Analysis of relevant laws on reclamation of Korean tidal wetlands and court debates observed at the Saemangeum reclamation lawsuit

摘要

In Korea, the process of launching the large-scale reclamation of tidal wetlands continues unabated, as exemplified by recent plan of tidal power plant construction controversies. Yet, the argument that public waters to which the management of tidal wetlands belongs must be conserved and used in a sustainable way is nominally supported and accepted within relevant public policies and acts. This paper examines the reasons for this discrepancy among the legal system and the reclamation reality from the legal perspective. This work analyzes the legislative history and contents of Public Waters Management and Reclamation Act (PWMRA) as reclamation of tidal wetlands enabling act, in addition to its relationship with associated relevant acts purporting to conserve and make sustainable use of public waters. It is concluded that large-scale reclamations of public waters in Korea will be realized whenever necessary, unless the PWMRA is retrofitted toward a conservation-oriented legislative policy, such as "conservation must be prioritized as a rule, reclamation must be allowed where there are unavoidable reasons as an exception to the rule". The PWMRA has basically evolved to respond to newly created reclamation needs in accordance with changes to industrial circumstances, despite the evaluation of reclamation plans becoming slightly stricter compared to before. Existing conservation-orientated acts that have potential to regulate reclamation were developed within certain boundaries to not be in conflict with each other. Yet, in general the Court had not placed special weight on environmental values over developmental values in environmental litigations, with rulings being determined on a case by case basis. Furthermore, if possible environmental costs incurred by reclamation were not clearly substantiated by objective evidence, the Court is prone to hesitate in ordering the reconsideration of a reclamation project such as Saemangeum Reclamation Project. The Court should accept precautionary principle as legal doctrine if it tries an active role in protecting public waters from types of use that are not compatible with sustainable use.