북한의 행위와 국제법－ 대한민국 국적인 피해사례와 황강댐 무단방류사건을 중심으로

Abstract

A long list of internationally illegal acts committed by the Democratic People's Republic of Korea (DPRK, North Korea) against the Republic of Korea (South Korea) exists since the end of the 1950-53 Korean War. This article seeks to analyse and evaluate recent incidents between South and North Koreas from an international legal perspective, for example, the shooting death of a South Korean woman at Mt.Geumgang by North Korean soldiers in 2008, the detention and release of a Hyundai Asan worker at the Gaeseong Industrial Complex in 2009, the six casualties from flash flood in the Imjin River by an unannounced water-release by North Korea in 2009, etc. In July 2008, a South Korean female tourist was shot to death tragically during a visit to Mt.Geumgang. In March 2009, a South Korean worker at the Gaeseong Industrial Complex was detained in North Korea for over 130 days without any legal assistance. The North Korean authority even expelled some employees of private companies in Gaeseoung without any reasonable reasons. In September 2009, water released unexpectedly from a North Korean dam in the upper part of the Imjin River caused a flash flood that swept away six South Koreans camping alongside the river. The problem is that this series of incidents occurred even though relevant inter-Korean agreements were in place. So we should establish more effective legal mechanisms for protecting South Koreans. Before further elaboration, we consider two preliminary issues: first, can international law be applied to inter-Korean relations which are not an inter-states relation but a temporary situation pursuing the reunification of the two Koreas someday?; secondly, what is the legal status of inter-Korean agreements or joint communiqués adopted since 1971? These instruments are so-called 'gentlemen's agreements' which are not legally binding each other party. Concerning these given main issues, we propose two solutions to ameliorate the existing 'Inter-Korean Agreement concerning Staying and Passage to and from Gaeseoung and Mt.Geumgang' comparing the protocols concluded between the KEDO (the Korean Peninsula Energy Develop- ment Organization) and the DPRK during the 90's. Also we try to find any applicable rules for non-navigation uses of inter-Korean waterways, in particular the Imjin River which flows from North Korea to South Korea via the western part of the DMZ. On the basis of existing relevant norms of international customary law, the two Koreas shall work to adopt a new 'Agreement on the Prevention of Flood in the Imjin River Basin' through exchanges of documents, and accordingly, undertake an on-site survey.