William S. Richardson School of Law2William S. Richardson School of Law
University of Hawaii at Manoa
University of Hawaii at ManoaHonolulu, Hawaii
The Republic of Korea inhabits a peninsula surrounded by the sea, but its ocean space is restricted because it has close neighbors in each direction. Although the Korean people have a long tradition of fishing in waters near and far, the ocean resources they control under the rules established by the 1982 United Nations Law of the Sea Convention2 and other principles of international law are limited because of the crowded geography of Northeast Asia. This paper examines the issues related to each of South Korea’s maritime boundaries, explains how the complex legal principles governing maritime boundaries might be applied in the Korean context, and analyzes the options the Republic of Korea might pursue in negotiating the delimitation of its boundaries.
The maritime aspects of these boundary disputes are complicated enough, as the materials below explain, but they are made even more complicated because of uncertainty about whether the now-divided Korean peninsula will remain separated into two countries indefinitely and because of Japan’s continued claim to the Korean-held islet of Tok-Do (which Japan calls Takeshima), located about half-way between the two countries. The boundaries between North and South Korea are included in the discussions that follow, because they are part of the mix of decisions that must be addressed by the Republic of Korea in the coming years, but they are clearly of a different character than the boundary delimitations South Korea must undertake with China and Japan. The disputes between the two Koreas are deep and complicated and include whether the peninsula should remain divided. As a practical matter, it is highly unlikely that the maritime boundary issues between the two Koreas will be addressed in the near future, and certainly not before more fundamental decisions are made. The delimitations between South Korea and its neighbors Japan and China are also complicated, both from a legal and political perspective, as the materials that follow explain.
In order to analyze the positions taken by the Republic of Korea and its neighbors regarding their disputed maritime boundaries, it is useful first to summarize the principles that have emerged from recent judicial and arbitral decisions on boundary disputes. Articles 74 (on the exclusive economic zone) and 83 (on the continental shelf) of the Law of the Sea Convention both state that boundary delimitations are to be “effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” This reference to “an equitable solution” mirrors the original statement promulgated by the United States when it claimed sovereignty over its continental shelf in 1945 and stated that: “In cases where the continental shelf extends to the shore of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the state concerned in accordance with equitable principles.”3 Although some commentators have argued that the term “equitable” has no definite meaning, fairly specific “equitable principles” have in fact emerged during the past three decades:4
** The Equidistance or Median-Line Approach Can Be Used as an Aid to Analysis, But It Is Not to Be Used as a Binding or Mandatory Principle. In the Libya/Malta case,5 the Gulf of Maine case,6 and the Jan Mayen case,7among others, the International Court of Justice (ICJ) examined the equidistance or median line8 as an aid to its preliminary analysis, but then adjusted the line in light of the differences in the length of the coastlines of the contending parties.9 The Court has made it clear in all these cases that the equidistance line is not mandatory or binding.
** The Proportionality of Coasts Must Be Examined to Determine if a Maritime Boundary Delimitation Is "Equitable." It has now become well established that an essential element of a boundary delimitation is the calculation of the relative lengths of the relevant coastlines. If this ratio is not roughly comparable to the ratio of the provisionally-delimited maritime space allocated to each country, then the tribunal will generally make an adjustment to bring the ratios into line with each other.10 In the Libya/Malta Case, for instance, the ICJ started with the median lines between the countries, but then adjusted the line northward through 18' of latitude to take account of the "very marked difference in coastal lengths"11 between the two countries. The Court then confirmed the appropriateness of this solution by examining the "proportionality" of the length of the coastlines of the two countries12 and the "equitableness of the result."13 In the Jan MayenCase, the ICJ determined that the ratio of the relevant coasts of Jan Mayen (Norway) to Greenland (Denmark) was 1:9, and ruled that this dramatic difference required a departure from reliance on the equidistance line. The final result was perhaps a compromise between an equidistance approach and a proportionality-of-the-coasts approach, with Denmark (Greenland) receiving three times as much maritime space as Norway (Jan Mayen).14
** Geographical considerations will govern maritime boundary delimitations and nongeographic considerations will only rarely have any relevance.15 The Gulf of Maine case was perhaps the most dramatic example of the Court rejecting submissions made by the parties regarding nongeographic considerations, such as the economic dependence of coastal communities on a fishery, fisheries management issues, and ecological data.
** “Natural prolongation” is no longer a prominent factor in maritime delimitations.The concept of the continental shelf as a "natural prolongation" of the adjacent continent is a geographical notion, but it has not played any significant role in decisions rendered during the past two decades. It was first recognized in the North Sea Continental Shelf Case16 and is found in Article 76(1) of the Law of the Sea Convention (defining continental shelves that extend beyond 200 nautical miles), but it appears to have been rejected as a factor relevant to maritime boundary delimitation in, for instance, the Libya/Tunisia Case,17 the Libya/Malta Case,18 and Gulf of MaineCase.19 In the St. Pierre and MiquelonCase,20 the arbitral tribunal stated that the continental shelf was generated by both Canada's and France's land territories, and thus that it was not a "natural prolongation" of one country as opposed to the other. The abandonment of the natural prolongation approach in all recent decisions has required countries to adjust their negotiation strategies in recent agreements, and may have a significant effect in Northeast Asia, because China and South Korea have both made arguments based on this theory, as is discussed below.21 To some extent, the Principle of Non-Encroachment, discussed next, has taken the place of the natural-prolongation idea, but it leads to some different results.
** The Principle of Non-Encroachment. This principle is included explicitly in Article 7(6) of the Law of the Sea Convention, which says that no state can use a system of straight baselines "in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone." It played a significant role in the delimitation of the exclusive economic zone (EEZ) in the Jan MayenCase, where the Court emphasized the importance of avoiding the blockage of a coastal state's entry into the sea. Even though Norway's tiny Jan Mayen island was minuscule in comparison with Denmark's Greenland, Norway was allocated a maritime zone sufficient to give it equitable access to the important capelin fishery that lies between the two land features.22 The unusual 16-nautical-mile-wide and 200-nautical-mile-long corridor drawn in the St. Pierre and MiquelonCase23appears to have been based on a desire to avoid cutting off these islands' coastal fronts into the sea. But, at the same time, the arbitral tribunal accepted Canada's argument that the French islands should not be permitted to cut off the access of Canada's Newfoundland coast to the open ocean.
** The Principle of Maximum Reach. This principle first emerged in the North SeaContinental Shelf Case,24 where Germany received a pie-shaped wedge to the equidistant point even though this wedge cut into the claimed zones of Denmark and the Netherlands. Professor Charney reported in 1994 that this approach had been followed in later cases: "No subsequent award or judgment has had the effect of fully cutting off a disputant's access to the seaward limit of any zone."25 The decisions during the past decade have confirmed the importance of this principle. In the Gulf of FonsecaCase, the Court recognized the existence of an undivided condominium regime in order to give all parties access to the maritime zone and its resources,26 and in the St. Pierre and MiquelonCase, France was given a narrow corridor connecting its territorial sea with the outlying high seas.27 The geographical configuration in the Jan MayenCasepresented different issues, but even there the Court gave Norway more than it "deserved" given the small coastline and tiny size of Jan Mayen Island, apparently to enable it to have at least "limited geographical access to the middle of the disputed area,"28 which contained a valuable fishery. Several interests are served by the Maximum Reach Principle--"status" (by recognizing that even geographically disadvantaged countries have rights to maritime resources), the right "to participate in international arrangements as an equal," navigational freedoms, and "security interests in transportation and mobility."29
** Each Competing Country Is Allocated Some Maritime Area. This principle is similar to the Non-Encroachment and Maximum-Reach Principles, but must be restated in this form to emphasize how the International Court of Justice has approached maritime boundary delimitations. Although the Court has attempted to articulate consistent governing principles, its approach to each dispute has, in fact, been more like the approach of an arbitrator than that of a judge. Instead of applying principles uniformly without regard to the result they produce, the Court has tried to find a solution that gives each competing country some of what it has sought, and has tried to reach a result that each country can live with.30 In that sense, the Court has operated like a court of equity, or as a court that has been asked to give a decision ex aequo et bono.31 Perhaps such an approach is inevitable, and even desirable, given that the goal of a maritime boundary delimitation, as stated in Articles 74 and 83 of the Law of the Sea Convention, is to reach an "equitable solution."
** Islands Have a Limited Role in Resolving Maritime Boundary Disputes. Article 121 of the Law of the Sea Convention says that all islands, except “rocks” that “cannot sustain human habitation or an economic life of their own,” generate exclusive economic zones and continental shelves, but the ICJ and arbitral tribunals have not, in fact, given islands equal ability to generate zones when they are opposite continental land areas or substantially larger islands.32 This conclusion has been reached consistently in the North Sea Continental Shelf Case,33 the Anglo-FrenchArbitration,34 the Libya/Tunisia Case,35 the Libya/Malta Case,36 the Gulf of Maine Case,37 the Guinea/Guinea-Bissau Case,38 the Jan Mayen Case,39 and the St. Pierre and Miquelon Arbitration.40
With regard to very small islands, tribunals have given them only limited power to generate maritime zones if their zones would reduce the size of zones created by adjacent or opposite continental land masses. Tiny islets are frequently ignored altogether, as in the North Sea Continental Shelf and Libya/Malta Cases, but even substantial islands are given less power to generate zones than their location would warrant, as in the Libya/Tunisia and Libya/Malta Cases. This approach was also followed in the recent Eritrea-Yemen arbitration, where the tribunal gave no effect whatsoever to the Yemenese island of Jabal al-Tayr and to those in the al-Zubayr group, because their “barren and inhospitable nature and their position well out to sea...mean that they should not be taken into consideration in computing the boundary line.”41
Similarly, in the recent Qatar-Bahrain case, the International Court of Justice ignored completely the presence of the small, uninhabited, and barren Bahraini islet of Qit’at Jaradah, situated about midway between the main island of Bahrain and the Qatar peninsula, because it would be inappropriate to allow such an insignificant maritime feature to have such a disproportionate effect on a maritime delimitation line.42 The Court also decided to ignore completely the “sizeable maritime feature” of Fasht al Jarim located well out to sea in Bahrain’s territorial waters, which Qatar characterized as a low-tide elevation and Bahrain called an island, and about which the tribunal said: “at most a minute part is above water at high tide.”43 Even if it cannot be classified as an “island,” the Court noted, as a low-tide elevation it could serve as a baseline from which the territorial sea, exclusive economic zone, and continental shelf could be measured.44 But using the feature as such a baseline would “distort the boundary and have disproportionate effects,”45 and, in order to avoid that undesirable result, the Court decided to ignore the feature altogether.
** The Vital Security Interests of Each Nation Must Be Protected. This principle was recognized, for instance, in the Jan Mayen Case, where the Court refused to allow the maritime boundary to be too close to Jan Mayen Island,46 and it can be found in the background of all the recent decisions. The refusal of tribunals to adopt an "all-or-nothing" solution in any of these cases illustrates their sensitivity to the need to protect the vital security interests of each nation. The unusual decision of the ICJ Chamber in the El Salvador-Honduras Maritime Frontier Dispute, concluding that El Salvador, Honduras, and Nicaragua hold undivided interests in the maritime zones seaward of the closing line across the Gulf of Fonseca,47 illustrates how sensitive tribunals are to the need to protect the interests of all countries. It has also become increasingly common for countries to establish joint development areas in disputed maritime regions.48
** Summary of Maritime Boundary Delimitation Principles. For the Republic of Korea, the key principles that emerge from the decisions rendered during the past 25 years are: (1) the natural prolongation principle no longer receives much attention, (2) very small islands tend to be ignored altogether and even larger islands have a reduced role in affecting a maritime boundary because their coastlines will inevitably be shorter than that of an opposite continental land mass or larger island, (3) countries appear to have a right to avoid being totally suffocated by an ocean zone of a neighbor that cuts them off from access to the seas altogether and innovative corridors have been constructed to avoid that result, and (4) decisionmakers tend to give each competing country some of what they seek, to protect their vital security interests, and, to some extent, to split the difference between the countries in order to achieve the “equitable solution” sought by Articles 74 and 83 of the Law of the Sea Convention. Another important emerging trend is that most countries now prefer a single maritime boundary that divides the exclusive economic zone and the continental shelf at the same location. The factors governing these two separate delimitations are the same, and it is convenient in most regions to have the same line for both boundaries.
Some Other Preliminary Matters
The claims of coastal states to exclusive economic zones and continental shelves are measured from their baselines. The normal baseline is simply the point where the land meets the sea and it follows the contours of the actual coastline. Article 7(1) of the Law of the Sea Convention allows countries to use straight baselines if their coastline is deeply indented or if a fringe of offshore islands masks the coastline, but under Article 7(3) the straight baselines must not depart appreciably from the general direction of the coast.49 Once straight-baselines are drawn, the waters landward of these lines are “inland waters,” which are totally controlled by the coastal country, and the next 12 nautical miles are “territorial sea,” which is sovereign territory, and through which vessels can pass only if the passage is “innocent.” For maritime boundary purposes, baselines become crucial because any median or equidistance line that might be drawn to divide overlapping maritime zones would start from the baselines.
When South Korea established straight baselines along its southern and western coasts in 1965, and in 1977 when it enacted the Territorial Sea Act of Korea, it consulted extensively with Japan. South Korea has a somewhat irregular west coast and fringing islands along some areas, so that its baseline claims along its western and southern coasts are generally thought to be consistent with the Law of the Sea Convention, with the possible exception of the 54-mile line between Hong-do and Hoeng-do in the southwest and the 60-mile line between Cholmyong and Sohuksan-do in the south.50 China and Japan have raised some questions about whether the Korean baselines are consistent with the requirements of Articles 7 and 10 of the Law of the Sea Convention.51
China’s use of a high-tide elevation about 70 nautical miles off Shanghai called Dongdao (Barren Island) is of dubious legitimacy and has been challenged by its neighbors because is so far from the coast and thus departs dramatically from the general direction of the coastline. China has also used some low-tide elevations as basepoints for its baselines.52 These basepoints are proper under Article 7(4) of the Law of the Sea Convention only if the low-tide elevations have lighthouses or other permanent fixtures on them. China’s coast south of the Yangtze estuary is deeply indented, but the coastline north of the Yangtze appears to be more regular and the use of baselines there is inconsistent with the requirements of Article 7 of the Law of the Sea Convention.53 Korean scholars have challenged all the basepoints north of the mouth of the Yangtze as violating the principles established in Articles 7 and 13 of the Law of the Sea Convention.54
North Korea apparently claims one single 300-nautical-mile straight baseline along its east coast connecting the northeast corner of the country at the mouth of the Tumen River to its southeast corner where the Armistice Line meets the sea.55 Such a claim certainly exceeds the permissible limits established by Article 7 of the Law of the Sea Convention, and this line is not recognized as legitimate by most countries, including the United States.56 This coastline is not particularly deeply indented57 and does not have any fringing islands, and North Korea has never made a serious claim that its two indentations on the East Sea should be viewed as historic bays.58 Professor Paik has concluded that: “It seems very doubtful that the East Korea Bay and the small indentation north of it would fall under the category of historic bays.”59
Japan’s baseline claims are also of questionable legitimacy in some locations. Japan’s first effort at baseline delimitation occurred in 1977 in its Law on the Territorial Sea (Law No. 30), which went into effect on July 1, 1977. Its straight-baseline claims are disputed because Japan’s coastline is not generally viewed as being “deeply indented” nor does it have “fringing islands.” Some baselines connect remote islands far from the main islands, and some are more than 50 miles long. Deputy Minister Lark-Jung Choi of Korea’s Ministry of Maritime Affairs and Fisheries (MOMAF) has explained that 46 of Japan’s straight baselines exceed 24 nautical miles in length and 21 exceed 40 nautical miles.60 The longest baseline is 62.26 nautical miles in the area west of Kyushu. Korean scholars and officials complain in particular about the straight baselines that are drawn around Wakasa Bay, Toyama Bay, and Kyushi Bay, which do not meet the definition in Article 10 of the Law of the Sea Convention of a legal bay,61 as well as those drawn in the Shikoku area, Nodu Bay, and Hekurajima, “and in many other places.”62 These straight baselines, if accepted, would have the effect of increasing Japan’s territorial sea by about 13% and its exclusive economic zone by almost 25%.63
In June 1997, a South Korean captain was arrested by the Japanese Maritime Safety Agency for violating the Japanese “Law concerning Regulation of Fishing Activities by Foreigners,” which prohibits foreign fishing in Japan’s territorial sea. His vessel was 18.9 miles off the coast of Hamada, Shimane Prefecture, but was deemed by Japan to be within its territorial waters because of its baseline claims. Japan adopted its baselines without consultation or acquiescence by South Korea, and in apparent violation of the 1965 Fishery Treaty between the two countries, which required such consultations.64 Japanese courts at first reached inconsistent conclusions on the legal issues raised by this and other arrests, but they eventually concluded that Japan had the unilateral right to declare and define its territorial sea and could exercise exclusive jurisdiction in that area.65
The Breadth of the Territorial Sea
A central issue in the maritime boundary dispute in the West Sea between North and South Korea is the breadth of territorial sea that can be drawn around South Korea’s five small islands that are adjacent to North Korea’s coast. Article 3 of the Law of the Sea Convention allows countries to claim territorial seas of 12 nautical miles, but in some congested ocean areas, countries have claimed smaller territorial seas out of recognition of the legitimate interests of their neighbors. In the Aegean Sea, for instance, Greece and Turkey have claimed territorial seas of six nautical miles, in order to preserve navigational freedoms and permit some shared use of this ancient sea.66 Other examples where states have agreed to establish territorial seas of less than 12 nautical miles around islands that are in cramped locations or are on the "wrong" side of the median line include the Venezuelan island of Isla Patos (between Venezuela and Trinidad & Tobago),67 the Abu Dhabi island of Dayyinah (between Abu Dhabi and Qatar),68 and the Australian islands in the Torres Strait (between Australia and Papua New Guinea),69 all of which have been given only three nautical miles of territorial sea. Another intriguing example is found in the 1984 agreement between Argentina and Chile, where these two countries limited their territorial sea claim in relation to each other to three nautical miles, but claimed 12-nautical-mile territorial seas with regard to all other countries.70