신한일어업협정의 체결과정에 대한 연구

Abstract

In 1999, the New Korea-Japan Fisheries Agreement was made between Korea and Japan. This agreement was made because ｢UNCLOS III｣, effective in 1999, formed a new marine law order in the world and because it was necessary to revise the old Korea-Japan Fisheries Agreement made at 1995 in a large scale. At that time, it didn't reflect new marine law order. The official title of “the New Korea-Japan Fisheries Agreement” was ｢An Agreement about Fisheries between Korea and Japan｣, effective on January 22, 1999, by Treaty No. 1477. the New Korea-Japan Fisheries Agreement infringed the fisheries right wielded exclusively by Korea and Dokdo territorial sovereignty recognized predominately by Korea comparatively. So, the agreement was known to be failed by the scholars who criticized it and by the public. After the agreement was made, the opinions were divided by the scholars into two opinions, whether the agreement had a binding force concerning ｢Fisheries within agreed area｣ or ｢Fisheries within agreed area + dominium ｣. Even now, the opinions are divided so continuously. Those who assert the former are Korean government, Constitutional Court, and some scholars. They assert that the agreement is concerned on fisheries and not effective in Dokdo territorial sovereignty. They want the agreement to persist without termination. But, those who assert the latter express their points of view that the agreement had to be terminated (cancelled) and that new agreement had to be made. This study consents to the opinions of the latter. As for the bases, the fisheries agreement made in 1965 stipulated that 12 nautical miles exclusive fisheries zone of Dokdo was recognized from the baselines at the high seas. But, the New Korea-Japan Fisheries Agreement made in 1999 stipulated that only the territorial sea 12 nautical miles was recognized from joint regulatory water area where the governing rights of Korea and Japan were effective at the same level. This agreement doesn't recognized any exclusivity or special promise about the right of Korea. Therefore, this study considers Dokdo territorial sovereignty to be infringed. As for a core of this study, the New Korea-Japan Fisheries Agreement, under Kim Young Sam Government stipulated the unfavorable condition of Korea; exclusive economic zone was separated and provisional zone was accepted. As for Dokdo, exclusive waters zone was not recognized and only the right of the territorial sea 12 nautical miles was accepted. In fact, the two countries stipulated Dokdo within joint regulation waters zone and the governing right of Dokdo was put off. Under Kim Dae Jung Government, the subjects were agreed legally. In the conclusion process the New Korea-Japan Fisheries Agreement, there are no stipulation concerning which government is responsible for the agreement. Kim Young Sam Government made the agreement about basic matters, and Kim Dae Jung Government confirmed them. Afterwards, the matters were agreed legally. So, the progress of the agreement making is unclear.