SEOUL — Although the recent agreement between North and South Korea to set up a hotline, a shared radio frequency and a mutually recognizable naval signaling system to avoid future West Sea clashes — which claimed scores of lives in 1999 and 2002 — is certainly good news, it treats the symptoms and not the cause of tensions.
The Northern Limit Line, or NLL, is flawed as a final maritime boundary. The line veers sharply northwestward separating five tiny South Korean-held islands from the larger North Korean-held Ongjin Peninsula, effectively boxing in both naval and fishing fleets and denying them legitimate access to their territorial seas and their respective exclusive economic zones, or EEZ, beyond. And while delegations to these first-of-a-kind negotiations slipped across each other’s east coast borders with relative ease to meet at the North’s Mount Kumgang and the South’s Mount Seorak, they are only a start.
It is worth pondering the irony that the Mount Kumgang complex — which was originally built by Hyundai for South Korean tourist visits, is an important source of revenue for the North and has served as the venue for inter-Korean family visits — has now been put to yet another useful purpose in the expanding web of inter-Korean relations. A further irony is that the NLL was originally conceived as a way of keeping South Korean forces from venturing north to recapture the Ongjin Peninsula, as then-South Korean President Syngman Rhee threatened to do many times between 1953 and 1960. It was South Korean territory at the onset of the Korean War.
In essence, the NLL — the sea-based extension of the military demarcation line dividing the Demilitarized Zone, or DMZ, and the two Koreas for more than half a century — was a default line drawn in the absence of an agreed sea boundary between the two sides: the U.N. Command (UNC) on the one hand, and the North Korean People’s Army and Chinese People’s Volunteers on the other. It has since become a fault line during the summer fishing season as fleets from the two Koreas converge on the area, vying for the blue crab catch, an important source of export revenue for the cash-strapped North.
Is it merely a line in the water that can be altered, as the North argues, or a line in the sand, final and unalterable, as the South maintains?
The case for negotiating a new line is strong due to changes in the International Law of the Sea since the armistice was signed — the extended territorial sea limit as well as calculations relating to the 200-mile (320-km) EEZ and overlapping base lines extending from the adjacent coasts. Delimitation through negotiation ideally would result in a West Sea free fishing zone straddling the EEZs of the two Koreas, replacing a regime meant for states at war.
As University of Hawaii law professor Jon van Dyke has noted, mainland trumps islands in terms of generating maritime zones. However, as matters stand now, five smaller South Korea islands, standing like enveloping sentinels at either end of the Ongjin Peninsula, do precisely that. Further, the 3-mile (4.8-km) territorial sea limit that was the norm at the time the armistice was signed more than 50 years ago has now been enlarged to 12 miles under the 1982 U.N. Law of the Sea Convention. On these grounds alone, the North is entitled to more fishing space and greater access to the territorial sea and EEZ. To counter its claim, the South argues that the NLL is part of the armistice agreement. In reality, however, the NLL was unilaterally promulgated (Aug. 30, 1953) by the UNC more than a month after the armistice itself was signed (July 27, 1953).
In their 1991 North-South Basic Agreement, the two Koreas agreed to respect existing territorial and maritime boundaries pending further negotiations. The West Sea is, in effect, the nautical equivalent of where the rubber meets the road. It is a locale ready made for confidence-building measures to which the Basic Agreement refers at length. More broadly, it is the one security-related area where the two Koreas can take up the issue of reducing tensions on their own, since the UNC has delegated to the South Korean Navy the responsibility for maintaining the peace along the NLL. Success would represent an important impetus to future reconciliation efforts.
The two Koreas are nowhere near ready to begin negotiations on replacing the Korean War Armistice Agreement with a peace treaty. There are simply too many loose ends, and the United States, operating through the UNC, still has the formal, legal responsibility for maintaining the armistice.
Still, this would be a good place to start. Now, at least, Seoul and Pyongyang have a precious opportunity to begin to demonstrate an ability to deal constructively with security issues, thereby building up the requisite trust and confidence that has become fairly routine in the economic area and has led to the near completion of cross-border road and rail connections as well as the Kaesong Industrial Park.
What makes the latest round so promising is that, until now, the North has maintained that the UNC is its sole interlocutor on security issues. The meeting after the 2002 naval clash involved the UNC and North Korea in the context of general officer talks — not North and South military delegations. The fact that the latest round of meetings took place at all may be more important than where the final boundary falls, as it signals to the external powers that the two Koreas are capable of concluding an agreement on a sensitive security issue bilaterally.
Equally significantly, the U.S. has encouraged the two Koreas to resolve the dispute, although, in the past, Washington has shown a strong preference to be directly involved when security discussions involving North Korea took place. The U.S. has also not claimed the NLL as a permanent boundary, as Seoul continues to do — only that it should be respected given its practicality and effectiveness pending further negotiations.
This is an area where the South should give something to get something in return, namely the prospect of establishing a West Sea peace regime with rich dividends in catch for both Koreas. This should ultimately give way to a free fishing zone and access to the Northern and Southern EEZs by each other’s commercial fishing boats. In exploiting the rich maritime resources of the West Sea, there is plenty of fish to go around.
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