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The Republic of Korea’s Maritime Boundaries

by Jon M. Van Dyke1

William S. Richardson School of LawUniversity of Hawaii at Manoa

Honolulu, [email protected]

The Republic of Korea inhabits a peninsula surrounded by the sea, but its ocean space is

restricted because it has close neighbors in each direction. Although the Korean people have a

long tradition of fishing in waters near and far, the ocean resources they control under the rules

established by the 1982 United Nations Law of the Sea Convention2 and other principles of

international law are limited because of the crowded geography of Northeast Asia. This paper

examines the issues related to each of South Korea’s maritime boundaries, explains how the

complex legal principles governing maritime boundaries might be applied in the Korean context,

and analyzes the options the Republic of Korea might pursue in negotiating the delimitation of

its boundaries.

The maritime aspects of these boundary disputes are complicated enough, as the

materials below explain, but they are made even more complicated because of uncertainty about

whether the now-divided Korean peninsula will remain separated into two countries indefinitely

and because of Japan’s continued claim to the Korean-held islet of Tok-Do (which Japan calls

1 This research was undertaken with assistance and support of the Korea-America Joint Marine Policy Research Center, the Korean Maritime Institute, and the University of Rhode Island Department of Environmental & Natural Resource Economics.

2 United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/122, reprinted in 21 I.L.M. 1261 (1982) and The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983). All the countries of Northeast Asia, with the exception of North Korea, have ratified this Convention. North Korea may be reluctant to accede to the Convention because its straight-baseline and military zone claims in the East Sea are inconsistent with the principles articulated in the Convention and because it does not want South Korea’s five islets in the West Sea to be given full capacity to generate maritime zones in relationship to North Korea’s coast. See infra text accompanying notes 55-59, 79-80, 132-41.

Takeshima), located about half-way between the two countries. The boundaries between North

and South Korea are included in the discussions that follow, because they are part of the mix of

decisions that must be addressed by the Republic of Korea in the coming years, but they are

clearly of a different character than the boundary delimitations South Korea must undertake with

China and Japan. The disputes between the two Koreas are deep and complicated and include

whether the peninsula should remain divided. As a practical matter, it is highly unlikely that the

maritime boundary issues between the two Koreas will be addressed in the near future, and

certainly not before more fundamental decisions are made. The delimitations between South

Korea and its neighbors Japan and China are also complicated, both from a legal and political

perspective, as the materials that follow explain.

The Principles that Govern Maritime Boundary Delimitation

In order to analyze the positions taken by the Republic of Korea and its neighbors

regarding their disputed maritime boundaries, it is useful first to summarize the principles that

have emerged from recent judicial and arbitral decisions on boundary disputes. Articles 74 (on

the exclusive economic zone) and 83 (on the continental shelf) of the Law of the Sea

Convention both state that boundary delimitations are to be “effected by agreement on the basis

of international law, as referred to in Article 38 of the Statute of the International Court of

Justice, in order to achieve an equitable solution.” This reference to “an equitable solution”

mirrors the original statement promulgated by the United States when it claimed sovereignty

over its continental shelf in 1945 and stated that: “In cases where the continental shelf extends to

the shore of another State, or is shared with an adjacent State, the boundary shall be determined

by the United States and the state concerned in accordance with equitable principles.”3 Although

3 Proclamation No. 2667 (usually referred to as the Truman Proclamation), Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 10 Fed. Reg. 12,303 (1945).

some commentators have argued that the term “equitable” has no definite meaning, fairly

specific “equitable principles” have in fact emerged during the past three decades:4

** The Equidistance or Median-Line Approach Can Be Used as an Aid to Analysis,

But It Is Not to Be Used as a Binding or Mandatory Principle. In the Libya/Malta case,5 the

Gulf of Maine case,6 and the Jan Mayen case,7 among others, the International Court of Justice

(ICJ) examined the equidistance or median line8 as an aid to its preliminary analysis, but then

adjusted the line in light of the differences in the length of the coastlines of the contending

parties.9 The Court has made it clear in all these cases that the equidistance line is not mandatory

or binding.

** The Proportionality of Coasts Must Be Examined to Determine if a Maritime

Boundary Delimitation Is "Equitable." It has now become well established that an essential

element of a boundary delimitation is the calculation of the relative lengths of the relevant

coastlines. If this ratio is not roughly comparable to the ratio of the provisionally-delimited

maritime space allocated to each country, then the tribunal will generally make an adjustment to

4 The material that follows is adapted and updated from Jon M. Van Dyke, The Aegean Sea Dispute: Options and Avenues, 20 Marine Policy 397, 398-401 (1996), and from Jon M. Van Dyke, Mark J. Valencia, and Jenny Miller Garmendia, The North/South Korea Boundary Dispute in the Yellow (West) Sea, 27 Marine Policy 143, 150-53 (2003).

5 Continental Shelf (Libya v. Malta), 1985 I.C.J. 13.

6 Case Concerning Delimitation of the Maritime Boundary in Gulf of Maine Area (US v. Canada), 1984 I.C.J. 246.

7 Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v. Norway), 1993 I.C.J. 38.

8 In the context of maritime delimitation, the terms “equidistance line” and “median line” seem to be used interchangeably.

9 Jonathan I. Charney, Progress in International Maritime Boundary Delimitation Law, 88 Am. J. Int’l L. 230, 244-45 (1994).

bring the ratios into line with each other.10 In the Libya/Malta Case, for instance, the ICJ started

with the median lines between the countries, but then adjusted the line northward through 18' of

latitude to take account of the "very marked difference in coastal lengths"11 between the two

countries. The Court then confirmed the appropriateness of this solution by examining the

"proportionality" of the length of the coastlines of the two countries12 and the "equitableness of

the result."13 In the Jan Mayen Case, the ICJ determined that the ratio of the relevant coasts of

Jan Mayen (Norway) to Greenland (Denmark) was 1:9, and ruled that this dramatic difference

required a departure from reliance on the equidistance line. The final result was perhaps a

compromise between an equidistance approach and a proportionality-of-the-coasts approach,

with Denmark (Greenland) receiving three times as much maritime space as Norway (Jan

Mayen).14

** Geographical considerations will govern maritime boundary delimitations and

nongeographic considerations will only rarely have any relevance.15 The Gulf of Maine case

was perhaps the most dramatic example of the Court rejecting submissions made by the parties

10 This approach has been used in the Gulf of Maine Case, supra note 6, the Libya/Malta Case, supra note 5, the Jan Mayen Case, supra note 7, and the Delimitation of the Maritime Areas Between Canada and France (St. Pierre and Miquelon), 31 I.L.M. 1149 (1992) [hereafter cited as the St. Pierre and Miquelon Case]. See generally Charney, supra note 9, at 241-43.

11 Libya/Malta Case, supra note 5 1985 I.C.J. at 49 para. 66.

12 Id. at 53 para. 74.

13 Id. para. 75. In the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 25 I.L.M. 252 (1986), the arbitral tribunal also evaluated the "proportionality" of the coasts to determine whether an "equitable solution" had been achieved by the boundary line chosen. Id. para. 120.

14 See also the Eritrea-Yemen Arbitration, <http://www.pca-cpa.org> (1998-99), where the tribunal relied upon the test of “a reasonable degree of proportionality” to determine the equitableness the boundary line; the tribunal was satisfied that this test was met, in light of the Eritrea-Yemen coastal length ratio (measured in terms of their general direction) of 1:1.31 and the ratio of their water areas of 1:1.09. 1999 Award, paras. 20, 39-43, 117, and 165-68.

15 See Charney, supra note 9, at 236 (discussing the Libya/Malta and the St. Pierre and Miquelon Cases, supra notes 5 and 10).

regarding nongeographic considerations, such as the economic dependence of coastal

communities on a fishery, fisheries management issues, and ecological data.

** “Natural prolongation” is no longer a prominent factor in maritime delimitations.

The concept of the continental shelf as a "natural prolongation" of the adjacent continent is a

geographical notion, but it has not played any significant role in decisions rendered during the

past two decades. It was first recognized in the North Sea Continental Shelf Case16 and is found

in Article 76(1) of the Law of the Sea Convention (defining continental shelves that extend

beyond 200 nautical miles), but it appears to have been rejected as a factor relevant to maritime

boundary delimitation in, for instance, the Libya/Tunisia Case,17 the Libya/Malta Case,18 and

Gulf of Maine Case.19 In the St. Pierre and Miquelon Case,20 the arbitral tribunal stated that the

continental shelf was generated by both Canada's and France's land territories, and thus that it

was not a "natural prolongation" of one country as opposed to the other. The abandonment of

the natural prolongation approach in all recent decisions has required countries to adjust their

negotiation strategies in recent agreements, and may have a significant effect in Northeast Asia,

because China and South Korea have both made arguments based on this theory, as is discussed

below.21 To some extent, the Principle of Non-Encroachment, discussed next, has taken the

place of the natural-prolongation idea, but it leads to some different results.

** The Principle of Non-Encroachment. This principle is included explicitly in Article

16 North Sea Continental Shelf Case (Fed. Rep. of Germany v. Denmark; F.R.G. v. Netherlands), 1969 I.C.J. 3.

17 Continental Shelf (Tunisia v. Libya), 1982 I.C.J. 18.

18 Libya/Malta Case, supra note 5.

19 Gulf of Maine Case, supra note 6.

20 St Pierre and Miquelon Case, supra note 10.

21 See infra text accompanying notes 122-30, 150-59.

7(6) of the Law of the Sea Convention, which says that no state can use a system of straight

baselines "in such a manner as to cut off the territorial sea of another State from the high seas or

an exclusive economic zone." It played a significant role in the delimitation of the exclusive

economic zone (EEZ) in the Jan Mayen Case, where the Court emphasized the importance of

avoiding the blockage of a coastal state's entry into the sea. Even though Norway's tiny Jan

Mayen island was minuscule in comparison with Denmark's Greenland, Norway was allocated a

maritime zone sufficient to give it equitable access to the important capelin fishery that lies

between the two land features.22 The unusual 16-nautical-mile-wide and 200-nautical-mile-long

corridor drawn in the St. Pierre and Miquelon Case23 appears to have been based on a desire to

avoid cutting off these islands' coastal fronts into the sea. But, at the same time, the arbitral

tribunal accepted Canada's argument that the French islands should not be permitted to cut off

the access of Canada's Newfoundland coast to the open ocean.

** The Principle of Maximum Reach. This principle first emerged in the North Sea

Continental Shelf Case,24 where Germany received a pie-shaped wedge to the equidistant point

even though this wedge cut into the claimed zones of Denmark and the Netherlands. Professor

Charney reported in 1994 that this approach had been followed in later cases: "No subsequent

award or judgment has had the effect of fully cutting off a disputant's access to the seaward limit

of any zone."25 The decisions during the past decade have confirmed the importance of this

principle. In the Gulf of Fonseca Case, the Court recognized the existence of an undivided

condominium regime in order to give all parties access to the maritime zone and its resources,26

22 1993 I.C.J. 38, 69 para. 70, 79-81 para. 92.

23 St. Pierre and Miquelon Case, supra note 10.

24 North Sea Continental Shelf Case, supra note 16, 1969 I.C.J. at 45 para. 81.

25 Charney, supra note 9, at 247.

26 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), 1992

and in the St. Pierre and Miquelon Case, France was given a narrow corridor connecting its

territorial sea with the outlying high seas.27 The geographical configuration in the Jan Mayen

Case presented different issues, but even there the Court gave Norway more than it "deserved"

given the small coastline and tiny size of Jan Mayen Island, apparently to enable it to have at

least "limited geographical access to the middle of the disputed area,"28 which contained a

valuable fishery. Several interests are served by the Maximum Reach Principle--"status" (by

recognizing that even geographically disadvantaged countries have rights to maritime resources),

the right "to participate in international arrangements as an equal," navigational freedoms, and

"security interests in transportation and mobility."29

** Each Competing Country Is Allocated Some Maritime Area. This principle is

similar to the Non-Encroachment and Maximum-Reach Principles, but must be restated in this

form to emphasize how the International Court of Justice has approached maritime boundary

delimitations. Although the Court has attempted to articulate consistent governing principles, its

approach to each dispute has, in fact, been more like the approach of an arbitrator than that of a

judge. Instead of applying principles uniformly without regard to the result they produce, the

Court has tried to find a solution that gives each competing country some of what it has sought,

and has tried to reach a result that each country can live with.30 In that sense, the Court has

operated like a court of equity, or as a court that has been asked to give a decision ex aequo et

I.C.J. 351, 606-09 paras. 415-20 [hereafter cited as Gulf of Fonseca Case].

27 St. Pierre and Miquelon Case, supra note 10, 31 I.L.M. at 1169-71, paras. 66-74.

28 Charney, supra note 9, at 248.

29 Id. at 249.

30 This point was developed in more detail in Mark B. Feldman, International Maritime Boundary Delimitation: Law and Practice From the Gulf of Maine to the Aegean Sea, in Aegean Issues – Legal and Political Matrix 1 (Seyfi Tashan ed., Foreign Policy Institute, Ankara, Turkey, 1995). Feldman observed that tribunals adjudicating international maritime boundary cases "never award[] a party the whole of its claim. The result is always a compromise of one form or other." Id. at 2.

bono.31 Perhaps such an approach is inevitable, and even desirable, given that the goal of a

maritime boundary delimitation, as stated in Articles 74 and 83 of the Law of the Sea

Convention, is to reach an "equitable solution."

** Islands Have a Limited Role in Resolving Maritime Boundary Disputes. Article 121

of the Law of the Sea Convention says that all islands, except “rocks” that “cannot sustain

human habitation or an economic life of their own,” generate exclusive economic zones and

continental shelves, but the ICJ and arbitral tribunals have not, in fact, given islands equal ability

to generate zones when they are opposite continental land areas or substantially larger islands.32

This conclusion has been reached consistently in the North Sea Continental Shelf Case,33 the

Anglo-French Arbitration,34 the Libya/Tunisia Case,35 the Libya/Malta Case,36 the Gulf of Maine

31 Normally the Court will issue a decision ex aequo et bono only "if the parties agree thereto....." I.C.J. Statute, art. 38 (2).

32 See generally Jon M. Van Dyke, The Role of Islands in Delimiting Maritime Zones: The Case of the Aegean Sea, in The Aegean Sea: Problems and Prospects 263 (Foreign Policy Institute (Ankara) ed. 1989); also published in Ocean Yearbook 8 at 44, 54-64 (Elisabeth Mann Borgese, Norton Ginsburg, and Joseph R. Morgan eds. 1990), and in 61 Trasporti (Trieste, Italy) 17 (1993)(discussing the Case Concerning the Delimitation of the Continental Shelf Between the United Kingdom of Great Britain and Northern Ireland and the French Republic, 18 United Nations Reports of International Arbitral Awards (RIAA) 74 (1977), reprinted in 18 I.L.M. 397 (1979)[hereafter cited as Anglo-French Arbitration]; Libya/Tunisia Case, supra note 17; Gulf of Maine Case, supra note 6; and Libya/Malta Case, supra note 5).

33 North Sea Continental Shelf Case, supra note 16, at para. 101(d) ("the presence of islets, rocks, and minor coastal projections, the disproportionality distorting effects of which can be eliminated by other means" should be ignored in continental shelf delimitations).

34Anglo-French Arbitration, supra, note 32. The arbitral tribunal did not allow the Channel Islands, which were on the “wrong side” of the median line drawn between the French mainland and England, to affect the delimitation at all (giving them only 12-nautical-mile territorial sea enclaves), and gave only “half effect” to Britain’s Scilly Isles, located off the British Coast near Land’s End.

35 Libya/Tunisia Case, supra note 17, para. 129. The Court gave only half-effect to Tunisia’s Kerkennah Islands, even though the main island is 180 square kilometers and then had a population of 15,000, and it completely disregarded the island of Jerba, an inhabited island of considerable size, in assessing the general direction of the coastline. Id. paras. 120 and 79.

36 Libya/Malta Case, supra note 5, at 48 para. 64. The Court ruled that equitable principles required that the uninhabited tiny island of Filfla (belonging to Malta, five kilometers south of the main island) should not be considered at all in delimiting the boundary between the two countries. Even more significantly, the Court refused to give full effect to Malta’s main island, which is the size of Washington, D.C., and

Case,37 the Guinea/Guinea-Bissau Case,38 the Jan Mayen Case,39 and the St. Pierre and

Miquelon Arbitration.40

With regard to very small islands, tribunals have given them only limited power to

generate maritime zones if their zones would reduce the size of zones created by adjacent or

opposite continental land masses. Tiny islets are frequently ignored altogether, as in the North

Sea Continental Shelf and Libya/Malta Cases, but even substantial islands are given less power

to generate zones than their location would warrant, as in the Libya/Tunisia and Libya/Malta

Cases. This approach was also followed in the recent Eritrea-Yemen arbitration, where the

tribunal gave no effect whatsoever to the Yemenese island of Jabal al-Tayr and to those in the al-

Zubayr group, because their “barren and inhospitable nature and their position well out to

sea...mean that they should not be taken into consideration in computing the boundary line.”41

Similarly, in the recent Qatar-Bahrain case, the International Court of Justice ignored

contains hundreds of thousands of individuals, and adjusted the median line northward because of the longer length of the Libyan coast and its resulting greater power to generate a maritime zone.

37 Gulf of Maine Case, supra note 6, at para. 222. The Chamber gave half effect to Seal and Mud Islands. Seal Island is 2½ miles long and is inhabited year round.

38 In the Guinea/Guinea-Bissau Case, supra note 13, the arbitral tribunal gave no role to Guinea's small islet of Alcatraz in affecting the maritime boundary.

39 In the Jan Mayen Case, supra note 7, the Court allowed the barren island of Jan Mayen to generate a zone, but did not give it a full zone because of its small size in comparison to the opposite land mass -- Greenland.

40 In the St. Pierre and Miquelon Case, supra note 10, the tribunal gave the small French islands only an enclave and a corridor to the high seas because of their limited size in comparison to Newfoundland.

41 Eritrea-Yemen arbitration, supra note 14, 1999 Award, paras.147-48. The tribunal also gave the Yemenese islands in the Zuqar-Hanish group less power to affect the placement of the delimitation line than they would have had if they had been continental landmasses. These islets, located near the middle of the Bab el Mandeb Strait at the entrance to the Red Sea, were given territorial seas, but the median line that would otherwise be drawn between the continental territory of the two countries was adjusted only slightly to give Yemen the full territorial sea around these islets. The tribunal did not, therefore, view these islets as constituting a separate and distinct area of land from which a median or equidistant line should be measured, illustrating once again that small islands do not have the same power to generate maritime zones as do continental land masses. Id. paras. 160-61.

completely the presence of the small, uninhabited, and barren Bahraini islet of Qit’at Jaradah,

situated about midway between the main island of Bahrain and the Qatar peninsula, because it

would be inappropriate to allow such an insignificant maritime feature to have such a

disproportionate effect on a maritime delimitation line.42 The Court also decided to ignore

completely the “sizeable maritime feature” of Fasht al Jarim located well out to sea in Bahrain’s

territorial waters, which Qatar characterized as a low-tide elevation and Bahrain called an island,

and about which the tribunal said: “at most a minute part is above water at high tide.”43 Even if

it cannot be classified as an “island,” the Court noted, as a low-tide elevation it could serve as a

baseline from which the territorial sea, exclusive economic zone, and continental shelf could be

measured.44 But using the feature as such a baseline would “distort the boundary and have

disproportionate effects,”45 and, in order to avoid that undesirable result, the Court decided to

ignore the feature altogether.

** The Vital Security Interests of Each Nation Must Be Protected. This principle was

recognized, for instance, in the Jan Mayen Case, where the Court refused to allow the maritime

boundary to be too close to Jan Mayen Island,46 and it can be found in the background of all the

recent decisions. The refusal of tribunals to adopt an "all-or-nothing" solution in any of these

42 Qatar-Bahrain Maritime Delimitation and Territorial Questions, Decision of March 13, 2001, http://www.icjcij.org/icjwww/idocket/iq...ment_20010316/iqb_ijudgment_20010316.htm, paras. 219 (citing North Sea Continental Shelf, supra note 16, para. 57, and Libya/Malta, supra note 5, para. 64, for the proposition that “the Court has sometimes been led to eliminate the disproportionate effect of small islands”). The Court reached this conclusion even though it asserted, in paragraph 185, that Article 121(2) of the Law of the Sea Convention, supra note 2, “reflects customary international law” and that “islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory.”

43 Id. paras. 245-48.

44 Id. para. 245.

45 Id. para. 247 (quoting from the Anglo-French Arbitration, supra note 32, at para. 244).

46 Jan Mayen Case, supra note 7, at para. 81.

cases illustrates their sensitivity to the need to protect the vital security interests of each nation.

The unusual decision of the ICJ Chamber in the El Salvador-Honduras Maritime Frontier

Dispute, concluding that El Salvador, Honduras, and Nicaragua hold undivided interests in the

maritime zones seaward of the closing line across the Gulf of Fonseca,47 illustrates how sensitive

tribunals are to the need to protect the interests of all countries. It has also become increasingly

common for countries to establish joint development areas in disputed maritime regions.48

** Summary of Maritime Boundary Delimitation Principles. For the Republic of

Korea, the key principles that emerge from the decisions rendered during the past 25 years are:

(1) the natural prolongation principle no longer receives much attention, (2) very small islands

tend to be ignored altogether and even larger islands have a reduced role in affecting a maritime

boundary because their coastlines will inevitably be shorter than that of an opposite continental

land mass or larger island, (3) countries appear to have a right to avoid being totally suffocated

by an ocean zone of a neighbor that cuts them off from access to the seas altogether and

innovative corridors have been constructed to avoid that result, and (4) decisionmakers tend to

give each competing country some of what they seek, to protect their vital security interests, and,

to some extent, to split the difference between the countries in order to achieve the “equitable

solution” sought by Articles 74 and 83 of the Law of the Sea Convention. Another important

emerging trend is that most countries now prefer a single maritime boundary that divides the

exclusive economic zone and the continental shelf at the same location. The factors governing

these two separate delimitations are the same, and it is convenient in most regions to have the

same line for both boundaries.

47 See Charney, supra note 9, at 230 and 235 (discussing Gulf of Fonseca Case, supra note 26, 1992 I.C.J. at 606-09 paras. 415-20).

48 See generally The South China Sea: Hydrocarbon Potential and Possibilities of Joint Development (Mark Valencia ed. 1981); Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea 183-87 (1997).

Some Other Preliminary Matters

Baselines

The claims of coastal states to exclusive economic zones and continental shelves are

measured from their baselines. The normal baseline is simply the point where the land meets the

sea and it follows the contours of the actual coastline. Article 7(1) of the Law of the Sea

Convention allows countries to use straight baselines if their coastline is deeply indented or if a

fringe of offshore islands masks the coastline, but under Article 7(3) the straight baselines must

not depart appreciably from the general direction of the coast.49 Once straight-baselines are

drawn, the waters landward of these lines are “inland waters,” which are totally controlled by the

coastal country, and the next 12 nautical miles are “territorial sea,” which is sovereign territory,

and through which vessels can pass only if the passage is “innocent.” For maritime boundary

purposes, baselines become crucial because any median or equidistance line that might be drawn

to divide overlapping maritime zones would start from the baselines.

When South Korea established straight baselines along its southern and western coasts in

1965, and in 1977 when it enacted the Territorial Sea Act of Korea, it consulted extensively with

Japan. South Korea has a somewhat irregular west coast and fringing islands along some areas,

so that its baseline claims along its western and southern coasts are generally thought to be

consistent with the Law of the Sea Convention, with the possible exception of the 54-mile line

between Hong-do and Hoeng-do in the southwest and the 60-mile line between Cholmyong and

Sohuksan-do in the south.50 China and Japan have raised some questions about whether the

Korean baselines are consistent with the requirements of Articles 7 and 10 of the Law of the Sea

49 See generally J. Peter A. Bernhardt, Straightjacketing Straight Baselines, in International Navigation: Rocks and Shoals Ahead? 85-99 (Jon M. Van Dyke, Lewis Alexander, and Joseph R. Morgan eds. 1988).

50 Observations made by Lewis M. Alexander in International Navigation, id., at 189

Convention.51

China’s use of a high-tide elevation about 70 nautical miles off Shanghai called Dongdao

(Barren Island) is of dubious legitimacy and has been challenged by its neighbors because is so

far from the coast and thus departs dramatically from the general direction of the coastline.

China has also used some low-tide elevations as basepoints for its baselines.52 These basepoints

are proper under Article 7(4) of the Law of the Sea Convention only if the low-tide elevations

have lighthouses or other permanent fixtures on them. China’s coast south of the Yangtze

estuary is deeply indented, but the coastline north of the Yangtze appears to be more regular and

the use of baselines there is inconsistent with the requirements of Article 7 of the Law of the Sea

Convention.53 Korean scholars have challenged all the basepoints north of the mouth of the

Yangtze as violating the principles established in Articles 7 and 13 of the Law of the Sea

Convention.54

North Korea apparently claims one single 300-nautical-mile straight baseline along its

east coast connecting the northeast corner of the country at the mouth of the Tumen River to its

southeast corner where the Armistice Line meets the sea.55 Such a claim certainly exceeds the

51 See Gab-Yong, Jeong, Legal Issues of Delimitation of Maritime Boundaries 3 (Korean Maritime Institute, Feb. 17, 2003).

52 For a map showing the effect of the Dongdao basepoint, see Choon-ho Park, Prospects for Maritime Policy Coordination in the Asia-Pacific: Agenda for Peace of the Oceans, in Marine Policy, Maritime Security and Ocean Diplomacy in the Asia-Pacific 27 (Dalchoong Kim, Choon-ho Park, Seo-Hang Lee, and Jin-Hyun Paik, eds., Yonsei University Institute of East and West Studies, Seoul, 1995).

53 See, e.g., U.S. State Dept. Bureau of Oceans and International Environmental and Scientific Affairs, Straight Baseline Claim (Limits in the Sea No. 117, 1996), at 3 (“Much of China’s coastline does not meet either of the two LOS Convention geographic conditions required for applying straight baselines,” i.e., a deeply indented coastline or a fringe of islands along the coast).

54 See Gab-Yong, Jeong, supra note 51, at 4-9.

55 See Jin-Hyun Paik, Some Legal Issues Relating to Maritime Jurisdictions of North Korea, in The International Implications of Extended Maritime Jurisdiction in the Pacific 94, 94-95 (John P. Craven, Jan Schneider, and Carol Stimson eds., Law of the Sea Institute, Honolulu, 1989)(citing references to two Soviet sources republished in U.S. Navy Dept., Manual of International Maritime Law 386-87 (1968),

permissible limits established by Article 7 of the Law of the Sea Convention, and this line is not

recognized as legitimate by most countries, including the United States.56 This coastline is not

particularly deeply indented57 and does not have any fringing islands, and North Korea has never

made a serious claim that its two indentations on the East Sea should be viewed as historic

bays.58 Professor Paik has concluded that: “It seems very doubtful that the East Korea Bay and

the small indentation north of it would fall under the category of historic bays.”59

Japan’s baseline claims are also of questionable legitimacy in some locations. Japan’s

first effort at baseline delimitation occurred in 1977 in its Law on the Territorial Sea (Law No.

30), which went into effect on July 1, 1977. Its straight-baseline claims are disputed because

Japan’s coastline is not generally viewed as being “deeply indented” nor does it have “fringing

islands.” Some baselines connect remote islands far from the main islands, and some are more

than 50 miles long. Deputy Minister Lark-Jung Choi of Korea’s Ministry of Maritime Affairs

and Fisheries (MOMAF) has explained that 46 of Japan’s straight baselines exceed 24 nautical

miles in length and 21 exceed 40 nautical miles.60 The longest baseline is 62.26 nautical miles in

the area west of Kyushu. Korean scholars and officials complain in particular about the straight

baselines that are drawn around Wakasa Bay, Toyama Bay, and Kyushi Bay, which do not meet and G.S. Gorshkov, International Legal Regime of the Pacific Ocean, 7 Morskoy Sbornik 97 (1970)); J.R.V. Prescott, Maritime Jurisdiction in East Asian Seas 21 (Occasional Papers of the East-West Center Environment and Policy Institute, Honolulu, Hawaii, Paper No. 4, 1987).

56 Statement by Morris Sinor, CINCPAC Fleet Judge Advocate, in International Navigation, supra note 49, at 337; see generally Paik, supra note 55, at 94-96.

57 Paik describes the east coast of North Korea as “simple and monotonous with few offshore islands.” Paik, supra note 55, at 100. Prescott calls the broad bay Tongjoson Man a “slight curvature.” Prescott, supra note 55, at 18.

58 See, e.g., id. Prescott explains that: “Straight baselines would only be appropriate on the east coast [of North Korea] if they enclosed historic bays.” Id. at 19. See also infra text accompanying notes 76-77.

59 Paik, supra note 55, at 101.

60 Lark-Jung Choi, Lessons from Korea’s Bilateral Fisheries Agreements with Japan and China (Republic of Korea Ministry of Maritime Affairs and Fisheries, Jan. 2002)

the definition in Article 10 of the Law of the Sea Convention of a legal bay,61 as well as those

drawn in the Shikoku area, Nodu Bay, and Hekurajima, “and in many other places.”62 These

straight baselines, if accepted, would have the effect of increasing Japan’s territorial sea by about

13% and its exclusive economic zone by almost 25%.63

In June 1997, a South Korean captain was arrested by the Japanese Maritime Safety

Agency for violating the Japanese “Law concerning Regulation of Fishing Activities by

Foreigners,” which prohibits foreign fishing in Japan’s territorial sea. His vessel was 18.9 miles

off the coast of Hamada, Shimane Prefecture, but was deemed by Japan to be within its territorial

waters because of its baseline claims. Japan adopted its baselines without consultation or

acquiescence by South Korea, and in apparent violation of the 1965 Fishery Treaty between the

two countries, which required such consultations.64 Japanese courts at first reached inconsistent

conclusions on the legal issues raised by this and other arrests, but they eventually concluded that

Japan had the unilateral right to declare and define its territorial sea and could exercise exclusive

jurisdiction in that area.65

The Breadth of the Territorial Sea

A central issue in the maritime boundary dispute in the West Sea between North and

South Korea is the breadth of territorial sea that can be drawn around South Korea’s five small

61 See Gab-Yong, Jeong, supra note 51, at 4. Prescott has observed that “Japan closes bays that have mouths less than 24 nm wide without any apparent reference to the semi-circle test contained in the 1958 and 1982 Conventions on the Law of the Sea.” Prescott, supra note 55, at 24.

62 Choi, supra note 60, at 5.

63 Id.

64 Tsuneo Akaha, Japan-South Korea Fishery Agreement: Pursuing Pragmatic Interests Without Compromising Sovereignty, in Harry N. Scheiber (ed.), Law of the Sea: The Common Heritage and Emerging Challenges 249, 253-54 (The Hague, Martinus Nijhoff, 2000).

65 Id., at 255 (citing Asahi Shimbun, June 25, 1998 at 25 (Nagasaki District Court decision of June 24, 1998), and Sept. 12, 1998, at 22 (Matsue Branch of the Hiroshima Superior Court decision of Sept. 11, 1998)); Hee Kwon Park, Japan v. Kim Sun-Ki, 92 Am. J. Int’l L. 301 (1998).

islands that are adjacent to North Korea’s coast. Article 3 of the Law of the Sea Convention

allows countries to claim territorial seas of 12 nautical miles, but in some congested ocean areas,

countries have claimed smaller territorial seas out of recognition of the legitimate interests of

their neighbors. In the Aegean Sea, for instance, Greece and Turkey have claimed territorial seas

of six nautical miles, in order to preserve navigational freedoms and permit some shared use of

this ancient sea.66 Other examples where states have agreed to establish territorial seas of less

than 12 nautical miles around islands that are in cramped locations or are on the "wrong" side of

the median line include the Venezuelan island of Isla Patos (between Venezuela and Trinidad &

Tobago),67 the Abu Dhabi island of Dayyinah (between Abu Dhabi and Qatar),68 and the

Australian islands in the Torres Strait (between Australia and Papua New Guinea),69 all of which

have been given only three nautical miles of territorial sea. Another intriguing example is found

in the 1984 agreement between Argentina and Chile, where these two countries limited their

territorial sea claim in relation to each other to three nautical miles, but claimed 12-nautical-mile

territorial seas with regard to all other countries.70

66 Greece claimed six nautical miles in Law No. 230 of Sept. 17, 1936, Official Gazette (Greece), vol. A. No. 450/1936. Turkey extended its Aegean territorial sea to six nautical miles in 1964. Statement of Ambassador Namik Yolga, at the Aegean Issues Conference, Istanbul, Jan. 20, 1995. Greece has stated periodically that it may extend its territorial sea to 12 nautical miles, and said, for instance, in Article 2 of Greek Law 2321/1995, which ratified the Law of the Sea Convention that “Greece has the inalienable right, in application of Article 3 of the Convention which is being ratified, to extend at any time the breadth of its territorial sea up to a distance of 12 nautical miles.” Turkey has regularly responded to such statements that such an extension would be a casus belli because it would convert most of the Aegean into Greek territorial waters and restrict freedom of movement of the ships and planes of Turkey and other nations.

67 Hiran W. Jayewardene, The Regime of Islands in International Law 425 (1990).

68 Id. at 437.

69 Id. at 441, 455, and 485.

70 Treaty of Peace and Friendship Between Argentina and Chile, Nov. 29, 1984, reprinted in 1 Jonathan Charney and Lewis Alexander, International Maritime Boundaries 719 (1993); see also Papal Proposal in the Beagle Channel Dispute Proposal of the Mediator (Dec. 12, 1980), art. 9, 24 I.L.M. 1, 13 (1985).

An intriguing geographical analogy can be found in the Gulf of Finland, where the

important Russian port of St. Petersburg (formerly Leningrad) sits at the eastern end, wedged in

between Finland in the north and Estonia in the south.71 Finland has claimed a 12-nautical mile

territorial sea generally, but has limited its claim to three nautical miles in the Gulf of Finland to

enable Russia to have a corridor for unimpeded access to the Baltic Sea.72

Another analogy closer to home is in the straits of Northeast Asia, where Japan – which

asserts a 12-nautical-mile territorial sea in general -- claims only a three-nautical mile territorial

sea in the Soya Strait, the Tsugaru Strait, the eastern and western channels of the Tsushima

Strait, and the Osumi Strait.73 In fact, both South Korea and Japan have limited their territorial-

sea claims around the land areas adjacent to the Korean Strait to three nautical miles, in order to

permit unimpeded passage through this area.74 Similarly, Belize has defined its territorial sea as

extending 12 nautical miles from its coast, but has limited the claim to only three nautical miles

between the mouth of the Sarstoon River and Ranguana Caye in order to give Guatemala a

corridor for unimpeded transit into the Caribbean Sea, pending further negotiations.75

71 This example and most of those that follow were provided by J. Ashley Roach, of the Office of the Legal Adviser, U.S. Department of State, April 7, 2000.

72 For the Finnish legislation, see 29 United Nations Law of the Sea Bulletin 56.

73 Japanese Law on the Territorial Sea No. 30 of May 2, 1977, listed in National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone 177-82 (U.N. Sales No. E.95.V.7, 1995); see also U.S. Dept. of State, Limits in the Sea No. 120, Straight Baseline and Territorial Sea Claims: Japan (1998).

74 See, e.g., Choon-Ho Park, The Korea Strait, in International Navigation, supra note 49, at 173; Prescott, supra note 55, at 23-24. One informed commentator has written that the same approach of claiming limited three-nautical-mile territorial seas utilized by Japan and Korea to allow navigational freedom has also been used by “Germany and Denmark, and by Denmark, Sweden and Finland.” Bernard H. Oxman, Applying the Law of the Sea in the Aegean Sea, in Problems of Regional Seas 2001 at 266, 279 (Bayram Ozturk ed. 2001).

75 The Belize legislation is at 21 U.N. Law of the Sea Bulletin 3.

These varied examples illustrate that the 12-nautical-mile territorial sea is not sacred or

written on tablets. Countries have been flexible in asserting such claims in order to

accommodate the interests of their neighbors – and free passage in general – through congested

areas. In may be, therefore, that it would inappropriate for South Korea to insist on its right to

claim 12-nautical-mile territorial seas around its five small islands off of North Korea’s

coastline.

Historic Waters

China has always claimed the large Bohai Bay just below Korea as a historic bay. The

distance between the headlands defining the bay is 55 nautical miles across,76 so it fails to meet

the definition of a juridical bay in Article 10(4) of the Law of the Sea Convention (which limits

such bays to bodies of water with an entrance point less than 24 nautical miles across), but China

argues that the small islands scattered across the mouth of the Bay strengthen its claim. These

small islands could be viewed as “a fringe of islands” that mask the coast under Article 7(1) of

the Law of the Sea Convention, thus justifying the drawing a straight baselines across the mouth

of the Bohai. On the other hand, it could be argued that these baselines do not follow “the

general direction of the coast” and thus violate Article 7(3) of the Convention. The Republic of

Korea understands China’s claim, but has never acknowledged its legitimacy. Japan has raised

reservations about the claim. The United States has apparently not objected to China’s historic-

bay claim for Bohai Bay.77

76 Prescott, supra note 55, at 16.

77 See J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims 33-34 (2d ed. 1996)(omitting any reference to China’s Bohai Bay when they list the U.S. protests to historic waters claims).

Occasionally scholars speculate whether the North Korea could claim the indentations on

its east coast as “historic bays,” but they do not appear to meet the criteria of a claim made over a

period of time which has been enforced against and accepted by others.78

Exclusive Economic Zones.

North Korea was the first country in the region to declare an exclusive economic zone on

June 21, 1977, apparently utilizing a median line79 to draw the boundary between North and

South Korea, and it also declared a 50-mile Military Boundary Zone effective August 1, 1977,

which has a dubious status under international law.80 That same year, Japan followed the lead of

other countries, and declared an extended fishing zone around its islands, but explicitly exempted

Korean and Chinese fishing vessels from the application of this new Fishing Zone.81 Japan,82

78 See UN Secretariat, Juridical Regime of Historic Waters, Including Historic Bays, 2 Yearbook of the International Law Commission 1-26 (1962). See also supra text accompanying notes 58-59.

79 The North Korean decree says that the claim “is up to the half-line of the sea in those waters where the 200-mile economic sea zone cannot be established.” See Paik, supra note 55, at 103 (quoting from The Pyongyang Times, July 9, 1977, and the Foreign Broadcast Information Service, Vol. IV, July 1, 1977).

80 See, e.g., Choon-ho Park, The 50-Mile Military Boundary Zone of North Korea, 72 Am. J. Int’l L. 866 (1978); Bruce D. Larkin, East Asian Security Zones, 2 Ocean Yearbook 282, 290 (1980)(reporting the U.S. protest regarding this zone and comparing it to other security claims); Louis B. Sohn, International Navigation: Interests Related to National Security, in International Navigation, supra note 49, at 307, 313; Jin-Hyun Paik, supra note 55, at 107-13.

81 Law on the Provisional Measures Relating to the Fishing Zone (Law No.31), May 2,1977. Japan provided this exemption because “Japanese fishing in [the coastal waters of its neighbors] was much more extensive than South Korean or Chinese fishing in Japanese coastal waters,” and hence Japan feared “South Korea and China would likely retaliate by extending their jurisdiction to the same distance from their coasts.” Akaha, supra note 64, at 130-49.

82 Japan ratified the Law of the Sea Convention on June 7, 1996 and promulgated its Law on the Exclusive Economic Zone and the Continental Shelf on July 20, 1996. The exact extent of the Japanese EEZ remains unclear. A Japanese foundation has published a map that draws 200-nautical-mile zones around every Japanese islet, no matter how small and uninhabitable, but the Japanese government has never produced a map showing the full extent of its claim. For an example of what Japan’s EEZ would look like if it were claimed around every Japanese islet, see Mark J. Valencia, Domestic Politics Fuels Northeast Asian Maritime Disputes 2 (AsiaPacific Issues No. 43, East-West Center, April 2000). A claim of an EEZ around every islet would appear to be contrary to Article 121(3) of the 1982 Law of the Sea Convention, supra note 3; see generally Jon M. Van Dyke, Joseph R. Morgan, and Jonathan Gurish, The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ? 25 San Diego L. Rev. 425 (1988).

South Korea,83 and China84 declared exclusive economic zones in 1996, about the same time each

country ratified the Law of the Sea Convention.

The Maritime Boundaries Between the Republic of Korea and Japan85

Japan and the Republic of Korea entered into two agreements in 1974 – a delimitation of

part of their continental shelf boundary86 and the creation of a joint development zone in disputed

territory.87 The agreed continental shelf boundary is based on a median line which starts at the

midpoint between Korea’s Cheju Island and Japan’s Goto Retto and then heads north, moving

closer to the Korean coastline because of the Japanese island of Tsushima in the Korean Strait

and then veering back away from the Korean coast as it heads north. This line stops abruptly at a

spot known as Point 35 because of the claims both countries have for sovereignty over

Tok-Do/Takeshima and their disagreement over whether it should play a role in determining the

boundary delimitation in that region.

In the second agreement, Japan and Korea established a joint development zone in a

disputed area south of Cheju Island to permit each country to explore for hydrocarbons. Korea

argued that Japan’s “Tori-shima group [of islands], separated by a deep trench on the seabed

83 The Republic of Korea ratified the Law of the Sea Convention on January 29, 1996 and promulgated its Exclusive Economic Zone Act on September 10, 1996.

84 China ratified the Law of the Sea Convention on June 20, 1996 and promulgated its Law on the Exclusive Economic Zone and the Continental Shelf on May 15, 1996.

85 For discussion of these boundary disputes, see generally Young-Koo Kim, Northeast Asian Maritime Boundaries and Islands Disputes, in Maritime Boundary Issues and Islands Disputes in East Asian Region (1997), and Prescott, supra note 55.

86 Agreement Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries of 30 January 1974, in The Law of the Sea; Maritime Boundary Agreements (1970-1984) 283 (U.N. Office for Ocean Affairs and the Law of the Sea, 1987); Limits in the Sea No. 75 (U.S. State Dept. 1979); Charney and Alexander, supra note 70, at 1057.

87 Agreement Between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, Jan. 30, 1974, in Jonathan I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries 1073 (1993).

from the main Japanese islands, was not entitled to claim a continental shelf”88 and thus that,

using the natural-prolongation principle, Korea’s boundary should extend almost to these

Japanese islands.89 Japan disagreed, advocating use of an equidistance line. It took protracted

negotiations to develop a joint development zone in the disputed area. Korea ratified the

agreement right away in 1974, but Japan’s ratification did not occur until 1978.90 That same

year, Japan and Korea established an agreed framework whereby both countries agreed to engage

in joint exploration of the continental shelf by 2028. This joint exploration has been underway,

and in August 2002, the Korea National Oil Corporation agreed with the Japan National Oil

Corporation to resume cooperation which had begun in 1986.91

As explained above and examined in more detail below,92 the natural prolongation theory

was prominent in 1974, but it has not been utilized by any tribunal adjudicating a maritime

boundary during the past two decades.93 It may be, therefore, that when it is time to reexamine

this agreement, Korea’s negotiating position will be weakened.

Tok-Do/Takeshima

These two tiny rocky islets situated midway between the main land areas of Japan and

88 Douglas M. Johnston and Mark J. Valencia, Pacific Ocean Boundary Problems – Status and Solutions 65-66 (1991).

89 The small Japanese islets called Danjo Gunto, located on the 32nd parallel just east of 128 degrees latitude, are awkwardly located from Korea’s perspective. “South Korea does not dispute Japan’s ownership of Danjo Gunto, but takes the view that these are Japanese islands standing on South Korea’s continental shelf.” Prescott, supra note 55, at 37.

90 Id. at 66.

91 Yonhap News Agency, South Korea, Japan to Resume Joint Exploration for Oil, Gas Reserves, BBC Monitoring Asia Pacific - Political, Aug. 1, 2002.

92 See supra and infra text accompanying notes 16-21, 122-30, 150-59.

93 See supra text accompanying notes 17-20.

Korea have a combined land area of 0.23 square kilometers or 58 acres.94 They have limited

water sources, and have been uninhabited historically.95 But since 1954 about 45 South Korean

marine police have been stationed there (and one family stays there in the summer) in order to

support Korea’s claim to sovereignty over the islets. Once a year, “Japan sends a protest note

rejecting South Korea’s claim to ownership of these features.”96 Their location in the middle of

the East Sea/Sea of Japan -- 50 miles east of Korea’s Ullung-do and 90 miles northwest of

Japan’s Oki Islands -- gives them an importance and status if they were to have an effect on the

delimitation of marine space. They have served as a fishing station for harvesting abalone and

seaweed and hunting seals, and they are near rich fishing grounds.

Korea’s claim to sovereignty over the islets is stronger than that Japan, based on the

historical evidence of the exercise of sovereignty and the principle of contiguity (because the

islets are closer to Korea’s Ullong-do than to Japan’s Oki Islands), but most importantly because

of Korea’s actual physical control of the islets during the past half century.97

It is very significant for the Republic of Korea that all judicial and arbitral decisions

regarding sovereignty disputes over islands since World War II have focused on which country

94 The rugged beauty of these rocky islets and its surrounding flora and fauna are brought to life in Ministry of Maritime Affairs and Fisheries (Republic of Korea), Beautiful Island, Dokdo (2000).

95 In a 1966 publication, the Tok-Do features were described as follows:Both islets are barren and rocky, with the exception of some grass on the eastern islet, and their coasts consist of precipitous rocky cliffs. There are numerous caves where sea-lions resort. These islets are temporarily inhabited during the summer by fishermen.

Hydrographer of the Navy, 1 Japan Pilot 200 (HMSO, London, 1966). See also Johnston and Valencia, supra note 88, at 113 (“These islets are uninhabitable, and under Article 121 of the 1982 U.N. Convention on the Law of the Sea should not have an EEZ or continental shelf.”).


97 See, e.g., Johnston and Valencia, supra note 88, at 113-15 (1991); Benjamin K. Sibbett, Tokdo or Takeshima? The Territorial Dispute Between Japan and the Republic of Korea, 21 Fordham Int’l L.J. 1606 (1998); articles in Korea Observer, Vol. 28, No. 3 (Autumn 1997), and Vol. 29, No. 1 (Spring 1998); Mark J. Valencia, Calming the Tok-do (Takeshima) Controversy, Trends, March 10-31, 1996, at 1.

has exercised actual governmental control over the feature during the previous century, rather

than on earlier historical records.98 The first major decision by the International Court of Justice

regarding ownership of an isolated uninhabited island feature was the decision in the Minquiers

and Ecrehos Case,99 where the Court explained that: "What is of decisive importance, in the

opinion of the Court, is not indirect presumptions deduced from events in the Middle Ages, but

the evidence which relates directly to the possession of the Ecrehos and Minquiers groups."100

This view was followed in the Gulf of Fonseca Case,101 where the court focused on evidence of

actual recent occupation and acquiescence by other countries to determine title to disputed islets,

and the recent decisions in the Eritrea-Yemen Arbitration,102 where the tribunal relied explicitly

on the Minquiers and Ecrehos judgment for the proposition that it is the relatively recent history

of use and possession of the islets that is most instructive in determining sovereignty and that the

historical-title claims offered by each side were not ultimately helpful in resolving the dispute:

“The modern international law of acquisition (or attribution) of territory generally requires that

there be: an intentional display of power and authority over the territory, by the exercise of

jurisdiction and state functions, on a continuous and peaceful basis.”103

This very same approach was utilized by the Court in its recent decision resolving a

dispute between Malaysia and Indonesia over two tiny islets – Ligitan and Sipadan.104 The larger

98 See generally Valencia, Van Dyke, and Ludwig, supra note 48, at 17-19.

99 Minquiers and Ecrehos Case (France/United Kingdom), 1953 I.C.J. 47.

100 Id. at 57 (emphasis added).

101 Gulf of Fonseca Case, supra note 26.

102Eritrea-Yemen Arbitration, supra note 14.

103Id., 1998 Award, para. 239.

104Sovereignty over Pulau Ligitan and Pulau Sipadan, 2002 I.C.J. – (Dec. 17, 2002).

of the islets (Sipadan) is 0.13 square kilometers in size.105 Neither has been inhabited

historically, but both have lighthouses on them and Sipadan has recently been “developed into a

tourist resort for scuba-diving.”106 The Court first addressed arguments based on earlier treaties,

maps, and succession, but found that they did not establish any clear sovereignty.107 It then

looked at the “effectivites” – or actual examples of exercises of sovereignty over the islets, and

explained that it would have to look at exercises of sovereignty even if they did “not co-exist

with any legal title.”108 Indonesia claimed title based on various naval exercises in the area

conducted by themselves and previously by their colonial power (the Netherlands), but Malaysia

prevailed based on the governmental actions of its colonial power (the United Kingdom)

exercising control over turtle egg collection and constructing lighthouses on both islets.109

The language and rulings provided by the Court are directly relevant to the

Tok-Do/Takeshima dispute. The Court’s opinion explained that “a claim of sovereignty based

on...continued display of authority...involves two elements each of which must be shown to

exist: the intention and will to act as sovereign, and some actual exercise or display of such

authority.”110 In “areas in thinly populated or unsettled countries,” the Court “has been satisfied

105 Id. para. 14.

106 Id.

107 Id. paras. 58, 72, 80, 92, 94, 96, 114, and 124.

108 Id. para. 126 (citing Frontier Dispute (Burkina Faso/Republic of Mali), 1986 I.C.J. 587 para. 63; Territorial Dispute (Libyan Arab Jamahiriya/Chad), 1994 I.C.J. 38 paras. 75-76; Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), 2002 I.C.J. –, para. 68). 109 Id. para. 132.

110 Id. para. 134 (quoting from Legal Status of Eastern Greenland (Denmark v. Norway), P.C.I.J. Series A/B, No. 53, at 45-46).

with very little,”111 but the contrary claims of other countries will also be relevant.112 The Court

relied upon only those displays of sovereignty that occurred before “the dispute between the

Parties crystallized [which was 1969 in the Ligitan/Sipadan dispute] unless such acts are a

normal continuation of prior acts and are not undertaken for the purpose of improving the legal

position of the Party which relies on them.”113 In the course of its decision, the Court explained

that actions of private parties will not be relevant “if they do not take place on the basis of

official regulations or under governmental authority.”114

The consistent reasoning in these ICJ decisions strengthens Korea’s claim of sovereignty

to Tok-Do. Korea was not in a position to exercise control during the first part of the twentieth

century, because it had been annexed by Japan, but as soon as it regained its independence it

asserted control over the islets, and has continued to exercise sovereignty over them since then.

In July 2001, the South Korean National Maritime Police Agency announced it would

commission a 5,000-ton-class vessel carrying a crew of 97 – entitled the Sambong, the name of

Tok-do during the Choson Dynesty – to patrol the waters around Tok-do beginning in February

2002.115

As explained above,116 Article 121(3) of the Law of the Sea Convention says that “rocks”

111 Id. para. 134 (quoting from Legal Status of Eastern Greenland, id., at 45-46).

112 Id. para. 134 (quoting from Legal Status of Eastern Greenland, id. at 45-46). In this regard, the Court noted that it was significant that Indonesia’s map of its archipelagic baselines “do not mention or indicate Ligitan and Sipadan as relevant base points or turning points.” Id. para. 137. The Court also found significant that neither Indonesia nor its predecessor the Netherlands “ever expressed its disagreement or protest” regarding the construction of lighthouses on Ligitan and Sipadan in the early 1960s. Id. para. 148.

113 Id. para. 135.

114 Id. para. 140.

115 Yonhap News Agency, South Korea Commissions New Patrol Boat for Disputed Isle Area, July 13, 2001.

116 See supra text accompanying note 32.

that “cannot sustain human habitation or economic life of their own”117 are entitled to a 12-

nautical-mile territorial sea, but not an exclusive economic zone or a continental shelf. The

language in Article 121(3) does not appear to support a claim of an EEZ around these disputed

islets, because they have never been inhabited, and the United Kingdom has recently renounced

any claim to an EEZ or continental shelf around its barren granite feature named Rockall which

juts out of the ocean northwest of Scotland. But Japan nonetheless apparently takes the position

that these two outcroppings are “islands” that are entitled to generate such zones, and has

apparently claimed an EEZ around the islets in its 1996 declaration.118 Other countries have been

expansive in claiming extended maritime space around features that are clearly rocks, and the

legitimacy of such claims remains in dispute.

The better approach, and the approach taken by the Republic of Korea is that, since these

islets are archetypal examples of “rocks” under the rule laid down in Article 121(3) of the Law

of the Sea Convention, they should not be entitled to generate an exclusive economic zone or a

continental shelf.119 If the maritime boundary eventually becomes the equidistance line between

Korea’s Ullong-do and Japan’s Oki Gunto, as explained below, then Tok-Do would be on the

Korean side and should not affect the boundary delimitation. If some other approach is used, and

Tok-Do is somehow on the Japanese side of the boundary, its maritime zone should be limited to

a 12-nautical-mile territorial sea enclave.

117 Law of the Sea Convention, supra note 2. See generally Valencia, Van Dyke, and Ludwig, supra note 48, at 41-45; Van Dyke, Morgan, and Gurish, supra note 82.

118 See discussion of Japan’s EEZ in note 82 supra.

119 See Johnston and Valencia, supra note 88, at 113; Daniel J. Dzurek, Deciphering the North Korean-Soviet (Russian) Maritime Boundary Agreements, 23 Ocean Development & Int’l L. 31, 42 (1992). Japan argues, however, that Tok-do/Takeshima qualify as “an island and should not be disregarded in a continental shelf delimitation, without indicating the weight to be attributed to [them] in a delimitation.” Alex G. Oude Elferink, The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation 302 (1994)(citing 29 Japanese Ann. Int’l L. 131(1986)).

Delimiting the Maritime Boundary in the East Sea/Sea of Japan

Japan and the Republic of Korea have had difficulty delimiting their continental shelf

boundaries because of their dispute over Tok-Do/Takeshima and also because they disagree on

the ability of tiny islands to generate zones. Should Tok-Do be given full effect, half effect, or

no effect? Korea argues that neither the tiny Japanese islet of Danjo Gunto nor Tok-Do should

generate an EEZ or continental zone because they are uninhabitable rocks and thus do not

qualify for such zones under Article 121(3) of the Law of the Sea Convention.

In 1998, Japan and Korea entered into a new fisheries agreement120 designed to

accommodate their continuing dispute over the area around Tok-Do, which introduced two

“provisional zones” or “intermediate zones” in disputed areas, where fishing vessels from each

country can operate, and also included a commitment by both countries to reduce their overall

catch. One shared zone is in the Sea of Japan/East Sea near the disputed islets of Tok-Do and the

other is in the East China Sea south of Cheju Island and just north of the Japan-China Provisional

Measure Zone. Third countries do not have rights to fish in these shared zones. The agreement

also gave each country a zone that extends 35 nautical miles from the coastlines, which is called

an exclusive economic zone, allowing each country, after the first three years during which

historic fishing rights are phased out, to harvest an equal amount from the other’s zone. This

agreement has been seen as a “provisional agreement” as called for in Article 74(3) of the Law

of the Sea Convention pending final determination of the maritime boundary.121 The 1998

Treaty established a compromise joint-use zone around the Tok-Do/Takeshima islets, and

carefully regulated how much fish of each species could be caught within the zone, and in the

120 Japan-Republic of Korea Agreement on Fisheries of 28 November 1998, entered into force Jan. 22, 1999; revised March 17, 1999.


adjacent national-jurisdiction zones. The agreement had the effect of reducing South Korean

fishing in Japanese waters, but South Korea did retain access to part of the productive Yamato

Bank, where some 1,000 South Korean vessels had been catching about 25,000 metric tons of

squid each year (but the Korean catch was to be gradually reduced to the same level as that of the

Japanese vessels).

The Maritime Boundary Between the Republic of Korea and China

China has always argued that the “natural prolongation” approach should be used in both

the Yellow Sea (West Sea) and the East China Sea, which, according to China’s theory, entitles

China to ownership of the entire continental shelf off its coast to a “silt line,” “which divides the

sands derived from Korea and the silty sediments that have flowed out from the Hwang Ho and

Yangstze Rivers and given name to the Yellow Sea.”122 This sedimentation apparently “is also

reflected in the topography of the seabed, feature by an axial valley two-thirds across the Yellow

Sea towards Korea, which divides a smooth gentle slope extending from the Chinese shore from

the steep and less regular slope off the Korean coast.”123 This “silt line” has been drawn on a

published map,124 and it would cover about half of the maritime zone the Republic of Korea

would be entitled to if an equidistance line were drawn between its coast and that of China. At

times, China has made an even more expansive claim, arguing that it is entitled to all the

submerged land in the East China Sea to the Okinawa Trough, which is just west of Japan’s

small southern islands. Under this approach, China’s continental shelf would include most, if

122 Johnston and Valencia, supra note 88, at 106.

123 Id. (citing Choon-ho Park, Maritime Claims in the China Seas: Current State Practices, 18 San Diego L. Rev. 443-54 (1981)). See also Paul C. Yuan, The New Convention on the Law of the Sea from the Chinese Perspective, in Consensus and Confrontation: The United States and the Law of the Sea Convention 184, 195-204 (Jon M. Van Dyke ed.1985).

124 Johnston and Valencia, supra note 88, at 112 (citing Mark J. Valencia, Northeast Asia: Petroleum Potential, Jurisdictional Claims, and International Relations, 20 Ocean Development & Int’l L. 35 (1989)).

not all, of the Japanese-Korean Joint Development Zone, which China has consistently

denounced as a violation of its rights. China disputes the western boundaries of all South Korean

leases in the Yellow and East China Seas and has also condemned the shared fishing zone Japan

and Korea established south of Cheju Island.125

But China has been able to act pragmatically and has set aside its position on natural

prolongation in order to enter into a sophisticated fishing agreement with the Republic of Korea.

The two countries normalized their diplomatic relationship in 1992, and began discussing fishing

issues in 1993. Their conflicting positions came into focus after both countries ratified the Law

of the Sea Convention and proclaimed exclusive economic zones. These claims overlap, and

China’s straight baseline claim, which South Korea has officially protested as incompatible with

the Law of the Sea Convention, also has created difficulties126 As explained above,127 Korea has

challenged China’s use of Dongdao (a barren islet about 70 nautical miles east of Shanghai) as a

basepoint, and also challenges several other basepoints north of Shanghai.128

In 1997-98, the two countries finally agreed (a) to recognize coastal EEZ areas where

each country can exercise exclusive sovereign rights over the resources (the width of this zone

varies but averages 60 nautical miles from the coastline and provides each country with roughly

equal areas);129 (b) to establish a joint fishing area (“Provisional Regulatory Zone”) in the central

area where their claimed EEZs overlap (drawn from a hypothetical median line), where they

125 Agence France Presse, China Denounces Japan-South Korea Fisheries Pact, Jan. 22, 1999. For different reasons, North Korea also denounced the agreement, calling it a violation of the sovereignty of the Korean nation and a “brutal trample” on international law. Xinhua News Agency, North Korea: DPRK Lashes Out at South Korean-Japanese Fishery Accord, Oct. 7, 1998.




129 Id. at 6.

exercise equal rights and manage the species through the Korea-China Joint Fisheries

Committee; and ( c) to create a transitional area (“Interim Co-management Zone”) extending 20

miles in both directions from the joint fishing area, where the resources were shared for four

years, and thereafter became part of each countries coastal EEZ, under exclusive coastal state

control. They established a Joint Fisheries Commission to recommend measures for conserving

and managing the resources. And, very significantly, they agreed to conduct joint surveillance

operations – with authorities of both countries physically present on the patrol boats – to monitor

and control illegal and indiscriminate fishing activities.

This fishing agreement is a significant step forward, and it indicates that China may be

willing to abandon its natural-prolongation approach, at least with regard to delimitation of the

living resources. Korea’s position has always been that its boundary with China should be drawn

with an equidistance line. Article 5(2) of the Korean Exclusive Economic Zone states that the

equidistance line should be used if no other agreement can be reached, and MOMAF Deputy

Minister Choi has expressed the view that: “Since there is no other factor to affect the principle

of equity, the equidistance line seems to be the equitable standard in the EEZ delimitation

between Korea and China.”130

The Maritime Boundaries Between South Korea and North Korea

As explained earlier,131 the delimitation of the boundaries between South Korea and

North Korea must wait until other more substantial disputes between the two Koreas are

resolved, and may never be delimited if they make progress toward unification. But if they

remain as separate countries and normalize their relationships, then they will have to address

their maritime boundary issues.


131 See supra text following note 2.

The West Sea (Yellow Sea)

It will be challenging to reach agreement on the maritime boundary in the West

Sea/Yellow Sea because of the five South Korean islands nestled close to the North Korean

coast, and because of the disputed status and location of the “Northern Limit Line.”132 South

Korea controls the islands of Paengyong, Taechong, Sochong, Yongpyong, and Woo which hug

the western North Korean coast, coming at the closest point to within seven nautical miles of

North Korea. South Korea views the maritime boundary between the two countries as the

median line between these islands and the North Korean coast, based on a line called the

“Northern Limit Line” (NLL) which had been drawn by the United Nations Command a month

after the Armistice Agreement of July 27, 1953, leaving very little ocean space for North

Korea.133 These five islands have a total of five square miles and were said in 1978 to be

occupied by 13,000 people.134 North Korea does not challenge South Korean sovereignty over

the islands themselves, but because the islets are within 12 nautical miles of North Korea’s coast,

North Korea has contended that the waters around the five islets are part of North Korea’s

territorial sea.

In September 1999, North Korea unilaterally announced that it had redrawn the line so

that it would extend from the land boundary perpendicular from the coastline into the Yellow

Sea, and was prepared to enforce this line “by various means.”135 The immediate cause of this

dispute was apparently a concentration of crabs south of the Northern Limit Line and efforts by

132 See generally Van Dyke, Valencia, and Garmendia, supra note 4; Oude Elferink, supra note 119, at 313-14. Apparently the actual coordinates of the Northern Limit Line are classified.

133 See Prescott, supra note 55, at 48-51.

134 Park, supra note 80.

135 Sonni Efron, N. Korea Unilaterally Shifts Maritime Border, L.A. Times, Sept. 3, 1999, at 1, col. 3 (nat’l ed.).

North Korean vessels to harvest these crustaceans.136 Incidents are not uncommon in this area,

and violent clashes occurred during the crab seasons in June 1999 and June 2002.137

The NLL has served a useful purpose as a line of military control and should continue in

place until the two Koreas can reach agreement to end their state of war. But if the two Koreas

were independent countries, the NLL would probably not stand as a legitimate maritime

boundary under the “equitable principles” that have evolved from the decisions of based on

Articles 74 and 83 of the Law of the Sea Convention, because it denies North Korea access to

adjacent sea areas. The NLL is thus contrary to the principle of “non-encroachment”138 because

it blocks North Korean’s access to the ocean in this region. Further, according to legal

precedents and international practice, islands do not have an equal capacity with land masses to

create maritime zones, nor do they command equal strength with an opposing continental area or

land mass.139

Using an analogy from the Anglo-French Arbitration,140 a territorial sea enclave could be

drawn around the five South Korean islands, but the islands themselves would be ignored in

drawing the main maritime boundary. Although the territorial sea around these islands would

normally be 12 nautical miles, because they are all so close to the North Korean coast, and

crowded among each other, this geographical situation might be one that requires a smaller

territorial sea.141

136 Mark J. Valencia and Jenny Miller Garmendia, Work to Resolve the Maritime Conflict, International Herald Tribune, Dec. 17, 1999. 137 See Van Dyke, Valencia, and Garmendia, supra note 4.



140 Anglo-French Arbitration, supra note 32.


The East Sea

North Korea claims a trapezoidal-shaped exclusive economic zone that extends into the

East Sea from the 300-mile-long straight baseline it draws to connect the northeast and southeast

corners of its territory.142 South Korean vessels do not at present challenge this claim, to avoid

controversy and because the disputed area is not expected to be a resource-rich area. In February

2000, nongovernmental fisheries associations in North and South Korea negotiated an agreement

that allows South Korean vessels to fish in North Korea’s EEZ in the East Sea until 2005, with

profits to be shared between the two countries.143 About 400 South Korean squid vessels are

expected to take advantage of this arrangement.

The Maritime Boundary Between the Republic of Korea and Russia

Professor Prescott has observed that if Tok-Do were recognized as belonging to the

Republic of Korea and were given full power to generate an exclusive economic zone and

continental shelf, a maritime boundary would then have to be delimited between the Republic of

Korea and Russia.144 If, however, the Republic of Korea enters into an agreement with Japan

whereby the effect of Tok-Do on the maritime boundary between the two countries is ignored,

then it would be awkward for Korea to negotiate a boundary with Russia using Tok-Do as its

basepoint. Ullung-Do is less than 400 nautical miles from Russia, but because North Korea’s

zone is between Ullung-Do and Russia, it does not appear that a maritime zone generated from

Ullung-Do would overlap with that of Russia.

Future Decisions and Negotiating Strategies

MOMAF Deputy Minister Lark-Jung Choi has stated that “the early delimitation of the

142 See supra text accompanying notes 55-59 and 79-80.

143 Agence France Presse, South-North Korean Fishermen’s Accord in Troubled Waters, Feb. 28, 2000.


EEZ between Korea-Japan and Korea-China is essential,” because the provisional measures “are

not perfect nor final” and are “likely to cause frequent disputes and the destruction of the marine

ecosystem.”145 The Republic of Korea must make some difficult decisions to position itself

properly and logically for the next round of maritime boundary negotiations with its neighbors.

Baselines.

MOMAF Deputy Minister Lark-Jung Choi has that “Korea must make it clear during the

EEZ delimitation negotiations that [Japan’s] unlawful baselines cannot be accepted as the proper

basis of establishing maritime delimitation.”146 Similarly, “Korea must make it clear that [at least

three of China’s basepoints] are not an acceptable basis for drawing the straight baseline during

the talks for the delimitation of the EEZ between Korea and China.”147 The Republic of Korea is

certainly correct that the baselines claimed by Japan and China (and North Korea) are

inconsistent with Articles 7 and 10 of the Law of the Sea Convention in significant ways.148

Korea may also want to protest more formally China’s claim that Bohai Bay qualifies as a

historic bay.149 In order to strengthen its ability to denounce these claims, Korea may want to

review its own baseline claims, and ask independent scholars to examine them, to make sure that

they cannot be challenged by their neighbors for being inconsistent with Article 7.

Natural Prolongation.

Korea took advantage of the natural prolongation theory which emerged from the North

Sea Continental Shelf Case150 to claim a substantial area in the East China Sea extending to the



147 Id. at 8.

148 See supra text accompanying notes 49-65. 149 See supra text accompanying notes 76-77.

150 North Sea Continental Shelf Case, supra note 16.

Okinawa Trough near Japan’s southern islands. Japan contested this claim but in 1974 accepted

the establishment of a Joint Development Zone in the disputed area to allow the two countries to

explore for hydrocarbons in the disputed area. This agreement is designed to last at least until

2028, and after that either country can terminate it with three years’ notice.151

China also has relied upon the natural prolongation theory, and utilizes it to claim the

continental shelf across the East China Sea to its “silt line” or beyond to the Okinawa Trough,

and challenges the Joint Development Agreement and the fishing agreement covering the area

south of Cheju Island between Korea and Japan as infringing upon its sovereign resources.152 In

its dealings with China, Korea objects to the natural prolongation theory and argues for use of an

equidistance line to mark the boundary between the two countries.153

Korea’s position in relation to China is inconsistent with its position in relation to Japan,

and it is probably untenable in the long run to maintain these two inconsistent positions. An

analogy can be found in the boundary negotiations between Indonesia and Australia which

produced a continental shelf boundary in 1972 based on the North Sea Continental Shelf Case’s

reliance on the natural prolongation approach. Because subsequent decisions “all sought to

distinguish and limit the paramount principle of the North Sea Continental Shelf Cases,”

Indonesia expressed the view that it had been “taken to the cleaners” in the 1972 negotiations

and it insisted vigorously that subsequent negotiations on related unresolved issues disavow any

reliance on the natural prolongation approach.154

151 1974 Joint Development Agreement, supra note 87, art. XXXI(2)-(3).


153 See supra text and notes accompanying notes 122-30.

154 See Stuart Kaye, Negotiation and Dispute: A Case Study in International Boundary Making – The Australia-Indonesia Boundary 7 (paper presented to conference on Ocean’s Management in the 21st Century: Institutional Frameworks and Responses under the LOS Convention, University of Sydney, Nov. 22-23, 2002)(the Indonesian Minister who made the “cleaners” comment was Foreign Minister

The demise of the natural prolongation theory has been explained to be a product of the

recognition in the Law of the Sea Convention that coastal states are entitled to 200-nautical-mile

continental shelves even if the sea floor around them does not conform to a geographic definition

of a continental shelf. The ICJ explained in the Libya/Malta Case that “since the development of

the law enables a State to claim that the continental shelf appertaining to it extends up to as far as

200 miles from its coast, whatever the geological characteristics of the corresponding sea-bed

and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that

distance either in verifying the legal title of the States concerned or in proceeding to a

delimitation as between their claims.”155 Prescott explained after the Libya/Malta Case that “the

court seemed to decide that natural prolongation was not a matter to be considered when the

waters between the states were less than 400 nm wide. It is almost as though countries sharing

seas less than 400 nm wide would be drawing EEZ boundaries rather than continental shelf

boundaries.”156 Douglas M. Johnston and Mark J. Valencia have reported that the natural

prolongation doctrine “is now somewhat discredited as a basis for continental shelf

delimitation.”157

Because the natural-prolongation approach has been widely rejected, it will be hard for

Korea to maintain its position in relation to Japan that it is entitled to the area now covered by

the Joint Development Zone, and it may want to reassess this position, which will then allow it to

strengthen its position in opposition to China’s claim for the entire continental shelf under the

East China Sea. MOMAF Deputy Minister Choi has correctly observed that the Korea-Japan

Mochtar).

155 Libya/Malta Case, supra note 5, at para. 39.


157 Johnston and Valencia, supra note 88, at 116 n. 85.

Joint Development zone should be viewed as a “special circumstance” related to EEZ

delimitation, because it “is valid through 2028 and it should be respected.”158 The agreement has

served as a useful confidence-building measure to promote trust between the two neighbors, but

it may be unrealistic to view it as a permanent arrangement.

Abandoning the natural-prolongation argument would not mean, however, that Korea

must give Japan the entire area now covered by the Joint Development Zone, because “[t]he

northwest side of the zone...corresponds almost exactly to the line of equidistance between Japan

and South Korea if the Danjo Gunto are given full effect.”159 Korea need not allow the tiny and

isolated Danjo Gunto islets to have full effect or even any effect in drawing the equidistance line,

and the other small southern Japanese islands can also be discounted because their coastlines are

limited in relationship to that of the opposite Korean coast. Korea should be entitled, therefore,

to a portion – probably between one-fourth and one-third – of the area now covered by the Joint

Development Zone.

The Boundary with Japan in the East Sea.

The Republic of Korea does not have much of an incentive to negotiate a complete

exclusive-economic-zone/continental-shelf boundary with Japan until the Joint Development

Agreement in the area south of Cheju comes to an end sometime after 2028, because this

agreement is favorable to Korea and Korea may have to reduce its claim in light of the evolving

principles of international law, which – as explained in the preceding section – now give the

principle of natural prolongation less significance in congested disputed areas.160

Korea will never abandon its claim to Tok-Do, but it has historically taken the position



160 See supra text accompanying notes 16-21, 122-30, 150-59.

that Tok-Do should not be considered in drawing the maritime boundary with Japan and should

have only a territorial-sea enclave drawn around it. The boundary would then be drawn based on

an equidistance line between Korea’s Ullung-Do and Japan’s Oki Gunto. Under this approach,

because Ullung-Do is 47 nautical miles from Tok-Do and Oki Gunto is 86 nautical miles from it,

Korea would gain about two-thirds of the disputed zone surrounding Tok-Do.161 This approach

is fully justified under principles of international law and analogies from other regions. In the

meantime, the fisheries arrangements between Korea and Japan appear to be working smoothly;

even after a formal EEZ boundary is drawn between them, the two countries may wish to

continue utilizing a joint fisheries zone.

The Maritime Boundary Between the Republic of Korea and China.

If hydrocarbons are found in the disputed areas between Korea and China, then it would

become important to resolve the maritime boundary between the two countries. China has been

unrelenting in insisting on a natural prolongation approach, but this argument does not have

support in the decisions of international tribunals issued during the past two decades. Korea is

thus fully justified in insisting upon a maritime boundary based on the drawing of an

equidistance line.

The Maritime Boundaries Between South and North Korea.

It is unlikely that the maritime boundaries between South and North Korea will be

examined seriously by the two countries in the near future. Some commentators suggest that

reunification of the two countries is more likely than the negotiation of a maritime boundary, and

reunification also seems to most observers to be a long way off in the future. But some common

ground has been found by the two countries in recent months, so it may be that some provisional

161 Prescott, supra note 55, at 48. MOMAF Deputy Minister Choi has acknowledged that: “The controversy over whether the island has the status of island under UNCLOS which can have its EEZ may make it difficult to use the island as the baseline point,” adding that the most important goal was “to secure the waters around the island to be included in the EEZ of Korea.” Choi, supra note 60, at 9.

understandings can be reached to avoid future tensions. The two countries have agreed to

establish a joint commission, which has met once. Navigational disputes have been resolved,

whereby North Korean vessels are permitted to exercise innocent passage through the Cheju

Strait and through the territorial sea of South Korea, and both sides have free access to

designated ports. South Korea has suggested a common fishing area for crabs in the West Sea

during the crabbing season.

North Korea’s claimed maritime zones in the East Sea cannot be justified under the Law

of the Sea Convention or any other principles of customary international law. It is true that

North Korea is somewhat geographically disadvantaged, having a concave coastline and having

two neighbors (Russia and South Korea) that wrap around it. North Korea is entitled to maritime

zones that allow it to project into the sea, but the principles of maritime delimitation are not

designed to restructure the realities created by physical geography. The delimitation line

between North and South Korea should thus be the equidistance line, which would go north of

the line now claimed by North Korea and would give South Korea more maritime space.162

In the West Sea, South Korea should be prepared to give some maritime area to North

Korea, because the Northern Limit Line cannot be justified as a legitimate maritime boundary.

Maps have been prepared showing a hypothetical median line which would give North Korea a

“finger” through these islands.163 Another approach would be to draw small territorial sea

enclaves around South Korea’s five small islets and otherwise delimit the boundary without

regard to their existence. The territorial-sea enclaves should be less than12 nautical miles,

162 See Paik, supra note 55, at 105 (“Considering coastal geography around North Korea, the equidistance line can be regarded as an equitable solution to the delimitation with its neighbors.”).

163 See the map entitled “Potential Maritime Zones of Northern East Asia,” prepared by the Office of the Geographer, U.S. Department of State, in December 1977, showing hypothetical equidistant lines, which was republished in Bruce D. Larkin, East Asian Security Zones, 2 Ocean Yearbook 282, 291 (1980), and in Paik, supra note 55, at 106.

because of the crowded configuration in that area. These five islets are within 12 nautical miles

of North Korea, so some careful negotiation will inevitably be necessary to address and resolve

this dispute.

Shared Zones.

China, Japan, and the Republic of Korea have created innovative shared zones that reflect

their historical uses of the crowded seas between them. It is logical to continue these

arrangements for fishing and hydrocarbon developments even if these countries are able to reach

agreement on maritime delimitation of their exclusive economic zones. As MOMAF Deputy

Minister Choi has explained, “it is essential to establish a Trilateral Co-management Scheme

among Korea, China and Japan. The area concerned is a semi-closed sea and most of the fish

species are transboundary stocks. The management effort will become effective only when all

the countries concerned participate in the practical management of the fish stocks.”164

Third-Party Adjudication.

The tradition and practice in Northeast Asia has been to resolve disputes through direct

face-to-face negotiations rather than through third-party dispute-settlement mechanisms using

judicial or arbitral tribunals.165 But sometimes it is politically impossible for any of the

countries’ political leaders to agree to give up sovereignty claims over any territory, and,

therefore, a decision by an international or regional tribunal may be the only way to resolve a

dispute.

An analogy can be found in the Gulf of Maine maritime boundary dispute between the


165 Choon-ho Park, now a judge on the International Tribunal for the Law of the Sea has explained that “[c]ourt-going or settling cases through judicial means is very popular in North America or under the European tradition, but it’s not the thing in East Asia.” Choon-ho Park, Concluding Observations, in The International Implications of Extended Maritime Jurisdiction in the Pacific 114, 115 (John P. Craven, Jan Schneider, and Carol Stimson, eds., Law of the Sea Institute, Honolulu, 1989).

United States and Canada in the 1970s and 1980s. The treaty negotiated by the countries’

diplomats was roundly denounced by fishing interests on both sides, and neither legislature

would ratify it. The diplomats decided that further negotiation would be fruitless and that the

matter could be resolved only by an outside body immune from the political process. So they

submitted the dispute to a chamber of the International Court of Justice.166 Although the Court’s

judgment was unpopular in both countries (because it was basically a compromise between the

positions of the two sides), both sides accepted the judgment as final. The problem was thus

resolved, and the two countries could proceed to work together amicably on other issues of

mutual interest. An unsatisfactory resolution of a dispute may be better than no resolution,

because it removes a festering sore and allows the neighbors to move from confrontation to

cooperation.

It has been rare for the countries of East Asia to submit sovereignty disputes to tribunals,

but it may be becoming more common. For a long time, the 1962 Temple of Preah Vihear Case

(Cambodia v. Thailand)167 stood alone as the only Asian boundary dispute submitted to the ICJ.

But 40 years later, in December 2002, the ICJ issued its opinion in Sovereignty Over Pulau

Ligitan and Pulau Sipadan (Indonesia v. Malaysia).168 And then, on February 6, 2003,

Singapore’s Foreign Minister, Prof. S. Jayakumar, and his Malaysian counterpart, Mr. Syed

Hamid Albar, signed the Special Agreement for Submission to the International Court of Justice

of the Dispute Between Malaysia and Singapore Concerning Sovereignty over Pedra Branca,

Middle Rocks and South Ledge.169 This agreement asks the ICJ to resolve the competing claims

166 Gulf of Maine Case, supra note 6. 167 Temple of Preah Vihear (Cambodia v. Thailand), 1962 I.C.J. 6.


169 Singapore Government Press Release, <http://app.sgnews.gov.sg/data/Interviews/20030206.htm> (site visited May 12, 2003).

of the two countries over a football-field-sized island off of Johor, which has been possessed by

Singapore for the past 150 years. At the press conference announcing the signing, Professor

Jayakumar explained that the signing “signifies that Malaysia and Singapore have agreed to

resolve such a dispute through amicable, peaceful method of third party adjudication,” and that

we are signalling to our people and to the world that Malaysia and Singapore could take this kind of approach...when we have such disputes.... The areas of common interests far outweigh the areas of disagreements and when we have issues of disagreement, we should not allow them to mar the overall relationship. The overall relations should not be held hostage to a single issue.170

A somewhat related case was filed by Malaysia against Singapore in the International Tribunal

for the Law of the Sea in September 2003 alleging that Singapore’s land reclamation activities

around the islets of Pulau Tekong and Tuas in and near the Straits of Johor are causing serious

and irreversible damage to the marine environment, in violation of the precautionary principle,

and serious prejudice to the rights of Malaysia.171

Korea should have confidence that its claim to sovereignty over Tok-Do would be upheld

by an international tribunal because the historical evidence and most importantly the recent

evidence of exercising sovereign control over the islets favor Korea’s position. If the

sovereignty over Tok-Do were submitted to a tribunal for decision, the terms of reference of the

submission would become important. It would be desirable for Japan and Korea to agree as part

of the submission that the islets would not affect the delimitation of their exclusive economic

zone and continental shelf maritime boundaries.

Conclusions and Recommendations.

1. Most recent boundary delimitations have involved the drawing of a single line that

170 Id.

171 Case Concerning Land Reclamation by Singapore In and Around the Straits of Johor (Malaysia v. Singapore), Case No. 12, Request for Provisional Measures (ITLOS 2003), http://www.itlos.org/cgi-bin/cases/case_detail.pl?id=12&lang=en (visited Oct. 3, 2003). Malaysia sought provisional measures from the International Tribunal for the Law of the Sea pending proceedings on the merits before an arbitral panel formed under Annex VII of the Law of the Sea Convention, supra note 2.

divides both the exclusive economic zones and the continental shelves of the opposite or adjacent

countries. Such unified lines provide the simplest solutions to maritime boundaries. But because

of the complexities involving resources around the Korean peninsula, it may be appropriate to

negotiate the two boundaries separately, so that, for instance, a continental shelf line could be

drawn to divide the hydrocarbons, but the living resources in the seas above could be shared

through a joint-use zone.

2. The Republic of Korea should reaffirm its position that very small islets should have

little or no effect on maritime boundary delimitations. This position will allow the boundary

with Japan in the East Sea to be resolved without having to address sovereignty over Tok-Do172

(which can be given a 12-nautical-mile territorial sea enclave). It will also strengthen Korea’s

position with regard to Japan in the disputed area south of Cheju Island now governed by the

Joint Development Zone (because Japan’s islands to the east of this zone are small). It will also

have the effect of recognizing that North Korea should be entitled to some larger maritime area

in the West Sea and that South Korea’s five tiny islets along the North Korean coast should not

have the permanent effect of limiting North Korea’s access to the sea in that area.

3. The Republic of Korea will have to address the fact that the principle of natural

prolongation has had limited importance in most maritime delimitations during the past two

decades, and that most boundaries have been drawn using the equidistance/median line adjusted

in light of differences in coastline lengths and other relevant special circumstances. The

equidistance/median line approach is advantageous for Korea with regard to its boundary with

China in the West Sea/Yellow Sea and with North Korea in the East Sea, and it will provide a

good result in the East Sea/Sea of Japan boundary with Japan if Korea’s Ullong-do and Japan’s

172 See, e.g., Johnston and Valencia, supra note 88, at 114 (“By treating [Tok-do] as a sovereignty issue rather than a boundary problem, [Japan and Korea] may simply be content to agree to disagree, and leave it at that.”).

Oki Gunto are used as the basepoints from which the equidistance/median line is drawn. This

recognition will, however, weaken Korea’s position somewhat against Japan with regard to the

Joint Development Zone area, as explained above.173

4. The Republic of Korea should continue to register protests against the baselines

utilized by Japan, China, and North Korea, many of which are totally inconsistent with the

principles laid down in Articles 7 and 10 of the Law of the Sea Convention, and it should

consider registering a formal protest against China’s claim that Bohai Bay is a historic bay.174 It

should also review its own baseline claims to make sure they meet the standards set by Article 7.

5. Although it is preferable to delimit as many festering maritime boundaries as possible,

it may be appropriate to resolve some of them with shared or joint-use zones of some sort.

Because the countries of Northeast Asia have been sharing the resources of these waters

historically, it may be logical to continue the joint utilization. In any event, because many

species straddle maritime zones, it will be crucial to work together with the other fishing nations

of the region to manage these stocks in a sustainable fashion and to protect the marine

environment from pollution.

6. Consideration should be given to submitting the sovereignty dispute over Tok-do to

the International Court of Justice or some other appropriate tribunal, such as the International

Tribunal for the Law of the Sea, just as the island disputes between Malaysia and Indonesia and

between Malaysia and Singapore have recently been submitted to the ICJ. The Republic of

Korea’s claim to sovereignty over Tok-Do is strong, and a resolution of this matter would allow

other issues to be addressed and resolved in an orderly fashion.


174 See supra text accompanying notes 76-77 and 149.

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