Maritime Disputes in Northeast Asia : Regional Challenges and Cooperation [1 ed.] 9789004344228, 9789004344211

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Maritime Disputes in Northeast Asia

Maritime Cooperation in East Asia Series Editors Seokwoo Lee (Inha University Law School) Keyuan Zou (University of Central Lancashire)

VOLUME 3

The titles published in this series are listed at brill.com/mcea

Maritime Disputes in Northeast Asia Regional Challenges and Cooperation By

Suk Kyoon Kim

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Kim, Sŏk-kyun, author. Title: Maritime disputes in northeast Asia : regional challenges and cooperation / by Sŏk-kyun Kim. Description: Leiden ; Boston : Brill Nijhoff, 2017. | Series: Maritime cooperation in east Asia ; volume 3 | Includes index. Identifiers: LCCN 2017006890 (print) | LCCN 2017008642 (ebook) | ISBN 9789004344211 (hardback : alk. paper) | ISBN 9789004344228 (E-book) Subjects: LCSH: East China Sea--International status. | Yellow Sea--International status. | Japan, Sea of--International status. | Maritime boundaries--East Asia. | International relations--East Asia. Classification: LCC KZA1687.6 .K56 2017 (print) | LCC KZA1687.6 (ebook) | DDC 341.4/5091945--dc23 LC record available at https://lccn.loc.gov/2017006890

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 2405-934X isbn 978-90-04-34421-1 (hardback) isbn 978-90-04-34422-8 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface IX Acknowledgements XII List of Illustrations Xiii 1 Northeast Asia and Maritime Regime Building 1 i The Korean Peninsula and Neighboring States 1 ii The Two Koreas: The South and the North 2 iii International Relations in Northeast Asia 5 iv Maritime Regime-building in Northeast Asia 9 v Conclusion 16 2 Disputes over the Northern Limit Line in the West Sea 17 i Introduction 17 ii Establishment of the nll in the West Sea 18 iii North Korea’s Challenges and Claims 20 iv South Korea and the unc’s Positions 24 v Legal Controversy 26 vi Enforcement of the nll 28 vii Armed Conflicts off the nll 29 viii Ways to Ease Tensions 32 ix Conclusion 33 3 Disputes over Straight Baseline and the Territorial Sea 35 i Introduction 35 ii Straight Baselines and Basepoints 35 iii The Territorial Sea and Contiguous Zone 43 iv Innocent Passage of Foreign Warships 47 4 Disputes over the Delimitation of the eez and the Continental Shelf 51 i Status of the Maritime Boundary Delimitation in Northeast Asia 51 ii Maritime Boundary Delimitation between China and Korea in the Yellow Sea and the East China Sea 52 iii Maritime Boundary Delimitation between China and Japan in the East China Sea 64 iv Maritime Boundary Delimitation between Korea and Japan in the East Sea/the Sea of Japan and in the East China Sea 71

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v Maritime Boundary Delimitation between China and North Korea in the Yellow Sea 76 vi Maritime Boundary Delimitation between North Korea and Russia in the East Sea 77 vii Conclusion 78 5 Territorial Disputes in East Asia 80 i Introduction 80 ii Dokdo/Takeshima 80 iii Senkaku/Diaoyudao 86 iv Kuril Islands/Northern Territories 93 v Conclusion 97 6 Marine Pollution Response and the nowpap Regime in Northeast Asia 98 i The Growing Risk of Marine Pollution in Northeast Asia 98 ii nowpap and Regime-building for Marine Pollution Response 99 iii Oil and hns Spill Incidents in the nowpap Region 105 iv Conventions, Legislation, and Competent Agencies Concerning Marine Pollution in Northeast Asian Countries 109 v Challenges in Responding to Marine Pollution under the nowpap Regime 113 vi Conclusion 118 7 Fishery Regimes and Illegal Fishing in the Yellow Sea 119 i The Sea of Unlawfulness 119 ii Fishery Regime-building in the Yellow Sea 120 iii Domestic Legislation Governing Fisheries and Enforcement Authorities 128 iv Illegal Fishing in the Yellow Sea 130 v International and Legal Aspects of Illegal Fishing in the Yellow Sea 141 vi Conclusion 143 8 Maritime Security Initiatives in East Asia: Implementation and Challenges 145 i Maritime Security Paradigm Shift 145 ii Maritime Security Threats and Initiatives 146 iii Emerging Challenges to Maritime Security in East Asia 167 iv Conclusion 170

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Maritime Issues Concerning the Implementation of u.n. Security Council Resolutions on North Korea 171 i Introduction 171 ii  u.n. Security Council Resolutions Concerning North Korea and Resolution 2270 172 iii Maritime Security Regimes against North Korea on the Korean Peninsula 175 iv Factors Considered in the Implementation of the Sanctions in the Sea 177 v Conclusion 182

10 The Sewol Ferry Disaster in Korea and Maritime Safety Management 183 i Introduction 183 ii The Sinking of the Sewol Ferry 183 iii Passenger Ship Transport and Status of Marine Accidents 189 iv Governing the Safety of Passenger Ships in Korea 194 v Further Challenges to Maritime Safety 198 vi Conclusion 199 11 Conclusion 200

Appendixes: Selected Maritime Laws and Agreements in Northeast Asia 209 Index 250

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Preface This book is about maritime issues and disputes in the seas of Northeast Asia. I would say that this book is an achievement of my endeavor and passion throughout my career and life. My research journey in maritime affairs on the Korean Peninsula and its neighbors began when I joined the Korea Coast Guard in 1997 as a superintendent. I had previously spent three years of service as a deputy director at the Ministry of Government Legislation, and my transfer to the Korea Coast Guard was a big challenge in my life and the beginning of a new journey in maritime affairs. Without any previous academic background in the law of the sea and maritime affairs, only academic curiosity and the need for knowledge necessary for career development ushered me into research in maritime affairs. I expanded my research interest and scope from my Ph.D. dissertation, which was about the piracy issue in Asia, to Korean Peninsula maritime issues and maritime disputes in Northeast Asia. While carrying out the combined job of being an officer and a researcher, I devoted myself to research, although it was very challenging to do both. Meanwhile, I had an opportunity to do research at Duke University, affiliated with the Department of Political Science as a visiting scholar for a year. This helped me fully engage in research and develop my capacity in my area of interest. While serving as a district commander, regional commander, and lastly Commandant of the Korea Coast Guard, I continued to do research and publish articles and books. I published a number of articles at the International Journal of Marine and Coastal Law and Ocean Development and International Law. My advantage as a coast guard officer was that I could give a more practical view on maritime issues underway in the region of Northeast Asia. My understanding is that maritime issues are mixed issues, in which various factors from politics, international relations, and other socio-economic trends are combined together. Thus, my belief is that researchers and policy-makers need to approach maritime issues from a broad perspective, not only from a legal perspective. This book is primarily based on my previously published articles in various international journals. For this book, I reorganized the texts and updated statistics and contents to reflect recent developments and new circumstances. In addition, for a full picture and better understanding of maritime issues and disputes in the region, I added a few new articles, which are mostly about maritime issues on the Korean Peninsula.

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I dare to say that this book is unique in that it focuses on the Korean Peninsula maritime issues while it deals with a wide range of Northeast Asia maritime issues. The Korean Peninsula, which connects the continent and the ocean, has undergone various kinds of maritime issues between the South and the North and with neighbors. Its unique situation, in which the two Koreas have remained divided and confrontational with each other for decades, gives a rise to maritime issues and undermines a full-fledged program of maritime regime-building in the region. Notably, North Korea’s provocative attitude and non-compliance with international rules deters a collaborative network to cope with regional maritime issues from fully growing up. Economically, the region of Northeast Asia is more vibrant and dynamic than any other region in the world. The region is emerging as a hub of the global economy and integrating as a single market. Active exchanges within the region make people closer and more united. However, some dark aspects of history and rivalry relations are overshadowing the region. Lingering various maritime disputes in the region, which I call ‘the textbook of maritime disputes,’ undermine international relationships and pose a threat to peace and stability in Northeast Asia. This book is aimed at helping readers understand maritime disputes on the Korean Peninsula and in Northeast Asia. This book covers the backgrounds, arguments, legal provisions, arrangements of ongoing maritime disputes and issues. The book attempts to explore all aspects of maritime issues and disputes and provide a clear picture of those issues. However, I should acknowledge that it was not possible to cover every possible issue due to my limited knowledge and capacity. I would like to express special gratitude to those who helped me in publishing this book. Among those, I would render special gratitude to Professor Zou Keyuan at University of Central Lancashire, U.K. His research articles and books inspired me and broadened my knowledge and perspective in Asian maritime affairs. He encouraged me to publish this book and rendered academic tips and advice in the process of publication. I owe Professor Seok-woo Lee at Inha University, Korea, much gratitude. He ushered me through an international research network and provided academic tips. I also would like to thank Professor Ted McDorman, editor of Ocean Development and International Law and Professor David Freestone, editor of the International Journal of Marine and Coastal Law, who provided me opportunities to publish my research results. I also express thanks to Laura Schreier and Jonathan Brennner, a graduate student at the law school of the University of Hawaii. They did not hesitate to review my manuscripts. I also render my sincere thanks to the editors of this

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book, Marie Sheldon, John Bennett and Judy Pereira. I also express my gratitude to Dong Kyu, Kim, who is my friend as well as mentor in life. Lastly I would like to express my special gratitude to my wife Hansil, son Chanhyo, and daughter Hyunji. They have been my robust supporters. While I have gone through the toughest time in my career and life, they were my biggest fans. They always stood by me throughout my public service, which was a combination of honor and responsibility. Without their support and love, this book would be impossible.

Acknowledgements I gratefully acknowledge the kind permission extended by the publishers ­including Taylor & Francis, Brill/Martinus Nijhoff, and yijun Institute of International Law, to reproduce the following published articles written by myself. 1. 2. 3.

4. 5. 6. 7.

Portions of Chapter 2 were adapted from Suk Kyoon Kim, ‘Korean ­Peninsula Maritime Disputes’ (2010) 42(2), Ocean Development and International Law: 166–185. Portions of Chapter 3 were adapted from Suk Kyoon Kim, ‘Maritime Boundary Negotiations between China and Korea: Factors at Stake’ (2017) 32(4), International Journal of Marine and Coastal Law: 1–26. Portions of Chapter 4 were adapted from Suk Kyoon Kim, ‘Maritime Boundary Negotiations between China and Korea: Factors at Stake’ (2017) 32(4), International Journal of Marine and Coastal Law: 1–26.; ‘Understanding Maritime Disputes in Northeast Asia: Issues and Context’ (2008) 23(2), International Journal of Marine and Coastal Law: 213–247.; ‘China and Japan Maritime Disputes in the East China Sea: A Note on Recent Developments’(2012) 43(3), Ocean Development and International Law: 296–308. Portions of Chapter 6 were adapted from Suk Kyoon Kim, ‘Marine Pollution Response in Northeast Asia and the nowpap Regime’ (2014) 45(1), Ocean Development and International Law: 272–287. Portions of Chapter 7 were adapted from Suk Kyoon Kim, ‘Illegal Chinese Fishing in the Yellow Sea: A Korean Officer’s Perspective’ (2012) 5(2), ­Journal of East Asia and International Law: 455–478. Portions of Chapter 8 were adapted from Suk Kyoon Kim, ‘Maritime Security Initiatives in East Asia: Assessment and the Way Forward’ (2011) 42(3), Ocean Development and International Law: 227–244. Portions of Chapter 10 were adapted from Suk Kyoon Kim, ‘The Sewol Ferry Disaster in Korea and Maritime Safety Management’(2015) 46(4), Ocean Development and International Law: 1–14.

List of Illustrations Figures 2.1 The NLL and the maritime boundary claimed by North Korea 23 6.1 Geographical scope of the Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific (NOWPAP) region 101

Tables 1.1 Rates of real GDP economic growth of Northeast Asia countries, 2009–2013 8 1.2 Contracting parties to the UNCLOS in East Asia and their maritime claims 15 2.1 Naval clashes in the NLL in recent years 31 4.1 Status of maritime boundary delimitation in Northeast Asia 52 4.2 Status of China’s surveillances over Ieodo 62 6.1 Status of the regional seas programme 100 6.2 Changes in oil production and consumption in the NOWPAP member states 105 6.3 Status of oil spill incidents with spillage over 10 kl in the NOWPAP region 106 6.4 Status of HNS spills in the NOWPAP region 109 6.5 Status of international marine environmental conventions in Northeast Asian countries 110 6.6 Lead agencies, on-scene response organizations, and national acts for oil spill response 112 7.1 Critical provisions of the Korea–China fishery agreement 125 7.2 Fisheries-related legislations in Korea and China 128 7.3 Number of Chinese fishing boats and crews seized by Korea 130 7.4 Number of foreign fishing boats seized by Japan 131 7.5 Status of victims of violent resistance and imprisonment 134 7.6 Number of Chinese fishing boats seized in the waters off the NLL 136 7.7 Fines imposed on vessels in violation of eez fisheries-related laws by country (U.S. $) 138 10.1 Status of fatal passenger ship accidents worldwide since 2000 190 10.2 Status of marine accidents in Korea and Japan 193

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List Of Illustrations

Maps 1.1 Seas of Northeast Asia 6 3.1 Straight baselines of China and Korea 38 3.2 Territorial sea limits in the Western channel of the Korea Strait 45 4.1 Claims of the continental shelf 55 4.2 Maritime boundary claims by China and Korea and location of Ieodo 61 4.3 China’s expanded ADIZ 63 4.4 EEZ claims of China and Japan in the East China Sea 65 4.5 Japan’s EEZ claim 70 4.6 Delimitation in the Northern part of the continental shelf and Joint Development Zone between Korea and Japan 74 4.7 North Korea’s EEZ claim 76 7.1 Fishery agreements in Northeast Asia 122 7.2 Korea’s self-restraint fishery line in the East China Sea & China’s fishery zone 123 7.3 Various zones regulated under the Korea–China fishery agreement 127

Photos 2.1 Debris of Cheonan, split in half 30 7.1 Chinese fishing vessels, which are chained together to avoid seizure 133 7.2 Chinese fishermen resist with weapons as coast guard officers try to board 133

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Northeast Asia and Maritime Regime Building i

The Korean Peninsula and Neighboring States

The Korean Peninsula Even in the post-Cold War era, the Korean Peninsula still suffers from the legacy of the Cold War. The Korean Peninsula is divided between the two Koreas: South Korea (the Republic of Korea) and North Korea (the Democratic People’s Republic of Korea). It has remained divided over the past 70 years. The Korean Peninsula is a land where a stark contrast exists in every aspect of society between the South and the North: prosperity versus poverty, freedom versus repression, and peace versus belligerence. Geographically, the Korean Peninsula is situated on the northeastern part of the Asian continent. The Korean Peninsula, which spans 1,100 kilometers from north to south, shares borders with China and Russia to the north and neighbors Japan to the east. The Korean Peninsula, roughly equivalent to the United Kingdom in size, is surrounded by the marginal seas: to the east, the East Sea (or the Sea of Japan), to the west, the West Sea (or the Yellow Sea), and the East China Sea to the south. Overall the area of the Korean Peninsula is 223,170 square kilometers, of which South Korea and North Korea account for 45% and 55%, respectively.1 Historically, the Korean Peninsula has been an arena where land and maritime powers vie for control and influence. The strategic importance of the Korean Peninsula has brought thousands of invasions from the land and the sea throughout its history. As a result, the peninsula was cast into the tumultuous history of Northeast Asia in the late 19th century through the early 20th century. The Korean Peninsula, ruled by the Chosun Kingdom, or the ‘Hermit Kingdom,’ had stuck to a policy of seclusion towards the outside world, with the exception of China. However, Chosun was forced to open the door by the gunboat diplomacy of the colonial powers, such as the United States, the United Kingdom, France, and Japan. The Korean Peninsula turned into a battleground for the colonial powers, which competed against each other to take advantage of the strategic location for their colonial expansion in Northeast Asia. Eventually, the Korean Peninsula was annexed by Japan and had been under Japanese colonial rule from 1910 to 1945. When Japan was defeated by the 1 Ministry of Culture, Sports and Tourism, Korea, Facts about Korea (Hollym, Seoul, 2008), p. 14.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_002

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Allied Forces in World War ii, the Korean Peninsula regained independence. However, Koreans’ desire for a unified Korea was not accomplished, as u.s. forces occupied the southern half of the peninsula and the Soviet Union took control of the northern half along the 38th Parallel. At the 1945 Moscow Conference to discuss the future of Korea, participants agreed to a five-year trusteeship, and so a joint Soviet-American commission was established. As the commission deadlocked over the issue of creating a national government, the United States submitted the Korean Peninsula issue to the United Nations (u.n.) in 1947. The u.n. adopted a resolution calling for a general election under the supervision of the u.n. Commission. As a result, the first general elections were held in the areas south of the 38th Parallel. However, the Soviet Union refused the u.n. Commission access to the northern half of the Korean Peninsula. Ultimately in 1948, the Korean Peninsula was divided into the South and the North—diametrically opposed governments in terms of ideology and political, economic and social systems. The two governments each claimed their own to be the single legitimate government of the Korean Peninsula, and neither side accepted the border as permanent. On 25 June, 1950, the Korean War broke out when North Korea, supported by the Soviet Union and China, invaded South Korea. South Korea was supported by the United States and the u.n., of which the u.s. troops provided 88% of the u.n. military personnel. The u.n., which recognized the act of North Korea as an invasion, adopted the u.n. Security Council Resolution, ‘Complaint of Aggression upon the Republic of Korea,’ and decided to dispatch forces to Korea. The three-year war, which devastated the overall Korean Peninsula, ended with an armistice agreement signed on 27 July 1953. The armistice agreement created the 155 mile Demilitarized Zone (dmz) to split the South and the North near the 38th Parallel. The Korean War was not only a civil war brought about by the ideological conflict of capitalism versus communism; it was also a proxy war between the West and the Communist Bloc. Although the Korean War ended when the armistice agreement was signed, Korea has remained technically in a state of war because a peace treaty was never signed. Against this historical backdrop, many of the maritime issues on the Korean Peninsula are deeply rooted in the painful history of colonialism, the Cold War, and the Korean War. ii

The Two Koreas: The South and the North

Since the two Koreas established separate governments in 1948, they have taken totally different paths with respect to political and socio-economic systems:

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capitalism versus communism. While South Korea, with a democracy-based government and a free market system, enjoys economic prosperity, North Korea, with an autocratic government and a closed market system, remains a poverty-stricken country. The Korean Peninsula is considered one of the most volatile regions in the world. The two Koreas are militarily confronting each other along the dmz. The belligerence of North Korea, demonstrated by numerous provocations in the sea and land, poses a great threat to stability and peace in East Asia. Military confrontation is the most salient feature of the Korean Peninsula. Prosperity and Poverty South Korea launched an economic development program in the 1960s. At the time, South Korea remained one of the poorest countries in the world, with $79 of domestic gross product per capita.2 Given its poor natural resources but rich human resources, the Korean government adopted an export-driven development strategy to boost its economy. The government-led economic development initially started with light industries, but it shifted to heavy industries such as ship building, semiconductors, automobiles, and heavy chemicals. In the 1990s and 2000s, the focus of the economy shifted to high-technology industries. The export-oriented Korean economy has demonstrated record rapid economic growth, particularly in the period between the 1960s and the 1980s, with an average gdp growth rate of 8%. The remarkable economic growth was driven by overseas trade with foreign countries, and exports enjoyed doubledigit growth in volume during the past 20 years. This has led Korea to become the seventh-largest exporter and the 15th-largest economy in the world, and it has become a prosperous country with $32,000 gdp per capita.3 South Korea’s ascension to one of the top global economies is often described as a ‘rags to riches’ story, or as ‘the miracle on the Han River.’ In stark contrast, North Korea, with a population of 24.7 million, remains one of the poorest and least developed countries. North Korea had a similar gdp per capita to South Korea during the period from the Korean War to the mid-1970s. Over the past six decades, however, the economic gap between the two Koreas has grown enormously, to the extent that the two Koreas clearly embody examples of prosperity versus poverty. North Korea’s gdp for 2013 was 2 Seung-Hun, Chun, ‘Strategy for Industrial Development and Growth of Major Industries in Korea,’ (2010), Available at http://www.kds.re.kr/subpage102-1.php. 3 oecd, ‘oecd Economic Surveys Korea,’ June 2014, available at http://www.oecd.org/eco/ surveys/Overview_Korea_2014.pdf.

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valued at approximately $28 billion, which is 1/43 of the South Korean economy. North Korea’s gni4 per capita for 2013 stood at approximately $1,800, the equivalent of 1/21 that of South Korea.5 North Korea’s excessive military expenditures are blamed for its poverty and economic failure. The ratio of military expenditures per gdp in 2011 was the highest in the world, with 12.4~22.1%.6 North Korea, which has adopted a ‘military-first doctrine’ has been making excessive military expenditures, even in a poverty-stricken economy. This has been well demonstrated in the series of nuclear tests and ballistic missile launches that the country has undertaken in the past decade. Economic Ties While the relations of the two Koreas have been strained, there have been reconciliatory and cooperative efforts. South Korea has encouraged North Korea to open the market and provided economic aid to help boost the staggering North Korean economy. The economic ties between the two Koreas have greatly fluctuated over the past 30 years, depending on inter-Korean relations. In the late 1990s and most of the 2000s, South-North relations warmed under the Sunshine Policy7 of President Kim Dae Jung. Following a 1988 decision by the South Korean government to allow trade with North Korea, South Korean firms began to import North Korean goods. The economic ties between the two Koreas peaked when the Kaesung Industrial Complex began to operate. The joint industrial complex is situated in the North Korean city of Kaesung, 10 kilometers north of the dmz. The joint industrial complex combines the South’s capital and technology with the North’s labor and land for mutual 4 gni (Gross Domestic Product) is defined as gdp plus net receipt from abroad of wages and salaries and of property income. gni is an indicator that is most commonly used to compare income levels. 5 The Bank of Korea, ‘Gross Domestic Product Estimates for North Korea in 2013,’ released on 12 July 2013. 6 u.s. State Department, ‘2014 World Military Expenditures and Arms Transfers,’ available at http://www.state.gov/t/avc/rls/rpt/wmeat/. 7 The aim of the Sunshine Policy was to soften North Korea’s attitudes towards the South by encouraging interaction and assistance. The policy sought to bring about a state of peaceful coexistence in the Korean Peninsula by effecting changes in North Korea through reconciliation, cooperation, and mutual exchange, all founded upon a basis of airtight national security. The policy aimed at North Korean reform and openness as well as to lift tensions between the South and the North, ultimately ending the state of confrontation. The Sunshine Policy was guided by three principles: zero tolerance for aggression, renunciation of unification through absorption, and an active drive for reconciliation and exchange.

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benefits. As of 2014, South Korean companies were employing approximately 54,000 North Korean workers and 800 South Korean staff, producing textile, machinery, electronic goods, chemicals, food, etc. The Kaesung Industrial Complex accounted for 99.7% of bilateral trade between the South and the North in 2013, which was valued at $1.14 billion.8 Economic ties were often shaken by strained situations on the Korean Peninsula. The complex was shut down for five months between April and September 2013 as North Korea recalled all North Korean workers from the complex, calling for a wage increase of its workers. It was shut down again in 2016 when South Korea decided to withdraw its companies and workers as a sanction on North Korea in the wake of North Korea’s fourth nuclear test. Previously, in the aftermath of the 2008 shooting of a South Korean tourist, South Korea suspended tours to the North Korean mountain Keumgangsan. In response to the sinking of the South Korean warship Cheonan and the shelling of Yeonpyong Island off the Northern Limit Line (nll) in 2010, the South Korean government cut off aid, trade, and bilateral cooperation activities. Bilateral trade was greatly swayed by the unstable relations. In 2013, the overall trade volume between the South and the North contracted by 42% compared with 2012. iii

International Relations in Northeast Asia

A Turbulent History Northeast Asian countries, which include China, Japan, South Korea, North Korea, Taiwan, and Russia, are very closely linked to each other in many aspects (See Map 1.1). They share much turbulent history among them. Particularly, China, Japan, and both Koreas have shared culture, ideas, and lifestyles in the region where Confucian values were dominant. However, the three countries took totally different paths to nation-building, while often getting entangled with each other. China and Korea were occupied by Japan and fought together against Japanese colonialism. During the Cold War, Northeast Asia turned to an arena of ideology conflicts where the West and the Communist Bloc competed against each other. During the Korean War, Communist China—a close ally of Communist North Korea—and South Korea fought each other. China and South Korea maintained strained relations over 40 years until the two countries established diplomatic relations in 1992. 8 The Bank of Korea (n 5).

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Map 1.1

chapter 1

Seas of Northeast Asia

Freed from Japanese colonial rule in 1945, South Korea normalized diplomatic relations with Japan in 1965 with the signing of a fisheries agreement. South Korea took a catch-up strategy with Japan when it launched its economic development plan in the 1960s. The two neighbors formed an alliance against North Korea’s military threats and closely cooperated as trade partners. Japan and North Korea have sought to establish diplomatic relations over the dec­ ades, but deadlocked over some lingering issues, such as the kidnapping of Japanese citizens by North Korea. Northeast Asia is unique in that the region is shaped by the legacy of both colonialism and the Cold War. As demonstrated in disputes between Korea and Japan over ‘comfort women’ who were forced to serve Japanese soldiers over World War ii, the colonial legacy of Japan still overshadows the relations of Northeast Asian countries. Many long-held international issues in Northeast Asia stem from Japanese colonialism. Reshaping International Relations In the post-Cold War era, the paradigm of international relations in Northeast Asia has greatly changed, moving from confrontation and hostility to cooperation and peace. Although the overall region is thriving economically, the geopolitical situation still remains unstable and volatile. Meanwhile, international relations in Northeast Asia have been shifting as China has risen to become a global power. While the influence of the United States declined in Asia in the post-Cold War era, China has continued to fill a power vacuum and emerged

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as a regional hegemon. Together, the following international factors have a significant impact on future regional relations: (a) Intensifying maritime disputes over territorial sovereignty, maritime jurisdictions and other maritime issues (b) Competition between China and Japan for the regional dominance (c) Disputes over the settlement of Japanese war crimes and atrocities committed during World War ii (d) Japan’s ambition for a normal state through the amendment of the Peace Constitution to allow collective security and dispatch of forces overseas, and growing militarism (e) China’s growing military might and power projection in the South China Sea and coercive stance on maritime issues (f) North Korea’s belligerence, which poses a great threat to regional stability through the development of nuclear weapons and missiles (g) Growing u.s. forces’ presence in Asia, under a policy of ‘Pivot to Asia’ and ‘re-balancing,’ aimed at containing China’s emergence (h) Intensifying nationalism, which fuels negative sentiments against each other and discourages a rational approach to international issues Economic Partnership Over the past decades, Northeast Asia has forged a regional economic partnership despite these strained relations, through which the economies of these countries are heavily dependent on each other. Northeast Asia remains the most dynamic and rapidly growing region in the world and exerts increasing influence on other developing regions. A United Nation survey indicated that from 1960 through 2003 the average economic growth rate of China, Japan, and South Korea was 5.35%, more than double the average growth rate of oecd countries over the same period.9 Notably, the average growth rate of the three economies is higher than those of other Asian countries that have been also experiencing faster e­ conomic growth than other regions. Even amid a global trend of sluggish economic growth in the recent decade, the economies of China, Japan, and Korea have  grown at a far more rapid rate than not only the developed regions of the world, but also other developing regions10 (See Table 1.1). 9 10

Adapted from the World Economic and Social Survey 2004, published by the United Nations. Economic and Social Commission for Asia and the Pacific (escap), u.n., ‘Economic and Social Survey of Asia and the Pacific 2013,’ at p. 47, available at http://www.unescap.org/ sites/default/files/Economic-and-Social-Survey-of-Asia-and-the-Pacific-2013_1.pdf.

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Table 1.1

Rates of real gdp economic growth of Northeast Asian countries, 2009–2013

Northeast Asia China Japan South Korea

2009

2010

2011

2012

2013

1 9.1 −6.3 0.2

6.8 10.4 3.9 6.1

4.1 9.2 −0.6 3.6

4.0 7.8 2.0 2.0

4.3 8.0 2.5 2.3

Source: u.n. Economic and Social Commission for Asia and the Pacific

The economies of the three Northeast Asian countries take high positions in the global economy. The economies of the three countries combined account for approximately one-fifth of the world’s gdp. As of 2014, China, Japan, and South Korea rank second, third, and 11th, respectively, in gdp terms.11 The three countries are leading global traders. China is the largest exporter and the second-largest importer after the u.s. Japan and Korea rank as the fourth and seventh largest exporters and the fourth and seventh largest importers, respectively. With inter-state trade and investment expanding, the region is becoming increasingly integrated economically and is emerging as a global economic hub. Maritime Disputes Despite growing economic interdependence, stability and peace in the region are threatened by numerous potential conflicts, many of which are linked to the unique geopolitical situation and the legacy of the colonial period. In the post-Cold War era, a notable trend is that maritime disputes are increasingly becoming a critical factor in determining international relations in Northeast Asia. There exist a variety of maritime disputes in Northeast Asia, to the extent that the maritime disputes in Northeast Asia are often described as a ‘textbook case of maritime issues.’ While conventional security threats still exist, as demonstrated by military build-ups and North Korea’s nuclear tests, intensifying maritime disputes are highly likely to undermine regional stability and peace. In the wake of the creation of the 1982 u.n. Convention on the Law of the Sea (unclos), which codified coastal states rights and responsibilities with regard to claims of up to 200 nautical miles (nm) of the exclusive economic 11

imf, ‘World Economic Outlook (weo) April 2015,’ available at https://www.imf.org/exter nal/pubs/ft/weo/2015/01/pdf/text.pdf.

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zone (eez) and a further extension—up to 350  nm—of their claims to the continental shelf from the baselines, Northeast Asian countries have pursued the extension of maritime jurisdiction beyond their traditional 3 nm of territorial waters. In terms of geography and proximity, Northeast Asian countries are situated opposite or adjacent to each other across enclosed or semi-enclosed seas whose breadth is less than 400 nm wide. This geography inevitably led to overlapping claims on maritime jurisdiction and resources. The maritime disputes in Northeast Asia are as follows: one is over the ownership of disputed islets, which is an issue of territorial sovereignty; the other one concerns the maritime boundary delimitation from the baselines of mainland coasts or from the disputed islands, and subsequently the exploitation of resources within these extended maritime jurisdictions—that is, a combination of sovereignty and sovereign rights. As China, Japan, and the u.s.—all global powers—are engaged in maritime disputes in Northeast Asia, these regional disputes are becoming a global issue. The three global powers are directly involved in intensifying maritime disputes in the East China Sea and in the South China Sea. iv

Maritime Regime-building in Northeast Asia

Maritime Affairs in the History of Northeast Asia Confucian values, represented by virtues such as righteousness and loyalty, have greatly influenced every aspect of Northeast Asian culture. For hundreds of years, Confucian values shaped the region’s ideas, politics, social norms, ethics, and lifestyles. Originating in China, Confucianism had served as a ruling doctrine of the Chosun Dynasty (1392–1910) over 500 years on the Korean Peninsula. In a society dominated by Confucian values, maritime jobs were held in low regard, as opposed to the highly valued role of scholars. In particular, the ban on sea-faring enforced by the Ming Dynasty (­ 368–1644) and the Qing Dynasty (1644–1911), strictly banned sea-going as well as seaborne trade with foreigners, only allowing trade at the government level in the form of foreign tributes to China. This policy sprang from concerns that rebels would form an alliance with Japanese pirates, who frequently looted Chinese coasts, against the newly-built dynasty. The ban on sea-faring was also enforced in the Chosun Dynasty on the Korean Peninsula. The Chosun Dynasty reinforced it by executing the ‘empty islands policy,’ which left offshore small islands uninhabited for purposes of security. This move discouraged people from venturing onto the ocean and developing a sea-friendly culture. As a

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r­ esult, it also stymied ocean-going technology and related industries, as well as the development of sea-borne trade. In the age when European maritime powers aggressively pursued great voyages across the oceans, China and other Northeast Asian countries adhered to the ban on sea-faring. As a consequence, China, which had been the most advanced maritime power in the world in ancient times, turned to a land power. Northeast Asia was not only left behind in competition for maritime interests, but also became blind to the outside world. Ultimately, Northeast Asian countries became the prey of European maritime powers from the mid-19th century to the mid-20th century. Emergence of New Maritime Order on the Globe The oceans have long been subject to the doctrine of the freedom of the seas. This principle limited national rights and jurisdiction over the oceans to a narrow belt surrounding a nation’s coastline. The remainders of the waters were proclaimed to be free to all and belonging to none.12 In the 20th century, there was growing concern over the overexploitation of coastal fish stocks by longdistance fishing fleets and marine pollution from transport ships and tankers carrying oil and noxious cargoes. There was also growing tension between coastal states over rights to extended jurisdiction and maritime resources. The navies of maritime powers were competing to maintain a presence across the globe on the surface waters and even under the sea. In 1945, the United States, through the Truman Proclamation on the Continental Shelf, unilaterally extended its jurisdiction over all natural resources on that nation’s continental shelf. This posed a major challenge to the freedom of the sea doctrine,13 and is considered to be the most significant event that affected both the direction and the scope of the law of the sea in the aftermath of World War ii. The proclamation triggered a chain reaction of unilateral claims by other coastal states.14 In 1946, Argentina claimed its shelf and the epicontinental sea above it. Chile and Peru in 1947 and Ecuador in 1950 subsequently asserted sovereign rights over a 200-mile zone. After World War ii, countries across the world laid a claim to 12 nautical miles of the territorial sea, thus departing from the traditional 3-nautical-mile limit. 12

13 14

un, ‘un Convention on the Law of the Sea: A Historical Perspective,’ available at un website: http://www.un.org/depts/los/convention_agreements/convention_historical _perspective.htm#Historical Perspective. Ibid. James C.F. Wang, Handbook on Ocean Politics & Law (Greenwood Press, Westport, 1992), p. 25.

Northeast Asia and Maritime Regime Building

11

All these developments were threatening to transform the oceans into another arena for conflict and instability. Accordingly, there were greater demands for legal regimes to govern the uses of the oceans. Multilateral international conferences on the uses of the sea were held both before and after the United Nations Convention on the Law of the Sea or the 1930 Hague conference on the codification of international law. More than 60 international conferences, held from 1884 to 1957, produced 64 multilateral conventions dealing with specific and technical aspects of marine affairs, from the protection of submarine cables to salvage at sea.15 A major international conference on the development of the law of the sea during this period was the 1930 League of Nations Codification Conference in the Hague. The Hague conference was considered to be the first attempt sponsored by the League of Nations to codify some aspects of international law, such as nationality and territorial waters.16 From the end of World War ii to the eve of the first United Nations Conference on the Law of the Sea (unclos i) in 1958, a total of 28 international agreements on fishery conservation and management, seamen’s safety, sanitary regulations, stowaways, and oil pollution were concluded by multilateral negotiations.17 In an effort to create global maritime legal regulations, two significant conferences were held in Geneva. The unclos i was convened from 24 February to 27 April 1958. It was the culmination of a long process. One of the motivating forces for calling a new international conference on the law of the sea was to address the mounting controversy among nations on the meaning, limits, and legal status of the continental shelf doctrine embodied in the Truman Proclamation.18 The conference was preceded by the work of the Hague Conference for the Codification of International Law.19 The u.n. conference, attended by 86 countries, produced four separate conventions: (1) the Convention on the Territorial Sea and the Contiguous Zone; (2) The Convention on the High Seas; (3) the Convention on Fishing and Conservation of the Living Resources of the High Seas; (4) the Convention on the Continental Shelf. However, the Geneva conference failed to agree on the breadth or extent of the territorial water and the contiguous zone. The proposed breadth of the territorial water in the conference ranged from 3 nm to over 12 nm. For the proposals, a 3-nm territorial sea was favored by the majority 15 16 17 18 19

Ibid, p. 19. Ibid. Ibid., p. 20. Ibid., p. 25. Tullio Treves, ‘1958 Geneva Conventions on the Law of the Sea,’ available at http://legal .un.org/avl/ha/gclos/gclos.html.

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of 43 countries, a 4 ~ 10-nm territorial sea by 13 countries, a 12-nm territorial sea by 17 countries and over a 12-nm territorial sea by two countries. The Second United Nations Conference on the Law of the Sea, attended by 88 states, was held from 16 March to 26 April 1960. The main objective of this conference was to adjust the differences in the breadth or extent of the territorial sea and the contiguous zone. However, the conference also failed to agree on the agenda. Among the various proposals, ranging from maximum limits of 3 to 200 nautical miles, a proposal for a 6 nautical miles breadth of the territorial sea plus a 6 nautical miles fishery zone immediately adjoining it was accepted in the committee of the whole but missed the necessary two-thirds majority in plenary by one vote.20 When the General Assembly on 17 December 1970 was convened to decide a third conference on the law of the sea in 1973, the global political situation regarding the oceans was much different from that of 1958 and 1960 in many respects. First, by the 1970s, membership in the u.n. had increased phenomenally compared to 1958–1960, by about 59%. The combined numerical strength of the African-Asian-Latin American nations totaled more than the two-thirds majority needed for decision-making in the u.n. proceedings. Second, prompted by Arvid Pardo’s speech in the u.n. calling for a declaration and treaty on the peaceful use, in the interest of mankind, of seabed resources beyond national jurisdictions, the uses of seabed resources emerged as a top priority on the agenda for developing nations at any multilateral conferences.21 Third, the failure of the 1958 and 1960 conferences to agree on the breadth of the territorial sea and contiguous zone merely aggravated the continued unilateral extension of national sovereignty over fishing grounds. This, in turn, created tension and conflict over the traditional uses of the oceans.22 On 10 December 1982, the conference adopted the United Nations Convention on the Law of the Sea (unclos). The convention created a variety of new regimes governing all uses of the oceans and their resources. Some key features of the convention, which comprise 320 articles and nine annexes, include: (a) Territorial Sea and Innocent Passage: Coastal states exercise sovereignty over their territorial sea, of which they have right to a breadth of up to 12 nautical miles; foreign vessels are allowed ‘innocent passage’ through those waters.

20 21 22

Ibid. James C.F. Wang (n 14), p. 27. Ibid., p. 28.

Northeast Asia and Maritime Regime Building

13

(b) Transit Passage: Ships and aircraft of all countries are allowed ‘transit passage’ through straits used for international navigation. (c) Archipelagic States: States, made up of a group or groups of closely related islands and interconnecting waters, have sovereignty over archipelagic waters, a sea enclosed by straight lines drawn between the outermost points of islands. (d) Exclusive Economic Zone (eez): Coastal states have sovereign rights in a 200-nautical mile exclusive zone with respect to natural resources and certain economic activities, and they exercise jurisdiction over marine science research and environmental protection. (e) Continental Shelf: Coastal states have sovereign rights over the continental shelf (the national area of the seabed) for exploration and exploitation. The shelf can extend 200 nautical miles from the shore, or more under specified circumstances. (f) High Seas: All states enjoy the traditional freedoms of navigation, overflight, scientific research and fishing on the high seas. (g) Scientific Research: All marine scientific research in the eez and on the continental shelf is subject to the consent of the coastal states. (h) Disputes Settlement: Disputes can be submitted to the International Tribunal for the Law of the Sea, to the International Court of Justice, or to arbitration. Conciliation is available. The tribunal has exclusive jurisdiction over deep seabed mining disputes. The unclos came into force in 1994, a year after Guyana became the 60th nation to sign it. As of 2015, 166 countries and the European Union have joined in the convention. Building Maritime Order in Northeast Asia The seas adjacent to the Korean Peninsula are regarded as ‘semi-enclosed seas,’ which are ‘surrounded by two or more states and connected to another sea or to the ocean by a narrow outlet and consist entirely or primarily of the territorial seas or exclusive economic zones of two or more coastal states.’23 Before the emergence of the new maritime order, the maritime situation in East Asia was rather anarchic (with the exception of some fishery agreements between relevant countries such as the Sino-Japanese Fishery Agreement, concluded in the 1950s and 1960s for the management of fishery operations in the

23

Art. 122, unclos.

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East China Sea and the Yellow Sea).24 The previous maritime order, if it existed, was maintained basically by power rather than by law.25 While maritime legal regimes focused on the breadth of the territorial sea were developing in European maritime states, most Asian countries were somewhat blind to such a move. Japan was the only Northeast Asian country that actively engaged in maritime legal regime building, primarily driven by Western maritime powers. Japan, which was emerging as a powerful maritime state after it successfully modernized in the mid- and late 19th century, tried to secure its maritime interests by asserting a narrow 3-nautical mile territorial sea. The Japanese position was based on the premise of maximum freedom of the oceans.26 Japan regarded this concept as being best suited to its national interests. In the 1960s and 1970s, when claims by coastal states to larger areas of the seas adjacent to their coasts were gaining momentum, Japan continued to maintain that international customary law only allowed coastal states to claim sovereignty over adjacent territorial seas up to 3 nautical miles. Japan held this position in the u.n. Conferences on the Law of the Sea. Japan and Russia (then the Soviet Union) acceded to the Convention on the Territorial Sea and the Contiguous Zone and the Convention on the High Seas on June 1968 and on 22 November 1960, respectively. On the Korean Peninsula, maritime legal regimes were not able to develop during the colonial rule of Japan. A maritime legal regime was first established during a short period of u.s. military rule. The 3-nautical mile territorial sea was adopted by a u.s. military ordinance in 1945. Meanwhile, the unclos has provided a legal framework for the establishment of the maritime legal order in East Asia. All 14 East Asian countries except Cambodia, North Korea, and Thailand have acceded to the unclos (See Table 1.2).27 In order to implement the unclos, the countries have adopted relevant domestic laws and regulations for the management of their own maritime zones and maritime activities within their jurisdiction. China, Japan, and South Korea all enacted their domestic laws on the territorial sea and on the eezs and continental shelves.28 24 25 26

27 28

Zou Kyeuan, Law of the Sea in East Asia: Issues and Prospects (Routlege, London, 2005), p. 2. Ibid. Yutaka Kawasaki-Urabe and Vivian L. Forbes, ‘Japan’s Ratification of un Law of the Sea Convention and its New Legislation on the Law of the Sea’ (Winter 1996–1997) ibru Boundary and Security Bulletin, 92–100, p. 92. Zou Kyeuan (n 24), p. 2. Ibid.

15

Northeast Asia and Maritime Regime Building Table 1.2

Contracting parties to the unclos in East Asia and their maritime claims

States

Ratification

Territorial Contiguous eez Sea Zone

Continental Shelf

Brunei Cambodia China Japan South Korea North Korea Laos Malaysia Mongolia Myanmar Philippines Russia Singapore Thailand Vietnam Taiwan

05/11/1996

12 12 12 3/12 3/12 12

200 200 200 200 200 200

200(58) 200/CM 200/CM 200/CM

200

200m/Exp(58)

07/06/1996 20/06/1996 29/02/1996 05/11/1996 14/10/1996 13/08/1996 21/05/1996 08/05/1985 12/03/1997 17/11/1994 25/07/1994

24 24 24 24

12 12

24

200

12 3 12 12 12

200/CM 200/Exp

24 24 24

200 200 200

200m/Exp(58) 200/CM 200/CM(58)

Source: Zou Keyuan, Law of the Sea in East Asia (2005) Note: a. (58): contracting party to the 1958 Convention on the Continental Shelf b. cm: Continental Margin; Exp: exploitability; 200: 200 nm; 200 m: 200 meters c. The 3-nautical mile limit, for South Korea, applies to the Korea Strait area, and for Japan, applies to the Soya Strait, the Tsugaru Strait, the eastern and western channels of the Tsushima Strait and the Osumi Straits only

The unclos has brought greater certainty and uniformity to regional maritime affairs. Prior to the entry into force of the unclos, the ocean and law of the sea issues were largely dominated by customary international law and state practices in the region. But customary international law governing the ocean was in large part imprecise, and state practices varied.29 Despite the stabilizing effect the unclos has had on regional maritime relations, it will not solve all the problems and disputes involving Northeast Asia’s seas.30 However, it is 29 30

Park Hee Kwon, The Law of the Sea and Northeast Asia (Kluwer Law International, The Hague, 2000), pp. 14–15. Ibid.

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evident that the unclos has served as a legal framework which has provided objective criteria and standards. v Conclusion Strongly influenced by Confucianism, Northeast Asian countries held sea-­ faring and maritime jobs in low regard. The use of the sea by Northeast Asian countries focused on security, as opposed to sea-borne trade, exchange, and even expansion, such as in the case of European maritime powers. Northeast Asian countries adhered to a closed-door policy until the mid-19th century, when they were forced to open the door by European gunboat diplomacy. Northeast Asian countries were hostile towards foreigners and sea-borne trade with foreign countries out of fear that it would lead to the disintegration of their traditional social order. Throughout a turbulent history in which European expansionism, Japanese colonialism, and ideology conflicts swept throughout the region, Northeast Asian countries (except for Japan) were blind to maritime regime-building driven by western maritime powers. Moreover, customary maritime law was not well established in the region. As a result, the seas of Northeast Asia had been chaotic and governed by force. After the end of World War ii, the newly born Northeast Asian countries had shown a keen interest in securing their maritime jurisdictions as part of nation-building. In the wake of the adoption of the u.n. Convention on the Law of the Sea, Northeast Asian countries have engaged in harsh competition for extended maritime jurisdiction and interests. Conflicting territorial claims fueled maritime disputes. Meanwhile, Northeast Asian countries made bilateral fishery agreements to establish the fishery order, which was the most urgent in the narrow seas. As part of a national development strategy, Northeast Asian countries have actively pursued sea-going. As a result, they have become leaders in terms of sea-borne trade and maritime industries. There are a variety of maritime issues that need to be addressed in Northeast Asia. However, regional maritime regimes to deal with those issues have not fully developed. It is largely due to a lack of trust, as well as rivalries that are overshadowed by the legacy of colonialism and the Cold War. For the better use of the seas in the future, Northeast Asian countries need to be more actively involved in building maritime regimes in a manner that respects each other’s position.

chapter 2

Disputes over the Northern Limit Line in the West Sea i Introduction The Northern Limit Line (nll) in the West Sea/Yellow Sea1 and the five small islands off the nll lie at the heart of military tensions on the Korean Peninsula. At present the Korean Peninsula is technically in a state of war since the South and the North ended the Korean War with the Armistice Agreement. Since then, the two Koreas have disputed over the legality and validity of the nll as the de jure maritime border. The disputed nll has become a source of armed conflicts as the two sides have clashed with each other in the waters off the nll on many occasions. While heavily armed forces confront each other along the military demarcation line on land in the Korean Peninsula, the nll, along the five West Islands in the immediate vicinity, is a flashpoint of armed conflicts in the sea. Deeply rooted in the turbulent contemporary history of the Korean Peninsula, the issue of the nll involves a wide range of complicated international military, political, economic, and legal factors. Given the status of the nll as an essential part of the armistice to end the Korean War, the nll issue is not only an internal matter of the two Koreas, but also an international issue in which the parties to the Korean War are also concerned. In recent years, North Korea has persistently pursued the development of nuclear weapons, despite comprehensive u.n. sanctions on its nuclear tests. Along with belligerent North Korea’s attempts to become a nuclear state, its provocations across the nll are posing a grave threat to peace on the Korean Peninsula and stability in Northeast Asia. This chapter highlights the nature of nll disputes in the West Sea in terms of legal validity and security. This will examine how the nll issue has developed and what factors are at stake with the nll and the five West Islands.

1 The Yellow Sea between the Korean Peninsula and China is also referred to as the West Sea. The West Sea is named after its location on the west coast of the Korean Peninsula.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_003

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Establishment of the nll in the West Sea

The nll is a sea boundary line in the West Sea/Yellow Sea that runs between the five West Islands (Paekryeong-do,2 Daechung-do, Socheng-do, Yeonpyeongdo, and Woo-do) under control of South Korea and the North Korea’s coast. The origin of the nll goes back to the Korean War (1950–1953). On 25 June 1950, North Korea, with Soviet and Chinese backing, invaded South Korea in an effort to reunify the Korean Peninsula by force of arms. At the outbreak, the Korean War was a civil war. But it developed into a large-scale international war as 16 other countries, led by the u.s., under the flag of the United Nations (u.n.), fought alongside South Korea. Meanwhile, China intervened massively on the other side to save North Korea from defeat. The bloody three-year war ended with the Armistice Agreement, signed on 27 July 1953 between the United Nations Command (unc), the Chinese People’s Volunteers of China, and the Korean People’s Army of North Korea. A month after the signing of the Armistice Agreement, the nll was unilaterally established by the unc for the purpose of preventing military conflicts between the South and the North in the West Sea. During armistice talks, the unc and the communist counterparts agreed to establish a land border, called the Military Demarcation Line (mdl), along with a 2-km Demilitarized Zone (dmz) on either side of the line. However, they failed to draw maritime boundaries in the West Sea and the East Sea due to conflicting claims as to the breadth of territorial waters. The unc claimed 3-nautical mile territorial waters, which was an internationally accepted zone at the time, as opposed to a 12-nautical mile claim by the communist side. The communists argued for a 12-nautical mile zone due to concerns over the unc naval blockade.3 Due to the unc’s naval supremacy over North Korea throughout the Korean War, a blockade effectively cut off the North Korean coast. Despite the unc’s argument that the Armistice Agreement prohibits naval blockade of any kind, the communists demanded the deletion of the entire article regarding the sea demarcation line.4 Instead, the two sides agreed to provide that ‘the five West Islands shall remain under the military control of Commander-in-Chief of the unc,’ while ‘all the islands lying to the north and west of the provincial boundary line between Hwanghae-do and Kyonggi-do 2 ‘do’ in Korean means an island and the five islands off the nll are collectively called the five West Islands. 3 Ministry of National Defense, Republic of Korea, ‘The Republic of Korea Position Regarding the Northern Limit Line,’ available at https://assets.documentcloud.org/documents/1341897/ rok-position-regarding-northern-limit-line-2002.pdf. 4 Ibid.

Disputes over the Northern Limit Line in the West Sea

19

shall be under the military control of the Supreme Commander of the Korean People’s Army and the Commander of the Chinese People’s Volunteers.’5 Regarding the sea jurisdiction, the Armistice Agreement stipulated that ‘which naval forces shall respect the waters contiguous to the Demilitarized Zone and to the land area of Korea under the military control of the opposing side …’6 Soon after the signing of the Armistice Agreement, it became clear that a maritime boundary was needed, in part, to ensure that the South Korean navy and fishing vessels did not stray too far north and restart hostilities.7 As a result, on 30 August 1953, unc commander General Mark Clark unilaterally prom­ ulgated the nlls as military control lines in the West and East Seas. The nll in the East Sea, which was drawn as an extension of the mdl on the eastern end, has not been disputed over its validity between the North and the South. Disputes over ‘the nll in the West Sea’ (hereinafter referred to as the ‘nll’) are closely linked to the status of the five West Islands, adjacent to the coast of North Korea but under control of South Korea. The nll was drawn essentially mid-channel between the North Korean coast and the five West Islands, and may not have been called the nll at the time.8 Some cast doubt on the date of nll establishment, referring to a document of the Central Intelligence Agency of the u.s. The report, declassified in 1974, indicated that ‘no documentation can be found to indicate that the nll was established prior to 1960.’9 However, it is possible that earlier documentation exists that delineates a line, possibly called the Northern Patrol Line at the time.10 As noted earlier, the nll was originally drawn for the purpose of preventing South Korean naval vessels and fishing boats from venturing north across the nll and thereby preventing armed conflicts with the North. Because North Korea only had a small naval force at that time, the unc just needed to appropriately control activities of its own forces. The role of the nll, however, has since been transformed to prevent North Korean ships from heading south.11

5 6 7 8

9 10 11

Para. 13(b), The Korean War Armistice Agreement. Ibid, para. 15. Park Hee Kwon, The Law of the Sea and Northeast Asia (Kluwer Law International, The Hague, 2000), p. 108. Terrence Roehrig, ‘The Northern Limit Line: The Disputed Maritime Boundary between North and South Korea,’ ncnk Issue Brief, available at http://www.ncnk.org/resources/ publications/NCNK_Issue_Brief_NLL_September_2011.pdf. Ibid. Ibid. Kotch, John Barry; Abbey, Michael (2003), ‘Ending Naval Clashes on the Northern Limit Line and the Quest for a West Sea Peace Regime,’ (2003) 27(2) Asian Perspective, 175–204.

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North Korea’s Challenges and Claims

The nll had served as a de facto maritime border in the West Sea for two dec­ ades until North Korea began to challenge the validity of the nll in 1973. At the 1 December 1973 Military Armistice Commission (mac)12 meeting, North Korea for the first time raised the issue of the nll’s validity. At this meeting, the unc lodged a protest that North Korean patrol boats violated the waters adjacent to the five West Islands six times between 19 November and 1 December 1973, and that it was a violation of paragraph 15 of the Armistice Agreement.13 In response, North Korea asserted that the waters north of the boundary line of Hwanghae-do and Kyonggi-do belonged to North Korea, including the waters off the five West Islands,14 while admitting South Korea’s control over the five West Islands. North Korea claimed that access to these islands required prior notification and approval from North Korea.15 The unc rejected North Korea’s demands.16 At subsequent mac meetings, North Korea reiterated its position and kept challenging the validity of the nll. On 21 June 1977, North Korea promulgated a 200-nautical mile economic zone in which economic activities of foreigners, foreign vessels, and foreign planes were regulated. In the West Sea, which is not wide enough for the full application of a 200-nautical mile limit, the economic zone line is an equidistant median line from the provincial boundary between Hwanghae-do and Kyonggi-do to the territorial sea boundary between the Korean Peninsula and China.17 On the day when the 200-nautical mile economic zone of North Korea came into force on 1 August 1977, North Korea proclaimed 50-nautical mile Military Boundary Zones in both the West Sea and the East Sea on the equidistance line basis, with the following statement:18 12

13

14 15 16 17 18

The Korean War Armistice Agreement (n 5), para. 24 & 20; The mac was set up to supervise the implementation of the Armistice Agreement and to settle through negotiating any violations of the Armistice Agreement. The mac consists of five high-ranking officers appointed by the unc and another five jointly appointed by North Korea and China. Morita Keiko, ‘Northern Limit Line: Demarcation Issues in the Yellow Sea,’ (2005) no. 5 nids Security Reports, available at http://www.nids.go.jp/english/publication/kiyo/pdf/ bulletin_e2003_2.pdf. Ibid. Ibid. Terrence Roehrig (n 8). Morita Keiko (n 13). Ministry of Foreign Affairs, Republic of Korea, ‘Regimes of the Waters of the People’s Democratic Republic of Korea,’ in Ocean Laws of Northeast Asian Countries and the un Convention on the Law of the Sea (Il Jo Kak, Seoul, 2006), p. 497.

Disputes over the Northern Limit Line in the West Sea

21

Demanded by the situation in our country, the Supreme Command of the Korean People’s Army established the military boundary to reliably safeguard the economic sea zone of the Democratic People’s Republic of Korea and firmly defend militarily the national interests and sovereignty of the country. The military boundary is up to 50 nm from the starting line of the territorial waters in the East Sea and to the boundary line of the economic sea zone in the West Sea. In the military boundary (on the sea, in the sea and in the sky) acts of foreigners, foreign military vessels and foreign military planes are prohibited and civilian ships and civilian planes (excluding fishing boats) are allowed to navigate or fly only with appropriate prior agreement or approval. In the military boundary (on the sea, in the sea and in the sky) civilian vessels and civilian planes shall not conduct acts for military purposes or acts infringing upon the economic interests. North Korea’s proclamation of the 50-natutical mile Military Boundary Zones met with instant opposition from countries concerned, such as South Korea, Japan, and the u.s. In particular, the South Korean government strongly opposed North Korea’s Military Boundary Zones with a special statement (translated by author): The Korean government makes it clear that it is not recognizing North Korea’s Military Boundary Zones and 200-nautical mile eezs because they may bring about change in the status quo of the Korean Peninsula since armistice in 1953, and especially the Military Boundary Zones of North Korea pose a threat to the security of our fishing boats and the navigational security of our vessels off the maritime borders in the East and West Seas.19 South Korea’s overriding concern was that national security would be undermined by North Korea’s extended military jurisdiction in the West Sea. Particularly, it feared that security of the waters off the five West Islands might be jeopardized.20

19 20

‘Statement of Korean Government on August 1, 1977,’ HanKook Il Bo(Korean Daily Newspaper), 2 August, 1977. Choon-ho, Park, East Asia and the Law of the Sea, (Seoul National University Press, Seoul, 1983), p. 165.

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Other than that, arguments against North Korea’s military boundary line can be summed up in the following points.21 Given the state practice that military zones are established to temporally prohibit passage for a military purpose, ­especially in a time of war, North Korea’s permanent military boundary zones are contrary to this state practice. In terms of international law, the obligation that foreign civilian vessels require prior agreement or approval to navigate the military zones runs counter to the customary international law allowing innocent passage of civilian vessels in the territorial waters of a coastal state.22 Moreover, foreign fishing vessels are not allowed to navigate in the zones at all.23 The lateral limit of the Military Boundary Zone in the West Sea with respect to China is not clear. According to the North Korean statement mentioned above, the Military Boundary Zone is up to the boundary line of its eez. In a narrow Yellow Sea where opposite coasts are less than 400 nautical miles distant from one another, China and North Korea’s eez claims overlap. They have not settled a maritime boundary largely due to the application of conflicting maritime delimitation principles: an equidistant line by North Korea versus the natural prolongation of land territory by China. For the next two decades or so, the nll was fairly calm.24 In January 2009, North Korea again made an issue of the legality of the maritime boundary on the west coast, with statements from the Labor Party and the Korean People’s Army. In these statements, North Korea declared that ‘it nullifies all the agreements concerning maritime boundaries with South Korea and that only the maritime boundary drawn by North Korea in the West Sea, not the illegally drawn nll, would remain valid until the unification of the Korean Peninsula.’25 On the occasion of a naval clash in the nll between the South and the North on 15 June 1999, which resulted in the sinking of North Korean patrol boats, the deaths of 30 North Korean sailors, and the wounding of nine South Korean sailors, the Korean People’s Army General Staff issued a special ­communiqué 21 22 23 24 25

Suk Kyoon Kim, ‘Korean Peninsula Maritime Issues’ (2010) 41(2) Ocean Development and International Law, 166–185, p. 171. Ibid. Ibid. Roehirg (n 8). A statement from the Committee for the Peaceful Reunification of the Homeland, an agency in the Labor Party in charge of affairs on the South, on 30 January 2009 and a statement, in January 2009, from the Chief of General Staff of North Korean Army. The New York Times, 30 January 2009, available at http://www.nytimes.com/2009/01/30/world/ asia/30nkorea.html?_r=1.

Disputes over the Northern Limit Line in the West Sea

23

on 10 November 2009. The communiqué declared that ‘the maritime boundary drawn by North Korea would remain valid,’ warning that ‘it would take merciless military measures to safeguard the maritime border in the West Sea.’26 Prior to the statement, the Korean People’s Army General Staff declared on 2 September 1999 the unilaterally established nll to be invalid and promulgated a new maritime boundary line called Chosun Sea Demarcation Line (see ② in Fig. 2.1). North Korea pledged that it would defend it with military force. As a subsequent measure, North Korea issued in March 2000 the ‘Order of Navigation to and from the five West Islands in the West Sea,’ under which North Korea unilaterally divided the waters off the islands into three zones and designated two narrow waterways for passage of South Korean and u.s. vessels (see ②’ in Fig. 2.1). Under the order, the vessels of the two countries are required to move to and from the islands through the designated sea routes. Any deviation from these

Figure 2.1 The nll and the maritime boundary claimed by North Korea Source: Ocean Development and International Law (2010)

26

Ibid.

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routes would be regarded as a violation of North Korean territorial ­waters.27 Actually, North Korea had first declared these provisions in December 1973, demanding that ships entering or leaving the five u.n. Command-held islands needed prior North Korean permission to do so.28 Although North Korea did not challenge South Korea’s control of the five West Islands, it made clear that the islands are in its territorial waters north of the military demarcation line claimed by North Korea. North Korea’s position boils down to the assertion that the five West Islands belong to South Korea, but they do not have contiguous territorial waters. The five West Islands, situated south of the 38th Parallel, were controlled by either u.s. or u.n. forces prior to or during the Korean War. The 38th Parallel was the dividing line between u.s. and Soviet Union troops when they occupied the Korean Peninsula after Japan surrendered in August 1945. In accordance with the Armistice Agreement, as noted earlier, the five West Islands remained under control of South Korea, while all the islands lying north and west of provincial line between Hwanghae-do and Kyonggi-do came under the control of North Korea. In conclusion, North Korea’s arguments can be stated in the following points: (1) the nll, unilaterally established by the unc, apart from a framework of the Armistice Agreement, is illegal and invalid; (2) the maritime boundary line in the West Sea is a provincial boundary line between Hwanghae-do and Kyonggi-­do; (3) the five West Islands are in the territorial waters of North ­Korea; (4) the nll infringes on North Korea’s sovereignty and access to the sea and its resources. iv

South Korea and the unc’s Positions

South Korea’s longstanding position regarding the nll is that it is a valid and legal maritime boundary in the West Sea between the South and the North. Given the importance of the nll in ensuring maritime security against North Korea, South Korea never allows any change in the status quo of the nll. South Korea has firmly rebutted North Korea’s challenges on many occasions. South Korea’s assertions against North Korea’s arguments can be stated as follows. First, South Korea argues that the nll has served as a de facto maritime boundary in the West Sea in the absence of an agreed-upon maritime ­boundary 27 28

Jon M. Van Dyke, Mark J. Valencia, and Miller Garmendia, ‘The North/South Korea Boundary Dispute in the Yellow (West) Sea’ (2003) 27 Marine Policy, p. 145. Ibid.

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25

under the Armistice Agreement. North Korea implicitly acknowledged the nll several times. The circumstantial evidence invoked by South Korea to support its arguments include the following:29 (1) North Korea had acquiesced to the nll for 20 years until it challenged the validity of the nll in 1973; (2) The nll was described as a military demarcation line in the 1959 Yearbook published in North Korea; (3) When the unc denounced a North Korean spy vessel’s crossing of the nll, North Korea denied it by showing the spy vessel’s location north of the nll; (4) Relief food supplies provided by the North Korean Red Cross to South Korean flood victims was delivered in the nll in 1984. With the tacit approval of North Korea, South Korea argues that its exercise of sovereignty over the nll for more than 40 years constitutes the principle of ‘historical title’ and ‘a special circumstance’ prescribed in Article 15 of the u.n. Convention on the Law of the Sea (unclos) or ‘consolidation’ of historical title in international law. Second, the status of the nll as a military demarcation line was recognized in the 1992 Inter-Korean Basic Agreement between the South and the North. The two sides agreed that they must respect the nll until a new agreement to bring permanent peace can be reached. Under the Inter-Korean Basic Agreement, the two Koreas agreed on the basic principles of inter-Korean relations, such as reconciliation, non-aggression, exchange, and cooperation. Article 11 of the Agreement stipulates that ‘the South and North demarcation line and areas for non-aggression shall be identical with the Military Demarcation Line specified in the Armistice Agreement and the areas that have been under the jurisdiction of each side until the present time.’ Given that, South Korea argues that in the absence of agreements to the contrary, the nll should be respected as a maritime demarcation line. Third, South Korea asserts that the nll is a maritime boundary line which reflects the principle of international law, claiming that the waters south of the nll are the territorial waters contiguous to the five West Islands. Accordingly, North Korea’s claim to a 12-nautical mile territorial sea and that the five West Islands lie within North Korea’s ‘coastal waters’ or ‘the Military Boundary Zone’ is unacceptable. While the breadth of the territorial waters off the five West Islands remains unclear in the Territorial Waters and Contiguous Zone Act, South Korea enforces the Act against Chinese fishermen charged with illegal fishing in the vicinity of the five West Islands. In the narrow sea area, whose breadth is less than 24 nautical miles, the nll, which draws a median line between the five West Islands and the coast of North Korea, is consistent with the provisions in the unclos. Article 15 29

Ministry of National Defense, Republic of Korea (n 3).

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s­ tipulates that ‘the territorial waters of coastal states opposite or adjacent to each other are delimited by the application of the equidistance line,’ except under ‘historical titles’ and ‘special circumstances’. Fourth, the nll cannot be unilaterally challenged or discussed except in a comprehensive agreement to bring permanent peace to the Korean Peninsula. The unc and the u.s., a traditional ally of South Korea, take the position that the nll has served as a practical maritime delimitation line in the West Sea between the South and the North. The u.s. concurs that the 1992 Basic Agreement stipulates that both Koreas must respect the line until a new agreement can be reached.30 On 15 and 17 June 1999, right after the Yeonpyeong naval clash, the u.s. State Department quoted the statement made by the unc on 11 June, stating that ‘the nll has served as an effective means of preventing military tension between North and South Korean military forces for the past 46 years. It serves as a practical demarcation line, which has contributed to the separation of forces.’ The u.s. State Department reconfirmed unc’s position by stating that ‘We continue to urge the dprk to recognize this practicality by keeping its craft north of the line.’31 However, the u.s. is in a difficult position regarding the nll dispute. As the executive agent of the unc, it is responsible for fulfilling the Armistice Agreement. The nll is not part of the armistice and the u.s. has expressed concern over South Korea’s assertion that the nll is a de facto maritime boundary.32 A 1974 declassified u.s. State Department document indicated ‘reservation’ regarding the rok’s assertion of the maritime boundary.33 However, the u.s. is very aware that an incident along the line could escalate into a larger conflict.34 v

Legal Controversy

The legal controversies claimed by the South and the North boil down to the following arguments. First, South Korea argues that North Korea has acquiesced to the nll as a de facto maritime boundary over the past four decades, and this constitutes a theory of ‘historical consolidation.’ North Korea rebuts South Korea’s assertion, arguing that when the nll was drawn, the unc did not inform North Korea, which neither acknowledged nor accepted it. North 30 31 32 33 34

Van Dyke, Valencia, and Garmendia (n 27). Ministry of National Defense, Republic of Korea (n 3). Roehirg (n 8). Ibid. Ibid.

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Korea argues that it has challenged the nll on many occasions (e.g., in 1955, 1973, 1989, and 1999), particularly as the value of blue crab catch in the area has become more apparent.35 Second, within South Korea there exists a view denying the nll as a maritime border in relation to the interpretation of the constitution. Invoking Article 3 of the constitution stipulating that ‘the territory of the Republic of Korea shall consist of the Korean Peninsula and its adjacent islands,’ constitutionalists claim that the Republic of Korea is the sole legitimate government on the Korean Peninsula. They argue that North Korea is not a legitimate state and is illegally occupying the northern half of the peninsula. The Supreme Court and the Constitutional Court of South Korea are in line with this view by ruling that the entire Korean Peninsula appertains to South Korea’s territorial jurisdiction pursuant to the Article 3 of the Constitution. Accordingly, they assert that the nll should not be regarded as a maritime border; rather it is a maritime delimitation line under the armistice system. Some scholars, for the same constitutional interpretation concerning the status of North Korea, oppose North Korea’s application of an equidistance line between the provincial line between Hwanghae-do and Kyonggi-do, which can be applied only to ‘legitimate independent states’ situated opposite or adjacent.36 Regardless of the aforesaid controversy over the legal nature of the nll, the public’s perception is that the nll is a valid maritime border between the South and the North, which is crucial to maritime security of the territory. Third, some scholars argue that the nll is contrary to the ‘non-­encroachment’ principle. Recent precedents of maritime boundary delimitation allow small islands to have limited capacity to effect a maritime boundary, especially when their action dramatically changes the result that would exist in their absence.37 Since the nll veers sharply to the north, North Korea claims that it unfairly gives too much open space to South Korea.38 To sum up, the legal controversy over the application of ‘equitable principles’ and the precedents are intrinsically linked to the question of whether North Korea is a legitimate state. 35 36 37

38

Van Dyke, Valencia, and Garmendia (n 27). See Kim, Young Koo, Korea and the Law of the Sea(in Korean), (21st Century Books, Seoul, 2004), pp. 144–145. See Jon Van Dyke, ‘The Maritime Boundary between North & South Korea in the Yellow (West) Sea,’ u.s.–Korea Institute, Johns Hopkins University School of Advanced International Studies, available at http://38north.org/2010/07/the-maritime-boundary-betweennorth–south-korea-in-the-yellow-west-sea/; See also John M. Glionna, ‘Sea Border a Trigger for Korean Peninsula Tension,’ Los Angeles Times, on 6 January 2006, available at http://articles.latimes.com/2011/jan/06/world/la-fg-korea-sea-border-20110107. Van Dyke, Valencia, and Garmendia (n 27).

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Enforcement of the nll

Complicated law enforcement mechanisms are employed in the waters south of the nll. On top of military control, a number of laws and regulations are enforced to serve the purpose of preventing armed conflicts between the South and the North. In the waters off the nll, which are rich in blue crabs and other fish, strict control on fishing vessels is enforced to prevent South Korean fishing boats from venturing north. In 1972, the South Korean government designated a wide sea area adjacent to the nll as the Special Maritime Zone (See area A-B-C-DE-A in Fig. 2.1) under the Regulation for Safe Fishing.39 The Special Maritime Zone was established to protect the security of fishing boats against repeated capture of South Korean fishing boats by North Korea and to control fishery activities in an area of high military tension. In order to protect the security of fishing boats, a number of obligations are imposed on fishing boats operating in the Special Maritime Zone.40 These obligations, under the Regulation for Safe Fishing, include: not crossing of the No Fishing Line; prior registration; formation of a fishing fleet; installation of safety and radio communication gear; and position reporting to a designated control center.41 The No Fishing Line (See Line ③ (A-B-C) in Fig. 2.1) was established by the South Korean government to keep its fishing vessels from venturing into the militarily sensitive waters off the nll. South Korean fishing boats are allowed to fish only south of the No Fishing Line42 and the Korea Coast Guard (kcg) is primarily responsible for the enforcement of the No Fishing Line. However, fishing boats of the five West Islanders are authorized to fish in designated fishing grounds off the islands, even beyond the No Fishing Line.43 Their fishing activities are controlled primarily by the military. The sea area enclosed by Line J-F-G-H-I in Figure 2.1 and the nll is the prohibited area where fishery activities by foreigners are prohibited under the Law on the Exercise of Sovereign Rights on Fisheries Activities by Foreigners in the Exclusive Economic Zone (or ‘the eez Fishery Law’).44 The prohibited area is 39 40 41 42 43 44

Art. 5, The Regulation for Safe Fishing. Kim (n 21). Arts. 16, 17, 21 and 23, The Regulation for Safe Fishing. Ibid., Art. 3. Kim (n 21). Art. 4, The Law on the Exercise of Sovereign Rights on Fisheries Activities by Foreigners in the Exclusive Economic Zone.

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designed to protect fishery resources in the eez, with security also an important concern. Given the security importance of the nll, the waters in the nll’s immediate vicinity are under control of the military. The South Korean navy established a military control line (see Line ④ in Fig. 2.1) to prevent possible military clashes as a result of any inadvertent crossing of the nll. Any naval or coast guard ships intending to cross the control line are required to have prior authorization from the Operational Command of the South Korean Navy. vii

Armed Conflicts off the nll

Reflecting tensions in the waters adjacent to the nll, particularly in the blue crab season, operational conflicts and naval clashes have occurred. During the period from 1953 to 1987,45 a total of 3,728 South Korean fishermen were captured by North Korea while fishing in the waters off the nll. Among them, 437 people are still in the custody of North Korea.46 The most serious concern might be that operational conflicts and accidental military encounters off the nll could escalate into armed clashes, such as naval clashes in 1999, 2002, and 2009. (See Spots ⑤, ⑥ respectively; the latest one was in the vicinity of Daecheong-do in Fig. 2.1). The deadliest incident in recent years occurred on 26 March 2010 in the waters off Paekryung-do, situated northernmost among the five West Islands. Cheonan, a South Korean navy’s warship, with 104 sailors on board, was torpedoed by a North Korean submarine and sank while it was patrolling nearby (Photo 2.1). Fifty-eight sailors were rescued by a coast guard ship and the remaining 46 sailors were killed. North Korea denied that it was responsible for the sinking of Cheonan. However, the Joint Civilian-Military Investigation Group, composed of experts from home and abroad, concluded that a strong underwater explosion, generated by a torpedo attack, caused Cheonan to split apart and sink. Based on the clues, such as recovered parts of a torpedo believed to be made in North Korea, the investigation team concluded that Cheonan was sunk by a North Korean torpedo attack.47 45 46 47

According to Korea Coast Guard, the latest incident in this regard occurred in January 1987. Kim (n 21), p.173. ‘Investigation Result on the Sinking of rok’s Cheonan,’ released by the Joint CivilianMilitary Investigation Group, 20 MAY, 2010, available at http://news.bbc.co.uk/nol/ shared/bsp/hi/pdfs/20_05_10jigreport.pdf.

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Photo 2.1 Debris of Cheonan, split in half Source: Ministry of Defense

Seven months after the Cheonan incident, North Korea provoked a military attack on one of the five West Islands. On 23 November 2010, following a South Korean military drill in the West Sea, North Korea fired approximately 170 artillery shells and rockets at Yeonpyeong-do. The South Korean military returned fire with 80 rounds of artillery. The bombardment by North Korea killed two marines and two civilians, and it injured 16 soldiers and three civilians. North Korea claimed that it had responded to South Korean shells being fired into North Korean territorial waters. The South Korean military, in response, stated that “it had conducted exercises but the shelling was directed away from the North Korean territorial waters.”48 The damage to North Korea was not known, but it was presumed that there were a large number of casualties. The skirmish could have developed into a large-scale military engagement, as South Korea was preparing retaliation against North Korea with air strikes.49 North Korea’s provocation prompted widespread international condemnation. The United Nations declared it to be one of the most serious incidents since the end of the Korean War.50 Previously, a number of naval clashes occasionally occurred off the nll and the five West Islands (Table  2.1). On 15 June 1999, a naval engagement 48 49 50

‘North Korean Artillery Hit South Korean Island,’ bbc ,23 November 2010. ‘President Lee Myung Pak Directed Air Strikes on North Korea,’ The Kyunghyang Shimbun, 13 December 2015. ‘Tensions High as North, South Trade Shelling,’ Dawn, 24 November 2010, available at http://www.philstar.com/breaking-news/632668/tensions-high-north–south-korea-trade -shelling.

Disputes over the Northern Limit Line in the West Sea Table 2.1

Date Outline

South Korean Damage

31

Naval clashes in the nll in recent years

1stYeonpyeong Battle

2ndYeonpyeong Battle

3rdDaecheong Battle

June 15, 1999 Seven N.K patrol boats violated the nll 11 times on June 7–15. About 9 a.m. on June 15, 7 N.K ships crossed the nll and opened fire on S.K patrol ships. The engagement lasted 14 minutes. 2 boats damaged 9 sailors wounded

June 29, 2002 N.K ships crossed the nll 4 times on June 11, 13, 27 and 28. Two N.K patrol boats west of Yeonpyeong-do on June 29 attacked a S.K high-speed boat, leading to a 25-minute engagement

November 10, 2009 A N.K patrol boat violated the nll off Daecheong-do. Engagement lasted 2 minutes

A high-speed boat submerged 6 killed and 18 wounded North A number of boats, 13 killed and 25 Korean ­including a torpedo wounded Damage boat, damaged. 30 killed and 70 wounded

Slight damage to battleships and no casualties A warship partially destroyed Estimated that 1 killed and 3 wounded

Source: Adapted from relevant materials

between the South and the North occurred off Yeongpyeong-do. The battle occurred after North Korea began a sustained campaign to redraw the maritime boundary line to replace the existing nll. On the following day, when North Korea claimed that South Korean patrol ships had illegally trespassed in North Korea’s territorial waters, North Korean naval ships and fishing boats repeatedly crossed the nll. Despite South Korea’s warnings against the crossings, North Korean vessels continued to cross the nll, violating the boundary 11 times from 7 to 15 June in the name of protecting their blue crab fishing boats.51 51

South Korean Navy, ‘The First Yeonpyung Naval Battle,’ available at http://www.navy.mil .kr/html/web1/001006001007001.html.

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In an effort to deter the North Korean vessels from crossing the nll, South Korean patrol ships pushed aside North Korean ships by bumping against them. The physical encounters eventually escalated into a naval engagement when North Korean ships abruptly fired on South Korean patrol ships. The engagement lasted 14 minutes and resulted in the sinking of a North Korean torpedo boat, leaving approximately 30 North Korean sailors killed and 70 wounded. South Korea suffered slight damage to a patrol ship, and eight sailors were wounded. Another naval clash on 29 June 2002, known as the second Yeongpyeong naval battle, took place two miles west of Yeongpyeong-do. This followed the pattern of the first Yeonpyeong naval clash in 1999. The naval engagement occurred while South Korean patrol ships were trying to turn back two North Korean patrol ships which had crossed the nll. The North Korean patrol ships, which were travelling south of the nll, abruptly opened fire on South Korean patrol ships. A 25-minute engagement left six South Korean sailors killed and 18 wounded. North Korean casualties were not known but presumed to be 30 sailors. viii

Ways to Ease Tensions

As demonstrated in the military clashes, the waters and islands off the nll remain volatile and are increasingly becoming a flashpoint on the Korean Peninsula. In order to reduce tensions and prevent armed conflicts in the nll, a number of agreed-upon measures are employed. Among them is to establish a military hot line to prevent accidental armed clashes in the West Sea. On 4 June 2004, the South and the North agreed to sign ‘the Agreement on the Prevention of Accidental Armed Conflict in the West Sea and Stopping of Propaganda Loudspeaker Activities and Removal of Propaganda Tools in the Demilitarized Zone.’52 The measures under the agreement include; (1) to thoroughly control their own ships to help prevent a standoff; (2) to prohibit improper physical activities against each other’s ships and civilian ships; (3) to share international merchant ships’ radio frequencies of 156.8 Mhz and 156.6 Mhz to help prevent a standoff or misunderstandings when ships deviate from sea routes or are 52

Special Office for Inter-Korean Dialogue, the Ministry of Unification, South Korea, available at http://dialogue.unikorea.go.kr/home/agreement/southnorth/list?p_page=10&search _agreement_type=&search_open_talk=&search_searchStartDate=&search_searchEnd Date=&search_type=&search_keyword=.

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33

­engaged in search-and-rescue operations; (4) to exchange information on illegal foreign fishing and to cooperate in diplomatic efforts to resolve illegal fishing by foreign fishing boats Notably, in 2007 the South and the North agreed in a summit meeting in Pyongyang to establish a ‘Special Zone for Peace and Cooperation in the West Sea.’53 The Special Zone, which covers the area of Haeju, a North Korean port off the five West Islands and its adjacent seas, was expected to serve as a joint fishing and peace zone and a direct shipping route to the Port of Haeju for merchant ships. However, there has been no progress or follow-up measures since then. The agreement made by the progressive government caused a political dispute within South Korea because conservatives, who believed it weakened South Korea’s sovereignty and constituted the abandonment of the territory, strongly opposed it. Some scholars, in line with the establishment of a joint management zone across the nll, suggest that the two Koreas should designate a joint fishing zone to prevent armed conflicts. The proposed designated zone is a buffer zone where neither Korean navy could enter; instead, the area would be designated for free fishing and operate under joint management.54 Other than operational measures to ease tensions, however, any attempt which is perceived to undermine or change the status quo of the nll is not likely to be accepted by South Korea. This is because South Koreans regard the nll as a maritime security Maginot line to safeguard themselves from North Korea’s provocations. ix Conclusion As discussed above, the validity of the nll has been disputed between the South and the North for decades. North Korea has challenged the legality of the nll and declared its own maritime demarcation line in the West Sea. The nll has become a source of military conflicts on the Korean Peninsula. Some scholars raise a validity question with the nll, arguing that the nll denies North Korea’s rights to access adjacent sea areas and thus is i­ nconsistent 53

54

In October 2007, South Korean President Rho Moo Hyun and Chairman of the National Defense Committee, Labor Party of North Korea Kim Jung II had a summit meeting and issued a joint statement, titled ‘The Proclamation on the Development of the South and North Relationships and Peaceful Prosperity.’ Van Dyke, Valencia, and Garmendia (n 27).

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with the principle of ‘non-encroachment’.55 However, it should be noted that beyond the controversy over its legality, the nll has played a vital role in preventing military encounters between the South and the North over the last six decades. As a follow-up measure of the Korean War, the nll has served as an actual maritime border in the absence of an agreed-upon maritime demarcation line between the South and the North. Given the special military circumstance and the role of the nll for security, the direct application of maritime principles, where can be applied in a normal situation, appears to be inappropriate for the nll. North Korea’s rights to access the sea should be discussed and resolved through consultation and maritime cooperation between the two Koreas, as it was in the Maritime Transportation Agreement. In conclusion, it is necessary that the nll should be recognized as a maritime military demarcation line on the Korean Peninsula, which is still managed by the Armistice Agreement. 55

See Jon M. Van Dyke, ‘Disputes over Islands and Maritime Boundaries in East Asia,’ in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (eds by SeoungYoung Hong and Jon M. Van Dyke), (Martinus Nijhoff Publishers, Leiden, 2009), p. 43.

chapter 3

Disputes over Straight Baseline and the Territorial Sea i Introduction Out of a variety of maritime issues in Northeast Asia, arguably the toughest one is concerned with maritime boundary delimitation. In order to extend their maritime jurisdiction to the greatest extent, Northeast Asian countries invoke the conflicting interpretations and applications of the provisions of maritime zones in the u.n Convention on the Law of the Sea (unclos). They each make use of the vagueness and ambiguity of the unclos concerning maritime zones to their advantage. In a unique geography in which Northeast Asian countries share the narrow semi-enclosed seas1 whose breadth is less than 400 nautical miles wide, they have a keen interest in applying the criteria for maritime jurisdiction, particularly straight baselines. This is largely because the criteria greatly affect the jurisdiction of the exclusive economic zone (eez) and the continental shelf. Thus, the countries use these criteria as a starting point to claim maritime jurisdiction. This occasionally results in a creeping application of the criteria of maritime zones, which generates conflict in maritime boundary delimitation. ii

Straight Baselines and Basepoints

Provisions under the unclos The baseline is the line from which the outer limits of the territorial sea and other coastal states’ zones (the contiguous zone, the exclusive fishing zone, the exclusive economic zone and the continental shelf) are measured.2 The baseline represents the demarcation between that maritime area (internal waters) where other states enjoy no general rights, and those maritime areas (the territorial­sea and other zones) where other states do enjoy certain 1 The seas include the Yellow Sea (or the West Sea of Korea) and the East China Sea, encompassing 362,000 nm2 and East Sea of Korea (or the Sea of Japan), 44,500 nm2, and the Sea of Okhotsk,614,000 nm2. 2 R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd edition, Manchester University Press, Manchester, 1999), p. 31. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_004

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rights.3 By this function of baselines, the question of how to draw the baselines of a coastal state affects relevant countries’ rights—as well as the international community’s rights—to use the ocean and superadjacent airspace. Thus, it is obvious that if a coastal state draws the baselines further seaward, it means that relevant countries’ rights to use the sea and claims to their maritime zones become narrower. Under the unclos, there are two ways of drawing baselines. The normal baseline to measure the breadth of the territorial sea is ‘the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state.’4 The straight baseline, which is problematic, is an exception to the normal baseline. Article 7 of the unclos provides exceptional geographical conditions where the straight baseline is applicable. The straight baseline can be employed in the following localities: a) b) c)

Where the coastline is deeply indented and cut into; Where there is a fringe of islands in the immediate vicinity of the coast; Where the coastline is highly unstable because of the presence of a delta and other natural conditions.

Along with the above geographical conditions, Article 7 also states the method for drawing straight baselines. a)

The drawing of the straight baselines must not depart to any appreciable extent from the general direction of the coast; b) The sea areas lying within the lines must be sufficiently linked to the land domain; c) Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations have been built; d) Straight baselines are not to be applied in a manner to cut off the territorial sea of another state from the high seas or the exclusive economic zone. Many of the straight baselines claimed by Northeast Asian countries are challenged on the basis that they do not meet the above criteria of straight baselines and the method of drawing straight baselines. As such, they often serve as a starting point of maritime disputes where maritime boundary delimitation is concerned. In the narrow seas of Northeast Asia, if a coastal state draws the 3 Ibid. 4 Art. 4, unclos.

Disputes over Straight Baseline and the Territorial Sea

37

baselines in a generous manner, it means that it reduces sea areas available for use by relevant states, which are situated adjacent or opposite. They are in dispute over the legality and validity of the straight baselines of each other, as discussed below. China China’s Straight Baseline Claims: China announced a Declaration on the Baseline of the Territorial Sea on 15 May 1996. Under the declaration, it declared a continuous set of straight baseline segments from the northeast section of its coast all the way to the west coast of Hainan Island. However, the declaration addresses only part of China’s coastlines, leaving undeclared its baseline from China’s land boundary terminus with North Korea, along its coast in the Gulf of Tonkin, and around other islands it claims in the South China Sea. Previously, China first claimed the straight baseline system in its Declaration on the Territorial Sea made on 4 September 1958, in which no specific geographic coordinates were given to define these basepoints.5 Before 1949, China had used the normal baseline to measure the breadth of its territorial sea.6 In the 1958 declaration, China also proclaimed Bohai Bay as legitimate internal waters. However, it did not define these basepoints with specific geographic coordinates.7 On 25 February 1992, China enacted the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone, stating in Article 3 that ‘the method of straight baselines composed of all the straight lines joining the adjacent base points shall be employed in drawing the baseline of the territorial seas ….’ According to the 1996 declaration, the baselines of mainland China are composed of 48 segments that connect 49 basepoints, which are 1,734.1 nautical miles in total.8 The straight baselines are drawn along the basepoints ranging from Point 1 on the Shandong Peninsula to Point 48 situated on the coast of Hainan Island (see Map 3.1). However, the declaration did not address China’s baseline from its land boundary terminus with North Korea to Point 1, along its coast in the Gulf of Tonkin, or around other islands but Xisha Islands in the South China Sea. 5 u.s. State Department, ‘Straight Baseline Claims: China,’ Limits in the Seas (1996), no.117. 6 Zou Keyuan, ‘The Establishment of a Marine Legal System in China’ (1998)13(1) International Journal of Marine and Coastal Law, p. 28. 7 Park Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation (Kluwer Law International, The Hague, 2000), p. 23. 8 Ibid; The other baseline system of China encompasses the Parcel Islands, in the northern part of the South China Sea, with 28 base points.

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Map 3.1

chapter 3

Straight baselines of China and Korea Source: Ocean Development and International Law (2017)

Disputes over Straight Baseline and the Territorial Sea

39

Many parts of China’s straight baselines are challenged by neighboring countries, especially by Korea, which shares the Yellow Sea and is directly affected in its maritime boundary delimitation with China. The problems with China’s straight baselines can be pointed out as follows. First, straight baselines in certain segments do not meet the criteria of the straight baseline under the unclos, as they are essentially smooth, with no fringing islands, and the enclosed waters have no close relationship with the land. There are only a few indentations that may meet the judicial bay criteria.9 Specifically, the straight baselines from the Shandong Peninsula (Point 1) to the area of Shanghai (Point 11) are the most controversial in this regard. Second, the legitimacy of some of the basepoints, which use low-tide elevations situated far away from the coast, has been challenged. In particular, out of the basepoints, some around the Shanghai area, which include Point 9 (Macaiheng), Point 10 (Waikejiao), Point 12 (Haijiao) and Point 13 (Dongnanjiao), are challenged by Korea. Korea argues that if the maritime zones of China are measured from these basepoints, it could lose the wide area of its maritime jurisdiction if the equidistant line were drawn. It is estimated that the possible loss from Point 9 and Point 10, and from Point 12 and Point 13, is the equivalent of 3,635 square kilometers and 5,671 square kilometers, respectively.10 More specifically, Point 9 and Point 10 are believed to be low-tide elevations, which provide a baseline for measuring the territorial sea only ‘where they are situated wholly or partially at a distance not exceeding the breadth of the territorial sea from the mainland or an island’ under the unclos.11 The legitimacy of these low-tide elevations are challenged in that they are situated 70 nautical miles away from the coast. Presumably recognizing the legal problem, China recently has made an effort to bolster the legitimacy of those basepoints by building lighthouses and installations on those low-tide elevations.12 China appears to consider the criteria set forth under the unclos, stating that straight baselines may be drawn from low-tide elevations when lighthouses 9

10

11 12

Art. 10(2), unclos provides the criteria of a judicial bay, which states: ‘For the purposes of this Convention, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.’ Yang Hee-Cheol, ‘Research on the Factors to Consider in the Yellow Sea Maritime Boundary Delimitation between Korea and China and Countermeasures to It,’ (2012) 57(3) Korea International Law Studies, p. 115. Art. 13(1), unclos. Art. 7(4), unclos.

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and installations­are built on them.13 Third, some of the straight baselines depart dramatically from the general direction of the coastline. In particular, China’s use of the barren islet Dongdao, a high-tide elevation about 70 nautical miles off Shanghai, which is identical to Point 12, has been challenged by Korea because it is too far from the coast and thus departs dramatically from the general direction of the coastline. Korea has officially protested China’s straight baseline claim as being inconsistent with the criteria prescribed in the unclos. Korea has been concerned about the use of Dongdao as a basepoint because China has used the barren islet as a basepoint to claim jurisdiction over a disputed submerged feature Ieodo. Fourth, the waters enclosed by the new straight baseline system do not have a close relationship with the land, but rather reflect the characteristics of the high seas or the territorial sea. Of the 48 segments that connect the 49 basepoints and range in length from 0.1 nautical miles to 121.7 nautical miles, over half of the baseline segments are in excess of 24 nautical miles in length, with three of the segments exceeding 100 nautical miles. Status of Bohai Bay: As noted above, China proclaimed in the 1958 declaration that Bohai Bay constitutes legitimate internal waters. Although China has not codified it in any relevant legislation, it was presumed that China has considered Bohai Bay as a historic bay. China’s claim to Bohai Bay remains controversial. Neighboring countries argue that the bay, whose mouth is 45 nautical miles long, challenges the requirements of a judicial bay in Article 10(4) of the unclos.14 In response, China argues that the small islands scattered across the mouth of the bay strengthen its claim.15 There is no definition of or criteria for a historic bay in the unclos, although it stipulates that the provisions for straight baselines do not apply to ‘historic bays.’16 In the case United Kingdom and Northern Island vs. Norway Fisheries, the International Court of Justice (icj) ruled that the term ‘historic waters’ usually refers to waters which are treated as internal waters but which would not have that character were it not for the existence of a historic title.17 13 14

15

16 17

Ibid. Art. 10(4), unclos: ‘If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters.’ Jon M. Van Dyke, ‘Disputes over Islands and Maritime Boundaries in East Asia,’ in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (eds by Seoung-Young Hong and Jon M. Van Dyke)( Martinus Nijhoff Publishers, Leiden, 2009), p. 56. Art. 10(6), unclos. icj Report 1951, at p. 116 & 130.

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A 1962 u.n. study addressed the general criteria for the establishment of a historic title. According to this study, a state may validly claim title to a bay on historic grounds if it can show that: a) a state has for a considerable period of time claimed the bay as internal waters; and b) has effectively, openly, and continuously exercised its authority therein, and c) during this time, the claim has received the acquiescence of other states.18 Reflecting these criteria, Korea has never acknowledged its legitimacy of Bohai Bay as a historic bay. Japan has also raised reservations about the claim. The United States has apparently not objected to China’s historic-bay claim for Bohai Bay.19 At the operational level, China and Korea were engaged in arguments on the status of Bohai Bay when a joint search-and-rescue operation between the two countries was in question. This was related to the breadth of the territorial water of China in the Yellow Sea, and furthermore to the status of Bohai Bay. When a Korean cargo ship, Golden Rose, collided with a Chinese container ship on 12 May 2007 in the waters off Bohai Bay, leaving 16 sailors dead or missing, the Korean government proposed a joint search-and-rescue operation. However, China initially rejected Korea’s proposal to send its coast guard ships to the accident area. China finally accepted it on the condition that a coast guard ship was not to carry a helicopter onboard. It was presumed that China’s rejection of a Korean coast guard ship carrying a helicopter was due to security concerns, given that the accident site is within China’s territorial waters. China’s attitude was believed to be in line with its long-held position on the status of Bohai Bay as a historic bay. First, its attitude built on China’s claim to the straight baseline across Bohai Bay on the ground that it constitutes internal waters as a historic bay. Second, China argued that the accident site lies within its territorial water when measured from the straight baseline of Bohai Bay, although the coordinates of the straight baseline were not specified. Third, China established a military warning zone off the mouth of Bohai Bay in 1950, in which Japanese fishing vessels would not be permitted except by permit of the Chinese government. The military warning line was believed to be established as a way to cope with tensions arising from its own involvement in the Korea War (1950–1953).20 Regarding China’s attitude, Korean scholars argued that the accident location is situated outside a 12-nautical mile territorial sea and thus it should not

18 19 20

Churchill & Lowe (n 2), p. 44. Van Dyke (n 15), p. 56. Choon-ho, Park, East Asia and the Law of the Sea (Seoul National University Press, Seoul, 1983), pp. 77–78.

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be treated as the territorial sea for the purposes of dealing with the accident.21 Beyond all the legal arguments, it is believed that China’s position on Bohai Bay is concerned primarily with security. Historically, Bohai Bay has served as a gateway to Beijing and the heartland of China. The security concern is rooted in the bitter experience of the 19th and early 20th centuries, in which the bay was used by European powers as a channel to invade mainland China. On three of the six invasions, European maritime powers invaded through Bohai Bay to reach Beijing, less than 100 miles inland.22 Japan Japan has 162 straight baseline segments that range in length from 0.09 nautical miles to 85.9 nautical miles. Of these baseline segments, about 72% are less than 24 nautical miles in length. But the remaining 28% exceed 24 nautical miles, with over 10% of baselines being longer than 48 nautical miles. Generally, the coastal geography of these Japanese islands—along which the straight baselines have been drawn—does not conform to the requirements called for in the unclos. For the most part, the coastlines of these Japanese islands are neither ‘deeply indented and cut into,’ nor is there a ‘fringe of islands’ in the immediate vicinity.23 South Korea Along parts of the coastlines, South Korea has adopted the straight baseline system. The claim to straight baselines and the territorial seas was first made by the Territorial Sea Law, which went into force in 1977. South Korea has claimed 19 straight baseline segments, beginning along its southeast coast, enclosing all the islands and rocks off its southern and western coasts (see Map 3.1). South Korea’s coastlines are deeply indented in several areas with ria coasts particularly on the south and west coasts, which are fringed with thousands of small islands. Some of South Korea’s straight baseline systems have been challenged for having segments that are excessive in length. Five of the segments are between 24 and 48 nautical miles and two segments exceed 48 nautical miles, with the longest segment being 60.3 nautical miles in length. In the Western Channel of the Korea Strait, where Japan and South Korea agreed to limit their own 21 22 23

Chan-Kyu, Kim, ‘Golden Rose sank in the High Seas,’ (translated by author) Munhaw-Ilbo, 23 May, 2007. Park (n 20), p. 16. u.s. State Department (n 5), ‘Straight Baseline and Territorial Sea Claims: Japan,’ Limits in the Seas (1998), no. 120.

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territorial­seas to 3 nautical miles, Korea has narrowed the high seas corridor by establishing a straight baseline in this area.24 Notably, the straight baselines of South Korea are drawn only up to Soryeong Do, an island situated in latitude 37° N. (See Map 3.1) Thus, the sea area from the end basepoint of the straight baselines up to the latitude 38°3′ N, which is identical to the Northern Limit Line (nll) and is situated opposite to the Shandong Peninsula, could be problematic in maritime boundary consultations with China because it is not clear whether it adopts the straight baselines in this area. The coastlines off the nll area are fringed with a lot of small islands and indentations, which seemingly meet the criteria of the straight baseline system under the unclos. However, South Korea has not claimed the straight baselines, and its maritime boundary claim to China in the sea area has been not known. Under the fishery agreement between South Korea and China, which has served as a provisional maritime boundary arrangement between the two countries since 2001, the sea area off the nll is left without any arrangements. By all accounts, the gravity of the problem is heightened, given the contentious and volatile situation off the nll, as discussed in Chapter 2. North Korea North Korea has not publicly declared its baselines on the east coast and the west coast. However, its baseline on the east coast of North Korea is presumed to be a straight baseline with a distance of 245 nautical miles. The presumed straight baseline is the closing line of Dong Han and Keyung Sung Bays. North Korea’s straight baselines do not meet the requirements for drawing straight baselines in a bay whose distance between the low-water marks of the natural entrance points of a bay should not exceed 24 nautical miles. In addition, North Korea’s straight baselines do not conform to the general direction of the coast, and the sea areas within the baselines are not closely linked either. iii

The Territorial Sea and Contiguous Zone

The Territorial Sea Pursuant to the unclos, Northeast Asian countries in general adopted a 12-nautical mile territorial sea and a contiguous zone, except in certain waters where claims overlap between the states with opposite or adjacent coasts, 24

Ibid., ‘Straight Baseline and Territorial Sea Claims: South Korea,’ Limits in the Seas (1998), no. 121.

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or where other factors, like the freedom of navigation and international relations, are considered. Korea Prior to the 1977 Territorial Sea Law, there was a statutory precedent for Korea’s territorial sea jurisdiction, enacted by the u.s. Military Government, which had ruled Korea between 1945 and 1948. Under Ordinance No. 189 of May 1948 issued by the military government, the territorial waters of Korea south of 38° north latitude were defined as ‘including the ports, harbors, bays and other enclosed areas of the sea along the coast of Korea and a marginal belt of the sea from the coastline outward one marine league, or 3 geographic miles.’25 Meanwhile, Korea had remained with no specified limits to its territorial sea until the 1977 law was enacted. This is because the law stipulating a 3-nautical mile territorial sea was abolished in 1961 when a new government was created in the aftermath of a military revolution. The 1977 law states that ‘the territorial sea is the area of the sea up to the outer limit of 12 nautical miles from the baselines,’ and that ‘but in the waters stipulated in the Presidential Decree, the limits of the territorial sea can be varied within 12 nautical miles.’26 Concerning the straight baseline system, the law states that ‘the straight baseline may be employed in the area of special geographical features.’27 The specific coordinates of the straight baselines accordingly were set forth in the Presidential Decree (No. 9162) of the Territorial Sea Law in 1978. In 1996, the Territorial Sea Act was amended to adopt the contiguous zone system under the unclos, by which the title of the law was changed to the Territorial Sea and Contiguous Zone Act. Under the amendment, which entered into force on 31 July 1996, there were no changes in the baselines and the territorial sea, prescribed in the 1977 Territorial Sea Law. For the Western Channel of the Korea Strait,28 whose breadth is 23 nautical miles long, Korea and Japan in 1977 restricted their territorial waters to 3 nautical miles from their baselines,29 leaving the rest of the waters to serve as high seas for the freedom of navigation (Map 3.2). Obviously both countries’ 25 26 27 28

29

Park (n 20), p. 141. Art. 1, The Territorial Sea Act, enacted on 31 December 1977. Ibid, Art. 2(2). Geographically the Korea Strait is divided into the Western Channel and the Eastern Channel: The former is located between Tsushima, a Japanese island, and the south coast of South Korea, and is 25 nm wide. The latter is in between Tsushima and the north coast of Japan and is 22.75 nm wide. In 1977 both countries passed their own laws, which restricted their territorial waters to 3 nautical miles in the Korea Strait.

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restriction­of their territorial waters to 3 nautical miles in the Korea Strait was contrary to the common state practice of a 12-nautical mile territorial sea. At the time Korea was concerned particularly about possible friction with the Soviet Union, because the strait was a choke point used by Soviet military vessels on their way to or from Vladivostok, where the base of the Soviet Pacific Fleet is located.30

Map 3.2

30

Territorial sea limits in the Western channel of the Korea Strait Source: Limits in the Sea (1998)

See Park (n 20), p. 144; Young-Koo Kim, ‘Korea and the Law of the Sea (in Korean),’ Seoul: 21st Century Books, 2004, p. 129.

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Japan Japan had held a minimalist stance on the territorial sea, restricting its limit to 3 nautical miles from the baselines for a long time. Japan had adopted a 3-nautical mile territorial sea until it enacted the Law on the Territorial Sea in 1977. In 1996, Japan amended the 1977 law to adopt the contiguous zone prescribed in the unclos and changed its title to the Law on the Territorial Sea and the Contiguous Zone. Japan has traditionally been reluctant to employ straight baselines, partly because it was unlikely that employing them would significantly shift the limit of the territorial sea seaward.31 However, the straight baseline system under the 1977 law brought a significant expansion of the limit of the territorial sea seaward. As a result, large areas of hitherto territorial or international waters were enclosed as Japan’s claimed internal waters.32 It is interesting to note that while enacting the 1977 law, a problem arose with respect to its ‘three non-nuclear principles,’ which include: (1) not to allow nuclear weapons into its territory; (2) not to produce nuclear weapons; (3) not to possess nuclear weapons. If a 12-nautical mile territorial sea was employed in the narrow international straits, including Soya Strait, Osumi Strait, Tsugaru Strait, Tsushima Strait-Eastern Channel, and Tsushima Strait-Western Channel, it could infringe one of those principles. Of concern was the possibility that nuclear-armed or nuclear-powered foreign warships exercising the rights of transit passage in these international straits could violate the principle of non-introduction. The solution was to define a narrow territorial sea less than 12 nautical miles in these straits.33 By limiting the breadth of the territorial sea to 3 nautical miles in these straits ‘for the time being,’ Japan has maintained a channel of high seas through which all ships and aircraft could exercise high seas navigation and overflight freedoms.34 In accordance with the provision, the ‘designated areas’ solution was deemed temporary in nature. However, Cabinet Order 206 of 1993 defines how the 12-nautical mile territorial sea is narrowed in these five straits,35 and Japan continues to maintain a 3-nautical mile territorial sea in the five straits. 31

32 33 34 35

Yutaka Kawasaki-Urabe and Vivian L. Forbes, ‘Japan’s Ratification of un Law of the Sea Convention and its New Legislation on the Law of the Sea,’ ibru Boundary and Security Bulletin (Winter 1996–1997), p. 92, available at file:///C:/Users/%EA%B9%80%EC%84%9 D%EA%B7%A0/Downloads/bsb4-4_kawasaki%20(2).pdf. Ibid. u.s. State Department (n 24), p. 13. Ibid. Ibid., p. 14.

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China China’s claim to territorial waters is problematic, when considered in association with its straight baselines. China claimed its sovereignty over disputed islands, such as the Senkaku Islands (vs. Japan), the Paracel (vs. Vietnam), and the Spratly Islands (vs. Brunei, Malaysia, the Philippines, Taiwan, and Vietnam), in the 1992 Law on the Territorial Waters and their Contiguous Areas and the 1998 Law on the eez and Continental Shelf by declaring straight baselines, eezs, and continental shelves around those disputed islands. These Chinese laws generated strong protests from claimants to the disputed islands, e.g., Japan, Malaysia, and Vietnam. The Chinese laws also stipulate the rights of pursuit by Chinese warships and aircrafts against foreign warships entering Chinese territorial waters without permission.36 This also raises fears that the laws would severely restrict the rights of freedom of navigation and the rights of innocent passage in the South China Sea, in violation of the unclos and customary international law. In relation to this, it is argued that Article 13 of the Law on the Territorial Sea and the Contiguous Zone of China, promulgated in 1992, stipulating ‘security’ as one of the purposes of the contiguous zone, is inconsistent with the contiguous zone regime in the unclos. Article 33 of the unclos prescribes the purpose of the contiguous zone to prevent the infringement of customs, fiscal, sanitary, and immigration laws or regulations within the territory or territorial sea of a state. iv

Innocent Passage of Foreign Warships

Articles 17 to 19 of the unclos stipulate the rights and conditions of innocent passage. Ships of all states enjoy the right of innocent passage through the territorial sea. Passage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal state, and shall be continuous and expeditious. Before the unclos was adopted, there was heated controversy among coastal states as to whether to allow innocent passage of warships in the territorial sea. Despite the international community’s effort to put an end to the controversy over states’ right to demand prior authorization for the passage of warships through territorial waters, the text of the unclos failed to provide any definitive answer. State practices after the adoption of the unclos do not

36

See the Chinese Law on the Territorial Waters and their Contiguous Areas (Art. 6).

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offer concrete answers, either.37 While some states have entered a statement of interpretation to the effect that authorization procedure applies to the passage of warships through their territorial waters, others made declarations condemning such an interpretation as contrary to international law.38 Amid heated arguments on that issue, a compromise was to create a new concept of transit passage, under which all ships enjoy the right of unimpeded passage through international straits which are ‘used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.’39 In Northeast Asia, where military tension remains high, the regional countries have shown a keen interest in innocent passage of warships in their territorial seas. In the absence of concrete criteria in the unclos, China, Japan, and Korea take different positions depending on their internal situations. Although they are pursuant to the innocent passage regime under the unclos, China and Korea, in particular, reinforce rigid innocent passage of foreign warships, reflecting their security concerns. China In accordance with the provisions in the Law on the Territorial Sea and the Contiguous Zone, non-military foreign ships can exercise the right of innocent passage through the territorial sea of China.40 However, foreign military ships are required to obtain permission from the government of China to enter its territorial sea.41 Foreign military ships are subject to an immediate eviction order from relevant authorities when they violate the laws or regulations of China.42 Concerning the provision of innocent passage of warships in the unclos, China expressed its negative position on the recognition of this right during the third u.n. Conference on the Law of the Sea and thereafter.43 China asserted in the conference that ‘the Convention’s provision on innocent passage did not prejudice the right of the coastal state to require prior authorization 37

38 39 40 41 42 43

Yutaka Kawasaki, ‘International Straits: An Issue Concerning Japan’s Ratification of the United Nations Convention on the Law of the Sea,’ ibru Boundary and Security Bulletin (Summer 1995), p. 75, available at file:///C:/Users/%EA%B9%80%EC%84%9D%EA%B7 %A0/Downloads/bsb3-2_kawasaki.pdf. Ibid. Arts. 37–39, unclos. Arts. 6 & 8, The Law on the Territorial Sea and the Contiguous Zone Art. 6 & 8. Ibid, Art. 6. Ibid., Art. 10. Park Hee Kwon (n 7), p. 32.

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or notification for the passage of foreign warships through the territorial sea in accordance with its laws and regulations.’44 China’s rigid position on innocent passage of warships is believed to stem from the bitter history of gunboat diplomacy and a deep sense of military insecurity.45 Korea The Law on the Territorial and Contiguous Zone (Art. 5) states that ‘foreign ships may enjoy the right of innocent passage through the territorial sea of Korea, so long as it is not prejudicial to the peace, public order or security of Korea.’ Foreign warships or non-commercial governmental ships that intend to pass through the territorial sea of Korea must give a 3-day advance notice to the Ministry of Foreign Affairs.46 The notice must include: 1) ship’s name, type, and number 2) purpose of passage 3) route of passage and schedule. The passage of foreign warships may be suspended in specified areas of the territorial sea if suspension is essential to security. The temporary suspension of innocent passage of foreign ships, including warships, shall be effected by the Minister of National Defense.47 Upon approval of the president, the minster must give a public statement on the suspension of innocent passage, including the area of the sea, the duration of suspension, and the reasons therefore.48 When foreign ships, excluding foreign warships, violate Korea’s laws or regulations while passing through the territorial sea, they are subject to necessary orders or other measures of relevant authorities, such as stopping, searching, or seizing.49 Unlike foreign ships, warships are given special treatment, in which they are required to remedy the violation or to leave the territorial sea.50 Japan Unlike China and Korea, Japan is silent on innocent passage through its territorial sea. The Law on the Territorial Sea and the Contiguous Zone only provides the following: the scope of the territorial sea, baseline, hot pursuit, contiguous zone, and law enforcement in the contiguous zone. The regime of innocent passage is not provided in the above-mentioned law and other 44 45 46 47 48 49 50

Third United Nations Conference on the Law of the Sea, Official Records, Vol. xvi, 1984, p. 162 (cited in Park Hee Kwon(n 7)). Park Hee Kwon (n 7), p. 33. Art. 5(1) & (2), The Law on the Territorial and Contiguous Zone and Art. 4, the Presidential Decree. Ibid., Art. 5(3), the Law and Art. 7, the Presidential Decree. Art. 6(1) & (2), The Presidential Decree. Art. 6, The Law on the Territorial and Contiguous Zone. Ibid., Art. 10.

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legislation.­However, it does not mean that Japan forbids innocent passage of ships through its territorial sea. The right of innocent passage through costal states’ territorial seas is a customary rule. In addition, because Japan is a party to the unclos, it is obliged to comply with the provision of innocent passage in the convention. Japan’s silence is understood to be a result of that nation’s deliberation over whether to refuse passage of nuclear-equipped warships or to propose a new interpretation of the non-nuclear principles—a new interpretation that would allow for the passage of these ships without contradicting the principle of keeping weapons outside its territory.51 As noted earlier, as a compromise, Japan limited the breadth of the territorial sea to 3 nautical miles in the five straits. As to disputes over whether warships have the same right of innocent passage or states have the right to require authorization prior to their passage, Japan’s official stance is that it has the right to interpret the innocence of vessels entering its territorial sea. The interpretation is that the passage of nuclearequipped warships is not innocent.52 Prior notification is required of such vessels, and the Japanese government reserves the right to deny entry when it finds that the passage is not innocent.53 Japan argues that this policy does not mean that the passage of warships in Japanese territorial seas was comprehensively rejected, nor was it subjected to prior authorization procedures.54

51 52 53 54

Yutaka Kawasaki (n 37), p. 74. Ibid. Ibid. Ibid.

chapter 4

Disputes over the Delimitation of the eez and the Continental Shelf i

Status of the Maritime Boundary Delimitation in Northeast Asia

Many of the maritime boundaries of the exclusive economic zone (eez) and the continental shelf in Northeast Asia remain unsettled. Of nine maritime boundaries in Northeast Asia, only one—North Korea vs. Russia—has been fully delimited, and the rest are either partially settled or remain unsettled (see Table 4.1). Aside from North Korea and Russia, which declared their eezs in 1977 and 1984 respectively, China, Japan, and South Korea did not declare their own eezs until both Korea and Japan enacted their eez laws in 1996, and were followed by China in 1998. Given that these Northeast Asian countries had actively pursued sea-going as part of their capacity-building, their proclamation of eezs later than other coastal countries was deemed exceptional.1 This delay was largely because their claims overlap in the maritime geography of seas whose breadth is less than 400 nm from the opposite coast. Furthermore, they are engaged in territorial disputes over the islands within their claimed eezs.2 The delimitation of maritime boundaries is intricately linked to other maritime issues among and between Northeast Asian countries. Many of the maritime disputes in Northeast Asia, such as fisheries, exploitation of seabed resources, preservation of marine environments, and maritime security, are attributed to unsettled maritime boundaries. The maritime boundary problem is essentially connected to territorial disputes over the islands. Maritime jurisdiction concerns the sovereignty of a state and sovereign rights to use and exploit the sea. This chapter will discuss the arguments of the countries in dispute over the maritime boundary delimitation of the eez and the continental shelf. It will explore the opposing or conflicting principles that the countries invoke, as well as their positions on the maritime boundary delimitation.

1 Suk Kyoon Kim, ‘Understanding Maritime Disputes in Northeast Asia: Issues and Nature’ (2008) 23(2) The International Journal of Marine and Coastal Law, 213–247, p. 223. 2 Ibid.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_005

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Maritime Boundary Delimitation between China and Korea in the Yellow Sea and the East China Sea

Status of the Maritime Boundary The Yellow Sea is located between mainland China and the Korean Peninsula and shared by China, South Korea, and North Korea. The two Koreas name it the West Sea in the sense that it is situated off the west coast of the Peninsula. The Yellow Sea is a marginal sea of the Pacific Ocean. It is about 380,000 square kilometers, 44 meters in depth on average, with a maximum depth of 140 meters. The Yellow Sea, shared by China, South and North Korea, (excluding Bohai Bay) extends by about 533 nautical miles from north to south and about 388 nautical miles from east to west. It is a continental shallow sea.3 In the narrow, semi-enclosed waters of the Yellow Sea, the three countries are in dispute over the maritime boundary delimitation (Table 4.1). The two Koreas are both engaged in maritime boundary disputes with China. North Korea has not delimited maritime boundaries in the Korea Bay in the northern extension of the Yellow Sea. Geographically, the East China Sea is bounded on the east by Kyushu and the Ryukyu Islands of Japan, on the south by the South China Sea, and on the west by the Asian continent. The states with borders on Table 4.1

Status of maritime boundary delimitation in Northeast Asia

States

Territorial waters

eez

Continental shelf

South Korea vs. China China vs. North Korea China vs. Japan Korea vs. Japan North Korea vs. Japan Korea vs. North Korea Japan vs. Taiwan North Korea vs. Russia Japan vs. Russia

S1) U S S S U U S U

U2) U U U U U U S U

U U U PS3) U U U S U

Source: Jong Hwa Choi, Modern Ocean Law (translated by author) (4th ed., Doo Nam, Seoul, 2004), p. 439. Note: 1) Settled 2) Unsettled 3) Partially Settled 3 Zou Keyuan, China’s Maritime Legal System and the Law of the Sea(Martinus Nijhoff, Leiden, 2005), at p. 4.

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the sea include: China, Korea, Japan, and Taiwan. The East China Sea is a wider, shallow sea with an average depth of 370 meters and 777,000 square kilometers in area.4 The maritime boundary delimitation in the East China Sea between China and Korea would be more complicated than in the Yellow Sea, given that tripartite maritime boundary claims, including those of Japan, overlap. Furthermore, a territorial dispute over the Senkaku (Daioyudao) between China and Japan need to be considered. Conflicting Principles of the Maritime Boundary Delimitation Regarding the maritime boundary delimitation of the eez and the continental shelf in the Yellow and East China Seas, Korea and China claim different maritime boundary delimitation principles. They adhere to their own legal principles, which are favorable to their boundary delimitations, although they are sometimes found to be self-contradictory. The settlement of the maritime boundary delimitation between Korea and China may begin with agreeing on either a principle or principles that they may apply to the boundary delimitation. It is believed that this may be the most difficult part of boundary delimitation negotiations between the two countries. An equidistant line vs. natural prolongation of the land territory: China has argued against Korea that the natural prolongation of the land territory should be applied to both in the Yellow Sea and the East China Sea. In the Yellow Sea, China’s position is based primarily on a ‘silt line,’ where the silt line divides the sands derived from Korea and the silty sediments that have flowed out from the Hwang Ho and Yangtze Rivers and given the Yellow River its name.5 China argues that this sedimentation apparently is also ‘reflected in the topography of the seabed, featured 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.’6 Given such a geomorphology and geology of the seabed of the Yellow Sea, China asserts that the maritime boundary should be divided along the silt line. If the silt line theory is applied, two thirds of the Yellow Sea will be subject to the jurisdiction of China. 4 Ibid. 5 See Jon M. Van Dyke, ‘Disputes over Islands and Maritime Boundaries in East Asia,’ in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (eds by Seoung-Young Hong and Jon M. Van Dyke), (Martinus Nijhoff, Leiden, 2009), p. 56.; Ji Guoxing, ‘Maritime Jurisdiction in the Three China Seas: Options for Equitable Settlement’(1995)19 igcp-pp, p. 8. 6 Ibid.

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On the other hand, Korea, ignoring the legal effect of the ‘silt line,’ has held that the maritime boundary in the Yellow Sea should be delimited on an equidistant line basis. In 1970, Korea designated seven seabed mining blocks in the Yellow Sea and the East China Sea under the Submarine Mineral Resources Development Law, of which four seabed mining blocks in the Yellow Sea were established on the Korean side on the basis of the equidistant line. In the East China Sea, China also insists on the natural prolongation of the land territory towards Korea and Japan on the grounds that the continental shelf of the East China Sea is the natural extension of its mainland territory. In the East China Sea, contrary to the situation in the Yellow Sea, Korea applies the natural prolongation principle of the land territory towards China and Japan. Korea, in line with China’s argument, claims that the seabed and subsoil of the East China Sea comprises a continuous continental landmass extending from Korea’s coast to the limits of the continental shelf under the unclos.7 In December 2012, Korea submitted to the Commission on the Limits of the Continental Shelf (clcs), pursuant to Art. 76(8) of the unclos,8 information on the limits of its continental shelf beyond 200  nm from the baseline (see Map 4.1). Previously in May 2009, Korea submitted preliminary information claiming the outer limits of its continental shelf, which extends to the Okinawa Trough beyond 200 nm from the baselines. However, the continental shelf of Korea in the East China Sea described in the preliminary information was confined only to part of the outer limits of the joint development zone (jdz) between Korea and Japan, established in 1974 to jointly develop the c­ onflicting-claim area of the continental shelf. Korea renewed its claim to the outer limits of the continental shelf in the final submission, which extends toward the Okinawa Trough beyond the outer limits of the jdz, in some parts up to 350 nautical miles. The renewed claim from Korea is marked in 85 fixed points, which define the outer limit of the continental shelf beyond 200 nautical miles from the baseline of Korea in the East China Sea.9 China also submitted information on the limits of the continental shelf beyond 200 nm from the baselines. According to China’s claim in the submission, 7 unclos, ‘Outer Limits of the Continental Shelf beyond 200 nm from the Baseline: Submissions to the Commission: Submission by Korea,’ available at http://www.un.org/depts/los/ clcs_new/submissions_files/kor65_12/executive_summary.pdf. 8 Art. 7(8), unclos states that ‘Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex ii on the basis of equitable geographical representation.’ 9 Point 85 reaches the 350 nm line measured from the baseline of Korea.

Disputes over the Delimitation of THE eez

Map 4.1

55

Claims of the continental shelf Source: The International Journal of Marine and Coastal Law (2017)

the outer limit of its continental shelf is composed of the 10 fixed points, all of which are the maximum water depth points of the Okinawa Trough.10 (see Map 4.1) Korea’s claim to the outer limits of the continental shelf overlaps with the claim of China. 10

See China’s submission to clcs of the outer limits of the continental shelf beyond 200 nm from the baselines, available at http://www.un.org/depts/los/clcs_new/submissions_files/ chn63_12/executive%20summary_EN.pdf.

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In exploring the arguments of Korea and China, both countries’ claims to the principle of the maritime boundary delimitation are found to be contradictory. As discussed earlier, Korea applies different boundary principles, which hold with an equidistant doctrine towards China in the Yellow Sea, as opposed to the natural prolongation of the land territory towards Japan in the East China Sea. China’s position is also somewhat contradictory, given that China applies different boundary delimitation doctrines depending on the features of the seas. China has argued the natural prolongation of the land territory in the Yellow Sea and the East China Sea towards Korea and Japan together. However, China, in the Bay of Korea (in the northern part of the Yellow Sea), upholds an equidistant line as the delimitation line with North Korea. If the silt line theory is applied to the bay, the boundary delimitation along the silt line would give almost the entire basin to North Korea.11 On the other hand, if an equidistant line is the boundary, most of the basin is believed to be placed under the jurisdiction of China.12 Equitable Solution: A principle of the delimitation of maritime zones prescribed in the unclos is that ‘the delimitation of the eez (the continental shelf) between states with opposite or adjacent coasts shall be effected by agreement on a basis of international law in order to achieve an equitable solution.’13 Applying this theory to the Yellow Sea and the East China Sea, Korea and China have shown to some extent a disparity in their methods for achieving an equitable solution. Primarily, Korea has held a position that an equidistant line should be drawn first, and then the line be adjusted to reflect relevant circumstances. On the other hand, China has objected to the use of an equidistant line as a provisional line. In drawing a maritime boundary delimitation line, which is regarded as equitable, an essential part is to identify relevant circumstances and draw a line that reflects them. It is an issue of proportionality, which concerns how to strike a balance between the relevant circumstances and the maritime boundary. China, in this regard, argues that disparity in the lengths of relevant ­coastlines with Korea should be considered in determining the maritime boundary. China holds that the maritime boundary should be decided in proportion to the disparity in the lengths of relevant coastlines with Korea.

11 12 13

Guoxing (n 5), p. 9. Ibid. Arts.74 & 83, unclos.

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According to China’s argument, the ratio of the relevant coastlines between China and Korea is 1:0.8.14 In many of the maritime boundary delimitation cases ruled by the International Court of Justice(icj), such as 1969’s North Sea Continental Shelf,15 1982’s Libya/Malta,16 1984’s Canada/u.s.,17 1985’s Tunisia/Libya,18 and 1993’s Norway/ Denmark,19 it is found that disparities in the lengths of relevant coastlines were taken into account as a relevant circumstance in drawing the delimitation line. The judgments of the icj, however, made it clear that in order for the disparity in the lengths of the relevant coastlines to be considered as a circumstance, the disparity should be ‘considerable’20 and that ‘the adjustment does mean a direct and mathematical application.’21 Given the judgments of the icj, it will 14

15

16

17

18

19

20 21

Yang Hee-Cheol, ‘Research on the Factors to Consider in the Yellow Sea Maritime Boundary Delimitation between Korea and China and Countermeasures to It’ (translated by author) (2012) 57(3) Korea International Law Studies, p. 115. North Sea Continental Shelf, Judgment, i.c.j Reports, 1969, p. 52, para. 98: ‘A final fact that should be taken into account is the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines.’ Continental Shelf (Libya/Malta), Judgment, i.c.j Reports, 1985, p. 50. para. 68: The relevant coastline of Libya is 192 miles long, as opposed to the relevant coastline of Malta which is 24 miles long. The icj ruled that ‘there is a considerable disparity between their lengths, to a degree which constitutes a relevant circumstance which should be reflected in the drawing of the delimitation line.’ ‘The difference is so great as to justify the adjustment of the median line.’ ‘The degree of such adjustment does not depend on a mathematical operation.’ Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgments, i.c.j Reports 1984, p. 336, para. 221–222: The ratio between the coastal front of the u.s. and Canada on the Gulf of Maine was 1.38: 1, and the ratio was reflected in the location of the second segment of the delimitation line. Continental Shelf (Tunisia/Libya), Judgment, icj Reports 1982, p. 93, para. 131: The proportion of the relevant coastlines between Libya and Tunisia was measured as 31:69. The icj ruled in the judgment that the continental shelf appertained to Libya and Tunisia was in the proportion of 40: 60. Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, i.c.j Report, 1993, p. 69, para. 69: The icj ruled that ‘In light of the disparity of coastal lengths, the median line should be adjusted or shifted in a way to effect a delimitation closer to the coast of Jan Mayen.’ ‘Taking account of the disparity of coastal lengths does not mean a direct and mathematical application of the relationship between the length of coastal front ….’ Libya/Malta Continental Shelf Case (n 18). Ibid.

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remain disputed as to whether the ratio of relevant coastlines between China and Korea, which does not appear to be ‘considerable,’ constitutes a circumstance to be considered in adjusting the maritime boundary appertaining to each country. A Single Boundary or Multiple Maritime Boundaries: In the Yellow Sea, China has argued that the eez should be delimited along the silt line, apparently based on one single maritime boundary, which delimits the eez and the continental shelf with an identical boundary line. Korea also has claimed a single maritime boundary of the eez and the continental shelf on the basis of an equidistant line. It appears that both Korea and China have a consensus on a single maritime boundary in the Yellow Sea, although both are applying different boundary delimitation principles. It is not expected that China would adamantly adhere to the silt line once maritime boundary negotiations are engaged. The logic of this assertion is that first, if the maritime boundary in the Yellow Sea is delimited along the silt line in accordance with China’s argument, two-thirds of the continental shelf would fall to China, which is unacceptable to Korea. Second, China is obviously mindful of Korea’s claim to an equidistant line, given that it has not exercised exploratory drilling on its side of a hypothetical median line asserted by Korea.22 Third, China experienced a successful maritime boundary delimitation negotiation with Vietnam in the Gulf of Tonkin in 2000. China, which has maritime delimitation problems with eight neighboring countries, has successfully delimited the maritime boundary in the Gulf of Tonkin for the first time, using a single boundary to delimit three different maritime zones (territorial sea, eez, and continental shelf). This invaluable experience may encourage China to follow this practice in future negotiations with other neighboring countries.23 On the other hand, China may seek a dual maritime boundary model in which two separate maritime boundaries of the eez and the continental shelf exist.24 In this context, some Korean scholars believe that China may seek the delimitation of the continental shelf in accordance with the natural prolongation principle while agreeing to the eez delimitation on an equidistant line basis.25­ 22 23 24 25

Guoxing (n 5). Zou Keyuan, ‘Implementing the United Nations Conventions on the Law of the Sea: Issues and Trends’ (2005)9 Singapore Year Book of International Law 37–53, p. 4. See Peter Dutton, ‘Carving up the East China Sea’ (2007)6(2) Naval War College Review, p. 51. Seok Yong, Lee, ‘Maritime Boundary Delimitation between Korea and China,’ (translated by author) (2007)52(2) Korea International Law Studies 259–283, p. 265.

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An example of this is found in the Australia-Papua New Guinea Maritime Boundary Delimitation Treaty, signed in 1975 and entered into force in 1985. Under the treaty, the two countries agreed to four distinct types of maritime boundaries between them: (1) sovereign boundaries between territorial waters in the narrow Torres Strait; (2) a seabed boundary; (3) a fisheries boundary in the water column; and (4) a special reservation area for aboriginal people living on the islands in the Torres Strait.26 The maritime boundary delimitation in the East China Sea, where tripartite maritime boundary claims overlap and where the territorial dispute exists, would be much more difficult compared to the Yellow Sea, where the seabed morphology is relatively simple, is not clouded by territorial disputes, and where a bilateral boundary claim exists. Along with these geopolitical circumstances in the East China Sea, a critical consideration is that, as discussed earlier, Korea and China both claim the continental shelves extending up to 350 nautical miles. Although, other geopolitical considerations aside, a single maritime boundary in the East China Sea is unlikely to materialize unless Korea and China retreat from their extended continental shelf claims of up to 350 nautical miles, given that a coastal state is entitled to only 200 nautical miles of eez from the baseline under the unclos.27 Ieodo Ieodo (referred to as ‘Suyan Jiao’ in Chinese, or Socotra Rock28) is a critical part of the maritime boundary delimitation in the East China Sea. Ieodo is a submerged rock situated 4.6 meters underwater, and its surface area is 3.7 square kilometers. Korea and China maintain that Ieodo is within their eez, in accordance with their claims to the equidistant line and the natural prolongation of the land territory, respectively. Allegedly at the 11th Maritime Boundary Delimitation Consultation in 2006, Korea and China agreed that Ieodo is a submerged rock, not an island, and that thus there exists no territorial disputes over Ieodo.29 Although the two countries agreed to the legal nature of Ieodo as a submerged rock, which is not entitled to generate maritime zones, they argue over Ieodo with respect to the maritime boundary delimitation. Ieodo is situated off the waters of the provisional boundary arrangement under­ 26 27 28 29

Dutton (n 24). Art. 57, unclos. Ieodo was first discovered in 1900 by Socotra, a British merchant ship, and thereafter called the Socotra Rock, named after the ship. ‘S. Korea to Ask China to Rectify Claim over Ieodo,’ Korea Times, 8 August 2008, available at http://www.koreatimes.co.kr/www/news/nation/2008/08/205_29027.html.

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the 2001 Fishery Agreement between Korea and China, under which the two sides agreed to create 60 nautical miles of eezs from its baselines, ranging from 32°11′ N to 37°00′ N along the coastlines, pending the ultimate maritime boundary delimitation. Korea holds the position that disagreement over Ieodo is not a territorial dispute, but a maritime boundary delimitation issue.30 Korea asserts that Ieodo lies within its eez on the basis of the equidistant line, given that it is closer to Korea. It is 80 nm southwest of Marado, the southernmost island of Korea, as opposed to 155 nm northeast of Sheshandao in China. (see Map 4.2) In 2003, Korea completed an ocean research station on the submerged rock for the purpose of oceanographic research and collection of data on weather forecasts, currents, fishing, maritime traffic, and climate change. Korea argues that the construction of a scientific research center is an exercise of the right of a coastal state in accordance with the unclos, which states that the coastal state has an exclusive right to construct installations and structures for the purpose of exploiting natural resources in its eez.31 As part of such rights, in 1970 Korea established the mining block K-4 under the Submarine Mineral Resource Development Law, which covers the Ieodo area. However, China asserts that Korea’s unilateral exercise of eez rights in the disputed waters is not proper. China claims that Ieodo will fall under the jurisdiction of China when delimited in accordance with the natural prolongation of the land territory. Amid conflicting claims to Ieodo, operational disputes often take place. In October 2010, a Korea-flagged bulk ship, Oriental Hope, was stranded on the submerged rock 580 meters off the ocean research station. While a salvage operation was underway, Chinese coast guard ships approached and asked the salvage company to stop the work. They claimed that Ieodo belongs to China’s eez, and the company violated China’s Marine Environment Act that requires a permit from a competent authority for an underwater work. Ignoring China’s claim, Korea continued the salvage work, arguing that Ieodo falls within Korea’s eez. China, apparently conscious of the ocean research station, has increased aerial and ship surveillance over the station, as shown in Table 4.2. In response, Korea has also increased aerial and ship surveillance and patrols the waters off Ieodo, deploying a 5,000-ton coast guard ship. From a military perspective, China maintains the position that warships from the North Sea Fleet based in Qingdao and the East Sea Fleet based in 30 31

‘The Government, Ieodo is not Territorial Issue, but an eez Issue,’ Yonhap tv, 27 November 2013. Art. 60, unclos.

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Map 4.2

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Maritime boundary claims by China and Korea and location of Ieodo Source: The International Journal of Marine and Coastal Law (2017)

Ningbo need to pass near Ieodo waters in order to proceed to the Pacific Ocean because its coastal waters are not deep enough for large warships to navigate. This is allegedly why China intentionally discouraged Ieodo’s waters from being included in the Korean eez under the 2001 Fishery Agreement.32 In November 2013, China declared an air defense identification zone (adiz) in the East China Sea. The adiz is an additional zone of aerial control beyond territorial airspace, allowing the state to identify approaching aircrafts before 32

Hyo-Baik, Kwang, ‘Issues of Korea-China Maritime Borderline Delimitation: Centered on Ieodo (Socotra Rock),’ presented ‘the 87th China Studies Conference 2008’, p. 194 (citing Lee Myng Chun, ‘Maritime Interests and the Rise of China,’ Navy Publication (2007), p. 117).

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Table 4.2 Status of China’s surveillances over Ieodo

Year

Total

Aircraft

Ship

2008 2009 2010 2011 2012 2013 2014 2015

3 16 16 62 61 50 46 33

1 7 10 27 36 40 38 16

2 9 6 35 25 10 8 17

Source: Korea Coast Guard

they enter that airspace.33 The adiz of China covers the airspaces over Ieodo, Senkaku Islands, and the outer limits of the continental shelf that China claims in accordance with the natural prolongation of the land territory (see Map 4.3). The declared adiz overlaps much of Japan’s established adiz in the East China Sea, suggesting that the move is designed to strengthen China’s maritime and island claims in the region as well as justify air activities intended to defend these claims.34 The u.s. and Japan argue that China’s adiz contravenes the principle of freedom of overflight in high seas prescribed in the unclos.35 China is reported to be considering another adiz in the South China Sea, despite growing criticism from other states.36 It is argued that the East China Sea adiz of China arguably replaces the information-gathering function of other adizs 33

34

35 36

Jaemin Lee, ‘China’s Declaration of an Air Defense Identification Zone in the East China Sea: Implications for Public International Law’ (2014) 18(17) American Society of International Law, available at https://www.asil.org/insights/volume/18/issue/17/ china%E2%80%99s-declaration-air-defense-identification-zone-east-china-sea. Kimberly Hsu, ‘Air Defense Identification Zone Intended to Provide China Greater Flexibility to Enforce East China Sea Claims,’ submitted to the u.s.–China Economic and Security Review Commission, 14 January 2014, available at http://www.uscc.gov/sites/default/ files/Research/China%20ADIZ%20Staff%20Report.pdf. Ibid. Lee (n 33).

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Map 4.3

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China’s expanded adiz Source: The International Journal of Marine and Coastal Law (2017)

with a military enforcement function by formulating the adiz as a military emergency action plan.37 In response to China’s adiz, Korea on 8 December 2013 declared a 66,480 square kilometer expansion of its own adiz southward, which incorporated Ieodo into Korea’s adiz. Accordingly, the adiz of Korea overlaps with part of China’s adiz over Ieodo. It appears that the declaration of China’s adiz is aimed at bolstering its territorial claim to the Senkaku Islands and maritime­ boundary jurisdictional claims to Ieodo as well as its expanded maritime zones. 37

Ibid.

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Provisional Boundary Arrangement While China and South Korea have negotiated maritime boundaries, both countries agreed to provisional maritime boundary arrangements under the Fishery Agreement, signed in 1998. They include: .

(1) To recognize the coastal eez area of each country (the width of this zone varies from 60 to 90 nautical miles from the coastline) in which both countries are entitled to full sovereign rights. (2) To establish a joint fishing area, called the ‘Provisional Measures Zone’ in the central area where their claimed eezs overlap. In the zone, Korea and China exercise equal rights and manage the species through the KoreaChina Joint Fisheries Committee. (3) To establish a transitional area (called the ‘Interim Co-Management Zone’) extending 20 nautical miles in both directions from the joint fishing area, where the resources are to be shared for four years and thereafter become part of each country’s coastal eez, under exclusive coastal state control. iii

Maritime Boundary Delimitation between China and Japan in the East China Sea

Introduction Maritime jurisdictional disputes in Northeast Asia include two dimensions of disputes: territorial disputes over islands and disputes over the eez and continental shelf delimitation. The two different kinds of disputes are related to each other. The disputes over maritime interests and rights in the East China Sea between China and Japan involve these two issues.38 In the East China Sea,39 the eez claims of China and Japan greatly overlap (see Map 4.4). China and Japan employ conflicting principles of maritime boundary delimitation. Japan refers to the principle of the median line, while China refers to the principle of natural prolongation of territory. They hold 38

39

Ji Guoxing, ‘Sino-Japanese Jurisdictional Delimitation in East China Sea: Approaches to Dispute Settlement,’ in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (eds by Seoung-Young Hong and Jon M. Van Dyke)(Martinus Nijhoff, Leiden, 2009), p. 77. The width of the East China Sea varies from 180 nm at the narrowest point to 360 nm at the widest point.

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Map 4.4

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eez claims of China and Japan in the East China Sea

a divergent view in the interpretation of the regimes of eez and continental shelf. Their disagreements hold legal implications for the Okinawa Trough and the geology and topography of the seabed and subsoil of the East China Sea. China’s Position China’s core argument over the delimitation of a maritime boundary in the East China Sea is that it should be drawn on the basis of the principle of natural prolongation of the land territory. China argues that the continental shelf of the East China Sea is the natural extension of its mainland territory. China insists that the continental shelf of the East China Sea, which is less than 100 meters deep and has a gently rolling slope, extends all the way to the Okinawa Trough, in which the slope abruptly drops to the deepest point of 2,717 meters. China argues that such geological and topographical features of the Okinawa Trough create a clear distinction between the shelf which divides the extension of mainland territory from the continental shelf of the Ryukyu Islands. By the same token, China claims that the boundary lines of the eez and continental shelf should be drawn along the Okinawa Trough, which would result in two-thirds of the continental shelf coming under Chinese jurisdiction.­

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China refers to the 1969 North Sea Continental Shelf Cases and the definition of the continental shelf under the unclos. The International Court of Justice ruled on the continental shelf delimitation cases concerning Germany, the Netherlands, and Denmark by invoking the principle of natural prolongation of land territory.40 The unclos defines ‘continental shelf’ as, ‘beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin.’41 Exploring China’s position reveals contradictory or controversial points, some of which are inconsistent with the sprit or provisions of the unclos. First, given China’s argument that a single maritime boundary line of the eez and the continental shelf in accordance with the natural prolongation principle should be drawn in the East China Sea, its extended continental shelf claim beyond 200 nautical miles is not consistent with the eez regime because 40

See 1968 North Sea Continental Shelf Cases, i.c.j. Rep., para. 43, in which the International Court of Justice (icj) ruled that ‘the ipso jure title which international law attributes to the coastal state in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal state already has dominion.’ ‘Whenever a given submarine area does not constitute a natural extension of the land territory of a coastal state, even though that area may be closer to it than it is to the territory of any other state, it cannot be regarded as appertaining to that state.’ However, the principle of the natural prolongation of land territory receded in the wake of the 1982 unclos Convention, under which coastal states are entitled to claim their eez up to 200 nm on the basis of the concept of proximity. This trend was confirmed in the cases of 1982 Libya/Tunisia, i.c.j. Rep., para. 61, and 1985 Malta/Libya, i.c.j. Rep., para. 39, and afterward the natural prolongation of land territory was no longer a significant relevant circumstance and other relevant circumstances were considered in continental shelf delimitation cases. See the 1982 Libya/Tunisia Continental Shelf Case, i.c.j. Rep., paras. 61, 67 & 73, in which the icj ruled that ‘for legal purposes it is not possible to define the areas of continental shelf appertaining to both countries by reference solely or mainly to geological considerations, and the ascertainment of the extent of the areas of shelf appertaining to each state must be governed by criteria of international law other than those taken from physical features’ and ‘adjacency of the sea-bed to the territory of the coastal state has been the paramount criterion for determining the legal status of the submerged area.’ See also the 1985 Malta/Libya Continental Shelf Case, i.c.j. Rep. paras. 39 & 61, in which the icj ruled that ‘since the development of the law enables a state to claim that the continental shelf appertaining to it extends up so far as 200 miles from its coast, there is no reason to ascribe any role to geological or geophysical factors within that distance’ and ‘the law applicable to this case is not based on geological or geomorphological criteria, but on a criterion of distance from the coast or on the principle of adjacency measured by distance.’ See for these cases the icj website: www.icj-cij.org. 41 Art.76(1), unclos.

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a costal state is entitled to only 200 nautical miles of eez from the baselines.42 As noted earlier, in 2012 China submitted to the clcs the information on the limits of the continental shelf beyond 200 nautical miles from the baselines, in which China claims that the outer limit of its continental shelf is up to the Okinawa Trough.43 Second, while China argues that the two regimes of the eez and the continental shelf are different in basic concept and legal nature,44 it is contradictory to argue that the eez, together with the continental shelf, should be delimited solely on the basis of the geology and topography of subsoil and seabed, which constitute primary elements of the natural prolongation of land territory. Third, the maritime boundary delimitation is not a matter of precedence in applying a certain principle, as Chinese scholars argue that the principle of natural prolongation of land territory versus the principle of equidistance takes precedence in application.45 Rather, it is a matter of choice and compromise of different principles—whichever one best suits the circumstances to achieve an equitable solution. Japan’s Position Japan holds the position that the maritime boundary in the East China Sea should be divided along a median line which is equidistant from each baseline of the states concerned. Japan’s arguments can be stated as follows:46 (1) The continental shelf regime is declining, and the regimes of the continental shelf and eez have been merged. The theory on the natural prolongation can only be applied to the continental shelf beyond 200 nautical miles; (2) the equidistance principle and the natural prolongation principle are of equal status. It is a common practice to draw a single line for the delimitation of the eez and the continental shelf. Japan insists that for the delimitation of both the eez and the continental shelf, the median line should be drawn; (3) the disputed areas are the overlapping areas in the eez claims of Japan and China in the East China Sea. The median line drawn by Japan is only provisional. Joint development should be unfolded on both sides of the median line; (4) China, by unilaterally exploiting resources, appears to have violated the provisions

42 Art.5, unclos. 43 See ‘China’s submission to clcs of the outer limits of the continental shelf beyond 200  nm from the baselines,’ available at http://www.un.org/depts/los/clcs_new/ submissions_files/chn63_12/executive%20summary_EN.pdf. 44 Guoxing (n 38), p. 82. 45 Ibid. 46 Ibid., p. 80.

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of provisional arrangements under the unclos, which require states not to jeopardize or hamper the reaching of the final agreement.47 Japan’s position that the maritime boundary of the eez and the continental shelf in the East China Sea should be divided solely in accordance with the principle of the median line also poses some problems with the law of the sea. First, it appears that Japan’s argument ignores the difference in the legal nature of the eez and the continental shelf. Despite the fact that both the eez and the continental shelf, to the limit of 200 nautical miles from the baselines, generate the same sovereign rights as far as the seabed and the subsoil are concerned, there exists a clear distinction with respect to claim. Namely, whereas every coastal state is entitled to the continental shelf without a formal claim under the Geneva Convention48 and the unclos,49 a coastal state must officially claim the limits of the eez under the unclos. Second, the sole application of the median line principle is not consistent with the provisions of the continental shelf delimitation under the unclos. In the definition of the continental shelf, the unclos reaffirms the principle of the natural of prolongation of the land territory, upheld in the 1969 North Sea Continental Shelf Cases. With regard to the criterion of the continental shelf delimitation, however, the unclos provides the principle of equitable solution, stating that ‘the delimitation of the continental shelf between states with opposite or adjacent coasts will be effected by agreement on the basis of international law … in order to achieve an equitable solution.’50 Apart from the equidistance line principle set forth in the 1958 convention, the unclos provides the equitable solution principle as the criterion of the continental shelf delimitation. Contrary to a clear-cut criterion in the Geneva Convention, ‘the vague mechanism of equitable solution’ in the unclos has given rise to controversies as to what constitutes ‘equitable.’ Third, the precedents of continental shelf boundary delimitation cases show that relevant factors were considered, such as fishing grounds, geographical configuration, effects of islands, and prolongation of territory. Meanwhile, the principle of natural prolongation was rejected as a significant factor. Okinotorishima China and Japan are also in dispute with regard to the legal status of Okinotorishima in the East China Sea and to the Japanese claim to the eez associated 47 48 49 50

Arts. 74(3) & 83(3), unclos. Art. 2(3), The Convention on the Continental Shelf. Art. 77(3), unclos. Art. 83, unclos.

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with the islet. Okinotorishima lies southeast of Okinawa Island and is composed of two tiny, low-tide elevations which completely submerge at high tide. Japan has declared the eez of Okinotorishima on the grounds that it is an island entitled to have its own eez up to 200 nautical miles under the unclos.51 As a result, Japan is likely to have 400,000 square kilometers of additional eez, which would account for about one-tenth of Japan’s total eez, and this area is larger than Japan’s entire landmass of 380,000 square kilometers (see Map 4.5).52 Japan’s claim to Okinotorishima as an island and its extended jurisdiction associated with this legal status is disputed by China and other neighbor countries. They argue that Okinotorishima consists merely of rocks which cannot have their own eez under the unclos. Referring to Article 121(3) of the unclos, i.e. ‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive zone and continental shelf,’ they claim that Okinotorishima does not meet the criteria of being an island. They claim that the two tiny rocks do not have drinking water, food, or tillable soil. Thus, Okinotorishima has no means of supporting human habitation or economic life of its own, currently or in the near future.53 For this reason, China has kept challenging Japan’s claim by surveying the marine environment or fishing off Okinotorishima. Japan submitted its domestic laws related to the territorial sea to the u.n. Secretary General in 1977, in which Okinotorishima is treated as an island.54 Concerning the controversy over whether Okinotorishima is an island, defined in Article 121 Paragraph 3 of the unclos, Japan argues that the criteria regarding human habitation or economic life are for the purpose of determining whether or not rocks can have an eez or an continental shelf, not for the purpose of defining which of those rocks should be treated as islands.55 Meanwhile, Japan has made efforts to maintain the low-tide elevations by building concrete installations and planting reefs as they have faded away.56 Other than that, Japan has carried out a variety of actions, such as drawing 51

Arts. 121(2) & (3), unclos: ‘The territorial sea, the contiguous zone, the exclusive zone and the continental shelf of an island are determined in accordance with the ­provisions—applicable to other land territory. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.’ 52 Yan-huei Song, ‘Okinotorishima: A “Rock” or an “Island?” Recent Maritime Boundary Controversy between Japan and Taiwan/China,’ in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea (eds by Seoung-Young Hong and Jon M. Van Dyke) (MartinusNijhoff Publishers, Leiden, 2009), p. 150. 53 Ibid. 54 Ibid., at p. 159. 55 Ibid. 56 ‘Okinotorishma,’ The Chosun Daily, 18 April 2006.

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Map 4.5 Japan’s eez claim Source: Modified from Japan coast guard material

up plans to build a lighthouse, constructing a surveillance radar, opening a fishing station, establishing official address plaques, promoting ocean data surveys, banishing foreign fishing vessels or survey boats, and so on.57 The main objective of these measures is to maintain the ‘island’ status of Okinotorishima as well as to give credence to the claim on 200 nautical miles around Okinotorishima.58 Further Factors to be Considered When the status of Taiwan and the ownership of the Senkaku Islands (Daioyudao) are considered, the eez and continental shelf disputes between China 57 58

Ibid. Song (n. 52), p. 146.

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and Japan become much more complicated. The boundary claims of the two countries should be affected, because China’s claim to the eez will vary significantly depending on the status of Taiwan, i.e., whether it is part of China or whether it is a discrete political entity outside of mainland Chinese control.59 Of particular note is that the eezs claimed by China and Japan enclose the disputed islands of Senkaku within their own maritime boundaries. In fact, a relationship between the maritime claims of both countries and the status of the Senkaku Islands is a matter of who owns the islands or how to draw the maritime delimitation to enclose the islands. Provisional Arrangement For the provisional arrangement of the maritime boundary delimitation, China and Japan signed the Fisheries Agreement in 1997. Under the agreement, they agreed to eez areas extending 52 nautical miles from each coastline and to establish a joint fishing area (‘provisional measures zone’) in the waters between latitude 30°40´ N and latitude 27° N where their claimed eezs overlap. In the provisional measures zone, the marine resources are jointly managed under the supervision of the China-Japan Joint Fisheries Committee.60 iv

Maritime Boundary Delimitation between Korea and Japan in the East Sea/the Sea of Japan and in the East China Sea

The Maritime Boundary Delimitation in the East Sea The East Sea/the Sea of Japan is a marginal sea of the North Pacific. The East Sea is bordered by South Korea, North Korea, Japan, and Russia. The sea has no large islands, bays and capes, except for Dokdo/Takeshima, which is claimed by both Korea and Japan. The two countries disagree about the name of the sea: Korea calls it the East Sea (Dong-hae in Korean), which means ‘the sea on the east coast of the Korean Peninsula,’ while Japan calls it the Sea of Japan. The delimitation of maritime boundaries between Korea and Japan in the East Sea/the Sea of Japan and in the East China Sea remains unsettled, except in the northern part of the continental shelf adjacent to the two countries. As with China and Japan over Senkaku/Daioyudao in the East China Sea, a disputed island, Korean-controlled Dokdo, located 50 nautical miles east of South Korea’s Ullung Island and 90 nautical miles northwest of Japan’s Oki Islands, 59 60

See James Hsiung (2005), ‘Sea Power, the Law of the Sea, and the Sino-Japanese East China Sea ‘Resource War,’’ (2005) 27(6) American Foreign Policy Interests, pp. 521–523. Arts. 6&7, The 1997 China-Japan Fisheries Agreement.

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lies at the core of the dispute over maritime boundary delimitation between the two countries. Concerning the maritime boundary principle applied in the East Sea/the Sea of Japan, Korea and Japan agree primarily to the median line principle. However, they disagree with what baseline should be used for the maritime boundary delimitation. Korea had held the position that the eezs of both countries should be divided along a median line between Ullung Island and Oki Islands. On the other hand, Japan has claimed that the maritime boundary should be delimited along a median line between Ullung Island and Dokdo, arguing that Dokdo is its own island. Notably, the two countries’ eez claims, regardless of baseline, enclose Dokdo within their own jurisdictions. Amid conflicting claims in the absence of agreed-upon maritime boundaries, operational disputes in the waters off Dokdo have frequently occurred. On 10 April 2006, when two marine survey ships from the Japanese Coast Guard attempted to conduct a marine survey in the waters off Dokdo, the Korean government responded decisively. It dispatched 18 coast guard ships in order to prevent the marine survey by Japan in its claimed eez, arguing that the survey was invalid without permission. The tense standoff was eventually settled through diplomatic channels.61 On 5 July 2006, the countries’ roles were reversed in a similar standoff. A Korean marine survey ship entered the Japanese claimed eez off Dokdo to conduct a marine survey. Japan warned that it would not allow the Korean ship to enter its eez without permission. Despite the rigid position of Japan, the Korean survey ship, escorted by two coast guard ships, successfully completed the marine survey. It argued that the survey was in Korea’s own eez and therefore valid. The episode did not escalate into any further conflict, as Japan did not take an action to deter the marine survey. These two episodes demonstrate the volatility and gravity of maritime boundary issues between the two countries in the East Sea/the Sea of Japan. In the wake of the standoffs, the Korean government changed its baseline for 61

When the Japanese government announced that it would conduct a marine survey from 3–17 July 2006 in the waters off Dokdo, tensions escalated as the Korean government decided to deter Japanese survey ships from entering Korean waters by any means in accordance with international law, including stop, inspection, and seizure. The diplomatic standoff between the two governments lasted until the Japanese government decided to put its plan on hold at talks held at the vice-ministerial level on April 23, in exchange for the Korean government’s decision that it would also put on hold its plan to register Korean names for undersea features off Dokdo with the International Hydrographic Organization (iho). In addition, both countries agreed to resume eez delimitation talks, which had been on hold after four sessions of talks from 1996 to 2000.

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the eez in the East Sea from Ullung Island to Dokdo in order to bolster its sovereignty claim to Dokdo.62 According to the Korea Coast Guard, Japan coast guard ships periodically—roughly once every three or four days—patrol the waters off Dokdo. It is presumed that Japan’s intention is to support its jurisdictional claim to Dokdo and the waters off the Island. Another controversy over the delimitation of the maritime boundary is related to the legal status of Danjogunto and Torishima, a group of uninhabited and isolated islets and rocks owned by Japan and located on the Okinawa Trough. The two separate islets are situated 18 nautical miles apart. The controversy is derived from Japan’s use of the two islets as basepoints in drawing the median line for the delimitation of maritime boundary between Japan and Korea. Korea claims that the two islets should not be used for basepoints, arguing that they are merely barren rocks which are not entitled to their own continental shelf and the eez under the unclos Art.121(3), and that the Japanese continental shelf terminates on the eastern edge of the Okinawa Trough. Delimitation of the Continental Shelf and Joint Development In 1974, Korea and Japan agreed on the delimitation of part of their continental shelves in the Korea Strait. Prompted by the need to access oil on the continental shelf, Korea and Japan also agreed to the joint development of the disputed continental shelf south of Je-ju Island in 1974. On 30 January 1974, Korea and Japan signed ‘the Agreement between the Republic of Korea and Japan concerning the Establishment of Boundaries in the Northern Part of the Continental Shelf Adjacent to the Two Countries.’ Under the agreement, the two countries delimited the continental shelf in the western channel of the Korea Strait/Tsushima Channel, situated north of the East China Sea and south of the East Sea/ the Sea of Japan, on the basis of a median line. As illustrated in Map 4.6, the delimitation line starts at Point 1 in between Je-ju Island of Korea and Gotoretto of Japan and terminates at Point 35, situated in the middle of the East Sea/the Sea of Japan. It is believed that this discontinuity is due to Korea and Japan’s conflicting claims over Dokdo and their disagreement over whether it should play a role in delimiting the boundary delimitation in the region.63 On 30 January 1974, Korea and Japan also signed ‘the Agreement between the Republic of Korea and Japan concerning Joint Development of the Southern­ 62

63

The Chosun Daily, 6 June 2006: A top security aide to the president of South Korea said in an interview with kbs (Korea Broadcasting System) on 6 June 2006 that ‘I think that we cannot help claiming Dokdo as a base point of eez’ (translated by author). Van Dyke (n 5), p. 54.

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Delimitation in the Northern part of the continental shelf and Joint Development Zone between Korea and Japan

Part of Continental Shelf Adjacent to the Two Countries.’ The two countries agreed to establish a joint development zone in the disputed waters south of Je-ju Island. They agreed to develop the Joint Development Zone for 50 years, until the year 2028. The agreement entered into force in 1978 because while Korea ratified the agreement right away in 1974, it took four years for Japan to ratify it. It will be further discussed in a later chapter. Maritime Boundary Delimitation in the East China Sea As discussed earlier, Korea argues for the natural prolongation principle of the land territory towards Japan in the East China Sea. Korea’s position is different from the principle of maritime boundary delimitation towards China in the Yellow Sea. Korea’s stance, in line with China’s arguments towards Japan in the East China Sea, is based primarily on the topography of the seabed in the East China Sea. Korea maintains that the seabed and subsoil of the East China Sea comprises a continuous continental landmass extending from Korea’s coast to the Okinawa Trough. Korea thus claims that the Okinawa Trough should be

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a dividing line of the continental shelf between the two countries in the East China Sea. On the other hand, Japan holds that the trough is just an incidental depression in a contiguous margin, and thus the trough should be ignored in delimiting the East China Sea continental shelf.64 Instead, Japan argues for the principle of equidistance on the delimitation of the maritime boundary towards Korea in the East China Sea, as in relation to China. As noted earlier, in the Korea’s submission to the clcs in December 2012, Korea renewed its claim to the outer limits of the continental shelf in the East China Sea, which extends toward the Okinawa Trough beyond the outer limits of the joint development zone between Korea and Japan. Previously in May 2009, in the preliminary submission, Korea confined its claim to only part of the outer limits of the joint development zone (jdz) between Korea and Japan. Provisional Arrangement Pending the maritime boundary delimitation, in 1998 Japan and Korea entered into a new fishery agreement65 designed to address the continuing dispute over the waters off Dokdo. The fisheries agreement introduced two ‘provisional zones’ (or ‘midway zones’)66 in the disputed waters where fishing vessels from each country can operate, and it also included a commitment by both countries to reduce their overall catches. One zone is in the East Sea/the Sea of Japan where the two countries are in dispute over the ownership of Dokdo and its surrounding waters. The zone is co-managed by the two countries and regulated by the principle of flag-state in terms of law enforcement. The other is situated in the East China Sea off Je-ju Island just north of the Japan-China provisional measures zone. Under the Fishery Agreement, each country is entitled to claim its own eez, which extends 35 nautical miles from its coastline. 64 65

66

Guoxing (n. 38), p. 9. The Agreement on Fisheries between the Republic of Korea and Japan, available from the website of the Ministry of Foreign Affairs and Trade, Korea: http://www.mofat.go.kr/ index.jsp.: When South Korea and Japan normalized their diplomatic relationships in 1965 after Korea became independent in 1945, they reached a fisheries agreement. In the wake of the declaration of the eez, the two countries replaced the old agreement with a new one to reflect the eez regime. South Korea calls it the ‘midway zone’ (translated by author) because the meaning of the name in Korean is merely a zone situated midway between South Korea and Japan in the East Sea (or the Sea of Japan), and not to prejudice its ownership of Dokdo. On the other hand, Japan calls it the ‘provisional zone,’ as in the Japan and China Fisheries Agreement. It is believed that the disparity in naming does not affect the status of the joint fishing zone.

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However, operational problems arise from provisional boundary delimitation arrangements under the two fisheries agreements. First, part of the ­provisional zones between Japan and South Korea overlap with part of the provisional zone between China and Japan in the waters between latitude 30°40′N and 29°53′N in the East China Sea, raising a law enforcement issue on fishing in the overlapping areas. Second, these arrangements have some drawbacks in that they only cover part of the fisheries concerned; they rely on flag-state law enforcement on its own vessels, and they are not relevant to the activities of third parties such as Taiwan. v

Maritime Boundary Delimitation between China and North Korea in the Yellow Sea

China and North Korea are situated either adjacent or opposite across the Yellow Sea. Their positions on maritime delimitation in relation to each other in the Yellow Sea are not well known, particularly for that of North Korea. North Korea declared its eez up to 200 nautical miles and 50 nautical miles of the military boundary zones in the West Sea/the Yellow Sea and the East Sea/ the Sea of Japan in 1977 (see Map 4.7). Although North Korea has not specified

Map 4.7

North Korea’s eez claim

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the geographical coordinates of its eez, it is believed that North Korea’s eez claim is based on the median line (or the equidistance line) towards China. Since that time, the two sides have not yet settled the question of maritime boundaries. For China, North Korea’s position is stalling the economic development of the mouth of the Yalu River and, in particular, of Bohai Bay.67 When North Korea unilaterally declared the military boundary zone in the Yellow Sea, which is up to its eez, China remained silent, as opposed to Korea and Japan. Supposing that the delimitation line of eez between North Korea and China is drawn on the basis of an equidistance line, the line would stretch out seaward from the Yalu River, which is a border line between the two countries. Although China typically maintains the principle of natural prolongation of land territory in other part of the seas of Northeast Asia, it takes a different position with concern to the boundary of the continental shelf with North Korea in the Yellow Sea. If the boundary of the continental shelf in the Bay of Korea (in the northern part of the Yellow Sea) is drawn in accordance with the ‘silt line theory,’ it would give almost the entire basin to North Korea. For that reason, China upholds an equidistance line, because an equidistance line would likely place most of the basin under China’s jurisdiction.68 vi

Maritime Boundary Delimitation between North Korea and Russia in the East Sea

As illustrated earlier, North Korea and Russia are the only coastal states in Northeast Asia which have fully delimited maritime boundaries. The two countries share short land and maritime borders, which run 17 kilometers and 22.1 kilometers (12 nautical miles), respectively. North Korea, China, and Russia are situated opposite or adjacent along the Tumen River (Doo Man, in Korean). Relative to Russia, North Korea shares the Tumen River before it enters the East Sea/the Sea of Japan, and both are adjacent to the East Sea/the Sea of Japan. For the land boundary delimitation, the two countries signed on 17 April 1985 ‘the Agreement between the Democratic People’s Republic of Korea and the Union of the Soviet Socialist Republic on the Delimitation of the SovietKorean National Border.’ Article 1 of the agreement states: ‘The line of the national border between the ussr and dprk passes from the junction of the borders of the ussr, the prc, and the dprk along the middle of the main 67 68

Daniel Goma Pinilla, ‘Border Disputes between China and North Korea’ (2004) 52 China Perspectives, available at https://chinaperspectives.revues.org/806. Guoxing (n 38), p. 9.

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channel of the Doo Man River to its estuary, and there from in the East Korea Sea to the line’s point of intersection with the external boundary of Soviet and Korean territorial waters.’ The two countries also signed on 22 January 1986 ‘the Agreement between the Union of the Soviet Socialist Republic and the Democratic People’s Republic of Korea on the Delimitation of the Economic Zone and the Continental Shelf.’ Article 1 of the agreement defines the maritime boundaries: The boundary of the economic zone and the continental shelf between the ussr and the dprk intersects the line of the outer limit of the Soviet and Korean territorial waters, with the geographic coordinates of latitude 42° 09.0′ North and longitude 130° 53.0′ East…. From this point, the boundary follows a straight line, first southeast, to a point having the geographic coordinates of latitude 39° 47.5′ North and longitude 133° 13.7′ East, and then turns eastward and proceeds to a point with the geographic coordinates of latitude 39° 39.3′ North and longitude 133° 45.0′ East. It is believed that the two countries were able to reach the maritime boundary agreements because they were traditional allies, and more importantly, they did not have conflicting claims which would affect maritime boundaries and interests. vii Conclusion As discussed above, Northeast Asian countries have conflicting claims as to maritime jurisdiction in the narrow semi-enclosed seas. They apply whichever principles are favorable to their own interests, regardless of whether those principles contradict each other. A further complicating factor is that the maritime boundary delimitation is intricately linked to the territorial sovereignty dispute. For future negotiations for the maritime boundary delimitation, it is worthy to note the precedents of boundary delimitation cases. Jon Van Dyke concluded the key principles emerging from the past 25 years’ worth of decisions are that:69 (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 69

Jon M. Van Dyke, ‘The Republic of Korea’s Maritime Boundaries’ (2003) 18(4) The International Journal of Maritime and Coastal Law 509–540, pp. 511–514.

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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; (4) decision-makers tend to give each competing country some of what they seek, to protect their vital security interests; (5) an 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.70 As a solution to maritime boundary disputes, some scholars suggest that the disputed islands should not be given full legal power to generate the eez and the continental shelf, other than a 12-nautical mile territorial sea. However, it would not be accepted by the involved countries because they would perceive that this weakens their sovereignty claims. Another solution might be to jointly develop overlapping areas of claims, as in the joint development of the continental shelf between Korea and Japan, pending the boundary delimitation of the overlapping areas. Out of a variety of factors that need to be considered for joint development to be implemented, a critical part is to identify and agree to the area of joint development by relevant countries. It would be more difficult to agree on the joint development zone in the East China Sea where tripartite claims overlap. For the limits of the continental shelf beyond 200 nautical miles, China, Japan, and Korea submitted their own information on the outer limits of continental shelves beyond 200 nautical miles from the baselines. Those countries are to establish the limit of the continental shelf on the basis of these recommendations. However, problems with overlapping areas within 200 nautical miles still exist because the clcs’s right is limited to the delineation of the continental shelf beyond 200 nautical miles from the baselines. In conclusion, it is important that they continue to negotiate for an agreement for an equitable solution, making concessions from their own positions, for a better and more secure use of the sea.

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Territorial Disputes in East Asia i Introduction Out of various maritime disputes in Northeast Asia, the most prominent aspect might be conflicting claims to disputed islands. This is because territorial disputes are directly linked to the sovereignty of disputants, which is not negotiable. Disputes over small islands have been a significant political factor, which has negatively affected the relationship of disputed Northeast Asian countries in many respects. The territorial disputes are an intense source of maritime conflict in Northeast Asia. Furthermore, they have great potential to undermine stability and security in the region at any time. As demonstrated in numerous episodes, territorial disputes are so intense and volatile that they could escalate into high-intensity conflicts. It would not be an exaggeration to say that all the maritime disputes in Northeast Asia are intricately linked to disputes over the ownership of islands. Thus, it would be difficult to settle maritime disputes without first resolving, or at least finding a way to bypass, these territorial disputes. Northeast Asian countries have engaged in provisional arrangements, such as fishery agreements, as a way of addressing conflicting claims to maritime jurisdiction in the meantime. The origin of territorial disputes in Northeast Asia goes back to the tumultuous history of the 19th and 20th centuries. These disputed islands include Dokdo/Takeshima (Korea vs. Japan), the Senkaku Islands/Diaoyudao (Japan, China vs. Taiwan), and Kuril Islands/Northern Territories (Russia vs. Japan). ii Dokdo/Takeshima Overview Dokdo/Takeshima is at the heart of the strained relationship between Korea and Japan over the legacy of Japanese colonial rule. Dokdo is situated in the central East Sea/Sea of Japan, 47 nautical miles southeast of Korea’s Ulleungdo and 86 nautical miles northwest of Japan’s Oki Islands. Dokdo used to be called Liancourt Rocks, named after the French merchant ship which discovered Dokdo in 1849. Dokdo is composed of two tiny uninhabitable rocky islets with a total area of 0.186 kilometers. The two islets are barren and rocky, with the

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_006

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exception of some grass on the eastern islet, called Dongdo. Dokdo is currently under the control of Korea. Korea holds the basic position that Dokdo is an integral part of historical Korean territory, geographically and under international law, and that no territorial dispute exists regarding Dokdo and that therefore Dokdo is not a matter to be dealt with through diplomatic negotiations and judicial settlement.1 On the other hand, Japan asserts that Dokdo is indisputably an inherent part of the territory of Japan in light of historical facts and based on international law. Japan argues that Korea’s occupation of Dokdo has no basis in international law, and that any measures that Korea takes regarding Dokdo therefore have no legal justification.2 Controversy Korea and Japan have disputed the ownership of Dokdo for more than 50 years. The controversies with respect to conflicting claims to Dokdo and the arguments of the two countries are as follows. Historical Evidence of Sovereignty: Korea argues that the roots of its sovereignty claim to Dokdo goes back to ancient times, when in 512 a Korean kingdom, called ‘Silla,’ occupied ‘Usankuk,’ an island country which governed Dokdo. Since then Dokdo had been under the control of Korea until they were incorporated into Japan’s local government as part of Shimane Prefecture in 1905.3 Concerning documented evidence, Korea argues that numerous early Korean government publications demonstrate that Korea has long recognized Dokdo and governed the island as its territory.4 Some of the notable early government publications referring to Dokdo include the Geography Section of the Annals of King Sejong’s Reign in 1454, the Revised and Augmented Edition of the Survey of the Geography of Korea in 1531, Reference Compilation Documents on Korea in 1770, and Manual of State Affairs of the Monarch in 1808. On the other hand, Japan argues that it has long recognized the existence of 1 Ministry of Foreign Affairs, Korea, ‘The Government’s Basic Position,’ available at http:// dokdo.mofa.go.kr/eng/dokdo/government_position.jsp. 2 Ministry of Foreign Affairs, Japan, ‘Japan’s Consistent Position on the Territorial Sovereignty over Takeshima,’ available at http://www.mofa.go.jp/region/asia-paci/takeshima/index.html. 3 Ministry of Maritime Affairs and Fisheries, Korea, available at http://www.korea.net/News/ Issues/issueView.asp?issue_no=45; see Sung-Jae Choi, ‘The Politics of the Dokdo Issue’(2005) 5 Journal of East Asian Studies, pp. 466–468. 4 Ministry of Foreign Affairs, Korea (n 1), ‘Q & A on Dokdo,’ available at http://dokdo.mofa .go.kr/eng/dokdo/faq.jsp.

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Takeshima and had established sovereignty over the island by the early 17th century.5 For evidence, Japan argues that in 1618 the Japanese government granted permission to two merchants for passage to Utsuryo Island and since then it had been used as a navigational port, a docking point for ships, and rich fishing ground for sea lions and abalone.6 Korea asserts that in early Japanese maps commissioned by the Japanese government, ‘Maps of Japan’s Coastal Areas,’ published in 1821, Dokdo is missing and that this reflects the Japanese government’s recognition of Dokdo as non-Japanese territory.7 In addition, Korea cites a Japanese government document written in the late 19th century, which denied the status of Dokdo as its own territory. In 1877, the Japanese Dajokan (Grand Council of State), the Japan’s highest decision-making body at the time, instructed the Ministry of Home Affairs to ‘bear in mind that our country has nothing to do with Dokdo and Ulleungdo,’ when the ministry inquired whether Takeshima (Ulleungdo) and one other island (Dokdo) should be included in the land registry project. This is the Dajokan Order of 1877.8 Terra Nullius: After the 1904 Russo-Japanese War, Japan claimed its sovereignty over Dokdo. As a first step, Shimane Prefecture incorporated Dokdo into its territory by a notice on 22 February 1905, and it was supported by the Japanese Cabinet. The cabinet decided to incorporate Dokdo into Shimane Prefecture and reaffirmed its sovereignty over Dokdo. Japan argues that the cabinet added Dokdo to the State Land Register, established a license system for sea lion hunting, and charged a fee for use of the state land. These exercises of sovereignty were carried out by the government of Japan.9 For this reason, Japan asserts that its incorporation was ‘terra nullius’ which gained sovereignty over Dokdo. To support its claim, Japan also argues that the Empty Islands Policy maintained for Dokdo from 1438 to the end of the 19th century by the Chosun Dynasty, the last kingdom on the Korean Peninsula, meant that the dynasty gave up governing Dokdo. 5 Ministry of Foreign Affairs, Japan (n 2), ‘An Outline of the Japanese Position on Sovereignty of Takeshima and the Illegal Occupation by Korea,’ available at http://www.mofa.go.jp/ region/asia-paci/takeshima/position.html. 6 Ibid. 7 Ministry of Foreign Affairs, Korea (n 1). 8 Ministry of Foreign Affairs, Korea(n 1); see Jon M. Van Dyke, ‘Korea’s Claim to Dokdo Sovereignty is Stronger,’ cited in Korean Maritime Sovereignty (the Korea Institute of Public Administration, Seoul, 2012), p. 78. 9 Ministry of Foreign Affairs, Japan (n 2).

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Korea refutes the Japanese argument, asserting that Korea exercised territorial sovereignty over Dokdo continuously and peacefully until 22 February 1905 and never abandoned sovereignty over Dokdo.10 Korea views the incorporation as part of Japan’s aggressive and illegal expansionism that led to the formal annexation of Korea in 1910.11 After its victory in the RussoJapanese War in 1905, Japan forced Korea to become its ‘protectorate’ and Korea was formally incorporated into Japan in 1910. During the period between 1905 and 1945, Korea was deprived of the right to control its internal and foreign affairs, making Korea unable to protest against Japan’s annexation of Dokdo.12 Regarding the Empty Islands Policy, under which the residents of islands were evacuated to the mainland, Korea argues that that action was an effort to protect the residents of islands from Japanese pirates who frequently looted Korean coastal areas, not to relinquish the exercise of sovereignty. Korea asserts that the Japanese argument of ‘terra nullius’ is self-contradictory. Even supposing Dokdo was ‘terra nullius’ in 1905, it shows that Japan did not display any act of sovereignty. Japan acknowledges its contacts with Dokdo before that year were not enough to establish its sovereignty on Dokdo.13 Reading the Language of the San Francisco Peace Treaty: Another controversy concerns the reading of the 1951 San Francisco Peace Treaty language. The San Francisco Peace Treaty was signed on September 8 in 1951 between the Allied Powers and Japan to formally end World War ii. The treaty consists of seven chapters and 27 articles and declares that Japan shall renounce the territories it occupied prior to or during the war. A controversy exists with respect to the reading of Paragraph (a) of Article 2, stating that ‘Japan, recognizing the independence of Korea, renounces all  right, title, and claim to Korea, including Quelpart, Port Hamilton, and Dagelet.’ Based on this language, in which Dokdo was not included, Japan argues that the exclusion means that Japan has retained the ownership of Dokdo. Japan also claims that the u.s. did not recognize the sovereignty of 10 11

12 13

Ministry of Maritime Affairs and Fisheries, Korea (n 3), available at http://www.korea.net/ News/Issues/issueView.asp?issue_no=45. Jon M. Van Dyke, ‘Disputes over Islands and Maritime Boundaries in East Asia,’ in Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea ((eds by SeoungYoung Hong and Jon M. Van Dyke), Martinus Nijhoff, Leiden/Boston, 2009), p. 48. Ji Guoxing, ‘Japan’s Claim to Dokdo is Self-Contradictory,’ cited in Korean Maritime Sovereignty(the Korea Institute of Public Administration, Seoul, 2012), pp. 101–102. Ibid., p. 101.

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Korea over Dokdo, based on the correspondence of the u.s.14 to the Korean ambassador to the u.s. requesting Dokdo to be included in the territories that Japan renounced. Korea asserts that the islands listed are only some examples of the thousands of islands in Korea. Korea insists that Japan lobbied the u.s. government while drafting the treaty and ultimately made no mention of Dokdo in the 1951 San Francisco Peace Treaty.15 Prior to the drafting of the 1951 treaty, an instruction (scapin 677), issued by the Supreme Commander for the Allied Powers in Japan (scap) in 1946, barred Japan from exercising administrative authority over the islands of Utsuryo (Ulleungdo), Liancourt Rocks (Dokdo), and Qulepart (Jejudo). It appears that the u.s. intended to transfer these islands to Korea, although scapin 677 stated that the ultimate disposition of the islands was still to be determined.16 Another instruction issued by the scap on 16 September 1947 completed the Allied Powers’ act of occupying Dokdo and designated the islets as a bombing range for the Far East Air Force.17 Previously, Korea’s argument was supported by the Allied Powers, which had primarily discussed territorial issues of the postwar settlement. On 1 December 1943, three Allied Powers (the United States, Great Britain, and China) issued the Cairo Declaration, stating that ‘Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914 … Japan will also be expelled from all other territories which she has taken by violence and greed …that in due course Korea shall become free and independent.’ On 26 July 1945, the three Allied Powers reaffirmed their position, stating that ‘The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.’ 14

15 16 17

The correspondence reads: ‘…the United States Government does not feel that the Treaty [the San Francisco Peace Treaty] should adopt the theory that Japan’s acceptance of the Potsdam Declaration on August 9, 1945 constituted a formal or final renunciation of sovereignty by Japan over the areas dealt with in the Declaration. As regards to the island of Dokdo, otherwise known as Takeshima or Liancourt Rocks, this normally uninhabited rock formation was according to our information never treated as part of Korea and, since about 1905, has been under the jurisdiction of the Oki Islands Branch Office of Shimane Prefecture of Japan. The island does not appear ever before to have been claimed by Korea.’ Ministry of Maritime Affairs and Fisheries, Korea (n 3). Larry Niksch, ‘Japan Made No Formal Claim to Dokdo before 1905,’ cited in Korean Maritime Sovereignty (the Korea Institute of Public Administration, Seoul, 2012), p. 98. Guoxing (n 12).

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Effective Occupation: Korea’s consistent occupation of Dokdo since the early 1950s has served to reinforce its earlier acts of sovereignty. The u.s. military conducted a bombing exercise at Dokdo on 30 June 1948 that caused the death of 16 Koreans and wounded six other Koreans fishing in the area. After the incident, the Korean government immediately took measures to extend its administrative authority over Dokdo. Since then, Dokdo has continuously been under the control of Korea.18 On 18 January 1952, Korean President Syngman Rhee issued the ‘Presidential Proclamation of Sovereignty over the Adjacent Sea,’ which declared a Korean maritime jurisdictional line, called the ‘Syngman Rhee Line’ (or Peace Line19). The extent of sovereignty claimed by Korea ranged from approximately 20 to 200 nautical miles, encompassing Dokdo with that line. Japan argues that the line was a unilateral act in contravention of international law. The Syngman Rhee Line was drawn primarily to protect fishery resources in Korean coastal waters from Japanese fleets, which relentlessly exploited its fishery resources while Korea was engaged in the Korean War. Afterward, Korea took a series of measures to reinforce sovereignty over Dokdo. They included the dispatch of a coast guard unit in June 1954 and permanent stationing, as well as the construction of lodgings, a monitoring facility, a lighthouse and port and docking facilities. Coast guard ships conducted surveillance patrols in the waters off Dokdo. Against this backdrop, Korea has occupied Dokdo since 1948 and has controlled it for more than a half century. Appendage: Korea’s claim is strengthened by geography. Dokdo is 88 kilometers away from Ulleungdo and can be seen from it on a clear day. On the other hand, Dokdo is 158 kilometers away from Japan’s Oki Islands.20 Dokdo is a dependent of Ulleungdo. The fact that the two islands are an entity linked together with geographical proximity is not to be underestimated.21 Conclusion As discussed above, the factors in the argument over the ownership of Dokdo can be summed up as follows: (1) documented evidence to support territorial sovereignty claims; (2) legality of Japanese occupation during its military expansionism and colonial rule over Korea; (3) reading of the language of the 18 19 20 21

Ibid. ‘The Peace Line’ was a reference to the fact that the line was drawn to keep peace with Japan by avoiding conflicts at sea. Ibid. Guoxing (n 12), p. 104.

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1951 San Francisco Peace Treaty; (4) effective occupation of Dokdo; (5) geographical proximity to Dokdo from the mainland. Notably, the icj consistently focuses on the display and exercise of sovereignty over disputed islands in its rulings.22 The rulings of icj strengthen Korea’s claim to sovereignty over Dokdo. In light of historical facts, it seems apparent that Korea has long recognized the existence of Dokdo from ancient times, and that Dokdo has long been part of mainland Korea. Above all, the Dokdo issue should be approached from the historical perspective that during Japanese colonialism in the early 1900s, Japan annexed Korea by force and deprived it of its territorial sovereignty. Dokdo was part of the Japanese occupation of the Korean territory. iii Senkaku/Diaoyudao Overview The Senkaku/Diaoyudao Islands lie at the heart of maritime disputes between China and Japan. The islands, situated between Taiwan and Japan’s Ryukyu Island, are composed of five tiny uninhabited coral islands and three barren rocks. The Senkaku Islands, currently under Japanese control, are claimed by China and Taiwan together. The dispute over the sovereignty of the Senkaku Islands arose in the aftermath of the release of a u.n. survey report in 1968, which indicated the possibility of massive amount of petroleum resources in the East China Sea. When Taiwan signed a contract with a foreign oil company to explore and exploit oil resources in an area northeast of Taiwan (which included the Senkaku Islands), Japan contested the Taiwanese government’s action and thus the dispute began over the ownership of the Islands.23 Japan denies that any dispute over the sovereignty of the islands exists, arguing that the Senkaku Islands are an integral part of Japanese territory in light of historical facts and based on international law.24 Japan insists that the Senkaku Islands are under the valid control of Japan. On the other hand, China 22 23 24

See Van Dyke (n 11), pp. 48–49. Choon-ho, Park, East Asia and the Law of the Sea (Seoul National University Press, Seoul, 1983), pp. 34–35. Ministry of Foreign Affairs, Japan (n. 2), ‘About Senkaku Islands,’ available at http://www .mofa.go.jp/region/asia-paci/senkaku/; Steven Wei Su, ‘The Territorial Dispute over the Tiaoyu/Senkaku Islands: An Update’ (2005) 36 Ocean Development & International Law, pp. 45–61.

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asserts that Diaoyudao has been its inherent territory historically and legally, and that there shouldn’t be a dispute over its ownership if Japan hadn’t taken illegal action to seize and occupy the island in 1895.25 Meanwhile, the Japanese government decided to purchase the islands in September 2012 from a private owner and place them under the management of the Japan Coast Guard. Tensions over the Japanese government’s decision have intensified. China strongly opposed the Japanese ­government’s decision to purchase and nationalize the Senkaku Islands, arguing that ­Japan has no right to buy or sell the Diaoyu Islands when it does not have sovereignty over them.26 In an effort to bolster the sovereignty claim, Chinese government vessels conduct surveillance patrols in the waters off Senkaku on a regular basis and occasionally enter into Japanese territorial waters. The key questions to be answered in this argument may include: (1) whether China had established a title to the islands, and whether its sovereignty was maintained until Japan launched its claim; (2) whether the Senkaku Islands were included in the islands ceded to Japan under the 1895 Shimonoseki Treaty and renounced by Japan under the 1951 San Francisco Peace Treaty; (3) whether the Senkaku Islands were included in the NanseiShoto Islands (also known as Ryukyu Islands in Japanese), placed under the control of the u.s. by the 1951 San Francisco Peace Treaty, and reverted to Japan by the 1971 Okinawa Reversion Treaty. Controversy Historical Title: The history of the Senkaku Islands dates back to the Ming (1368–1644) and Qing (1644–1911) dynasties of China. It also concerns the Ryukyu kingdom, which were later annexed to the Prefecture of Okinawa, Japan in 1879. Throughout this period, a navigational record of Chinese envoys and maps specifying the boundary of the Ryukyu kingdom were found, which seems favorable to Chinese claims.27 According to China, Chinese historical records detailing the discovery and geographical features of these islands date back to the year 1403. China argues that the islands have been administered as

25

26

27

Ministry of Foreign Affairs, China, ‘Vice Foreign Minister Zhang Zhijun Gave a Briefing to Chinese and Foreign Journalists on the Diaoyu Dao Issue,’ 27 October 2012, available at http://www.fmprc.gov.cn/mfa_eng/topics_665678/diaodao_665718/t983015.shtml. Vice-Foreign Minister of China, Fu Ying, ‘Diaoyu Islands belong to China,’ 22 October 2012, available at http://www.fmprc.gov.cn/mfa_eng/topics_665678/diaodao_665718/ t981210.shtml. Park (n 23), p. 31.

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part of Taiwan for several centuries and have always been used exclusively by Chinese fishermen as an operational base.28 Japan argues that it confirmed by surveys dated from 1885 that the islands showed no trace of having been under the control of China. The prefectural government of Okinawa placed the Senkaku Islands and other islets under its jurisdiction in 1896 based on the Japanese cabinet decision of 1895.29 Since then, Japan argues that the Senkaku Islands have continuously remained as an integral part of the NanseiShoto Islands, which are the territory of Japan. Terra Nullius: Japan’s claim is based on the ‘discovery’ of the islets by a Japanese national (Tatsushiro Koga) in 1884.30 Japan argues that since it has found no trace of having been under the control of the Qing through surveys, the government of Japan made the cabinet decision on 14 January 1895 to formally incorporate the Senkaku Islands into the territory of Japan. Japan insists that these measures were carried out in accordance with the concept of ‘terra nullius,’ which means the islands belonged to no country.31 China claims that Japan’s argument does not square with the facts. China argues that the Ming and Qing dynasties of China exercised sovereignty over the Diaoyu Islands and their affiliated islands, and officially included them in maps.32 Reading of the Treaties: A principal controversy exists with respect to the reading of international treaties’ discussion of the Senkaku/Diaoyu Islands. China and Japan have disputed the reading of the language of the Simonoseki Treaty, which concluded the first Sino-Japan War (1894–1895), and of the 1951 San Francisco Peace Treaty, which formally ended the war against Japan. China and Japan hold differing interpretations of the language of the two Treaties. Their arguments are centered on whether the Senkaku Islands are part of Formosa (Taiwan) or not, and when the islands were incorporated by Japan—that is, whether that happened before or after the Simonoseki Treaty.

28 29 30 31 32

Ibid., pp. 32–33. Ibid., p. 33. Van Dyke (n 11), p. 61. Ministry of Foreign Affairs of Japan (n2), ‘Senkaku Islands Q & A,’ available at http://www .mofa.go.jp/region/asia-paci/senkaku/qa_1010.html#q1. Ministry of Foreign Affairs of China (n25), ‘The Diaoyu Islands: The Owner and the Thief,’ available at http://www.fmprc.gov.cn/mfa_eng/topics_665678/diaodao_665718/t981211.

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The Simonoseki Treaty Article 2(b) China cedes to Japan in perpetuity and full sovereignty the following territories, together with all fortifications, arsenals, and public property thereon:(b) The island of Formosa, together with all islands appertaining or belonging to the said island of Formosa.



The San Francisco Peace Treaty Article 2(b) Japan renounces all right, title and claim to Formosa and the Pescadores.

Based on the above language of both the Simonoseki Treaty and the San Francisco Peace Treaty, China asserts that the Diaoyu Islands were part of Formosa (Taiwan), ceded to Japan in accordance with the Treaty of Shimonoseki, and thus they should be reverted to China under the 1951 San Francisco Peace Treaty. In order to bolster its claim, China refers to previous agreements of the Allied Powers, such as the Cairo Declaration in 1943 and the Potsdam Proclamation in 1945.33 China argues that in November 1943, the three Allied Powers of the United States, the United Kingdom, and China made it clear that the territories that Japan occupied shall be restored to China.

The Cairo Declaration …Japan shall be stripped of all the islands in the Pacific which she has seized or occupied… and that all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa, and The Pescadores, shall be restored to the Republic of China. Japan will also be expelled from all other territories which she has taken by violence and greed.

Moreover, China argues that the terms of the Cairo Declaration were reaffirmed by Article 8 of the Potsdam Proclamation, which stated that; ‘The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku and such minor islands as we determine.’ Japan argues that the division of territories as a result of a war is ultimately settled by international agreements such as peace treaties, and the San 33

Ibid.

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­Francisco Peace Treaty legally defined the territory of Japan after World War ii. Accordingly, neither the Cairo Declaration nor the Potsdam Proclamation carries legal validity on the treatment of Japan’s territory.34 Japan asserts that the Senkaku Islands are not part of Formosa (Taiwan) and the Pescadores Islands were ceded to Japan from the Qing Dynasty.35 Japan holds that the Senkaku Islands have historically and consistently been part of the NanseiShoto Islands which have been part of the territory of Japan.36 Japan claims that the cabinet decision in January 1895 to incorporate the Senkaku Islands into Okinawa Prefecture had been undertaken before the signing of the Simonoseki Treaty, which was in April 1895.37 Since then, the Japanese government consistently treated the Senkaku Islands as part of Okinawa Prefecture.38 Concerning the ‘Agreement between Japan and the United States concerning the Ryukyu Islands and the Daito Islands’ (or the Okinawa Reversion Treaty) signed in June 1971, the two countries have maintained consistency with their arguments over the aforementioned treaties. China holds a view that the placement of Diaoyudao under the trusteeship of the United States in accordance with the San Francisco Peace Treaty is part of backroom deals between Japan and the United States with respect to the jurisdiction of Diaoyudao.39 Japan asserts that the Senkaku Islands, placed under the administration of the United States as part of the NanseiShoto Islands in accordance with Article 3 of the San Francisco Peace Treaty,40 were reverted to Japan and that it validates its sovereignty.41

34 35 36 37 38 39 40

41

Ministry of Foreign Affairs of Japan (n2). Ibid. Ibid. Ibid. Ibid. Ministry of Foreign Affairs of China (n25). Article 3 states: ‘Japan will concur in any proposal of the United States to the United Nations to place under its trusteeship system, with the United States as the sole administering authority, NanseiShoto south of 29 north latitude (including the Ryukyu Islands and the Daito Islands), NanpoShoto south of SofuGan (including the Bonin Islands, Rosario Island and the Volcano Islands) and Parece Vela and Marcus Island. Pending the making of such a proposal and affirmative action thereon, the United States will have the right to exercise all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of these islands, including their territorial waters.’ Park Hee Kwon, The Law of the Sea and Northeast Asia (Kluwer Law International, The Hague, 2000), p. 83.

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The Okinawa Reversion Treaty Article i 1. With respect to the Ryukyu Islands and the Daito Islands … the United States relinquishes in favor of Japan all rights and interests under Article 3 of the Treaty of Peace with Japan … Japan assumes full responsibility and authority for the exercise of all and any powers of administration, legislation and jurisdiction over the territory and inhabitants of the said islands. 2. …the term “the Ryukyu Islands and the Daito Islands” means all the territories and their territorial waters with respect to which the right to exercise all and any powers of administration, legislation and jurisdiction was accorded to the United States of America under Article 3 of the Treaty of Peace with Japan…

Geographical Features: China argues that, geographically, Diaoyudao is ­situated on the edge of the East China Sea continental shelf, which is contiguous to the Chinese mainland and to Taiwan. On the south the islands border the Okinawa Trough, which plunges down 2,000 meters. The islands are, therefore, ‘continental,’ and belong to Taiwan, unlike the Ryukyus which are ‘oceanic.’42 Effective Occupation: Since the Senkaku Islands were reverted in accordance with the Okinawa Reversion Treaty on 12 May 1972, the islands have been under the control of Japan. Japan argues that during the period of u.s. control over Senkaku, the u.s. exercised only administrative rights while Senkaku remained part of the Japanese territory.43 Japan took a series of measures to strengthen its control over Senkaku. It built a helipad in August 1978; it also endorsed the inclusion of a lighthouse erected in 1978 by a right-wing group in its navigational charts. In 1992, China proclaimed the Territorial Sea Law, which included Senkaku within its territorial waters. Japan did not include the islands in its straight baseline system adopted in 1996.44 Tensions between China and Japan over the islands arose when the two countries declared their own territorial waters and eezs in the 1990s, which both enclosed the Senkaku Islands within their own eezs.

42 43 44

Park (n 27). Ministry of Foreign Affairs of Japan (n 2). Park(n 41), p. 83.

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The u.s.’s Position The United States, which is an architect of the San Francisco Treaty, holds the principal position that it remains neutral in the territorial disputes in Asia. With respect to the China-Japan dispute over the Senkaku Islands, the u.s. has maintained that it transferred administrative rights to Japan, and its action does not affect the determination of sovereignty over the disputed islands.45 However, it appears that the u.s. position has changed in favor of Japan with respect to security. Although the u.s. has drawn a line between security and territorial sovereignty, they are inherently linked to each other. President Barack Obama, in a press conference after a Washington, d.c. summit m ­ eeting with Japanese Prime Minster Abe on 28 April 2015, stated that ‘…our treaty commitment to Japan’s security is absolute, and that Article 5 covers all t­ erritories under Japan’s administration, including Senkaku Islands.’46 His remarks were the reaffirmation of u.s. commitment to Japan’s security; Obama had stated in April 2014 that the coverage of the u.s.–Japan Security Treaty includes the Senkaku Islands.47 Impact on Maritime Delimitation One controversy over the legal status of the Senkaku Islands is concerned with whether they are islands or rocks under Article 121 of the United Nations Convention on the Law of the Sea. The definition of ‘rock’ versus ‘island’ has legal ramifications in the creation of maritime zones. Rocks, which cannot sustain human habitation and economic life of their own, are only entitled to have the territorial sea and the contiguous zone; islands are given a full legal effect to generate the eez and the continental shelf.48 China asserts that the Diaoyudao is small, uninhabited and cannot sustain economic life of its own, and thus is not entitled to have an eez and ­continental

45 46

47

48

Jon, M. Van Dyke (n 11), cited in Jean-Marc F. Blachard, ‘The u.s. Role in the Sino-Japanese Dispute over the Diaoyu (Senkaku) Island’(2000) 161 The China Quarterly. The White House, the United States, ‘Remarks by President Obama and Prime Minister Abe of Japan in Joint Press Conference,’ 28 April 2015, available at https://www .whitehouse.gov/the-press-office/2015/04/28/remarks-president-obama-and-prime -minister-abe-japan-joint-press-confere. The White House, the United States, ‘Joint Press Conference with President Obama and Prime Minister Abe of Japan,’ 24 April 2014, available https://www.whitehouse .gov/the-press-office/2014/04/24/joint-press-conference-president-obama-and-prime -minister-abe-japan. Art. 123, unclos.

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shelf. On the other hand, Japan argues that the Senkaku Islands are entitled to generate an eez and continental shelf. Accordingly, Japan intends to use them as basepoints from which to measure an eez and continental shelf in the East China Sea.49 In such a case, the possession of these islands would confer to the owner of the islands the title over 11,700 square kilometers of the Asian continental shelf landward of the 200 isobath.50 Whatever legal effect China and Japan grant to the Senkaku Islands, their claims encompass the islands within their own jurisdictions. Conclusion Described simultaneously as ‘cold politics’ and ‘hot economy,’ the political relationship between China and Japan has been intense, despite closer ­economic cooperation. The issue of the Senkaku Islands lies at the center of their strained political relationship. In the wake of the Japanese government’s nationalization of the Senkaku Islands, tensions have intensified. It is feared that tensions could escalate into armed conflicts, and that it would undermine peace and stability in Northeast Asia. As discussed above, the disputes over the ownership of the Senkaku Islands are centered primarily on historical title, the legality of Japanese occupation, and a reading of the treaties. Both countries’ claims may be judged in legal terms to determine whose claim is stronger. However, the sovereignty issue may not be addressed solely from a legal standpoint, because the territorial sovereignty dispute over Senkaku includes historical and political factors as well. One suggestion is to maintain the status quo of the Senkaku Islands without taking any measures to bolster its claim by either side. Unless the two countries agree to solve or at least shelve the problem of Senkaku, it is expected to remain as a source of tension between China and Japan. iv

Kuril Islands/Northern Territories

Overview The Kuril Islands (referred to as the ‘Northern Territories’ by Japan) are ­disputed by Russia and Japan. They consist of three main islands, which are 49 50

Park (n41), p. 84. Ibid., cited in Mark J. Valencia, ‘Northeast Asia: Petroleum Potential, Jurisdictional Claims and International Relations’ (1989) 20 Ocean Development and International Law, p. 47.

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Etorofu, Kunashiri, and Shikotan, together with a cluster of smaller features, the Habomai Group, and have a combined area of just under 5,000 square kilometers.51 Under the terms of the Yalta Agreement52 between World War ii Allies in 1945, the Kuril Islands, along with the southern part of Sakhalin Island, were to be allocated to the Soviet Union.53 With the end of the war, under the 1951 San Francisco Treaty, the southern Sakhalin and the Kuril Islands (including Etorofu and Kunashiri), were ceded to the Soviet Union, along with Shikotan and the Habomai Group, which were not parts of the Kuril Islands. When Japan was evicted from the Northern Territories in 1945, 17,000 Japanese residents were deported from the islands. Russo-Japan relations with respect to the Kuril Islands had previously been established by the 1858 Treaty of Shimoda, in which they agreed to draw the border between Etorofu and Urupp. Under the Treaty, Etorofu belonged to Japan and the Kuril Islands belonged to Russia. The islands of Kunashiri, Shikotan, and the Habomai Islands were not explicitly mentioned. Under the 1875 Treaty of Saint Petersburg, Russia and Japan agreed to exchange RussoJapanese joint control of Sakhalin with Russian control of the Kuril Islands in favor of Japan. As a result of the Russo-Japanese war of 1904–1905, Russia ceded the half of Sakhalin to Japan under the Portsmouth Treaty. At the end of World  War ii, the Soviets occupied all four islands from 28 August to 5 ­September 1945. With the end of the Cold War, there have been diplomatic efforts to resolve the territorial issue of the Kuril Islands between Russia and Japan, with no substantial progress yet. In the absence of maritime boundary delimitation, the waters off the islands have become an intense source of fishery disputes, as they are a very productive fishing ground. Numerous incidents, such as shootings and detentions of Japanese fishing boats and crew, have occurred when Japanese fishermen attempted to fish in the territorial waters claimed by Russia.

51 52

53

Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (2nd ed, Martinus Nijhoff, Leiden/Boston, 2005), p. 279. The conference at Yalta in the Crimea, attended by the heads of state of the United States, the United Kingdom, and the Soviet Union, took place from 4 to 11 February 1945. The heads of state agreed to restore Russia’s rights violated by the attack of Japan in 1904, stating that ‘the southern part of Sakhalin as well as the islands adjacent to it shall be returned to the Soviet Union.’ See http://www.cnn.com/SPECIALS/cold.war/episodes/01/ documents/yalta.html. Prescott and Schofield (n 51).

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Japan’s Position Japan’s principal position on the issue of the Northern Territories is that they are inherent territories of Japan, and Russia’s occupation is illegal.54 Japan argues that by the early 19th century it had effectively established control over the Northern Territories and the established natural boundaries were confirmed by the Treaty of Commerce, Navigation, and Delimitation with Russia in 1855.55 At the end of World War ii, Soviet forces occupied all of the four Northern Islands and subsequently unilaterally incorporated the territories without any legal grounds.56 Japan maintains that the islands were not among the territories that it ceded under the 1951 San Francisco Peace Treaty—which in any case, Tokyo points out, the Soviet Union did not sign.57 In addition, Japan argues that the language of the Peace Treaty, stating that ‘Japan renounces all right, title and claims to the Kurile Islands’ does not cover the Northern Territories because they were not among the islands Japan had acquired in 1875 in exchange for Sakhalin, and that, historically, they had always been Japanese.58 Japan has linked the settlement of the Northern Territories to economic cooperation with Russia under the policy of seikeifukabun (政經不可分) or the inseparability of politics and economics. Japan has used economics as leverage toward Russia to negotiate the attribution of the Northern Territories. Russia’s Position Russia argues that Japan renounced its claim to the islands in the 1951 San Francisco Peace Treaty. The Russia Prime Minister Dmitry Medvedev said in a visit to Iturup (Etorofu, in Japanese) in August 2015 that ‘the Kuril Islands are an integral part of Russia and of a Russian region called the Sakhalin region.’59 He urged other Russian governmental officials to visit the Kuril Islands more often.60 In principal, Russia views the Japanese argument over the return of 54 55 56 57 58 59

60

Ministry of Foreign Affairs of Japan (n 2), ‘Northern Territories Issue,’ available at http:// www.mofa.go.jp/region/europe/russia/territory/overview.html. Ibid. Ibid. Prescott and Schofield (n 51). Van Dyke (n 45), pp. 40–41, cited in Mark J. Valencia and Noel Ludwig, ‘Minerals and Fishing at Stake in Dispute over Northern Territories, Japan Times, 10 February 1991. ‘Moscow officials have always and will continue to visit Russian Kuril Islands—pm,’ rt, 23 August 2015, available at https://www.rt.com/politics/313133-medvedev-kuril-islands -japan/. Ibid.

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the Kuril Islands as an attempt to challenge the universally recognized results of World War ii.61 Russia became less willing to deal the Kuril Islands because they are of military-strategic importance.62 In addition, Russia has been increasingly emphasizing the economic value of the Kuril Islands and the resource-rich seas that surround them. Efforts to Solve the Territorial Dispute Russia and Japan have engaged in numerous rounds of negotiations to solve the territorial dispute, but have made little progress. In 1956, under a JapanSoviet Joint Declaration, the Soviets agreed to return Shikotan and the Habomais to Japan, on the condition that all foreign troops be removed from Japan. It is a circumstance that has yet to occur because u.s. troops are still deployed there in force.63 In October 1993, under the Tokyo Declaration, Japan and Russia agreed on the guidelines of negotiations towards resolution, which would be based on (1) historical and legal facts (2) documents, and (3) the principles of law and justice. In March 2001, the two countries adopted a joint statement called the ‘Irkutsk Statement’ which confirmed the 1956 joint declaration as a basic legal document and agreed that a peace treaty should be concluded by resolving the territorial dispute over the Kuril Islands, in accordance with the 1993 Tokyo declaration. The problem was that for the Russians the 1956 declaration meant the ­return of Shikotan and the Habomais, while for some Japanese it meant the return of the Northern Territories in their entirety.64 The two sides moved further apart because Japanese Prime Minister Koizumi insisted on a return of all the Northern Territories as a precondition to a peace treaty. Despite this, Japan and Russia adopted the Japan-Russia Action Plan, which cited the 1956 declaration, the 1993 declaration, and the 201 Irkutsk Statement as a basis for further negotiations.65 Meanwhile, it appears that Russia intends to reinforce its sovereignty claim to the Kuril Islands by stepping up its military activities around the disputed 61 62

63 64 65

Ibid. Jean-Marc F. Blanchard, ‘Politics and Economics in the Resolution/Non-Resolution of the East China Sea/Diaoyu Islands and Northern Territories Issues: Feats, Failures, and Futures,’ at 237 in dokdo: Historical Appraisal and International Justice(eds. by Seokwoo Lee and HeeEun Lee) (Martinus Nijhoff, Leiden/Boston, 2011). Prescott and Schofield (n 51). Blanchard (n 62), p. 242. Ibid.

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islands and building military facilities on the Southern Kurils.66 In September 2015, Russian Foreign Minister Sergei Lavrov indicated that ‘there is no room for compromise over the disputed islands’ and called on ‘Japan to recognize post-World War ii historic realities.’67 v Conclusion Any potential loss of territory, regardless of whether the area in question is small, seemingly insignificant, or uninhabited, can be construed as a challenge to the sovereignty, security, and integrity of the state. Boundary and territorial disputes therefore represent challenges to a state’s legitimacy and, ultimately, to the continued existence of the state itself. The disputed islands in Northeast Asia are mostly uninhabited islets, and subject to disagreements over whether they are islands or rocks under the unclos—a difference which has major implications regarding nearby maritime boundaries. Together with sovereignty claims, the potential of an islet to generate an expansive maritime boundary is a focus of dispute. The territorial disputes in Northeast Asia are expected to become more intense unless the disputants maintain the status quo or take measures to reduce the intensity of the disputes. By all accounts, the possibility of settling Northeast Asian territorial disputes by a third party, as in the settlement by the judgment of the International Court of Justice in the Sipadan and Ligitan case in 2002, appears extremely unlikely. This is because the disputed islands have become the symbol of territorial integrity and nationalism to the disputants. Thus, they would not agree to any attempt, which would be seen as weakening their sovereignty claim. Given this circumstance, the disputants need to exercise wisdom in order to keep the territorial disputes from growing into high-intensity conflicts that negatively affect other parts of their relationships. At the very least, they need to find a way to bypass the issue.

66

67

Marko Marjanovich, ‘Why Russia Won’t Cede Southern Kuril Islands to Japan,’ Russia Insider, 11 June 2015, available at http://russia-insider.com/en/politics/why-russia-wont -cede-southern-kuril-islands-japan/ri7920. ‘Moscow says if Japan wants peace deal, it must recognize postwar “historic realities,”’ The Japan Times, 22 September 2015, available at http://www.japantimes.co.jp/ news/2015/09/22/national/politics-diplomacy/lavrov-tokyo-japan-wants-peace-dealmust-recognize-postwar-historic-realities/#.VhYBtJChfL8.

chapter 6

Marine Pollution Response and the nowpap Regime in Northeast Asia i

The Growing Risk of Marine Pollution in Northeast Asia

Marine pollution by pollutants discharged from vessels and shores is a serious issue in Northeast Asia. With growing intra-trade and economic integration among Northeast Asian countries, the region has undergone a sharp increase in sea-borne transport. The seas of Northeast Asia are subject to some of the greatest risks from oil spills, comparable to the Mediterranean, Black Sea, and Northeast Atlantic.1 The Hebei Spirit incident in December 2007 off Taean, Korea, and the oil spill in Bohai Bay, China, in 2011 illustrates the issue. Given the geography—where the countries in the region are closely situated adjacent or opposite in the narrow, semi-enclosed seas—they are highly likely to be affected if pollution incidents occur in the waters of neighboring countries. Marine pollution has become a common concern in the region and closer regional cooperation is required for pollution preparedness and response. However, a legally binding multilateral regime for marine pollution prevention and response, which would oblige regional countries to cooperate, has yet to be established in Northeast Asia. Meanwhile a regional plan of the United Nations Environment Programme (unep), the Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Region (nowpap),2 has filled the void. This chapter examines the issues concerning marine pollution incidents in Northeast Asia caused by oil and hazardous and noxious substances (hns) spills in the context of the nowpap regime and discusses the institutions and legal instruments that deal with marine pollution response in the nowpap member countries. The challenges within the nowpap regime are examined, and some suggestions for addressing those issues are put forward. 1 See T.H. Moller, F.C. Molly, and H.M. Thomas, ‘Oil Spill Risks and the State of Preparedness in the Regional Seas,’ International Oil Spill Conference 2003, id #118, 5–6, available at www .itopf.org/assets/documents/iosc03.pdf. 2 Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Region (nowpap), available at the nowpap Web site, www.nowpap.org/.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_007

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nowpap and Regime-building for Marine Pollution Response

nowpap and Its Achievements The nowpap was developed under the auspices of the unep as one of its 13 Regional Seas Programmes that globally cover 18 regions across the world with its five other partner programs.3 The nowpap is one of six Regional Seas Programmes administered through the unep Regional Seas Programme. (see Table 6.1) The nowpap was adopted in 1994 by China, Japan, Korea, and Russia. The geographical scope covers the marine environment and coastal zones from 121°E to 143°E longitude and from approximately 33°N to 52°N latitude4 (see Fig. 6.1). The overall goal of the nowpap is the prudent use, development, and management of the coastal and marine environment. In order to achieve this goal, five principal objectives have been identified, including the goal of developing and adopting a regional framework for collaboration in the protection of common resources and the prevention of coastal and marine pollution.5 The intergovernmental meeting (igm), hosted annually, is the high-level governing body that provides policy guidance and makes decisions. In accordance with the decisions at the 4th igm in Beijing in 1999, four regional activity centers (racs) were to be established, one in each of the four countries, between 2000 and 2002.6 The racs are responsible for carrying out national nowpap activities and projects approved by the igm. Notably, the Marine Environmental Emergency Preparedness and Response Regional Activity Center (merrac), hosted by Korea, is a joint effort of unep and the International Maritime Organization (imo) to coordinate regional responses to major marine pollution incidents involving oil and hns.

3 See, generally, the United Nations Environment Programme (unep) Regional Seas Web site at www.unep.org/regionalseas. 4 nowpap (n 2), para. 9. 5 unep, ‘Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Region,’ nowpap Publication (unep 1997), p. 2. The other objectives include: to assess regional marine environmental conditions; to collate environmental data and record environmental data and information to form a comprehensive database and information management system; to develop and adopt a harmonious approach toward coastal and marine environmental planning; and to develop and adopt a harmonious approach toward the integrated management of the coastal and marine environment and its resources. See nowpap (n 2), paras. 10–13. 6 See ‘Regional Activity Centers,’ available at the nowpap Web site (n 2).

100 Table 6.1

chapter 6 Status of the regional seas programme

Types of Main features Regional Seas

Regions

Action Convention plan

unep Secretariat, administered administration of Regional Seas the trust fund and financial services provided by unep.

East Asian Seas Mediterranean Northwest Pacific Western Africa Eastern Africa Wider Caribbean

○ ○ ○

× ○ ×

○ ○ ○

○ ○ ○

Non-unep- Secretariat not administered provided by unep. Regional Seas Financial and budgetary services managed by the programme itself. Regional activities part of the Regional Seas Programme.

Black Sea North-East Pacific Pacific Red Sea and Gulf of Aden ropme Sea South Asian Seas South-East Pacific

○ ○

○ ○

○ ○

○ ○

○ ○ ○

○ × ○

Independent Regional framework Regional Seas not established under the auspices of unep. Participation in the global meetings of the Regional Seas.

Antarctic Arctic Baltic Sea Caspian Sea North-East Atlantic

× × ○ × ×

○ ○* ○ ○ ○

Source: Adapted from the United Nations Environment Programme (unep) Web site at http://www.unep.org/regionalseas/. Note: * In the Arctic region, although there is no regional sea framework convention, a binding agreement on cooperation on marine pollution preparedness and response was adopted in May 2013

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Figure 6.1 Geographical scope of the Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific (nowpap) region. Point A = A series of oil spills from an offshore oil field Penglai 193, in Bohai Bay in the Yellow Sea. Point B = An oil spill incident on 19 March 2013 that occurred 136 nm south of Jeju Island.

In the absence of a legally binding convention, the nowpap, under unep auspices, has played a key role in rallying and coordinating efforts of the member countries with respect to marine pollution preparedness and response. These achievements include:7 √ Adoption of a procedure for the establishment of the nowpap Regional ­CoordinationUnit and its Terms of Reference (2000) √ Establishment of Focal Points of racs (2002–2003) √ Adoption of a Regional Oil Spill Contingency Plan (2003) √ Establishment of nowpap Regional Coordination Units in Toyama and Busan (2004) 7 See, generally, ‘Report of the 14th Intergovernmental Meeting,’ unep/nowpap IG. 14/11, 12 January 2010, available at the nowpap Web site (n 2).

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√ Signing of a Memorandum of Understanding (mou) on Regional Cooperation Regarding Preparedness and Response to Oil Spills (2004) √ Agreement on the joint undertaking of Marine Litter Activity (2005) √ Agreement on the nowpap Policy on Data and Information Sharing (2006) √ Approval in principle of a draft Regional Action Plan on Marine Litter; and √ Adoption of a Regional Oil and Hazardous and Noxious Substance Spill Contingency Plan (2008)8 Legal Instruments and Contingency Plans The adoption of the contingency plans in the nowpap region can be approached from two different perspectives. At a practical level, there was a great need for an instrument specifying operational procedures for international cooperation in case of major oil spill incidents which are beyond a state’s capability. At a legal level, the nowpap member countries have cooperative obligations under the 1982 u.n. Convention on the Law of the Sea (unclos),9 the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation (oprc 1990),10 and the Protocol on Preparedness, Response, and Cooperation to Pollution Incidents by Hazardous and Noxious Substances in 2000 (oprc-hns Protocol 2000)11 (see Table 6.5). The adoption of the 2003 nowpap Regional Oil Spill Contingency Plan is related to several catastrophic oil spill incidents in the region, such as the Sea Prince oil spill incident in 199512 and the Nakhodka oil spill incident in 1997.13 In the aftermath of these major oil spill incidents, countries bordering the region looked to develop their own national preparedness and response systems and the adoption of a national contingency plan and other plans. They also

8 ‘nowpap Regional Oil and hns Spill Contingency Plan,’ available at the nowpap Web site (n 2). 9 u.n. Convention on the Law of the Sea, 10 December 1982, 1833 u.n.t.s. 397. 10 International Convention on Oil Preparedness, Response and Cooperation, 30 November 1990, reprinted in (1991), 30 i.l.m. 733. 11 Protocol on Preparedness Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances, 15 March 2000, [2007] Australian Treaty Series 41. 12 In 1995, a crude oil carrier Sea Prince spilled 5,035 tons of crude oil into the sea on the southern coast of Korea. The worst-ever oil spill incident in Korea occurred when the oil carrier collided with a small rock while it was moving to a safe place to avoid a typhoon during discharge of 260,000 tons of crude oil. It was estimated that the slick caused $100 million in damage and took five months to clean up. 13 In 1997, the Russian tanker Nakhodka broke up in heavy seas 110 km northeast of Oki Island in Japan. The tanker broke up into two sections and sank and spilled 6,200 tons of oil.

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recognized the need for closer international cooperation to deal with oil spill incidents that are trans-boundary and beyond their capabilities. There are two principal international instruments that deal with accidental oil pollution prevention and response: the unclos and the oprc 1990.14 The unclos establishes a broad legal framework for cooperation and the adoption of measures aimed at pollution prevention and control in general, without detailed regulations. Parties are required to cooperate on a global and regional basis and to notify immediately other states that are likely to be affected in case of imminent environmental danger by pollution.15 States in the affected area are required to cooperate, to the extent possible, to respond to the pollution damage. To this end, states need to jointly develop and promote contingency plans for responding to pollution incidents in the marine environment.16 The adoption of the oprc 1990 and the oprc-hns Protocol 2000 has prompted the nowpap member states to develop measures for regional cooperation in marine pollution preparedness and response. As Table 6.5 shows, all the member states of nowpap are parties to the oprc 1990, and all but Russia are parties to the oprc-hns Protocol 2000. The oprc 1990 was a reaction to the Exxon Valdez catastrophe in 1989 and it mandates international cooperation in responding to pollution emergencies and enhancement of national, regional, and global capabilities.17 It encourages the facilitation of mutual assistance and the development and maintenance of adequate organizational and technical infrastructures. Particular importance is accorded to prompt and effective action, which thus requires national and regional contingency planning together with the development of emergency plans.18 The broadening of the oprc 1990 beyond oil occurred with the adoption of the oprc-hns Protocol 2000. Encouraged by the unep and imo activities and the treaty obligations to establish a framework for regional cooperation in marine pollution ­preparedness and response and following a great number of meetings, the Oil Spill Contingency Plan was developed at the 5th nowpap merrac Focal Points Meeting in 2002 and adopted in the 8th Intergovernmental Meeting of nowpap in 2003.19 14

15 16 17 18 19

See Sergei Vinogradov, ‘The Impact of the Deepwater Horizon: The Evolving International Legal Regime for Offshore Accidental Pollution Prevention, Preparedness, and Response’ (2013) 44 Ocean Development & International Law, p. 340. Arts. 197 & 198, unclos. Ibid., Art. 199. Vinogradov (n 14), p. 342. Ibid. nowpap, ‘Report of the 8th Intergovernmental Meeting,’ unep (DEC)/NOWPAP/IG.8/11, 14 February 2004, paras. 76–88, available at the nowpap Web site (n 2).

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In addition, the member countries have adopted an associated mou,20 signed at the ministerial level, to confirm the political will and to formally adopt the regional oil spill contingency plan. The purpose of the Oil Spill Contingency Plan is to provide a framework under which the nowpap members can cooperate at the operational level in responding to oil spill incidents that exceed the response capability and available resources of a nowpap member. The purpose of the Oil and hns Spill Contingency Plan is to provide an operational mechanism for mutual assistance­in cooperation to coordinate and integrate their responses to marine oil and hns spill incidents which affect or seem likely to affect the nowpap members and which exceed the response capability of an individual nowpap member. The Oil Spill Contingency Plan was activated for the first time in the ­n owpap region in response to the Hebei Spirit oil spill incident, which occurred off the west coast of Korea on 7 December 2007 when a crane barge being towed by tug boats collided with the anchored, Hong Kong-registered crude oil carrier Hebei Spirit, which was carrying 260,000 tons of crude oil. The incident spilled 12,920 kl of crude oil and inflicted enormous damage to beaches and sea farms nearby. Dealing with the worst oil spill incident ever in Korea, which was then beyond its response capabilities, the nowpap merrc, in collaboration with Korea’s competent authority, the Korea Coast Guard (kcg), notified the ­n owpap member countries, the imo, and unep of the oil spill incident on 7 December, and subsequently of the activation of the Oil Spill Contingency Plan on 10 December. On 11 December, the merrac, at the request of kcg, called for the member countries to render assistance in providing sorbents to combat the crude oil pollution. Korea was assisted with 65 tons of sorbents from China and 10 tons from Japan, respectively, and seven experts from Japan. The merrac deactivated the nowpap Regional Spill Contingency Plan on the official request of kcg on 14 January 2008. With the hns issue growing increasingly critical in the region as a result of the growing amount of hns transported, the nowpap member states have developed a combined oil and hns spill contingency plan, referred to as the ‘nowpap Regional Oil and hns Spill Contingency Plan’ by adding hns to the  existing nowpap Regional Oil Spill Contingency Plan.21 The Oil and hns Spill Contingency Plan was adopted and has replaced the Oil Spill Contingency Plan. 20

21

‘Memorandum of Understanding on Regional Co-operation Regarding Preparedness and Responses to Oil Spills in the Marine Environment of the Northwest Pacific Region,’ see Ibid. and Annex v. nowpap Regional Oil and hns Spill Contingency Plan (n 8).

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Under the Oil and hns Spill Contingency Plan, each nowpap member is required to develop its own National Contingency Plan and to have resources to respond to marine oil and hns spills in its waters.22 The plan provides for responses to only large-scale oil spills and substantial hns spills which are beyond the capability of a member state to respond.23 The plan also provides terms of reference for cooperation, policies, and responsibilities of each member country and references reports and communication. iii

Oil and hns Spill Incidents in the nowpap Region

Overview of Oil and hns Spill Incidents In tandem with the rapid economic growth of Northeast Asian countries, there have been greater energy demands in Northeast Asia. In terms of oil consumption, Table 6.2 shows the status of the nowpap member states over the last dec­ade. While there have been no remarkable increases in Korea and Russia, the oil consumption of China has significantly increased in the same period. Notably, there has been a significant decrease in oil consumption in Japan. The changes in oil consumption show the interrelationship, to some extent, with the gross domestic product (gdp) growth rates of those countries in the period of 2003 through 2013. Other than China, which has experienced a 10.3% average gdp growth over the same period, the economies of Japan, Korea, Table 6.2 Changes in oil production and consumption in the nowpap member states

Country Oil production (1,000 barrels/d)

Total Korea Japan Russia China

Oil consumption (1,000 barrels/d)

2004

2014

Change (%)

2004

2014

Change (%)

12,821 – – 9,335 3,486

15,084 – – 10,838 4,246

2,263(18) – – 1,503(16) 760(22)

16,964 2,294 5,270 2,660 6,740

21,004 4,040(24) 2,456 162(7) 4,298 −972(−18) 3,194 534(20) 11,056 4,316(64)

Source: Adapted from the bp Statistical Review of World Energy 2015 22 23

Ibid., para. 2.1.1. Ibid., para. 1.3.4.

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Table 6.3 Status of oil spill incidents with spillage over 10 kl in the nowpap region

Year Total

Korea

Japan

China

Russia

Total 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

68/16,322(61%) 7/136 13/267 5/305 7/12,920 4/324 – 11/494 4/76 – 6/436 10/1,221 2/143

16/688(2.5%) 2/192 – 5/391 – – 2/25 1/45 1/not available 3/35 – 1/unknown 1/unknown

59/9,236.5(34.6%) 13/3,465 5/1,463 5/863 12/787 3/57 5/1,172 4/164 2/134 3/271 5/838 2/22.5 –

4/475(1.7%) – 2/44 1/5 – – – – – – – – 1/426

146*/26,722.5kl** 22/3,793 20/1,774 16/1,564 19/13,707 7/382 7/1,197 16/703 7/210 6/306 11/1,274 13/1243.5 2/569

Source: Adapted from data available to author at . Note: * indicates the number of oil spill incidents ** indicates the spillage of oil

and Russia have slowed down or remained stagnant, with average gdp growth rates of 0.9%, 3.7%, and 4.6% respectively.24 Despite the slowdown of the economies of Japan and Korea, the combined gdp of China, Japan, and Korea accounted for 22.6% of the world economy in 2015, with China at 15%, Japan at 5.6%, and Korea at 1.82%.25 Given that seaborne trade is an integral part of these economies, these countries are heavily­ dependent on maritime transports carrying goods and energy resources, which account for a greater risk of accidental oil and hns spills than any other region in the world. As Table 6.3 indicates, there have been a total of 146 significant (that is, in excess of 10 kl in spillage) oil spill incidents over the past decade. Combined, total spillage of those incidents is 26,722.5 kl. In particular, Korea is remarkably 24

25

The data is adapted from ‘the World Economic Outlook Database of the International Monetary Fund, October 2012,’ available at www.imf.org/external/pubs/ft/weo/2012/02/ weodata/index.aspx. Adapted from ‘Report for Selected Country Group and Subjects,’ World Economic Outlook, International Monetary Fund, October 2015.

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high with 16,322 kl in terms of spillage, in contrast to Japan’s 6,881 kl in the same period. The Hebei Spirit incident in 2007 greatly contributed to the higher spillage of Korea. Korea: Higher Risk of Oil Spills As seen in Table 6.3, although there have been ups and downs in oil spill incidents over the period, the overall occurrences of spillage have been trending downward since 2004, with the exception of 2007’s Hebei Spirit incident. The individual and collaborative efforts of the nowpap member states to prepare and respond to oil pollution can take credit for the significant reduction of oil pollution incidents throughout the region. Over 2013 and 2014, however, oil spillage throughout the nowpap region sharply increased, with 11 and 13 occurrences, respectively. Notably, Korea accounted for 34% of the spillage incidents with six cases in 2013 and 98% of spillage incidents with 13 cases in 2014. Oil spills in Korea in 2014 particularly jumped with various marine accidents. As Table 6.3 shows, Korea is the largest country in terms of oil spillage and occurrences over the last decade. The coastal waters of Korea have been a growing hotspot of oil spills, with heavy maritime traffic. A very unusual oil spill incident happened in Yeosu, Korea. On 23 January 2014, a Korean oil tanker of 160,000 tons, loaded with crude oil of 278,000 tons, collided with oil pipelines connected to an oil refinery factory as the tanker was approaching to the dock. The oil tanker on the pilot service was approaching at 6 knots, in violation of a 2 knot-speed limit. Some parts of the oil pipelines were damaged, and as a result, oil and chemicals in the pipelines were spilled into the sea. Fortunately, the oil tanker was intact. The oil spillage was estimated to be 160 kl, which polluted the waters off Yeosu and inflicted an enormous amount of damage to the marine environment and fisheries. The Korean government has been devoted to building up the capabilities of marine pollution preparedness and prevention in the aftermath of the H ­ ebei Spirit incident. These measures include: revising the Marine Environmental Management Act to authorize the coast guard to coordinate oil pollution ­response activities by central and local governments; revising the contingency plan to assign detailed duties of competent agencies in oil pollution response; increasing the number of oil spill response vessels and equipment; and establishing stockpile facilities in three key locations. hns Spills in the nowpap Region Before examining the status of hns spill incidents in the nowpap region, it is necessary to explore how hns is defined in international conventions. Under

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the oprc-hns Protocol 2000, which entered into force in 2007, hns is defined as ‘any substance other than oil which, if introduced into the marine environment, is likely to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.’26 Such a definition includes: noxious liquid substances described in Annex ii of marpol 73/78 and the International Bulk Chemical Code (ibc Code); dangerous goods described in the imo Dangerous Goods Code (imdg Code); and solid cargoes covered by the Code of Safe Practice for Solid Bulk Cargoes (bc Code). The 2002 protocol covers threats of or actual pollution incidents from hns, such as a discharge, release, or emission of hns, including those from fire or explosions that pose or may pose a threat to the marine environment or coastline and would therefore require emergency action or an immediate response. Although hns spills in the nowpap region have been occasional, as presented in Table 6.4, the nowpap member states are at a high risk of hns spills. This is because maritime transportation of petrochemical and chemical materials and products has been increasing due to a booming oil and chemical industry in Northeast Asia. Since hns has an inherent high risk of explosion, fire or toxicity, a major hns spill has the potential to cause a tremendous amount of marine pollution and significant damage to human life and property.27 Table 6.4 shows the statistics of hns spill incidents occurring during the period between 2004 and 2014. hns spill incidents have been regularly occurring in the nowpap region, although they are relatively few in comparison with oil spills. A total of 24 hns spill incidents with over 10 tons of spillage occurred in the aforesaid period, with a total spillage of 4,454 kl.28 There were seven hns spill incidents in Korea with a total spillage of 333 kl and eight in Japan with a total spillage of 332 kl. Remarkably China outnumbers the rest of the member states in terms of hns spillage with a total of 3,999  kl in 10 occurrences, which accounts for 89.8% of hns spillage throughout the region. It appears that the higher spillage of hns in China is related to the increase in the sea-borne transport of industrial substances necessary for a prosperous economy, as illustrated in its high rate of gdp growth. No incidents were reported in the Russian area of responsibility in the same period.

26 Art. 2, oprc-hns Protocol (n 11). 27 See nowpap merrac, ‘Regional Report on hns Preparedness and Response,’ merrac Technical Report (2012), (n 9), pp. 1 & 14. 28 See the merrac Web site, available at merrac.nowpap.org/Activities/HNS/HNS Spill Accidents.

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Marine Pollution Response & nowpap Regime in Northeast Asia Table 6.4 Status of hns spills in the nowpap region

Total 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015

Total

Korea

Japan

China

Russia

24*/4,454** 5/2,110 4/332 1/not available 3/not available 1/not available 3/not available 3/1,814 4/210 –

7/333(7.4%) 2/ not available – – 1/not available – 1/not available 1/59 1/76 – – – 1/198

8/332(7.4%) – 2/332 – 1/not available 1/not available 2/not available 1/not available 1/not available – – – –

10/3,999(89.8%) 3/2,110 2/not available 1/not available 1/not available – – 1/1,755 2/134 – – – –

– – – – – – – – – – – – –

1/198

Source: Adapted from data available to the author at . * Indicates case(s) of hns spill incidents ** Indicates the total spillage of hns incidents

The data of many hns spill incidents are not available. This may be due to the nature of hns spill incidents, which require special monitoring equipment for detection because many of chemical plumes are not readily visible. Despite the potential risk of hns spill incidents, there is little awareness of hns dangers, and there is a low level of preparedness for hns spills as well. Recognizing the growing risk of hns, the nowpap member states have been committed to preparing and responding to hns spills by adopting domestic legislation and building up hns spill-response capabilities as well as engaging in regional cooperation efforts within the framework of nowpap with support from the imo and unep. iv

Conventions, Legislation, and Competent Agencies Concerning Marine Pollution in Northeast Asian Countries

International Conventions As Table 6.5 shows, all the nowpap member states, with the exception of Russia, are parties to all international conventions concerning the prevention of

Conventions related to compensation

○ ○ ○ ○ ○

○ ○ ○ ○ ×

○ ○ ○ ○ ×

○ ○ ○ × ×

○ ○ ○ ○ ×

○ ○ ○ ○ ×

○ × ○ ○ ×

○ × ○ × ×

○ ○ × ○ ○

oprc -hns London clc 92 Fund Supp Bunker marpol unclos oprc 73/78 Convention Protocol Convention Convention 92 Fund 03 Convention

Conventions related to oil and hns spill response

Source: Adapted from imo, available at http://www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx Note: (○: ratified, ×: not ratified) 1. marpol 73/78: International Convention for the Prevention of Pollution from Ships, 1973, as modified by the protocol of 1978 relating thereto. 2. unclos: 1982 u.n. Convention on the Law of the Sea 3. oprc Convention: International Convention on Oil Pollution Preparedness, Response and Co- operation, 1990 4. oprc-hns Protocol: Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 2000 5. London Convention: Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter, 1972 6. clc 92: International Convention on Civil Liability for Oil Pollution Damage, 1992 7. Fund Convention 92: International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 8. Supplementary Fund Convention: Protocol of 2003 to Amend the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 9. Bunker Convention: International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

South Korea China Japan Russia North Korea

Country

Table 6.5 Status of international marine environmental conventions in Northeast Asian countries

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marine pollution and preparedness and response to oil and hns spills. The reasons why Russia has not been party to the oprc-hns Protocol are unknown. Although North Korea is not a party to the nowpap regime, it is worthwhile to examine its status with regard to international conventions. North Korea is within the geographical scope of the nowpap, and it is highly likely to be affected by a major oil or hns spill that would occur in the nowpap region, and such an incident in North Korea would affect the nowpap region. North Korea is a party to only the International Convention for the Prevention of Pollution from Ships (marpol 73/78). National Authorities and Legislation As shown in Table 6.6, the coast guards of Korea and Japan and maritime agencies in Russia and China are the primary government agencies responsible for oil pollution response. In all these countries, on-scene response operations are carried out by or together with other agencies that are either part of government organizations or in the public sector. In Korea, the kcg is the lead agency of more than 20 agencies involved in combating oil and hns pollution incidents at sea. Preparedness and response to marine pollution is an integral part of the activities of the kcg, which is primarily responsible for law enforcement, search and rescue, and marine safety and security. In accordance with the Marine Environmental Management Act, the kcg is mandated to develop and execute the National Contingency Plan for the prevention of and response to marine pollution.29 The commissioner general of the kcg is authorized to direct all activities for contingency response to marine pollution and to establish a pollution response headquarters in the event of a major oil pollution incident.30 On-scene activities for combating oil and hns spills are carried out by the kcg and the Korea Marine Environment Management Corporation (koem), which is a public corporation established under the Marine Environmental Management Act.31 With respect to the share of national marine pollution response capabilities, which is up to 27,000 kl, the kcg is capable of responding to oil spillage of 13,000 kl, and the rest is shared by koem and the oil industry. In Japan, the Japan Coast Guard (jcg) is responsible for oil pollution prevention and response.32 The Marine Pollution Prevention Law, enacted to implement international conventions concerning marine pollution, addresses 29 30 31 32

Art. 61, Marine Environmental Management Act. Ibid., Art. 62. Ibid., Arts. 96–109. Art. 5, Japan Coast Guard Act.

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Table 6.6 Lead agencies, on-scene response organizations, and national acts for oil spill response

Country Lead government agency Korea

On-scene response National/Federal act

Korea Coast Guard (kcg)

Japan

China

Russia

Korea Marine ­Environment Management Corporation (koem) Japan Coast Guard Marine Disaster (jcg) Prevention Center (mdpc) China Maritime China Offshore Safety ­Administration Environmental Service Ltd (coes) (msa) State Marine Pollution Basin Salvage and Control, Salvage & Towage Company Rescue ­Administration (basu) (smpcsa), ­Ministry of Transport

Marine Environmental ­Management Act

Marine Pollution Prevention Law Marine Environment ­Protection Law Federal Law on the ­ rotection of the ­Population P and ­Territories from ­Emergency Situations of Natural and Technological Origins

Source: Adapted from nowpap Marine Environmental Emergency Preparedness and Response Regional Center (merrac) at .

the competent authorities and the attendant responsibilities in dealing with marine pollution prevention and responses to oil and hns spills. The jcg is mandated to establish a contingency plan for oil and hns spill incidents. The Marine Disaster Prevention Center, an entity established under the Marine ­Pollution Prevention Law, is to conduct on-scene response operations to combat oil spills under the instruction of the commandant of the Japan Coast Guard.33 In China, the Maritime Safety Administration (msa) under the Ministry of Transport and Communication is the lead agency in dealing with marine pollution pursuant to the Maritime Traffic Safety Law and the Marine Environment Protection Law and is responsible for maritime safety and security and the 33

Art 42, Marine Pollution Prevention Law.

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­ revention of pollution from ships.34 As in Japan and Korea, on-scene response p activities for marine pollution in China are carried out by a public corporation. The China Offshore Environmental Service Ltd (coes) is a limited liability company funded by the China National Offshore Oil Corporation (cnooc). The coes is responsible for oil spill response services, primarily for oil and gas exploration and production operation companies in the Bohai Bay.35 In Russia, oil spill preparedness and response is primarily governed by the Environment Protection Law and the Federal Law on the Protection of the Population and Territories from Emergency Situations of Natural and Technological Origins. A number of state institutions at the federal and regional level are involved in actions for marine spill preparedness and response at sea.36 The State Marine Pollution Control, Salvage & Rescue Administration (smpcsa), under the Ministry of Transport, is the lead government agency responsible for overall preparedness and response offshore spill incidents. The smpcsa, together with the Ministry of Civil Defense, Emergencies and Elimination of Consequences of Natural Disasters (emercom), is responsible for mobilizing capabilities if oil spills are beyond the capacity of the local or ­ regional authorities.37 On-scene response operations are assigned to the Basin Salvage and Towage Company (basu). The smpcsa has overall responsibility for the management of basu, which consists of state-owned companies providing salvage and ­towage services when needed in the appropriate marine basin. The companies are the operational arm of the regional spill response structure setup and the owners of dedicated vessels and spill response equipment.38 v

Challenges in Responding to Marine Pollution under the nowpap Regime

Northeast Asian countries are committed to the preparedness of and response to oil and hns spills within the framework of nowpap, a core cooperative 34 35 36

37

38

See the Maritime Safety Administration Web site, available at en.msa.gov.cn/index. php? m=content&c=index&a=lists&catid=328. See the coes Web site, available at www.cleanupoil.org.cn/en/sporsor/introduice.asp. See G.N. Semanov and A.A. Ivanchin, ‘Russian Legislation and Oil Spill Response,’ I­ nterspill(2004), available at www.interspill.com/previous-events/2004/pdf/session5/448 SEMANOV.pdf. Ibid. See also ‘Country Profiles: A Summary of Oil Spill Response Arrangements & Resources Worldwide,’ International Tanker Owners Pollution Federation Limited (itopf) 2013, 2, available at www.itopf.com/assets/country/russia.pdf. Ibid.

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mechanism in protecting the marine environment in Northeast Asia where the risks of oil and hns spill incidents are higher than in any other region in  the world. While the nowpap regime and its operations have had successes, the regime has a number of weaknesses and deficiencies, stemming primarily from its structure and the geopolitical situation within Northeast Asia. The challenges are discussed below, followed by some suggestions to deal with these matters. A Loose Cooperation Mechanism The nowpap is a marine environmental cooperative regime based on a nonlegally binding document and thus is fully dependent on the willingness and commitment of its member states. Consequently, the nowpap is somewhat loose in terms of rallying the cooperation of member states. This means that environmental projects even at the technical and practical level are often easily swayed by political and economic issues. The nowpap regime was initiated by a unep regional program, as noted earlier, and adopted by the four member states as a part of the unep Regional Seas Programme. Although the nowpap has a governing body in the form of the Intergovernmental Meeting, it serves as only a consultative and facilitative body whose decision-making is not legally and politically binding. Of the numerous Regional Seas Programmes under the auspices of the unep, most are underpinned with a strong legal framework in the form of a regional convention and associated protocols on specific problems. The unep and Korea had intended to build a legally binding regime at the early stage of nowpap; however, Japan reportedly was opposed to that scheme on the grounds that North Korea, which has had no diplomatic ties with Japan, was likely to participate in the nowpap.39 Limited Geographical Coverage As shown in Figure 6.1, the geographical scope of the nowpap is limited because many parts of the Yellow Sea and the East China Sea are outside the nowpap region. For example, a series of spills from an offshore oilfield (Penglai 19–3) in Bohai Bay in the Yellow Sea (see Point A in Figure 6.1) began on 4 June 2011 and spilled 1,500 barrels of oil. The oil spills were not publicly reported until 5 July 2011. Although South Korea is adjacent to the Yellow Sea, it 39

See Kang Chang Ku and Kang Sung Gil, ‘Review on the Regional Cooperative Activities for Marine Environmental Conservation in Northeast Asia: with Special Reference to the Northwest Pacific Action Plan (nowpap)’(2003) 6(1) Journal of the Korean Society for ­Marine Environment Engineering, p. 38.

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was not notified. South Korea, which might be harmed if the oil spill flowed into the Yellow Sea, called for swift notification regarding information on the oil spills.40 However, China was reluctant to share information, arguing that Bohai Bay is outside the geographical scope of the nowpap. Another problem is North Korea’s nonparticipation in the nowpap even though the geographical scope covers seas adjacent to North Korea. In fact, North Korea began to take an interest in marine pollution issues after the 1992 u.n. Conference on Environment and Development (unced)41 and has entered into several international treaties and enacted domestic legislation, as noted in Table 6.5. However, it has not yet become a member of the nowpap. If a major oil spill or hns incident occurs in the waters off North Korea and the North Korean government is incapable of managing the spill, problems could arise in rallying the cooperation of nowpap members and rendering assistance to North Korea due to the absence of diplomatic channels. Also, given the tension in the waters adjacent to North Korea, it is likely that any response to a major oil or hns spill in those waters would be cautious. Weak Legal Instruments While all the nowpap member countries are parties to the oprc 1990, under which the parties are required to promote the bilateral and multilateral agreements for oil pollution preparedness and response, other than the ­action plan, the nowpap members have not concluded bilateral or multilateral agreements to deal with major oil and hns spills beyond a member state’s capability in the region. In the absence of agreements at the regional level, assistance procedures are via normal diplomatic channels, not through direct contact between the competent authorities. This diplomatic dialogue takes longer than direct coordination between the competent authorities, which inhibits the competent authorities from jointly, promptly, and effectively responding to the incidents. Maritime Boundaries Many of overlapping claims to ocean space in Northeast Asia are unsettled. Of the nine areas where maritime boundaries appear to be required in Northeast 40

41

See ‘S. Korea Expresses Concern about Oil Spill off China’s Northeast Coast’ Korea Times 13 July 2011, available at koreatimes.co.kr/www/news/nation/2011/07/113 90770.html; and ‘China Admits Extent of Spill from Oil Rig’ New York Times 5 July 2011, available at www .nytimes.com/2011/07/06/world/asia/06china.html? r=0&pagewanted=print. Suh-Young Chung, ‘Is Mediterranean Regional Cooperation Model Applicable to North East Asia?’(1998–1999) 363 Georgetown International Environmental Law Review, p. 388.

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Asia, only one—between North Korea and Russia—has been fully delimited, and the rest are either partially settled or remain unsettled.42 This is largely because the maritime issues are compounded by territorial disputes over islands.43 This can raise the issue as to who is responsible for oil and hns spill responses in disputed sea areas. The disputed seas are viewed as high seas in the provisional measures zone and midway zone under fisheries agreements between Korea-China and Korea-Japan, respectively.44 Thus, there exists the possibility of oil pollution incidents in the high seas and disputed seas which could affect the seas of the coastal states, given the narrow semi-enclosed seas and heavy maritime traffic in the nowpap region. Another problem is how expenses for oil and hns spill responses in the high seas or the disputed seas are to be reimbursed. A 19 March 2013 oil spill incident that occurred in the seas 136 nautical miles of south of Jeju Island (see Point B in Fig. 6.1)—an area disputed between Korea and China—illustrates the problem. The incident, which was caused by the collision of a British container ship and a Chinese bulk ship, spilled 650 kl of fuel oil. The kcg sent a large patrol ship and a fixed aircraft to survey and monitor the oil spill. After consultations with the International Tanker Owners Pollution Federation (itopf), the kcg was reimbursed from a Swedish protection and indemnity (P&I) club for approximately $32,000 in expenses for patrols and surveillances. For oil spill incidents in the high seas or the disputed seas, however, it will be very difficult for coast guard agencies to be reimbursed for expenses without an internationally agreed-upon platform. No Coastal Area Management The nowpap was organized according to the structure of other regional action programs such as the unep Mediterranean Plan.45 Unlike the Mediterranean Plan, which ultimately adopted a protocol to manage the issue of land-based pollution,46 the nowap has made little progress over land-based pollution problems. Thus, marine pollution derived from nuclear facilities on shores, as demonstrated in the release of radioactive waters from nuclear plants 42

See Suk Kyoon Kim, ‘Understanding Maritime Dispute in Northeast Asia: Issues and ­ ature’ (2008) 23(2) International Journal of Marine and Coastal Law, pp. 222–223. N 43 Ibid., p. 223. 44 Ibid., pp. 226–230. 45 See unep Mediterranean Plan, available at www.unepmap.org. 46 Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources, 17 May 1980, 1328 u.n.t.s. 119.

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in F­ ukushima, Japan, is beyond the coverage and the scope of the nowpap regime. Other coastal areas in the region, particularly along Chinese coastlines, are extensively polluted from sewage and industrial wastes. Given the importance of land-based pollution in Northeast Asia, there is a pressing need for nowpap to expand its scope to deal with land-based marine pollution problems. Financial Resources A further challenge that the nowpap needs to address is a lack of financial resources to support the projects carried out by the four racs and their activities and operations. nowpap member states at the Intergovernmental Meeting in Tokyo in 1996 agreed to establish a trust fund of an annual target amount of $500,000. However, annual contributions have been only $310,000 per year. As a consequence, some of the proposed activities have not received timely funding, which has led to delays. From 1995 to 2012, the total amount of contributions by member states was up to $4,850,000. China, Japan, Korea, and Russia have contributed $700,000 (14.4%), $2,000,000 (41.2%), $1,700,000 (35%), and $450,000 (9.3%), respectively. Given the economic situation of each nowpap member state and the ­increased activities of racs, along with the growing importance of dealing with marine pollution in Northeast Asia, the target amount of the trust fund and annual contributions by each member state are relatively small. China, which has pledged to contribute $40,000 annually, has recently decided to increase its annual contribution to $100,000. After a decade of not paying its pledged annual contributions, in 2011 Russia resumed its commitment to annual contributions to the nowpap trust fund.47 Trust-building and Leadership Due in large part to some unique characteristics among Northeast Asian countries, such as growing nationalism and a historical lack of cooperation that is deeply rooted in the legacy of colonialism, there have been barriers to the nowpap developing into a full-fledged marine environmental institution. In addition, the reshaping of the political and economic landscape in Northeast Asia represented by the rise of China to global-power status and the rivalry between countries has not allowed any country to take the initiative in maritime affairs, which has contributed to this loose cooperative regime.

47

nowpap, Report of the 16th Intergovernmental Meeting, unep/nowpap IG. 16/12, 21 March 2012, at para. 41, available at the nowpap Web site.

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An example of these rivalries regarding the nowpap regime can be found in the establishment of dual Regional Coordinating Units (rcu) in Toyama, Japan and Busan, Korea, which serve as secretariats of the nowpap. Dual rcus are not cost-efficient, and they are ineffective in promoting nowpap activities and implementing decisions of nowpap members. vi Conclusion Northeast Asian countries have undertaken cooperative efforts to protect the marine environment since the 1990s on both a bilateral and multilateral basis. However, many projects to fulfill this cooperation ideal have been delayed or have been put on hold as a result of political, social, and economic issues, such as growing nationalism, the legacy of imperialism, overlapping maritime claims, territorial sovereignty disputes, and the widening economic gap. Beyond the limited scope of the nowpap, which is primarily confined to oil and hns spill responses, it is necessary that the regime develop a concept of an ecological region within the nowpap area to include land-based pollution, the dumping of industrial waste, and the release of radioactive water. Such a reconceptualization and expansion of scope will ultimately help the nowpap regime develop a marine ecological community within Northeast Asia. To this end, nowpap member countries need to strengthen legal instruments at both the national and regional level, and ultimately conclude bilateral or multilateral agreements. Moreover, the nowpap member states need to secure more funds to support the activities of the racs and to improve the financial sustainability of the nowpap. Finally, there should also be a joint effort prompting North Korea’s participation in the nowpap regime given that the waters adjacent to North Korea are not exempted from marine pollution problems.

chapter 7

Fishery Regimes and Illegal Fishing in the Yellow Sea i

The Sea of Unlawfulness

Illegal Chinese fishing in the Yellow Sea has been a hot issue between China and Korea since the early 2000s. The enormous scale of illegal fishing over the past decade has turned the Yellow Sea into the ‘sea of unlawfulness.’ Hundreds of Chinese fishing vessels during the fishing season trespass on Korean waters (eez) or even territorial waters. Chasing, fleeing, and violent clashes between law enforcement officers and illegal Chinese fishing boats have been common in the troubled waters. Unprecedented illegal fishing and violent resistance against law enforcement operations are unique compared to the rest of the world. The violence of illegal Chinese fishing became more apparent in a tragic incident on 12 December 2011. During a crackdown, a Korean coast guard officer was fatally stabbed to death by the captain of the fishing boat.1 Despite various measures by the two countries to stop these activities, illegal Chinese fishing in the Yellow Sea remains unchanged, even becoming aggravated. Since 2014, meanwhile, Chinese fishing boats have trespassed into the neutral waters of the Han River Estuary, which has been under the control of the United Nations Command (unc) in accordance with the Armistice Agreement of 1953. The neutral waters, next to the beginning point of the nll, have remained untouched for several decades and are known as a rich fishing ground. When South Korea and the unc engaged in a joint crackdown on Chinese fishing boats in the neutral waters, North Korea called it ‘a military provocation’ and warned that it ‘won’t hesitate to retaliate against any encroachments [by ships of South Korea and the unc].’2 Given the volatile military situation 1 2

1 Korea Times, ‘One Coast Guard Officer Killed in Raid on Illegal Chinese Fishing,’ on 12 December 2011, available at http://www.koreatimes.co.kr/www/news/special/2011/12/117_100587 .html. 2 Korea Times, ‘North Korea Slams South Korea’s Crackdown on China’s Illegal Fishing,’ on 20 June 2016, available at http://koreatimes.co.kr/www/news/nation/2016/06/113_207368.html.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_008

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off the nll, illegal Chinese fishing is not only the exploitation of fishery resources, but also a security concern. ii

Fishery Regime-building in the Yellow Sea

Fishery Regime-building in Northeast Asia Fishery disputes have been a long-held issue among Northeast Asian countries since ancient times because they share the narrow seas. In the mid-20th century, Northeast Asian countries were influenced by the global trend of coastal states seeking to extend their maritime jurisdictions up to 200 nautical miles. Korea became the first challenger, with the declaration of the ‘Presidential Proclamation of Sovereignty over the Adjacent Sea,’ which is also known as the Peace Line.3 Under the Proclamation, Korea extended its fishery jurisdiction over a zone approximately 20 to 200 nautical miles from the coast. (see Map 7.2) The primary purpose of the Peace Line was to protect Korea’s offshore fishery resources from over-exploitation by Japanese fishing fleets4 equipped with advanced fishing gear and technologies. The Peace Line was a new maritime borderline on the Korean Peninsula after the 1945 MacArthur Line5 was 3 4 5

3 Suk Kyoon Kim, ‘Understanding Maritime Disputes in Northeast Asia: Issue and Nature,’ 23 INT. J. Marine and Coastal Law, 242 (2008). In January 1952, South Korea unilaterally issued the ‘Republic of Korea Presidential Proclamation of Sovereignty over Adjacent Seas,’ called the ‘Peace Line’ (also known as the ‘Syngman Rhee Line,’ because it was proclaimed by South Korean President Syngman Rhee) to defend sovereignty over the adjacent continental shelf and seas, and to protect natural resources. The delimitation line connects straight lines along the coast of the Korean Peninsula all the way from the east coast to the west coast. For details on the Peace Line, see Chi-young Pak, ‘International Straits of the World,’ 10 THE KOREAN STRAITS 16–19 (1988), available at http://books.google.co.kr/books?id=tP8gDM ZRzZAC&printsec=frontcover&hl=ko&source=gbs_atb#v=onepage&q&f=false;Hee-Kwon Park, ‘The Law of the Sea and Northeast Asia: A Challenge for Cooperation,’ Kluwer Law International (2000). 4 Choon-ho, Park, ‘East Asia and the Law of the Sea,’ Seoul National University Press, 1983: The declaration was supplemented by the Fishery Resources Law of 1954, whereby fishing within the delimited zone was placed under regulation by the Korean government. All Japanese fishing vessels found operating within the line were seized by Korean coastal patrols and their catches were confiscated, and the crew jailed after trial under Korean law. 5 The MacArthur Line was a fishery restriction line imposed by Commander MacArthur of the Allied Forces in Japan. The line was issued in September 1945 upon the surrender of Japan as a scheme to restrict the over-exploitation of fishery resources and bring order to the Pacific. In accordance with the line, Japanese were restricted to fish in adjacent waters of its t­ erritory.

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­abolished on 25 April 1952 as a result of the 1951 San Francisco Peace Treaty.6 The Peace Line effectively regulated the Japanese fishing activities close to the east coast of the Korean Peninsula and helped avoid fishery disputes caused by the annual seizure of Japanese fishing vessels and fishermen.7 This fishery regime was replaced by a fishery agreement between Korea and Japan in 1965, followed by a new fishery agreement in 1998.8 Korea concluded fishery agreements with Russia in 1991 and China in 2000, respectively.9 China also signed a fishery agreement with Japan in 1955, which was finally revised in 199710 and then allegedly with North Korea.11 Meanwhile, Japan made fishery agreements with the former Soviet Union and North Korea in 1977.12 The Russo-Japanese Fishery Agreement was revised in 1998. The salient feature of the fishery agreements is that, except for the one between North Korea and Russia, they are provisional arrangements to regulate fishing activities and to protect fishery resources in a cooperative manner, pending the resolution of maritime boundary delimitation.13 6 7 8 9 10 11 12 13



6 7

8 9 10 11

12

13

Although the Korean government was not a party to the line, it took the opportunity to protect its fishery resources by seizing Japanese fishing vessels crossing the western limit of the MacArthur Line in the East Sea. Min-Gyo Koo, ‘Island Disputes and Maritime Regime Building in East Asia: Between a Rock and a Hard Place,’ Springer, 2009, p. 70. Choon-ho Park, (n 4), p. 65. There had been seizures of Japanese fishing vessels by China since 1948, by Korea since 1947, and Russia since 1946, when they were found violating the MacArthur Line or the territorial seas of the coastal states. Between 1947 and 1964, Korea seized 3,929 Japanese fishermen and 327 vessels. China seized 227 Japanese vessels, including 31 by the Nationalist Regime during 1948–1949, and by Russia of 1,114 vessels up to 1964. Joon-Suk Kang, ‘The United Nations Convention on the Law of the Sea and Fishery Relations between Korea, Japan and China,’ 27 Marine Policy, 2003, pp. 116–119. Id. pp. 119–120. Id. pp. 121–122. According to officials from the Ministry of Foreign Affairs & the Ministry of Agriculture and Fisheries of Korea, North Korea and the p.r.c do not have any fishery agreement to regulate fishing activities. It is known that Chinese fishing in North Korean waters are managed by contracts in the private sector. See ‘Implication of Coastal Jurisdiction for the Management and Development of World Fisheries in the Northwest Pacific Region’ in Choon-ho Park, Management of World Fisheries: Implication of Extended Coastal States Jurisdiction, pp.174–184 (1984), available at http://books.google.co.kr/books?id=30-nT7S5nOcC&printsec=frontcover&hl=ko#v=one page&q&f=false. Suk Kyoon Kim, (n 3), p. 243.

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Map 7.1

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Fishery agreements in Northeast Asia Source: International Journal of Marine and Coastal Law (2017)

After Northeast Asian countries ratified the u.n. Convention on the Law of the Sea (unclos), which granted coastal states to declare up to 200 nautical miles of the eez, they were required to take an initiative for bilateral fishery agreements. Fishery Regimes in the Yellow Sea There was no regulatory fishery regime in the Yellow Sea between China and Korea until they signed the first fishery agreement in August 2000. Before then, the 1975 Sino-Japan Fishery Agreement regulated their fishery affairs in

Fishery Regimes and Illegal Fishing in the Yellow Sea

Map 7.2

123

Korea’s self-restraint fishery line in the East China Sea & China’s fishery zone Source: Jong-hwa Choi, supra note 14

the Yellow Sea and the East China Sea. The Korean government unilaterally established a self-restraint fishery line 30 nautical miles east of the Chinese fishery zone in the East China Sea under the China–Japan Fishery Agreement (see Map 7.2). At the time, Korean fishing vessels were forbidden from crossing the line.14 The self-restraint fishery line was adjusted back and forth in accordance with the revisions of the Sino-Japanese fishery agreements in 1979 and 1989. The growing need for expanded Korean fishery zones contributed to these adjustments. Finally in June 1992, the self-restraint line was settled to be identical 14

14

Jong-Hwa Choi, ‘Development of Korea-p.r.c Fishery Relations and Establishment of Mutual Fisheries Cooperation System’ (available only in Korean), 2002, p. 21 available at http://report.ndsl.kr/repDetail.do?cn=TRKO200300002628.

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to the Sino-Japan fishery line.15 The self-restraint line was faithfully observed by Korean fishermen and it prevented Korean fishing boats from being seized by China. In the period between 1992 and 1997, only 14 Korean fishing boats were seized by China.16 Conversely, Chinese fishermen continued to violate the fishery line. The current illegal fishing originated from China’s open-door policy in the late 1970s.17 At the time, Chinese fishing vessels, which had mostly operated in the offshore coastal waters, expanded their fishing activities into Korean waters. In December 1989, accordingly, the National Federation of Fisheries Cooperatives of Korea and the Yellow and East Sea Fisheries Association of China signed a non-governmental agreement which covers mostly humanitarian activities, such as assistance to persons and vessels in distress, safety of fishing operations, and responses to accidents at sea.18 Along with growing concern about the depletion of fishery resources by Chinese fishing activities in Korean territorial waters, the ratification of the unclos and the subsequent declarations of the eezs, both countries were engaged in negotiations for a formal fishery agreement. In 1996, Korea and China held separate talks on the eez delimitation and fisheries. The negotiation process was, however, very complicated mainly due to different positions on the principle of the maritime boundary delimitation.19 As in the 1997 Sino-Japan Fisheries Agreement, China and Korea, eventually adopted a practical way out: They negotiated only fishery affairs, sidestepping the sensitive issue of the eez delimitation. The Korea–China Fishery Agreement After seven years of lengthy negotiations, China and Korea signed the Korea– China Fishery Agreement in Beijing in August 2000.20 Table 7.1 shows critical provisions of the fishery agreement. 15 16 17 18 19 20

15

Young-Koo Kim, ‘Korea and International Law of the Sea’ (available only in Korean), 21st Century Book, 2004, pp. 461–462. 16 Id. 17 Id. pp. 460–462. 18 Jong-Hwa Choi, ‘Modern International Law of the Sea’ (available only in Korean), Doo Nam, 2004, p. 354. 19 Hee-Kwon Park, supra note 3. Korea argues that the maritime boundary with China in the Yellow Sea should be drawn by an equidistance line. On the other hand, China claims for the principle of natural prolongation of land territory and equitable solution. 20 The Agreement entered into force on 30 June 2001. See the Korea–China Fishery Agreement, South Korea-p.r.c., 3 August 2000, available at http://www.mofat.go.kr/incboard/ faimsif/treaty_popup.jsp?ITEM_ID=A66776D9510913AF4925693400048369&ITEM _PARENT_ID=6BFD37BF0EF4146449256932000A2D46 (available only in Korean).

Fishery Regimes and Illegal Fishing in the Yellow Sea Table 7.1

Article Art. 2 & 3

125

Critical provisions of the Korea–China fishery agreement

Provision

Each contracting party shall permit the national and fishing vessels of the other contracting party to fish within its own eez. Each contracting party shall determine every year the operational conditions for the national and fishing vessels of the other party, including the species to harvest, quotas of catch, fishing period, and zones. Art.5(2) & (3) The seized or detained vessels and their crews shall be promptly released upon the posting of appropriate bond or other security. Each contracting party shall immediately notify the other party of action taken and of any imposed punishment. Art. 7 The Provisional Measures Zone and the Transitional Zones are established in the overlapping boundary claim zones of China and Korea (see Map 7.1). The Provisional Measures Zone (pmz), polygon-shaped and located in between the eezs of the two countries, is a co-management zone of marine resources as well as a provisional arrangement, pending the final delimitation of the maritime boundary. In the pmz, situated between the parallel of 37°00′ N and its southern limit on the parallel of 32°11′ N, the principle of flag-state is applied to the jurisdiction of law enforcement. Thus, China and Korea are allowed to exercise the jurisdiction of law enforcement over only their own national and fishing vessels, respectively. China and Japan also take conservation measures of marine living resources, subject to the decisions of the China–Korea Joint Fishery Committee. For the national and fishing vessels of the other party, they can exercise law enforcement to a limited extent, when they find the other nation’s fishing vessel violating the decisions made by the committee. Art. 8 The Transitional Zones, designed as a buffer zone, with the width of 20–30 miles, are incorporated into the two countries’ eezs after a four-year joint management period. In the Transitional Zones, which are somewhere between the pmz and the eez in terms of the fishery resource management method, the national and fishing vessels of the contracting party are allowed to fish under the joint surveillance of the contracting parties.

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Table 7.1

Critical provisions of the Korea–China fishery agreement (cont.)

Article

Provision

Art. 13

The China–Korea Joint Fishery Committee is established to facilitate the implementation of the agreement. The committee is responsible for carrying out the following functions: (i) ‘consultation and recommendation’ on matters relating to: the species allowed to harvest and quotas of catch; maintenance of and order of fishing operations; matters on the status and conservation of marine resources; matters on fisheries cooperation between both states (ii) ‘recommendation’ on matters relating to the amendment of the annexes, when it is deemed necessary (iii) ‘consultation and decision’ on matters relating to the Provisional Measures Zones and the Transitional Zones. Nothing in the agreement shall be deemed to prejudice the position of the contracting party concerning the law of sea issues. The provision makes it clear that the scope of the agreement relates to only fishery matters of the two countries, not affecting the two countries’ positions on some impeding maritime issues such as straight baseline, the delimitation of eez, and continental shelf.

Art. 14

Source: Ministry of Foreign Affairs and Trade (mofat) of Korea, available at http://www.mofat.go.kr (Compiled by the author).

Despite the broad coverage of fishery matters between the two countries, the Korea–China Fishery Agreement has a few deficiencies. First, a legal ­vacuum can happen in some parts of China and Korea’s eezs when law enforcement is exercised on fishing. In the areas above the parallel of 37°00′ N and below the parallel of 32°11′ N (see Map 7.3), Korea and China decided to maintain the current practices of fishing activities unless agreed otherwise. They do not apply their laws and regulations on fisheries to the national and fishing vessels of the other party.21 Instead, both countries agreed to pay due regard to laws and regulations of the other party by a Note of Understanding.22 21 22

21 22

China–Korea Fishery Agreement Art. 9. See the official Web site of the Ministry for Food, Agriculture, Forestry and Fisheries, available at http://www.mifaff.go.kr/main.jsp.

Fishery Regimes and Illegal Fishing in the Yellow Sea

Map 7.3

127

Various zones regulated under the Korea–China fishery agreement Source: SunPyoKim, Maritime Delimitation and Provisional ­A rrangement in Northeast Asia (2004). (Modified by author)

A difficult problem with the fishing activities at a tri-junction where the boundary claims of China, Japan, and Korea overlap could arise in law enforcement due to the complicated boundary delimitation. As a result, in the area below 32°11′ N (see Area B in Map 7.3) in the East China Sea where the area of current fishing practices under the Korea–China Fishery Agreement overlap with some parts of the provisional measures zone under the China–Japan Fishery Agreement, operational disputes over the jurisdiction of law enforcement could arise if China and Japan exercise law enforcement on Korean fishing vessels operating in the overlapping waters. Regarding the area above 37°00′ N, which is left out of coverage of the fishery agreement, Korea and China might have considered the strained situation off the Northern Limit Line (nll) (see Area A in Map 7.3) and the status of the five West Islands.23 Second, there is no dispute settlement provision in the agreement, while the 1998 Korea–Japan Fishery Agreement explicitly provides dispute settlement process.24 In the case of dispute, general principles of international law would be invoked. As both China and Korea are parties to the unclos, they need to comply with dispute settlement process provided for in the unclos, under 23 24

23

24

For the details of the status of nll, see Suk Kyoon Kim, ‘Korean Peninsula Maritime Issues,’ 41 OCEAN DEV. & INT’LL.171–173 (2009). See also, J. Van Dyke et al., The North–south Korea Boundary Dispute in the Yellow (West) Sea, 27 MARINE POL’Y 143–144 (2003). The Korea–Japan Fishery Agreement art. 13.

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which a dispute is referred to the court or tribunal unless settled by the accord of the two countries or conciliation procedures in accordance with the unclos.25 A fishery dispute between the two countries, however, is not referred to compulsory procedures unless agreed-upon by Korea and China, even if no settlement is reached by means of agreement or conciliation. It is because both countries declared not to accept the compulsory procedures for disputes concerning law enforcement activities in accordance with Article 298 of the unclos.26 Given this disclaimer, it is not clear which procedure should be followed when a fishery dispute is not settled by agreement. iii

Domestic Legislation Governing Fisheries and Enforcement Authorities

Fisheries Legislation Table 7.2 shows major domestic laws and regulations concerning the fisheries in Korea and China. Table 7.2 Fisheries-related legislations in Korea and China

Subject

Korea

China

Territorial Sea

Territorial Sea and Contiguous Zone Act (1977) Exclusive Economic Zone Act (1996) Law on the Exercise of Sovereign Rights on Foreign ­Fisheries Activities in the ­Exclusive Economic Zone (1996) Fisheries Act (2009)

Law on the Territorial Sea and the ­Contiguous Zone (1992)

eez Foreign Fisheries

Domestic Fisheries

Exclusive Economic Zone and ­Continental Shelf Act (1998) Interim Regulation on the Management of Fishing Activities of Foreigners and Foreign Vessels in the Jurisdictional Sea (1996) Regulation on Fisheries Surveillance in the Exclusive Economic Zone (2005) Fishery Law of the People’s Republic of China (1989)

25 26

25 26

unclos Arts. 280 & 287. On 18 April 2006, the Korean government declared that it does not accept the procedures of compulsory settlement concerning disputes provided for in the Article 298 in the wake of a dispute with Japan over marine research in the vicinity of Dokdo Island.

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Subject

Korea

China

Fishery Resources

Fishery Resources Management Act (2009)

Fishing Vessels

Fishing Vessels Act (1993)

Regulations for Breeding and Protecting the Fishery Resources (1979) Management Measures Regulations on Fisheries Catch Permission (1989) Notification on Establishment of New Summer Moratorium in the East China and Yellow Sea (1998) The State Council’s Command and Additional Regulations on Mechanized Trawler Fishing Closed Area in Bohai Bay, Yellow Sea, and East China Sea Fishing Vessel Registration Regulation (1996) Fishing Vessels Inspection Regulation (2003)

Source: fao Country Profile Fact Sheets

Korea manages foreign fishing activities in its eez solely by the Law on the Exercise of Sovereign Rights on Foreign Fishery Activities in the Exclusive Economic Zone (hereinafter ‘eez Fisheries Law’), unless agreed otherwise with foreign countries.27 On the other hand, China governs fishing activities mostly by government regulations proclaimed by the Ministry of Agriculture. Whereas the Chinese fishery regulations can be easily modified to the changing legal environment, it is difficult for foreigners to have access to and predict China’s fishery regimes. Law Enforcement Authorities China has two levels of fishery administration. The Bureau of Fisheries at the Ministry of Agriculture (渔 政 局 ) is the central and supervisory organization. At each provincial or municipal level, local fisheries authorities are operating as basic institutions. The fisheries administrations of each level are responsible for the implementation of the fisheries laws and regulations.28 In Korea, the Office of Fisheries Policy at the Ministry of Oceans and Fisheries (mof) is responsible for planning and implementing fisheries policies 27 28

27 The eez Fisheries Law Art. 3. 28 See fao Country Profile fact sheets, p.r.c., available at http://www.fao.org/fishery/ countrysector/FI-CP_CN/en.

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and the management of marine fisheries activities at the national level. At the regional level, the regional commands of the kcg and the Fisheries Supervision Office of the mof deal with the conservation of marine resources and law enforcement activities on illegal fisheries.29 The Central, West and Jeju Regional Commands of the Korea Coast Guard (kcg) and the West Fisheries Supervision Office are the competent agencies to fight illegal fishing in the Yellow and East China Seas. iv

Illegal Fishing in the Yellow Sea

Overview Over the past 14 years, a total of 6,036 Chinese fishing vessels were seized for illegal fishing in Korean waters. As shown at Table 7.3, each year on average Table 7.3 Number of Chinese fishing boats and crews seized by Korea

Year

Vessel

Crewmen

Bond (usd million)

2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 Total

568 341 485 467 534 370 381 432 494 522 584 443 240 175 6,036

6,649(*114) 4,104(75) 5,330(183) 4,745(173) 5,675(72) 3,664(56) 3,537(130) 4,390(109) 4,650(246) 5,156(218) 5,659(167) 3,993(188) 1,630(151) 1,714(67) 60,986(1,949)

24 17 20.3 15.5 13 6.9 4.9 5.6 4.3 4.8 4.4 3.5 1.6 2.2 128

Source: Korea Coast Guard Note: *Number of Chinese fishermen imprisoned. 29

29

See Korea Coast Guard, available at http://www.kcg.go.kr; West Fisheries Supervision ­ ffice, available at http://westship.mifaff.go.kr. O

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more than 430 Chinese fishing vessels were seized in Korean waters on the charge of illegal fishing. The number of Chinese fishing boats and crews seized by Korea may well indicate the prevalence and seriousness of illegal Chinese fishing in the Yellow Sea. According to the kcg, during the same period, only two Korean fishing vessels were seized by Chinese authorities in violation of Chinese fishery laws.30 The issue of illegal fishing by Chinese vessels in the Yellow Sea becomes more evident when compared with illegal Chinese fishing in Japanese waters. As Table 7.4 shows, in the period between 2010 and 2015, only 17 Chinese fishing vessels were seized in the Japanese waters.31 This contrast is even more striking given that Northeast Asian countries share fishery resources in narrow semi-enclosed seas. Thus, the large gap in the number of seized Chinese fishing boats between Korea and Japan might be indicative of the illegal Chinese fishing problem in the Yellow sea. The Japanese Fisheries Agency explains that Chinese fishing in the Japa­ nese waters of the East China Sea is much less serious than fishing in the Korean waters, because Chinese fishing vessels mostly operate in the joint fishing zone (called the Japan–China Provisional Zone). The long navigational distance from the coast of China is a contributing factor that discourages Chinese fishermen from venturing into Japanese waters.32 It is interesting to note that the number of Chinese fishing vessels seized in Korean waters has sharply ­increased since 2001 (on average, only 43 vessels were seized in the 1990s). Table 7.4 Number of foreign fishing boats seized by Japan

Korea China Taiwan Total

2010 2011

2012 2013 2014 2015

13 1 5 19

11 2 4 11

11 – 1 12

9 6 4 19

7 5 2 14

6 3 3 12

Source: Japan Fisheries Agency, White Paper 2015

30 31 32

30 31 32

See the Korea Coast Guard White Paper 2011 (available only in Korean), p. 214. Japan Fisheries Agency, White Paper 2015, available at http://www.jfa.maff.go.jp/j/kikaku/ wpaper/H27/pdf/27suisan-hyoushi-mokuji.pdf. Ibid., available at http://www.jfa.maff.go.jp/j/kanri/torishimari/torishimari.html.

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­ hinese fishing a­ ctivities, in the absence of fishing regulations, were regulated C only in Korean territorial waters until the Korea–China Fishery Agreement entered into force in 2001.33 Under the Korea–China Fishery Agreement, Chinese fishing vessels which had operated in the Korean eez came under the jurisdiction of Korea.34 Chinese fishing vessels seized by Korean law enforcement agencies had been in decline since 2005. During this period, the Korean government employed tougher measures against illegal fishing, which included greater policing, stricter law enforcement, heavier fines, and imprisonment of crews. On the other hand, it cut down annual Chinese fishing quotas in the Korean eez from 2,174 vessels (in 2005) to 1,700 (in 2011).35 However, this does not necessarily indicate the alleviation of the illegal fishing problem itself. As illustrated in Table  7.3, the number of seized Chinese fishing vessels jumped in 2011 and 2015 from previous years. This might indicate that the status of illegal fishing itself has not changed. Instead, the number of seized Chinese fishing boats has varied with changes in law enforcement. Each day approximately 2,000 to 3,000 Chinese fishing vessels are operating in the Provisional Measures Zone, the joint fishing area off the Korean eez under the fishery agreement. Hundreds of those, mostly unlicensed or undocumented for fishing activities in the Korean eez, attempt cross-border fishing in the Korean waters at night, particularly when the weather is bad.36 Violent Resistance to Law Enforcement A particular concern is that Chinese fishermen violently resist law enforcement operations to escape arrest and fines. For example, Chinese fishermen often chain themselves to each other together when they are chased. (see left side of Photo 7.1) Furthermore, when coast guard officers try to board a suspected fishing vessel, Chinese crewmen on board often violently resist by wielding axes, shovels, and steel pipes, or by throwing iron balls (see Photo 7.2). Chinese fishing boats are also armed with steel fences and spears to deter officers from boarding. If a target vessel is seized by coast guard, other vessels from the same fleet operating in the vicinity encircle the target vessel and use collective force to save 33 34 35 36

33 See Korea Coast Guard White Paper 2004, pp. 39–40 (2004). 34 Id. 35 See The Report of the 10th Korea–China Joint Fishery Committee in 2010, available at http://www.mifaff.go.kr. 36 The Korea Coast Guard White Paper 2011,(n 31), pp. 29–35.

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Photo 7.1 Chinese fishing vessels, which are chained together to avoid seizure Source: Compiled by author from Korea Coast Guard

Photo 7.2 Chinese fishermen resist with weapons as coast guard officers try to board Source: Compiled by author from the photos taken by KOREA coast guard

the target vessel from coast guard. Many coast guard officers were seriously injured or even killed during the crackdowns (see Table 7.5). The Chinese crewmen who violently resist law enforcement are charged with the ‘obstruction of enforcement.’37 Chinese fishermen’s violent resistance also causes serious injuries to themselves. For example on 18 December 2010, a Chinese fisherman drowned and another disappeared when their boat sank after ramming

37

37

Criminal Law of Korea Art. 136. It reads: ‘A person who uses violence or intimidation against a public official engaged in the performance of his duties shall be punished by imprisonment for not more than five years, or fine not exceeding ten million won (approximately 8,850 usd).’

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into a coast guard ship in an attempt to save their colleagues from seizure.38 Additionally, on 16 November 2012, a violent Chinese fisherman was killed by a rubber bullet fired by a coast guard officer during a crackdown on illegal fishing in the Yellow Sea.39 As clashes are increasingly becoming violent, it sometimes escalates into a diplomatic issue. China delivered a concern about ‘an excessive law enforcement [response] on a minor violation,’ which, they argue, happened on 17 January 2012, during a crackdown on a suspected Chinese fishing vessel by coast guard officers in the Korean eez south of Jeju Island.40 Illegal Fishing in the nll More problematic is that Chinese fishing boats fish in the waters off the ­Northern Limit Line (nll), taking advantage of the ongoing military tensions Table 7.5 Status of victims of violent resistance and imprisonment

Year

15 14 13 12 11 10 09

Occurrence

4 1 10 7 4 5 2

Victim (coast guard officers) Dead

Injured

– – – – 141 – –

4 10 20 8 7 14

Imprisonment (Chinese crewmen)

20 5 67 52 22 2 5

38 39 40 41

38

39 40

41

See ‘Chinese Fishing Boat Poaching in Korean Waters Capsizes,’ KOREA TIMES, 19 December 2010, available at http://www.koreatimes.co.kr/www/news/nation/2011/01/113_78245 .html. See also ‘Permanent Ban Sought on Illegal Fishing,’ KOREA TIMES, 19 October 2012, available at http://www.koreatimes.co.kr/www/news/nation/2012/10/117_122615.html. Jingya Zhang, ‘Spokesman: China Hopes rok Will Enforce Laws in Civilized Way,’ XINHUANET, 4 May 2012, available at http://news.xinhuanet.com/english/video/201205/04/c_131568065.htm. In December 2011, a coast guard officer was stabbed to death during a crackdown by a captain of an illegal Chinese fishing vessel west of the Prohibited Area in the vicinity of the Northern Limit Line.

Fishery Regimes and Illegal Fishing in the Yellow Sea

Year

08 07 06 05 04 03 2002 Total

Occurrence

6 2 6 4 1 1 2 55

Victim (coast guard officers) Dead

Injured

142 – – – – – – 2

10 2 7 4 2 1 6 95

135

Imprisonment (Chinese crewmen)

18 13 29 9 2 1 2 246

Source: Korea Coast Guard

between the South and the North. Each year hundreds of Chinese fishing boats in the blue crab season between March and August frequently cross the nll to fish in the waters of South Korea. They are fishing illegally, given that the 1,600 Chinese fishing boats licensed from Korea are allowed to fish only in the Korean eez under the China–Korea Fishery Agreement. In addition, foreigners are prohibited from fishing in the waters off the nll under the Korean eez Fisheries Law. Chinese fishing boats, which straddle the narrow waters adjacent to the nll, add complexity to the enforcement of security measures and escalate military tension in the volatile waters. Chinese fishing boats come to fish close to the coasts of the five West Islands, threatening the livelihood of the islanders. Notably, Chinese fishing is blamed for a sharp decline in blue crab catches, which fell by one third in the 2016 blue crab season in the waters off the Five West Islands. Despite widespread illegal Chinese fishing off the nll, operations to combat illegal fishing boats are carried out in a very restricted manner in a highly sensitive military area. Coast guard officers need to have permission from the navy to be engaged in a crackdown on Chinese fishing boats in the waters between the No Fishing Line and the nll (see Figure  2.1). In this volatile 42

42

On 25 September 2008, a Korean coast guard officer drowned after being hit by a Chinese fisherman wielding an iron stick when the coast guard officer was trying to get on board with his colleagues to seize an illegal Chinese fishing vessel.

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Table 7.6 Number of Chinese fishing boats seized in the waters off the nll

2010

2011

2012

2013

2014

2015

43

30

42

40

25

25

Source: compiled by author from the material of Korea Coast Guard

situation, Chinese fishing boats have become a source of military tension in the nll (see Table 7.6). Another complicating factor is North Korea’s involvement in China’s illegal fishing activities across the nll. The National Intelligence Service of Korea reported to the National Assembly that North Korea has sold fishing rights for $30 million to 1,500 Chinese fishing boats.43 The number of the Chinese fishing boats that bought fishing rights in 2016 is three times bigger than in 2014 and 2015, which were between 400~800. According to a report from the National Intelligence Service, ‘North Korea’s excessive selling of its fishing rights is a result of un sanctions on North Korea. North Korea, which has been under tough un sanctions in the wake of nuclear development, has sold fishing rights to Chinese fishing boats to earn dollars.’44 ‘North Korea has sold rights to catch squid in the East Sea and fish in the nll, even in the waters south of the nll. This explains why Chinese fishing boats promptly escape to the north of the nll when they are chased in the waters south of the nll.’45 Remarkably, Chinese fishing boats’ trespassing into the neutral waters of the Han River Estuary in 2016 has jumped to 520 times by May 2016, from 120 times in 2015.46 The neutral waters, established in 1956, are an extension of the Demilitarized Zone on land that extends to the river to prevent accidental armed conflicts. As they pose a threat to security, the military police, composed of navy, marine corps, and coast guard, in consultation with the United Nations Command (unc), which controls the neutral area, were engaged in operations to crack down on the Chinese fishing boats. It was the first joint o­ peration in 43 44 45 46

43 44 45 46

Joong Ang Ilbo, ‘North Korea Earns $30 million by Selling Fishing Rights to 1,500 Chinese Fishing Boats,’ on 2 July 2016. Ibid. Ibid. Chosun Ilbo, ‘North Korean Waters Are Fishing Grounds for Chinese Fishing Boats,’ on 7 July 2016.

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the neutral waters to combat illegal foreign fishing since 1953 when the Korean War ended.47 Punishment When Chinese fishing boats are seized and fishermen are arrested in violation of the eez Fisheries Law, the Korean authorities have promptly released the arrested or detained vessels and crews upon the posting of appropriate bond or other security in accordance with the China–Korea Fishery Agreement.48 Under the agreement, Korean authorities shall immediately notify their Chinese counterparts through diplomatic channels when they seize or detain Chinese fishing boats and fishermen.49 The eez Fisheries Law stipulates only the maximum amount of fine imposed on the vessels in violation of the law, which is less than 200 million won (approximately usd 177,780). As part of measures to combat increasing illegal Chinese fishing in the Yellow Sea, the Korean government has decided to hand over to China the seized Chinese fishing boats, although they pay fines. The measure is aimed at discouraging illegal fishing by a double punishment back to China.50 China imposes a ban on fishing and abolishes fuel subsides for the fishing boats handed over from Korea.51 The amount of fines imposed varies on the types of violation, ranging from unlicensed fishing to the violation of operation conditions. The ceilings of the fines were determined on a reciprocal basis with neighbor countries, with slight variations (see Table 7.7). Those who cannot afford to pay fine face ­criminal charges, while their catches are confiscated. The Korean government increased the ceilings of the fines in 2006 in order to discourage Chinese illegal fishing in its waters.52 In the wake of a coast guard officer’s death during a crackdown, the Korean government amended the eez Fisheries Law to increase the maximum amount of the fine to up to 200 m ­ illion 47 48 49 50 51 52

47 48 49 50 51 52

Yonhap News, ‘Military Police in the Neutral Waters at the Estuary of the Han River,’ on 13 June 2016. China–Korea Fishery Agreement Art. 5(2); See also unclos Art. 73(1). Ibid., Art. 5(3). Asia Kyengje, ‘Illegal Chinese Fishing Boats Double Punished by Chinese Law’ on 29 June 2016. According to the Fishery Act and Administrative Penalty Regulation of China, fishermen who violate the law of other countries shall be punished. After the Korea–China Fishery Agreement entered into force in 2001, the Korean government, for the first time, amended the eez Fisheries Law to increase the amount of fines to be imposed on illegal Chinese fishermen.

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Table 7.7 Fines imposed on vessels in violation of eez fisheries-related laws by country (u.s. $)

Types of Violation

Korea

China

Larger 80 – than 80t 50t Unlicensed/ 44,350 Fishery activities in the prohibited area /Violation of no-fishery order Transfer of catch 44,350 Violation • Area of fishing 26,610 of operation operation/fishing conditions method and gear • Size of fishing nets 26,610 • Chronology of fish- 8,870 ing activities • List of crews 8,870 Not carrying license 1,770

Japan

Smaller No size Larger Smallthan 50t distinction than er than 30t 30t

35,480 26,610 53,220

35,480 17,740

35,480 26,610 26,610 17,740 13,300 39,910

35,480 17,740 17,740 8,870

17,740 13,300 6,650 4,430 2,660 6,650

17,740 8,870 4,430 2,220

4,430 2,660 1,330 886

4,430 2,220 886 440

6,650 Non

Source: White Paper of Korea Coast Guard 2011 (Compiled by author)

won (approximately usd $177,780) and confiscates the catches even when fines are paid. Contributing Factors to Illegal Chinese Fishing in the Yellow Sea A number of factors contribute to unchecked illegal Chinese fishing in the ­Yellow Sea.53 First, the depletion of fish stocks in Chinese coastal waters due to the degradation of the marine environment is a principle factor. The coastal waters of eastern and northern China are polluted by pollutants discharged from coastal areas that have experienced rapid industrialization and population growth over recent decades.54 As a result, Chinese fishermen attempt to fish in Korean waters, in which fishery resources are richer. 53 54

53 The Korea Coast Guard White Paper 2011, (n 31), pp. 30–31. 54 Id.

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Along with efforts to preserve the marine environment, the Korean government has made a great deal of efforts to address overcapacity of fishing boats, which was considered a principle cause of the over-exploitation of fishery resources in the coastal waters. The Korean government cut down 1,929 marine fishing boats, spending nearly $719 million between 1995 and 2004.55 Faced with a decline in fishery resources as well as reduced economic benefits in fisheries, the government implemented another fishing boat reduction program, with a goal of cutting down 1,280 vessels by 2010, starting in 2007.56 According to statistics from the Ministry of Oceans and Fisheries, the number of motorized marine fishing boats in Korea in 2015 stood at 67,191. A total of 20,000 fishing boats were cut down from 87,554 in 2005.57 Second, fishery resources in Chinese coastal waters have been over-exploited due to the overcapacity of fishing boats. The statistics of the u.n. Food and Agriculture Organization (fao) shows that as of 2012, there are 193,327 motorized marine fishing boats and 3.32 million traditional fishermen in China, the largest number of fishing boats and fishermen in the world.58 In February 2006, the Chinese government released the ‘Program of Action on Conservation of Living Aquatic Resources of China’ in order to trim the motorized marine fishing fleet from 279,937 vessels in 2004 to 190,000 vessels by 2010.59 The gap may indicate that approximately 80,000 fishing boats were culled over the past decade in China. This information does not tell the whole story, however, given that illegal fishing in the Yellow Sea has remained unchanged, despite enormous fishing boat reduction in China. In order to address overcapacity of fishing boats, the Chinese government has engaged in cutting down the number of fishing vessels and relocating fishermen away from marine capture fisheries. For example, the government had spent nearly usd $100 million by 2004 and scrapped nearly 8,000 vessels and relocated more than 40,000 fishermen.60 These efforts have resulted in a ­tremendous decrease in fishing boats, as noted in the statistics of fao. 55 56 57 58 59 60

55

The Ministry for Food, Agriculture, Forestry and Fisheries, supra note 22, available at http://www.mifaff.go.kr/main.jsp. 56 Id. 57 Ministry of Oceans and Fisheries, available at http://www.mof.go.kr/content/view .do?menuKey=394&contentKey=47 http://www.fao.org/docrep/013/i1820e/i1820e00.htm. 58 See The State of World Fisheries and Aquaculture 2014, fao, available http://www.fao .org/3/a-i3720e.pdf See also Fishery and Aquaculture Country Profiles: China, available at http://www.fao .org/fishery/countrysector/FI-CP_CN/en. 59 See fao Country Profile fact sheets, China, available at http://www.fao.org/fishery/ countrysector/FI-CP_CN/en. 60 Id.

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The Chinese government has imposed a ‘hot season moratorium’61 in the Yellow Sea and the East China Sea, which covers 120,000 fishing boats and 1 million fishermen each year62 from 16 June to 1 September in the waters north of 35° N in the Yellow Sea and the East China Sea. In accordance with the ‘hot season moratorium,’ trawling and sailing stake net fishing are allowed, but gillnet, hook-and-line and entrapment are banned during that season.63 Third, the relatively short navigational distance from Chinese coasts to Korean fishing grounds might be part of the attraction of fishing in Korean waters. Because Korean fishing grounds are close to the northern coast of China, Chinese fishermen can easily access them and swiftly transport their catches back home.64 According to the Korea Coast Guard, 85% of the seized Chinese fishing vessels between 2005 and 2011 were either from Shandong or Liaoning Province, situated across the Korean Peninsula.65 Fourth, rapidly growing seafood demands in China are also a contributing factor. The fao data shows that China’s domestic consumption of fish and fishery products per capita has rapidly increased, from less than 5 kg in the 1970s to 25.8 kg in 2010.66 The Chinese Statistical Book indicates even a greater per capita consumption of fish and fishery products, from 10.9 kg in 1990 to 37.0 kg in 2008.67 China is the largest marine capture fisheries country as well as the largest seafood importer, followed by the u.s. and Japan.68 As China’s seafood demands are expected to be higher, this would become a contributing factor to sustain illegal fishing in the Yellow Sea. Finally, a long-held tradition of fishing in the coastal waters of the Korean Peninsula may be another factor. Chinese fishermen had not been regulated for their fishing in the Korean waters until Korea’s eez was declared in 1996. Most of these Chinese fishermen, who are not well educated, are not aware of the complicated fishery regimes in place in the Yellow Sea, including the eez. As a result, they tend to fish in accordance with past practices. 61 62 63 64 65 66 67 68

61

Id. The hot season moratorium is a self-restraint measure imposed by China, which bans fishing in the Yellow Sea in the period between June and August to protect fishery resources. 62 Id. 63 Id. 64 Korea Coast Guard White Paper 2004 39–40 (2004), (n 34). 65 The rest of those are from the Zhejiang Province (nearly 8%) and others (nearly 7%). 66 See fao Aquaculture Newsletter No. 45, available at http://www.fao.org/docrep/012/ al363e/al363e00.htm. 67 The Korea Coast Guard White Paper 2011 (available only in Korean), supra note 31, at 31. 68 fao, ‘the Status of World Fisheries and Aquaculture 2014,’ available at http://www.fao .org/3/a-i3720e.pdf.

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International and Legal Aspects of Illegal Fishing in the Yellow Sea

Illegal Fishing in Relations between China and Korea The issue of illegal fishing in the Yellow Sea has emerged as a challenge for further cooperation between Korea and China. Since 1992, when Korea and China established diplomatic ties, their relationship has rapidly developed into a ‘strategic partnership of cooperation.’69 China has become the largest trading partner of Korea since 2004,70 and Korea is China’s third-largest trading partner after the u.s. and Japan. Moreover, socio-cultural exchanges between the two countries have also greatly increased in a short period. For instance, the number of Chinese tourists to Korea has increased tenfold since 1998.71 Nonetheless, ever-increasing illegal Chinese fishing in the Yellow Sea negatively affects friendly relations between these two countries. When a coast guard officer was killed in December 2011, Koreans called for the ­government to conduct tougher law enforcement and to allow the use of firearms to ­combat violent acts of Chinese fishermen. An influential Korean newspaper even opined that ‘strong reprisal is the best deterrent.’72 On the other hand, some Chinese accused the Korean authorities of bullying behavior.73 ­Fortunately, the government of China expressed regret over the death of the Korean coast guard officer.74 In the summit with Korean President Lee Myung-bak on 9 ­January 2012, Chinese President Hu Jintao assured that: ‘China takes this matter ­seriously and will strengthen the education and management of Chinese fishermen.’75 69 70 71 72 73 74 75

69

See Korea–China Joint Statement, available at http://www.mofat.go.kr/countries/asia pacific/countries/20110804/1_22623.jsp?menu=m_40_10_20#contentAction. 70 Trade volume between China and Korea was $220.3 billion in 2011(export to China: $134.1 billion, import from China $86.2 billion). See Korea’s Ministry of Strategy and Finance, Economic Accomplishments and Prospects of the 20th Anniversary of Korea–China’s Diplomatic Relations, 27 January 2012. 71 Id. 72 See ‘Korea Must Act Firmly over Murder of Cost Guard,’ Chosun Ilbo, 13 December 2011, available at http://english.chosun.com/site/data/html_dir/2011/12/13/2011121301625.html. 73 Choe Sang-hun, ‘Chinese Fisherman Kills South Korean Coast Guardsman,’ New York Times, 12 December, available at http://www.nytimes.com/2011/12/13/world/asia/chinese -fisherman-kills-south-korean-coast-guardsman.html?_r=1&scp=1&sq=chinese%20 fishermen%20kills%20south%20korean%20coast%20guardman&st=cse. 74 See Foreign Ministry Spokesperson Weimin Liu’s Regular Press Conference, 13 December 2011, available at http://www.fmprc.gov.cn/eng/xwfw/s2510/2511/t887527.htm. 75 See ‘President Lee Hopes that China Takes Effective Measures on Illegal Fisheries’ (available only in Korean), YONHAP NEWS, 9 January 2011, available at http://app .yonhapnews.co.kr/YNA/Basic/Article/Print/YIBW_Show Article Print View.aspx? contents_id=AKR20120109195900001.

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They agreed to strengthen cooperation between competent authorities of the two countries to combat illegal fishing.76 In the summit meeting in Beijing in June 2013, Korean President Park Geun-hye and Chinese President Xi Jinping agreed that ‘the two countries will strengthen communication and cooperation between the competent agencies through a cooperation system, e.g., a joint patrol, to protect fishery resources and strengthen the fishery order.’77 The issue of illegal Chinese fishing in the Yellow Sea has emerged as a hot agenda item in maritime boundary negotiations between China and Korea as China argues that Chinese fishing rights in the Yellow Sea need to be assured even after the maritime boundary is delimited. Allegedly, China’s position on Chinese fishing in the Yellow Sea has brought about an impasse in the maritime boundary negotiations. International Legal Issues A number of international legal issues arise in dealing with Chinese illegal fishing. First, a critical issue is the legality and validity of using lethal firearms toward Chinese fishermen who are violently resisting law enforcement activities. Korea coast guard officers are authorized under the Act on the Performance of Duties by Police Officers to use firearms in a limited range of circumstances.78 In addition, a newly enacted law of the Maritime Guard Act grants coast guard officers permission to use firearms under the same limited circumstance as prescribed in the Act on the Performance of Duties by Police Officers. Despite the right to use firearms, coast guard officers are reluctant to use lethal firearms even in a life-threatening violent situation, out of concern that they may have the wrong target or have to take responsibility for potential excessive use of force. In the aftermath of increasing violence against law enforcement ­activities, coast guard officers are given more discretionary power to use firearms on violently resisting Chinese fishermen.79 However, there still remains a key question as to when to use firearms against violently resisting Chinese fishermen, i.e., the principle of proportionality in using firearms against civilians. A related issue in this regard is that, if a coast officer misfires at an innocent fisherman on board, how much responsibility that officer must bear. 76 77 78 79

76 Id. 77 Joint Statement of the summit talks between President Park Guen-hye and Xi Jingping on 27 June 2013. 78 Performance of Police Functions Act Art. 10.4. 79 The Firearm Use Guideline of the Korea Coast Guard.

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Second, another issue is concerned with the level of penalties prescribed in international law. Article 73(3) of the unclos stipulates that: ‘Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of agreements to the contrary by the States concerned, or any other form of corporal punishment.’80 Since penalties for those in violation of fishery laws and regulations are based primarily on the principle of consensus, as reflected in Article 73, a large rate of unilateral increase in the maximum level of fine in the absence of consensus of the countries concerned may not be consistent with the unclos. Also the imprisonment or corporal punishment of crews who pay fines may be inconsistent with the provisions of the China–Korea Fishery Agreement and the unclos.81 Third, some cast doubt on the effectiveness of the Korea–China Fishery Agreement to prevent illegal fishing in the Yellow Sea and even argue for the abolition of the agreement.82 Without the fishery agreement, however, there would be no mechanism to manage fishing activities in the Yellow Sea. It would bring about a state of extreme chaos in terms of fishery order. vi Conclusion In the absence of a maritime boundary in the Yellow Sea, illegal Chinese fishing has been a thorny issue which negatively affects relations between China and Korea. Illegal fishing in the Yellow Sea touches on the issues of the maritime boundary and international relations of the two countries. Fishery regimes in the Yellow Sea to exploit fishery resources have not fully worked to prevent illegal fishing. I believe that the underlying cause of illegal fishing in the Yellow Sea is beyond fishery regimes or law enforcement—rather, it has to do with fishery resources management. Illegal fishing in the Yellow 80 81 82

80 81 82

unclos Art. 73(3). The China–Korea Fishery Agreement Art. 5(2) & unclos Art. 73(1). Lawmaker Ahn Hyo-dae at the 304th session of the National Assembly on 22 December 2011 asked for ‘the government to engage in re-negotiation to ensure the least accountability of the Chinese government for the control of the illegal fishery problem.’ Besides, in a press release circulated on 19 September 2006, Lawmaker Jung Mun-heon argued that: ‘The Korea–China Fishery Agreement is blamed for the dispute over the ownership of Ieodo because Ieodo is placed in the Provisional Measure Zone.’ See Choo, S.H, S. Koreap.r.c. Fishery Agreement caused the dispute over the ownership of Ieodo Island (available only in Korean),THE HANKYOREH DAILY, 19 September 2006, available at http:// www.hani.co.kr/arti/politics/diplomacy/158370.html.

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Sea is not likely to decrease in the near future unless some crucial factors, including depletion of fish stocks and overcapacity of Chinese fishing boats, are addressed. In fact, it is impossible for a small number of coast guard ships to fully combat hundreds or even thousands of fishing boats operating illegally across the huge sea area. China’s efforts to prevent illegal fishing, such as fishing boat reduction and a hot season moratorium, can also play a crucial role in addressing the illegal fishing problem. Along with more concerted measures to combat illegal fishing, the two countries need to conclude maritime boundary negotiations as early as possible for better fishery resources management in the Yellow Sea.

chapter 8

Maritime Security Initiatives in East Asia: Implementation and Challenges i

Maritime Security Paradigm Shift

The world has undergone a security paradigm shift from conventional and military threats to non-conventional and non-military ones. Terrorism threats have dominated the global security agenda, replacing those of the Cold War era. The most salient single event is the 9/11 incident in 2001, through which the global community has found itself highly vulnerable to terrorist attacks. Before terrorism became an imminent global concern, maritime security was somewhat on the back burner, with the maritime community’s focus being primarily on the safety of navigation. Because of this secondary status, ships and ports were found to be extremely vulnerable and susceptible to terrorist attacks, as is confirmed in a number of maritime terrorism incidents in recent years.1 A wide array of potential maritime attack scenarios can be put forward. One of the most frequently envisioned scenarios is that of a container ship laden with weapons of mass destruction (wmd) exploding in a heavily populated port or critical offshore infrastructure involving liquefied natural gas (lng) tankers or ships carrying flammable and hazardous or noxious substances (hns).2 Other scenarios involve terrorist attacks targeting areas where shipping is concentrated, such as strategic straits used for international commerce (e.g., the Malacca Strait), in order to inflict enormous economic losses or environmental damage. Vessels that carry strategically important goods, such as energy resources, could be a terrorist target. Cruise ships and passenger ferries may be more attractive targets than cargo vessels if terrorists wish to draw attention by causing numerous human casualties. Additionally, ocean transport

1 They include the bombings of the u.s.s. Cole in 2000, the ramming of the French oil tanker Limburg off the coast of Yemen in October 2002, the attack against the Israeli port of Ashdod in March 2004, and the bombing of the Philippines vessel Superferry 14 in 2004. 2 u.s. Department of Homeland Security (dhs) and u.s. Department of Defense (dod), ‘The National Strategy for Maritime Security,’ September 2005, p. 2.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_009

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may be used as a means of smuggling wmds and related materials as well as transporting terrorists into a target state. Due to the above-described vulnerability, maritime security has risen on the national agendas in East Asia where countries are geographically connected with each other through the seas and overwhelmingly dependent on seaborne commerce. Northeast Asian countries, such as China, Japan, and Korea in particular, are totally dependent on sea-borne trade for export and import of commodities and energy resources and, therefore, are particularly concerned about the safety of sea lanes of communication. Unlike some sensitive maritime issues in East Asia, such as territorial sovereignty, maritime boundary delimitation, and maritime resources, the issue of maritime security has less domestic political and military implications. Efforts to ensure maritime security are inherently transnational, requiring cooperative and harmonized efforts among state and non-state stakeholders. This may create an opportunity for regional cooperative regimes to enhance maritime security in East Asia. This chapter examines maritime security issues and interests in East Asia and the maritime security initiatives, mostly driven by the United States (a non-East Asian state), that have been adopted and implemented by state stakeholders in the unique context of East Asia. It also assesses the efforts by states to enhance maritime security and some of the challenges these initiatives face in the East Asian region. ii

Maritime Security Threats and Initiatives

In the aftermath of the September 11, 2001, terrorist attacks, the international community, mostly led by the United States, has formulated a number of maritime security measures. While conventional maritime security concerns, such as piracy, continue to threaten the safety of navigation, the newly adopted maritime security initiatives are primarily designed to address the growing security concern of ports, ships, cargos, and maritime infrastructures. These initiatives are focused on preventive measures and have had a far-reaching effect on maritime security, global trade, and international relationships. The recently adopted maritime security initiatives include: the International Ship and Port Facility Security Code (isps Code); the Container Security Initiative (csi); the Customs-Trade Partnership Against Terrorism (c-tpat); the Secure Freight Initiative (sfi); the 24-Hour Advance Manifest Rule (24-Hour Rule); and the Proliferation Security Initiative (psi).

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Anti-piracy Efforts within East Asia The number of reported piracy attacks worldwide has declined in recent years. According to the International Maritime Bureau (imb),3 a total of 1,491 piracy attacks globally occurred over last five years from 2011 to 2015, averaging 298 piracy attacks annually. This illustrates a significant reduction from annual average attacks of 367 in the period between 2007 and 2012. Piracy attacks4 globally were off their peak after 2011 and have decreased to 246 attacks in 2015. A notable trend regarding the location of piracy attacks worldwide is that piracy attacks in the Gulf of Aden and the Somali coast substantially decreased in the last five years. Somali pirates, including in the Gulf of Aden, the Red Sea, Somalia, and Oman, were at their peak in 2011, with 237 of 439 attacks worldwide,5 and have sharply decreased, with 75 in 2012, 15 in 2013, 11 in 2014, and none in 2015.6 Meanwhile, piracy attacks in Southeast Asia have been on the rise again. There had been a substantial decrease in piracy attacks in South Asia in the 2000s. While the Malacca Strait, through which 30% of the world’s trade, 3 The International Maritime Bureau (imb) is a specialized division of the International Chamber of Commerce (icc). According to the imb, it is a non-profit organization, established in 1981 to act as a focal point in the fight against all types of maritime crime and malpractice. 4 The imb defines piracy and armed robbery as: ‘an act of boarding or attempting to board any ship with apparent intent to commit theft or any other crime and with the apparent intent or capability to use force in the furtherance of the act,’ as opposed to the definition of piracy of the u.n. Convention on the Law of the Sea(Art. 101): (a) any illegal acts of violence or detention, or any acts of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft and directed—(i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any state; (b) any act of voluntary participation in the operation of a ship or an aircraft with knowledge of facts making it a pirate ship or aircraft; c) any act of inciting or of intentionally facilitating an act described in subparagraph(a) or (b). The imb definition of piracy is for statistical purposes and covers actual or attempted attacks whether the ship is berthed, at anchor, or at sea. The imb states that the imb’s definition was adopted on the grounds that the majority of attacks against ships take place within the jurisdictions of states, and piracy as defined under the u.n. Convention on the Law of the Sea (unclos) does not address this aspect. Thus, the number of piracy attacks by the imb’s definition is greater than by that of the definition of the unclos. 5 imb, ‘Piracy and Armed Robbery against Ships 2015,’ available at http://www.hellenicshippingnews.com/wp-content/uploads/2016/02/2015-Annual-IMB-Piracy-Report-ABRIDGED .pdf. 6 Ibid.

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50% of oil transportation, and 90% of the oil destined for Japan and Korea are shipped annually, has remained relatively secure, the rest of South Asian waters have undergone a sharp increase in piracy attacks. The South Asia region is gaining back its past infamy as the riskiest region, with piracy attacks rapidly growing in recent years. Piracy attacks in the region in 2015 accounted for 80% of the 246 occurrences worldwide. Notably, the waters of Indonesia have emerged as the riskiest area, accounting for more than half of South Asia piracy attacks. Efforts of Littoral States. Faced with increasing international pressure and recognizing the responsibility of coastal states to address the piracy problem in the Strait of Malacca, on 20 July 2004, Indonesia, Malaysia, and Singapore launched the first trilateral patrol called ‘Operation malsindo,’ a year-round coordinated naval patrol. Rejecting the presence of u.s. forces—fearing that their presence would undermine sovereignty and that enhanced cooperation with the United States would attract the attention of Islamic militants—the three littoral states agreed to patrol their respective waters in the 900-km strait with 17 ships and to coordinate their moves through a 24-hour communications link.7 The arrangement addresses the legal challenge in the narrow strait that the right of hot pursuit is restricted to beyond the territorial sea of the vessel’s state or of a third state8 by allowing warships into one another’s waters when pursuing pirates.9 In September 2005, Malaysia, Singapore, and Indonesia launched coordinated aerial surveillance, named the ‘Eyes in the Sky’ (eis) initiative, pursuant to which each country patrols twice per week along the Malacca and Singapore straits and each flight carries a maritime patrol team made up of military personnel from each participating state.10 To improve the effectiveness of the naval and air patrols, terms of reference and standard operating procedures were agreed on in April 2006, and the combined efforts were renamed the Malacca Straits Patrols (msp). The msp has three elements: the Malacca Straits Surface Patrols (mssp); eis; and the Intelligence Exchange Group (ieg). The ieg 7

8 9 10

Suk Kyoon Kim, ‘Building a Multilateral Framework to Combat Piracy in Asia: From a Global Governance Perspective’ (doctoral dissertation, Hanyang University, Seoul, Korea, 2005), p. 93. Art. 111(3), unclos. Kim (n 7). Ian Storey, ‘Maritime Security in Southeast Asia: Two Cheers for Regional Cooperation’ (2009), Southeast Asian Affairs, 36–58, p. 41.

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developed the Malacca Straits Patrols Information System (msp-is) to improve coordination and situational awareness at sea among the three countries.11 In September 2008, the msp was given a boost with the participation of Thailand in both the mssp and the eis. Thailand’s area of operation is the northern approaches to the Malacca Strait in the Andaman Sea.12 At the regional level, the Association of Southeast Asian Nations (asean)— a regional cooperation organization among Southeast Asian countries, with 10 member states, including Malaysia, Indonesia, Singapore, and Thailand— has made great efforts to combat piracy and terrorism. In 2003, the asean Regional Forum (arf), a body that aims to promote dialogue and consultation on political and security issues of common interest and concern and to foster confidence-building and preventive diplomacy in the Asia-Pacific region, adopted a Statement on Cooperation against Piracy and Other Threats to Maritime Security, which included commitments to: increase personnel contacts, information exchange, and anti-piracy exercises; consider prescribing traffic lanes for supertankers with coast guard or naval escorts; provide technical assistance and capacity-building infrastructure.13 Efforts of User States. The user states, which have a vital interest in keeping the Malacca Strait safe and open, have provided technical and operational assistance to the littoral states. Japan and Korea, fully dependent on littoral states’ commitment to ensure the safety of the shipping lanes of communication in the seas of Southeast Asia, have created bilateral or multilateral cooperation arrangements with the littoral states and have provided necessary assistance in the form of joint exercises, vessel aids, and training personnel for capacitybuilding of their coast guard agencies. Along with resolutions and recommendations by the United Nations and the International Maritime Organization (imo),14 the regional states have 11 12 13

14

Ibid. Ibid., p. 42. asean Regional Forum (arf) Statement on Cooperation against Piracy and Other Threats to Maritime Security, available from ; Pursuant to the 2003 Statement, the arf and the asean Ministerial Meeting on Transnational Crime (ammtc), established in 1997 with a number of workshops and meetings, have further focused on the challenge of maritime security and the protection of strategic shipping lanes in the region, regarded highly vulnerable to terrorism since the 9/11 terrorist attacks. The relevant resolutions adopted by the imo include: resolution A.545(13) on ‘Measures to prevent acts of piracy and armed robbery against ships,’ adopted on 17 November 1983; resolution A.683(17) on ‘Prevention and suppression of acts of piracy and armed robbery against ships,’ adopted on 6 November 1991; and resolution A.738(18) on ‘Measures to

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e­ xpressed their commitment and efforts to together combat piracy through the Tokyo Appeal (March 2000), the Model Action Plan (April 2000), the Asia Anti-Piracy Challenges 2000 (April 2000), and the Asia Maritime Security Initiative 2004 (June 2004). However, it is not likely that they will serve as an effective framework for regional efforts since they are not binding.15 The most important regional multilateral arrangement is the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCCAP),16 which is expressly designed to enhance cooperation among Asian countries in fighting piracy and armed robbery at sea. ReCCAP was initiated by Japan in 2001, finalized on 11 November 2004, and came into force on 4 September 2006, with the participation of 16 regional states.17 ReCCAP establishes: general obligations of member countries for the prevention and suppression of piracy and armed robbery, arrest of perpetrators and seizure of ships or aircraft used for committing piracy and armed robbery, and the rescue of victims of piracy attacks; the Information Sharing Center (isc); cooperation in the arrest and extradition of pirates; and mutual legal assistance and cooperation in capacity-building. As the first government-to-government agreement designed to enhance the security of regional waters, ReCCAP is a landmark achievement. • It is the first multilateral framework to enhance maritime security and combat piracy and armed robbery in Asia. • It is a far-reaching anti-piracy arrangement, as it binds each member state to take effective and practical measures for the detection, arrest, and seizure of victims, pirates, or pirate ships.

15 16 17

prevent and suppress piracy and armed robbery against ships,’ adopted on 4 November 1993; and the resolution A.922(22), through which the Assembly adopted the ‘Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships’ to urge governments to take action to investigate all acts of piracy and armed robbery against ships occurring in areas or onboard ships under their jurisdiction; and to report to the organization pertinent information on all investigations and prosecutions concerning these acts. Another resolution of note is A. 1002(25) on ‘Piracy and Armed Robbery against Ships in Waters off the Coast of Somalia,’ adopted on 29 November 2007. See Kim (n 7), p. 95. The ReCAPP Web site, available at www.recaap.org/index_home.html. The participating regional countries are: Bangladesh, Brunei, Cambodia, China, India, Indonesia, Korea, Laos, Malaysia, Myanmar, Philippines, Singapore, Sri Lanka, Thailand, and Viet Nam. Indonesia and Malaysia have declined to become a party to the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCCAP), citing sovereignty concerns.

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• The isc, composed of one representative from each member state, plays the pivotal role of coordinating member states’ response to piracy and armed robbery incidents in the region. Launched in November 2006 in Singapore, the isc, the core institutional body of ReCCAP: exchanges information on incidents of piracy and armed robbery; facilitates operational cooperation; analyzes patterns and trends of piracy and armed robbery; supports capacity-building efforts of member states. Anti-piracy Efforts by East Asian States Beyond the Region Piracy attacks in the Somali coast have expanded to ships transiting at 380 to 490 nautical miles offshore further down the south coast of Somalia and the east coast of Oman in order to avoid the enhanced naval presence of the international community in the region.18 The United Nations has urged the international community, through a number of resolutions of the Security Council,19 to take part in fighting against piracy. These resolutions call on member states to deploy naval vessels and military aircraft,20 conclude arrangements to facilitate investigation and prosecution,21 or authorize other nations to enter the territorial waters of Somalia for the purpose of repressing acts of piracy and armed robbery.22 Japan. Pursuant to the u.n. resolutions, since March 2009 Japan has deployed two destroyers of 4,000 tonnage class and two P-3C maritime patrol aircraft to the waters off the coast of Somalia and the Gulf of Aden.23 In an effort to strengthen domestic legal grounds in dealing with acts of piracy, Japan, on 19 June 2009, enacted the Law on the Penalization of Acts of Piracy and Measures against Acts of Piracy, which criminalizes acts of piracy in Japanese law and 18

On 26 March 2009, the Greek-owned MV Nipayia and Norwegian-owned MV Bow Asir were captured at a considerable distance from the coastline, and on 8 April 2009, a Danish-owned merchant ship was captured at 400 nautical miles offshore. 19 The u.n. Security Council’s resolutions concerning acts of piracy off the coast of Somalia include: S/RES/1897; adopted on 30 November 2009; S/RES/1851, adopted on 16 December 2008; S/RES/1846, adopted on 2 December 2008; S/RES/1838, adopted on 7 October 2008; S/RES/1816, adopted on 2 June 2008. 20 S/RES/1838(2008), para. 2., S/RES/1846(2008), para. 9, S/RES/1851(2008), para. 2., S/RES/ 1897(2009), para. 3. 21 S/RES/1851(2008), para. 3., S/RES/1897(2009), para. 6. 22 S/RES/1816(2008), para. 7, S/RES/1846(2008), para. 10. 23 According to the Ministry of Defense of Japan, as of 2 November 2009, Japanese destroyers deployed off the coast of Somalia and the Gulf of Aden have escorted 236 vessels, including foreign flag ships.

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authorizes the Self-Defense Forces (sdf) to protect not only J­ apanese-related vessels but also vessels of other countries from acts of piracy.24 Before the act was enacted, Japan’s destroyers were allowed only to protect Japanese-related commercial ships. China. China actively joined international anti-piracy operations off the coast of Somalia and the Gulf of Aden by sending two destroyers and a supply ship in late 2008 tasked with protecting Chinese civilian vessels and crews as well as foreign vessels on request.25 Given China’s restrictive view of the authority of the international community to operate in the exclusive economic zone (eez) of other states, the Somali request to the United Nations inviting the international community to help fight piracy in Somalia’s territory and waters under Somalia’s jurisdiction was crucial.26 Conscious of neighbor countries’ concern about China’s growing military power, Chinese leaders have prescribed a narrow mission for its deployed naval forces: deter piracy; safeguard vessels carrying humanitarian supplies for the people of Somalia; escort Chinese-flagged merchant vessels (including from Hong Kong, Macau, and Taiwan, upon request); provide information to other merchant vessels in potentially dangerous areas; provide ‘necessary rescue services’ to merchant ships that find themselves under attack.27 The anti-piracy deployment marks the first time in modern history that the Chinese navy has engaged in an operational mission outside its claimed territorial and coastal waters. The Chinese navy’s participation in international anti-piracy operations has been viewed by many in the United States and elsewhere as an indication of China’s apparent willingness to take on a larger military role on the global stage.28 Korea. Korea joined the international anti-piracy efforts off the coast of Africa in April 2009 by deploying a destroyer of 4,500 tonnage class, with a LINX helicopter and 300 sailors onboard. The vessel assigned to the Combined Maritime 24

25 26 27 28

Arts. 7 & 8, ‘The Law on the Penalization of Acts of Piracy and Measures against Acts of Piracy,’ available at the Web site of Ocean Policy Research Foundation, http://www .sof.or.jp/en/topics/09_01.php. An English version is available at www.sof.or.jp/en/topics/ pdf/09_01/pdf. Press Briefing by the Ministry of National Defense of the People’s Republic of China, 20 January, 2009, available at eng.mod.gov.cn/Press/2009-01/20/content_4016837.htm. Peter A. Dutton, ‘Charting a Course: u.s.–China Cooperation at Sea’ (2009) 5(1) China Security, p. 16. Ibid., p. 17. Ibid., p. 24.

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Forces (cmf) is taking part in the Maritime Security Operation and protecting the security of its flagged ships transiting waters off Somalia and in the Gulf of Aden. For Korea, there are some legal challenges to be addressed since acts of piracy and pirates captured on the high seas are not fully covered by the Criminal Act, which only deals with sea robbery. Furthermore, the coverage of the Criminal Act is limited to nationals and its maritime sovereignty.29 The legal grounds for the prosecution of pirates captured during international operations overseas is not solid, given that pirates, according to the Criminal Procedure Act, shall be applied for a warrant of arrest less than 48 hours after capture.30 There is a need to revise this legislation and enact provisions which criminalize piracy acts on the high seas, apart from the provisions prescribing acts of piracy under the 1982 United Nations Convention on the Law of the Sea (unclos). New laws should include that the officers engaged in combating piracy have necessary rights to weapons in a certain circumstances, the right of hot pursuit and the rights to board the vessel and to capture pirates. Security against Maritime Terrorism Despite the growing possibility of maritime terrorism, it has been difficult for countries to prioritize anti-maritime terrorism activities and to concentrate resources given the diversity of possible attacks and the far-reaching targets of maritime terrorism, which range from ships to infrastructures off and onshore. There is no agreed-on definition of ‘maritime terrorism’ in international law.31 It is hard to draw a clear conceptual distinction between piracy and maritime terrorism since acts of maritime terrorism often are camouflaged as piracy, or piracy increasingly becomes a good means of terrorism. A distinction, however, is whether the motive of the unlawful acts is political or private. Maritime terrorism is, like in the 1985 Achille Lauro incident, committed with political ends predicated on a religious or ideological belief, as opposed to the private ends of piracy, which are motivated by economic factors. Despite such 29

30 31

Art. 340(1), The Criminal Act prescribes only the crime of sea robbery and defines it as ‘any act of depredation of ship or any act of depredation of property, committed at the sea, with the use of power by crowd.’ Ibid., Art. 213–212. The United State has employed the following definition of terrorism for statistical and analytical purposes since 1983: ‘The term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.’ 22 u.s. Code, Section 2656f(d).

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differences, maritime terrorism and piracy are similar in nature in that they pose a grave threat to the safety of navigation and inflict harm and damage on people and property. The unclos addresses only the piracy problem and largely precludes the applicability of piracy laws to maritime terrorism. The definitional requirements of piracy under the unclos, such as its occurrence on the high seas and outside state jurisdiction, are predicated on private ends, and involve the two ship-rule (that illegal acts be committed by one ship against another ship),32 prevent numerous maritime terrorist acts from being classified as piracy, including a ‘maritime 9/11 situation’ where passengers or crew already aboard a vessel hijack the ship and use it as a weapon.33 In order to address such legal vacuums—the lack of establishment of criminal jurisdiction in particular—in combating maritime terrorism, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the sua Convention) and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf were adopted in 1988 and entered into force in 1992.34 The primary aim of the sua Convention is to ensure that appropriate action is taken against persons committing unlawful acts against ships by facilitating the establishment of criminal jurisdiction and the extradition and prosecution of offenders. Each state party is obliged to extradite or prosecute alleged offenders. The unlawful acts covered under the sua Convention include: the seizure of a ship by force; the destruction of a ship and the causing of damage to a ship or its cargos; acts of violence against persons on board a ship; and the placing of devices on board a ship which are likely to destroy or damage it.35 In the wake of the 9/11 terrorist attacks, amendments were adopted in the form of Protocols to the sua Convention (the 2005 Protocols),36 adding new Article 3bis and offences covered by the convention. The new offenses include: to intimidate a population or to compel a government or an international 32 33

34 35 36

Art. 101, unclos. Tammy M. Sittnick, ‘State Responsibility and Maritime Terrorism in the Strait of Malacca: Persuading Indonesia and Malaysia to Take Additional Steps to Secure the Strait’ (2005) 14(3), Pacific Rim Law and Policy Journal 743–769, p. 749. The 1988 Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1678 u.n.ts. 221. Ibid., Art. 3(1). Art. 18, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation: ‘The 2005 Protocols shall enter into force 90 days following the date on which 12 states ratify.’

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organization to do or abstain from doing any act; to transport on board a ship any explosive or radioactive material, any biological, chemical, nuclear weapon (bcn weapon); to transport any source material, special fissionable material or equipment; to transport on board a ship any equipment, materials or software for any bcn weapon.37 Under the sua Convention, a contracting state is required to establish jurisdiction over alleged offenders when the offenses are directed against a ship flying the flag of the state; against a ship in the territory of that state; and against or by a national of that state.38 The sua Convention is a stronger framework in fighting maritime terrorism by facilitating the establishment of criminal jurisdiction and filling a legal gap found in piracy provisions in the unclos. However, the primary function of the sua Convention is not the prevention and suppression of maritime terrorism, but the apprehension, conviction, and punishment of offenders. The United States. The u.s. government has been the most active in responding to threats that terrorism poses to international maritime commercial activities. The vulnerability of the global supply chain to perceived threats from terrorist acts became evident during the immediate aftermath of 9/11.39 The United States accounts for nearly 20% of the annual world ocean-borne overseas trade measured in tonnage.40 The economic and security interests of the United States in the safe and smooth operation of ports and sea-lanes of communication in East Asia are apparent, considering that one-quarter of the world’s commerce and one-half the world’s oil pass through East Asian waters. The existence of terrorist organizations in Southeast Asia and their strategy of attacking soft economic targets make the Strait of Malacca a logical target. Southeast Asia has been considered the ‘second front’ in the u.s. global campaign against terrorism.41 For many years, militant Islamic groups, including Jemaah Islamiyya, Moro Islamic Liberation Front, and Abu Sayyaf, carried 37 38 39

40 41

Ibid., Art. 4(5). Art. 6, The 1988 Convention for the Suppression of the Unlawful Acts against the Safety of Maritime Navigation. Eric J. Lobsinger, ‘Post-9/11 Security in a Post-wwii World: The Question of Compatibility of Maritime Security Efforts with Trade Rules and International Law’ (2007)32(6) Tulane Maritime Law Journal, p. 85. Ibid. Paul Parfomak & John Frittelli, ‘Maritime Security: Potential Terrorist Attacks and Protection Priorities,’ crs Report for Congress, 9 January 2007, Congressional Research Service, pp. 9–10.

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out terrorist attacks against their governments as part of Islamic separatist movements. Since nations have strengthened security at political, diplomatic, and military facilities, terrorists have turned toward attacking ‘soft’ economic ­targets. Maritime targets, including shipping channels such as the Strait of Malacca, appear to be logical economic targets.42 The potential maritime terrorism scenarios identified for maritime security exercise by the u.s. Coast Guard, the u.s. Navy, and other federal agencies include:43 • • • • • • • • • •

Various types of an explosives attack on a ship in port Hostage-taking and executions aboard a vessel in port A marine mine attack on a navy frigate in port Underwater explosive devices planted on multiple vessels in port A nuclear device aboard an incoming vessel in a 55-gallon drum Attack on a port with a biological disease agent Detonation of a ‘dirty’ bomb in a shipping container at multiple u.s. ports Aircraft attack on a passenger ferry or cruise ship Radioactive materials carried on a cargo ship 90 miles offshore Bombing and sinking of a liquefied propane gas (lpg) tanker in a major commercial and naval shipping channel • Hijacking of a river tanker for use as a ‘floating bomb’ • Ramming and dirty bombing a ferry with a hijacked cargo ship • Coordinated bombing of docks and bridges, and mining of the harbor at a major commercial port Southeast Asian States. The asean countries attach a great emphasis on antimaritime terrorism efforts, moving beyond the traditional concern of piracy and armed robbery to include the threat of maritime terrorism and other transnational crimes.44 The asean has intensified its counter-terrorism efforts by creating a comprehensive anti-terrorism framework through the asean Convention on Counter-Terrorism (acct), signed in Cebu, the Philippines in January 2007.45

42 Ibid. 43 Ibid., p. 7. 44 See arf, Co-chairs’ Report, ‘arf cbm on Regional Cooperation in Maritime Security,’ 2–4, March 2005, Singapore, para. 7., available at http://www.aseanregionalforum.org. 45 Art. 1, asean Convention on Counter Terrorism, available at http//www.aseansec .org/19250.htm.

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This acct aims to provide the framework for the regional cooperation to counter, prevent, and suppress terrorism in all its forms and manifestations and to deepen cooperation among law enforcement agencies and relevant authorities of the party states.46 The 2007 convention is expected to facilitate the establishment of state jurisdiction over any offence, defined in accordance with the major treaties concerning terrorism,47 by requiring a state party to exercise its criminal jurisdiction when the offence is committed: in the territory of that state; on board a vessel flying the flag of that state; by a national of that state; against a national of that state; against a state or government facility home and abroad. The convention will take effect after at least six member states have ratified. As of 2016, the convention has been ratified by all 10 asean members. acct is expected to play a critical role in making a collective effort toward fighting unlawful acts in the waters of Southeast Asia. Furthermore it would help address a legal problem with criminal jurisdiction, given that disputes over the establishment of criminal jurisdiction in investigations, trials, and prisoner extradition have been a discouraging factor in fighting piracy and maritime 46 47

Ibid., Art. 1. The treaties include: Convention for the Suppression of Unlawful Seizure of Aircraft, signed at Hague on 16 December 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, concluded at Montreal on 23 September 1971; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, adopted in New York on 14 December 1973; International Convention against the Taking of Hostages, adopted in New York on 17 December 1979; Convention on the Physical Protection of Nuclear Material, adopted in Vienna on 26 October 1979; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, done at Montreal on 24 February 1988; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on 10 March 1988; Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on 10 March 1988; International Convention for the Suppression of Terrorist Bombings, adopted in New York on 15 December 1997; International Convention for the Suppression of the Financing of Terrorism, adopted in New York on 9 December 1999; International Convention for the Suppression of Acts of Nuclear Terrorism, adopted in New York on 13 April 2005; Amendment to the Convention on the Physical Protection of Nuclear Material, done at Vienna on 8 July 2005; Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at London on 14 October 2005; Protocol of 2005 to the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at London on 14 October 2005.

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terrorism. The littoral states of the Malacca Strait, except Singapore and other Southeast Asian countries, such as Malaysia, Indonesia, Thailand, Sri Lanka, and Timor, have been reluctant to accede to the sua Convention primarily due to concerns about sovereignty infringement. Given that Malaysia and Indonesia are not contracting governments to the sua Convention, they are not obliged to fulfill the principal obligations in the Convention of criminal jurisdiction over offenders. Therefore, even if a flagship or national of a contracting government is victimized by maritime terrorism in the waters within the jurisdiction of a non-contracting government, the non-contracting government is not obliged to extradite or prosecute offenders. Considering that the region of South Asia has higher vulnerability to maritime terrorism than any other region, the lack of cooperative criminal mechanisms is likely to become a barrier to concerted international counterterrorism efforts in the region. Northeast Asian States. Northeast Asian countries have been relatively secure from direct maritime terrorism and have robust security mechanisms in place. Nevertheless, maritime terrorism against the ships and nationals of Northeast Asian countries has been of concern and these states have formulated a wide range of security polices and taken preventive anti-terrorism measures domestically and in collaboration with other countries. For Korea, with its particular security situation in the confrontation with the North, a number of different agencies, including the coast guard, customs, immigration, police, intelligence services, port authorities, and navy, are involved in regular and rigorous anti-maritime terrorism activities. The Korea Coast Guard (kcg) is a lead agency at the operational level in countering maritime terrorism, and anti-terrorism activities are becoming a high priority of the kcg. Among other things, the kcg carries out preventive anti-terrorism activities in the major ports and critical on- and offshore infrastructures in collaboration with other agencies and the security of passengers of ferry boats through the Anti-Maritime Terrorism System.48 For Japan, anti-maritime terrorism activities at sea are led by the Japan Coast Guard (jcg). Its activities are focused on the security of vulnerable facilities on- and offshore, including nuclear power plants, oil reserves, u.s. troop facilities, ports and waterways, and the safety of passengers of ferry boats. Notably, jcg officers serve as sea marshals on ferry boats in the busy traffic season to protect passengers against possible terrorism. 48

Korea Coast Guard, White Paper 2009, p. 63.

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Container Security The United States. All trading nations depend on containerized shipping, introduced in the mid-1950s, for the transportation of manufactured and other goods. Each year, 108 million cargo containers are transported among seaports around the world, constituting the largest single component of global trade. As of 2011, more than 10.1 million maritime containers arrived at u.s. seaports, an average of 27,600 a day.49 In the aftermath of the 9/11 attacks, there has been a growing concern that containers could be used as a means of smuggling wmds. The detonation of a ‘dirty’ bomb in a shipping container at a major port or a strategic channel not only would inflict a large loss of life and property but also would cripple global trade flow. Within months of the 9/11 attacks, the u.s. Customs and Border Protection created the Container Security Initiative (csi)50 in 2002, as part of a ‘layered’ approach to maritime security of the u.s. The layered maritime security measures are a system of security measures to ensure that protective measures are in place from one end of a sea based-journey to the other and are to protect the three phases of the journey: overseas, in transit, and on u.s. shores.51 Under the csi program, a team of officers is deployed to work with hostnation counterparts to target all containers that pose a potential threat. The csi uses a security regime to ensure all containers that pose a potential risk for terrorism are identified and inspected at foreign ports before they are placed on vessels destined for the United Sates. The three core elements of the csi are: to identify high-risk containers; to prescreen and evaluate containers before they are shipped; and to use technology to prescreen high-risk containers to ensure that screening can be done rapidly without slowing down the movement of trade.52 There are 58 operational csi ports as of 2016, in North, Central, and South America, the Caribbean, Europe, Africa, the Middle East, and throughout Asia. The Asian ports include Singapore (Singapore), Yokohama, Tokyo, Nagoya and 49

u.s. Custom and Border Protection, ‘Container Security Initiative in Summary 2011,’ ­available at https://www.cbp.gov/sites/default/files/documents/csi_brochure_2011_3 .pdf. 50 The Container Security Initiative, available at www.cbp.gov/border-security/ports-entry/ cargo-security/csi/csi-brief. 51 The u.s. Department of Homeland Security, ‘Secure Seas, Open Ports: Keeping our Waters Safe, Secure and Open for Business,’ 21 June, 2004, p. 3. 52 u.s. Customs and Border Protection, ‘csi: Container Security Initiative,’ available at https://www.cbp.gov/border-security/ports-entry/cargo-security/csi/csi-brief.

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Kobe (Japan), Hong Kong (Hong Kong), Busan (Korea), Port Klang and Tanjung Pleapas (Malaysia), Laem Chabang (Thailand), Shenzhen and Shanghai (China), Kaohsiung and Chi-Lung (Taiwan), Colombo (Sri Lanka), Port Qasim (Pakistan).53 More than 80% of all maritime containerized cargo imported into the u.s. is subject to prescreening.54 Along with csi, the United States has established a government-private sector cooperation program for container security on a voluntary basis, the CustomsTrade Partnership against Terrorism (c-tpat).55 c-tpat aims at strengthening overall security of the international supply chain and facilitating the movement of cargo by encouraging private companies to actively guard against arms and weapons smuggling, trade in illicit goods that fund terrorist activities, and the smuggling of terrorists with shipments of goods.56 Under c-tpat, private companies meeting or exceeding the program requirements are provided with benefits of reduced scrutiny over their shipments. Launched in November 2007 with seven partner companies, as of 2016 the partners number 8,166.57 In response to the provisions of the Security and Accountability for Every Port Act of 200658 and the Implementing Recommendations of the 9/11 Commission Act of 200759 that require, by 2012, all maritime cargo containers originating outside of the United States and unloaded at a u.s. port to be screened and scanned prior to reaching a domestic port, the u.s. Customs and Border Protection (cbp) has established another maritime cargo security program, the Secure Freight Initiative (sfi).60 The sfi is testing the feasibility of moving from a risk-based approach to 100% scanning of all cargo containers bound for u.s. ports.61 53 54 55

Ibid. Ibid. u.s. Customs-Trade Partnership against Terrorism Web site, available at www.cbp.gov/ border-security/ports-entry/cargo-security/c-tpat-customs-trade-partnership-against -terrorism. 56 Ibid. 57 The u.s. Department of Homeland Security, A Review of cbp and ice Reponses to Recent Incidents of Chinese Human Smuggling in Maritime Cargo Containers,’ available at www .dhs.gov/xoig/assets/mgmtrpts/OIG_07-40_Apr07.pdf. 58 Security and Accountability of Every Port Act of 2006, u.s. Public Law 109–347. 59 Implementing Recommendation of the 9/11 Commission Act of 2007, u.s. Public Law 110–153. 60 The Secure Freight Initiative Web Site, available at www.dhs.gov/files/programs/gc 1166037 389664.shtm. 61 See dhs, ‘cbp’s Container Security Initiative Has Proactive Management and Oversight but Future Direction Is Uncertain,’ February 2010, available at www.dhs.gov/xoig/assets/ mgmtrpts/OIG 10–52 Feb10.pdf.

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The sfi builds on the two ongoing programs—the csi and the Megaports Initiative62—to strengthen cargo screening. Through the sfi, data from radiation detection equipment provided by the Department of Energy’s Megaports Initiative and Non-Intrusive Inspection (nii) equipment provided by the Department of Homeland Security or the host government is integrated with manifest data.63 Other than those container security measures, the u.s. cbp has a 24-hour rule that requires manifest and bill of lading information to be submitted to cbp 24 hours in advance of the cargo destined for the United States being loaded on a ship at a foreign port.64 The 24-hour rule allows cbp officers to prescreen and target high-risk shipments and containers before they arrive in a u.s. port. The United States has opted to build container security mechanisms with its trade partners on a bilateral or reciprocal basis rather than utilizing multilateral mechanisms. Southeast Asian States. In April 2002, Singapore agreed to join the csi, becoming the first Asian country to sign up for the program.65 Singapore ranks second to Hong Kong in terms of number of cargo containers handled and represents a key chokepoint in the global trading system for detecting potential cargo of concern. Malaysia joined the csi in March 2004, with the port of Klang becoming the 18th csi port. As part of the program, the cbp has deployed a team of officers to the port of Klang to work with their Malaysian counterparts to target cargo containers destined for the u.s.66 Northeast Asian States. Northeast Asian countries have been supportive of the u.s.-led container security mechanisms. Their heavy dependence on trade with the United States and concern about access to u.s. ports being limited if  they fail to meet the container security measures have led them to seek 62 The u.s. Megaports Initiative is administered by the National Nuclear Security Administration within the u.s. Department of Energy. 63 cbp, ‘Secure Freight Initiative: Vision and Operations Overview,’ released on 7 December 2006, available at http://www.dhs.gov/xnews/releases/pr 1165943729650.shtm. 64 cbp, ‘Container Security Initiative: 2006–2011 Strategic Plan,’ available at www.cbp.gov/ linkhandler/cgov/trade/cargo security/csi/csi strategic plan.ctt/csi strategic plan.pdf. 65 cbp, ‘Singapore Agrees to Join the u.s. Customs Container Security Initiative (csi),’ available at http://www.cbp.gov/xp/cgov/newsroom/news releases/archives/legacy/ 2002/62002/06042002.xml.,available at http://www.cbp.gov/xp/cgov/newsroom/news releases/archives/legacy/2002/62002/06042002.xml. 66 cbp, ‘Government of Malaysia to Implement Container Security Initiative,’ 8 March, 2004, available at www.cbp.gov/xp/cgov/newsroom/news releases/archives/2004 press releases/032004/03052004.xml.

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c­ ompliance. In 2006, 21% of all Chinese exports went to the United States, with a total value of approximately $250 billion. This undoubtedly accounts for China’s decision to participate in the csi in July 2003.67 The two mainland Chinese ports (Shanghai and Shenzhen) are full participants. It is notable that China has allowed teams of u.s. Customs officials to be stationed in their ports. The United States is Japan’s largest trade partner, with a trade volume of $193.8 billion, which accounts for 22.9% of Japan’s total exports. Japan, committed to the u.s.-led cargo security measures, has joined the csi and the ports of Yokohama, Tokyo, Nagoya and Kobe are all operational csi ports. According to the reciprocity of the csi program, the Japanese government has its customs personnel in some u.s. ports to target containerized cargo being exported to Japan. Korea is also an active participant in the u.s. container security programs. In 2003, Korea joined the csi, with the port of Busan becoming operational. Busan, which is sixth in terms of the volume of shipments and containers imported into the United States, was designated an sfi port in December 2006, becoming one of the first four sfi port operations scanning cargo bound for the United States.68 Ship and Port Facility Security The International Maritime Organization has developed the International Ship and Port Facility Security Code (isps Code), which forms an international framework through which ships and port facilities can cooperate to detect and deter acts which threaten security in the maritime transport sector.69 The isps Code is the most prominent multilateral maritime security framework among a number of international measures taken to enhance maritime security in the wake of the 9/11 terrorist attacks. The isps Code, adopted on 12 December 2002 and entered into force in July 2004, is formed through a number of amendments to the 1974 Convention for the Safety of Life at Sea (solas).70 The isps Code is divided into two parts. Chapter XI-2 is entitled ‘Special Measures to Enhance Maritime Security.’ Part 67 68

69

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Dutton (n 26), p. 5. cbp, ‘Hong Kong to Scan u.s.-bound Goods for Radiation as Part of Secure Freight Initiative,’ released on 27 July 2007, available at http://www.cbp.gov/xp/cgov/newsroom/news releases/archives/2007 news releases/072007/07272007 2.xml. Convention for the Safety of Life at Sea (solas), 164 u.n.t.s. 113, incorporating the International Ship and Port Facility Security Code (isps Code), by amendment, in the new Chapter XI-2 of the Annex, Preamble 1. Ibid.

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A details security-related requirements for governments, port authorities, and shipping companies. Part B provides a series of guidelines on how to meet these requirements. Over 98% of the world’s international fleet falls within the scope of Part A.71 The isps Code applies to passenger ships engaged in international voyages; cargo ships of high speed and 500 gross tonnage and upward; mobile offshore drilling units; and port facilities serving for those ships.72 The isps Code takes the approach that ensuring the security of ships and port facilities is basically a risk-management activity, and in order to determine what security measures are appropriate, an assessment of the risks must be made in each particular case.73 The isps Code defines three security levels of ships and port facilities. • Security Level 1: a normal level of risk and the minimum level of security preparedness; • Security Level 2: a heightened risk of a security incident; and • Security Level 3: a probable or imminent risk of a security incident and should only be applied in exceptional circumstances.74 The state parties are responsible for setting the security level of ships and facilities and providing guidance for protection from security incidents. Where Security Level 3 exists, states are to provide security-related information to the ships and port facilities that may be affected.75 Also of note is the new regulation on the Long-range Identification and Tracking (lrit) system added to solas Chapter V/19–1, through which states are required to establish the tracking system on passenger ships, cargo ships of 300 gross tonnage and upwards, and mobile offshore drilling units where they are engaged in international voyages.76 The lrit regulation only applies to ships constructed on or after 31 December 2008, with a phased-in implementation schedule for ships constructed before 31 December 2008. 71

72 73

74 75 76

Eric J. Lobsinger, ‘Post-9/11 Security in a Post-wwii World: The Question of Compatibility of Maritime Security Efforts with Trade Rules and International Law’ (2007) 32(Winter) Tulane Maritime Law Journal, p. 76. solas (n 69), Chap. XI-2, part A, 3.1. Harmut G. Hesse, ‘Maritime Security in a Multilateral Context: imo Activities to Enhance Maritime Security’(2003)18(3) International Journal of Marine and Coastal Law 327–340, p. 331. solas (n 69), Chap. XI-2/3. Ibid., Chap. XI-2/4. Ibid., Chap. V/19–1.

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The United States: The United States enacted the Maritime Transportation Security Act of 2002 (mtsa)77 by amending the 1936 Merchant Marine Act to implement the isps Code. The mtsa is aimed at enhancing the capability of countering potential maritime security risks and thus ensuring greater security for the u.s. seaports. The major requirements in mtsa include: to conduct vulnerability assessments of vessels and facilities, including the effectiveness of anti-terrorism measures maintained in foreign ports: to develop security plans to mitigate identified risks for the national maritime system, ports, port facilities, and vessels; to develop the Transportation Worker Identification Credential, a biometric identification card to help restrict access to secure areas to only authorized personnel; to be equipped with automatic identification systems; to strengthen the role of coast guard, including additional funding and assignment of coast guard personnel as sea marshals on vessels and public or commercial structures.78 Also enacted was the Security and Accountability for Every Port Act of 200679 (safe Port Act) designed to improve maritime and cargo security through enhanced layered defenses. The safe Port Act, building on the mtsa, provides legislative authority for the following maritime security measures: establishment of interagency operational centers for port security; establishment and implementation of the csi; launching of c-tpat; and screening and scanning of 100% of the cargo containers originating outside the United States and unloaded at a u.s. seaport.80 Southeast Asian States. Out of the world’s busiest 50 container seaports, eight ports are located in Southeast Asia. All the member countries of the asean, except Laos, are contracting parties to the solas Convention and, consequently, they are obliged to fulfill the requirements of the isps Code. Port state control is an international regime to ensure the compliance of these requirements on a cooperative basis by inspecting foreign ships in national ports to verify that the condition of the ship and its equipment comply with the requirements of international regulations. Northeast Asian States. China actively participated in the formulation of the  isps Amendments to the solas Convention.81 In order to implement 77 78 79 80 81

Maritime Transportation Security Act of 2002, u.s. Public Law 107–295. Ibid. Security and Accountability for Every Port Act of 2006, u.s. Public Law 109–347. Ibid. Zhang Shouguo, Department of Water Transport, Ministry of Communication, China, ‘Playing an Active Role in Fulfilling Maritime Security Obligations,’ presented at the oecd

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the obligations under the amendments to the solas Convention and the isps Code, China enacted the Code for Port Facilities Security and the Code for Ship’s Security, which came into effect in November 2003 and March 2004, respectively.82 In addition, in 2003 China set up a coordination and working team for the implementation of port facility security that is responsible for providing the guidance on the implementation by the port industry and the assessment of port facilities security as well as the approval of security plans.83 China has established a new port security management system called One Port with One Local Government, under which a local government is responsible for port management in accordance with the Port Law of the People’s Republic of China.84 Under the Port Law, port administrative agencies are responsible for maintaining port security. Japan enacted the Law for the Security of Ships and Port Facilities to implement the isps Code.85 According to the law, ships and facilities engaged in international services are to conduct self-guard measures and all foreign ships calling at Japanese ports, regardless of size, are required to report vessels’ security information to the jcg prior to entry. The information is examined on a case-by-case basis and the jcg may conduct boarding inspections on such vessels when security cannot be assured.86 In Korea, the 2007 Law on Security of Ships engaged in International Voyage and Port Facilities was adopted to implement the isps Code. Foreign ships entering Korean ports are obliged to report their ship security information, cargo, and crew to designated authorities 24 hours prior to entry to the regional maritime affairs and port offices of the Ministry of Oceans and Fisheries. Security against Weapons of Mass Destruction The Proliferation Security Initiative (psi) is a u.s.-led global effort that aims to stop trafficking of wmds, their delivery systems, and related materials to and from states and non-state actors of proliferation concern.87 The psi, part

82 83 84 85 86

87

Workshop on Maritime Transport, Paris, 4–5 November 2004, available at www.oecd.org/ dataoecd/19/61/33949707.pdf. Ibid. Ibid. Ibid. The Law for the Security of Ships and Port Facilities, enacted in 2003 (No. 31), available at law.e-gov.go.jp/announce/H16HO031.html. Ministry of Land, Infrastructure and Transport, Japan, ‘What is the Law for the Security of Ships and of Port Facilities?’ uploaded in 2004, available at www.mlit.go.jp/ seisakutokatsu/solas/e-index2.html. u.s. Department of State, Bureau of International Security and Nonproliferation, ‘Proliferation Security Initiative,’ available at www.state.gov/t/isn/c10390.htm.

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of the layered security measures of the United States noted above, is designed primarily to prevent wmd proliferation and is not an explicit trade-related security measure like the csi and the c-tpat. Due to the lack of existing international frameworks for prohibiting the transfer of wmds, the United States sought to create an international tool to stop wmd-related trafficking, with a focus on the delivery systems of wmds.88 The M/V So San incident on 10 December 2002, where the u.s. and Spanish navies ultimately chose not to stop the movement of Scud missiles by a North Korean cargo vessel due to the lack of an international legal right to seize the cargo, was a decisive case that prompted the United States to create the psi. Initiated by 11 countries on 31 May 2003, the psi has developed into a global security regime with 105 participating countries on six continents as of 2016. Korea became a late participant on 26 May 2009. The psi is not a formal program or a legal instrument, nor an institution with central organization. Rather, it is a loose agreement among countries committed to the Interdiction at Sea Principles adopted in 2003,89 designed to establish a more coordinated and effective basis, consistent with national legal authority and the relevant international law and frameworks, of dealing with the movement of wmds. The United States has placed the psi at the forefront of non-proliferation efforts. Numerous questions have arisen as to the legitimacy and reach of the psi. First, the psi lacks certainty over legal status. Given that the implementation of the psi is inextricably related to the use of force, the psi vaguely refers to u.n. resolutions, with only 105 participants out of the 195 u.n. members. Second, the interdiction of wmds being transferred by sea, without a clear consent of flag state of the vessel, would be inconsistent with the freedom of navigation in the unclos. Third, the psi as a loosely agreed-upon security regime among the participating countries is enforceable only to the participating countries. Among the asean member states, Brunei, Cambodia, Philippines, and Singapore are participating psi countries. However, Indonesia has been reluctant to join the psi ‘club,’ due to concerns about the possible infringement of their sovereignty. Concerned about threats posed by missiles and nuclear weapons of North Korea, Japan was a key psi participant from the beginning, and has actively participated in psi exercises by dispatching its vessels and aircraft. Notably in 2009, Japan enacted the Special Measure Law on Inspection on North Korean 88 89

u.s. Department of State, ‘Interdiction Principles for the Proliferation Security Initiative,’ available at www.state.gov/t/isn/c10390.htm. Ibid.

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Cargo Vessels, which authorizes the jcg and the sdf to inspect ships suspected of carrying banned cargo, including missile-related materials, to and from North Korea.90 The act was a response to u.n. Security Council Resolution 1874 adopted to punish North Korea for its nuclear test on 25 May 2009 and rocket launch on 5 April in 2009.91 South Korea wavered on fully joining the psi given the volatile and unique security situation on the Korean Peninsula. It had remained as a like-minded country, sending observers to psi interdiction exercises.92 Even when the u.n. Security Council unanimously adopted Resolution 1718, which targeted North Korea to prevent illicit trafficking of wmd and their means of delivery and related materials,93 South Korea stuck to its position that while it supported the psi, it would not join on the grounds that full participation might provoke a military conflict with North Korea.94 Even though South Korea’s participation was considered vital to the success of the psi from the beginning in relation to North Korea, South Korea had been reluctant to become a full participant, only participating in some limited areas. However, North Korea’s security threats posed by nuclear tests and missile launches in May 2009 led South Korean to become a full participant in the psi. China has refused to join the psi. Concerning China’s reluctance, it is assumed that China is conscious of North Korea, a close ally of China, and that China’s emergence as a global power puts it in an operationally conflicted relationship with the United States with respect to security. iii

Emerging Challenges to Maritime Security in East Asia

Understanding the Regional Context As noted earlier, there have been accomplishments in combating piracy in  Southeast Asian waters through stakeholders’ enhanced international ­cooperation against piracy. However, there are still a number of factors to be 90 91 92 93

94

‘Bill Laying Out Rules for N. Korean Cargo Inspection Heads to Diet,’ Japan Times, 8 July 2009, available at search.japantimes.co.jp/print/nn20090708a7.html. u.n. Security Council Resolution S/RES/1874 (2009). Suk Kyoon Kim, ‘Korean Peninsula Maritime Issues’ (2010) 41(2) Ocean Development and International Law 166–185, p. 180. u.n. Security Council Resolution S/RES/1718(2006), para. 8(2)(f), where the un called on all member states to take cooperative action, including through inspection of cargo to and from North Korea in order to prevent illicit trafficking in nuclear, chemical, or biological weapons and their means of delivery and related materials. Kim (n 92), p. 180.

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considered in the unique cultural and political context of the region as the regional states seek further efforts to enhance international cooperation. The littoral states of the Malacca Strait, especially Malaysia and Indonesia, are sensitive to the infringement on their sovereignty by proposed anti-piracy and security initiatives, often formulated by the United States. This was evident when they were strongly opposed to the u.s. proposed Regional Maritime Security Initiative (rmsi) in 2004,95 which aimed to combat piracy and terrorism, the proliferation of wmds through enhanced cooperation between and among the United States and the littoral states respecting the Malacca Strait. Given the regional context of East Asia, where countries are culturally diverse and politically divergent and have little tradition of cooperation, further efforts are needed at the regional level to create conditions and atmosphere for enhanced regional maritime security governance.

Balancing Fundamental Principles of International Law and Security Interests The maritime security initiatives of the past decade place a greater emphasis on security, resulting in some cases as a potential conflict with underlying principles of relevant international laws and frameworks, including the unclos. There are questions about the consistency of key elements of maritime security initiatives formulated in the wake of the 9/11 terrorist attacks with fundamental principles in the unclos such as maritime sovereignty, freedom of navigation, and rights of innocent passage. Interdiction on the high seas, which constitutes a key principle of the psi, if utilized, is likely to violate the freedom of navigation on the high seas unless the consent of flag states is assured. While not an international law of the sea per se, the security requirements for enhanced container and port security measures may prevent free trade and the efficient movement of cargo. The challenge is to strengthen the legal grounds for maritime security initiatives in the context of respecting the international rule-making process.

Costs of Implementing Maritime Security Initiatives Due to the transnational and multi-faceted nature of maritime security, concerted efforts among state stakeholders are essential for the successful implementation of maritime security initiatives. However, it is not an easy task for less developed countries to meet the standards and requirements of maritime security initiatives, which cost a significant amount to implement. 95

Ian Storey (n 10), p. 40.

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The implementation of maritime security regimes often requires the acquisition of technology and equipment, such as vessels, aircraft and detection devices, and the deployment of trained personnel. Who will (or should) bear the costs of maritime security initiatives? The economic gap between developed countries and less developed countries is likely to cause a security divide. For example, while the intelligence and manpower necessary for the implementation of the csi are supplied by the United States and cooperative foreign governments, countries need to have the technology and devices that actually detect threats within shipping containers. Non-intrusive inspection equipment with the capability to detect radiation is required to effectively screen the standard shipping container. The acquisition of such equipment is one of the requirements for a port to be eligible for participation in the csi.96

Building a Regional Cooperation Regime Governing Maritime Security Issues Together with the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, the Tokyo Memorandum of Understanding (mou) on Port State Control97 might indicate a way to further cooperate in the realm of maritime security in the East Asian region. The Tokyo mou, concluded in 1993 and brought into effect on 1 April 1994, establishes an effective port state control regime in the region through cooperation of its members (port authorities) and harmonization of their activities directed to the elimination of substandard shipping in order to promote maritime safety, protect the maritime environment, and safeguard the working and living conditions on board ships.98 The memorandum has 18 full members,  including China, Indonesia, Japan, Korea, Philippines, and Singapore, with a number of observers, including North Korea, the u.s. Coast Guard, and the imo. Given that maritime affairs are increasingly becoming critical in East Asia, it is suggested that the establishment of a maritime organization, the East Asia Maritime Council, is necessary to deal with maritime issues and build a maritime regime in the region.

96 97 98

See Joshua A. Lindenbaum, ‘Assuring the Flow: Maritime Security Challenges and Trade Between the u.s. and China’ (2006) 6 Richmond Journal of Global Law and Business, p. 100. The Tokyo Port State Memorandum is available at www.tokyo-mou.org. Port State Committee of the Tokyo mou, ‘Annual Report on Port State Control in the AsiaPacific Region 2008,’ 1, available at www.tokyo-mou.org/ANN09.pdf.

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iv Conclusion A number of sea lanes of communication and choke points, which are strategic for sea-borne trade and security, are located in East Asian waters. Megaports in East Asian countries account for a substantial portion of global trade. Economically, East Asia is more vibrant than any other region in the world and is emerging as a global economic hub. In this context, maritime security is becoming an extremely important challenge to the further prosperity and stability of the region. This chapter demonstrates that the regional states are committed to adopting and implementing maritime security measures and have been successful in combating maritime security threats. However, among the challenges ahead, the most important might be how to continue to rally efforts to cope with maritime security issues in East Asia.

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Maritime Issues Concerning the Implementation of u.n. Security Council Resolutions on North Korea i

Introduction

The United Nations Security Council on 2 March 2016 unanimously passed Resolution 2270, which imposes tougher sanctions on North Korea in the wake of North Korea’s latest nuclear test on 6 January and its rocket launch on 7 ­February. The resolution principally builds on a number of previous sanctions over the last two decades, broadening the scope of the sanctions and ­strengthening their implementation. The newly adopted sanctions are considered unprecedentedly comprehensive and tough in their breadth and enforcement. Resolution 2270 employs a number of maritime sanction measures that mandate the member states to inspect all cargo going to and from North Korea in their territories. It also requires the member states to prohibit the entry into their ports of any vessel that is owned by designated individuals or entities and ships that contain illicit cargo. Enforcement on the sea might be much harder and more complicated than on land, given the harsh conditions of the sea and various international maritime regimes at play there. In terms of international law in particular, there remains the challenge of how to strike a balance between a traditional universal norm on the use of the sea and a newly born international law purported to halt North Korea’s nuclear development. The maritime sanctions under Resolution 2270 are directly linked to a particular situation on the Korean Peninsula in which the North and the South confront each other across heavily fortified borders. South Korea is a key player in the implementation of the sanctions. Given the tension on the Korean Peninsula, the enforcement of the maritime sanction measures by South Korea is likely to add challenges to security. Against this backdrop, this chapter explores challenges rising from the implementation of maritime mandates under u.n. Security Council Resolution 2270 in terms of enforcement and legality. This chapter will focus on the ­Korean Peninsula and its maritime issues related to Resolution 2270.

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u.n. Security Council Resolutions Concerning North Korea and Resolution 2270

The United Nations Security Council has adopted five resolutions since 2006 on North Korea to impose and strengthen sanctions. These resolutions were pursuant to Chapter 7, Article 41 of the u.n. Charter, stating that ‘The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.’ In accordance with Article 25 of the u.n. Charter, all member states of the u.n. are obliged to accept and carry out the decisions of the Security Council. The decisions of the Security Council are a legally binding norm for the member states. Regardless of bans and sanctions imposed by those resolutions, North Korea has continued to develop nuclear weapons and launch missiles. Defying the decisions of the u.n. Security Council, North Korea’s supreme leader Kim Jong Un pledged that North Korea will remain committed to improving its nuclear capability, making it clear that North Korea will conduct the fifth nuclear test.1 The followings are the documentations of the u.n. resolutions on North Korea, particularly in relation to maritime sanctions. Resolution 1718: Resolution 1718 was unanimously adopted by the u.n. Security Council on 14 October 2006 in the wake of North Korea’s nuclear test on 9 October 2006. Resolution 1718 prohibits North Korea from conducting future nuclear tests or launching a ballistic missile and calls for North Korea to completely abandon all nuclear weapons and existing nuclear programs.2 The resolution imposes a ban on trade of a wide range of illicit goods, including large-scale arms, missiles, nuclear technology materials and equipment, by using member states’ flagged vessels and aircraft.3 All states were to cooperate, in accordance with national legislation and consistent with international law, in inspecting cargo suspected of trafficking illicit goods.4 In practice, China, a

1 ‘Kim Jong Un continues to conduct nuclear tests… Busan, Peyungtaek, Gwangyang Ports are targets of a nuclear attack’ (translated by author), Don-A Il Bo, 12 March 2016; North Korea conducted the fifth nuclear test on 9 Sept. 2016. The U.N. Security Council adopted Res. 2321 in response. 2 u.n. Security Council Resolution 1718, para. 2, 5 & 6. 3 Ibid., para. 8(a) & (b). 4 Ibid., para. 8(f).

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traditional ally of North Korea, did not inspect cargo to and from the country and continued to support the North Korean regime.5 Resolution 1874: Resolution 1874 was adopted in response to North Korea’s underground nuclear test on 25 May 2009, which was ‘in violation and flagrant disregard’ of the previous Security Council Resolution from 2006.6 Resolution 1874 strengthened the sanctions under Resolution 1718 by banning all imports and exports of weapons, including small arms. All member states are called upon to inspect all cargo to and from North Korea in their territory, including seaports and airports, if there are reasonable grounds to believe that it contains illicit items.7 All member states are authorized to seize and dispose of illicit items which are identified in inspections.8 Resolution 1874 prohibits the provision of bunkering services to North Korean vessels which are believed to carry illicit items.9 Resolution 2087: The Security Council adopted Resolution 2087 on 22 January 2013 after North Korea successfully launched a satellite on 12 December 2012. Resolution 2087 implemented sanctions against North Korea’s apparent violation of the previous two resolutions, which prohibited any further development of technology applicable to North Korea’s nuclear or ballistic weapons programs. Resolution 2094: Resolution 2094 was unanimously adopted on 20 March 2013 in the wake of North Korea’s third nuclear test on 12 February 2013. North Korea called the test a direct response to Resolution 2087.10 Resolution 2094 strengthened existing sanctions, expanded the scope of materials covered, and increased measures for states to enforce and monitor the implementation of sanctions and the transport of materials to or from North Korea through their territories.11 States are required to inspect all cargo within or transiting through 5

6 7 8 9 10 11

Elizabeth Philipp, ‘un Security Council Resolutions on North Korea, Arms Control Today’ (2016) 46, available at https://www.armscontrol.org/factsheets/UN-Security-Council -Resolutions-on-North-Korea. u.n. Security Council Resolution 1874, para. 1. Ibid., para. 11. Ibid., para. 14. Ibid., para. 17. Philipp (n 5). Ibid.

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their territory that originated from North Korea or that is destined for North Korea, if the state has reasonable grounds to believe the cargo contains illicit items.12 Any vessel refusing to allow an inspection after the inspection has been authorized by the vessel’s flag state, and any North Korean vessel refusing inspection, is denied its entry to their ports.13 Resolution 2270: The u.n. Security Council adopted Resolution 2270 on 2 March 2016 in response to North Korea’s nuclear test on 6 January 2016 and its launch of ballistic missiles on 7 February 2016 ‘in violation and flagrant disregard’ of the council’s relevant resolutions.14 The resolution expands the scope of existing sanctions and strengthens the enforcement of implementation. The scope of weapons prevented from the direct or indirect supply, sale or transfer to North Korea is expanded to all arms and related material, including small arms and light weapons and their related materials.15 All member states are obliged to inspect all cargo within or transiting through their territories if the cargo has originated from or is directed to North Korea. A reasonable suspicion is not necessary to conduct a cargo inspection under the resolution.16 This is an expressly reinforced measure for cargo i­nspection, as opposed to the language of Resolution 1874, which requires states to have reasonable grounds to believe that the cargo contains illicit items. Member states are obliged to prohibit their nationals from leasing or chartering their flagged vessels to North Korea and from registering, owning, leasing, operating, or providing any vessel classification in North Korea.17 ­Resolution 2270 also prohibits member states from the entry into their ports of any vessel owned by a designated individual and entity or that contains prohibited cargo.18 The resolution blacklists 31 ships owned by the North Korean shipping firm Ocean Maritime Management Company (omm).19 The ships on the blacklist are banned from entry into ports of member states.20

12 13 14 15 16 17 18 19 20

u.n. Security Council Resolution 2094, para. 18. Ibid., para. 17. u.n. Security Council Resolution 2270, para. 1. Ibid., para. 6. Ibid., para. 18. Ibid., para. 19. Ibid., para. 20. Ibid., Annex iii. Ibid., para. 22.

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Maritime Security Regimes against North Korea on the Korean Peninsula

Close of Intra-shipping Lanes Divided into the South and the North, the two Koreas have confronted each other along the heavily armed border on land and the Northern Limit Lines (nlls) in the sea. There have been reconciliatory efforts to ease tensions and seek a path to a unified Korea. The most far-reaching and landmark event in the area of maritime affairs was that the South and the North agreed to reopen shipping lanes between the two Koreas, which had been closed over the past 50 years. In May 2004, the South and the North reached the Agreement on Maritime Transportation between the South and the North, which entered into effect on 15 August 2005. In accordance with the agreement, they opened the intrashipping lanes available to only the two countries’ merchant ships navigating between the South and the North.21 The ships from the South and the North were allowed to have free access to 14 ports (seven from each) by using the designated shipping lanes, established a few miles outside of territorial seas.22 The North greatly benefited from the shipping lanes because its ships could save 270 nautical miles by using them as well as the Jeju Strait within South Korea’s territorial sea when navigating from the west coast to the east coast or vice versa.23 Before the shipping lanes opened, North Korean ships were forced to navigate outside the Maritime Control Area against North Korean Assets, established by the South Korean Navy for security purposes, and they were denied to the entry into South Korean ports. South Korea unilaterally closed the shipping lanes as part of the so-called May 24 Measures 2010, a package of sanctions on North Korea, in the wake of a South Korean naval vessel’s sinking by the North’s torpedo attack on 26 March 2010. While suspending the Maritime Transportation Agreement, the South Korean government denied North Korean ships’ access to the designated sea lanes and the entry into ports. Instead, they were forced to navigate outside the Maritime Control Area, as it was before the opening of the intra-shipping lanes. The number of North Korean ships that used the intra-shipping lanes during the period was up to 1,390, of which 177 North Korea ships navigated through the Jeju Strait.24 21 22 23 24

Art. 1, The Agreement on Maritime Transportation between the South and the North. For further information, see Suk Kyoon Kim, ‘Korean Peninsula Maritime Issues’ (2010) 41(2) Ocean Development and International Law 166–185, at pp. 175–178. Ibid. The Ministry of Unification of South Korea, statistics available at http://www.unikorea .go.kr/content.do?cmsid=3099.

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psi South Korea is a full participant of the Proliferation Security Initiative (psi), which aims to stop trafficking of weapons of mass destruction (wmds), their delivery systems, and related materials to and from states and non-state ­actors.25 Even though South Korea was considered a key country to the psi, which is led by the United States, it was reluctant to join the psi out of concern that its full participation might provoke a military conflict and would undermine a reconciliatory mood with the North.26 Meanwhile North Korea’s nuclear test on 25 May 2009 drove the South Korean government to fully participate in the psi. However, its participation did not affect the status of the intra-shipping lanes under the Maritime Transportation Agreement. The participation of South Korea in the psi was a year before the South ­unilaterally closed the shipping lanes. The coverage of the Maritime Transportation Agreement was confined to the merchant vessels from the South and the North, and the ships navigating the designated shipping lanes were prohibited from carrying weapons and their materials.27 Any ship suspected of violating prohibited activities is subject to boarding and inspection. When violation is confirmed, the ship is forced to leave the shipping lanes.28 It was a logic that the South Korean government wavered on in its full participation in the psi, arguing that the agreement would bring the same effect as joining the psi.29 Although the two regimes somewhat overlapped in terms of the enforce­ ment against ships in violation, they expressly differ in the coverage of en­ forcement. While the psi targets any vessel regardless of its flag, the agreement was only confined to Korean flags navigating the designated shipping lanes. Enforcement of Implementation by South Korea On 10 February 2016, the South Korean government decided to completely shut down the Kaesung industrial complex in retaliation for North Korea’s nuclear test and rocket launch. The Kaesung industrial complex in North Korea, which lies 6 miles north of the Demilitarized Zone and opened in 2004, served as a bridge of economic cooperation and reconciliation in midst of escalating tensions between the South and the North. However, it was believed that the economic 25 26 27 28 29

u.s. Department of Security, Proliferation Security Initiative, available at http://www .state.gov/t/isn/c10390.htm. Kim (n 22), p. 180. Art. 2(6), The Implementation Annex to the Agreement on Maritime Transportation between the South and the North. Ibid., Art. 2(9). Kim (n 22), p. 180.

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benefits earned by 54,000 North Korean workers hired by 124 South Korean companies were channeled into developing nuclear weapons and missiles.30 In addition, the South Korean government released unilateral sanctions on North Korea to enforce the u.n. sanctions. The South Korean government expanded the blacklist of individuals and entities involved in the development of nuclear weapons by adding 40 individuals and 30 entities.31 Notably, the ships that have traveled to North Korea in the past 180 days are denied entry to South Korean waters. As a result, according to the Korean government, foreign shipping companies are likely to be reluctant to sign a shipping contract with North Korea to travel to South Korea, given that shipping contracts normally last more than six months.32 This sanction also targets flag ships of convenience owned by North Korea. In 2015, 66 ships from other countries that had traveled to North Korea entered into South Korean ports 106 times, carrying mostly steel and general goods.33 Japan also banned any ships that have travelled to North Korea from entering its ports. These joint measures by South Korea and Japan are expected to prevent North Korea from transporting illicit goods over the sea.34 iv

Factors Considered in the Implementation of the Sanctions in the Sea

Consistency with Innocent Passage A big challenge in implementing part of the maritime sanctions under the u.n. Security Council Resolutions on North Korea concerns how to strike a balance between the innocent passage regime under the u.n. Convention on the Law of the Sea (unclos) and enforcement against ships in violation of obligations under the resolutions. This is concerned with how to prioritize conflicting international laws, which are a traditional international norm on the use of sea and a newly born norm for sanctions on North Korea. 30

31

32 33 34

President Park of South Korea stated that $110 million were paid for North Korean workers’ pay last year and the sum of pay is up to $513 million. Statement was from the parliamentary speech on state affairs on 16 February 2016. Office for Policy Coordination, Prime Minister’s Office, Press Release (translated by author), 8 March 2016, available at http://www.pmo.go.kr/pmo/news/news01.jsp?mode= list&board_no=6&pager.offset=20. Ibid. Ibid. Ibid.

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As stated earlier, Resolution 2270 requires member states to inspect the cargo that has originated in North Korea or that is destined for North Korea. Under the unclos, ships of all states are given the rights of innocent passage through the territorial sea, so long as navigation is not prejudicial to the peace and good order or security of the coastal state.35 The unclos lists activities which are considered not innocent, including any threat or use of force and any exercise or practice with weapons of any kind.36 Under the unclos, the criterion of being ‘innocent’ on the territorial sea is based primarily on the activity of a ship, not the cargo on board. Accordingly, the obligation of cargo inspection under R ­ esolution 2270, which is based on cargo on board a ship and the blacklist of ships, appears to be inconsistent with the innocent passage regime under the unclos. The conflicting norms could cause confusion at the working level in interpreting and enforcing the language of the resolution. An episode that happened in the South Korean waters shows the case. On 17 March 2016, when Orion Star, a Mongolian registered ship owned by the omm on the blacklist, was navigating through the South Korea territorial sea departing from Nampo, a North Korean port on the east coast, the South Korean Coast Guard did not take any measure to inspect the ship in accordance with Resolution 2270. Instead, coast guard ships were closely monitoring the North Korean ship until it got out of the South Korean waters. Against this backdrop, the Korea Coast Guard argued that ‘it is not entitled to take measures against a ship unless there is a threat from the ship or there are reasonable grounds to believe that it violates law.’37 ‘Although a flag of convenience ship is blacklisted, the Coast Guard cannot afford to search the ship unless there is a specific ground for violations.’38 The relevant South Korean laws do not address the problem of inconsistency with the innocent passage regime under the unclos either. The Territorial Sea and Contiguous Zone Act, which adopted the language of the unclos, builds on the activity criteria.39 The Maritime Guard Act authorizes coast guard officers to inspect ships that are believed to be carrying weapons of mass destruction, other weapons and related materials. Inspections on foreign ships should be in accordance with international laws and treaties that Korea has signed.40 35 36 37 38 39 40

Arts. 17 & 19, unclos. Ibid., Art. 19. ‘No Action of the Government on the Ship through the Territorial Sea’ (translated by author), Dong A Ilbo 18 March 2016. Ibid. Art. 5, The Territorial Sea and Contiguous Zone Act. Art. 12, The Maritime Guard Act.

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In order to address this inconsistency, the South Korean government has apparently inquired of the u.n. Security Council Committee what measures should be prioritized when it comes to innocent passage and cargo inspection under the u.n. resolution in the territorial sea. Enforcement of Sanction Measures A key to the successful implementation of the sanction measures against North Korea is a firm commitment from member states. The implementation of sanction measures depends primarily on the will of member states to enforce. In order to monitor the implementation of the sanction measures, the Security Council has established two control mechanisms: the Sanctions Committee and the Panel of Experts. The Sanctions Committee, established pursuant to Resolution 1718 (2006), oversees the sanction measures against North Korea imposed by the Security Council. The committee was entrusted with additional functions pursuant to resolutions 1874(2009), 2087(2013), 2094(2013), and 2270(2016).41 The committee is mandated to take appropriate action on information regarding violation of sanction measures; examine the member states’ reports pursuant to relevant resolutions; and examine the reports presented by the Panel of Experts.42 The committee is supported by the Panel of Experts. The Panel of Experts was established pursuant to Resolution 1874 in 2009. The Panel of Experts, comprised of eight experts in nuclear issues, weapons of mass destruction and maritime transport, etc., is tasked with assisting the committee. The Security Council has urged all states to cooperate fully with the committee and the panel, in particular by supplying any information on the implementation of the measures.43 Due to the increasing complexity and number of sanction regimes, many states, especially small ones, lack implementation and enforcement capacities. This is often further complicated by weak financial institutions, poor customs and export control systems, and a lack of awareness among companies and officials.44 The number of implementation reports submitted by member states, which has gradually declined, may indicate the will and capacity of those states for the implementation of sanctions. Although all member states of the 41 42 43 44

u.n. Security Council Web site, available at https://www.un.org/sc/suborg/en/sanctions/ 1718. Ibid. Ibid. Bernt Berger, ‘Sanctions against North Korea: A tricky dilemma’ European Union Institute for Security Studies, July 2015, available at http://www.iss.europa.eu/uploads/media/ Brief_23_DPRK_sanctions.pdf.

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u.n. are obliged to submit the implementation reports to the Sanctions Committee, only 99 countries out of 199 u.n. member countries submitted their implementation reports for past resolutions. Specifically, only 93, 58, 42, and 35 countries submitted their implementation reports for resolutions 1718(2006), 1874(2009), and 2094(2013) respectively. By continent, only seven African countries out of 54 countries submitted the report, which is the lowest rate with 12%. This is followed by Central and South American countries with 39.4% (13 out of 33 countries) and ­Asian-Pacific countries with 50.9% (28 out of 55 countries). Most developing countries or countries of concern did not submit any report whatsoever.45 The lowest implementation of African countries has a significant implication because their demands for North Korean weapons are likely to be higher due to civil wars underway. Technical Issues The flag of convenience ship and the vessel chartering system in the shipping community make the implementation of sanctions on North Korea more complicated. The JinTeng episode shows the case. In March 2016, the Philippines Coast Guard released a North Korean cargo vessel, M/V JinTeng, which it had seized and impounded for nearly a month, as the u.n. Security Council removed the ship from the list of sanctions under Resolution 2270.46 The Philippine Coast Guard searched and seized the North Korean ship, which was one of the 31 vessels owned by omm, a target entity under Resolution 2270. The u.n. Security Council decided to remove JinTeng, along with three other vessels, from the blacklist, as China confirmed that they did not belong to omm. It is believed that JinTeng, which was flying a Sierra Leone flag, is a flag of convenience ship owned by the Chinese. Under Resolution 2270, all ships under Annex iii, which are economic resources controlled or operated by omm, are subject to the asset freeze and prevented from the entry into foreign ports.47 Most of the targeted 27 vessels have been disappearing from radars since the adoption of Resolution 2270. Upon the adoption of the resolution, the target ships turned off the Automatic Identification System (ais) to evade radar tracking. Those ships on the blacklist were all stranded at ports for awhile. Two of those ships were moving between 45 46

47

Ibid. ‘Philippines Releases Ship Linked to North Korea,’ The New York Times, 25 March 2006, available at http://www.nytimes.com/2016/03/26/world/asia/philippines-north-koreaship.html?_r=0. Resolution 2270, para. 23.

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domestic ports, not sailing to other countries.48 In nearly a month after the adoption of the resolution, however, some of them were found to be sailing in the waters off the Korean Peninsula and near Japan.49 By this account, it appears that the target ships resumed operations, making use of holes in the u.n. sanctions against those ships. North Korea’s Sanction Evasion Despite a series of tough sanction measures against North Korea, the international community has not been successful in preventing North Korea from conducting nuclear tests and launching ballistic missiles. North Korea adopted a constitutional amendment declaring itself as a nuclear weapon state and ignored pledges by the u.n. Security Council to refrain from nuclear tests and provocations.50 In 2010, North Korea unveiled a low-enrichment uranium program for power reactors. In 2015, North Korea declared that it had developed a miniature device for nuclear warheads. At the Congress of North Korea’s Worker’s Party on 6 May 2016, North Korean leader Kim Jung Un said that the nuclear test and satellite launch in January and February 2016 were a great success and that nuclear weapons and missile programs brought his country ‘dignity and national power.’ On 23 June 2016, North Korea challenged the u.n. sanctions by declaring that it successfully launched a mid-range ballistic missile, called Musudan, which can cover 3000–4000 km. If the North Korean declaration of being a nuclear state is true, how did North Korea achieve this amid various tough sanctions imposed by the u.n.? A possible answer to this question is that North Korea has developed its sanction evasion techniques and non-compliance. According to the Report of the Panel of Experts, issued in March 2014, North Korea makes increasing use of ‘multiple and tiered circumvention techniques.’51 The weak control of dualuse items helped North Korea build a network for smuggling arms and illicit materials to and from the country. North Korea makes use of weak transshipment regulations, falsified cargo declarations and shipping documents, 48

49 50 51

‘North Korean Ship Activity Down in Wake of Sanctions,’ upi, 5 April 2016, available at http://www.upi.com/Top_News/World-News/2016/04/05/North-Korean-ship-activity -down-in-wake-of-sanctions/1851459906838/. ‘Activities Detected on Sanctioned North Korea Ships,’ Voice of America, 14 May 2016, available at http://world.kbs.co.kr/english/news/news_Po_detail.htm?No=119003. Berger (n 44). ‘Report of the Panel of Experts,’ u.n. Security Council, available at https://www.un.org/sc/ committees/1718/poereports.shtml.

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reflagging and disguised materials in order to conceal the movement of banned materials.52 The Chung Chun Gang seized by Panama demonstrated the ways used to circumvent sanctions. On July 15, the North Korean container ship was seized on the charge of arms trafficking when it was carrying 240 tons of Soviet-era weapons under sacks of sugar. The ship was stopped on suspicion that it was carrying drugs, but on searching the vessel, those weapons were found in hidden containers. v

Conclusion

Despite a series of enhanced sanctions by the international community, North Korea, to date, has not shown any sign that it has retreated from its position toward nuclear weapons. On the contrary, North Korea has publicly defied u.n. sanctions by conducting a number of nuclear tests and missile launches, including the firing of a submarine-launched ballistic missile in April 2016. As discussed above, the sanction regimes are a limited legal and political framework as well as a tool to bring international efforts together with binding force. Thus, compliance with and implementation of u.n. sanctions are fully dependent on commitments of member states. The international community needs to address a legal gap between the innocent passage regime under the unclos and the sanction measures in order to strengthen the sanction regimes. Otherwise, it would weaken the enforcement of the sanctions and cause confusion in enforcement, as demonstrated in the episode of the Korea coast guard. North Korea has set up a sophisticated system to circumvent sanctions. In order to achieve the goal of sanction regimes, international coordination and cooperation should be strengthened among countries concerned at the multilateral and bilateral level. Northeast Asian countries, in particular, are necessary to conduct more concerted efforts to monitor and share information on target ships and other vessels sailing to and from North Korea. China’s role in this regard is vital to the successful implementation of the sanctions. Without a firm commitment from the international community, a package of sanctions against North Korea could end up only as rhetoric.

52

Berger (n 44).

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The Sewol Ferry Disaster in Korea and Maritime Safety Management i

Introduction

The sinking of the Sewol ferry on 16 April 2014 was the deadliest peacetime maritime accident in Korea since 1970.1 In the aftermath, the Korean government established an agenda committed to advancing maritime safety standards, safety management governance, practices, and institutions as well as to enhancing public awareness of maritime safety. Despite such commitment, challenges remain. For Korea, which has a good safety record and a modern maritime safety infrastructure, the 2014 ferry disaster was a shock that affected the country as a whole. Many critics argued that the ferry accident was the outcome of rapid economic development, referred to as ‘compressed growth,’ where the povertystricken country in the 1950s and 1960s has risen to one of the world’s most developed countries in a few decades. They maintain that the country has sacrificed safety for rapid economic development. This chapter explores what caused this type of ferry accident and identifies the lessons learned from the disaster and the challenges that exist to ensure the maritime safety of passenger ships to prevent such disasters in the future. ii

The Sinking of the Sewol Ferry

Overview2 On 16 April 2014, the Sewol ferry, a 6,825-ton, roll-on roll-off passenger ship, with 476 passengers and crew on board, was en route to Jeju Island when it sank off the coast of Jindo Island, southwest of Korea. The passengers included 1 On 12 December 1970, the Namyoung ferry with 338 passengers on board en route to Busan from Jeju Island capsized off the coast of Yeosu in the southern part of Korea, leaving 326 people dead. 2 The description of the sinking of the Sewol ferry is based on the Safety Investigation Report, released by the Korea Maritime Safety Tribunal (kmst) on 9 December 2014. The kmst probed into the ferry accident through a special investigative team for eight months. The

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_011

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345 high school students on a field trip, 14 teachers, 104 general passengers and 33 crew members. The accident resulted in 295 dead, nine missing, and 172 rescued. The ship departed from the Incheon Port around 21:00 on 15 April, after experiencing a two-hour delay due to a thick fog, which made visibility less than 1 km. The ferry arrived at Maengol Strait off the Jindo Island around 08:27 on 16 April. The weather conditions there were wind speed of 4–7 m/sec, waves of 0.5 m high, and good visibility. Passing through the Maengol Strait3 at 18 knots, the ferry, loaded with 2142.7 tons of cargo, began to list sharply to the left when it made a left turn around 08:49 and capsized around 10:25. Causes of the Disaster The Korea Maritime Safety Tribunal (kmst) explored the causes of the sinking of the Sewol ferry. The Prosecution Service4 and the Board of Audit and Inspection conducted investigations to determine the causes in the context of criminal prosecution and administrative charges.5 The followings are the findings of these agencies: First, unseaworthiness as a result of modifications to the ferry; overloading of cargo; and drainage of required ballast water were identified as the causes of the sinking. The vessel, built and commissioned in Japan in 1994, was purchased by Chunghaejin Marine Co. in 2012. Before the Sewol ferry was placed in service in Korea, the ferry’s upper decks were renovated, adding scores of cabins capable of carrying an additional 114 passengers and an art gallery.6

3

4

5

6

kmst says that it has concluded the safety investigation report by interviewing 53 people, including crew, and by conducting spot inspections and simulations. The Maengol Strait is a narrow channel with 4.5  km of width between Jindo Island and Maengol Island. The current speed in the channel is up to 6 knots, the second highest in Korea after Uldolmok Channel in the vicinity. The Prosecution Service released the result of investigation on the Sewol ferry’s sinking on 6 October 2014. According to the Prosecution Service, it has conducted extensive investigations on the ferry’s sinking, using three special investigation teams at the regional prosecution services. The focus of their investigation were on five areas: causes of the Sewol ferry’s sinking and violation of crew’s responsibilities; negligence in management and supervision of ship safety; corruption of the owner of Chunghaejin Marine Company and his family; irregularities of the shipping community; violation of responsibilities in rescue operations. The Prosecution Report is available at http://www.spo.go.kr/spo/notice/press/press.jsp. Bureau of Audit and Inspection material (in Korean) is available at . kmst, Report (n 2), p. 10.

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According to the findings of kmst, the modification made the ship topheavy, moving the ferry’s center of buoyancy 51  cm upward, which made it more prone to capsizing.7 When the Korea Register (kr), a non-profit vessel classification agency responsible for the inspection of a redesign of the ferry’s body8 approved the modification, it set stability limits for the ferry respecting the maximum cargo weight that it could carry, and on the minimum amount of ballast needed when fully loaded. More specifically, the limits set after the modification were that the maximum weight of cargo was 987 tons, a reduction of 1,450 tons from the original cargo capacity, and the amount of ballast needed was 1,703 tons, an increase of 1,333 tons from the original design.9 It was found that the Sewol ferry was loaded with 2,142 tons of cargo and with 1,375.8 tons of ballast water.10 The Prosecution Service accused the company of deliberately draining of the ferry’s ballast water to load more cargo.11 The prosecution also discovered that the overloading of the Sewol ferry had been a common practice and the redesign of the ferry to carry more cargo were a way to address the worsening financial problems of the Chunghaejin Marine Co. The Prosecution Service indicated that the financial problem had been brought about by constant embezzlement and fraud by the owner of the Sewol ferry company and his family, starting in 2005.12 Second, poor lashing of vehicles and badly tied-down containers were blamed for the sharp tilting of the ferry. The poorly lashed and improperly secured 80 vehicles and 1,100 tons of shipping containers fell to one side, and this led the ferry to tilt sharply by 30 degrees, which made it impossible to set right once again.13 The Prosecution Service, citing the results of simulation conducted by a research team at Seoul National University, found that if cargos had been properly secured, the ferry would have tilted less than 10 degrees.14 Third, the poor steering by the vessel navigators who made a sharp turn without considering the stability of the Sewol ferry is problematic. The Prosecution Service discovered that when passing through the Maengol Channel, the spot of the sinking, the captain was not present on the bridge, and he had neglected his duty to steer through the narrow and risky waterway. Instead he 7 8 9 10 11 12 13 14

Ibid. Art. 15, The Ship Safety Act; The modification of a ship requiring government approval is limited to the length, width, depth, and purpose of a ship. kmst, Report (n 2), p. 10. The Prosecution Service (n 4), p. 5. Ibid., pp. 4–5. Ibid., pp. 6 & 17. Ibid., p. 6. Ibid., p. 7.

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arranged for a 25-year-old third mate to make her first navigation through the channel from Incheon to the Jeju Island. The third mate and the helmsman made a sharp right turn, ignoring a recommendation not to make sharp turns due to the ferry’s instability.15 According to the kmst report, the captain and the third mate officer were aware of the stability issues of the ferry as a result of the modifications. It was found that the former captain of the ferry Sewol had advised crews not to make sudden turns greater than 5 degrees at once.16 The kmst Report also found that the captain and crew members were poorly trained for emergency situations, which resulted in their fleeing the vessel when the ferry started to capsize without taking actions to protect the passengers.17 When the ferry continued to tilt, they repeatedly directed the passengers to ‘stay inside the ship.’18 The captain and crew were all arrested and charged. The captain and three senior crew members, including the first and second mates and a chief engineer, were convicted of murder through willful negligence.19 The prosecutors asked that the captain receive the death penalty. The rest of the crew members were charged with killing or injuring the passengers by leaving them at risk.20 In a trial on 11 November 2014, the captain was acquitted of murder. The judge ruled that the prosecution had failed to prove the murder charge. Instead the captain was convicted of failing to take the steps required to save passengers in an emergency.21 The captain was sentenced to 36 years in prison for deserting his ship and passengers in the fatal crisis. The judge ruled that the captain ‘abandoned his passengers, knowing that they were waiting for instructions from the crew and that if they were not evacuated, their lives would be at risk.’22

15 16 17 18 19

20 21

22

kmst (n 3), p. 90. Ibid, p. 29. Ibid, pp. 93–95. Ibid, p. 3. The Prosecution Service, supra note 4, p. 8.; The chief engineer was convicted of murder on the charge of willful negligence for abandoning two seriously injured cooks whom he could have saved. Ibid. ‘Captain Gets 36 Years for Deserting Korean Ferry,’ The New York Times, 11 November 2014, available at https://www.nytimes.com/2014/11/12/world/asia/south-korea-ferry-captain. html. Ibid.

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The others were found guilty of similar charges. The first and the second mates were sentenced to 20 and 15 years in prison, respectively.23 Eleven crew members of lower rank were sentenced to five to 10 years in prison for shirking their duty to save passengers.24 In a subsequent appeal on 28 April 2015, the captain was found guilty of murder and sentenced to life in prison.25 Disaster Response Concerning vessel traffic services in Korea, the Maritime Safety Act, the implementation of Chapter 5, Safety of Navigation of the International Convention for the Safety of Life at Sea (solas) Convention,26 directed that the Vessel Traffic Services (vts) are provided in the Special Areas for Maritime Safety and heavy traffic areas off the coasts.27 The purposes of vts are to provide information to prevent marine accidents such as collision and grounding; to enhance the efficiency of port management; and to provide advice, recommendations, and directions for maritime safety.28 At the time of the Sewol ferry disaster, the Ministry of Oceans and Fisheries (mof) had responsibility for the port vts, while the Korea Coast Guard (kcg) had responsibility for the coastal vts. The Jindo Coastal vts, one of three coastal vts centers and the one in charge of the waters where the Sewol ferry sank, was monitoring the movement of the Sewol ferry on a voluntary reporting basis. When the Sewol ferry began to tilt, the crew first called for help, contacting the Jeju Port vts around 08:55 on 16 April.29 The distress call was relayed to the Jindo vts via the situation room of the Mokpo District Coast Guard, which is in charge of these waters. Contacting the Sewol ferry, the Jindo vts kept advising the crew members to ‘give directions for the passengers to put on life jackets’ and to ‘determine quickly the evacuation of passengers on the captain’s discretion.’30 The Jindo vts directed vessels in the vicinity on the radio to ‘render assistance to rescue operations.’31 When the crew reported to the Jindo vts that they were not able 23 Ibid. 24 Ibid. 25 ‘Sewol Ferry Captain Jailed for Murder of 304 passengers,’ cnn, 28 April 2015, available at http://www.cnn.com/2015/04/28/asia/sewol-ferry-captain-jailed-murder/. 26 International Convention for the Safety of Life at Sea, 1184 u.n.t.s. 2. 27 Art. 36, The Maritime Safety Act. 28 Art. 12, The Presidential Decree of the Maritime Safety Act. 29 kmst (n 2), p. 51. 30 Ibid., p. 53. 31 Ibid.

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to confirm how much the ferry was flooded, and that the ferry had listed by 60 degrees to the left, they evacuated, leaving passengers inside.32 Thirteen coast guard officers at the Jindo vts Center were convicted of negligence and the forgery of communication records.33 The kcg is, in accordance with the Maritime Distress and Rescue Act, the lead agency responsible for search and rescue operations for marine incidents. Depending on the scale of maritime distress, central, regional, and district rescue headquarters are established in accordance with the organizational structure of the kcg.34 Their missions are to command, control and coordinate rescue activities by agencies from both public and private sectors. When the Sewol ferry accident was reported to the kcg headquarters, the Central Rescue Coordination Headquarters was activated under the control of the commandant of the kcg. The regional and district rescue headquarters were also activated. kcg rescue forces included the 122 Rescue Team, named after the emergency maritime distress call 122. These teams exist in all 17 district coast guard stations. Also activated was a Special Rescue Team at the South Sea Regional Command, which specializes in deep-sea rescue operations. The kcg has four Maritime Commando Units in the regional commands, composed of rescue officers mostly from navy special forces. They are primarily responsible for maritime anti-terrorism. The rescue forces were joined by the rescue forces of the navy and civilian rescuers. A coast guard vessel, the 100-ton ship, Ship 123, was on routine surveillance duty 13.7 nm away from the accident, and was dispatched to rescue the passengers on the Sewol ferry. Three helicopters on duty in the vicinity were also dispatched to rescue the passengers on the ferry. The captain of Ship 123 was designated as an on-scene commander (osc), in charge of the rescue operation. In collaboration with fishing boats, they rescued 172 passengers mostly on the deck of the sinking ferry. The captain of Ship 123 testified at the National Assembly Inquiry that when the vessel arrived on the scene, the Sewol ferry was tilting by 50 degrees.35 The captain of Ship 123 was charged with the botched rescue effort that wasted precious time and delayed the evacuation of people from the vessel. The captain 32 33 34 35

Ibid., p. 54. The Prosecution Service (n 4), p. 12. Art. 5, The Distress and Rescue Act. ‘The Captain of the Coast Guard Ship 123 Says Those Who Asked for Rescue Were Rescued,’ (translated by author) Yonhap News, 16 October 2014, available at http://www.yonhapnews.co.kr/bulletin/2014/10/16/0200000000AKR20141016136200001.HTML?input=1179m.

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was found guilty of professional negligence and sentenced to four years in prison. He was also charged with falsely reporting that he had broadcast an evacuation order through loudspeakers.36 iii

Passenger Ship Transport and Status of Marine Accidents

Overview of Global Passenger Ship Accidents Ferries are the safest form of transportation in North America and Europe. However, they are often the agents of catastrophe in some developing countries. Over past decades, there have been numerous incidents in which hundreds have died. In the first few years of the 21st century, there have been, on average, over 1,000 fatalities annually.37 Table 10.1 shows the status of the worst passenger ship accidents worldwide, primarily ferries, since 2000. Most notable is that the deadliest incidents over the past decade, involving hundreds to thousands of fatalities, have occurred in developing countries in Southeast Asia and Africa. Among them, Bangladesh, Philippines and Indonesia are ranked as the most vulnerable countries for ferry accidents in Asia. These countries are each composed of archipelagic islands and rivers where ferry transport is a major mode of transport for much of the population. In Bangladesh, a nation of 130 million people living on a coastal river delta interspersed with 250 north–south rivers, approximately 20,000 ferries provide two distinctive types of transport service: (1) river crossing and (2) long-distance travel. The latter is more likely to be involved in a catastrophic accident.38 Between 2000 and 2004, more than 4,000 people globally, mostly from developing countries, died in ferry accidents. As illustrated in Table 10.1, this trend appears to have continued despite endeavors to prevent ferry disasters and reduce fatalities. When it comes to the causes of disastrous ferry accidents, major contributing factors include the poor quality of vessels, overcrowding, sudden hazardous weather, and the human factor.39 Most accidents are caused by the ­interaction of several contributing factors, none of which would be fatal on 36 37 38 39

‘South Korea Coast Guard Captain Jailed over Sewol Ferry Rescue Bid,’ bbc News,21 April 2014, available at http://www.bbc.com/news/world-asia-31412680. Catherine T. Lawson & Roberta E. Weisbrod, ‘Ferry Transport: The Realm of Responsibility for Ferry Disasters in Developing Countries’ (2005) 8(4) Journal of Transportation, p. 17. Ibid., p. 22. ‘How Safe Are Ferries?,’ Discovery News, 18 April 2014, available at http://news.discovery. com/human/how-safe-are-ferries-140418.htm.

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Table 10.1 Status of fatal passenger ship accidents worldwide since 2000*

No. Ship

Country

Type

Date

Location

Fatality Cause

1

Le Joola

Senegal

Ferry

9.26.2002

1,863

Overloading

2

Spice Islander i Al-Salam Boccaccio 98 Princess of Stars Nasreen i Salahuddin 2 Senopati Nusantara Rabaul Queen km Terati Prima Bulgaria

Zanzibar

Ferry

9.10.2011

1,570

Overloading

Egypt

Ferry

2.03.2006

Off coast of Gambia Zanzibar Channel Red Sea

1,093

Philippine

Ferry

6.21.2008

Fire, design flaw Stormy weather Strong current N/A Stormy weather Large waves

3 4 5 6 7 8 9 10 11 12 13 14 15

Thomas of Aquinas Samson Princess Ashika Coco-4 Costa Concordia

Bangladesh Ferry Bangladesh Ferry Indonesia Ferry Papua New Ferry Guinea Indonesia Ferry

Off Mandalika Island 7.08.2003 Meghna River 5.03.2002 Meghna River 12.30.2006 Off Mandalika Island 2.02.2012 Solomon Sea

814

7.10.2011

Makassar Strait

280

Volga River

122

Russia

Cruise 7.10.2011

Philippine

Ferry

8.16.2013

Off coast of Cebu Madagascar Ferry 3.07.2004 Off coast of Madagascar Tonga Ferry 7.07.2009 Off coast of Tonga Bangladesh Ferry 11.28.2009 Near Bhola Island Italy Cruise 1.13.2012 Off Isola Del Giglio

530 469 404 321

120 111

Stormy weather Stormy weather Overcrowding

56

Stormy weather Unseaworthiness Swamped

32

Grounding

74

Note: *The Sewol ferry is not listed.

their own. According to a report to the World Ferry Safety Association, human error was a cause in most of the ferry accidents between 2000 and 2014 (up to 60% to 86%,40 depending on how human error is defined). 40

Abigail Golden, ‘Ferry Fatalities: Statistics and Causation of Major Accidents 2000–2014,’ available at http://www.ferrysafety.org/news.htm.

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Of particular note is the stark contrast in the number of fatalities from ferry accidents between underdeveloped countries and highly developed countries. The u.s. ferry system, for example, which transports 200 million passengers annually, has had virtually no fatalities between 1904’s General Slocom ferry incident41 and 2003’s Staten Island ferry incident.42 The international community has, through the International Maritime Organization (imo), developed measures respecting the safety of large passenger ships, primarily cruise ships and passenger ferries. This culminated in the adoption of a series of amendments to the solas Convention in December 2006, which entered into force in July 2010.43 The guiding philosophy of the amendments is based on the dual premise in the design of future passenger ships. One is that the regulatory framework should place more emphasis on the prevention of casualties from occurring. The other is that passenger ships should be designed for improved survivability so that in the event of an incident, people can stay on board as the ship proceeds to port.44 The safety requirements of the solas Convention do not apply to ferries that operate inland or solely domestic routes.45 The imo has also recognized the need to focus on the ferries which do not come under the solas Convention and is working on the development of standards for non-convention vessels. In January 2006, the imo signed an mou with Interferry, a shipping association representing the ferry industry worldwide, to cooperate toward enhancing the safety of non-convention ferries. The aim of the mou was to reduce fatalities by 90%, and Bangladesh was selected as a pilot country to identify potential solutions to increase ferry safety.46 Participants from both the government and the private sector agreed to actions to provide worldwide ferry operations through global co-operation47 in

41 The ps General Slocum was a passenger ship built in 1891. She operated in the New York City area as an excursion steamer for the next 13 years. On 15 June, the General Slocum caught fire and sank in the East River of New York City. An estimated 1,021 of 1,342 people onboard died. 42 On 15 October 2003, the Staten Island ferry, with 1,500 passengers onboard, crashed fullspeed into a concrete pier at the St. George Terminal in New York. Eleven people were killed and 165 injured. 43 International Maritime Organization, ‘Safety of Ro-ro ferries,’ available at http://www .imo.org/OurWork/Safety/Regulations/Pages/RO-ROFerries.aspx. 44 Ibid. 45 solas Convention (n 26). 46 Ibid. 47 ship-technology·com, ‘Taking Action on Ferry Safety,’ 2 October 2014, available at http:// www.ship-technology.com/features/featuretaking-action-on-ferry-safety-4379066/.

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October 2013 by adopting the Nanjing Plan at the second regional meeting on the operational safety of domestic ferries held in Nanjing, China.48 The agreed-upon actions include inviting governments to develop appropriate regulations; reviewing and updating laws as well as keeping up with technological advancements and new imo instruments; promoting a safety culture among stakeholders; ensuring that ship owners and operators develop and implement safety management systems; facilitating the provision of aids to navigation, including Vessel Traffic Services; and encouraging ship designers and builders to seek better technical solutions for ferry construction, such as sink resistance and equipment to facilitate search and rescue. Passenger Ship Accidents in Korea Maritime accidents in Korea can usefully be compared with those in Japan. Table  10.2 shows the number of marine accidents in both Korea and Japan in recent years. The statistics indicate that, in Korea, there have been 10,155 marine  accidents with 1,282 fatalities from 2008 through 2014, averaging 1,455 marine accidents each year and 183 fatalities annually. Passenger ship accidents, including accidents caused primarily by ferries, account for 2.2% of the marine accidents nationwide. In Japan there have been 8,064 marine accidents during the same period, averaging 1,152 marine accidents annually, of which passenger ship accidents account for 6.5%, with 75 accidents annually on average. The number of fatalities between 2009 and 2012 totals 240 people, averaging 60 fatalities annually. Compared with Japan, Korea appears to be more prone to fatal marine accidents, with a higher number of accidents and a higher rate of fatalities. Concerning passenger ship accidents, Korea has had fewer passenger ship accidents, with 228 accidents, as opposed to 525 accidents in Japan in the same period. However it does not necessarily indicate that Japan is more likely to have passenger vessel accidents, because Japan consists of several thousand islands and an extensive network of ferry routes to connect each island. The disparity in the numbers of passengers carried by both domestic and international passenger ships in the two countries supports the argument. In Japan, 87 million people were carried by 2,272 passenger ships in 2010, as opposed to 17 million people carried by 224 passenger ships in Korea. It is important to note in terms of fatalities, the number of people dead or missing in marine accidents in Korea is much higher than Japan between 2009 and 2012, averaging 150 and 160 people annually. This is also demonstrated in the statistics of fatalities per accident, for which Korea recorded 15 fatalities 48

imo, ‘The Nanjing Plan,’ available at http://www.imo.org/OurWork/TechnicalCoopera tion/TCActivities/Documents/NANJING%20PLAN.pdf.

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per accident in last seven years, as opposed to five for the four years between 2009 and 2012 in Japan. This can be explained either by Korea being more prone to large-scale marine incidents or that the responses to accidents have not been as effective as in Japan. Notably, the number of marine accidents in Korea in 2013 dropped significantly to 1,093, approximately 500 cases fewer than the average annual maritime accidents for previous years, which had recorded over 1,500 cases per year. This can be credited to ‘The Project to Reduce Marine Accidents by 30%,’ of the Ministry of Oceans and Fisheries and the Korea Coast Guard. The project has focused on the prevention of marine accidents, of which fishing boats and small ships of less than 100 tons accounted for approximately 66% and 71.1% of maritime accidents, respectively.49 Table 10.2 Status of marine accidents in Korea and Japan

Year

Korea

Japan

Number of Fatalities (%)* Number of Fatalities (%) marine accidents marine accidents (passenger ship) (passenger ship) 2008 2009 2010 2011 2012 2013 2014 Total

948(21)*** 1,815(17) 1,617(22) 1,809(22) 1,573(33) 1,093(39) 1,330(74) 10,185(228)

116(12) 148(8) 170(11) 158(9) 122(8) 101(9) 467(35) 1,282(13)

873(59) 1,522(62) 1,334(79) 1,126(68) 1,115(99) 1,084(103) 1,010(55) 8,064(525)

N/A 59(4) 52(4) 65(6) 64(6) N/A N/A 240(5)**

Source: Adapted from the Korea Maritime Safety Tribunal, and from the Japan Transport Safety Board and the Statistics Bureau of the Ministry of Internal Affairs and Communications Note: *This indicates the ratio of fatalities per marine accident. **The figures are counted with only the numbers of casualties available in the period between 2009 and 2012. ***The upsurge in marine accidents in 2009 in Korea and Japan alike is believed to be due to a wider coverage of marine accident statistics, rather than a rapid increase in marine accidents. 49

The Ministry of Maritime Affairs and Fisheries, Korea, ‘The Implementation Plan for Maritime Safety 2014’(translated by author), p. 8.

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Governing the Safety of Passenger Ships in Korea

Licensing The Shipping Act requires that the operators of passenger ships have a ­license, varying with the types of shipping services offered, from the Ministry of Oceans and Fisheries.50 The Chenghaejin Marine Co., in March 2013, had acquired from the Incheon Regional Oceans and Fisheries Administration a license for a domestic passenger liner service entitling it to operate two ferries on a route between Incheon and Jeju. Vessels purchased overseas are exempt from a newly built vessel inspection, and instead are subject to a special inspection carried out by the Korean Register (kr) in accordance with Art. 60 of the Vessel Safety Act, which provides that vessel inspections are outsourced to a public corporation.51 The Sewol ferry, purchased in Japan in 2012, was inspected by kr in February 2013 before being placed in service in February 2013. Safety Management System The safety requirements of the International Convention for the Safety of Life at Sea (solas Convention) apply to only the passenger ships engaged in international voyages.52 Accordingly, passenger ships are not subject to the safety management system to be adopted by states pursuant to the International Safety Management Code (ism Code), which obliges every company to develop, implement, and maintain a safety management system.53 Korea has the Vessel Safety Act and the Maritime Safety Law; the latter ­implements the requirements of the solas Convention, including the ism Code. Safety standards for domestic passenger ships are regulated by the Shipping Act, under which the task of safety management of passenger ships had been outsourced to the Korea Shipping Association (ksa),54 a cooperative association of domestic shipping companies established in 1949 to promote the shipping industry. The shipping management regulations under the Shipping Act are quite similar to the safety requirements in the Vessel Safety Act. However, they differ concerning the responsibilities and authorities of a captain and a ship owner. Under the supervision of the Ministry of Oceans and Fisheries and the Korea Coast Guard, the ksa was responsible for the safe operation of p ­ assenger 50 51 52 53 54

Art. 4, The Shipping Act. Art.7, The Vessel Safety Act. Art. 3, solas Convention (n 26). Ibid., International Safety Management Code, Part A(1.3). Arts. 21 & 22, The Shipping Act.

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ships engaged on domestic voyages. The responsibilities of ksa inspectors ­cover a wide range of safety checks, including adequate safety education for operators, the existence of safety officers in passenger ship companies and safety reporting, weather, and ship’s departure and arrival. Most importantly, the ksa was to monitor that passenger ships are not overcrowded or overloaded.55 It has long been argued that the ksa should not monitor safety because it may have conflicts of interest. In the aftermath of the Sewol ferry accident, the task of safety checks in passenger ships was transferred to the Korea Ship Safety Technology Authority,56 a public corporation responsible for ship inspections and surveys. Disaster Response The Disaster Response Act provides the legal framework for responding to natural or social disasters in Korea. Under the act, the Minister of the Ministry of Public Safety and Security (mpss), a ministry created in the aftermath of the Sewol ferry disaster, is responsible for coordinating the tasks of disaster response and safety management by central and local governments. The Disaster Management Act states that when a large-scale disaster is declared, the Central Disaster Response Headquarters (cdrh) is established at the mpss under the control of the minister.57 If a response to a large-scale disaster at the national level is necessary, the prime minister will be in charge of the cdrh. The large-scale disaster is defined as a disaster that inflicts enormous damage on life or property, or is a disaster with far-reaching social or economic consequences.58 The minister of the mpss is responsible for coordinating response and recovery operations for a large-scale disaster by all the agencies concerned. The minister is also authorized to ask for financial measures and administrative supports of the agencies concerned. Operational Maritime Safety The management of maritime traffic, such as maintenance of waterways, aids to navigation, and vessel traffic management, is provided primarily by the Ministry of Oceans and Fisheries. This differs from countries like the United

55 56 57 58

Art. 15.8, The Regulation of the Shipping Act. Art. 22, The Shipping Act. Art. 14, The Disaster Management Act Art. 14. Art. 13, The Presidential Decree of the Disaster Management Act.

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States and Japan, in which these services are carried out mostly by their coast guards. It has been a long-held position by the Korea Coast Guard that the vts ­responsibility be unified into a single agency, principally the kcg, as in the case in the United States and Japan. In the aftermath of the Sewol ferry ­accident, the tasks of vts, both port and coastal, have been incorporated into the mpss, to which kcg currently belongs. Restructuring of the Korea Coast Guard The kcg has been unique, in terms of its duty and organization. Unlike other coast guards in the u.s. and Japan, the kcg is a ‘police type’ coast guard. While typical coast guards are primarily committed to search and rescue and maritime safety and security, kcg’s duties have included some police missions such as criminal investigations and intelligence.59 This uniqueness comes from its organizational history. The kcg had been part of the National Police since its creation in 1953. When the Ministry of Oceans and Fisheries (mof) was created in 1996, the kcg separated from the National Police Agency and was placed under mof as a central government agency. In the presidential announcement of May 2014, President Park called the Korea Coast Guard’s Sewol ferry rescue operations a failure, noting that ‘if it had tried to rescue people more swiftly and more actively right after the accident, it could have greatly reduced the casualties.’60 She further said that ‘the Korea Coast Guard has been committed to criminal investigation and its organizational growth since its inauguration, neglecting search and rescue works.’61 As part of the plans to reorganize governmental organization to respond to disasters more efficiently, the kcg was restructured, splitting its duties into the National Police Agency and the mpss. The mpss incorporates the tasks of disaster management from other government agencies and the duties of the kcg. The restructuring will result in the kcg focusing more on search and rescue, with the previous criminal investigation and intelligence functions transferred to the National Police Agency.

59

60 61

Other than search and rescue, kcg’s missions include law enforcement, protection of marine resources, anti-maritime terrorism, integrity of maritime domains, maritime traffic service, national defense, oil pollution response, etc. The Presidential Announcement (translated by author), 19 May, 2014, available at http:// news.chosun.com/site/data/html_dir/2014/05/19/2014051900809.html. Ibid.

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Maritime Safety Standards and Penalties The Korean government has strengthened maritime safety by amending some maritime laws closely related to the safety of passenger ships.62 The ­amendment of the Shipping Act includes (1) reducing the age limit of passenger ships from 30 years to 25 years; (2) imposing strict liability for a ship owner responsible for a large-scale accident; (3) increasing fines for those who violate safety regulations; (4) transferring the oversight on the safety of passenger ships from the industry to a public corporation; (5) establishing electric ticketing to ensure proper management of passengers and cargo; (6) requiring the designation of personnel responsible for the safety management in a ship company; (7) creating a five-year plan to modernize passenger ships in Korea. The amendment of the Seafarer’s Law includes (1) establishing the master’s responsibility to ensure the stability of a ship and proper storage of cargo, and adequate equipment and personnel; and to report the result of such checks to the ship owner; (2) requiring the captain to be in command of the vessel in areas of frequent occurrence of accident; (3) clarifying the master’s duty to take actions necessary to save passengers and cargos in case of emergency and not to leave a vessel until protective measures are completed; and (4) increasing the penalty for masters who leave a ship in an emergency without completing life-saving actions or other necessary measures. The amendment of the Vessel Safety Act includes (1) the prevention of modifying a ship after a newly built ship inspection without a permit from the Ministry of Oceans and Fisheries; (2) and preventing any official who has worked as a ship inspector within five years of retirement from taking a job of inspector less than two years after retirement. Recognizing that a cause of the Sewol ferry disaster was a collusive link between the shipping industry and government regulators, the Korean government has engaged in steps to break close ties between industries and government bureaucrats.63 As a step to this end, the Civil Servant Ethics Law was 62 63

See Ministry of Oceans and Fisheries press release, ‘Passing the National Assembly of the Follow-up Measure Bills of the Sewol Ferry’ (translated by author), 10 December, 2014. President Park noted in the May 2014 Presidential Announcement, supra note 60, that ‘if safety regulations were properly complied with, this disaster would have not occurred’ and ‘The Shipping Association, a lobby for the industry, was in charge of inspecting the safety of ships, and retiring government officials took jobs at the association.’ ‘It is obvious that so long as such collusive ties exist, safety management will not be adequately implemented.’

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revised to expand the employment restriction of retiring government officials from two years to three years and to broaden the scope of job relevance to government positions, through which job opportunities are restricted. v

Further Challenges to Maritime Safety

In addition to a package of maritime safety measures implemented by the Korean government, a number of further steps based on the lessons from the Sewol disaster are suggested. As discussed above, the pursuit of rapid economic growth has dominated Korean society. The value of safety was often neglected. It is essential to promote ‘a culture of safety first’ to prevent further maritime disasters. Institutionally, more stringent standards should be employed to ensure maritime safety. The trend of deregulation and government outsourcing helped maritime safety regulations become lax. Some regulations governing maritime safety standards have been abolished or deregulated. For example, the modification of passenger ships was left out of government approval. It is necessary for the government to take a greater responsibility in educating, training, and certifying crew and captains within the small-scale passenger ship industry. To this end, a public academy that specializes in the qualification of shipping crews of domestic and international passenger ships should be created. The academy also should be responsible for the inspection for crews in service. In the wake of the Sewol ferry disaster, it was found that some in the Korea Coast Guard were not properly trained and lacked the appropriate equipment to rescue passengers onboard a large passenger ship that was tilting or capsizing. It was also found that the coast guard was not able to cope with a massive maritime disaster due to limited resources, mobility, access, and equipment. To bolster the rescue capability of the kcg, capacity-building tailored to advanced rescue and equipment is essential. Such a rescue capacity cannot not be achieved without a close partnership with the civil sector. As part of these efforts, the establishment of reserve rescue units, composed of civilian divers on a regional basis, should be considered. Their mission would be to assist the coast guard in the event of a maritime accident or to carry out rescue work on their own. In a massive disaster, a unified command is essential to ensure response and recovery in a prompt and orderly manner. At the initial stage of the Sewol disaster, the response was not well coordinated and managed among the relevant government agencies. To avoid such a lack of coordination, a unified c­ ommand

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across government agencies should be established. Moreover, response officials should be prepared through training, exercises, and actual experience. vi

Conclusion

The causes of the Sewol ferry disaster are a combination of human error, institutional and legal deficiencies, the greed of the ship owner, a lack of seamanship by the captain and crew, lax safety regulations, a lack of rescue capability, and the collusive ties between the industry and bureaucrats. The disaster has had a profound impact on the Korean society. Shocked by a catastrophe which was thought not to be possible in a developed, sophisticated nation, the country has engaged in developing a comprehensive package of measures to ensure maritime safety. Along with these safety measures, a culture of ‘safety first,’ above all, should be entrenched in daily life, and more emphasis should be placed on proactive measures to prevent and reduce maritime accidents.

chapter 11

Conclusion As discussed above, there are numerous maritime issues and disputes underway in Northeast Asia. The seas of Northeast Asia are somewhat like ‘a textbook of maritime disputes.’ In a particular circumstance of Northeast Asia where divergent political and economic systems exist and the legacy of the tumultuous past history still overshadows current events, maritime disputes have increasingly become an international determinant which negatively affects international relations in Northeast Asia. There is a concern that they could trigger high-intensity conflicts unless they are well managed and addressed. Historically, the seas of Northeast Asia were used as a channel where sea powers, such as European countries, Japan, and the United States, invaded land powers such as China, Russia, and Korea. The Korean Peninsula, in particular, had been a meeting point where two powers or more collided with each other. Throughout the Cold War era, the Korean Peninsula became an arena of ideological conflicts. The Korean Peninsula has remained divided and has become one of the most volatile regions in the world, as demonstrated by armed conflicts off the Northern Limit Line (nll) in the Yellow Sea and a series of nuclear tests by North Korea. This book deals with a wide range of maritime disputes in Northeast Asia and explores the issues and factors involved and the positions of relevant countries. The maritime disputes in the region are so complicated and intricately tied to historical, political, and socio-economic factors that they cannot be explored only from a legal perspective. This explains why they should be explored from a multi-faceted approach. Against this backdrop, for better understanding of the maritime disputes underway in Northeast Asia, this chapter will highlight some key points and arguments that were discussed above. Maritime Regime-building: Northeast Asian countries were blind to maritime regime-building until they were forced to open the door by European powers in the 19th century. With a long-held tradition of disregarding maritime affairs, largely due to Confucian values and a land-oriented culture, legal arrangements or customary law to govern the maritime order were not well established in the region. As a result, the seas of Northeast Asia had been chaotic and governed by force. After the end of World War ii, the newly born Northeast Asian countries had shown a keen interest in securing maritime interests as part of their ­nation © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_012

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building. In the wake of the adoption of the u.n. Convention on the Law of the Sea (unclos), Northeast Asian countries have since engaged in harsh competition for extended maritime jurisdiction and interests. They have enacted domestic legislations to adopt coastal states’ rights and responsibilities prescribed in the unclos. In the absence of a regional mechanism to coordinate conflicting interests and the lack of a tradition of cooperation, however, a great deal of maritime disputes arose as they unilaterally claimed their maritime interests in accordance with the unclos. For the better and more peaceful use of the seas, Northeast Asian countries need to be more actively involved in building regional maritime regimes to coordinate or manage conflicting maritime interests, including the creation of a permanent regional maritime council dedicated to developing regional maritime regimes and addressing maritime disputes. nll: The nll has become a symbol of the divided Korea as armed conflicts off the nll are threatening peace and stability on the Korean Peninsula. The nll is a result of the Korean War and has become a flashpoint of military conflicts on the Korean Peninsula, which has been managed by the 1953 Armistice Agreement. Since the 1953 establishment of the nll by the u.n. Command, the two Koreas have disputed over the legality and validity of the nll as the de jure maritime border. South Korea has argued that the nll is a valid and legal maritime boundary in the West Sea between the South and the North. Given the importance of the nll in ensuring maritime security against North Korea, South Korea never allows any change in the status quo of the nll. On 1 December 1973, North Korea for the first time raised the issue of the validity of the nll. North Korea declared on 2 September 1999 that the unilaterally established nll was invalid and promulgated a new maritime boundary line. North Korea unilaterally divided the waters off the five West Islands into three zones and designated two narrow waterways for passage of South Korean and U.S vessels. Some question the validity of the nll, arguing that it denies North Korea’s right to access the adjacent sea areas and thus is inconsistent with the principle of non-encroachment. It should be noted that the nll has played a vital role in preventing military encounters between the South and the North over the last six decades. Given the special military circumstance and the role of the nll in security, the direct application of standard maritime principles appears to be inappropriate. North Korea’s rights to access the sea should be discussed and resolved through direct consultation and maritime cooperation between the two Koreas. Straight Baseline and Innocent Passage: Northeast Asian countries share the narrow semi-enclosed seas whose breadth is less than 400 nautical miles

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wide. They have a keen interest in applying the criteria for maritime jurisdiction, particularly a straight baseline, because the criteria greatly affect the j­urisdiction of the exclusive economic zone and the continental shelf. Thus, the application of the criteria is a starting point to claim maritime jurisdiction. This occasionally results in a creeping application of the criteria of maritime zones, becoming a source of disputes in the maritime boundary delimitation. Korea claims that some of China’s straight baselines and basepoints in the Yellow Sea do not meet the criteria prescribed in the unclos. Korea’s arguments are: Chinese claims are inconsistent with the unclos in light of essentially having a smooth coast with no fringing islands and of the enclosed waters having no close relationship with the land. The legitimacy of some of the basepoints has been challenged in terms of being low-tide elevations situated far away from the coast. Korea, in this regard, has been concerned about the use of Dongdao as a basepoint because China has used the barren islet as a basepoint to claim jurisdiction over the disputed submerged feature ‘Ieodo’. Northeast Asian countries have shown keen interest in innocent passage of warships in their territorial seas. In the absence of the concrete criteria of innocent passage of warships in the unclos, China, Japan, and Korea take different positions depending on their internal situations. Although they follow the innocent passage regime under the unclos, China and Korea, in particular, reinforce rigid innocent passage of foreign warships, reflecting their security concerns. Maritime Boundary Delimitation: Many of the maritime boundaries of the exclusive economic zone (eez) and the continental shelf in Northeast Asia remain unsettled. Of nine maritime boundaries in Northeast Asia, only one— North Korea vs. Russia—has been fully delimited, and the rest are either partially settled or remain unsettled. Aside from North Korea and Russia, which declared their eezs in 1977 and 1984, respectively, China, Japan, and South Korea did not declare their own eezs until both Korea and Japan enacted their eez laws in 1996, and were followed by China in 1998. The delimitation of maritime boundaries is intricately linked to other maritime issues among and between Northeast Asian countries. Many of Northeast Asia maritime disputes, such as fisheries, exploitation of seabed resources, preservation of the marine environment, and maritime security, are attributed to unsettled maritime boundaries. The maritime boundary disputes are essentially connected to territorial disputes over the small islands. ­Maritime ­jurisdiction concerns the sovereignty of a state and sovereign rights to use and exploit the sea.

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Northeast Asian countries apply conflicting principles—the natural prolongation of the land territory vs. an equidistant line—which are considered ­favorable to their own interests. China’s maritime boundary claims in the Yellow Sea and the East China Sea are based primarily on the natural prolongation of the land territory, as opposed to the equidistant line by Japan and Korea. Korea applies different principles towards Japan and China, that is, the natural prolongation of the land territory towards Japan in the East China Sea and the equidistant line towards China in the Yellow Sea. Some suggest that the disputed islands should not be given a full legal effect to generate the eez and the continental shelf, other than a 12-nautical mile territorial sea. It would not be accepted by the disputants because they would perceive that this weakens their sovereignty claims. Another solution might be to jointly develop overlapping areas of claim, as in the joint development of the continental shelf between Korea and Japan, pending the boundary delimitation of the overlapping areas. For the limits of the continental shelf beyond 200 nautical miles, China, ­Japan, and Korea submitted their own information on the outer limits of ­continental shelf beyond 200 nautical miles from the baselines. These countries are to establish the limit of the continental shelf on the basis of these ­recommendations. However, problems with overlapping areas within 200 nautical miles still exist because the Commission on the Limits of Continental Shelf’s mandate is limited to the delineation of the continental shelf beyond 200 nautical miles from the baselines, and not to impose any weight on delimitation. Territorial Disputes: Territorial disputes over small islands have been a ­significant political factor in Northeast Asia, which has negatively affected the relationship of the disputants in many respects. The territorial disputes are an intense source of maritime conflicts in Northeast Asia. Furthermore, they have a great potential to undermine stability and security in the region at any time. Maritime disputes in Northeast Asia are intricately linked to disputes over the ownership of islands one way or the other. Thus, the settlement of maritime disputes would be difficult without resolving the territorial disputes, or at least without finding a way to bypass them. By the same token, Northeast Asian countries are engaged in provisional arrangements such as fishery agreements as a way of addressing conflicting claims to maritime jurisdiction, pending the resolution of territorial disputes. The origin of territorial disputes in Northeast Asia goes back to the tumultuous history of the 19th and 20th centuries. These disputed islands include Dokdo/Takeshima (Korea vs. Japan), Senkaku Islands/Diaoyudao (Japan vs. ­China and Taiwan), and Kuril Islands/Northern Territories (Russia vs. Japan).

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The disputed islands are mostly uninhabited islets, and they are subject to debate as to whether they are islands or rocks under the unclos, in which the ­legal title for a maritime boundary differs depending on its status. Together with sovereignty claims, the potential of an islet to generate an expansive maritime boundary is a focus of dispute over the islets. The territorial disputes in Northeast Asia are expected to become more intense unless the disputants maintain the status quo or take measures to reduce the intensity of the disputes. By all accounts, the possibility of the settlement of the territorial disputes by the third party, like in the settlement by the judgment of the International Court of Justice, as in the Sipadan and Ligitan case in 2002, appears extremely low. This is because the disputed islands have become the symbol of territorial integrity and nationalism in the disputants’ eyes. Given this circumstance, the disputants need to exercise wisdom for the territorial disputes not to develop into high-intensity conflict and negatively affect other parts of their relationships. At the very least, they need to find a way to bypass the issue. Marine Pollution: Marine pollution by pollutants discharged from vessels and shores is a serious issue in Northeast Asia. The seas of Northeast Asia are subject to some of the greatest risks from oil spills, comparable to the Mediterranean, Black Sea, and Northeast Atlantic. The Hebei Spirit incident in December 2007 off Taean, Korea, and the oil spill in Bohai Bay, China, in 2011 illustrate the case. Given the geography, where the countries in the region are closely situated adjacent or opposite in the narrow semi-enclosed seas, they are highly likely to be affected if pollution incidents occur in the waters of neighboring countries. A legally binding multilateral regime for marine pollution prevention and response, which obliges the regional countries to cooperate, has yet to be established in Northeast Asia. Meanwhile, a regional program of the United Nations Environmental Program (unep), the Action Plan for the Protection, Management and Development of the Marine and Coastal Environment of the Northwest Pacific Region (nowpap), has filled the void. Beyond the limited scope of the nowpap, which is primarily confined to oil and hns spill responses, it is necessary that the regime develop a concept of an ecological region within the nowpap area to include land-based pollution, dumping of industrial waste, and the release of radioactive water. Such a reconceptualization and expansion of scope will ultimately help the nowpap regime develop a marine ecological community within Northeast Asia. To this end, nowpap member countries need to strengthen legal instruments at both

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the national and regional level, and ultimately, conclude bilateral or multilateral agreements. Moreover, the nowpap member states need to secure more funds to support the activities of the Regional Activity Centers and to improve the ­financial ­sustainability of the nowpap. Finally, there should also be a joint effort ­prompting North Korea’s participation in the nowpap regime given that the ­waters adjacent to North Korea are not exempted from marine pollution problems. Illegal Fishing in the Yellow Sea: Illegal Chinese fishing in the Yellow Sea has been a hot issue between China and Korea since the early 2000s. The enormous scale of illegal fishing over the past decade has turned the Yellow Sea into the ‘sea of unlawfulness.’ Hundreds of Chinese fishing vessels during the ­fishing season trespass on the Korean waters (eez) or even the territorial waters. Despite various measures by the two countries to stop illegal fishing, i­ llegal Chinese fishing in the Yellow Sea remains unchanged, even becoming aggravated. Since 2014, meanwhile, Chinese fishing boats have trespassed into the neutral waters of the Han River Estuary, which has been under the control of the United Nations Command (unc) in accordance with the Armistice Agreement of 1953. The neutral waters, next to the beginning point of the nll, have remained untouched for several decades and are known as a rich fishing ground. In the absence of maritime boundary in the Yellow Sea, illegal Chinese fishing has been a thorny issue that negatively affects relations between China and Korea. Accordingly, illegal fishing in the Yellow Sea is not only a single issue of illegal fishing in the Korean waters, but also an issue of maritime boundary and international relations of the two countries. Fishery regimes in the Yellow Sea to exploit fishery resources have not fully worked to prevent illegal fishing. The underlying cause of illegal fishing in the Yellow Sea is beyond fishery regimes or law enforcement—rather, it has to do with fishery resources management. Illegal fishing in the Yellow Sea is not likely to alleviate in the near future unless some crucial factors, including depletion of fish stocks and the overcapacity of Chinese fishing boats, are addressed. In fact, it is impossible for a small number of coast guard ships to combat hundreds or even thousands of fishing boats operating illegally across the huge sea area. Along with more concerted measures to combat illegal fishing, the two countries need to conclude maritime boundary negotiations as early as possible for better fishery resources management in the Yellow Sea.

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Maritime Security: Before terrorism became an imminent global concern, maritime security was somewhat on the back burner, with the maritime community’s focus being primarily on the safety of navigation. Because of this secondary status, ships and ports were found to be extremely vulnerable and susceptible to terrorist attacks, as was confirmed in a number of maritime ­terrorist incidents in recent years. Maritime security has risen on the national agendas in East Asia where countries are geographically connected with each other through the seas and overwhelmingly dependent on sea-borne commerce. Northeast Asian countries are totally dependent on sea-borne trade for export and import of commodities and energy resources and, therefore, are particularly concerned about the safety of sea lanes of communication. Unlike some sensitive maritime issues in East Asia, the issue of maritime security has fewer domestic, political, and military implications. Efforts to ensure maritime security are inherently transnational, requiring cooperative and harmonized efforts among state and non-state stakeholders. This may create an opportunity for regional cooperative regimes to enhance maritime security in East Asia. Northeast Asian countries have adopted and implemented a number of maritime security initiatives, mostly driven by the United States, in the unique context of East Asia. They include a number of maritime security i­ nitiatives: the International Ship and Port Facility Security Code (isps Code); the C ­ ontainer Security Initiative (csi); the Customs-Trade Partnership against Terrorism (­c -tpat); the Secure Freight Initiative (sfi); the 24-Hour Advance Manifest Rule (24-Hour Rule); and the Proliferation Security Initiative (psi). Northeast Asian countries are committed to adopting and implementing maritime security measures and have been successful in combating maritime security threats. However, among the challenges ahead, the most important might be how to continue to rally efforts to cope with maritime security issues in East Asia. Maritime Security Measures against North Korea: In the wake of North Korea’s latest nuclear test on 6 January and a rocket launch on 7 February, the United Nations Security Council on 2 March 2016 adopted Resolution 2270. The sanctions under the resolution are considered unprecedentedly comprehensive and tough in their breadth and enforcement. Resolution 2270 employs a number of maritime sanction measures that mandate the member states to inspect all cargo going to and from North Korea in their territories. It also requires the member states to prohibit the entry into their ports of any vessel that is owned by designated individuals or entities and ships illicit cargo.

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South Korea has enforced maritime security measures against the provocations of North Korea. The South and the North agreed to reopen shipping lanes in August 2005 between the two Koreas, which had been closed over the past 50 years, as part of their reconciliatory efforts. The intra-shipping lanes were available to only the two countries’ merchant ships navigating between the South and the North. The ships from the South and the North were allowed to have free access to 14 ports (seven from each) by using the designated shipping lanes, established a few miles outside of territorial seas. However, South Korea unilaterally closed the shipping lanes as part of sanctions on North Korea in the wake of a South Korean naval vessel’s sinking by a Northern torpedo attack on 26 March 2010. South Korea is a full participant of the Proliferation Security Initiative (psi), which aims to stop trafficking of weapons of mass destruction (wmd), their delivery systems, and related materials to and from states and non-state actors. Even though South Korea was considered a key country to the psi, it was reluctant to join the psi out of concern that its full participation might provoke a military conflict and would undermine a reconciliatory mood with the North. However, North Korea’s nuclear test on 25 May 2009 drove the South Korean government to fully participate in the psi. South Korea decided to completely shut down the Kaesung industrial complex in retaliation for North Korea’s nuclear test and rocket launch. The Kaesung industrial complex in North Korea, which lies 6 miles north of the Demilitarized Zone and opened in 2004, served as a bridge of economic cooperation and reconciliation in midst of escalating tensions between the South and the North. However, it was believed that economic benefits earned by 54,000 North Korean workers hired by 124 South Korean companies were channeled into developing nuclear weapons and missiles. Additionally, South Korea enforces unilateral sanctions on North Korea to implement the u.n. sanctions. South Korea expanded the blacklist of individuals and entities involved in the development of nuclear weapons by adding 40 individuals and 30 entities. Notably, the ships that have traveled to North Korea in the past 180 days are denied entry to South Korean waters.

Appendixes

Selected Maritime Laws and Agreements in Northeast Asia

Maritime Laws

i 1

South Korea Territorial Sea and Contiguous Zone Act (Enacted on December 31, 1977, Act No. 3037, Amended on December 6, 1995, Act No. 4986) Article 1 (Breadth of Territorial Sea)



The territorial sea of the Republic of Korea shall be the area of the sea up to limit not exceeding twelve nautical miles measured from the baselines. However, the breadth of the territorial sea in specified areas shall be otherwise determined within the limit of twelve nautical miles in accordance with the Presidential Decree.



Article 2 (Baseline)



Article 3 (Internal Waters)



Article 4 (Delimitation between States with Adjacent or Opposite Coasts)

(1)

The normal baseline for measuring the breadth of the territorial sea shall be the low-water line along the coast as marked on large-scale charts officially recognized by the Republic of Korea. (2) In the area of the sea where special geographical circumstances exist, straight lines joining points as provided for in the Presidential Decree may be employed.

Waters on the landward side of the baseline for measuring the breadth of the territorial sea of the Republic of Korea not exceeding beyond twenty-four nautical miles measured from the baselines. However, in specified areas, the breadth of the contiguous zone may be otherwise determined within twenty-four nautical miles from the baseline, under the conditions as prescribed by the Presidential Decree.

The delimitation of the territorial sea and contiguous zone between the Republic of Korea and states with adjacent or opposite coasts, unless otherwise agreed to between the states concerned, shall be the median line joining every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of each of the two states is measured.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004344228_013

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(1)

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Article 5 (Passage of Foreign Ships)

Foreign ships may enjoy the right of innocent passage through the territorial sea of the Republic of Korea so long as it is not prejudicial to the peace, public order or security of the Republic of Korea. When a foreign warship or government ship operated for non-commercial purposes intends to pass through the territorial sea, it shall give prior notice to the authorities concerned as prescribed by the Presidential Decree. (2) Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the Republic of Korea, if it engages in any of the following ­activities in the territorial sea, except: when the activities set out in subparagraphs 2 through 5, 11 and 13 have been permitted, approved or given consent by the authorities concerned: 1. Any threat or use of force against the sovereignty, territorial integrity or independence of the Republic of Korea, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; 2. Any exercise or practice with weapons of any kind; 3. The launching, landing or taking on board of any aircraft; 4. The launching, lading or taking on board of any military device; 5. Underwater navigation; 6. Any act aimed at collecting information aimed at affecting the security of the Republic of Korea; 7. Any act of propaganda or instigation aimed at affecting the security of the Republic of Korea; 8. The loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary Acts and subordinate statutes of the Republic of Korea; 9. The discharge of pollutants exceeding the standards as prescribed by the Presidential Decree; 10. Any fishing activities; 11. The carrying out of research or survey activities; 12. Any act aimed at interfering with any systems of communications, or any other facilities or installations of the Republic of Korea; and 13. Any other activity not having a direct bearing on passage as prescribed by the Presidential Decrees (3) The innocent passage of foreign ships may be suspended temporarily in specified areas of the territorial sea as prescribed by the Presidential Decree if such suspension is essential to the security of the Republic of Korea.

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Article 6 (Stopping of Foreign Ships)



Article 6–2 (Power of Competent Authorities in Contiguous Zone)

1.

Preventing infringement of its customs, fiscal, immigration or security Acts and subordinate statutes within its territory or territorial sea; and Punishing infringement of its customs, fiscal, immigration or sanitary Acts and subordinate statutes within its territory or territorial sea.

If a foreign ship (excluding foreign warships and government ships operated for noncommercial purposes. Hereinafter the same will apply) is suspected of having violated the provisions of Article 5, the authorities concerned may issue the necessary orders or take other necessary measures such as stopping, searching or seizing.

In the contiguous zone of the Republic of Korea, the competent authorities may exercise their official authority in the limit required for the following purposes, under the conditions as prescribed by Act and subordinate statutes:

2.



Article 7 (Penal Provisions)



Article 8 (Exception in Cases of Foreign Warships and Government Ships Operated for Non-commercial Purposes)

(1) Crew or other passengers on board of a foreign ship who have violated the ­provisions of Article 5(2) or (3) shall be punished by imprisonment for not more than five years or a fine not exceeding two hundred million won, and when the circumstances are considered serious, such ship, its equipment, its catches and other Article may be confiscated. (2) Crew or other passengers on board of a foreign ship who have disobeyed, hindered or evade the order issued or the measure taken in accordance with Article 6 shall be punished by imprisonment for not more than two years or a fine not exceeding ten million won. (3) In case of paragraph (1) or (2) of this Article, imprisonment and a fine may be imposed concurrently. (4) In the application of this Article, if the act referred to in this Article concurrently constitutes a crime under other Acts other than this Act, it shall be punished by the severest punishment.

If a foreign warship or government ship operated for non-commercial purposes or its crews or passengers on board violate this Act or other relevant Acts and subordinate statutes, such ship may be required to remedy the violation or to leave the territorial sea.

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Addendum This Act shall enter into force on the date as prescribed by the Presidential Decree, within 4 months from the date of the promulgation of this Act. This Act shall enter into force on the date as prescribed by the Presidential Decree within the limit of one year from the date of its promulgation.

2

Exclusive Economic Zone Act (Act No. 5151, Promulgated on 8 August 1996) Article 1 (Establishment of Exclusive Economic Zone)



Article 2 (Breadth of Exclusive Economic Zone)



Article 3 (Rights in Exclusive Economic Zone)

The Republic of Korea establishes the exclusive economic zone provided for in the United Nations Convention on the Law of the Sea (hereinafter referred to as ‘the Convention’) by this Act.

(1)

The exclusive economic zone of the Republic of Korea is, in conformity with the provisions of the Convention, the area of the sea which extends up to 200 nautical miles from the baseline provided for in Article 2 of the Territorial Sea and Contiguous Zone Act, excluding the territorial sea of the Republic of Korea. (2) Notwithstanding the provision of Paragraph 1, the delimitation of the exclusive economic zone of the Republic of Korea in relation to the exclusive economic zone of other States with opposite or adjacent coasts (hereinafter referred to as ‘the State(s) concerned’) shall be effected by agreement with the States concerned on the basis of international law.

In the exclusive economic zone, the Republic of Korea has: 1. Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and its subsoil, and with regard to the activities for the economic exploitation and exploration of the zones, such as the production of energy from the water, currents and winds; 2. Jurisdiction as provided for in the Convention with regard to; (a) the establishment and use of artificial islands, installations and structures; (b) marine scientific research; (c) the protection and preservation of the marine environment 3. Other rights provided for in the Convention

Selected Maritime Laws And Agreements In Northeast Asia



Article 4 (Rights and Duties of Other States or Their Nationals)



Article 5 (Exercise of Rights of the Republic of Korea)

(1)

213

In the exclusive economic zone of the Republic of Korea, other States or their ­nationals enjoy, subject to the relevant provisions of the Convention, the freedom  of navigation and overflight and of the laying of submarine cables and ­pipelines, and other internationally lawful uses of the sea related to these freedoms. (2) In exercising their rights and performing their duties in the exclusive economic zone of the Republic of Korea, other States or their nationals shall have due regard to the rights and duties of the Republic of Korea and shall comply with the laws and regulations adopted by the Republic of Korea.

(1)

For the purpose of the exercise or protection of the rights referred to in the provisions of Article 3, the laws and regulations of the Republic of Korea shall be ­applied in the exclusive economic zone of the Republic of Korea, unless otherwise provided for in agreements with other States. The laws and regulations of the Republic of Korea shall also be applied with regard to legal relations on ­artificial islands, installations and structures referred to in Paragraph 2(a) of Article 3. (2) The rights of the Republic of Korea in the exclusive economic zone referred to in the provisions of Article 3, unless otherwise agreed upon between the Republic of Korea and the State concerned, shall not be exercised in the area of the sea beyond the median line between the Republic of Korea and the State concerned. The above-mentioned median line shall be the line every point of which is equidistant from the nearest point on the baseline of the Republic of Korea and the nearest point on the baseline of the State concerned. (3) With regard to the person who has infringed upon the rights of referred to in the provisions of Article 3, in the exclusive economic zone of the Republic of Korea, or who is under suspicion of having violated the laws and regulations of the Republic of Korea applicable in the exclusive economic zone, the Authorities concerned may take necessary measures including the exercise of hot pursuit as provided for in Article 111 of the Convention, stopping, boarding, inspection, arrest and judicial proceedings. Addendum This Act shall enter into force as of such date within one year from the date of its promulgation, as determined by a Presidential Decree.

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Appendixes

Republic of Korea Presidential Proclamation of Sovereignty over Adjacent Seas 18 January 1952

Supported by well-established international precedents and urged by the impelling need of safeguarding, once and for all, the interests of national welfare and defense, the President of the Republic of Korea hereby proclaims: 1.

2.

3.

The government of the Republic of Korea holds and exercises the national sovereignty over the shelf adjacent to the peninsular and insular coasts of the national territory, no matter how deep it may be, protecting, preserving and utilizing, therefore, to the best advantage of national interests, all the natural resources, mineral and marine, that exist over the said shelf, on it and beneath it, known, or which may be discovered in the future. The Government of the Republic of Korea holds and exercises the national sovereignty over the seas adjacent to the coasts of the peninsula throughout and islands of the national territory, no matter what their depths may be throughout the extension, as here below delineated, deemed necessary to reserve, protect, conserve and utilize the resources and natural wealth of the Government supervision particularly the fishing and marine hunting industries in order to prevent this exhaustible type of resources and natural wealth from being exploited to the disadvantage of the inhabitants of Korea, or decreased or destroyed to the ­detriment of the country. The Government of the Republic of Korea hereby declares and maintain the lines of demarcation, as given below, which shall define and delineate the zone of control and protection of the national resources and wealth on, in, or beneath the said seas placed under the jurisdiction and control of the Republic of Korea and which shall be liable to modification, in accordance with the circumstance arising from new discoveries, studies or interests that may come to light in f­ uture. The zone to be placed under the sovereignty and protection of the Republic of Korea shall consist of seas lying between the coasts of the peninsular and insular territories of Korea and the line of demarcation made from the continuity of the following lines: a. from the highest peak of U-Am-Ryung, Kyung-Hung-Kun, Ham-Kyong Pukdo to the point (42°15′N–130°45′E) b. from the point (42°15′N–130°45′E) to the point (38°00′N–132°50′E) c. from the point (38°00′N–132°50′E) to the point (38°00′N–130°00′E) d. from the point (35°00′N–130°00′E) to the point (34°40′N–129°10′E) e. from the point (34°40′N–129°10′E) to the point (32°00′N–127°00′E) f. from the point (32°00′N–127°00′E) to the point (32°00′N–124°00′E) g. from the point (32°00′N–124°00′E) to the point (39°45′N–124°00′E)

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h.

4.

ii 1

from the point (39°45′N–124°00′E) to the western point of Ma-An-Do, ­Son-Do-Yuldo, Yong-Chun-Kun, PyunganPukdo i. from the point of Ma-An-Do to the point where a straight line drawn north meets with the western and of the Korean-Manchurian borderline. This declaration of sovereignty over the adjacent seas does not interfere with the rights of free navigation on the high seas.

North Korea Regime of the Waters of People’s Democratic Republic of Korea

The coastal waters of the People’s Democratic Republic of Korea consist of inland waters and the territorial sea. The inland waters of the People’s Democratic Republic of Korea include the East Korea Bay, i.e, the waters bounded by the east coast of the Korean People’s Democratic Republic from the 38th Parallel North Latitude to the port of Songjin, on the one hand, and a straight line connecting this port with a point on the East Korean coast located on the 38th Parallel, on the other. The Korean People’s Democratic Republic has a 12-mile territorial sea, measured from the low-water line. Foreign warships must have prior approval from the Government of the People’s Democratic Republic of Korea before calling in the territorial sea. A similar permission procedure has also been established for flights by foreign aircraft in the airspace above the territorial sea. Passage of merchant ships through the territorial sea is permitted provided that rules and law regulating the regime of the territorial sea are observed. The right to fish and engage in maritime industries in the territorial sea is reserved to citizens and organizations of the People’s Democratic Republic of Korea.

2

The 50-Mile Military Boundary Zone of August 1, 1977

Demanded by the situation in our country, the Supreme Command of the Korean People’s Army established the military boundary to reliably safeguard the economic sea zone of the Democratic People’s Republic of Korea and firmly defend militarily the national interests and sovereignty of the country. The military boundary is up to 50 miles from the starting line of the territorial waters in the East Sea and to the boundary line of the economic sea zone in the West Sea. In the military zone boundary (on the sea, in the sea, and in the sky) acts of foreigners, foreign military vessels and foreign military planes are prohibited and civilian ships and civilian planes (excluding fishing boats) are allowed to navigate or fly only with appropriate prior agreement or approval.

216

Appendixes

In the military boundary (on the sea, in the sea and in the sky) civilian vessels and civilian planes shall not conduct acts for military purposes or acts infringing upon the economic interests.

3

The Report on the Decree of June 22, 1977, on Establishing an Economic Sea Zone

A decree of the Central People’s Committee on the establishment of the economic sea zone of the Democratic People’s Republic of Korea was adopted. On June 21, 1977, the Central People’s Committee People’s Republic of Korea adopted a decree on the establishment of the economic sea zone the Democratic People’s Republic of Korea to protect and conserve the marine resources of our country and actively develop and exploit them. According to the decree, the economic sea zone of the Democratic People’s Republic of Korea is up to 200 miles from the starting line of the territorial waters and to the half-line of the sea in those waters where the 200-mile economic sea zone cannot be established. The decree also stipulates that the Democratic People’s Republic of Korea exercises her jurisdiction over the living and non-living resources in this sea zone (in the water, at and under the seabed). The decree stipulates that without the prior consent of the organs concerned of the Democratic People’s Republic of Korea foreigners, foreign ships and foreign planes are prohibited from catching fish, establishing structures, conducting prospection and ­development and other acts obstructive to the economic activities of the dprk and doing any acts harmful to the lives of the people and resources, including the pollution of the sea and air, in the economic sea zone of the Democratic People’s Republic of Korea. The decree will go into force from August 1, 1977.

iii Japan 1 Law on the Territorial Sea and the Contiguous Zone (Law No. 30 of 1977, as Amended by Law No. 73 of 1996) Extent of the Territorial Sea 1.

2.

Article 1 The territorial sea of Japan comprises the areas of the sea extending from the baseline to the line 12 nautical miles seaward thereof. Provided that, where any part of that line lies beyond the median line as measured from the baseline, the median line (or the line which may be agreed upon between Japan and a foreign country as a substitute for the median line) shall be substituted for that part of the line. ‘The median line’ referred to in the proceeding paragraph shall be the line every point of which is equidistant from the nearest point on the baseline

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and the n ­ earest point on the baseline from which the breadth of the territorial sea ­pertaining to the foreign coast which is opposite to the coast of Japan is measured.

Baseline 1.

2.

3.

Article 2 The baseline shall be the low-water line, the straight baseline and the straight line drawn across the mouth of or within a bay, or across the mouth of a river. Provided that, with respect to the SetoNaikai, which is internal waters, the ­baseline shall be the lines prescribed by Cabinet Order as the boundaries which other areas of the sea adjacent thereof. Straight baselines referred to in the proceeding paragraph shall be prescribed by Cabinet Order, in accordance with article 7 of the United Nations Convention on the Law of the Sea (hereinafter referred to as ‘the u.n. Convention on the Law of the Sea’). In addition to the provision of the proceeding paragraph, the criteria to be used in employing, as baseline, the lines provided for in paragraph 1 and any other matters necessary for the drawing of baselines shall be prescribed by Cabinet Order.

Application of the laws and regulations of Japan pertaining to hot pursuit from within the internal waters or the territorial sea Article 3 The laws and regulations of Japan (including penal provisions. The same shall apply in article 5) shall apply with respect to the execution of official duties by public officials of Japan in relation to hot pursuit from within the internal waters or the territorial sea of Japan undertaken in accordance with article 111 of the u.n. Convention on the Law  of the Sea and the conduct obstructing such execution.



1.

2.

The Contiguous Zone

Article 4 There is hereby established the contiguous zone, as a zone in which Japan takes necessary measures to prevent or punish infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory in accordance with article 33, paragraph 1, of the u.n. Convention on the Law of the Sea. The contiguous zone referred to in the proceeding paragraph (hereinafter referred to as ‘the contiguous zone’ for brevity) comprises the areas of the sea extending from the baseline to the line 24 nautical miles seaward thereof (excluding therefrom the territorial sea). Provided that, where any part of that line lies

218

3.



Appendixes beyond the median line (‘The median line’ here is as defined in article 1, paragraph 2. The same shall apply hereinafter) as measured from the baseline, the median line (or the line which may be agreed upon between Japan and a foreign country as a substitute for the median line) shall be substituted for that part of the line. In a part of the areas of the sea in which the mutual application with a foreign country beyond the median line of the measures prescribed in article 33, paragraph 1 of the u.n. Convention on the Law of the Sea is deemed appropriate, the contiguous zone may extend from the baseline to the line 24 nautical miles seaward thereof (excluding therefrom the territorial sea of a foreign country), as prescribed by Cabinet Order, notwithstanding the provision of the preceeding paragraph.

Application of the Laws and Regulations of Japan in the Contiguous Zone

Article 5 The laws and regulations of Japan shall apply with respect to the execution of official duties by public officials of Japan in the contiguous zone in relation to measures ­prescribed in paragraph 1 of the preceeding article (including the execution of official duties in relation to hot pursuit from within the contiguous zone pertaining to the said execution of official duties undertaken in accordance with article 111 of the  u.n.  ­Convention on the Law of the Sea) and the conduct obstructing such execution.

2

1.

2.

Law on the Exclusive Economic Zone and the Continental Shelf (Law No. 74 of 1996) The Exclusive Zone

Article 1 There is hereby established the exclusive economic zone, as a zone in which ­Japan exercises its sovereign rights and other rights as a coastal State as prescribed in Part v of the United Nations Convention on the Law of the Sea (hereinafter referred to as ‘the u.n. Convention on the Law of the Sea’) in accordance with the u.n. Convention on the Law of the Sea. The exclusive economic zone referred to in the preceeding paragraph (hereinafter ‘the exclusive economic zone’) comprises the areas of the sea extending from the baseline of Japan (‘The baseline’ here is as defined in article 2, paragraph 1, of the Law of the Territorial Sea and the Contiguous Zone (Law No. 30 of 1977). The same shall apply hereinafter) to the line every point of which is 200 nautical miles from the nearest point on the baseline of Japan (excluding therefrom the

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territorial sea) and its subjacent seabed and its subsoil. Provided that, where any part of that line lies beyond the median line (‘the median line’ here is the line every point of which is equidistant from the nearest point on the baseline of Japan and the nearest point on the baseline from which the breadth of the territorial sea pertaining to the foreign coast which is opposite the coast of Japan is measured. The same shall apply hereinafter) as measured from the baseline of Japan, the median line (or the line which maybe agreed upon between Japan and a foreign country as a substitute for the median line) shall be substituted for that part of the line.



The Continental Shelf



Application of the Laws and Regulations of Japan

Article 2 The continental shelf over which Japan exercises its sovereign rights and other rights as a coastal State in accordance with the u.n. Convention on the Law of the Sea (hereinafter ‘the continental shelf’) comprises the seabed and its subsoil subjacent to the following areas of the sea: 1. The areas of the sea extending from the baseline of Japan to the line every point of which is 200 nautical miles from the nearest point on the baseline of Japan (excluding therefrom the territorial sea). Provided that, where any part of that line lies beyond the median line as measured from the baseline of Japan, the median line (or the line which may be agreed upon between Japan and a foreign country as a substitute for the median line, and the line to be drawn to connect with the said line, which shall be prescribed by Cabinet Order) shall be substituted for that part of the line. 2. The areas of the sea adjacent seaward to the areas of the sea referred to in the preceeding subparagraph (limited to the part of the sea delimited by the line every point of which is 200 nautical miles from the nearest point on the baseline of Japan), as prescribed by Cabinet Order in accordance with article 76 of the u.n. Convention on the Law of the Sea

1.

Article 3 The laws and regulations of Japan (including penal provisions. The same shall apply hereinafter) shall apply with respect to the following matters: (1) Exploring and exploiting, conserving and managing the natural resources, the establishment, construction, operation and use of artificial islands, installations and structures, the protection and preservation of the marine environment and marine scientific research in the exclusive economic zone or on the continental shelf;

220

2.

3.



Appendixes (2) The activities for the economic exploitation and exploration of the exclusive economic zone (excluding therefrom the matters prescribed in the preceeding subparagraph); (3) Drilling on the continental shelf (excluding therefrom the matters prescribed in the subparagraph (1)); (4) The execution of official duties by public officials of Japan in the areas of the sea relating to the exclusive economic zone or the continental shelf pertaining to the matters prescribed in the preceeding three ­subparagraphs (including the excution of official duties in relation to hot pursuit from within those areas of the sea pertaining to the said execution of official duties undertaken in accordance with article 111 of the u.n. Convention on the Law of the Sea) and the conduct obstructing such execution. Artificial islands, installations and structures referred to in subparagraph (1) of the proceeding paragraph shall be considered to be located in the territory of ­Japan, with respect to which laws and regulations of Japan shall apply in addition to the provision of the said paragraph. With respect to the application of the laws and regulations of Japan pursuant to the preceding two paragraphs, matters necessary for the adjustment or coordination in the application of such laws and regulations may be prescribed by Cabinet Order, to the extent considered to be reasonably necessary, taking into account the fact that the areas of the sea to which such laws and regulations ­apply are outside the territory of Japan as well as other special circumstances in the said areas of the sea.

Effect of Treaties

Article 4 Where a treaty provides otherwise for matters provided for in this law, the provisions of the treaty shall apply.

iv China 1 Law on the Territorial Sea and the Contiguous Zone (Enacted on 25 February 1992)

The Law on the Territorial Sea and the Contiguous Zone of the People’s Republic of China, adopted at the 24th meeting of the Standing Committee of the National People’s Congress on 25 February 1992.



Article 1

This law is formulated in order to enable the People’s Republic of China (prc) to ­exercise its sovereignty over its territorial sea and its rights to exercise control over its ­contiguous zone and to safeguard State security as well as its maritime rights and interests.

Selected Maritime Laws And Agreements In Northeast Asia



Article 2



Article 3



Article 4



Article 5



Article 6



Article 7



Article 8

221

The prc’s territorial sea refers to the waters adjacent to its territorial land islands ­including Diaoyu Island, Penghu Islands, Donsha Islands, Xisha Islands, Nansha (Spratly) Islands and other islands that belong to the People’s Republic of China. The prc’s internal waters refer to the waters along the baseline of the territorial sea facing the land.

The extent of the prc’s territorial sea measures 12 nautical miles from the baseline of the territorial sea. The prc’s baseline of the territorial sea is designated with the method of straight baselines, formed by joining the various base points with straight lines. The outer limit of the prc’s territorial sea refers to the line, every point of which is  at  a distance of 12 nautical miles from the nearest point of the baseline of the ­territorial sea.

The prc’s contiguous zone refers to the waters that are outside of, but adjacent to, its territorial sea. The extent of the contiguous zone has a width of 12 nautical miles. The outer limit of the prc’s contiguous zone is a line, every point of which has a nearest distance of 24 nautical miles from the baseline from which the territorial sea is measured.

The People’s Republic of China exercises sovereignty over its territorial sea and the airspace over the territorial sea, as well as its seabed and subsoil.

Non-military foreign ships enjoy the right of innocent passage through the territorial sea of the People’s Republic of China according to law. To enter the territorial sea of the People’s Republic of China, foreign military ships must obtain permission from the Government of the People’s Republic of China.

While passing through the territorial sea of the People’s Republic of China, foreign submarines and other underwater vehicles shall navigate on the surface of the sea and show their flags.

While passing through the territorial sea of the People’s Republic of China, foreign ships shall abide by the laws and regulations of the People’s Republic of China and shall not impair the peace, security and good order of the People’s Republic of China.

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Foreign nuclear-powered ships and other ships carrying nuclear, toxic or other d­ angerous substances must carry certain documents and observe special precautionary measures when they pass through the territorial sea of the People’s Republic of China. The Government of the People’s Republic of China has the right to adopt all necessary measures to prevent and stop the passage of a ship which is not innocent through its territorial sea. Foreign ships which violate the laws and regulations of the People’s Republic of China shall be dealt with according to law by relevant departments of the People’s Republic of China.



Article 9



Article 10



Article 11



Article 12

To ensure the safety of navigation and satisfy other requirements, the Government of the People’s Republic of China may require foreign ships passing through its territorial sea to use the designated sea lane or prescribed traffic separation scheme. Concrete methods should be issued by the Government of the People’s Republic of China or its relevant responsible departments.

The relevant responsible organs of the People’s Republic of China shall have the right to order an immediate eviction of foreign military ships or ships owned by foreign Government and operated for non-commercial purposes that violate the laws or regulations of the People’s Republic of China while passing through the territorial sea of the People’s Republic of China. Losses or damage caused shall be borne by the nations whose flag is being flown by the ship in question.

Any international, foreign organization, or individual who intends to conduct activities connected with scientific research or marine survey shall first seek the consent of the People’s Republic of China or its relevant responsible departments and abide by the laws and regulations of the People’s Republic of China. Whoever is found illegally entering the territorial sea of the People’s Republic of China to conduct activities connected with scientific research or marine survey in violation of the preceding provisions shall be dealt with by the relevant organs of the People’s Republic of China according to law.

Foreign aircraft may not enter the air above the territorial sea of the People’s Republic of China unless they do so in accordance with agreements or accords which the

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­ overnments of their countries have signed with the Government of the People’s G ­Republic of China, or they have been approved or accepted by the Government of the People’s Republic of China or organs it has authorized.



Article 13



Article 14



Article 15



Article 16



Article 17

The People’s Republic of China has the authority to exercise powers within its contiguous zone for the purpose of preventing or punishing infringement of its security, customs, fiscal sanitary laws and regulations or entry-exit control within its land territories, internal waters or territorial sea.

When competent authorities of the People’s Republic of China have good reasons to believe that a foreign ship has violated the laws and regulations of the People’s Republic of China, they may exercise the right of hot pursuit. The hot pursuit commences when the foreign ship, or one of its small boasts, or other craft working as a team and using the ship pursued as a mother ship is within the limits of the internal waters, territorial sea or contiguous zone of the People’s Republic of China. If the foreign ships are in the contiguous zone of the People’s Republic of China, the hot pursuit may proceed only when the rights of the relevant laws and regulations set forth in article 13 above have been violated. As long as the hot pursuit is not interrupted, it may continue outside the territorial sea of the People’s Republic of China or the contiguous zone. The hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own country or of a third country. The right of hot pursuit in this article is exercised by warships or military aircraft of the People’s Republic of China, or by ships or aircraft authorized by the Government of the People’s Republic of China to that effect.

The baseline of the territorial sea of the People’s Republic of China shall be established by the Government of the People’s Republic of China.

The Government of the People’s Republic of China shall draw up relevant regulations in accordance with this Law.

This Law becomes effective upon promulgation.

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Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea (15 May 1996)

In accordance with the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone adopted and promulgated on 25 February 1992, the Government of the People’s of China hereby announces and those of the territorial sea adjacent to its Xisha Islands as follows: 1.

The baselines of part of the territorial sea adjacent to the mainland are composed of all the straight lines joining the adjacent basepoints listed below: 1. Shandonggaojiao (1) 37°24.0′N 122°43.3′E 2. Shandonggaojiao (2) 37°23.7′N 122°42.3′E 3. Moyedao (1) 36°57.8′N 122°34.2′E 4. Moyedao (2) 36°55.1′N 122°32.7′E 5. Moyedao (3) 36°53.7′N 122°31.1′E 6. Sushandao 36°44.8′N 122°15.8′E 7. Chaoliandao 35°53.6′N 120°53.1′E 8. Dashandao 35°00.2′N 119°54.2′E 9. Macaiheng 33°21.8′N 121°20.8′E 10. Waikejiao 33°00.9′N 121°38.4′E 11. Sheshandao 31°25.3′N 122°14.6′E 12. Haijiao 30°44.1′N 123°09.4′E 13. Dongnanjiao 30°43·5′N 123°09.7′E 14. Liangxiongdiyu 30°10.1′N 122°56.7′E 15. Yushanliedao 28°53.3′N 122°16.5′E 16. Taifhouliedao (1) 28°23.9′N 121°55.0′E 17. Taifhouliedao (2) 28°23.5′N 121°54.7′E 18. Daotiaoshan 27°27.9′N 121°07.8′E 19. Dongyindao 26°22.6′N 120°30.4′E 20. Donshadao 26°09.4′N 120°24.3′E 21. Niushandao 25°25.8′N 119°56.3′E 22. Wuqiuyu 24°58.6′N 119°28.7′E 23. Dongdingdao 24°09.7′N 118°14.2′E 24. Dagashan 23°31.9′N 117°41.3′E 25. Nanpengliedao (1) 23°12.9′N 117°14.9′E 26. Nanpengliedao (2) 23°12.3′N 117°13.9′E 27. Shiebeishanjiao 22°56.1′N 116°29.7′E 28. Zhentouyan 22°18.9′N 115°07.5′E 29. Fiapengliedao 21°48.5′N 113°58.0′E 30. Weijiadao 21°34.1′N 112°47.9′E 31. Dafanshi 21°27.7′N 112°21.5′E

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32. Qizhouliedao 19°58.5′N 111°16.4′E 33. Shuangfan 19°53.0′N 111°12.8′E 34. Dafhoudao (1) 18°39·7′N 110°29.6′E 35. Dafhoudao (2) 18°39.4′N 110°29.1′E 36. Shuangfanshi 18°26.1′N 110°08.4′E 37. Lingshuijiao 18°23·0′N 110°03.0′E 38. Dongzhou (1) 18°11·0′N 109°42·1′E 39. Dongzhou (2) 18°11.0′N 109°41.8′E 40. Jinmujiao 18°09.5′N 109°34.4′E 41. Shenshijiao 18°14.6′N 109°07·6′E 42. Xigudao 18°19.3′N 108°57.1′E 43. YinggeBui (1) 18°30.2′N 108°41.3′E 44. Yinggezui (2) 18°30.4′N 108°41.1′E 45. Yinggezui (3) 18°31.0′N 108°40.6′E 46. Yinggezui (4) 18°31.1′N 108°40.5′E 47. Gan′jiao 18°50.5′N 108°37.3′E 48. Sigengshajiao 19°11.6′N 108°36.0′E 49. Junbijiao 19°21.1′N 108°38.6′E The baselines of the territorial sea adjacent to the Xisha Islands of the People’s Republic of China are composed of all the straight line joining the adjacent base points below: 1. Dongdao (1) 16°40.5′N 112°44.2′E 2. Dongdao (2) 16°40.1′N 112°44.5′E 3. Dongdao (3) 16°39.8′N 112°44.7′E 4. Langhuajiao (1) 16°04.4′N 112°35.8′E 5. Langhuajiao (2) 16°01.9′N 112°32.7′E 6. Langhuajiao (3) 16°01.5′N 112°31.8′E 7. Langhuajiao (4) 16°01.0′N 112°29.8′E 8. Zhongjilandao (1) 15°46.5′N 111°12.6′E 9. Zhongjilandao (2) 15°46.4′N 111°12.1′E 10. Zhongjilandao (3) 15°46.4′N 111°11.8′E 11. Zhongjilandao (4) 15°46.5′N 111°11.6′E 12. Zhongjilandao (5) 15°46.7′N 111°11.4′E 13. Zhongjilandao (6) 15°46.9′N 111°11.3′E 14. Zhongjilandao (7) 15°47.2′N 111°11.4′E 15. Beijiao (1) 17°04.9′N 111°26.9′E 16. Beijiao (2) 17°05.4′N 111°26.9′E 17. Beijiao (3) 17°05.7′N 111°27.2′E 18. Beijiao (4) 17°06.0′N 111°27.8′E 19. Beijiao (5) 17°06.5′N 111°29.2′E

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Appendixes 20. 21. 22. 23. 24. 25. 26. 27. 28.

Beijiao (6) Beijiao (7) Beijiao (8) Zhaoshudao (1) Zhaoshudao (2) Zhaoshudao (3) Beidao Zhongdao Nandao

17°07.0′N 17°07.1′N 17°06.9′N 16°59.9′N 16°59.7′N 16°59.4′N 16°58.4′N 16°57.6′N 16°56.9′N

111°31.0′E 111°31.6′E 111°32.0′E 112°14.7′E 112°15.6′E 112°16.6′E 112°16.6′E 112°19.6′E 112°20.5′E

The Government of the People’s Republic of China will announce the remaining ­baselines of the territorial sea of the People’s Republic of China at another time.

3

Rules Regulating Passage of Foreign Non-military Vessels through the Qiongzhou Strait (Promulgated by the State Council on June 28, 1964) Article 1



Article 2



Article 3

According to the Declaration of the Government of the People’s Republic of China concerning the Territorial Waters, the Qiongzhou Strait is an inland sea of China, which is closed to all military vessels of foreign nationality. Non-military vessels of foreign nationality to pass through the Strait must be subject to an application for ­approval according to the provision of these Rules.

The Qiongzhou Strait Administrative Office of the People’s Republic of China (hereinafter referred to as ‘the Qiongzhou Strait Administrative Office’) shall be set up to facilitate the administration of the Qiongzhou Strait. These Rules shall be implemented under the supervision of the Qiongzhou Strait Administrative Office.

The area under the administration of the Qiongzhou Strait Administrative Office with respect to the Qiongzhou Strait (hereinafter referred to as the administrative area) is tentatively delimited as follows: the water area west of the line (the east line for short) linking the Mulantou Lamp Stake (approximately north latitude 20°09′37″, east longitude 110°41′) and the Shenggouhousha Lamp Stake (approximately north latitude 20°26′, cast longitude 110°30′22″) and east of the line (the west line for short) ­linking the Jiaoweijiao Lamp Stake (approximately north latitude 20°13′30″, cast longitude 109°55′30″) and the Lingaojiao Lamp Stake (approximately north latitude 20°00′22″, east longitude 109°42′06″).

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Article 4



Article 5



Article 61



Article 7

227

Non-military vessels of foreign nationality that need to pass through the Qiongzhou Strait must go through the following formalities: (1) Report in detail by telegram such information as the ship’s name, nationality, gross tonnage, speed, hull colour, funnel marks, date and time and port of departure, port of destination, etc. to the Qiongzhou Strait Administrative Office and ask for permission to pass through the Strait 48 hours before entering the administrative area or before leaving the port of departure. (2) Report accurately, after receiving the notice of approval for passing through the Strait, the time of entering the administrative area to the Qiongzhou Strait 24 hours before entering the administrative area, or within 2 hours of weighing anchor at the port of departure. The above-mentioned telegrams concerning request and approval for passing through the Strait shall all be conveyed through the Haikou Branch of the China Ocean Shipping Agency Corporation.

When deemed necessary, the Qiongzhou Strait Administrative Office may send a summary notice to forbid a non-vessel of foreign nationality which has obtained the ­approval to pass through the Strait.

All non-military vessels of foreign nationality to pass through the administrative area shall do so without exception within daytime. All of them must enter the administrative area after sunrise and leave it before sunset. The Qiongzhou Strait Administrative Office shall check and approve the exact time for entering and leaving the Strait according to the speed of the non-military vessels of foreign nationality which have applied to pass through the Strait.

Except those which have obtained special permission from the Qiongzhou Strait Administrative Office, all non-military vessels of foreign nationality entering and leaving the Qiongzhou Strait must use the middle water course. Article 8 Non-military vessels of foreign nationality passing through the administrative area shall navigate in the

1 On April 17, 1985, upon approval of the State Council and the Central Military Commission, this Article was amended as follows: ‘Non-military vessels of foreign nationality may pass through the Strait upon receiving notice of approval, but their speed may not exceed 10 knots when they are navigating into and within the administrative area.’

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f­ ollowing prescribed area: north of the line linking the point on the east four nautical miles from the Mulantou Lamp Stake and the point on the west four nautical miles from the Lingaojiao Lamp Stake, and south of the line linking the point on the east six nautical miles from the Mulantou Lamp Stake and the point four nautical miles due south of the Paiweijiao Lamp Stake and then the point on the west 14 nautical miles from the Lingaojiao Lamp Stake.



Article 8



Article 9



Article 10



Article 11

Non-military vessels of foreign nationality passing through the administrative area shall navigate in the following prescribed area: north of the line linking the point on the east four nautical miles from the Mulantou Lamp Stake and the point on the west four nautical miles from the Lingaojiao Lamp Stake, and south of the line linking the point on the east six nautical miles from the Mulantou Lamp Stake and the point four nautical miles due south of the Paiweijiao Lamp Stake and then the point on the west 14 nautical miles from the Lingaojiao Lamp Stake.

Non-military vessels of foreign nationality to pass through the Qiongzhou Strait must do so in strict accordance with the reported time and the prescribed area. If they see any signals sent from ashore or naval vessels while they are navigating into or ­within  the  administrative area, they shall give an immediate reply and unconditionally carry out the instructions conveyed by the signals. Any consequences arising from failure to observe the above-mentioned stipulations shall be borne by the vessels themselves.

Non-military vessels of foreign nationality passing through the Qiongzhou Strait shall not use radars. If it is necessary to use the radar in case of dense fog, rainstorm, or other bad conditions affecting visibility, the vessels shall report to the Qiongzhou Administrative Office to explain the necessity and report their positions, speeds and other ­information. They may use the radar only after obtaining permission. In case of an emergency endangering navigational safety of the vessels, they may use the radar while making the report concerning the length of time for using the radar and the whole course of the incident to the Qiongzhou Strait Administrative Office for the record.

Photographs, surveys or other activities violating the relevant laws and regulations of the People’s Republic of China are forbidden when non-military vessels of foreign nationality pass through the Qiongzhou Strait.

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Article 12

4

Exclusive Economic Zone and Continental Shelf Act Article 1



Article 2



Article 3

229

When non-military vessels of foreign nationality violate these Rules, the cases shall be dealt with as described below: (1) Those vessels that have not yet entered the administrative area may be ordered not to enter but to go back by the original route and navigate round the Hainan Island; or they may be ordered to go through the necessary formalities for approval before passing through the Strait. (2) Those vessels that have entered the administrative area may be ordered to stop navigation and taken to the Haikou Harbour for inspection, the result of which shall determine the penalty to be given. The Qiongzhou Strait Administrative Office may then, depending on circumstances, allow the vessels to pass through the administrative area, or order them to go back, or even send them under escort out of the Strait.

This Act is adopted with a view to safeguarding the sovereign rights and jurisdiction exercised by the People’s Republic of China over the exclusive economic zone and the continental shelf and to protect China’s maritime rights and interests.

The exclusive economic zone of the People’s Republic of China is an area beyond and adjacent to the territorial sea of the People’s Republic of China extending to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. The continental shelf of the People’s Republic of China comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Conflicting claims regarding the exclusive economic zone and the continental shelf by the People’s Republic of China and States with opposite or adjacent coasts shall be settled, on the basis of international law and in accordance with the principle of equity, by an agreement delimiting the areas so claimed.

In the exclusive economic zone the People’s Republic of China shall exercise ­sovereign rights for the purpose of exploring and exploiting, conserving and managing the n ­ atural

230

Appendixes

resources of the waters superjacent to the seabed and of the seabed and its s­ ubsoil and with regard to other activities, for the economic exploitation and ­exploration of the zones, such as the production of energy from the water, current and winds. The People’s Republic of China shall have jurisdiction in the exclusive economic zone with regard to the establishment and use of artificial islands, installations and structures, marine scientific research; and the protection and preservation of the marine environment. The natural resources of the exclusive economic zone referred to in this Act include living and non-living resources.



Article 4



Article 5



Article 6

The People’s Republic of China shall exercise sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. The People’s Republic of China shall have jurisdiction over the continental shelf with regard to the establishment and use of artificial islands, installations and structures, marine scientific research; and the protection and preservation of the marine environment. The People’s Republic of China shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes. The natural resources of the continental shelf referred to in this Act consist of the mineral and other non-living resources of the seabed and subsoil together with living organism belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.

Any international organization, foreign organization or individual entering the ­exclusive economic zone of the People’s Republic of China to engage in fishery activities must have the approval of the competent authorities of the People’s Republic of China and comply with the laws and regulations of the People’s Republic of China and any treaties or agreements concluded by the relevant States and the People’s Republic of China. The competent authorities of the People’s Republic of China shall have the right to take any necessary conservation and management measures to ensure that the living resources of the exclusive economic zone are not endangered by over-exploitation.

This competent authorities of the People’s Republic of China shall have the right to conserve and mange the straddling fish stocks, highly migratory fish stocks and marine mammals of the exclusive economic zone, anadromous stocks originating in the rivers

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of the People’s Republic of China and catadromous species that spend the greater part of their life cycle in the waters of the People’s Republic of China. The People’s Republic of China shall have the primary interest in anadromous stocks originating in China’s rivers.



Article 7



Article 8



Article 9



Article 10

Any international organization, foreign organization or individual engaging in the exploration or exploitation of the natural resources of the exclusive economic zone or continental shelf of the People’s Republic of China or to carry out drilling in the continental shelf of the People’s Republic of China must have the approval of the competent authorities of the People’s Republic of China and comply with the laws and regulations of the People’s Republic of China.

The People’s Republic of China shall have exclusive rights in the exclusive economic zone and the continental shelf to establish and to authorize and regulate the establishment, operation and use of artificial islands, installations and structures. The Republic of China shall have exclusive jurisdiction over the artificial islands, installations and structures in the exclusive economic zone and the continental shelf, including jurisdiction with regard to customs, finance, health, security and immigration laws and regulations. The competent authorities of the People’s Republic of China shall have the right to establish safety zones around the artificial islands, installations, and structures in the exclusive economic zone and continental shelf in which they may take appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures.

Any international organization, foreign organization or individual engaging in marine scientific research in the exclusive economic zone and continental shelf of the People’s Republic of China must have the approval of the competent authorities of the People’s Republic of China and shall comply with the laws and regulations of the People’s ­Republic of China.

The competent authorities of the People’s Republic of China shall have the right to take the necessary measures to prevent, reduce and control pollution of the marine environment and to protect and preserve the marine environment of the exclusive economic zone and the continental shelf.

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Article 11



Article 12



Article 13



Article 14



Article 15



Article 16

Any State, provided that it observes international law and the laws and regulations of the People’s Republic of China, shall enjoy in the exclusive economic zone and the continental shelf of the People’s Republic of China freedom of navigation and overflight and of laying submarine cables and pipelines, and shall enjoy other legal and practical maritime benefits associated with these freedoms. The laying of submarine cables and pipelines must be authorized by the competent authorities of the People’s Republic of China.

The People’s Republic of China may, in the exercise of its sovereign rights to explore, exploit, conserve and mange the living resources of the exclusive economic zone, take  such measures, including boarding inspection, arrest, detention and judicial  ­proceedings, as may be necessary to ensure compliance with its laws and regulation. In the event of a violation of the laws and regulations of the People’s Republic of China in the exclusive economic zone or the continental shelf, the People’s Republic of  China shall have the right to take the necessary investigative measures in accordance with the law and may exercise the right of hot pursuit.

Rights enjoyed by the People’s Republic of China in the exclusive economic zone and the continental shelf that are not stipulated in this Act shall be exercised in accordance with international law and the laws and regulations of the People’s Republic of China.

The provisions of this Act shall not affect the historical rights of the People’s Republic of China.

The Government of the People’s Republic of China may, in accordance with this Act, enact relevant regulations.

This law becomes effective upon promulgation.

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Agreements 1

Agreement between the Government of the Republic of Korea and the Government of Japan on Maritime Search and Rescue and Emergency Refuge of Vessels (Signed at Tokyo, May 25, 1990, Entered into Force May 25, 1990)

The Government of the Republic of Korea and the Government of Japan, Recalling the Agreed Minutes concerning the Agreement on Fisheries between the Republic of Korea and Japan signed at Tokyo, on June 22, 1965, and the development in international cooperation for maritime search and rescue, Recognizing the need to provide any person in distress at sea adjacent to the respective countries with the most appropriate assistance available in an expeditious and effective manner, and also the need to provide the vessel of the other country having taken emergency refugee with appropriate protection available to the extent possible, Have agreed follows:



Article 1



Article 2



Article 3



Article 4

Either Party, on receiving information of any person in distress at sea adjacent to its own country, shall take urgent measures for searching for and rescuing such a person to provide that person with the most appropriate assistance available.

In either Party’s taking the urgent measures provided for in Article 1, both parties, when necessary, shall cooperate with each other to the extent possible by means of providing related information, holding consultations and so on.

To promote mutual cooperation concerning maritime search and rescue, the Parties shall endeavor to exchange information and opinions as may be necessary, in addition to implementing the cooperation provided for in Article 2.

1.

2.

Either Party shall provide appropriate protection to the extent possible in cases where any vessel of the other country has taken emergency refuge due to storm and other emergent situations. Any vessel of either country intending to take refuge will give notification to the competent authorities of the other country, unless such notification is impossible due to inevitable exceptional circumstances such as a breakdown of the vessel’s communication facilities. The vessel of either country having taken refuge shall, in the internal or territorial waters of the other country, observe the

234

Appendixes relevant laws and regulations of, and follow the instructions of the competent authorities concerned of, such other country.



1.

2.



1. 2.



1. 2.

Article 5

Communications between the Parties necessary for the implementation of this Agreement shall be done in the manners stipulated in the ANNEX, and in any subsequent amendment thereof made in accordance with the provisions of paragraph 2 of the present Article, which from an integral part of this Agreement. The Parties may amend the ANNEX attached to this Agreement by an exchange of notes.

Article 6

The parties shall implement this Agreement in accordance with the laws and regulations in force in the respective countries. Nothing in this Agreement shall affect in any way the rights and obligations of the respective countries based upon other international agreements including treaties.

Article 7

This Agreement shall enter into force on the date of signature. This Agreement shall remain in force for a period of three years, and shall continue in force thereafter subject to termination on the date of expiration of one year after written notice by either Party to the other of its intention to terminate this Agreement.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement. Done in duplicate at Tokyo, this 25th day of May, 1990 in the Korean, Japanese and English languages, each text being equally authentic. In case of any divergence of interpretation, the English text shall prevail. FOR THE GOVERNMENT OF THE REPUBLIC OF KOREA

2

FOR THE GOVERNMENT OF JAPAN

Agreement between the Republic of Korea and Japan Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries

(Signed at Seoul, January 30, 1974, Entered into force June 22, 1978) The Republic of Korea and Japan, Desiring to promote the friendly relations existing between the two countries,

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Desiring to establish the boundary in the northern part of the continental shelf adjacent to the two countries over which the Republic of Korea and Japan respectively exercise sovereign rights for the purpose of exploration and exploitation of mineral resources, Have agreed as follows:



1.

Article 1

The boundary line between that part of the continental shelf appertaining to the Republic of Korea and that part of the continental shelf appertaining to Japan in the northern part of the continental shelf adjacent to the two countries shall be straight lines concerning the following points in the sequence given below: Point 1 32°57.0´N 127°41.1´E Point 2 32°57.5´N 127°41.9´E Point 3 33°01.3´N 127°44.0´E Point 4 33°08.7´N 127°48.3´E Point 5 33°13.7´N 127°51.6´E Point 6 33°16.2´N 127°52.3´E Point 7 33°45.1´N 128°21.7´E Point 8 33°47.4´N 128°25.5´E Point 9 33°50.4´N 128°26.1´E Point 10 34°08.2´N 128°41.3´E Point 11 34°13.0´N 128°47.6´E Point 12 34°18.0´N 128°52.8´E Point 13 34°18.5´N 128°53.3´E Point 14 34°24.5´N 128°57.3´E Point 15 34°27.6´N 128°59.4´E Point 16 34°29.2´N 129°00.2´E Point 17 34°32.1´N 129°00.9´E Point 18 32°32.6´N 129°00.8´E Point 19 34°40.3´N 129°03.1´E Point 20 34°49.7´N 129°12.1´E Point 21 34°50.6´N 129°13.0´E Point 22 34°52.4´N 129°15.8´E Point 23 34°54.3´N 129°18.4´E Point 24 34°57.0´N 129°21.7´E Point 25 34°57.6´N 129°22.6´E Point 26 34°58.6´N 129°25.3´E Point 27 35°01.2´N 129°32.9´E Point 28 35°04.1´N 129°40.7´E Point 29 35°06.8´N 130°07.5´E Point 30 35°07.0´N 130°16.4´E

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2.

Appendixes Point 31 35°18.2´N 130°23.3´E Point 32 35°33.7´N 130°34.1´E Point 33 35°42.3´N 130°42.7´E Point 34 36°03.8´N 131°08.3´E Point 35 36°10.0´N 131°15.9´E The boundary line is shown on the map annexed to this Agreement.



Article 2



Article 3



Article 4

If any single geological structure or field of mineral deposit beneath the seabed extends across the boundary line and the part of such structure or field which is situated on one side of the boundary line is exploitable, wholly or in part, from the other side of boundary, the Parities shall seek to reach agreement on the manner in which such structure or field shall be most effectively exploited. Any question upon which the ­Parties are unable to agree concerning the manner in which such structure or field shall be most effectively exploited shall, at the request of either Party, be referred to third-party arbitration. The decision of the arbitration shall be binding upon the Parties.

This Agreement shall not affect the legal status of the superjacent waters or air space above.

This Agreement shall be ratified. The instruments of ratification shall be exchanged at Tokyo as soon as possible. This Agreement shall enter into force as from the date on which such instruments of ratification are exchanged. IN WITNESS WHEREOF the undersigned, being duly authorized by their respective Governments, have signed this Agreement, DONE in duplicate at Seoul in the English language, this thirtieth day of January of the year one thousand nine hundred and seventy-four. FOR THE REPUBLIC OF KOREA

3

FOR JAPAN

Agreement between the Republic of Korea and Japan Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries

(Signed at Seoul, January 30, 1974, Entered into force, June 22, 1978) Japan and the Republic of Korea, Desiring to promote the friendly relations existing between the two countries,

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Considering their mutual interest in carrying out jointly exploration and exploitation of petroleum resources in the southern part of the continental shelf adjacent to the two countries, Resolving to reach a final practical solution to the question of the development of such resources, Have agreed as follows:

Article i

For the purposes of this Agreement: (1) The term ‘natural resources’ means petroleum (including natural gas) resources and other underground minerals which are produced in association with such resources; (2) The term ‘concessionaire’ means a person authorized by either Party under the laws and regulations of that Party to explore and/or exploit natural resources in the Joint Development Zone; (3) The term ‘concessionaires of both Parties’ means a concessionaire of one Party and a concessionaire of the other Party respectively authorized with respect to the same subzone of the Joint Development Zone; (4) The term ‘operating agreement’ means a contract concluded between concessionaires of both Parties for the purpose of exploring and exploiting natural resources in the Joint Development Zone; (5) The term ‘operator’ means a concessionaire designated and acting as such under the operating agreement with respect to a subzone of the Joint Development Zone.

Article ii 1.

The Joint Development Zone shall be the area of the continental shelf bounded by straight lines connecting the following points in the sequence given below: Point 1 32°57.0′ N 127°41.1′ E Point 2 32°53.4′ N 127°36.3′ E Point 3 32°46.2′ N 127°27.8′ E Point 4 32°33.6′ N 127°13.1′ E Point 5 32°10.5′ N 126°51.5′ E Point 6 30°46.2′ N 125°55.5′ E Point 7 30°33.3′ N 126°00.8′ E Point 8 30°18.2′ N 126°05.5′ E Point 9 28°36.0′ N 127°38.0′ E Point 10 29°19.0′ N 128°00.0′ E Point 11 29°43.0′ N 128°38.0′ E Point 12 30°19.0′ N 129°09.0′ E

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Appendixes Point 13 30°54.0′ N 129°04.0′ E Point 14 31°13.0′ N 128°50.0′ E Point 15 31°47.0′ N 128°50.0′ E Point 16 31°47.0′ N 128°14.0′ E Point 17 32°12.0′ N 127°50.0′ E Point 18 32°27.0′ N 127°56.0′ E Point 19 32°27.0′ N 128°18.0′ E Point 20 32°57.0′ N 128°18.0′ E Point 21 32°57.0′ N 127°41.1′ E The straight lines bounding the Joint Development Zone are shown on the map annexed to this Agreement.

Article iii 1.

2.

The Joint Development Zone may be divided into subzones, each of which shall be explored and exploited by concessionaires of both Parties. Each subzone shall be numbered and defined by reference to geographical coordinates in the appendix to this Agreement. The appendix may be amended by mutual consent of the Parties without modification of this Agreement.

Article iv 1.

2.

Each Party shall authorize one or more concessionaires with respect to each subzone within three months after the date of entry into force of this Agreement. When one Party authorizes more than one concessionaire with respect to one subzone, all such concessionaires shall have an undivided interest and shall be represented, for the purposes of this Agreement, by one concessionaire. In case of any change in concessionaire or in subzone, the Party concerned shall authorize one or more new concessionaires as soon as possible. Each Party shall notify the other Party of its concessionaire or concessionaires without delay.

Article v 1.

Concessionaires of both Parties shall enter into an operating agreement to carry out jointly exploration and exploitation of natural resources in the Joint Development Zone. Such operating agreement shall provide, inter alia, for the following: (a) Details relating to the sharing of natural resources and expenses in accordance with article ix; (b) Designation of operator; (c) Treatment of sole risk operations; (d) Adjustment of fisheries interests; (e) Settlement of disputes.

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3.

239

The operating agreement and modifications thereof shall enter into force upon approval by the Parties. Approval of the Parties shall be deemed to have been given unless either Party explicitly disapproves the operating agreement or modifications thereof within two months after such operating agreement or modifications thereof have been submitted to the Parties for approval. The Parties shall endeavour to ensure that the operating agreement enter into force within six months after concessionaires of both Parties have been authorized under paragraph 1 of article iv.

Article vi 1.

2.

The operator shall be designated by agreement between concessionaires of both Parties. If concessionaires of both Parties fail to reach agreement between themselves as to the designation of the operator within three months after such concessionaires have been authorized, the Parties shall hold consultations concerning the designation of the operator. If the operator is not designated within two months after such consultations have started, concessionaires of both Parties shall determine the operator by lot-drawing. The operator shall have exclusive control of all operations under the operating agreement and employ all personnel required for such operations, pay and discharge all expenses incurred in connection with such operations, and obtain all assets, including equipment, materials and supplies, necessary for carrying out such operations.

Article vii

A concessionaire of one Party may acquire, construct, maintain, use and dispose of, in the territory of the other Party, buildings, platforms, tanks, pipelines, terminals and other facilities necessary for exploration or exploitation of natural resources in the Joint Development Zone in accordance with the laws and regulations of that other Party.

Article viii

A concessionaire of one Party shall not interfere with the discharging by a concessionaire of the other Party of its obligations under the laws and regulations of that other Party, insofar as such obligations are consistent with the provisions of this Agreement.

Article ix 1.

2.

Concessionaires of both Parties shall be respectively entitled to an equal share of natural resources extracted in the Joint Development Zone. Expenses reasonably attributable to exploration and exploitation of such natural resources shall be shared in equal proportions between concessionaires of both Parties.

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Article x 1.

2.

3.

4.

5.

6.

The right of concessionaires under this Agreement shall be exploration right and exploitation right. The duration of exploration right shall be eight years from the date of entry into force of the operating agreement, subject to the provisions of paragraph 4 (3) of this article. The duration of exploitation right shall be thirty years from the date of the establishment of such right. Concessionaires of both Parties may apply to the respective Parties for an extension of an additional period of five years. Such application may be made as many times as necessary. The Parties shall, upon receipt of such application, consult with each other to decide whether to approve such application. (1) When commercial discovery of natural resources is made during the period of exploration right, concessionaires of both Parties may apply to the respective Parties for the establishment of exploitation right. When the Parties receive such application, they shall promptly hold consultations and shall without delay approve such application. (2) When the Parties recognize that commercial discovery is made, each Party may request its concessionaire concerned to present an application for the establishment of exploitation right. Such concessionaire shall present such application within three months after receiving the request. (3) If exploitation right is established during the period of exploration right, the period of exploration right shall expire on the date of the establishment of exploitation right. In case of any change in concessionaire of one Party, the period of exploration right or exploitation right of a new concessionaire shall expire on the date of expiration of the period of exploration right or exploitation right of the original concessionaire. Exploration right or exploitation right of a concessionaire may be transferred in its entirety subject to the approval of the Party that has authorized it and to the consent of the other concessionaire authorized with respect to the same ­subzone, provided that the rights and obligations of that concessionaire under this Agreement and the operating agreement are transferred in whole.

Article xi 1.

Concessionaires of both Parties shall be required to drill a certain number of wells during the period of exploration right in accordance with a separate arrangement to be made between the Parties. However, the minimum number of wells to be drilled in each subzone shall not exceed two respectively for the first

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241

three-year period, the following three-year period and the remaining two-year period, from the date of entry into force of the operating agreement. The Parties shall, when agreeing upon the minimum number of wells to be drilled in each subzone, take into account the depths of the superjacent waters and the size of each subzone. If concessionaires of both Parties have drilled wells in excess of the requirements during any of the periods referred to in paragraph 1 of this article, such excess wells shall be regarded as having been drilled in the succeeding period or periods.

Article xii

Concessionaires of both Parties shall start operations within six months from the date of the establishment of exploration right or exploitation right and shall not suspend operations for more than six consecutive months.

Article xiii 1.

2.

3.

4. 5.

Subject to the provisions of paragraph 2 of this article, concessionaires of both Parties shall release twenty-five per cent of the original subzone concerned within three years, fifty per cent of such subzone within six years, and seventy-five per cent of such subzone within eight years, from the date of entry into force of the operating agreement. The size, shape and location of the area to be released and the time of release shall be determined by agreement between concessionaires of both Parties. However, no single area smaller than seventy-five square kilometres shall be released except under paragraph 3 of this article. (1) If concessionaires of both Parties are unable to agree on the area to be released under paragraph 1 of this article, concessionaires of both Parties shall release, on the date of the expiration of the release period concerned, the area mutually proposed for release and fifty per cent of the areas ­respectively proposed for release in such a way that the total area to be released will be a single area whenever possible. (2) If there is no area mutually proposed for release, concessionaires of both Parties shall release fifty per cent of the areas respectively proposed for release. Concessionaires of both Parties may release voluntarily any area subject to the provisions of paragraph 2 of this article. Notwithstanding the provisions of paragraph 2 of this article, a concessionaire may unilaterally release the total subzone concerned after two years have elapsed from the date of entry into force of the operating agreement.

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Article xiv 1.

2.

3.

Either Party may, by pertinent procedures laid down in its laws and regulations concerning the protection of concessionaires, cancel exploration right or exploitation right of its concessionaire after consultations with the other Party if such concessionaire fails to discharge any of its obligations under this Agreement or the operating agreement. When either Party intends to cancel in accordance with its laws and regulations exploration right or exploitation right of its concessionaire, that Party shall notify the other Party of its intention at least fifteen days prior to such cancellation, except under paragraph 1 of this article. The cancellation of exploration right or exploitation right by one Party shall be notified to the other Party without delay.

Article xv 1.

2.

3.

When a concessionaire of one Party has unilaterally released a subzone under paragraph 5 of article xiii, when exploration right or exploitation right of a concessionaire of one Party has been cancelled under article xiv or when a concessionaire of one Party has ceased to exist (any such concessionaire hereinafter referred to as ‘the former concessionaire’), the remaining concessionaire in the subzone concerned may, until such time as the Party that has authorized the ­former concessionaire authorizes a new concessionaire, carry out exploration or exploitation of natural resources under the terms of the sole risk operation ­clauses and under other relevant provisions of the operating agreement to which such remaining concessionaire and the former concessionaire were parties, ­subject to the approval of the Party that has authorized the former concessionaire. For the purposes of paragraph 1 of this article, the remaining concessionaire shall be regarded as a concessionaire of the Party that has authorized the former concessionaire in respect of rights and obligations of a concessionaire, while ­retaining its own concessionaireship. The provisions of the above sentence shall not apply to taxation upon the remaining concessionaire with respect to its i­ncome derived from exploration or exploitation of natural resources under paragraph 1 of this article. When a new concessionaire is authorized by one Party, the new concessionaire and the remaining concessionaire shall be bound by the operating agreement to which the remaining concessionaire and the former concessionaire were parties until such time as a new operating agreement enters into force. The remaining concessionaire who has started exploration or exploitation of natural resources under paragraph 1 of this article may continue such exploration or exploitation under the terms of the sole risk operation clauses of the operating agreement

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to which such remaining concessionaire and the former concessionaire were ­parties until such time as the new operating agreement referred to above enters into force.

Article xvi

In the application of the laws and regulations of each Party to natural resources extracted in the Joint Development Zone, the share of such natural resources to which concessionaires of one Party are entitled under article ix shall be regarded as natural resources extracted in the continental shelf over which that Party has sovereign rights.

Article xvii 1.

2.

Neither Party (including local authorities) shall impose taxes or other charges upon concessionaires of the other Party with respect to: (a) Exploration or exploitation activities in the Joint Development Zone; (b) Income derived from such activities; (c) The possession of fixed assets in the Joint Development Zone necessary for carrying out such activities; or (d) The subzones with respect to which such concessionaires are authorized. Each Party (including local authorities) may impose taxes and other charges upon its concessionaires with respect to: (a) Exploration or exploitation activities in the Joint Development Zone; (b) The possession of fixed assets in the Joint Development Zone necessary for carrying out such activities; and (c) The subzones with respect to which such concessionaires are authorized.

Article xviii

In the application of the laws and regulations of each Party on customs duties, imports and exports: (1) The introduction of equipment, materials and other goods necessary for exploration or exploitation of natural resources in the Joint Development Zone (hereinafter referred to as ‘equipment’) into the Joint Development Zone, the subsequent use of equipment therein or the shipment of equipment therefrom shall not be regarded as imports or exports; (2) The shipment of equipment from areas under the jurisdiction of one Party to the Joint Development Zone shall not be regarded as imports or exports by that Party; (3) The users of equipment in the Joint Development Zone which has been introduced into the Joint Development Zone from areas under the jurisdiction of either Party may be required to submit reports to that Party on the use of such equipment;

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(4) Notwithstanding the provisions of (1) of this article, the shipment of the equipment referred to in (3) of this article from the Joint Development Zone to areas other than those under the jurisdiction of that Party shall be regarded as exports by that Party.

Article xix

Except where otherwise provided in this Agreement, the laws and regulations of one Party shall apply with respect to matters relating to exploration or exploitation of natural resources in the subzones with respect to which that Party has authorized concessionaires designated and acting as operators.

Article xx

The Parties shall agree on measures to be taken to prevent collisions at sea and to prevent and remove pollution of the sea resulting from activities relating to exploration or exploitation of natural resources in the Joint Development Zone.

Article xxi 1.

When damage resulting from exploration or exploitation of natural resources in the Joint Development Zone has been sustained by nationals of either Party or other persons who are resident in the territory of either Party, actions for compensation for such damage may be brought by such nationals or persons in the court of one Party (a) in the territory of which such damage has occurred, (b) in the territory of which such nationals or persons are resident, or (c) which has authorized the concessionaire designated and acting as the operator in the subzone where the incident causing such damage has occurred. 2. The court of one Party in which actions for compensation for such damage have been brought under paragraph 1 of this article shall apply the laws and regulations of that Party. 3. (1) When damage referred to in paragraph 1 of this article has been caused by digging operations of seabed and subsoil, or discharging of mine water or used water: (a) Concessionaires of both Parties who have exploration right or exploitation right with respect to the subzone concerned at the time of occurrence of such damage, (b) In case no concessionaire has exploration right or exploitation right with respect to the subzone concerned at the time of occurrence of such damage, the concessionaires who had exploration right or exploitation right most recently with respect to the subzone concerned or (c) In case only one concessionaire has exploration right or exploitation right with respect to the subzone concerned at the time of occurrence of such

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damage, such concessionaire and the former concessionaire as defined in paragraph 1 of article xv, shall be jointly and severally liable for the compensation for such damage in accordance with the laws and regulations applicable under paragraph 2 of this article. (2) For the purposes of (1) of this paragraph, when exploration right or exploitation right has been transferred after the occurrence of the damage referred to in (1) of this paragraph, the concessionaire who has transferred exploration right or exploitation right and the concessionaire who has obtained exploration right or exploitation right by such transfer shall be jointly and severally liable for the compensation.

Article xxii 1.

2.

Each Party shall, when assigning a frequency or frequencies to a radio station on a fixed installation for exploration or exploitation of natural resources in the Joint Development Zone, inform as soon as possible prior to such assignment the other Party of such frequency or frequencies, class of emission, antenna power, location of the station and other particulars deemed necessary. Each Party shall likewise inform the other Party of any subsequent changes in the above particulars. The Parties shall hold consultations at the request of either Party for necessary coordination concerning the above particulars.

Article xxiii 1.

If any single geological structure or field of natural resources extends across any of the lines specified in paragraph 1 of article ii and the part of such structure or field which is situated on one side of such lines is exploitable, wholly or in part, from the other side of such lines, concessionaires and other persons authorized by either Party to exploit such structure or field (hereinafter referred to as ‘concessionaires and other persons’) shall, through consultations, seek to reach agreement as to the most effective method of exploiting such structure or field. 2. (1) If concessionaires and other persons fail to reach agreement as to the method referred to in paragraph 1 of this article within six months after such consultations have started, the Parties shall, through consultations, endeavour to make a joint proposal concerning such method to concessionaires and other persons within a reasonable period of time. (2) When agreement concerning such method is reached among all or some of concessionaires and other persons, the agreement (including modifications thereof) shall enter into force upon approval by the Parties. Such agreement shall provide for details relating to the sharing, in accordance with paragraph 3 of this article, of natural resources and expenses.

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3.

In cases of exploitation under the agreement referred to in paragraph 2 (2) of this article, natural resources extracted from such structure or field and expenses reasonably attributable to exploitation of such natural resources shall be shared among concessionaires and other persons in proportion to the quantities of ­producible reserves in the respective parts of such structure or field which are situated in the area with respect to which they have been authorized by either Party. 4. The provisions of the foregoing paragraphs of this article shall apply mutatis mutandis with respect to exploitation of a single geological structure or field of natural resources extending across lines bounding the subzones of the Joint Development Zone. 5. (1) For the purposes of article xvi, the share of natural resources extracted in the Joint Development Zone to which persons (other than concessionaires) authorized by one Party are entitled under paragraph 3 of this article and the agreement referred to in paragraph 2 (2) of this article shall be regarded as the share of natural resources to which concessionaires of that Party are entitled. (2) For the purposes of article xvii, persons (other than concessionaires) ­authorized by one Party who are parties to the agreement referred to in paragraph 2 (2) of this article shall be regarded as concessionaires of that Party. (3) Neither Party (including local authorities) shall impose taxes or other charges upon concessionaires of the other Party with respect to: (a) Exploitation activities carried out outside the Joint Development Zone in accordance with the agreement referred to in paragraph 2 (2) of this article; (b) Income derived from such activities; or (c) The possession of fixed assets necessary for carrying out such activities.

Article xxiv 1.

2. 3. 4.

The Parties shall establish and maintain the Japan Republic of Korea Joint Commission (hereinafter referred to as ‘the Commission’) as a means for consultations on matters concerning the implementation of this Agreement. The Commission shall be composed of two national sections, each consisting of two members appointed by the respective Parties. All resolutions, recommendations and other decisions of the Commission shall be made only by agreement between the national sections. The Commission may adopt and amend, when necessary, rules of procedure for its meetings.

Selected Maritime Laws And Agreements In Northeast Asia 5. 6.

7. 8. 9.

The Commission shall meet at least once each year and whenever requested by either national section. At its first meeting, the Commission shall select its Chairman and Vice Chairman from different national sections. The Chairman and the Vice-Chairman shall hold office for a period of one year. Selection of the Chairman and the ­Vice-Chairman from the national sections shall be made in such a manner as will provide in turn each Party with representation in these offices. A permanent secretariat may be established under the Commission to carry out the clerical work of the Commission. The official languages of the Commission shall be Japanese, Korean and English. Proposals and data may be submitted in any official language. In case the Commission decides that joint expenses are necessary, such expenses shall be paid by the Commission through contributions made by the Parties as recommended by the Commission and approved by the Parties.

Article xxv 1.

2.

247

The Commission shall perform the following functions: (a) To review the operation of this Agreement and, when necessary, deliberate on and recommend to the Parties measures to be taken to improve the operation of this Agreement; (b) To receive technical and financial reports of concessionaires, which shall be submitted annually by the Parties; (c) To recommend to the Parties measures to be taken to settle disputes incapable of solution by concessionaires; (d) To observe operations of operators and installations and other facilities for exploration or exploitation of natural resources in the Joint Development Zone; (e) To study problems, including those relating to the application of laws and regulations of the Parties, unexpected at the time of entry into force of this Agreement, and, when necessary, recommend to the Parties appropriate measures to solve such problems; (f) To receive notices concerning the laws and regulations promulgated by the Parties relating to exploration or exploitation of natural resources in the Joint Development Zone, which shall be submitted by the Parties; (g) To discuss any other matter relating to the implementation of this Agreement. The Parties shall respect to the extent possible recommendations made by the Commission under paragraph 1 of this article.

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Appendixes

Article xxvi 1.

2.

3.

4.

5.

Any dispute between the Parties concerning the interpretation and implementation of this Agreement shall be settled, first of all, through diplomatic channels. Any dispute which fails to be settled under paragraph 1 of this article shall be referred for decision to an arbitration board composed of three arbitrators, with each Party appointing one arbitrator within a period of thirty days from the date of receipt by either Party from the other Party of a note requesting arbitration of the dispute, and the third arbitrator to be agreed upon by the two arbitrators so chosen within a further period of thirty days or the third arbitrator to be appointed by the government of a third country agreed upon within such further period by the two arbitrators, provided that the third arbitrator shall not be a national of either Party. If the third arbitrator or the third country is not agreed upon between the arbitrators appointed by each Party within a period referred to in paragraph 2 of this article, the Parties shall request the President of the International Court of ­Justice to appoint the third arbitrator who shall not be a national of either Party. At the request of either Party, the arbitration board may in urgent cases issue a provisional order, which shall be respected by the Parties, before an award is made. The Parties shall abide by any award made by the arbitration board under this article.

Article xxvii

Exploration and exploitation of natural resources in the Joint Development Zone shall be carried out in such a manner that other legitimate activities in the Joint Development Zone and its superjacent waters such as navigation and fisheries will not be unduly affected.

Article xxviii

Nothing in this Agreement shall be regarded as determining the question of sovereign rights over all or any portion of the Joint Development Zone or as prejudicing the positions of the respective Parties with respect to the delimitation of the continental shelf.

Article xxix

Upon the request of either Party, the Parties shall hold consultations regarding the implementation of this Agreement.

Article xxx

The Parties shall take all necessary internal measures to implement this Agreement.

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Article xxxi 1.

2.

3.

4.

This Agreement shall be ratified. The instruments of ratification shall be exchanged at Tokyo as soon as possible. This Agreement shall enter into force as from the date on which such instruments of ratification are exchanged. This Agreement shall remain in force for a period of fifty years and shall continue in force thereafter until terminated in accordance with paragraph 3 of this article. Either Party may, by giving three years’ written notice to the other Party, terminate this Agreement at the end of the initial fifty-year period or at any time thereafter. Notwithstanding the provisions of paragraph 2 of this article, when either Party recognizes that natural resources are no longer economically exploitable in the Joint Development Zone, the Parties shall consult with each other whether to revise or terminate this Agreement. If no agreement is reached as to the revision or termination of this Agreement, this Agreement shall remain in force during the period as provided for in paragraph 2 of this article.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement. DONE in duplicate at Seoul in the English language, this thirtieth day of January of the year one thousand nine hundred and seventy-four. For Japan: For the Republic of Korea: TORAO USHIROKU DONG-Jo KlM

Index Achille Lauro incident 153 asean 149, 156–157, 164, 166 asean Convention on Counter-Terrorism (acct) 156–157 Agreement between the Republic of Korea and Japan Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries 73–74 Agreement between the Republic of Korea and Japan Concerning the Establishment of Boundaries in the Northern Part of the Continental Shelf Adjacent to the Two Countries 73–74 Air defense identification zone (adiz) 61–63 Allied Forces 2 Armistice Agreement 2, 17–20, 24–26, 34, 119, 201, 205 Baseline 9, 35–40, 43–44, 46, 49, 54, 59, 60, 67–68, 72, 79, 203 Basepoints 35, 37, 39–40, 73, 93, 202 Bay of Korea 56, 77 Bohai Bay 37, 40–42, 52, 77, 98, 113–115, 129, 204 Cairo declaration (1943) 84, 89–90 Cheonan 5, 29–30 China 1–2, 5–22, 35–80, 84–99, 104–146, 152, 160–172, 180, 182, 200, 202–205 Chosun Dynasty 1, 9, 23, 82 Coastal waters 25, 61, 85, 107, 124, 138–140, 152 Cold War 1–2, 5–6, 8, 16, 94, 145, 200 Commission on the Limits of the Continental Shelf (clcs) 54 Combined maritime forces (cmf) 153 Container Security Initiative (csi) 146, 159–166, 169, 206 Contiguous zone 11–12, 25, 35, 37, 43–47, 49, 92, 128, 178 Convention on the Territorial Sea and the Contiguous Zone 11, 14 Convention on the High Seas 11, 14

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (sua Convention) 154–155, 158 Continental Shelf 9–15, 35, 47, 51–59, 62–79, 91–93, 126–128, 202–203 Customary international law 15, 22, 47 Customs-Trade Partnership Against Terrorism (c-tpat) 146, 160, 164, 166, 206 Daioyudoa 53, 70–71 Demilitarized Zone (dmz) 2, 18–19, 32, 136, 176, 207 De facto maritime boundary 24, 26 De jure maritime border 17, 201 Designated shipping lanes 175–176, 207 Disaster response 187, 195 Dokdo 71–75, 80–86, 203 Effective occupation 85–86, 91 Eyes in the sky 148 Equidistant line 22, 39, 53–54, 56–60, 203 Equitable solution 56, 67–68, 79 East Sea 1, 18–21, 71–73, 75–77, 80, 136 East China Sea 1, 9, 14, 52–59, 61–68, 71–79, 86, 91, 93, 114, 123, 127, 129, 130–131, 140, 203 eez fishery law 28 European maritime state 14 Exclusive Economic Zone (eez) 9, 14–15, 21–22, 29, 47, 51–60, 64–79, 91–93, 122–129, 132, 137, 140, 152, 202–205 Exxon Valdez 103 Ferry accident 183, 188–191, 195, 196 Fishery agreement 13, 16, 43, 60–61, 64, 75, 80, 121–127, 132, 135, 137, 143, 203 Fishery regime 119–122, 129, 140, 143, 205 Fishing ground 12, 28, 68, 82, 94, 119, 140, 205 Five West Islands 17–25, 29–30, 33, 127, 135, 201 Freedom of navigation 44, 47, 166, 168 Hebei Spirit 98, 104, 107, 204 High Seas 11–14, 36, 40, 43–46, 48, 62, 116, 153–154, 168

251

Index Historic bay 40–41 Historic title 40–41 hns 98–99, 102–118, 145, 204 Hot season moratorium 140, 144 Human error 190, 199 Ieodo 40, 59–63, 202 Illegal fishing 25, 33, 119, 124, 130–144, 205 Innocent Passage 12, 22, 47–50, 168, 177–179, 182, 201–202 Inter-Korean Basic Agreement (1992) 22 International Maritime Organization (imo) 99, 103–104, 108–110, 149, 169,  191–192 International Convention of the Safety of Life at Sea (1974 solas) 162–165, 187, 191, 194 International Ship and Port Facility Security Code (isps Code) 146, 162–165, 206 International Convention on Oil Pollution Preparedness, Response and Cooperation (oprc 1990) 102–103, 108, 110–111, 115 International Convention for the Prevention of Pollution from Ship (marpol 1973) 108, 110–111 Japanese Colonial Rule 1, 6, 80 Japan Coast Guard 73, 111–112, 158 Joint Development Zone (jdz) 54, 74–75, 79 Judicial bay 39–40 Kim Dae Jung 4 Korea–China fishery agreement (2000) 124– 127, 132, 137, 143 Korea Coast Guard 28, 73, 104, 112, 130, 140, 158, 178, 182, 187, 193–194, 196, 198 Korea–Japan fishery agreement (1998) 127 Korean Peninsula 1–3, 5, 9, 13–14, 17–18, 20–24, 26–27, 32–34, 52, 71, 82, 120–121, 140, 167, 171, 175, 181, 2001–201 Korea Strait 42, 44, 45, 73 Korean War 2, 5, 17–19, 24, 30, 34, 85, 137, 201 Kaesung Industrial Complex 4–5, 176, 207 Kuril Islands 80, 93–96, 203 Layered approach 159 Law enforcement 28, 49, 75–76, 111, 119, 125–134, 141–143, 157, 205 Littoral state 148–149, 158–168

Long-Range Identification and Tracking (lrit) 163 Low-tide elevation 36, 39, 69, 202 London Convention (1972) 110 MacArthur Line 120–121 Malacca Straits Patrol (msp) 148–149 Malacca Straits Surface Patrol (mssp) 148–149 Malacca Strait 145, 147–149, 158, 168 Mark Clark 19 Maritime control area 175 Maritime dispute 7–9, 16, 36, 51, 80, 86, 200–203 Maritime safety 112, 183, 187, 195–199 Maritime security 24, 27, 33, 51, 145–146, 149–150, 156, 159, 162–170, 201–202, 206 Maritime terrorism 145, 153, 154–156, 158 Maritime Transportation Agreement 34, 175–176 Maritime Transportation Security Act, u.s. 164 Marine pollution 10, 98–99, 101, 103, 107–109, 111–117, 204–205 Marine pollution response 98–99, 111 Maritime boundary delimitation 9, 27, 35–36, 39, 51–60, 64, 67, 71–78, 94, 121, 124, 146, 202 Maritime regime 1, 9, 16, 171, 200–201 Maritime dispute 2, 8–9, 16, 36, 51, 80, 86, 200–202 merrac 99, 103–106 Military boundary zone 20–22, 25, 76–77 Military Demarcation Line (dml) 17–18, 24–25, 34 Moscow Conference 2 Multiple maritime boundary 58 Natural prolongation of the land territory 53–56, 59–60, 62, 65, 203 Naval engagement 30, 32 9/11 incident 145 nowpap 98–99, 101–109, 111–118, 204–205 No fishing line 28 Non-encroachment 27, 34, 201 Normal baseline 36–37 Northern territories 80, 93–96, 203 Northeast Asia 1, 5–10, 13, 16–17, 35, 48, 97–98, 114–115, 117–118, 120, 200, 202–204

252 Northern Limit Line (nll) 5, 17–34, 43, 120, 127, 134–136, 175, 200–201, 205 North Korea (The Democratic People’s Republic of Korea) 1–6, 14–19, 20–34,  51–52, 56, 76–77, 110–111, 114–116, 166–167, 169, 171–182, 201–201 North Korea’s nuclear test 8, 172, 174, 176, 207 Operation malsindo 148 Oil spill 98, 101–108, 111–116, 204 Oil spill contingency plan 101–104 oprc-hns Protocol 2000 102–103, 108 Okinawa Trough 54–55, 65, 67, 73–75, 91 Okinawa reversion treaty 90–91 Okinotorishma 68–69 Passenger ship 163, 183, 189–198 Peace Line 85, 120–121 Piracy 146–157, 167–169 Port security 164–165, 168 Port State Control (psc) 164, 169 Presidential Proclamation of Sovereignty over the Adjacent Sea 85, 120 Proliferation Security Initiative (psi) 146, 165–168, 176, 206–207 Protocol to sua Convention (2005 Protocol) 154, 157 Provisional maritime boundary arrangement 43, 64 Provisional zone 75–76, 138 Pyongyang 33 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (reccap) 150–151 Regional Maritime Security Initiative (rmsi) 168 Russia 1, 5, 14–15, 51–52, 71, 77, 80, 93–99, 103, 105–113, 116–117, 121, 200–203 San Francisco Peace Treaty (1951) 83–84, 86–90, 95, 121 Safety management system 192, 194 Sea of Japan 1, 71–73, 75–77, 80 Security and Accountability for Every Port Act of 2006, u.s. 160, 164 Secure Freight Initiative (sfi) 146, 160–162, 206

Index Self-restraint fishery line 123 Semi-enclosed waters 52 Senkaku islands 47, 62–63, 70–71, 80, 86–93, 203 Sewol ferry 183–190 Simonoseki treaty 88–90 Single maritime boundary 58–59, 66, 79 Slit line 53, 56, 58, 77 Somalia 147, 150–152 So San incident 166 South China Sea 7, 9, 37, 47, 52, 62 Southeast Asia 147, 149, 155–158, 161, 164, 167, 189 South Korea (The Republic of Korea) 2–8, 14–15, 18–27, 42–43, 51–52, 110, 114–115, 171, 175–178, 201–202, 207 Straight baseline 35–47, 91, 126, 201–122 Sunshine Policy 4 Takeshima 71, 80, 82, 203 38th Parallel 2, 24 Terra nullius 82–83, 88 Transit Passage 13, 46, 48 Territorial dispute 51, 53, 59–60, 64, 80, 92, 96–97, 116, 202–204 Territorial Sea 10–14, 20, 25, 35–50, 58, 66, 79, 91–92, 128, 148, 175–178, 202–203, 207 Truman Proclamation on the Continental Shelf 10–11 24-Hour Advance Manifest Rule (24-Hour Rule) 146, 161, 206 United States 1–2, 6, 10, 41, 84, 89–94, 146, 148, 152, 155, 160–169, 176, 196, 200, 206 United Nations Command (cnc) 18, 119, 136, 205 u.n Commission 2 u.n Convention on the Law of the Sea (unclos) 8, 11–16, 25, 35–59,  60–69, 73, 97, 102–103, 110, 122, 124, 128, 143, 153–155, 166, 168, 177–178, 182, 201–204 u.n Security Council Resolution 1718, 1874, 2087, 2094, 2270 171–174, 178–180 u.n Sanction 17, 136, 177, 181–182, 207 u.n Security Council 151, 167, 171–174, 177–181, 206 u.n Security Council Resolution 2, 167, 171–173, 177

253

Index United Nations (u.n.) 2, 17–18, 166, 172, 177–178, 180–182, 207 User state 149 u.s. Customs and Border Protection (cbp) 160–161 Vessel Traffic Service (vts) 187–188, 196 West Sea 1, 17–27, 30–33, 52, 76, 201

Weapons of mass destruction (wmd) 145, 165–168, 175, 178–179, 207 Yellow Sea 1, 14, 17–18, 22, 39, 41, 52–59, 74–76, 114–115, 119–122, 129–131, 134, 138–144, 200–205 Yeonpyong Island 5