• Journal of the Korean Society of Marine Environment & Safety
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• v.19 no.2
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• pp.179-185
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• 2013

UNCLOS recognizes the right of innocent passage in the ocean but grants jurisdiction and governance to the state of the flag the vessel flies. However, by granting the right to determine vessel's nationality to each country in UNCLOS and by practically consenting inconsistency with the ownership and the state of flag has made the keeping of maritime order quite difficult. Especially, acknowledging the exclusive rights of the flag state on criminal jurisdiction hinders the owner state from exercising its rights and exposes the problem of not taking into account the opinion of the affected state party. This study addresses these issues and examines international regulations on vessels and flag states, mainly UNCLOS, and provides case studies on how criminal jurisdiction is determined when accidents occur at sea. Furthermore, it takes a deeper look into the mutual assistance system in criminal matters and proposes some alternatives on how to overcome these issues.

• Journal of Navigation and Port Research
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• v.39 no.4
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• pp.313-318
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• 2015

A question has recently been raised as to whether a foreign officer needs to obtain a Korean endorsement in order to be able to serve on board a Korean flag ship. This is attributable to the fact that differences of viewpoint may arise as to the interpretation on the relation between the mutatis mutandis article 24(1) and the endorsement issuance article 10 bis. This study intends to propose an interpretative solution through conducting in-depth analysis on the article 25(1). The conclusions of this study can be given as follows. First, the jurisdiction over the bareboat charter ships with hire purchase shall be rested with the third country of which the flag the ship is flying, the endorsement to be issued to foreign officers have to be issued by the flag State under the STCW Convention as ameded. Second, the provisons of the ship officers' act shall not be made applicable, commensurate with the intention of legislating the mutatis mutandis article 25, to the BHC/HP in such a way that is in infringement with the jurisdiction of flag State of those foreign ships. Third, the mutatis mutandis article shall be made applicable to only such areas of manning standards not covered under the STCW Convention as amended and shall exclude those provisions pertaining to the issuance of various certificates of which the jurisdiction is rested with flag State under the international instrument. Fourth, the article 10 bis(1) is not a provision requiring foreign officers wishing to serve on a BBC/HP to obtain a Korean endorsement. In summation, the article 10 bis shall be used only in the cases where foreign officers wishing to serve on a Korean flag ship are required to obtain korean endorsement.

• Journal of the Korean Society of Marine Environment & Safety
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• v.17 no.1
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• pp.47-52
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• 2011

On the high seas, under international law, a ship is subject to the jurisdiction of the state whose flag she flies. Vessels of any flag are free to navigate the high seas without interference from other states. Thus, there are certain limits of coastal state's exercising law enforcement jurisdiction over a foreign flag vessel on the high seas. However, there are exceptions to exclusive flag state jurisdiction. One of them is the theory of constructive presence. The other is theory of partial execution. Korea Coast Guard's law enforcement authority should be exercised more actively based on those theories supported by the international cases.

• Journal of the Korean Society of Marine Environment & Safety
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• v.27 no.4
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• pp.465-473
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• 2021

Since the past, ships have hoisted national flags as a means of indicating their nationality. Both domestically and internationally, laws and conventions related to the nationality and hoisting of the flag have been enacted because it is significant that the nationality of a ship is a matter of the jurisdiction of the ship. Nevertheless, there are differences in domestic and international regulations related to the hoisting of the flag of a ship, and if the flag is not hoisted irrespective of the intention, there may be a difference in interpretation as to whether or not the ship will be regarded unconditionally as a stateless ship. However, there is no disagreement locally or abroad about the necessity of indicating the nationality of ships. Therefore, I would like to propose a method to indicate and confirm the nationality of the ship by using wireless communication equipment with hoisting the flag as the only way to express its nationality, reflecting the situation of the era such as high-speed, larger and unmanned ship. Representatively, the method utilizes the automatic identification system(AIS), which is one of the equipment legally installed in the ship, and includes the ship's nationality in its information. If the nationality information is included in the AIS, nationality can be identified earlier and even from a distance, and there will not be instances of nationality not being identified because the flag is not hoisted or the flag is damaged. In addition, it is expected that the problem of nationality indication can be solved even when vessels are unmanned in future.

• Journal of the Korean Society of Marine Environment & Safety
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• v.14 no.2
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• pp.149-156
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• 2008

The right of hot pursuit is an exception to the general rule that a ship on the high seas is subject to the jurisdiction of the state whose flag she flies. The right of hot pursuit is provided in the United Nations Convention on the Law of the Sea. This paper discusses the requirements for the right of hot pursuit. The use of force should be avoided during hot pursuit. When force is unavoidable, it should not be used beyond what is reasomable and necessary in the circumstances.

• Journal of the Korean Institute of Navigation
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• v.23 no.4
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• pp.43-61
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• 1999

To ensure ship's safety and preserve the marine environment from ship, IMO(International Maritime Organization) has been making much efforts. Nevertheless there are still many possibilities threatening ship's safety and the marine environment. Many vessels navigate at sea in lack of standard required by the International Convention relevant to ship's safety and the protection of marine environment. Even though the administration is responsible for perfect and continuous control for safety of ship, it cannot has jurisdiction over ships hoist its flag reasonably at all times. So the Port State has strengthened the Port State Control(PSC) activity as one step of eliminating sub-standard vessels. In the light of the fact that mentioned above, this study deals with PSC activity in Korea and port of Pusan. Total 582 ships, inspected in port of Pusan from 1st January 1998 to 30th September 1999, were analyzed in various aspect and extracted results as follows : \circled1 The inspection rate in Korea was much lower than the other states taking part in Tokyo MOU, \circled2 For flag state, the ships belong to flag of convenience(FOC) had much more deficiencies than non-convenience flag ships, \circled3 For ship type, 39 number of general dry cargo ship were detained at Pusan with serious deficiencies, \circled4 For deficiency item, the items such as life saving appliances, safety in general, navigation, load lines and fire-fighting appliances were occupied over 71.7% of total number of deficiencies, \circled5 In Asia-Pacific region, Korea was one of flags with detention percentages exceeding 3-year(1996~1998) rolling average detention percentage. Average detention rate of Korean vessels was 6.73% which was over 0.24% of average detention rate(6.49%) in Asia-Pacific region. These results may reflect to improve the performance of PSC inspection for foreign vessels and are useful for preparing PSC inspection for ocean-going ships registered in Korea.

• Proceedings of KOSOMES biannual meeting
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• 2008.05a
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• pp.197-204
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• 2008

The right of hot pursuit is an exception to the general rule that a ship on the high seas is subject to the jurisdiction of the state whose flag she flies. The right of hot pursuit is provided in the United Nations Convention on the Law of the Sea. This paper discusses the requirements of the right of hot pursuit. The use of force should be avoided during hot pursuit. When force is unavoidable, that is not go beyond what is reasonable and necessary in the circumstances.

• The Korean Journal of Air & Space Law and Policy
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• v.32 no.1
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• pp.201-224
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• 2017

The main subject of this article focused on the legal status of the military aircraft in the high seas. For this the legal status of the military aircraft, the freedom of overflight, the right of hot pursuit, the right of visit and Air Defense Identification Zone (ADIZ) were dealt. The 1944 Chicago Convention neither explicitly nor implicitly negated the customary norms affecting the legal status of military aircraft as initially codified within the 1919 Paris Convention. So the status of military aircraft was not redefined with the Chicago Convention and remains, as stated in the 1919 Paris Convention, as a norm of customary international law. The analyses on the legal status of the military aircraft in the high seas are found as follows; According to the Article 95 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. We can suppose that the military aircraft in the high seas have also complete immunity from the jurisdiction of any State other than the flag State. According to the Article 111 (5) of the UNCLOS the right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. We can conclude that the right of hot pursuit may be exercised by military aircraft. According to the Article 110 of the UNCLOS a warship which encounters on the high seas a foreign ship, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy, (b) the ship is engaged in the slave trade, (c) the ship is engaged in an unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109, (d) the ship is without nationality, or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. These provisions apply mutatis mutandis to military aircraft. As for Air Defence Identification Zone (ADIZ) it is established and declared unilaterally by the air force of a state for the national security. However, there are no articles dealing with it in the 1944 Chicago Convention and there are no international standards to recognize or prohibit the establishment of ADIZs. ADIZ is not interpreted as the expansion of territorial airspace.

• The Korean Journal of Air & Space Law and Policy
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• v.26 no.1
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• pp.3-30
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• 2011

According to the Article 86 of the United Nations on the Law of the Sea(UNCLOS) the provisions of high seas apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. Article 87 also stipulates the freedom of the high seas. International laws on the flight over the high seas are found as follows; Firstly, as far as the nationality of the aircraft is concerned, its legal status is quite different from the ship where the flags of convenience can be applied practically. There is no flags of convenience of the aircraft. Secondly, according to the Article 95 of UNCLOS warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. We can suppose that the military(or state) aircraft over the high seas have also complete immunity from the jurisdiction of any State other than the flag State. Thirdly, according to the Article 101 of UNCLOS piracy consists of any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft. We can conclude that piracy can de done by a pirate aircraft as well as a pirate ship. Fourthly, according to the Article 111 (5) of UNCLOS the right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. We can conclude that the right of hot pursuit may be exercised only military aircraft, or aircraft clearly marked and identifiable as being on government service and authorized to that effect. Fifthly, according to the Article 110 of UNCLOS a warship which encounters on the high seas a foreign ship, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy, (b) the ship is engaged in the slave trade, (c) the ship is engaged in an authorized broadcasting and the flag State of the warship has jurisdiction under article 109, (d) the ship is without nationality, or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. These provisions apply mutatis mutandis to military aircraft. Sixthly, according to the Article 1 (5)(dumping), 212(pollution from or through the atmosphere), 222(enforcement with respect to pollution from or through the atmosphere) of UNCLOS aircraft as well as ship is very much related to marine pollution. Seventhly, as far as the crime on board aircraft over the high seas is concerned 1963 Convention on the Offences and Certain Other Acts Committed on Board Aircraft(Tokyo Convention) will be applied, and as for the hijacking over the high seas 1970 Convention for the Suppression of Unlawful Seizure of Aircraft(Hague Convention) and as for the sabotage over the high seas 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation(Montreal Convention) will be applied respectively. These three conventions recognize the flag state jurisdiction over the crimes on board aircraft over the high seas. Eightly, as far as reconnaissance by foreign aircraft in the high seas toward the coastal States is concerned it is not illegal in terms of international law because its act is done in the high seas. Ninthly as for Air Defence Identification Zone(ADIZ) there are no articles dealing with it in the 1944 Chicago Convention. The legal status of the foreign aircraft over this sea zone might be restricted to the regulations of the coastal states whether this zone is legitimate or illegal. Lastly, the Arctic Sea is the frozen ocean. So the flight over that ocean is the same over the high seas. Because of the climate change the Arctic Sea is getting melted. If the coastal states of the Arctic Sea will proclaim the Exclusive Economic Zone(EEZ) as the ocean is getting melted, the freedom of flight over that ocean will also be restricted to the regulations of the coastal states.