외국선박의 영해내 해저조사가 무해통항에 해당하는지 여부 -대법원 2021. 5. 7. 선고 2017도9982 판결-

Abstract

Article 5 (1) of the Territorial Sea and Contiguous Zone Act(hereinafter ‘TSCZA’) declares that foreign ships may enjoy the right of innocent passage through the territorial sea of the Republic of Korea so long as it is not prejudicial to peace, public order, or security of the Republic of Korea. In this case, a foreign ship searched the seabed using a fish detector to locate the sunken ship for the purpose of salvaging and selling ships and cargo in the territorial sea of Korea (the sea of Maenggol Waterways (or Channel) in Jindo-gun, Southern Jeolla Province). The prosecutor prosecuted the chief executive of the owner of a foreign ship with violating the TSCZA. The accused claimed that it did not constitute a passage because he reported entry and exit by the Act on the Arrival and Departure of Ships. He also argued that searching and salvaging the location of the sunken ship left on the sea floor does not undermine the peace, public order, or security of the Republic of Korea, thus it does not constitute a research prohibited by the TSCZA. For the first time, the Supreme Court ruled on the purpose of innocent passage under TSCZA, the concept of passage, and the concept of research prohibited by the TSCZA. This essay analyzes the above Supreme Court ruling, and summarizes the discussion as follows. The principle of innocent passage stipulated in Article 5 of TSCZA is a norm to enable coastal countries to exercise their sovereignty in territorial waters and foreign ships’ right to pass on the sea in harmony. The principle of innocent passage also applies when a foreign ship navigates for the purpose of advancing toward the domestic demand of a coastal country or for the purpose of calling port facilities of a coastal country. The right of innocent passage of foreign ships in territorial waters means restrictions on the sovereignty of coastal countries, including resource development rights, environmental protection rights, and scientific research rights. Therefore, ‘innocence’ as a requirement for innocent passage includes the meaning of not infringing on the above sovereign authority. It is based on the premise that research (or search) activities in territorial waters without explicit consent from coastal countries are not allowed regardless of whether they actually prejudicial to peace, public order, or security guarantees. Therefore, search of the seabed using a fish detector installed on a foreign ship to find the location of a sunken ship in the sea of Maenggol Waterways constitutes the case which a foreign ship conducted an research while passing through.