접경지역 민간인 통제와 서해 5도민의 인권보호: 어선안전조업법을 중심으로

Abstract

The issues related to control of civilians at the border fundamentally seek to balance between national security and protection of human rights. The purpose of this paper is to examine the permissible derogation and limits under international human rights law and apply such findings to the situations faced by the residents of the Five Islands in the West Sea. Fishing activities within the Five Islands have been restricted due to its proximity to the Northern Limit Line and military tension between South and North Korea. The Act on Safe Fishing of Fishing Vessels Safety Act (“Safe Fishing Act”) was enacted in 2019 to guarantee the safe fishing and navigation of fishing vessels as well as to protect the life, body and property of people. In accordance with the Safe Fishing Act, a fishing limit zone, specific waters, fishing restraint, fishing restraint waters are designated within the Five Islands in the West Sea. Consequently, fishing and navigation of fishing vessels are restrained and the residents of the Five Islands are allowed to fish within the designated zone during permitted times. The Safe Fishing Act is criticized for its lack of legitimacy of restricting activities on the Five Islands in the West Sea, lack of public comment as well as its provisions on excessive penalties. While the Korean Constitution permits restriction of freedoms and the rights of citizens only when necessary for national security, the maintenance of law and order or for public welfare, the essential aspects of the right can never be violated. International human right is in line with the Constitution as the so-called derogatory clauses in international human rights must be based on the rule of law within a limited period. It is therefore necessary to engage in a discussion of amending the Safe Fishing Act to minimize the restrictions of the fundamental rights of the residents of the Five Islands to meet international human rights standards.