북방 한계선(NLL)의 국제법적 지위 (Northern Limit Line (NLL) under International Law)

서지정보

· 발행기관 : 신아시아연구소
· 수록지 정보 : 신아세아 / 18권 / 4호 / 7 ~ 18페이지
· 저자명 : 이종연

초록

The 1953 Armistice Agreement was signed by North Korea and the United Nations Command and has been effective since that time. The Agreement stipulated that the five islands including Yeongpyung Island, and the Baengnyeong Islands remain under United Nations Control. As to the coastal waters, it provided that each side is to respect “the water contiguous to the Demilitarized Zone and to the land area of Korea under military control of the opposite side......” However, it did not provide for an exacted mileage limit of a maritime demarcation line. Although no exact limit of the maritime demarcation line was drawn by the Armistice Agreement, it stated the demarcation line to be the waters contiguous to the land area of both sides.
Subsequently, based on the above provisions of the Armistice Agreement, the United Nations Command set up the line at 3 nautical miles of territorial water of the islands and limited their naval patrols to the south of the line, while the Korean Navy also set up the Northern Limit Line generally following the 3 nautical miles territorial water.
North Korea had not disputed the above UN–Korean line as the line prevented any southern incursion into the North. There were instances in which North Korea crossed the line, but they were not so much intended to dispute the validity of the line as to engage in hostile activities. North Korea’s Almanac published in 1959 by their government agency showed the map with the NLL drawn. Even at a Military Armistice Commission Meeting, in protesting violation of the NLL, the North Korean Representative denied their violation of the line, tacitly recognizing the validity of the line. When the International Civil Aviation drew the aviation communication zone based on the NLL, North Korea accepted the line. All evidences indicate that North Korea had not objected to the existence and validity of the NLL.
The 1953 Armistice Agreement is a contract among the belligerent parties from the Korean War, ending the hostilities and accepting “the conditions and terms of the armistice, which are intended to be military in character and to pertain solely to the belligerents in Korea.” Among the conditions and terms of the Armistice is the control of the five islands by the United Nations and allowance of the maritime demarcation line to be the waters contiguous to the lands controlled by each side. Since the NLL is a reasonable and justifiable part of the conditions and terms of the Armistice, no parties can either breach or change it unilaterally.
The 1984 Law of the Sea should not be relevant to the NLL. The parties in the Armistice Agreement had never intended to incorporate any specific provisions of the Law of the Sea, including the territorial water limit of 12 nautical miles under the 1984 Law of the Sea. Additionally, it is submitted that the express provisions of the Armistice Agreement take precedence over any law and equity under the 1984 Law of the Sea.
Although there is no specific provision in the Armistice Agreement that provide for the NLL, the establishment of the line is reasonable and consistent with the intent of the parties and the terms of the Armistice. As the NLL is drawn closely following the 3 nautical miles limit, it does not violate the intent of the communist side that was to draw the maritime demarcation with the use of the 12 nautical miles limit. In fact, if the intent of the communist side were followed, the line should be located far north of the current NLL. In practice, the NLL has been beneficial for North Korea. Therefore, it should be concluded that the NLL should be a reasonable implementation of the Armistice Agreement and that there is no reason for North Korea to object to the NLL.

영어초록

The 1953 Armistice Agreement was signed by North Korea and the United Nations Command and has been effective since that time. The Agreement stipulated that the five islands including Yeongpyung Island, and the Baengnyeong Islands remain under United Nations Control. As to the coastal waters, it provided that each side is to respect “the water contiguous to the Demilitarized Zone and to the land area of Korea under military control of the opposite side......” However, it did not provide for an exacted mileage limit of a maritime demarcation line. Although no exact limit of the maritime demarcation line was drawn by the Armistice Agreement, it stated the demarcation line to be the waters contiguous to the land area of both sides.
Subsequently, based on the above provisions of the Armistice Agreement, the United Nations Command set up the line at 3 nautical miles of territorial water of the islands and limited their naval patrols to the south of the line, while the Korean Navy also set up the Northern Limit Line generally following the 3 nautical miles territorial water.
North Korea had not disputed the above UN–Korean line as the line prevented any southern incursion into the North. There were instances in which North Korea crossed the line, but they were not so much intended to dispute the validity of the line as to engage in hostile activities. North Korea’s Almanac published in 1959 by their government agency showed the map with the NLL drawn. Even at a Military Armistice Commission Meeting, in protesting violation of the NLL, the North Korean Representative denied their violation of the line, tacitly recognizing the validity of the line. When the International Civil Aviation drew the aviation communication zone based on the NLL, North Korea accepted the line. All evidences indicate that North Korea had not objected to the existence and validity of the NLL.
The 1953 Armistice Agreement is a contract among the belligerent parties from the Korean War, ending the hostilities and accepting “the conditions and terms of the armistice, which are intended to be military in character and to pertain solely to the belligerents in Korea.” Among the conditions and terms of the Armistice is the control of the five islands by the United Nations and allowance of the maritime demarcation line to be the waters contiguous to the lands controlled by each side. Since the NLL is a reasonable and justifiable part of the conditions and terms of the Armistice, no parties can either breach or change it unilaterally.
The 1984 Law of the Sea should not be relevant to the NLL. The parties in the Armistice Agreement had never intended to incorporate any specific provisions of the Law of the Sea, including the territorial water limit of 12 nautical miles under the 1984 Law of the Sea. Additionally, it is submitted that the express provisions of the Armistice Agreement take precedence over any law and equity under the 1984 Law of the Sea.
Although there is no specific provision in the Armistice Agreement that provide for the NLL, the establishment of the line is reasonable and consistent with the intent of the parties and the terms of the Armistice. As the NLL is drawn closely following the 3 nautical miles limit, it does not violate the intent of the communist side that was to draw the maritime demarcation with the use of the 12 nautical miles limit. In fact, if the intent of the communist side were followed, the line should be located far north of the current NLL. In practice, the NLL has been beneficial for North Korea. Therefore, it should be concluded that the NLL should be a reasonable implementation of the Armistice Agreement and that there is no reason for North Korea to object to the NLL.

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