The Meaning of the Right of Innocent Passage in Korean Territorial Sea and Contiguous Zone Act: Korean Supreme Court Decision 2017Do9982, Decided on May 7, 2021

Abstract

Although the Republic of Korea (hereunder, Korea) is a member of the UNCLOS, it has enacted and implemented the Territorial Sea Act to clarify the breadth of Korea’s territorial waters and guarantee the right of innocent passage of foreign ships within it. However, the UNCLOS has the status of Korean statute according to Article 6 of the Constitution of Korea, so foreign vessels passing through the territorial waters of Korea must faithfully comply with the Territorial Sea Act and all regulations stipulated by the UNCLOS. In addition, Korea can exercise its jurisdiction with various legislative regulations related to the passage of foreign vessels through its territorial waters in order to protect its national interests. In principle, Article 5(1) of the Territorial Sea Act permits innocent passage of foreign vessels through the territorial waters of Korea, on the condition that the peace, public order, or security of Korea is not harmed. However, it is not clear what peace, public order, or security of Korea is, which is stipulated in the above provisions as a requirement for innocent passage. Accordingly, Article 5(2) of the Territorial Sea Act stipulates that if a foreign vessel conducts certain activities such as fishing, researching, or surveying when navigating the territorial waters of Korea, it is considered harming the peace, public order, or security of Korea. However, it is another matter of interpretation whether a specific activity of a foreign vessel can be regarded as non-innocent passage as prescribed in Article 5(2) of the Territorial Sea Act. According to the Supreme Court, if the owner of a foreign vessel investigates the seabed using a fish detector installed on a foreign ship to find the location of sunken ships in Korean territorial waters, this act is regarded as the passage of a foreign vessel under Article 5 of the Territorial Act. Additionally, in relation to the “researching” under Article 5(2)⑪ of the Territorial Sea Act, the Supreme Court ruled that researching by a foreign vessel is not limited to cases where it actually harms the peace, public order, or security of Korea. If the act of a foreign vessel infringes on the sovereign authority of Korea, the Supreme Court ruled that it would not be permitted regardless of whether the specific activity in itself harms the peace, public order, or security of Korea.