crimen, nulla poena sine praevia lege poenali"". Universal jurisdiction, which differs from "territorial jurisdiction", is a principle in international law whereby states may claim criminal jurisdiction over persons, including pirates, whose alleged crimes were committed outside the territories of the prosecuting state, regardless of their nationality, country of residence, or any other relation with the prosecuting country. It means that any state is authorized to punish the criminal by the concept of universal jurisdiction which is therefore closely linked to the idea that certain international norms are owed to the entire world community, as well as the concept of jus cogens - that certain international law obligations are binding on all states. It could, therefore, be said that international law requires every states to enact its national law covering all the types of piracy defined in the UNCLOS of 1982 and to punish pirates by that law. This also is the requirement drawn from the principle of "Nullum crimen, nulla poena sine praevia lege poenali"". And Korean Criminal Law is required to be amended to cover all the types of piracy according to international law thereof, not only for the operation of dispatched naval contingent "Chunghae" but also the perfectness of the Law in general.