SEOUL — As a result of the latest North-South naval clash on the West Sea, South Korean President Kim Dae Jung’s “sunshine policy” is now in shambles. But it need not have been so. Even before the defense ministers of the two Koreas sat down almost two years ago in Cheju following the 2000 Pyongyang summit — to discuss the relinking of the severed rail line across the demilitarized zone, or DMZ — procedures to prevent repeated naval clashes in the West Sea should have topped their agenda. In retrospect, this was an ominous omission.
The Northern Limit Line, or NLL, was drawn at the conclusion of the Korean War almost 50 years ago as a seaward extension of the military demarcation line that runs the length of the 4-km-wide DMZ separating North and South Korea. (Ironically, this was created as a military control line to prevent southern incursions into the North. South Korean President Syngman Rhee refused to sign the armistice agreement and, although he had agreed to abide by it, the United States was taking no chances.)
It has been controversial ever since, in part because it was unilaterally declared by the U.N. Command, or UNC, and in part because it has been increasingly viewed by the North as an infringement on its sovereignty and legitimate access to the sea under international law. In effect, the existence of the NLL is the unstated reason for continued clashes at sea. Moreover, the fact that it is not mentioned in the text of the armistice agreement itself makes its status under international law even more contentious. Here, issues of both international politics as well as international law are at stake.
The NLL was drawn in the context of the Cold War a half century ago. Given the thaw on the Peninsula following the June 2000 summit, it should be seen in a new context, as a basis for negotiation not confrontation. Indeed, the UNC is on record as favoring inter-Korean negotiations on the final status of this line, and the two Koreas themselves have agreed to respect the NLL provisionally in their 1992 basic agreement, viewing it as a fit subject for future negotiations. Without progress, though, more frequent and serious incidents are likely to happen. What should be a win-win situation will remain lose-lose with loss of life on both sides and with the potential to put the armistice agreement itself at risk.
The NLL may be fine as a line of military control, but it is flawed as a final border for purposes of international law. It neither supersedes nor invalidates the Law of the Sea; it merely constitutes a temporary expedient. And while South Korea has argued that the line is sacrosanct, largely because North Korea initially did not challenge it, this is just plain wrong. In fact, North Korea has challenged it on successive occasions (in 1973, 1982 and 1999) as the value of the fishing catch, particularly crab, in the area has become more apparent.
Negotiations, therefore, are a crucial first step. While those to replace the armistice would be complex and have proved beyond reach — most recently in three years of Four-Party talks — negotiations on a permanent West Sea boundary to replace the NLL would be relatively simple and straightforward, based on existing principles of international law.
In particular, Article 83 of the 1982 U.N. Law of the Sea Convention provides that “the delimitation of the continental shelf between states with opposite or adjacent shores shall be effected by agreement on the basis of international law in order to achieve an equitable solution.”
If the issue is ripe for negotiation, as former South Korean Foreign Minister Hong Soon Young proposed at the time of the first incident three years ago, it is even more urgent today. On what basis then should negotiations proceed?
Here both Koreas have staked out unreasonable positions. The North has put forward a so-called West Sea sea demarcation line that runs diagonally down from the DMZ and is drawn on the median baseline calculation. However, it also cuts off the natural prolongation of South Korea’s land territory into the sea, thereby violating the cardinal principle of nonencroachment of an adjacent state’s access to the territorial sea as well as leaving the maritime zone of the West Sea islands in legal limbo.
By the same token, the South seeks nothing more than to convert the NLL into a permanent maritime boundary, although it similarly encroaches North Korean territory, enveloping the Onjin Peninsula to protect five small South Korean-held islands — four of which stand like sentinels at either end of the North Korean-controlled peninsula that dwarfs them. Blocking the natural prolongation of this peninsula south of the 38th parallel into the territorial sea and the exclusive economic zone, or EEZ, beyond by small islands less than one-hundredth of the land mass of the former, and at distances ranging between 50 to 200 km from the South Korean mainland, is contrary to international law.
The West Sea configuration of mainland and islands is unusual only in that it reverses the more prevalent situation in which an island’s sea access is blocked by the mainland, not vice versa. However, in both instances, the International Court of Justice has upheld the same principle of nonencroachment.
In short, adjustments must be made to take into account the maritime zone of islands adjacent to a mainland, but not in such a way as to block access to the territorial sea and the exclusive economic zone, or EEZ, beyond it for the larger peninsula.
The ICJ ruling in the Gulf of Maine case between the U.S. and Canada is directly on point. In it, the court ruled that in the case of adjacent states, “all the relevant circumstances should be taken into account in such a way as to leave as much as possible to each party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea without encroachment on the natural prolongation of the land territory of the other.”
Only a small adjustment was made for an island in delimiting the maritime boundary between the U.S. state of Maine and the Canadian province of Nova Scotia. Differences in the length of the respective shorelines were also given effect, although such factors will vary with individual cases.
Assuming the intent here is to fish, not to engage in hostile action — a worrisome concern given the recent premeditated clash at sea — it is clearly in the best interest of the parties to promote fishing through the creation of a free fishing zone bounded by the overlap of their respective EEZs. Its precise geographical boundaries would be subject to negotiation or adjudication.
Instead of loss of life on both sides — a lose-lose situation — access to a free fishing zone rich in marine resources would be a win-win situation for both Koreas. Rather than focusing exclusively on rules of military engagement, the focus would shift to measures to enhance the legitimate fishing rights of both Koreas as a first step toward genuine confidence-building on the Peninsula.
Simple, mutually beneficial fishing rules and regulations could go a long way in replacing a psychology of military confrontation with one of cooperation.
Short of following in the footsteps of the U.S. and Canada in obtaining a ruling from the ICJ, the two Koreas should settle the issue of a West Sea maritime boundary peacefully on the basis of equitable access to the sea and nonencroachment, guiding principles of the Law of the Sea.
As a first step, North Korea should renounce its demand for negotiations with the UNC, which first imposed the NLL more than a half-century ago. The proper sequence should be for the two Koreas to first reach agreement on a final West Sea boundary line followed by a UNC statement declaring the NLL null and void.
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