천안함 사건의 국제법적 의의 및 대응방안의 虛實

Significance of the “Cheonan Warship Incident” and Appraisal of Responses to It under International Law - at the Time of First Anniversary of “Cheonan Warship Incident” -

The "Cheonan Warship Incident" refers to the sinking of the Cheonan Warship, a (South) Korean naval corvette by an alleged North Korean torpedo fired by a small submersible which infiltrated into South Korean waters. Such act by North Korea constitutes invasion into a foreign nation’s territory and use of force against its naval vessel and crew members. In sum, it is an act of aggression as defined in the Definition of Aggression by the United Nations General Assembly Resolution 3314. An act of aggression violates the "principle of non-use of force" provided in the UN Charter and represents a "crime against peace." It is an international breach of law incurring international responsibility. The sinking of the Cheonan Warship by North Korea’s armed attack also violates Article 2 (12) of the "Armistice Agreement" stipulating that the commanders of the opposing sides shall order and enforce a complete cessation of all hostilities. We can review all the possible responses to North Korea’s armed Attack and violation of law in the context of International Law. Currently, North Korea flatly denies the factual relations of the Cheonan Warship Incident and responsibility for its breach of international law concerning the Cheonan Warship Incident. Accordingly, it is advisable for the two Koreas to convene the "International Commission of Enquiry" by agreement to reaffírm factual relations and related causes by domestic and overseas personnel and experts recommended by the two sides in order to allow a neutral reinvestigation and acceptance of its results by the two sides. North Korea’s attack against the Cheonan Warship clearly constitutes an "armed attack." However, exercise of the right of self-defense acknowledged in customary international law and Article 51 of the UN Charter requires satisfaction of the requirements of "necessity" and "proportionality," i.e. armed force shall be used within an extent necessary to deter and counter an armed attack(invasion). In addition, it is necessary to meet the requirement of "immediacy": the right of self-defense is needed to be exercised without delay. Accordingly, when element of immediacy can no longer be acknowledged due to the passage of sufficient time from the end of an armed attack as in the case of the Cheonan Warship Incident, the right of self-defense is not exercisable. It is generally admitted that so called "preemptive self-defense" or "anticipatory self-defense" may not be invoked in order to justify ex post facto military action. An injured State may lake countermeasures for the purpose of subsequent inducement of the responsible State to stop violations of international law, guarantee the non-recurrence of such violations and provide reasonable reparations. Traditionally, "countermeasures" have been taken in the name of reprisals. "armed reprisals" where an injured State uses force to respond to an armed attack by a responsible State is not acknowledged as justifiable. since the "principle of non-use of force" does not allow "armed reprisals," it is required to seek other possible countermeasures including prohibiting North Korean vessels from entering South Korean territorial waters or reinforcing implementation of the PSI. Regarding the Cheonan Warship Incident, the most evidently suspected crime is a "crime of aggression." However, since the revision of the Rome Statute of the ICC providing the definition of the "crime of aggression" and the condition of ICC’s exercise of jurisdiction over a "crime of aggression" does not come into effect, ICC’s exercise of jurisdiction over the crime of aggression by Jeong Il Kim or any other responsible person is not possible. Given the purpose of the regulations, "a crime against humanity" means an act of murder or annihilation comprising a part of a wide or systematic attack against civilian residents.