New Agreement on Fisheries between theRepublic of Korea and Japan Case

[13-1 KCCR 676, 99Hun-Ma139, etc.,(consolidated),

March 21, 2001]

In this case, the Constitutional Court upheld the provisions in thenew Agreement on Fisheries between the Republic of Korea and Japanfor the reason that it does not violate the right of the complainants.

A. Background of the Case

In 1994, the 200-nautical-mile Exclusive Economic Zone (EEZ)regime began with the effectuation of the United Nations Convention on the Law of the Sea. On January 23, 1998, Japan unilaterally de-clared abrogation of the Agreement on Fisheries between the Republicof Korea and Japan (hereinafter called the "Fisheries Agreement")signed in December 1965. Then, on November 28, 1998, Korea andJapan agreed on a new Fisheries Agreement. The new FisheriesAgreement recognizes each country's claim on the 200-nautical-mileexclusive economic zone, but it establishes a neutral zone whereexclusive economic zones of the two nations overlap. The newFisheries Agreement grants the coastal nation the rights to decidefishing conditions such as fishing quotas of the other nation, or toallow or regulate the other country's fishing activities within its ex-clusive economic zone. According to the Agreement, neither of thetwo countries (Korea and Japan) can regulate fishing activities of theother country inside the neutral zone in the overlapping exclusiveeconomic zones, and the flag state has authority over its ships withinthe same region. Under the new Fisheries Agreement, the neutralzone in the overlapping exclusive economic zones included Tokdo, theeastern-most islets of Korea. Complainants who have fished in the

waters around Tokdo under the old Fisheries Agreement filed a con-stitutional complaint, alleging that the new Fisheries Agreementinfringed on the complainant's right to territory by forcing Korea togive up its territorial claims to Tokdo, and its right to fish aroundthe islets of Tokdo.

B. Summary of the Decision

Justices could not agree whether the instant case met the con- ditions required for a legitimate constitutional complaint. Two Jus-tices decided that the complaint did not meet the self-relatedness requirement, because the right to territory was not a basic right,and denied standing. On the other hand, seven Justices decided thata constitutional complaint could be filed based on the right to ter-ritory. Through its review on merits, the Court upheld the newFisheries Agreement between Korea and Japan on a majority vote.

(1) Majority Opinion

(A) Article 3 of the Constitution states that "the territory of theRepublic of Korea shall consist of the Korean peninsula and its adja- cent islands," thereby declaring the extent of territorial sovereignty ofKorea. However, not many academics, if any, interpret the territo-rial clause in the Constitution as a basis for a constitutional rightprotected by the State. This is because while a basic right is a sub-jective constitutional right of individual citizens the territorial clauseis a provision stipulating one of the fundamental physical compo-nents of a state. Protection of peoples' basic right is the objective of all governments, and it gives legitimacy to the state authorities.A constitutional complaint, one of the most representative means toprotect peoples' basic rights through constitutional adjudication, doesnot only function as a subjective means of providing relief to indi-viduals whose rights are violated but also serves as an objectivemeans to uphold the constitutional order. There may be cases wheresubstantial protection of the individual's basic rights would be im-possible if an objective constitutional order in the matter is not guar-anteed. One such example arises out of Article 3 of the Constitu- tion. Article 3 declares the territorial basis of our nation. Changesin our territorial frontiers inevitably bring about changes in the extentof sovereignty of our nation, thereby causing many changes in thesocial and legal orders. Changes in the national territory will even-tually lead to important changes in the scope of peoples' basic rights.In this respect, while it may not be possible to file a constitutionalcomplaint based on the territorial clause alone, the right to territorycould be regarded to constitute one of the basic rights upon whichthe Court

could review the constitutionality of the instant provisions.This would help achieve a more substantial protection of peoples'basic rights.

(B) The Agreement in this case is a fisheries agreement, and is not directly related to the territorial rights within the exclusive eco-nomic zones. Although the Agreement distinguishes an exclusive eco-nomic zone from a neutral zone, the neutral zone is formed betweenthe two countries by yielding a proportion of EEZ to their coastallines from a median line that would have to be drawn in case amutual argument on the EEZ is not made. In this light, it can beconcluded that interests of both countries have been duly reflected inthe instant Fisheries Agreement. An exclusive economic zone is anindependent entity from the territorial waters, and this is the samefor a neutral zone. Therefore, although Tokdo may be inside theneutral zone under the Agreement, the Agreement is not directly re-lated to the territorial claims to Tokdo. Thus, complainants' argu-ment that their right to territorial waters of Tokdo and the exclusiveeconomic zone have been violated by the instant Agreement lacks abasis

(2) Dissenting Opinion

The instant Fisheries Agreement is an agreement on fishing bynationals and ships of Korea and Japan in the exclusive economiczones of the two countries (refer to the preamble of the Agreement).Article 15 of the instant Agreement, stating that the Agreement shallnot be deemed to harm either parties' position on international legalissues other than the fisheries matter, makes it clear that the Agree-ment is not related to the territorial issues of both nations. Also,the territory, along with people and sovereignty, is a basic conditionto form a state, and the entity entitled with the territorial right isthe state, not individual citizens of the state.

Individual citizens could assert that a certain land part consti-tutes territory of the State or demand the State to guard its territo-ry, and territory is the basis for its citizens' livelihood or their basicrights. However, the right to territory is not a basic right that anindividual can demand the State to protect, and the instant citizen'sconstitutional complaint does not have standing in the Court, becausethere is no violation of a constitutional right.