The Republic of Korea’s Maritime Boundaries
The Republic of Korea’s Maritime Boundaries
by Jon M. Van Dyke[1]
William S. Richardson School of Law2William S. Richardson School of Law
University of Hawaii at Manoa
University of Hawaii at ManoaHonolulu, Hawaii
jvandyke@hawaii.edu
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 Convention[2] 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.
The Principles that Govern Maritime Boundary Delimitation
In order to analyze the positions taken by the Republic of Korea and its neighbors regarding their disputed maritime boundaries, it is useful first to summarize the principles that have emerged from recent judicial and arbitral decisions on boundary disputes. Articles 74 (on the exclusive economic zone) and 83 (on the continental shelf) of the Law of the Sea Convention both state that boundary delimitations are to be “effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.” This reference to “an equitable solution” mirrors the original statement promulgated by the United States when it claimed sovereignty over its continental shelf in 1945 and stated that: “In cases where the continental shelf extends to the shore of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the state concerned in accordance with equitable principles.”[3] Although some commentators have argued that the term “equitable” has no definite meaning, fairly specific “equitable principles” have in fact emerged during the past three decades:[4]
** The Equidistance or Median-Line Approach Can Be Used as an Aid to Analysis, But It Is Not to Be Used as a Binding or Mandatory Principle. In the Libya/Malta case,[5] the Gulf of Maine case,[6] and the Jan Mayen case,[7] among others, the International Court of Justice (ICJ) examined the equidistance or median line[8] 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 countries[12] and the "equitableness of the result."[13] In the Jan Mayen Case, the ICJ determined that the ratio of the relevant coasts of Jan Mayen (Norway) to Greenland (Denmark) was 1:9, and ruled that this dramatic difference required a departure from reliance on the equidistance line. The final result was perhaps a compromise between an equidistance approach and a proportionality-of-the-coasts approach, with Denmark (Greenland) receiving three times as much maritime space as Norway (Jan Mayen).[14]
** Geographical considerations will govern maritime boundary delimitations and nongeographic considerations will only rarely have any relevance.[15] The Gulf of Maine case was perhaps the most dramatic example of the Court rejecting submissions made by the parties 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 Case[16] and is found in Article 76(1) of the Law of the Sea Convention (defining continental shelves that extend beyond 200 nautical miles), but it appears to have been rejected as a factor relevant to maritime boundary delimitation in, for instance, the Libya/Tunisia Case,[17] the Libya/Malta Case,[18] and Gulf of Maine Case.[19] In the St. Pierre and Miquelon Case,[20] the arbitral tribunal stated that the continental shelf was generated by both Canada's and France's land territories, and thus that it was not a "natural prolongation" of one country as opposed to the other. The abandonment of the natural prolongation approach in all recent decisions has required countries to adjust their negotiation strategies in recent agreements, and may have a significant effect in Northeast Asia, because China and South Korea have both made arguments based on this theory, as is discussed below.[21] To some extent, the Principle of Non-Encroachment, discussed next, has taken the place of the natural-prolongation idea, but it leads to some different results.
** The Principle of Non-Encroachment. This principle is included explicitly in Article 7(6) of the Law of the Sea Convention, which says that no state can use a system of straight baselines "in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone." It played a significant role in the delimitation of the exclusive economic zone (EEZ) in the Jan Mayen Case, where the Court emphasized the importance of avoiding the blockage of a coastal state's entry into the sea. Even though Norway's tiny Jan Mayen island was minuscule in comparison with Denmark's Greenland, Norway was allocated a maritime zone sufficient to give it equitable access to the important capelin fishery that lies between the two land features.[22] The unusual 16-nautical-mile-wide and 200-nautical-mile-long corridor drawn in the St. Pierre and Miquelon Case[23] appears to have been based on a desire to avoid cutting off these islands' coastal fronts into the sea. But, at the same time, the arbitral tribunal accepted Canada's argument that the French islands should not be permitted to cut off the access of Canada's Newfoundland coast to the open ocean.
** The Principle of Maximum Reach. This principle first emerged in the North Sea Continental Shelf Case,[24] where Germany received a pie-shaped wedge to the equidistant point even though this wedge cut into the claimed zones of Denmark and the Netherlands. Professor Charney reported in 1994 that this approach had been followed in later cases: "No subsequent award or judgment has had the effect of fully cutting off a disputant's access to the seaward limit of any zone."[25] The decisions during the past decade have confirmed the importance of this principle. In the Gulf of Fonseca Case, the Court recognized the existence of an undivided condominium regime in order to give all parties access to the maritime zone and its resources,[26] and in the St. Pierre and Miquelon Case, France was given a narrow corridor connecting its territorial sea with the outlying high seas.[27] The geographical configuration in the Jan Mayen Case presented different issues, but even there the Court gave Norway more than it "deserved" given the small coastline and tiny size of Jan Mayen Island, apparently to enable it to have at least "limited geographical access to the middle of the disputed area,"[28] which contained a valuable fishery. Several interests are served by the Maximum Reach Principle--"status" (by recognizing that even geographically disadvantaged countries have rights to maritime resources), the right "to participate in international arrangements as an equal," navigational freedoms, and "security interests in transportation and mobility."[29]
** Each Competing Country Is Allocated Some Maritime Area. This principle is similar to the Non-Encroachment and Maximum-Reach Principles, but must be restated in this form to emphasize how the International Court of Justice has approached maritime boundary delimitations. Although the Court has attempted to articulate consistent governing principles, its approach to each dispute has, in fact, been more like the approach of an arbitrator than that of a judge. Instead of applying principles uniformly without regard to the result they produce, the Court has tried to find a solution that gives each competing country some of what it has sought, and has tried to reach a result that each country can live with.[30] In that sense, the Court has operated like a court of equity, or as a court that has been asked to give a decision ex aequo et bono.[31] Perhaps such an approach is inevitable, and even desirable, given that the goal of a maritime boundary delimitation, as stated in Articles 74 and 83 of the Law of the Sea Convention, is to reach an "equitable solution."
** Islands Have a Limited Role in Resolving Maritime Boundary Disputes. Article 121 of the Law of the Sea Convention says that all islands, except “rocks” that “cannot sustain human habitation or an economic life of their own,” generate exclusive economic zones and continental shelves, but the ICJ and arbitral tribunals have not, in fact, given islands equal ability to generate zones when they are opposite continental land areas or substantially larger islands.[32] This conclusion has been reached consistently in the North Sea Continental Shelf Case,[33] the Anglo-French Arbitration,[34] the Libya/Tunisia Case,[35] the Libya/Malta Case,[36] the Gulf of Maine 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
Baselines
The claims of coastal states to exclusive economic zones and continental shelves are measured from their baselines. The normal baseline is simply the point where the land meets the sea and it follows the contours of the actual coastline. Article 7(1) of the Law of the Sea Convention allows countries to use straight baselines if their coastline is deeply indented or if a fringe of offshore islands masks the coastline, but under Article 7(3) the straight baselines must not depart appreciably from the general direction of the coast.[49] Once straight-baselines are drawn, the waters landward of these lines are “inland waters,” which are totally controlled by the coastal country, and the next 12 nautical miles are “territorial sea,” which is sovereign territory, and through which vessels can pass only if the passage is “innocent.” For maritime boundary purposes, baselines become crucial because any median or equidistance line that might be drawn to divide overlapping maritime zones would start from the baselines.
When South Korea established straight baselines along its southern and western coasts in 1965, and in 1977 when it enacted the Territorial Sea Act of Korea, it consulted extensively with Japan. South Korea has a somewhat irregular west coast and fringing islands along some areas, so that its baseline claims along its western and southern coasts are generally thought to be consistent with the Law of the Sea Convention, with the possible exception of the 54-mile line between Hong-do and Hoeng-do in the southwest and the 60-mile line between Cholmyong and Sohuksan-do in the south.[50] China and Japan have raised some questions about whether the Korean baselines are consistent with the requirements of Articles 7 and 10 of the Law of the Sea 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 indented[57] 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]
An intriguing geographical analogy can be found in the Gulf of Finland, where the important Russian port of St. Petersburg (formerly Leningrad) sits at the eastern end, wedged in between Finland in the north and Estonia in the south.[71] Finland has claimed a 12-nautical mile territorial sea generally, but has limited its claim to three nautical miles in the Gulf of Finland to enable Russia to have a corridor for unimpeded access to the Baltic Sea.[72]
Another analogy closer to home is in the straits of Northeast Asia, where Japan – which asserts a 12-nautical-mile territorial sea in general -- claims only a three-nautical mile territorial sea in the Soya Strait, the Tsugaru Strait, the eastern and western channels of the Tsushima Strait, and the Osumi Strait.[73] In fact, both South Korea and Japan have limited their territorial-sea claims around the land areas adjacent to the Korean Strait to three nautical miles, in order to permit unimpeded passage through this area.[74] Similarly, Belize has defined its territorial sea as extending 12 nautical miles from its coast, but has limited the claim to only three nautical miles between the mouth of the Sarstoon River and Ranguana Caye in order to give Guatemala a corridor for unimpeded transit into the Caribbean Sea, pending further negotiations.[75]
These varied examples illustrate that the 12-nautical-mile territorial sea is not sacred or written on tablets. Countries have been flexible in asserting such claims in order to accommodate the interests of their neighbors – and free passage in general – through congested areas. In may be, therefore, that it would inappropriate for South Korea to insist on its right to claim 12-nautical-mile territorial seas around its five small islands off of North Korea’s coastline.
Historic Waters
China has always claimed the large Bohai Bay just below Korea as a historic bay. The distance between the headlands defining the bay is 55 nautical miles across,[76] so it fails to meet the definition of a juridical bay in Article 10(4) of the Law of the Sea Convention (which limits such bays to bodies of water with an entrance point less than 24 nautical miles across), but China argues that the small islands scattered across the mouth of the Bay strengthen its claim. These small islands could be viewed as “a fringe of islands” that mask the coast under Article 7(1) of the Law of the Sea Convention, thus justifying the drawing a straight baselines across the mouth of the Bohai. On the other hand, it could be argued that these baselines do not follow “the general direction of the coast” and thus violate Article 7(3) of the Convention. The Republic of Korea understands China’s claim, but has never acknowledged its legitimacy. Japan has raised reservations about the claim. The United States has apparently not objected to China’s historic-bay claim for Bohai Bay.[77]
Occasionally scholars speculate whether the North Korea could claim the indentations on its east coast as “historic bays,” but they do not appear to meet the criteria of a claim made over a period of time which has been enforced against and accepted by others.[78]
Exclusive Economic Zones.
North Korea was the first country in the region to declare an exclusive economic zone on June 21, 1977, apparently utilizing a median line[79] to draw the boundary between North and South Korea, and it also declared a 50-mile Military Boundary Zone effective August 1, 1977, which has a dubious status under international law.[80] That same year, Japan followed the lead of other countries, and declared an extended fishing zone around its islands, but explicitly exempted Korean and Chinese fishing vessels from the application of this new Fishing Zone.[81] Japan,[82] South Korea,[83] and China[84] declared exclusive economic zones in 1996, about the same time each country ratified the Law of the Sea Convention.
The Maritime Boundaries Between the Republic of Korea and Japan[85]
Japan and the Republic of Korea entered into two agreements in 1974 – a delimitation of part of their continental shelf boundary[86] and the creation of a joint development zone in disputed territory.[87] The agreed continental shelf boundary is based on a median line which starts at the midpoint between Korea’s Cheju Island and Japan’s Goto Retto and then heads north, moving closer to the Korean coastline because of the Japanese island of Tsushima in the Korean Strait and then veering back away from the Korean coast as it heads north. This line stops abruptly at a spot known as Point 35 because of the claims both countries have for sovereignty over Tok-Do/Takeshima and their disagreement over whether it should play a role in determining the boundary delimitation in that region.
In the second agreement, Japan and Korea established a joint development zone in a disputed area south of Cheju Island to permit each country to explore for hydrocarbons. Korea argued that Japan’s “Tori-shima group [of islands], separated by a deep trench on the seabed from the main Japanese islands, was not entitled to claim a continental shelf”[88] and thus that, using the natural-prolongation principle, Korea’s boundary should extend almost to these Japanese islands.[89] Japan disagreed, advocating use of an equidistance line. It took protracted negotiations to develop a joint development zone in the disputed area. Korea ratified the agreement right away in 1974, but Japan’s ratification did not occur until 1978.[90] That same year, Japan and Korea established an agreed framework whereby both countries agreed to engage in joint exploration of the continental shelf by 2028. This joint exploration has been underway, and in August 2002, the Korea National Oil Corporation agreed with the Japan National Oil Corporation to resume cooperation which had begun in 1986.[91]
As explained above and examined in more detail below,[92] the natural prolongation theory was prominent in 1974, but it has not been utilized by any tribunal adjudicating a maritime boundary during the past two decades.[93] It may be, therefore, that when it is time to reexamine this agreement, Korea’s negotiating position will be weakened.
Tok-Do/Takeshima
These two tiny rocky islets situated midway between the main land areas of Japan and Korea have a combined land area of 0.23 square kilometers or 58 acres.[94] They have limited water sources, and have been uninhabited historically.[95] But since 1954 about 45 South Korean marine police have been stationed there (and one family stays there in the summer) in order to support Korea’s claim to sovereignty over the islets. Once a year, “Japan sends a protest note rejecting South Korea’s claim to ownership of these features.”[96] Their location in the middle of the East Sea/Sea of Japan -- 50 miles east of Korea’s Ullung-do and 90 miles northwest of Japan’s Oki Islands -- gives them an importance and status if they were to have an effect on the delimitation of marine space. They have served as a fishing station for harvesting abalone and seaweed and hunting seals, and they are near rich fishing grounds.
Korea’s claim to sovereignty over the islets is stronger than that Japan, based on the historical evidence of the exercise of sovereignty and the principle of contiguity (because the islets are closer to Korea’s Ullong-do than to Japan’s Oki Islands), but most importantly because of Korea’s actual physical control of the islets during the past half century.[97]
It is very significant for the Republic of Korea that all judicial and arbitral decisions regarding sovereignty disputes over islands since World War II have focused on which country has exercised actual governmental control over the feature during the previous century, rather than on earlier historical records.[98] The first major decision by the International Court of Justice regarding ownership of an isolated uninhabited island feature was the decision in the Minquiers and Ecrehos Case,[99] where the Court explained that: "What is of decisive importance, in the opinion of the Court, is not indirect presumptions deduced from events in the Middle Ages, but the evidence which relates directly to the possession of the Ecrehos and Minquiers groups."[100] This view was followed in the Gulf of Fonseca Case,[101] where the court focused on evidence of actual recent occupation and acquiescence by other countries to determine title to disputed islets, and the recent decisions in the Eritrea-Yemen Arbitration,[102] where the tribunal relied explicitly on the Minquiers and Ecrehos judgment for the proposition that it is the relatively recent history of use and possession of the islets that is most instructive in determining sovereignty and that the historical-title claims offered by each side were not ultimately helpful in resolving the dispute: “The modern international law of acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis.”[103]
This very same approach was utilized by the Court in its recent decision resolving a dispute between Malaysia and Indonesia over two tiny islets – Ligitan and Sipadan.[104] The larger of the islets (Sipadan) is 0.13 square kilometers in size.[105] Neither has been inhabited historically, but both have lighthouses on them and Sipadan has recently been “developed into a tourist resort for scuba-diving.”[106] The Court first addressed arguments based on earlier treaties, maps, and succession, but found that they did not establish any clear sovereignty.[107] It then looked at the “effectivites” – or actual examples of exercises of sovereignty over the islets, and explained that it would have to look at exercises of sovereignty even if they did “not co-exist with any legal title.”[108] Indonesia claimed title based on various naval exercises in the area conducted by themselves and previously by their colonial power (the Netherlands), but Malaysia prevailed based on the governmental actions of its colonial power (the United Kingdom) exercising control over turtle egg collection and constructing lighthouses on both islets.[109]
The language and rulings provided by the Court are directly relevant to the Tok-Do/Takeshima dispute. The Court’s opinion explained that “a claim of sovereignty based on...continued display of authority...involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.”[110] In “areas in thinly populated or unsettled countries,” the Court “has been satisfied with very little,”[111] but the contrary claims of other countries will also be relevant.[112] The Court relied upon only those displays of sovereignty that occurred before “the dispute between the Parties crystallized [which was 1969 in the Ligitan/Sipadan dispute] unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them.”[113] In the course of its decision, the Court explained that actions of private parties will not be relevant “if they do not take place on the basis of official regulations or under governmental authority.”[114]
The consistent reasoning in these ICJ decisions strengthens Korea’s claim of sovereignty to Tok-Do. Korea was not in a position to exercise control during the first part of the twentieth century, because it had been annexed by Japan, but as soon as it regained its independence it asserted control over the islets, and has continued to exercise sovereignty over them since then. In July 2001, the South Korean National Maritime Police Agency announced it would commission a 5,000-ton-class vessel carrying a crew of 97 – entitled the Sambong, the name of Tok-do during the Choson Dynesty – to patrol the waters around Tok-do beginning in February 2002.[115]
As explained above,[116] Article 121(3) of the Law of the Sea Convention says that “rocks” that “cannot sustain human habitation or economic life of their own”[117] are entitled to a 12-nautical-mile territorial sea, but not an exclusive economic zone or a continental shelf. The language in Article 121(3) does not appear to support a claim of an EEZ around these disputed islets, because they have never been inhabited, and the United Kingdom has recently renounced any claim to an EEZ or continental shelf around its barren granite feature named Rockall which juts out of the ocean northwest of Scotland. But Japan nonetheless apparently takes the position that these two outcroppings are “islands” that are entitled to generate such zones, and has apparently claimed an EEZ around the islets in its 1996 declaration.[118] Other countries have been expansive in claiming extended maritime space around features that are clearly rocks, and the legitimacy of such claims remains in dispute.
The better approach, and the approach taken by the Republic of Korea is that, since these islets are archetypal examples of “rocks” under the rule laid down in Article 121(3) of the Law of the Sea Convention, they should not be entitled to generate an exclusive economic zone or a continental shelf.[119] If the maritime boundary eventually becomes the equidistance line between Korea’s Ullong-do and Japan’s Oki Gunto, as explained below, then Tok-Do would be on the Korean side and should not affect the boundary delimitation. If some other approach is used, and Tok-Do is somehow on the Japanese side of the boundary, its maritime zone should be limited to a 12-nautical-mile territorial sea enclave.
Delimiting the Maritime Boundary in the East Sea/Sea of Japan
Japan and the Republic of Korea have had difficulty delimiting their continental shelf boundaries because of their dispute over Tok-Do/Takeshima and also because they disagree on the ability of tiny islands to generate zones. Should Tok-Do be given full effect, half effect, or no effect? Korea argues that neither the tiny Japanese islet of Danjo Gunto nor Tok-Do should generate an EEZ or continental zone because they are uninhabitable rocks and thus do not qualify for such zones under Article 121(3) of the Law of the Sea Convention.
In 1998, Japan and Korea entered into a new fisheries agreement[120] designed to accommodate their continuing dispute over the area around Tok-Do, which introduced two “provisional zones” or “intermediate zones” in disputed areas, where fishing vessels from each country can operate, and also included a commitment by both countries to reduce their overall catch. One shared zone is in the Sea of Japan/East Sea near the disputed islets of Tok-Do and the other is in the East China Sea south of Cheju Island and just north of the Japan-China Provisional Measure Zone. Third countries do not have rights to fish in these shared zones. The agreement also gave each country a zone that extends 35 nautical miles from the coastlines, which is called an exclusive economic zone, allowing each country, after the first three years during which historic fishing rights are phased out, to harvest an equal amount from the other’s zone. This agreement has been seen as a “provisional agreement” as called for in Article 74(3) of the Law of the Sea Convention pending final determination of the maritime boundary.[121] The 1998 Treaty established a compromise joint-use zone around the Tok-Do/Takeshima islets, and carefully regulated how much fish of each species could be caught within the zone, and in the adjacent national-jurisdiction zones. The agreement had the effect of reducing South Korean fishing in Japanese waters, but South Korea did retain access to part of the productive Yamato Bank, where some 1,000 South Korean vessels had been catching about 25,000 metric tons of squid each year (but the Korean catch was to be gradually reduced to the same level as that of the Japanese vessels).
The Maritime Boundary Between the Republic of Korea and China
China has always argued that the “natural prolongation” approach should be used in both the Yellow Sea (West Sea) and the East China Sea, which, according to China’s theory, entitles China to ownership of the entire continental shelf off its coast to a “silt line,” “which divides the sands derived from Korea and the silty sediments that have flowed out from the Hwang Ho and Yangstze Rivers and given name to the Yellow Sea.”[122] This sedimentation apparently “is also reflected in the topography of the seabed, feature by an axial valley two-thirds across the Yellow Sea towards Korea, which divides a smooth gentle slope extending from the Chinese shore from the steep and less regular slope off the Korean coast.”[123] This “silt line” has been drawn on a published map,[124] and it would cover about half of the maritime zone the Republic of Korea would be entitled to if an equidistance line were drawn between its coast and that of China. At times, China has made an even more expansive claim, arguing that it is entitled to all the submerged land in the East China Sea to the Okinawa Trough, which is just west of Japan’s small southern islands. Under this approach, China’s continental shelf would include most, if not all, of the Japanese-Korean Joint Development Zone, which China has consistently denounced as a violation of its rights. China disputes the western boundaries of all South Korean leases in the Yellow and East China Seas and has also condemned the shared fishing zone Japan and Korea established south of Cheju Island.[125]
But China has been able to act pragmatically and has set aside its position on natural prolongation in order to enter into a sophisticated fishing agreement with the Republic of Korea. The two countries normalized their diplomatic relationship in 1992, and began discussing fishing issues in 1993. Their conflicting positions came into focus after both countries ratified the Law of the Sea Convention and proclaimed exclusive economic zones. These claims overlap, and China’s straight baseline claim, which South Korea has officially protested as incompatible with the Law of the Sea Convention, also has created difficulties[126] As explained above,[127] Korea has challenged China’s use of Dongdao (a barren islet about 70 nautical miles east of Shanghai) as a basepoint, and also challenges several other basepoints north of Shanghai.[128]
In 1997-98, the two countries finally agreed (a) to recognize coastal EEZ areas where each country can exercise exclusive sovereign rights over the resources (the width of this zone varies but averages 60 nautical miles from the coastline and provides each country with roughly equal areas);[129] (b) to establish a joint fishing area (“Provisional Regulatory Zone”) in the central area where their claimed EEZs overlap (drawn from a hypothetical median line), where they exercise equal rights and manage the species through the Korea-China Joint Fisheries Committee; and ( c) to create a transitional area (“Interim Co-management Zone”) extending 20 miles in both directions from the joint fishing area, where the resources were shared for four years, and thereafter became part of each countries coastal EEZ, under exclusive coastal state control. They established a Joint Fisheries Commission to recommend measures for conserving and managing the resources. And, very significantly, they agreed to conduct joint surveillance operations – with authorities of both countries physically present on the patrol boats – to monitor and control illegal and indiscriminate fishing activities.
This fishing agreement is a significant step forward, and it indicates that China may be willing to abandon its natural-prolongation approach, at least with regard to delimitation of the living resources. Korea’s position has always been that its boundary with China should be drawn with an equidistance line. Article 5(2) of the Korean Exclusive Economic Zone states that the equidistance line should be used if no other agreement can be reached, and MOMAF Deputy Minister Choi has expressed the view that: “Since there is no other factor to affect the principle of equity, the equidistance line seems to be the equitable standard in the EEZ delimitation between Korea and China.”[130]
The Maritime Boundaries Between South Korea and North Korea
As explained earlier,[131] the delimitation of the boundaries between South Korea and North Korea must wait until other more substantial disputes between the two Koreas are resolved, and may never be delimited if they make progress toward unification. But if they remain as separate countries and normalize their relationships, then they will have to address their maritime boundary issues.
The West Sea (Yellow Sea)
It will be challenging to reach agreement on the maritime boundary in the West Sea/Yellow Sea because of the five South Korean islands nestled close to the North Korean coast, and because of the disputed status and location of the “Northern Limit Line.”[132] South Korea controls the islands of Paengyong, Taechong, Sochong, Yongpyong, and Woo which hug the western North Korean coast, coming at the closest point to within seven nautical miles of North Korea. South Korea views the maritime boundary between the two countries as the median line between these islands and the North Korean coast, based on a line called the “Northern Limit Line” (NLL) which had been drawn by the United Nations Command a month after the Armistice Agreement of July 27, 1953, leaving very little ocean space for North Korea.[133] These five islands have a total of five square miles and were said in 1978 to be occupied by 13,000 people.[134] North Korea does not challenge South Korean sovereignty over the islands themselves, but because the islets are within 12 nautical miles of North Korea’s coast, North Korea has contended that the waters around the five islets are part of North Korea’s territorial sea.
In September 1999, North Korea unilaterally announced that it had redrawn the line so that it would extend from the land boundary perpendicular from the coastline into the Yellow Sea, and was prepared to enforce this line “by various means.”[135] The immediate cause of this dispute was apparently a concentration of crabs south of the Northern Limit Line and efforts by North Korean vessels to harvest these crustaceans.[136] Incidents are not uncommon in this area, and violent clashes occurred during the crab seasons in June 1999 and June 2002.[137]
The NLL has served a useful purpose as a line of military control and should continue in place until the two Koreas can reach agreement to end their state of war. But if the two Koreas were independent countries, the NLL would probably not stand as a legitimate maritime boundary under the “equitable principles” that have evolved from the decisions of based on Articles 74 and 83 of the Law of the Sea Convention, because it denies North Korea access to adjacent sea areas. The NLL is thus contrary to the principle of “non-encroachment”[138] because it blocks North Korean’s access to the ocean in this region. Further, according to legal precedents and international practice, islands do not have an equal capacity with land masses to create maritime zones, nor do they command equal strength with an opposing continental area or land mass.[139]
Using an analogy from the Anglo-French Arbitration,[140] a territorial sea enclave could be drawn around the five South Korean islands, but the islands themselves would be ignored in drawing the main maritime boundary. Although the territorial sea around these islands would normally be 12 nautical miles, because they are all so close to the North Korean coast, and crowded among each other, this geographical situation might be one that requires a smaller territorial sea.[141]
The East Sea
North Korea claims a trapezoidal-shaped exclusive economic zone that extends into the East Sea from the 300-mile-long straight baseline it draws to connect the northeast and southeast corners of its territory.[142] South Korean vessels do not at present challenge this claim, to avoid controversy and because the disputed area is not expected to be a resource-rich area. In February 2000, nongovernmental fisheries associations in North and South Korea negotiated an agreement that allows South Korean vessels to fish in North Korea’s EEZ in the East Sea until 2005, with profits to be shared between the two countries.[143] About 400 South Korean squid vessels are expected to take advantage of this arrangement.
The Maritime Boundary Between the Republic of Korea and Russia
Professor Prescott has observed that if Tok-Do were recognized as belonging to the Republic of Korea and were given full power to generate an exclusive economic zone and continental shelf, a maritime boundary would then have to be delimited between the Republic of Korea and Russia.[144] If, however, the Republic of Korea enters into an agreement with Japan whereby the effect of Tok-Do on the maritime boundary between the two countries is ignored, then it would be awkward for Korea to negotiate a boundary with Russia using Tok-Do as its basepoint. Ullung-Do is less than 400 nautical miles from Russia, but because North Korea’s zone is between Ullung-Do and Russia, it does not appear that a maritime zone generated from Ullung-Do would overlap with that of Russia.
Future Decisions and Negotiating Strategies
MOMAF Deputy Minister Lark-Jung Choi has stated that “the early delimitation of the EEZ between Korea-Japan and Korea-China is essential,” because the provisional measures “are not perfect nor final” and are “likely to cause frequent disputes and the destruction of the marine ecosystem.”[145] The Republic of Korea must make some difficult decisions to position itself properly and logically for the next round of maritime boundary negotiations with its neighbors.
Baselines.
MOMAF Deputy Minister Lark-Jung Choi has that “Korea must make it clear during the EEZ delimitation negotiations that [Japan’s] unlawful baselines cannot be accepted as the proper basis of establishing maritime delimitation.”[146] Similarly, “Korea must make it clear that [at least three of China’s basepoints] are not an acceptable basis for drawing the straight baseline during the talks for the delimitation of the EEZ between Korea and China.”[147] The Republic of Korea is certainly correct that the baselines claimed by Japan and China (and North Korea) are inconsistent with Articles 7 and 10 of the Law of the Sea Convention in significant ways.[148] Korea may also want to protest more formally China’s claim that Bohai Bay qualifies as a historic bay.[149] In order to strengthen its ability to denounce these claims, Korea may want to review its own baseline claims, and ask independent scholars to examine them, to make sure that they cannot be challenged by their neighbors for being inconsistent with Article 7.
Natural Prolongation.
Korea took advantage of the natural prolongation theory which emerged from the North Sea Continental Shelf Case[150] to claim a substantial area in the East China Sea extending to the Okinawa Trough near Japan’s southern islands. Japan contested this claim but in 1974 accepted the establishment of a Joint Development Zone in the disputed area to allow the two countries to explore for hydrocarbons in the disputed area. This agreement is designed to last at least until 2028, and after that either country can terminate it with three years’ notice.[151]
China also has relied upon the natural prolongation theory, and utilizes it to claim the continental shelf across the East China Sea to its “silt line” or beyond to the Okinawa Trough, and challenges the Joint Development Agreement and the fishing agreement covering the area south of Cheju Island between Korea and Japan as infringing upon its sovereign resources.[152] In its dealings with China, Korea objects to the natural prolongation theory and argues for use of an equidistance line to mark the boundary between the two countries.[153]
Korea’s position in relation to China is inconsistent with its position in relation to Japan, and it is probably untenable in the long run to maintain these two inconsistent positions. An analogy can be found in the boundary negotiations between Indonesia and Australia which produced a continental shelf boundary in 1972 based on the North Sea Continental Shelf Case’s reliance on the natural prolongation approach. Because subsequent decisions “all sought to distinguish and limit the paramount principle of the North Sea Continental Shelf Cases,” Indonesia expressed the view that it had been “taken to the cleaners” in the 1972 negotiations and it insisted vigorously that subsequent negotiations on related unresolved issues disavow any reliance on the natural prolongation approach.[154]
The demise of the natural prolongation theory has been explained to be a product of the recognition in the Law of the Sea Convention that coastal states are entitled to 200-nautical-mile continental shelves even if the sea floor around them does not conform to a geographic definition of a continental shelf. The ICJ explained in the Libya/Malta Case that “since the development of the law enables a State to claim that the continental shelf appertaining to it extends up to as far as 200 miles from its coast, whatever the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims.”[155] Prescott explained after the Libya/Malta Case that “the court seemed to decide that natural prolongation was not a matter to be considered when the waters between the states were less than 400 nm wide. It is almost as though countries sharing seas less than 400 nm wide would be drawing EEZ boundaries rather than continental shelf boundaries.”[156] Douglas M. Johnston and Mark J. Valencia have reported that the natural prolongation doctrine “is now somewhat discredited as a basis for continental shelf delimitation.”[157]
Because the natural-prolongation approach has been widely rejected, it will be hard for Korea to maintain its position in relation to Japan that it is entitled to the area now covered by the Joint Development Zone, and it may want to reassess this position, which will then allow it to strengthen its position in opposition to China’s claim for the entire continental shelf under the East China Sea. MOMAF Deputy Minister Choi has correctly observed that the Korea-Japan Joint Development zone should be viewed as a “special circumstance” related to EEZ delimitation, because it “is valid through 2028 and it should be respected.”[158] The agreement has served as a useful confidence-building measure to promote trust between the two neighbors, but it may be unrealistic to view it as a permanent arrangement.
Abandoning the natural-prolongation argument would not mean, however, that Korea must give Japan the entire area now covered by the Joint Development Zone, because “[t]he northwest side of the zone...corresponds almost exactly to the line of equidistance between Japan and South Korea if the Danjo Gunto are given full effect.”[159] Korea need not allow the tiny and isolated Danjo Gunto islets to have full effect or even any effect in drawing the equidistance line, and the other small southern Japanese islands can also be discounted because their coastlines are limited in relationship to that of the opposite Korean coast. Korea should be entitled, therefore, to a portion – probably between one-fourth and one-third – of the area now covered by the Joint Development Zone.
The Boundary with Japan in the East Sea.
The Republic of Korea does not have much of an incentive to negotiate a complete exclusive-economic-zone/continental-shelf boundary with Japan until the Joint Development Agreement in the area south of Cheju comes to an end sometime after 2028, because this agreement is favorable to Korea and Korea may have to reduce its claim in light of the evolving principles of international law, which – as explained in the preceding section – now give the principle of natural prolongation less significance in congested disputed areas.[160]
Korea will never abandon its claim to Tok-Do, but it has historically taken the position that Tok-Do should not be considered in drawing the maritime boundary with Japan and should have only a territorial-sea enclave drawn around it. The boundary would then be drawn based on an equidistance line between Korea’s Ullung-Do and Japan’s Oki Gunto. Under this approach, because Ullung-Do is 47 nautical miles from Tok-Do and Oki Gunto is 86 nautical miles from it, Korea would gain about two-thirds of the disputed zone surrounding Tok-Do.[161] This approach is fully justified under principles of international law and analogies from other regions. In the meantime, the fisheries arrangements between Korea and Japan appear to be working smoothly; even after a formal EEZ boundary is drawn between them, the two countries may wish to continue utilizing a joint fisheries zone.
The Maritime Boundary Between the Republic of Korea and China.
If hydrocarbons are found in the disputed areas between Korea and China, then it would become important to resolve the maritime boundary between the two countries. China has been unrelenting in insisting on a natural prolongation approach, but this argument does not have support in the decisions of international tribunals issued during the past two decades. Korea is thus fully justified in insisting upon a maritime boundary based on the drawing of an equidistance line.
The Maritime Boundaries Between South and North Korea.
It is unlikely that the maritime boundaries between South and North Korea will be examined seriously by the two countries in the near future. Some commentators suggest that reunification of the two countries is more likely than the negotiation of a maritime boundary, and reunification also seems to most observers to be a long way off in the future. But some common ground has been found by the two countries in recent months, so it may be that some provisional understandings can be reached to avoid future tensions. The two countries have agreed to establish a joint commission, which has met once. Navigational disputes have been resolved, whereby North Korean vessels are permitted to exercise innocent passage through the Cheju Strait and through the territorial sea of South Korea, and both sides have free access to designated ports. South Korea has suggested a common fishing area for crabs in the West Sea during the crabbing season.
North Korea’s claimed maritime zones in the East Sea cannot be justified under the Law of the Sea Convention or any other principles of customary international law. It is true that North Korea is somewhat geographically disadvantaged, having a concave coastline and having two neighbors (Russia and South Korea) that wrap around it. North Korea is entitled to maritime zones that allow it to project into the sea, but the principles of maritime delimitation are not designed to restructure the realities created by physical geography. The delimitation line between North and South Korea should thus be the equidistance line, which would go north of the line now claimed by North Korea and would give South Korea more maritime space.[162]
In the West Sea, South Korea should be prepared to give some maritime area to North Korea, because the Northern Limit Line cannot be justified as a legitimate maritime boundary. Maps have been prepared showing a hypothetical median line which would give North Korea a “finger” through these islands.[163] Another approach would be to draw small territorial sea enclaves around South Korea’s five small islets and otherwise delimit the boundary without regard to their existence. The territorial-sea enclaves should be less than12 nautical miles, because of the crowded configuration in that area. These five islets are within 12 nautical miles of North Korea, so some careful negotiation will inevitably be necessary to address and resolve this dispute.
Shared Zones.
China, Japan, and the Republic of Korea have created innovative shared zones that reflect their historical uses of the crowded seas between them. It is logical to continue these arrangements for fishing and hydrocarbon developments even if these countries are able to reach agreement on maritime delimitation of their exclusive economic zones. As MOMAF Deputy Minister Choi has explained, “it is essential to establish a Trilateral Co-management Scheme among Korea, China and Japan. The area concerned is a semi-closed sea and most of the fish species are transboundary stocks. The management effort will become effective only when all the countries concerned participate in the practical management of the fish stocks.”[164]
Third-Party Adjudication.
The tradition and practice in Northeast Asia has been to resolve disputes through direct face-to-face negotiations rather than through third-party dispute-settlement mechanisms using judicial or arbitral tribunals.[165] But sometimes it is politically impossible for any of the countries’ political leaders to agree to give up sovereignty claims over any territory, and, therefore, a decision by an international or regional tribunal may be the only way to resolve a dispute.
An analogy can be found in the Gulf of Maine maritime boundary dispute between the United States and Canada in the 1970s and 1980s. The treaty negotiated by the countries’ diplomats was roundly denounced by fishing interests on both sides, and neither legislature would ratify it. The diplomats decided that further negotiation would be fruitless and that the matter could be resolved only by an outside body immune from the political process. So they submitted the dispute to a chamber of the International Court of Justice.[166] Although the Court’s judgment was unpopular in both countries (because it was basically a compromise between the positions of the two sides), both sides accepted the judgment as final. The problem was thus resolved, and the two countries could proceed to work together amicably on other issues of mutual interest. An unsatisfactory resolution of a dispute may be better than no resolution, because it removes a festering sore and allows the neighbors to move from confrontation to cooperation.
It has been rare for the countries of East Asia to submit sovereignty disputes to tribunals, but it may be becoming more common. For a long time, the 1962 Temple of Preah Vihear Case (Cambodia v. Thailand)[167] stood alone as the only Asian boundary dispute submitted to the ICJ. But 40 years later, in December 2002, the ICJ issued its opinion in Sovereignty Over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia).[168] And then, on February 6, 2003, Singapore’s Foreign Minister, Prof. S. Jayakumar, and his Malaysian counterpart, Mr. Syed Hamid Albar, signed the Special Agreement for Submission to the International Court of Justice of the Dispute Between Malaysia and Singapore Concerning Sovereignty over Pedra Branca, Middle Rocks and South Ledge.[169] This agreement asks the ICJ to resolve the competing claims of the two countries over a football-field-sized island off of Johor, which has been possessed by Singapore for the past 150 years. At the press conference announcing the signing, Professor Jayakumar explained that the signing “signifies that Malaysia and Singapore have agreed to resolve such a dispute through amicable, peaceful method of third party adjudication,” and that
we are signalling to our people and to the world that Malaysia and Singapore could take this kind of approach...when we have such disputes.... The areas of common interests far outweigh the areas of disagreements and when we have issues of disagreement, we should not allow them to mar the overall relationship. The overall relations should not be held hostage to a single issue.[170]
A somewhat related case was filed by Malaysia against Singapore in the International Tribunal for the Law of the Sea in September 2003 alleging that Singapore’s land reclamation activities around the islets of Pulau Tekong and Tuas in and near the Straits of Johor are causing serious and irreversible damage to the marine environment, in violation of the precautionary principle, and serious prejudice to the rights of Malaysia.[171]
Korea should have confidence that its claim to sovereignty over Tok-Do would be upheld by an international tribunal because the historical evidence and most importantly the recent evidence of exercising sovereign control over the islets favor Korea’s position. If the sovereignty over Tok-Do were submitted to a tribunal for decision, the terms of reference of the submission would become important. It would be desirable for Japan and Korea to agree as part of the submission that the islets would not affect the delimitation of their exclusive economic zone and continental shelf maritime boundaries.
Conclusions and Recommendations.
1. Most recent boundary delimitations have involved the drawing of a single line that divides both the exclusive economic zones and the continental shelves of the opposite or adjacent countries. Such unified lines provide the simplest solutions to maritime boundaries. But because of the complexities involving resources around the Korean peninsula, it may be appropriate to negotiate the two boundaries separately, so that, for instance, a continental shelf line could be drawn to divide the hydrocarbons, but the living resources in the seas above could be shared through a joint-use zone.
2. The Republic of Korea should reaffirm its position that very small islets should have little or no effect on maritime boundary delimitations. This position will allow the boundary with Japan in the East Sea to be resolved without having to address sovereignty over Tok-Do[172] (which can be given a 12-nautical-mile territorial sea enclave). It will also strengthen Korea’s position with regard to Japan in the disputed area south of Cheju Island now governed by the Joint Development Zone (because Japan’s islands to the east of this zone are small). It will also have the effect of recognizing that North Korea should be entitled to some larger maritime area in the West Sea and that South Korea’s five tiny islets along the North Korean coast should not have the permanent effect of limiting North Korea’s access to the sea in that area.
3. The Republic of Korea will have to address the fact that the principle of natural prolongation has had limited importance in most maritime delimitations during the past two decades, and that most boundaries have been drawn using the equidistance/median line adjusted in light of differences in coastline lengths and other relevant special circumstances. The equidistance/median line approach is advantageous for Korea with regard to its boundary with China in the West Sea/Yellow Sea and with North Korea in the East Sea, and it will provide a good result in the East Sea/Sea of Japan boundary with Japan if Korea’s Ullong-do and Japan’s Oki Gunto are used as the basepoints from which the equidistance/median line is drawn. This recognition will, however, weaken Korea’s position somewhat against Japan with regard to the Joint Development Zone area, as explained above.[173]
4. The Republic of Korea should continue to register protests against the baselines utilized by Japan, China, and North Korea, many of which are totally inconsistent with the principles laid down in Articles 7 and 10 of the Law of the Sea Convention, and it should consider registering a formal protest against China’s claim that Bohai Bay is a historic bay.[174] It should also review its own baseline claims to make sure they meet the standards set by Article 7. 5. Although it is preferable to delimit as many festering maritime boundaries as possible, it may be appropriate to resolve some of them with shared or joint-use zones of some sort. Because the countries of Northeast Asia have been sharing the resources of these waters historically, it may be logical to continue the joint utilization. In any event, because many species straddle maritime zones, it will be crucial to work together with the other fishing nations of the region to manage these stocks in a sustainable fashion and to protect the marine environment from pollution.
6. Consideration should be given to submitting the sovereignty dispute over Tok-do to the International Court of Justice or some other appropriate tribunal, such as the International Tribunal for the Law of the Sea, just as the island disputes between Malaysia and Indonesia and between Malaysia and Singapore have recently been submitted to the ICJ. The Republic of Korea’s claim to sovereignty over Tok-Do is strong, and a resolution of this matter would allow other issues to be addressed and resolved in an orderly fashion.
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[1] This research was undertaken with assistance and support of the Korea-America Joint Marine Policy Research Center, the Korean Maritime Institute, and the University of Rhode Island Department of Environmental & Natural Resource Economics.
[2] United Nations Convention on the Law of the Sea, Dec. 10, 1982, U.N. Doc. A/CONF.62/122, reprinted in 21 I.L.M. 1261 (1982) and The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983). All the countries of Northeast Asia, with the exception of North Korea, have ratified this Convention. North Korea may be reluctant to accede to the Convention because its straight-baseline and military zone claims in the East Sea are inconsistent with the principles articulated in the Convention and because it does not want South Korea’s five islets in the West Sea to be given full capacity to generate maritime zones in relationship to North Korea’s coast. See infra text accompanying notes 55-59, 79-80, 132-41.
[3] Proclamation No. 2667 (usually referred to as the Truman Proclamation), Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 10 Fed. Reg. 12,303 (1945).
[4] The material that follows is adapted and updated from Jon M. Van Dyke, The Aegean Sea Dispute: Options and Avenues, 20 Marine Policy 397, 398-401 (1996), and from Jon M. Van Dyke, Mark J. Valencia, and Jenny Miller Garmendia, The North/South Korea Boundary Dispute in the Yellow (West) Sea, 27 Marine Policy 143, 150-53 (2003).
[5] Continental Shelf (Libya v. Malta), 1985 I.C.J. 13.
[6] Case Concerning Delimitation of the Maritime Boundary in Gulf of Maine Area (US v. Canada), 1984 I.C.J. 246.
[7] Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v. Norway), 1993 I.C.J. 38.
[8] In the context of maritime delimitation, the terms “equidistance line” and “median line” seem to be used interchangeably.
[9] Jonathan I. Charney, Progress in International Maritime Boundary Delimitation Law, 88 Am. J. Int’l L. 230, 244-45 (1994).
[10] This approach has been used in the Gulf of Maine Case, supra note 6, the Libya/Malta Case, supra note 5, the Jan Mayen Case, supra note 7, and the Delimitation of the Maritime Areas Between Canada and France (St. Pierre and Miquelon), 31 I.L.M. 1149 (1992) [hereafter cited as the St. Pierre and Miquelon Case]. See generally Charney, supra note 9, at 241-43.
[11] Libya/Malta Case, supra note 5 1985 I.C.J. at 49 para. 66.
[12] Id. at 53 para. 74.
[13] Id. para. 75. In the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau, 25 I.L.M. 252 (1986), the arbitral tribunal also evaluated the "proportionality" of the coasts to determine whether an "equitable solution" had been achieved by the boundary line chosen. Id. para. 120.
[14] See also the Eritrea-Yemen Arbitration, (1998-99), where the tribunal relied upon the test of “a reasonable degree of proportionality” to determine the equitableness the boundary line; the tribunal was satisfied that this test was met, in light of the Eritrea-Yemen coastal length ratio (measured in terms of their general direction) of 1:1.31 and the ratio of their water areas of 1:1.09. 1999 Award, paras. 20, 39-43, 117, and 165-68.
[15] See Charney, supra note 9, at 236 (discussing the Libya/Malta and the St. Pierre and Miquelon Cases, supra notes 5 and 10).
[16] North Sea Continental Shelf Case (Fed. Rep. of Germany v. Denmark; F.R.G. v. Netherlands), 1969 I.C.J. 3.
[17] Continental Shelf (Tunisia v. Libya), 1982 I.C.J. 18.
[18] Libya/Malta Case, supra note 5.
[19] Gulf of Maine Case, supra note 6.
[20] St Pierre and Miquelon Case, supra note 10.
[21] See infra text accompanying notes 122-30, 150-59.
[22] 1993 I.C.J. 38, 69 para. 70, 79-81 para. 92.
[23] St. Pierre and Miquelon Case, supra note 10.
[24] North Sea Continental Shelf Case, supra note 16, 1969 I.C.J. at 45 para. 81.
[25] Charney, supra note 9, at 247.
[26] Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening), 1992 I.C.J. 351, 606-09 paras. 415-20 [hereafter cited as Gulf of Fonseca Case].
[27] St. Pierre and Miquelon Case, supra note 10, 31 I.L.M. at 1169-71, paras. 66-74.
[28] Charney, supra note 9, at 248.
[29] Id. at 249.
[30] This point was developed in more detail in Mark B. Feldman, International Maritime Boundary Delimitation: Law and Practice From the Gulf of Maine to the Aegean Sea, in Aegean Issues – Legal and Political Matrix 1 (Seyfi Tashan ed., Foreign Policy Institute, Ankara, Turkey, 1995). Feldman observed that tribunals adjudicating international maritime boundary cases "never award[] a party the whole of its claim. The result is always a compromise of one form or other." Id. at 2.
[31] Normally the Court will issue a decision ex aequo et bono only "if the parties agree thereto....." I.C.J. Statute, art. 38 (2).
[32] See generally Jon M. Van Dyke, The Role of Islands in Delimiting Maritime Zones: The Case of the Aegean Sea, in The Aegean Sea: Problems and Prospects 263 (Foreign Policy Institute (Ankara) ed. 1989); also published in Ocean Yearbook 8 at 44, 54-64 (Elisabeth Mann Borgese, Norton Ginsburg, and Joseph R. Morgan eds. 1990), and in 61 Trasporti (Trieste, Italy) 17 (1993)(discussing the Case Concerning the Delimitation of the Continental Shelf Between the United Kingdom of Great Britain and Northern Ireland and the French Republic, 18 United Nations Reports of International Arbitral Awards (RIAA) 74 (1977), reprinted in 18 I.L.M. 397 (1979)[hereafter cited as Anglo-French Arbitration]; Libya/Tunisia Case, supra note 17; Gulf of Maine Case, supra note 6; and Libya/Malta Case, supra note 5).
[33] North Sea Continental Shelf Case, supra note 16, at para. 101(d) ("the presence of islets, rocks, and minor coastal projections, the disproportionality distorting effects of which can be eliminated by other means" should be ignored in continental shelf delimitations).
[34]Anglo-French Arbitration, supra, note 32. The arbitral tribunal did not allow the Channel Islands, which were on the “wrong side” of the median line drawn between the French mainland and England, to affect the delimitation at all (giving them only 12-nautical-mile territorial sea enclaves), and gave only “half effect” to Britain’s Scilly Isles, located off the British Coast near Land’s End.
[35] Libya/Tunisia Case, supra note 17, para. 129. The Court gave only half-effect to Tunisia’s Kerkennah Islands, even though the main island is 180 square kilometers and then had a population of 15,000, and it completely disregarded the island of Jerba, an inhabited island of considerable size, in assessing the general direction of the coastline. Id. paras. 120 and 79.
[36] Libya/Malta Case, supra note 5, at 48 para. 64. The Court ruled that equitable principles required that the uninhabited tiny island of Filfla (belonging to Malta, five kilometers south of the main island) should not be considered at all in delimiting the boundary between the two countries. Even more significantly, the Court refused to give full effect to Malta’s main island, which is the size of Washington, D.C., and contains hundreds of thousands of individuals, and adjusted the median line northward because of the longer length of the Libyan coast and its resulting greater power to generate a maritime zone.
[37] Gulf of Maine Case, supra note 6, at para. 222. The Chamber gave half effect to Seal and Mud Islands. Seal Island is 2½ miles long and is inhabited year round.
[38] In the Guinea/Guinea-Bissau Case, supra note 13, the arbitral tribunal gave no role to Guinea's small islet of Alcatraz in affecting the maritime boundary.
[39] In the Jan Mayen Case, supra note 7, the Court allowed the barren island of Jan Mayen to generate a zone, but did not give it a full zone because of its small size in comparison to the opposite land mass -- Greenland.
[40] In the St. Pierre and Miquelon Case, supra note 10, the tribunal gave the small French islands only an enclave and a corridor to the high seas because of their limited size in comparison to Newfoundland.
[41] Eritrea-Yemen arbitration, supra note 14, 1999 Award, paras.147-48. The tribunal also gave the Yemenese islands in the Zuqar-Hanish group less power to affect the placement of the delimitation line than they would have had if they had been continental landmasses. These islets, located near the middle of the Bab el Mandeb Strait at the entrance to the Red Sea, were given territorial seas, but the median line that would otherwise be drawn between the continental territory of the two countries was adjusted only slightly to give Yemen the full territorial sea around these islets. The tribunal did not, therefore, view these islets as constituting a separate and distinct area of land from which a median or equidistant line should be measured, illustrating once again that small islands do not have the same power to generate maritime zones as do continental land masses. Id. paras. 160-61.
[42] Qatar-Bahrain Maritime Delimitation and Territorial Questions, Decision of March 13, 2001, , paras. 219 (citing North Sea Continental Shelf, supra note 16, para. 57, and Libya/Malta, supra note 5, para. 64, for the proposition that “the Court has sometimes been led to eliminate the disproportionate effect of small islands”). The Court reached this conclusion even though it asserted, in paragraph 185, that Article 121(2) of the Law of the Sea Convention, supra note 2, “reflects customary international law” and that “islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory.”
[43] Id. paras. 245-48.
[44] Id. para. 245.
[45] Id. para. 247 (quoting from the Anglo-French Arbitration, supra note 32, at para. 244).
[46] Jan Mayen Case, supra note 7, at para. 81.
[47] See Charney, supra note 9, at 230 and 235 (discussing Gulf of Fonseca Case, supra note 26, 1992 I.C.J. at 606-09 paras. 415-20).
[48] See generally The South China Sea: Hydrocarbon Potential and Possibilities of Joint Development (Mark Valencia ed. 1981); Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea 183-87 (1997).
[49] See generally J. Peter A. Bernhardt, Straightjacketing Straight Baselines, in International Navigation: Rocks and Shoals Ahead? 85-99 (Jon M. Van Dyke, Lewis Alexander, and Joseph R. Morgan eds. 1988).
[50] Observations made by Lewis M. Alexander in International Navigation, id., at 189
[51] See Gab-Yong, Jeong, Legal Issues of Delimitation of Maritime Boundaries 3 (Korean Maritime Institute, Feb. 17, 2003).
[52] For a map showing the effect of the Dongdao basepoint, see Choon-ho Park, Prospects for Maritime Policy Coordination in the Asia-Pacific: Agenda for Peace of the Oceans, in Marine Policy, Maritime Security and Ocean Diplomacy in the Asia-Pacific 27 (Dalchoong Kim, Choon-ho Park, Seo-Hang Lee, and Jin-Hyun Paik, eds., Yonsei University Institute of East and West Studies, Seoul, 1995).
[53] See, e.g., U.S. State Dept. Bureau of Oceans and International Environmental and Scientific Affairs, Straight Baseline Claim (Limits in the Sea No. 117, 1996), at 3 (“Much of China’s coastline does not meet either of the two LOS Convention geographic conditions required for applying straight baselines,” i.e., a deeply indented coastline or a fringe of islands along the coast).
[54] See Gab-Yong, Jeong, supra note 51, at 4-9.
[55] See Jin-Hyun Paik, Some Legal Issues Relating to Maritime Jurisdictions of North Korea, in The International Implications of Extended Maritime Jurisdiction in the Pacific 94, 94-95 (John P. Craven, Jan Schneider, and Carol Stimson eds., Law of the Sea Institute, Honolulu, 1989)(citing references to two Soviet sources republished in U.S. Navy Dept., Manual of International Maritime Law 386-87 (1968), and G.S. Gorshkov, International Legal Regime of the Pacific Ocean, 7 Morskoy Sbornik 97 (1970)); J.R.V. Prescott, Maritime Jurisdiction in East Asian Seas 21 (Occasional Papers of the East-West Center Environment and Policy Institute, Honolulu, Hawaii, Paper No. 4, 1987).
[56] Statement by Morris Sinor, CINCPAC Fleet Judge Advocate, in International Navigation, supra note 49, at 337; see generally Paik, supra note 55, at 94-96.
[57] Paik describes the east coast of North Korea as “simple and monotonous with few offshore islands.” Paik, supra note 55, at 100. Prescott calls the broad bay Tongjoson Man a “slight curvature.” Prescott, supra note 55, at 18.
[58] See, e.g., id. Prescott explains that: “Straight baselines would only be appropriate on the east coast [of North Korea] if they enclosed historic bays.” Id. at 19. See also infra text accompanying notes 76-77.
[59] Paik, supra note 55, at 101.
[60] Lark-Jung Choi, Lessons from Korea’s Bilateral Fisheries Agreements with Japan and China (Republic of Korea Ministry of Maritime Affairs and Fisheries, Jan. 2002)
[61] See Gab-Yong, Jeong, supra note 51, at 4. Prescott has observed that “Japan closes bays that have mouths less than 24 nm wide without any apparent reference to the semi-circle test contained in the 1958 and 1982 Conventions on the Law of the Sea.” Prescott, supra note 55, at 24.
[62] Choi, supra note 60, at 5.
[63] Id.
[64] Tsuneo Akaha, Japan-South Korea Fishery Agreement: Pursuing Pragmatic Interests Without Compromising Sovereignty, in Harry N. Scheiber (ed.), Law of the Sea: The Common Heritage and Emerging Challenges 249, 253-54 (The Hague, Martinus Nijhoff, 2000).
[65] Id., at 255 (citing Asahi Shimbun, June 25, 1998 at 25 (Nagasaki District Court decision of June 24, 1998), and Sept. 12, 1998, at 22 (Matsue Branch of the Hiroshima Superior Court decision of Sept. 11, 1998)); Hee Kwon Park, Japan v. Kim Sun-Ki, 92 Am. J. Int’l L. 301 (1998).
[66] Greece claimed six nautical miles in Law No. 230 of Sept. 17, 1936, Official Gazette (Greece), vol. A. No. 450/1936. Turkey extended its Aegean territorial sea to six nautical miles in 1964. Statement of Ambassador Namik Yolga, at the Aegean Issues Conference, Istanbul, Jan. 20, 1995. Greece has stated periodically that it may extend its territorial sea to 12 nautical miles, and said, for instance, in Article 2 of Greek Law 2321/1995, which ratified the Law of the Sea Convention that “Greece has the inalienable right, in application of Article 3 of the Convention which is being ratified, to extend at any time the breadth of its territorial sea up to a distance of 12 nautical miles.” Turkey has regularly responded to such statements that such an extension would be a casus belli because it would convert most of the Aegean into Greek territorial waters and restrict freedom of movement of the ships and planes of Turkey and other nations.
[67] Hiran W. Jayewardene, The Regime of Islands in International Law 425 (1990).
[68] Id. at 437.
[69] Id. at 441, 455, and 485.
[70] Treaty of Peace and Friendship Between Argentina and Chile, Nov. 29, 1984, reprinted in 1 Jonathan Charney and Lewis Alexander, International Maritime Boundaries 719 (1993); see also Papal Proposal in the Beagle Channel Dispute Proposal of the Mediator (Dec. 12, 1980), art. 9, 24 I.L.M. 1, 13 (1985).
[71] This example and most of those that follow were provided by J. Ashley Roach, of the Office of the Legal Adviser, U.S. Department of State, April 7, 2000.
[72] For the Finnish legislation, see 29 United Nations Law of the Sea Bulletin 56.
[73] Japanese Law on the Territorial Sea No. 30 of May 2, 1977, listed in National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone 177-82 (U.N. Sales No. E.95.V.7, 1995); see also U.S. Dept. of State, Limits in the Sea No. 120, Straight Baseline and Territorial Sea Claims: Japan (1998).
[74] See, e.g., Choon-Ho Park, The Korea Strait, in International Navigation, supra note 49, at 173; Prescott, supra note 55, at 23-24. One informed commentator has written that the same approach of claiming limited three-nautical-mile territorial seas utilized by Japan and Korea to allow navigational freedom has also been used by “Germany and Denmark, and by Denmark, Sweden and Finland.” Bernard H. Oxman, Applying the Law of the Sea in the Aegean Sea, in Problems of Regional Seas 2001 at 266, 279 (Bayram Ozturk ed. 2001).
[75] The Belize legislation is at 21 U.N. Law of the Sea Bulletin 3.
[76] Prescott, supra note 55, at 16.
[77] See J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims 33-34 (2d ed. 1996)(omitting any reference to China’s Bohai Bay when they list the U.S. protests to historic waters claims).
[78] See UN Secretariat, Juridical Regime of Historic Waters, Including Historic Bays, 2 Yearbook of the International Law Commission 1-26 (1962). See also supra text accompanying notes 58-59.
[79] The North Korean decree says that the claim “is up to the half-line of the sea in those waters where the 200-mile economic sea zone cannot be established.” See Paik, supra note 55, at 103 (quoting from The Pyongyang Times, July 9, 1977, and the Foreign Broadcast Information Service, Vol. IV, July 1, 1977).
[80] See, e.g., Choon-ho Park, The 50-Mile Military Boundary Zone of North Korea, 72 Am. J. Int’l L. 866 (1978); Bruce D. Larkin, East Asian Security Zones, 2 Ocean Yearbook 282, 290 (1980)(reporting the U.S. protest regarding this zone and comparing it to other security claims); Louis B. Sohn, International Navigation: Interests Related to National Security, in International Navigation, supra note 49, at 307, 313; Jin-Hyun Paik, supra note 55, at 107-13.
[81] Law on the Provisional Measures Relating to the Fishing Zone (Law No.31), May 2,1977. Japan provided this exemption because “Japanese fishing in [the coastal waters of its neighbors] was much more extensive than South Korean or Chinese fishing in Japanese coastal waters,” and hence Japan feared “South Korea and China would likely retaliate by extending their jurisdiction to the same distance from their coasts.” Akaha, supra note 64, at 130-49.
[82] Japan ratified the Law of the Sea Convention on June 7, 1996 and promulgated its Law on the Exclusive Economic Zone and the Continental Shelf on July 20, 1996. The exact extent of the Japanese EEZ remains unclear. A Japanese foundation has published a map that draws 200-nautical-mile zones around every Japanese islet, no matter how small and uninhabitable, but the Japanese government has never produced a map showing the full extent of its claim. For an example of what Japan’s EEZ would look like if it were claimed around every Japanese islet, see Mark J. Valencia, Domestic Politics Fuels Northeast Asian Maritime Disputes 2 (AsiaPacific Issues No. 43, East-West Center, April 2000). A claim of an EEZ around every islet would appear to be contrary to Article 121(3) of the 1982 Law of the Sea Convention, supra note 3; see generally Jon M. Van Dyke, Joseph R. Morgan, and Jonathan Gurish, The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ? 25 San Diego L. Rev. 425 (1988).
[83] The Republic of Korea ratified the Law of the Sea Convention on January 29, 1996 and promulgated its Exclusive Economic Zone Act on September 10, 1996.
[84] China ratified the Law of the Sea Convention on June 20, 1996 and promulgated its Law on the Exclusive Economic Zone and the Continental Shelf on May 15, 1996.
[85] For discussion of these boundary disputes, see generally Young-Koo Kim, Northeast Asian Maritime Boundaries and Islands Disputes, in Maritime Boundary Issues and Islands Disputes in East Asian Region (1997), and Prescott, supra note 55.
[86] Agreement Concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries of 30 January 1974, in The Law of the Sea; Maritime Boundary Agreements (1970-1984) 283 (U.N. Office for Ocean Affairs and the Law of the Sea, 1987); Limits in the Sea No. 75 (U.S. State Dept. 1979); Charney and Alexander, supra note 70, at 1057.
[87] Agreement Between Japan and the Republic of Korea Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, Jan. 30, 1974, in Jonathan I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries 1073 (1993).
[88] Douglas M. Johnston and Mark J. Valencia, Pacific Ocean Boundary Problems – Status and Solutions 65-66 (1991).
[89] The small Japanese islets called Danjo Gunto, located on the 32nd parallel just east of 128 degrees latitude, are awkwardly located from Korea’s perspective. “South Korea does not dispute Japan’s ownership of Danjo Gunto, but takes the view that these are Japanese islands standing on South Korea’s continental shelf.” Prescott, supra note 55, at 37.
[90] Id. at 66.
[91] Yonhap News Agency, South Korea, Japan to Resume Joint Exploration for Oil, Gas Reserves, BBC Monitoring Asia Pacific - Political, Aug. 1, 2002.
[92] See supra and infra text accompanying notes 16-21, 122-30, 150-59.
[93] See supra text accompanying notes 17-20.
[94] The rugged beauty of these rocky islets and its surrounding flora and fauna are brought to life in Ministry of Maritime Affairs and Fisheries (Republic of Korea), Beautiful Island, Dokdo (2000).
[95] In a 1966 publication, the Tok-Do features were described as follows:
Both islets are barren and rocky, with the exception of some grass on the eastern islet, and their coasts consist of precipitous rocky cliffs. There are numerous caves where sea-lions resort. These islets are temporarily inhabited during the summer by fishermen.
Hydrographer of the Navy, 1 Japan Pilot 200 (HMSO, London, 1966). See also Johnston and Valencia, supra note 88, at 113 (“These islets are uninhabitable, and under Article 121 of the 1982 U.N. Convention on the Law of the Sea should not have an EEZ or continental shelf.”).
[96] Prescott, supra note 55, at 48.
[97] See, e.g., Johnston and Valencia, supra note 88, at 113-15 (1991); Benjamin K. Sibbett, Tokdo or Takeshima? The Territorial Dispute Between Japan and the Republic of Korea, 21 Fordham Int’l L.J. 1606 (1998); articles in Korea Observer, Vol. 28, No. 3 (Autumn 1997), and Vol. 29, No. 1 (Spring 1998); Mark J. Valencia, Calming the Tok-do (Takeshima) Controversy, Trends, March 10-31, 1996, at 1.
[98] See generally Valencia, Van Dyke, and Ludwig, supra note 48, at 17-19.
[99] Minquiers and Ecrehos Case (France/United Kingdom), 1953 I.C.J. 47.
[100] Id. at 57 (emphasis added).
[101] Gulf of Fonseca Case, supra note 26.
[102]Eritrea-Yemen Arbitration, supra note 14.
[103]Id., 1998 Award, para. 239.
[104]Sovereignty over Pulau Ligitan and Pulau Sipadan, 2002 I.C.J. – (Dec. 17, 2002).
[105] Id. para. 14.
[106] Id.
[107] Id. paras. 58, 72, 80, 92, 94, 96, 114, and 124.
[108] Id. para. 126 (citing Frontier Dispute (Burkina Faso/Republic of Mali), 1986 I.C.J. 587 para. 63; Territorial Dispute (Libyan Arab Jamahiriya/Chad), 1994 I.C.J. 38 paras. 75-76; Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), 2002 I.C.J. –, para. 68).
[109] Id. para. 132.
[110] Id. para. 134 (quoting from Legal Status of Eastern Greenland (Denmark v. Norway), P.C.I.J. Series A/B, No. 53, at 45-46).
[111] Id. para. 134 (quoting from Legal Status of Eastern Greenland, id., at 45-46).
[112] Id. para. 134 (quoting from Legal Status of Eastern Greenland, id. at 45-46). In this regard, the Court noted that it was significant that Indonesia’s map of its archipelagic baselines “do not mention or indicate Ligitan and Sipadan as relevant base points or turning points.” Id. para. 137. The Court also found significant that neither Indonesia nor its predecessor the Netherlands “ever expressed its disagreement or protest” regarding the construction of lighthouses on Ligitan and Sipadan in the early 1960s. Id. para. 148.
[113] Id. para. 135.
[114] Id. para. 140.
[115] Yonhap News Agency, South Korea Commissions New Patrol Boat for Disputed Isle Area, July 13, 2001.
[116] See supra text accompanying note 32.
[117] Law of the Sea Convention, supra note 2. See generally Valencia, Van Dyke, and Ludwig, supra note 48, at 41-45; Van Dyke, Morgan, and Gurish, supra note 82.
[118] See discussion of Japan’s EEZ in note 82 supra.
[119] See Johnston and Valencia, supra note 88, at 113; Daniel J. Dzurek, Deciphering the North Korean-Soviet (Russian) Maritime Boundary Agreements, 23 Ocean Development & Int’l L. 31, 42 (1992). Japan argues, however, that Tok-do/Takeshima qualify as “an island and should not be disregarded in a continental shelf delimitation, without indicating the weight to be attributed to [them] in a delimitation.” Alex G. Oude Elferink, The Law of Maritime Boundary Delimitation: A Case Study of the Russian Federation 302 (1994)(citing 29 Japanese Ann. Int’l L. 131(1986)).
[120] Japan-Republic of Korea Agreement on Fisheries of 28 November 1998, entered into force Jan. 22, 1999; revised March 17, 1999.
[121] Choi, supra note 60, at 4.
[122] Johnston and Valencia, supra note 88, at 106.
[123] Id. (citing Choon-ho Park, Maritime Claims in the China Seas: Current State Practices, 18 San Diego L. Rev. 443-54 (1981)). See also Paul C. Yuan, The New Convention on the Law of the Sea from the Chinese Perspective, in Consensus and Confrontation: The United States and the Law of the Sea Convention 184, 195-204 (Jon M. Van Dyke ed.1985).
[124] Johnston and Valencia, supra note 88, at 112 (citing Mark J. Valencia, Northeast Asia: Petroleum Potential, Jurisdictional Claims, and International Relations, 20 Ocean Development & Int’l L. 35 (1989)).
[125] Agence France Presse, China Denounces Japan-South Korea Fisheries Pact, Jan. 22, 1999. For different reasons, North Korea also denounced the agreement, calling it a violation of the sovereignty of the Korean nation and a “brutal trample” on international law. Xinhua News Agency, North Korea: DPRK Lashes Out at South Korean-Japanese Fishery Accord, Oct. 7, 1998.
[126] Choi, supra note 60, at 8.
[127] See supra text accompanying notes 52-54.
[128] Choi, supra note 60, at 8.
[129] Id. at 6.
[130] Choi, supra note 60, at 8.
[131] See supra text following note 2.
[132] See generally Van Dyke, Valencia, and Garmendia, supra note 4; Oude Elferink, supra note 119, at 313-14. Apparently the actual coordinates of the Northern Limit Line are classified.
[133] See Prescott, supra note 55, at 48-51.
[134] Park, supra note 80.
[135] Sonni Efron, N. Korea Unilaterally Shifts Maritime Border, L.A. Times, Sept. 3, 1999, at 1, col. 3 (nat’l ed.).
[136] Mark J. Valencia and Jenny Miller Garmendia, Work to Resolve the Maritime Conflict, International Herald Tribune, Dec. 17, 1999.
[137] See Van Dyke, Valencia, and Garmendia, supra note 4.
[138] See supra text accompanying notes 22-23.
[139] See supra text accompanying notes 32-45.
[140] Anglo-French Arbitration, supra note 32.
[141] See supra text accompanying notes 66-75.
[142] See supra text accompanying notes 55-59 and 79-80.
[143] Agence France Presse, South-North Korean Fishermen’s Accord in Troubled Waters, Feb. 28, 2000.
[144] Prescott, supra note 55, at 45.
[145] Choi, supra note 60, at 8.
[146] Choi, supra note 60, at 5.
[147] Id. at 8.
[148] See supra text accompanying notes 49-65.
[149] See supra text accompanying notes 76-77.
[150] North Sea Continental Shelf Case, supra note 16.
[151] 1974 Joint Development Agreement, supra note 87, art. XXXI(2)-(3).
[152] See supra text accompanying notes 87-93.
[153] See supra text and notes accompanying notes 122-30.
[154] See Stuart Kaye, Negotiation and Dispute: A Case Study in International Boundary Making – The Australia-Indonesia Boundary 7 (paper presented to conference on Ocean’s Management in the 21st Century: Institutional Frameworks and Responses under the LOS Convention, University of Sydney, Nov. 22-23, 2002)(the Indonesian Minister who made the “cleaners” comment was Foreign Minister Mochtar).
[155] Libya/Malta Case, supra note 5, at para. 39.
[156] Prescott, supra note 55, at 38.
[157] Johnston and Valencia, supra note 88, at 116 n. 85.
[158] Choi, supra note 60, at 9.
[159] Prescott, supra note 55, at 39.
[160] See supra text accompanying notes 16-21, 122-30, 150-59.
[161] Prescott, supra note 55, at 48. MOMAF Deputy Minister Choi has acknowledged that: “The controversy over whether the island has the status of island under UNCLOS which can have its EEZ may make it difficult to use the island as the baseline point,” adding that the most important goal was “to secure the waters around the island to be included in the EEZ of Korea.” Choi, supra note 60, at 9.
[162] See Paik, supra note 55, at 105 (“Considering coastal geography around North Korea, the equidistance line can be regarded as an equitable solution to the delimitation with its neighbors.”).
[163] See the map entitled “Potential Maritime Zones of Northern East Asia,” prepared by the Office of the Geographer, U.S. Department of State, in December 1977, showing hypothetical equidistant lines, which was republished in Bruce D. Larkin, East Asian Security Zones, 2 Ocean Yearbook 282, 291 (1980), and in Paik, supra note 55, at 106.
[164] Choi, supra note 60, at 9.
[165] Choon-ho Park, now a judge on the International Tribunal for the Law of the Sea has explained that “[c]ourt-going or settling cases through judicial means is very popular in North America or under the European tradition, but it’s not the thing in East Asia.” Choon-ho Park, Concluding Observations, in The International Implications of Extended Maritime Jurisdiction in the Pacific 114, 115 (John P. Craven, Jan Schneider, and Carol Stimson, eds., Law of the Sea Institute, Honolulu, 1989).
[166] Gulf of Maine Case, supra note 6.
[167] Temple of Preah Vihear (Cambodia v. Thailand), 1962 I.C.J. 6.
[168] See supra text accompanying notes 104-14.
[169] Singapore Government Press Release, (site visited May 12, 2003).
[170] Id.
[171] Case Concerning Land Reclamation by Singapore In and Around the Straits of Johor (Malaysia v. Singapore), Case No. 12, Request for Provisional Measures (ITLOS 2003), (visited Oct. 3, 2003). Malaysia sought provisional measures from the International Tribunal for the Law of the Sea pending proceedings on the merits before an arbitral panel formed under Annex VII of the Law of the Sea Convention, supra note 2.
[172] See, e.g., Johnston and Valencia, supra note 88, at 114 (“By treating [Tok-do] as a sovereignty issue rather than a boundary problem, [Japan and Korea] may simply be content to agree to disagree, and leave it at that.”).
[173] See supra text accompanying notes 158-59.
[174] See supra text accompanying notes 76-77 and 149.
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