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“Republic of Korea v. Araye”

Published online by Cambridge University Press:  20 January 2017

Seokwoo Lee  and
Young Kil Park
Seokwoo Lee
Affiliation:
Inha University, Incheon, Korea
Young Kil Park
Affiliation:
Korea Maritime Institute
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Abstract

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Keywords

PiracySouth Koreaprosecution in national courtspassive personality principleuniversal jurisdiction
Type
International Decisions
Information
American Journal of International Law , Volume 106 , Issue 3 , July 2012 , pp. 630 - 636
Copyright
Copyright © American Society of International Law 2012

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References

1 Supteme Court [S. Ct.], No. 2011 Do 12927, Dec. 22, 2011 (“Republic of Korea v. Araye”) [hereinafter Judgment]. The Judgment is summarized in English online at http://eng.scoutt.go.kr/eng/decisions/guide.jsp. The Korean courts’ spelling of the first defendant’s surname is used here, but it is often rendered as “Arai” in English-language sources. Translations from the Korean below are by the authors unless otherwise noted.

2 The hijacking occurred about 350 nautical miles southeast of the port of Muscat, Oman, at latitude 22° north, longitude 64° east.

3 Busan District Court [Dist. Ct.], 2011 Go-Hap 93, May 27, 2011 (Eng. trans, by court) [hereinafter Dist. Ct. decision] (on file with author, leeseokwoo@inha.ac.kr).

4 Id.

5 Id. For the act, designated here by the shortened translation used in Statutes of the Republic of Korea, see infra note 23.

6 Si-soo, Park, Somali Pirates Goon Trial Today, Korea Times, May 22, 2011 Google Scholar, available in Lexis, News Library, Most Recent Two Years File. Under Article 7(1) of the Act on Citizen Participation in Criminal Trials, accused are entitled to seek a jury trial.

7 Dist. Ct. decision.

8 Id.

9 Busan High Court, 2011 No 349, Sept. 8, 2011.

10 Id. at 12-15.

11 United Nations Convention on the Law of the Sea, Art. 105, opened for signature Dec. 10, 1982, 1833 UNTS 3.

12 SC Res. 1816 (June 2, 2008); SC Res. 1846 (Dec. 2, 2008); SC Res. 1851 (Dec. 16, 2008); SC Res. 1897 (Nov. 30, 2009); SC Res. 1918 (Apr. 27, 2010); SC Res. 1976 (Apr. 11, 2011).

13 Hyongsa sosong beob [Criminal Procedure Act], Act No. 341, Sept. 23, 1954, Arts. 195, 196.

14 Dist. Ct. decision.

15 Id.

16 To cure this legal defect, a bill was proposed before the National Assembly, Somalia Haeyeok-eseo-ui Kukgunbudae Hwaldonge Kwanhan Teukryebeoban [Special Act for Military Activities in Somali Waters], Bill No. 1806600, Mar. 3, 2011. This proposed law grants judicial authority to ships’ captains by providing that “regarding acts of piracy in Somali waters, the captain is assigned the role of judicial officer and those appointed by the captain the role of enforcement officer.”

17 Rahn, Kim, Samho Jewelry Pirates Indicted, Korea Times, Feb. 25, 2011 Google Scholar, available in Lexis, News Library, Most Recent Two Years File.

18 Crewmen Return Home After Seven Months of Captivity, Korea Herald, Nov. 15, 2010, available in id.

19 See, e.g., Kontorovich, Eugene & Art, Steven, An Empirical Examination of Universal Jurisdiction for Piracy, 104 AJIL 436, 450-51 (2010)CrossRefGoogle Scholar.

20 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Mar. 10, 1988, 1678 UNTS 222 [hereinafter SUA Convention] (entered into force for Korea Aug. 12, 2003). Korea has yet to adopt the 2005 Protocol amending the SUA Convention.

21 International Convention Against the Taking of Hostages, Dec. 17, 1979, TIAS no. 11081, 1316 UNTS 205 (entered into force for Korea June 3, 1983).

22 This has been confirmed in numerous cases. See, e.g., S. Ct., 82 Da-Ka 1372, July 22, 1986 (recognizing that the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, “as amended by the Hague Protocol, has the same effect as domestic laws; and in relation to civil law, it is lex speciális”); Constitutional Court [Const. Ct.], 99 Hun-Ma 139, 142, 156, 160 (consol), Mar. 21, 2001 (stating that the Korea-Japan Fisheries Agreement, as “a treaty concluded and promulgated under the Constitution . . . has the same force and effect of law as domestic laws”); Const. Ct., 99 Hun-GA 13, Apr. 26, 2001; Const. Ct., 2002 Hun-Ma 611, Apr. 24,2001; Const. Ct., 2000 Hun-Ba 20, Sept. 27, 2001 (appeal to the unconstitutionally ruling on the Articles of Agreement of the International Monetary Fund, Art. 9(3)).

23 Sunbak mit haesanggujomule daehan wihaehaingwi chubul deonge gwanhan beobyul [Act on Punishment, etc. for Activities to Damage Ships and Maritime Structures], Act. No. 6880, May 27, 2003, amended by ha No. 9109, Sept. 14, 2008, and Act No. 11302, Feb. 10, 2012, Kwanbo [Official Gazette], Feb. 10, 2012.

24 Dist. Ct. decision.

25 Some domestic statutes implement treaty requirements for “extradite or prosecute” jurisdiction (e.g., Gukjehyungsajaepanso gwanhal beomjoiui chubul deonge gwanhan beobyul [Act on the Punishment of Crimes Within the Jurisdiction of the International Criminal Court], Act No. 8719, Dec. 21, 2007, amended by Act No. 10577, Apr. 12, 2011; and the Act on Punishment for Damaging Ships and Sea Structures, supra note 23).

26 Ministry of Justice, Explanatory Statement for Partial Amendment of the General Provisions of Criminal Law 22 (Apr. 2011) (in Korean).

27 Hyong beob gaejeongan [Draft Amendment to the Criminal Act], Bill No. 1811304, Mar. 25, 2011 [hereinafter Amendment]; see National Assembly of the Republic of Korea, Agenda Information System, at http://likms.assembly.go.kr/bill/jsp/BillDetail.jsp?bill_id=ARC_ZLJLG0J3C2J5BLK7G3T3I3SLJ9P3E9 (in Korean).

28 Amendment, supra note 27, Art. 7(1)—(4) lists use of explosives (Art. 119), counterfeiting of currency (Art. 207), acquisition of counterfeit currency (Art. 208), attempt to acquire counterfeit currency (Art. 212), counter feiting marketable securities (Art. 214), counterfeiting revenue and postal stamps (Art. 218), acquisition of coun terfeit marketable securities and revenue and postal stamps (Art. 223), abduction and kidnapping of minors (Art. 287), abduction, kidnapping, and sale for profit (Art. 288), abduction, kidnapping, and sale for international trans fer (Art. 289), abduction and kidnapping for marriage (Art. 291), purchase or harboring of abducted, kidnapped, or sold persons (Art. 292), attempts to violate Arts. 287-291, excluding habitual offenders (Art. 294).

29 Quoting Dist. Ct. decision.

30 Quoting id.

31 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171 (entered into force for Korea July 10, 1990).

32 For Article 6(1) of the Constitution, see text at note 22 supra.

33 Deportation may be considered, but pardoning those who committed grave offenses prior to deportation raises a policy issue. Releasing them from prison after the completion of their sentences may also cause problems. Reportedly, some of the pirates may desire to settle in Korea, but that may stir popular emotions. Deportation, however, may be a violation of Article 33 of the Convention and Protocol Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150, and Jan. 31, 1967, 19 UST 6223, 606 UNTS 267, respectively, to which Korea is a party.