NORTHEAST ASIAN SEAS -- CONFLICTS, ACCOMPLISHMENTS,
AND THE ROLE OF THE UNITED STATES
by Jon M. Van Dyke[1]
William S. Richardson
School of Law
University of Hawai‘i at Mānoa
jvandyke@hawaii.edu
Northeast Asia has seen the flowering of great
civilizations, outstanding cultural creations, vibrant political communities,
and stubborn conflicts among its neighbors.
The residents of the heavily-populated land areas of this region have
always looked to the sea for resources, sustenance, and trade, and their quest
for the sea’s bounty has inevitably led to conflicts among them. This paper focuses on these conflicts,
examining their dimensions and explaining the creative efforts to resolve them
or at least reduce the tension they create.
The paper also looks at an outside power -- the United States -- to
examine its unique role in providing balance and promoting stability in
Northeast Asia.
The countries of Northeast Asia are proceeding
through a transitional phase in their maritime relationships as they transform
their relationships to conform to rules agreed upon in the 1982 United Nations
Law of the Sea Convention,[2]
which all except North Korea have recently ratified. This complicated region
includes the country with the most population on the planet -- China; the
world’s second-largest economy -- Japan; a lively and emergent economic “tiger”
-- South Korea; the reclusive but slowly emerging “Hermit Kingdom” of North
Korea; and the slumbering but potentially resource-rich Russian Far East. Also in the mix on some issues are the
hard-to-classify political entity of Taiwan, the resource-laden land-locked
country of Mongolia, the important economies of Southeast Asia, and outside
powers like the United States and Europe.[3]
The Conflicts
The central maritime conflicts of Northeast Asia
concern navigational routes and the important offshore resources of fish and
hydrocarbons. The quest for these
resources has led to disputes over sovereignty of tiny offshore islands and
over the delimitation of extended maritime zones. The sovereignty and delimitation disputes have a long history,
and much has been written about them.
This section will survey these controversies and offer some perspective
on how they might be resolved.
Sovereignty Conflicts Over Disputed Islands.
The Senkakus/Diaoyu Dao Islands. These eight
uninhabitable features northeast of Taiwan
in the East China Sea (five uninhabited islets and three barren rocks)
are disputed between China and Japan, because of their symbolic and historical
importance as well as their potential to generate continental shelves and
exclusive economic zones.[4] Once their sovereignty is determined, it
then needs to be decided whether these tiny islets should be allowed to
generate extended maritime zones or whether, on the other hand, they should be
allowed to generate only a territorial sea because they are “rocks” under
Article 121(3) of the 1982 United Nations Law of the Sea Convention, which
defines “rocks” as those features that “cannot sustain human habitation or
economic life of their own.”[5] These tiny features have never been
inhabited. The largest (Diaoyu
Dao/Uotsuri Shima) has an area of 4.3 square kilometers, with two peaks rising
to about 1100 feet, but with no anchorages for any but the smallest ships to
use for landings. Historically, these
outcroppings have been used only as navigational aids.
Japan has dominated the tiny islets since 1895 when
Japan formally incorporated them into its national territory. A Japanese citizen -- Tatsushiro Koga –
attempted economic activity such as fish- and bird-canning and the collection
of birds’ feathers and guano between 1896 and his death in 1918, but these
activities ultimately failed. The
United States administered the islands after World War II until 1972, when they
were returned to Japan. China argues
that it exercised sovereignty over the islets until 1895, when they were ceded
to Japan after losing a war, and that they should have been returned to China
pursuant to the 1951 peace treaty formally ending World War II.[6]
China’s 1992 territorial-sea legislation asserts
control over the islets and claims territorial seas around them. China contends that the islets do not have
the capacity to create continental shelves or exclusive economic zones, because
they are “rocks” under Article 121(3) of the Law of the Sea Convention, but
Japan takes the position that they are “islands” that are entitled to generate
such zones, and it apparently claimed an EEZ around the islets in its 1996
declaration.[7] 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 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.
Tok-Do/Takeshima. These two
tiny uninhabitable 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.[8] They have limited water sources, and have
been uninhabited historically. 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. 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 -- means that their
sovereignty may have a significant effect on the delimitation of marine space between Korea and Japan. 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 appears
to be 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.[9] 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 features
during the previous century, rather than on earlier historical records.[10] 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 Tok-do, and has continued to exercise sovereignty over the islets
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 Dynasty – to
patrol the waters around Tok-do beginning in February 2002.[11]
Because these islets are physically large “rocks,”
which have not been inhabited in a continuous fashion until the recent
military-type occupation, under the rule laid down in Article 121(3) of the Law
of the Sea Convention they probably should not be entitled to generate an
exclusive economic zone or a continental shelf, and their maritime zone should
thus be limited to a 12-nautical-mile territorial sea enclave.[12] Except for their own territorial-sea
enclave, therefore, they probably
should not affect the delimitation of the exclusive economic zone and
continental shelf between South Korea and Japan.
The Disputed “Northern Territories” North of Japan. One of the
most contentious and festering of Northeast Asia’s disputes concerns the small
islands north of Hokkaido controlled by Russia but claimed by Japan as an
essential part of its core national territory.
These islands -- usually called the “Northern Territories” -- include
the Habomai group, Shikotan, Kunashir (Kunashiri in Japanese), and Iturup
(Etorufu), and they contain a combined land area of 5,000 square
kilometers. The Soviet Union took these
islands from Japan after World War II,[13]
and expelled the 17,000 Japanese residents. Russia now claims title based on the language in the 1951 San
Francisco Peace Treaty, in which Japan “renounced all right and title to the
Kuril Islands.” But Japan argues that
these islands are not covered by this phrase, because they were not among the
islands Japan had acquired in 1875 in exchange for Sakhalin, and that
historically they have always been part of Japan.[14] In July 2001, Japan announced that the
status of all the islands in the Northern Territories must be addressed and
resolved together, rejecting the “double-framework” approach that had
previously been advocated by former Prime Minister Yoshiro Mori, which had
separated the problem into two separate groups – (1) Shikotan and the Habomai
Islands and (2) the Etorofu (Iturup) and Kunashiri (Kunashir) Islands.[15]
The fishing resources around these islands are
productive and intensively utilized, and include Pacific saury, Japanese
anchovy, Japanese flying squid, pink salmon, Pacific cod, Alaska pollack,
Pacific herring, and Japanese sardines.[16] In the summer of 2001, Japan denounced South
Korean fishing in this area, asserting that the fishing zones “are within the
exclusive economic zone and under Japan’s sovereignty.”[17] South Korea contended that it had been given
permission to fish there by Russia,[18]
but to retaliate against the South Korean activity, Japan banned South Korean
fishing off the Pacific coast areas of Aomori, Iwate, and Miyagi Prefectures on
the west coast of Honshu Island.[19] The South Koreans continued to harvest saury
around the Northern Territories during the fall of 2001, but negotiations
during this period between Japan and Russia led to Russia’s agreement to bar
foreign fishing around the Northern Territories in the future, in exchange for
financial assistance from Japan and Japanese agreement to control the smuggling
of crabs into Japan from the Pacific waters adjacent to Russia.[20]
Conflicts Related to Maritime Boundary Delimitations.
Baselines. The straight-baseline claims
of Northeast Asian countries have been controversial and significant (1)
because the waters landward of these lines are “inland waters,” which are
totally controlled by the coastal country; (2) because the next 12 nautical
miles are territorial seas, which are sovereign territory, through which
vessels can exercise the right of
innocent passage; and (3) because any median or equidistance line that
might be drawn to divide maritime zones would start from the baselines. China’s use of a high-tide elevation about
70 nautical miles off Shanghai called Dongdao (Barren Island) as a basepoint
for its baselines is of dubious legitimacy and has been challenged by its
neighbors. China has also used some
low-tide elevations as basepoints for its baselines. 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. Under
Article 7(1) of the Convention, the use of straight baselines in general is
legitimate only in coastlines that are “deeply indented” or have fringing
islands along them, and under Article 7(3) the baselines must not depart
appreciably from the general direction of the coast. 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 questionable.[21]
North Korea’s use of baselines on its east coast also
appears to exceed the permissible limits established by the Law of the Sea
Convention, and they are not recognized as legitimate by the United States.[22] One long line is used to connect the
southern and northern borders of North Korea along a coast that is not
particularly deeply indented and does not have any fringing islands.
When South Korea established straight baselines on
part of the Korean Peninsula in 1965 and later in 1977 when it enacted the
Territorial Sea Act of Korea in 1977, it consulted extensively with Japan. South Korea has a somewhat irregular west
coast and fringing islands along some areas, so that its baseline claims are
generally thought to be consistent with the Law of the Sea Convention.
Japan’s baseline claims in some locations is less
well accepted. These baselines connect
remote tiny islands far from the main islands, and some are more than 50 miles
long. The longest Japanese baseline is
62.26 nautical miles in the area west of Kyushu. Japan’s coastline is not generally viewed as being “deeply
indented” nor does it have “fringing islands.”
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. This law drew baselines closing
the three entrances to the Seto Inland Sea, “which had been established as
Japan’s internal waters under international customary law.”[23] Japan has claimed a territorial sea of only
three-nautical-miles around the Tsushima Islands in order to preserve
navigational freedoms in the adjacent straits.[24]
Historic Waters. China has always claimed the
large Bohai Bay just below Korea as a historic bay. The Republic of Korea understands the claim, but has never
acknowledged its legitimacy. Japan has
raised reservations about the claim.[25]
The Soviet Union claimed the waters in Peter the
Great Bay as internal waters in 1957.[26] A number of countries, including Japan, the
United States, the United Kingdom, France, Canada, Sweden, Germany, and the
Netherlands, have protested this claim.[27] In 1984, the Soviet Union drew a straight
baseline across Peter the Great Bay,[28]
but did not specifically refer to it as historic waters, which “might suggest
that Peter the Great Bay was not considered a historic bay under the 1984 Decision.”[29]
Japan claims that its inland sea of Seto Naikai has
the status of internal waters. This
waterway might arguably be considered to be an international strait capable and
appropriate for passage between one exclusive economic zone and another (or
alternatively an area where archipelagic sea lanes passage would be
appropriate). But because the route
between Shikoku and Kyushu Islands is equally convenient for international
transit,[30]
the inland sea is probably protected from international strait status.
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 to draw the boundary between
North and South Korea, and it also declared a 50-mile Military Boundary Zone on
August 1, 1977, which has a dubious status under international law.[31] 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.[32] (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.”[33]) Japan and South Korea declared exclusive
economic zones in 1996, at the time they ratified the 1982 United Nations Law
of the Sea Convention.[34] China declared its EEZ on June 26,
1998. The Soviet Union first declared a
fishery zone on Dec. 10, 1976, which took effect on March 1, 1977, and replaced
it with an EEZ in 1984 (both zones include the waters around the disputed
Northern Territories).
Archipelagic Waters. Japan’s
islands have a geographical configuration that would allow it to claim the
status of an archipelagic state, and it thus could claim that at least some of
the waters connecting some of its many islands would be “archipelagic waters.”[35] Because of Japan’s many small and distant
islands, it would not be able to claim all the waters connecting these islands
as archipelagic waters, and, if it wanted to pursue this approach, it would
have to decide how it wanted to define its archipelago.
The Delimitation Claims.[36] 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, would give China more
continental shelf than its neighbors South Korea and Japan, and would permit
China to claim the continental shelf to the Okinawa Trough, which is just west
of Japan’s small southern islands.[37] This claim includes most, if not all, of the
Japanese-Korean Joint Development Zone, which China has consistently denounced
as a violation of its rights. Even if
the Diaoyu Dao/Senkaku islets are ignored, Japan and China have potential
conflicts in maritime delimitation, because the coasts of mainland China and
Taiwan are within 400 nautical miles of undisputed Japanese islands. Japan recognizes the median line between the
Ryukyu Islands and the Chinese mainland as a provisional EEZ boundary, but
China rejects this approach and claims that the whole continental shelf of the
Yellow Sea/West Sea belongs to China on the basis of the natural prolongation
theory.
The unresolved continental shelf boundary between
China and Japan became an issue in early 2002 when Japan wanted to raise the
sunken “mystery ship,” apparently of North Korean origins, which had been
pursued and sunk by Japanese vessels after it was spotted racing toward the
Japanese coast.[38] China initially protested Japanese efforts
to examine and salvage the ship, which was on the Chinese side of the median
line between the two countries, but eventually acquiesced in the Japanese
efforts.
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/Takeshima be given full effect, half effect, or no effect? Korea argues that neither the tiny Japanese
islet of Danjo Gunto nor Tok-Do/Torishima 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. South Korea has sought to utilize the
median-line principle in the Yellow Sea/West Sea, but has favored the
natural-prolongation approach in the East China Sea.[39]
In 1974, Japan and South Korea reached two
agreements, delimiting the continental shelf[40]
and establishing a joint development zone over one of their disputed areas.[41] The continental shelf agreement utilized the
equidistant approach for areas where the baseline starting points are
undisputed, but left unresolved those areas where the role of islands raised
problems, and also left unresolved the question of the proper role that should
be given to the Okinawa Trough. South
Korea argued that the
natural-prolongation principle should lead to the result that its boundary
should extend to the Trough, but, because Japan disagreed, a joint development
zone was created in the disputed area.
China and the Republic of Korea have overlapping
claims, because of their disagreement over whether Dongdao (a barren islet
about 70 nautical miles east of Shanghai) can properly be used as a
basepoint. The overlapping claims cover
about 24 square kilometers (nine square miles). China disputes the western boundaries of all South Korean leases
in the Yellow/West Sea and in the East China Sea.
South Korea and North Korea have extensive
delimitation problems because of the South Korean islands that hug the North
Korean coast on the west coast of the peninsula, and because of the disputed
status and location of the “Northern Limit Line.”[42] South Korea controls the islands of
Paengyong, Taechong, Sochong, Yongpyong, and Woo which are only a few miles off
the western North Korean coast,[43]
and 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
that 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. In September 1999, North Korea
unilaterally announced that it had redrawn the line so that would extend from
the land boundary perpendicular from the coastline into the Yellow Sea/West
Sea, and was prepared to enforce this line “by various means.”[44] 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.[45]
Incidents are not uncommon in this area, and a South
Korean fishing vessel strayed into North Korean waters on May 27, 2001, drawing
fire from a North Korean patrol boat.
Then on June 24, 2001, the South Korean Navy fired warning shots with
blank ammunition against a North Korean vessel which had entered waters that
South Korea viewed as its waters 4.5 miles northwest of Paengyong Island in the
Yellow Sea/West Sea.[46] On April 22, 2002, two North Korean patrol
boats crossed the Northern Limit Line apparently to observe Chinese fishing
vessels in the area, and then withdrew after about 40 minutes.[47] On the east coast of the Korean peninsula,
North Korea claims a maritime area that may be larger than it is entitled to,
because of its unwarranted baseline claims and because its claim does not give
appropriate weight to the South Korean island of Ullong Do.[48]
North Korea and Russia entered into a Maritime
Boundary Agreement in 1986,[49]
drawing a delimitation line that is basically the equidistant line between the
two countries, adjusted northward slightly to give North Korea a little more
territory, perhaps out of a recognition that the Russian baseline across Peter
the Great Bay may not be altogether legitimate under governing principles in
the Law of the Sea Convention.[50]
Japan and Russia have never entered into negotiations
regarding their maritime boundaries because of “the dispute between Japan and
the Russian Federation over the Northern Territories.”[51]
The Straits. Both the Republic of 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.[52] Japan has also frozen or limited the breadth
of the territorial sea in the five Japanese international straits at three nautical
miles “for the time being” in order to leave the rest of the waters free for
unimpeded navigation.
Passage through the Cheju Strait is also somewhat
ambiguous. Korea claims a
12-nautical-mile territorial sea there, which puts the entire strait within
Korea’s territorial sea. “The ROK has
never recognized the Cheju Strait as an international strait, and instead
considers it to be a part of the territorial sea.”[53] The Cheju Strait may not to be subject to
transit passage under the regime established by the Law of the Sea Convention,
in any event, because of the “Messina exception” in Article 38(1) of the Law of
the Sea Convention.[54] It may be, therefore, that passage rights
in the Cheju Strait are limited to “innocent passage.”
Passage Rights and Other Navigational Freedoms. Passage
rights in East Asia are crucial to trade and economic development, as well as
security interests, and all nations of this region are focused on keeping trade
routes open. The term “sea lanes of communication”
or “SLOC” is widely used in the region to emphasize the importance of free
passage. “The sea lanes of
communication (SLOC) are a matter of life and death for the Asian Pacific
countries, and SLOC security has been a fundamental factor contributing to
Asian Pacific economic development.”[55] The dispute over the South China Sea is, in
large part, a dispute regarding the rights of free passage through this
important waterway where 41,000 ships cross each year. As mentioned above, both South Korea and
Japan have limited their territorial-sea claims to three nautical miles around
their lands bordering straits in order to permit free passage through these
areas.
China has a law requiring foreign military vessels to
obtain permission before entering China’s territorial waters,[56]
as does North Korea.[57] And South Korea “requires foreign warships
or government-owned non-commercial vessels to provide three days prior
notification in advance of passage.”[58] This law has been challenged by the United
States and other maritime powers as violating the right of innocent passage
protected in Articles 17-20 of the Law of the Sea Convention.
The Accomplishments -- Incremental Regime Building
All the countries of Northeast Asia except North
Korea have ratified the 1982 United Nations Law of the Sea Convention, so it
exists as a background set of rules to guide conflict resolution. Particularly in the important area of
fishing disputes, the countries of Northeast Asia have successfully negotiated ad
hoc fishing arrangements to allow their citizens to share in the
exploitation of the living resources of their seas.
Fishery Agreements.
China - Japan. The first post-war fisheries
agreement between these important powers was the 1955 Agreement on Fisheries in
the Yellow/West and East China Seas, negotiated by “private” fisheries groups
in each country because of the absence of formal diplomatic dealings between
the two countries. This Agreement
established six fishing zones and several no-fishing zones, and served to
reduce the confrontation and ship seizures that preceded the agreement. It lasted until 1958, and then in 1963 a new
Agreement was adopted, based in large part on the earlier 1955 Agreement. This “private” Agreement was modified once
again in 1965, giving slightly greater attention to environmental concerns,
lasting until 1970.
Formal diplomatic relations were established between
the countries in 1972, and governmental negotiations led to the first formal
China‑Japan Fisheries Agreement in 1975.
China insisted on designating an area as a “military warning zone” and
another area as a “zone of no-motorboat-trawlnet-fishing,” and also warned
Japan against fishing in the waters around Taiwan. As mentioned above, the fisheries zone that Japan declared in
1977, explicitly exempted Korean and Chinese fishing vessels from its
application.[59] The Korean and Chinese fishing
vessels increased in size, however, and pressure on Japanese fisheries also
increased. “[F]oreign fishing,
particularly South Korean fishing, continued to expand just outside the 12-mile
limit and caused extensive damage to Japanese fishing. South Korean fishing in the area employed
fishing gear and techniques that were prohibited for Japanese fishing for the
protection of fishery resources.”[60]
In 1992, China issued its Law on the Territorial Sea
and Contiguous Zone, and included claims around the Diaoyu Dao/Senkaku Islands,
which the Japanese had long claimed and controlled. Then, in 1996, both China and Japan ratified the Law of the Sea
Convention. The following year, they
revised their 1975 agreement to address the issues raised by the Convention and
by the recognition of the exclusive-economic-zone concept by both countries.[61]
The 1997 Agreement recognizes that within the first
52 nautical miles from their respective baselines in the area between 27
degrees and 30 degrees 40 minutes north latitude, the fishers from the coastal
nation have exclusive rights to the fishing resources. If the fishers of the coastal nation cannot
harvest all the available fish, taking into account the recommendations of the
China-Japan Joint Fisheries Commission, then the fishers of the other nation
will be allowed to take a quota determined annually. Although the broad contours of this new agreement were
established in 1997, the details have remained
controversial, and the two countries have continued to meet on the final
aspects, reaching tentative agreements periodically. On May 18, 2000, for instance, the two countries agreed that
between June 1 and December 31, 2000, 1122 Chinese vessels could operate in
Japan’s 52-nautical-mile coastal zone, in search primarily for squid, and 710 Japanese vessels could similarly operate
in China’s 52-nautical-mile coastal zone, each harvesting up to 70,000 tons of
seafood.[62] It proved harder to reach an agreement for
2001, and none had been reached for these coastal areas as the year began.[63]
The most significant innovation of this 1997
agreement is the establishment of a “Provisional Measures Zone” where the
vessels of each nation can fish, and where each country exercises jurisdiction
over its own flag vessels, pending the ultimate delimitation of their disputed
maritime boundaries. This zone is in
the shape of a parallelogram, beginning 52 nautical miles from the coastal
baselines of each nation, and covers the area between 27 degrees and 30 degrees
40 minutes north latitudes in the East China Sea. Although the principle of flag-state jurisdiction prevails,
meaning that the parties cannot punish a vessel of the other party for
violations, they can identify the transgression and tell the wrong-doing vessel
about its violation. No formal dispute
resolution procedure is included in the agreement. The area south of 27 degrees north latitude, including the
disputed area around the disputed Senkakus/Diaoyu Dao remains as unregulated
international waters. Also unresolved
are the interests of South Korea, which has a claim for an exclusive economic
zone that overlaps part of the area covered by the China-Japan fisheries
agreement, but it is expected that South Korea will be able to continue its
fishing activities in the joint management area and the area north of 30
degrees 40 minutes north latitude.
Japan and South Korea. These two
neighbors maintain an awkward relationship, but have been able to cooperate
with regard to many key fishing issues.
The Japan‑South Korea Fisheries Agreement of 1965 was entered into
as part of the process of normalizing relations between the two countries, and
was designed to reduce the tension that resulted from seizures of vessels
and confrontations between the two
countries, leading to the arrest and even deaths of Japanese fishers operating
near the South Korean coasts.[64] In this agreement, each side recognized the
other’s right to an exclusive fishery zone 12 nautical miles from its
coasts. Beyond these 12-mile coastal
zones, a “joint regulation zone” was established, for the purpose of protecting
fishery resources.[65]
The 1965 Agreement was replaced in 1998 by a new
agreement[66] which
introduced two “provisional 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/Takeshima
and the other is in the East China Sea just north of the Japan-China
Provisional Measure Zone.
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 had 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.[67] 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.[68]
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).
First-time offenders are to be prohibited from fishing for two months,
and second offenders will lose their fishing licenses. The joint fishing committee established
under the 1965 Agreement continues, with the duty to protect marine resources,
and it makes recommendations regarding fishing in shared and overlapping
areas. It remains somewhat unclear
whether fishing vessels from other countries can operate in the joint-use zone,
but apparently they can if they conform to the Korean and Japanese laws and
regulations that apply respectively on each side of a hypothetical median line
drawn through this zone. The 1998 agreement
was so unpopular in South Korea, that the Minister of Maritime Affairs and
Fisheries Kim Sun-kil and the Vice-Minister Chun Sung-kyu were both fired after
its details became public.[69] The agreement was also unpopular in China,
which denounced it as an infringement on China’s sovereign rights to an
exclusive economic zone in the East China Sea and called for talks among the
countries to resolve their maritime boundary disputes.[70]
Regular subsidiary agreements are reached to permit
fishing by the vessels of these two neighbors.
In 1999, Japan was given the right to send up to 30 boats to catch
swellfish in Korean waters and 48 dragnet fishing boats in the waters around
Cheju Island, with 80 dragnet Korean boats allowed in Japanese waters.[71] South Korea’s annual quota in Japan’s EEZ
was reduced from 207,000 tons to 149,800 tons, and the number of its deep-net
boats was reduced from 337 to 192.[72] An accord reached in 2001 allowed 26 South
Korean boats to catch 9,000 tons of saury between August 20, and late November
2001 off the Sanriku Pacific coast of Japan.
Japan threatened to scuttle this agreement during June of 2001, however,
because of South Korean fishing around the Northern Territories islands claimed
by Japan.
China-South Korea. Until
recently, China and South Korea have had no formal arrangements governing
fishing in the Yellow Sea/West Sea, and the overexploitation of the resources
there has emerged as a major concern, particularly in South Korea. The two countries normalized their
diplomatic relationship in 1992, and began discussing fishing issues in 1993. Their conflicting positions came into focus
after South Korea proclaimed its exclusive economic zone in 1996, and China
took the same step in 1998. These
claims overlap, and China’s straight baseline claim,[73]
which South Korea officially protested as incompatible with the Law of the Sea
Convention, also has created difficulties.
The countries are also divided regarding the principles that should be
used to delimit their EEZ and continental shelf boundaries, with South Korea
favoring an equidistance or median-line approach, while China has argued in
favor of a natural-prolongation or equitable approach that would recognize the
size of its land mass, the length of its coastlines, and the existence of its
offshore islands.
In 1997-98, the two countries finally agreed to
recognize coastal EEZ areas where each country could exercise sovereign rights
over the resources (which extends 80 nautical miles from Korea’s western
coast); to establish a joint fishing area
in the area where their claimed EEZs overlap, where they will exercise
equal rights; and to create a transitional area extending 20 miles in both
directions from the joint fishing area, where the resources will be shared for
four years, but which will thereafter become 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.
After further discussions, the countries agreed that
Korean vessels would be restricted from the mouth of the Yangtze for two-three
months each year, and Chinese boats would have to stay away from the Korean
coast for a similar period, and also stay clear of the Northern Limit Line
dividing North and South Korea for security reasons. Under an agreement reached in 2001, South Korea can send 1,402
fishing boats into China’s exclusive economic zone to catch up to 90,000 tons
of fish, and 2,796 Chinese fishing vessels can catch up to 164,400 tons in
South Korea’s EEZ.[74]
South Korea - Russia. As
explained above,[75] these two
countries entered into a controversial agreement that allowed Korean fishing
vessels during the summer and fall of 2001 to harvest saury in the waters off
the disputed Northern Territories islands controlled by Russia, but claimed by
Japan. Because of intense Japanese
pressure and economic incentives offered to Russia, this agreement apparently
will not be renewed in the near future.
Japan - Russia. In the Japanese-Soviet
Agreement on Offshore Fisheries of 7 December 1984, the two countries agreed to
allow the fishing vessels of the other country to fish in their
200-nautical-mile zones.
Japan – North Korea. A
nongovernmental agreement has been established that is administered by the
Democratic People’s Republic of Korea-Japan Joint Fisheries Cooperative
Committee. This agreement permits – for
a fee – Japanese vessels to harvest squid, salmon, and crabs in the EEZ of
North Korea.[76]
South Korea – North Korea. 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.[77] About 400 South Korean squid vessels are
expected to take advantage of this arrangement.
China – North Korea. Chinese
officials reported in 1987 that two agreements existed between these two
countries regarding the resources of the Yellow/West Sea, but no details are
available regarding these agreements or their current status.[78]
North Korea - Russia. These two
countries have an agreement establishing reciprocal fishing rights in each
other’s waters, with details worked out at annual meetings, but the details of
the agreement have never been released.[79]
Joint Development Zones Related to Nonliving
Resources.
It is somewhat remarkable that the nations of
Northeast Asia have dealt with their serious sovereignty conflicts by joining
together in a number of bilateral arrangements that have created joint
development resource zones. Japan and
the Republic of Korea delimited part of their continental shelf boundary in an
agreement signed January 30, 1974, which went into effect June 22, 1978, but
they were not able to complete the task because of their dispute over overlapping
claims, and their conflicting views whether the natural-prolongation or
median-line principle should define
continental-shelf boundaries. In
light of this controversy, the two countries established a joint development
zone in the disputed territory, but no resource extraction has yet occurred in
this zone.[80] Their agreement will stay in force until
2028, after which date either country can give a three-year notice to terminate
it. Although this arrangement applies
primarily to mineral and other nonliving resources of the seabed and subsoil,
Article 5(1) of the Joint Development Agreement says that each operating agreement
should accommodate the fishing interests of the concerned countries.
The other shared zones are the fishery zones between
Japan and South Korea and between Japan and China. These zones are also innovative and important, and offer a
logical and pragmatic solution to the continuing disputes over sovereignty of
islets.
Environmental Issues.
Pollution of the marine environment is a major
problem throughout Northeast Asia, but it has not been effectively tackled at
this time. Land-based pollution is
pervasive in the region. The Russian
tanker Nakhodka recently broke in two in the East Sea/Sea of Japan,
spilling 19,000 tons of fuel oil on the southwest coast of Honshu. Russia dumped 18 nuclear reactors and 13,150
containers of radioactive waste from 1978 to 1993, mostly in the Sea of Japan/East
Sea. These degradations cause grave
damage to the ability of citizens to enjoy their coastal areas and reduce
tourist potential, as well as causing problems for the region’s fisheries.
A first step toward environmental cooperation has
occurred with the establishment of a Regional Seas Programme for the North-West
Pacific, and the subsequent establishment of the Northwest Pacific Region
Environmental Cooperation Center at Toyama, Japan, and a comparable center at
established at Pusan, South Korea. This
arrangement connects North and South Korea, Russia, Japan, and China. When the first contact meetings occurred, it
was said that it was “the first time that Government representatives of the two
Koreas have sat down around the same table -- as distinct from opposite each
other -- and certainly [was] their first known contacts on environmental
issues.”[81] The centers have a relatively modest but
still important research agenda, focusing on the exchange of information, and
data collection on ocean pollution and its effect on sea animals.[82]
Perhaps even more significantly, the environment
ministers of China, Japan, and South Korea met in Seoul in January 1999 and in
Beijing in February 2000. China and
South Korea have made initial efforts to coordinate efforts to protect the
marine ecosystem of the Yellow/West Sea.
Military Cooperation.
Although tensions in Northeast Asia remain high,[83]
some efforts at military cooperation occur.
Japan and South Korea have had dialogues with the United States on sea
power and maritime issues, and these discussions may tend to ease the
historical tensions between these two neighbors. Other cooperative activities during recent years have been
summarized as follows:
Russia staged a search-and-rescue drill with Japan in
1998. Japanese and South Korean naval
vessels staged a search-and rescue operation in the East China Sea last
year. Last October Russia and Chian
announced joint-naval maneuvers. South
Korea has proposed joint-maritime search-and-rescue missions with China as well
as an exchange of visits by naval ships, and has asked Russia to join a naval
exercised.
Meanwhile, the
United States has proposed that a search-and rescue training exercise with
Malaysia include China and Japan. Japan
and China have resumed a security dialogue, while Russia and North Korea have
signed a new treaty of friendship.[84]
The
Role of the United States.
The United
States is an outside power, but it plays an active military, diplomatic, and
economic role in Northeast Asia. The
U.S.-flag islands of Guam and the 14 islands of the Commonwealth of the
Northern Marianas are physically near Northeast Asia, and the exclusive
economic zone of the Commonwealth of the Northern Marianas overlaps with that
of Japan. Also, three island countries
that are “freely associated” with the United States (the Republic of Palau, the
Federated States of Micronesia, and the Republic of the Marshall Islands) span
the western and central Pacific Ocean.
The United States has formal military alliances with
South Korea and Japan and it maintains 37,000 troops in South Korea, 47,000
troops in Japan (two-thirds of whom are in Okinawa, including the largest
contingent of U.S. Marines outside the United States),[85]
a significant base in Guam, and the possibility of a base in Tinian in the
Northern Marianas, all backed by the major naval base at Pearl Harbor in
Hawai`i. The United States engaged in
naval demonstrations in the Taiwan Strait in 1996, it has gained new base
facilities for its vessels at Changi in Singapore, and in 1998 it established a
visiting-forces agreement with the Philippines. The U.S. Navy also has access rights in Thailand (U Tapao),
Malaysia (Lumut), Indonesia (Surabaya), and Australia. In July 2001, the U.S. military vessels the
USS Guardian and the USS Patriot visited Hong Kong, with the
permission of the People’s Republic of China, on routine port calls.[86] As of 1998, the U.S. Pacific Fleet contained
193 vessels, including six aircraft carriers, 14 cruisers, 24 destroyers, 18
frigates, 30 nonnuclear-missile submarines, and 1,432 aircraft.[87] The United States is thus the largest naval
power in the region, it takes opportunities to demonstrate its technological
supremacy, and it is an active player in regional affairs.
What precisely are the primary goals and interests of
the United States in this region? The
U.S. goals are stability, economic development, free trade, protection of its
markets and investments, promotion of democracy, and protection of human
rights. Stability is achieved by
maintaining a balance among the frequently unfriendly neighbors in the region,
and strategically placed U.S. forces can play a role in promoting such a
balance. Stability is also achieved by
promoting representative democracy, because it has been established that
established democracies do not engage in military conflicts with each other but
instead solve their differences through peaceful means. The United States has a particular concern
about the potential threat posed by North Korea’s efforts to develop a nuclear
capability and its missile program
which, according to Admiral Dennis Blair (commander-in-chief of the U.S.
Pacific Command), “poses a direct threat to both the citizens of South Korea and
U.S. forces.”[88] It must also be acknowledged that another
aspect of the United States’s military role is to balance the military forces
of China, which are seen by some as posing threats to the representative
democracies in the region -- Japan, South Korea, and Taiwan -- and to the nations
of Southeast Asia.
Ocean issues are a concern for the United States
because they are among the most intractable of the regional conflicts, and
because they also relate to the free movement of ships and goods, which is
essential for trade, naval flexibility, and military balance. Environmental issues are also important for
the United States, because a healthy and productive ocean environment is
essential to maintain the fishing industry which is so important for this
region, and also for tourism, which is economically important along some of the
Northeast Asian coastlines.
The United States has had a presence in Northeast
Asia for a long time, playing a variety of roles historically. Perhaps most significant for present
purposes was the U.S. occupation of Japan after World War II, and its role in
the 1951 San Francisco Peace Treaty.
The terms of that treaty are still disputed, particularly with regard to
sovereignty over the Senkaku/Diaoyu Dao Islands between China and Japan[89]
and over the Northern Territories between Russia and Japan. The United States has and will
continue to play an important, and perhaps crucial role, in the effort to lure
North Korea out from its isolation and promote Korean reunification. The Bush Administration has been trying to
determine how to approach this challenge.
Some observers have suggested that the Bush efforts to distance the
United States from discussions with North Korea and to discourage talk of
reunification, and even contacts between the South and the North, has been
designed to promote support for its missile defense shield, which needs some potential
enemies to justify the vast expenditures involved. But other Bush advisers are arguing against that approach, saying
that promoting peace in the Korean peninsula is more important than the
missile-defense agenda. In June 2001, for instance, former U.S.
Ambassador to South Korea Donald P. Gregg, said that it was important to mute
criticism of North Korea and to resume the dialogue with them that had been
developed during the Clinton Administration: “We need to stop demonizing the
North Koreans.”[90]
The other confrontational military dispute in the
region concerns Taiwan. The United
States has a significant interest in maintaining peace between China and
Taiwan, and devotes considerable resources and energy to that controversy. China has between 300 and 400 CSS-6 and
CSS-7 missiles with the range to blanket Taiwan, and also has 4,000 warplanes,
including at least some that qualify as modern fighters.[91] Concern about China’s military capabilities
and intentions is one of the central U.S. justifications for its spy missions along
China’s coast to observe China’s military actions, such as the EP-3E
intelligence plane that collided with a Chinese plane on April 1, 2001 and was
forced to land on Hainan Island.[92] Later that same month, the United States
agreed to sell to Taiwan four Kidd-class destroyers, up to eight diesel
submarines, 12 P-e anti-submarine aircraft, helicopters, assault vehicles, and
other arms.[93] As explained above, all of these issues
relate back to navigational freedoms, and the United States has a central
interest in keeping sea lanes open for military as well as civilian
vessels.
Northeast Asia contains strong-willed and powerful
countries with a long history of animosity toward each other. They have three significant conflicts over
the sovereignty of islands and confrontational military situations in the
Korean Peninsula and the Taiwan Strait.
They have been slow to cooperate in maritime affairs, but they have
reached pragmatic solutions to their differences when necessary to exploit the
rich fisheries of the region and to search for hydrocarbon resources. As a practical matter, the United States
should probably be viewed as a de facto member of this region, because
of its enormous military presence and its acceptance by the countries of the
region as providing a necessary balance.
Although it would be overly optimistic to say that
the countries of this region have established a functioning maritime regime,[94]
nonetheless they have addressed their differences in a conscientious fashion
and have solved many of them. Real
maritime cooperation to address the significant environmental problems of the
region remains elusive, but significant steps have been taken toward reducing
tension and promoting trust.
To maintain this momentum, the countries of Northeast
Asia should concentrate on issues of common concern like pollution of the
marine environment, biodiversity, regional effects of global climate change,
and, most importantly, maintaining the sustainability of regional
fisheries. Eventually, they must also
address and resolve their three difficult confrontations over the sovereignty
of disputed islands,[95]
and the maritime boundary delimitations linked to these sovereignty
conflicts. 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.
But because it is politically impossible for any of the countries’
leaders to agree to give up sovereignty claims over any territory, they appear,
as a practical matter, to require outside help.
An analogy might 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 country’s 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.[96] Although the Court’s judgment was also
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.
As explained above, the United States is an active
partner in Northeast Asian matters, particularly those concerning maritime
affairs. Through its activities during
and after World War II, the United States has played a historically significant
role in some of the unresolved territorial disputes, but it is now
disinterested in the specific outcome of any of them. U.S. officials may therefore be able to play a constructive role
in addressing and resolving these disputes, by providing “good offices” to
bring the disputing parties together, by serving as a mediator, or by helping
to facilitate the establishment of an arbitral panel to examine the competing
claims and bring a final closure to these island-sovereignty
controversies.
Northeast Asia is
likely to continue to be a region of dynamic economic growth and cultural
flowering, with the region’s maritime resources playing a key role in ensuring
the prosperity of the countries of this region. But these neighbors will find it to be much easier to realize
this potential if they can find a way to work together as partners rather than
as adversaries whose relationships are poisoned by unresolved conflicts.
[1] This research was undertaken with resource assistance from the POSCO Visiting Fellowship Program at the East-West Center, Honolulu, Hawai`i. An earlier version of this paper was presented to the Seventh International Seapower Symposium, held in Seoul in August 2001. The author would like to thank Mark J. Valencia, Ji Guoxing, and Yong Hee Lee for their assistance in providing information and insights regarding the topics covered in this paper.
[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)
[3] See generally Kent E. Calder, The New Face of Northeast Asia, Foreign Affairs, Jan./Feb. 2001, at 106.
[4] See, e.g., Ma, The East Asian Seabed Controversy Revisited: Relevance (or Irrelevance) of the Tiao-yu-t’ai (Senkaku) Islands Territorial Dispute, [1982] Chinese Y.B. Int’l L. & Aff. 1; Okuhara, The Territorial Sovereignty Over the Senkaku Islands and Problems on [the] Surrounding Continental Shelf, 15 Japanese Ann. Int’l L. 97 (1971); Chao, East China Sea: Boundary Problems Relating to the Tiao-Yu-T’ai Islands, 1982 Chinese Y.B. 45.
[5] Law of the Sea Convention, supra note 2. See generally Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig, Sharing the Resources of the South China Sea 41-45 (1997); 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); Jon M. Van Dyke and Robert A. Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources, 12 Ocean Development & Int’l L. 265 (1983).
[6] For an insightful analysis of the sovereignty dispute over these islands suggesting the possibility that they may be jointly developed by China and Japan, see Unryu Suganuma, Sovereign Rights and Territorial Space in Sino-Japanese Relations: Irredentism and the Diaoyu/Senkaku Islands (2000).
[7] See infra note 34.
[8] For a detailed description and pictorial display of
these islets, see Ministry of Maritime Affairs and Fisheries (Republic
of Korea), Beautiful Island, Dokdo
(2000).
[9] See, e.g., Douglas M. Johnson and Mark J.
Valencia, Pacific Ocean Boundary Problems: Status and Solutions 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.
[10] See generally Valencia, Van Dyke, and Ludwig,
supra note 5, at 17-19.
Among the key decisions that provide guidance regarding
the rules that govern the ability of a nation to claim ownership of isolated
uninhabited island features are the Minquiers and Ecrehos Case
(France/United Kingdom), 1953 I.C.J. 47, 57 ("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" (emphasis added)); the Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening),
1992 I.C.J. 351 (focusing on evidence of actual recent occupation and
acquiescence by other countries to determine title to disputed islets); and the
recent arbitral decisions in the Eritrea-Yemen Arbitration, < , 1998 Award, para. 239 (relying 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.”).
[11] Yonhap News Agency, South Korea Commissions New
Patrol Boat for Disputed Isle Area, July 13, 2001.
[12] See Johnston and Valencia, supra note
9, 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)).
[13] According to Article 2 of the Peace Treaty of 1951,
Japan renounced all claims to the Kurile Islands and to that part of Sakhalin
and its adjacent islands that it had obtained in 1905.
[14] Mark J. Valencia and Noel Ludwig, Minerals and
Fishing at Stake in Dispute over Northern Territories, Japan Times, Feb.
10, 1991; see also Mark J. Valencia and Noel Ludwig, Southern Kurile
Islands/Northern Territories Resource Potential, 24:2 GeoJournal 227
(1991).
[15] Kyodo News Service, Japan to Propose Collective
Solution to Territorial Dispute with Russia, July 14, 2001; Kyodo News
Service, Japan Wants to Negotiate Isles with Russia in One Package, Aug.
29, 2001.
[16] Id.
[17] Japan:
Limits on South Korean Fishing, N.Y. Times, June 21, 2001, at A8,
col 5 (nat’l ed.).
[18] On December 10, 2000, South Korea reached an
agreement with Russia, paying $850,000 for permission for 26 boats to fish for
15,000 tons of saury around the southern Kuriles from July 15 to November 15,
2001. Russia also granted North Korea
permission to bring seven fishing vessels into this region to catch 8,000 tons
of saury in the same disputed area, and granted Ukraine permission to harvest
15,000 tons, of which the rights to 12,400 tons were sold to Taiwan.
[19] Kyodo News Service, Minister Rejects Seoul’s
Demand for Alternative Fishing Venues, June 26, 2001.
[20] Japan, Russia Sign Memorandum on Reduced Fishing
Quotas Off Disputed Isles, BBC Monitoring Asia Pacific – Political, Nov.
26, 2001.
[21] 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).
[22] Statement by Morris Sinor, CINCPAC Fleet Judge
Advocate, in International Navigation: Rocks and Shoals Ahead? 337 (Jon
M. Van Dyke, Lewis M. Alexander, and Joseph R. Morgan eds. 1988); see
generally Jin-Hyun Paik, Some Legal Issues Relating to Maritime
Jurisdictions of North Korea, in The International Implications of
Extended Maritime Jurisdiction in the Pacific 94-96 (John P. Craven, Jan
Schneider, and Carol Stimson eds.1989).
[23] Tsuneo Akaha, Japan in Ocean Global Politics
140 (1985)
[24] See, e.g., Choon-Ho
Park, The Korea Strait, in International Navigation: Rocks and Shoals
Ahead? 173 (Jon M. Van Dyke, Lewis M. Alexander, and Joseph R. Morgan eds.
1988).
[25] The United States has apparently never protested
China’s claim of Bohai Bay as a historic bay.
See J. Ashley Roach and Robert W. Smith, United States
Responses to Excessive Maritime Claims 33-34 (The Hague: Martinus Nijhoff, 2d ed. 1996).
[26] Oude Elferink, supra note 12, at 317 (citing
Decision No. 867 of the USSR Council of Ministers, “On the Establishment of the
Boundaries of Internal Waters of the Soviet Union in Peter the Great Bay” of 4
July 1957).
[27] See J. Ashley Roach and Robert W. Smith, United
States Responses to Excessive Maritime Claims 49 n. 28 (The Hague: Martinus Nijhoff, 2d ed. 1996).
[28] Oude
Elferink, supra note 12, at 318 (citing Decision of the Council of
Ministers of the USSR of 7 February 1984).
[29] Id. at 318.
[30] See Law of the Sea Convention, supra note 2, art. 38(1)(stating that the right of transit passage does not apply to straits “formed by an island of State bordering the strait and its mainland...if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics”).
[31] See, e.g., Choon-ho Park, The 50-Mile
Military Boundary Zone of North Korea, 72 Am. J. Int’l L. 866 (1978); Louis
B. Sohn, International Navigation: Interests Related to National Security,
in International Navigation: Rocks and Shoals Ahead? 307, 313 (Jon M.
Van Dyke, Lewis M. Alexander, and Joseph R. Morgan eds. 1988); Jin-Hyun Paik, supra
note 22, at 107-13.
[32] Law on the Provisional Measures Relating to the
Fishing Zone (Law No.31), May 2,1977.
[33] Akaha, supra note 23, at 130-49.
[34] 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 2; see generally Van Dyke, Morgan, and Gurish, supra note 5.
[35] See Law of the Sea Convention, supra
note 2, arts. 46-54.
[36] 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 J.R.V. Prescott, Maritime Jurisdiction in East Asian Seas (Occasional Paper No. 4 of the East-West Center Environment and Policy Institute, 1987).
[37] See, e.g., 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).
[38] Japanese pursued this ship on December 22, 2001,
thinking that it was engaged in drug trafficking or spying. (U.S. satellites photographed the ship
leaving a port in southern North Korea.)
The ship fled at high speed, four Japanese coast guard vessels caught up
to it and surrounded it and then fired a shot across the bow. After the mystery vessel fired back, the
Japanese fired directly at the ship, crippling its engine room and sinking the
ship. Japanese divers eventually
recovered two badly composed bodies from the sunken ship plus a
rocket-propelled grenade launcher. Spy
Ship Theory Gains Weight: Sunken Vessel May Have Been Engaged in Drug
Trafficking, The Daily Yomiuri, May 5, 2002; Faster SDF Response on Seas
Urged, The Daily Yomiuri, April 12, 2002.
[39] Ji Guoxing, Maritime Jurisdiction in the Three
China Seas: Options for Equitable Settlement (Institute of Global Conflict
and Cooperation, UCSD, Policy Paper No. 19, Oct. 1995).
[40] 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).
[41] Agreement Concerning Joint Development of the
Continental Shelf Adjacent to the Two Countries of 30 January 1974, in Jonathan
I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries
(1993).
[42] See, e.g., Oude Elferink, supra note
12, at 313-14.
[43] North Korea claims sovereignty over these five islands. See Gao Zhigao, Tasks of Maritime Cooperation in Northeast Asia: A Northeast Asian Perspective, in 7th International Seapower Symposium IV-5, IV-13 (Republic of Korea Navy and SIAS, Seoul National University, 2001)(citing Hyun-ki Kim, Korean Maritime Security and the Issue of the Five Northwest Islands, in The Regime of the Yellow Sea: Issue and Policy Options for Cooperation in the Changing Environment 101 (Seoul: Computer Press, Choon-ho Park et al., eds., 1990)).
[44] Sonni Efron, N. Korea Unilaterally Shifts
Maritime Border, L.A. Times, Sept. 3, 1999, at 1, col. 3 (nat’l ed.).
[45] Mark J. Valencia and Jenny Miller Garmendia, Work to Resolve the Maritime Conflict, International Herald Tribune, Dec. 17, 1999.
[46] S. Korea Fires on Vessel from North, Honolulu
Advertiser, June 24, 2001; Yonhap News Agency, South Boat to Be Disciplined
for 27 May Maritime Incursion, July 3, 2001.
[47] Yonhap News Agency, Two North Patrol Boats Cross
South Sea Border, BBC Monitoring Asia Pacific – Political, April 22,
2002.
[48] Oude Elferink, supra note 12, at 318, 389
(map).
[49] See generally Daniel J. Dzurek, Deciphering
the North Korean-Soviet (Russian) Maritime Boundary Agreements, 23 Ocean
Development & Int’l L. 31 (1992).
[50] Oude Elferink, supra note 12, at 320-21,
388-39 (maps).
[51] Id. at 310.
[52] See, e.g., Choon-Ho Park, The Korea Strait,
in International Navigation: Rocks and Shoals Ahead? 173 (Jon M. Van
Dyke, Lewis M. Alexander, and Joseph R. Morgan eds. 1988).
[53] Sang-Myon
Rhee, Accommodating Conflicting Claims in the Northwest Pacific, in International
Navigation: Rocks and Shoals Ahead? 326, 328 (Jon M. Van Dyke, Lewis M.
Alexander, and Joseph R. Morgan eds. 1988).
[54] The language of Article 38(1) is quoted supra
in note 30.
[55] Ji Guoxing, Confidence-Building Measures in Sea
Lines of Communication of the South China Sea (East-West Center 2001).
[56] Article
11 of the Marine Traffic Safety Law of the People’s Republic of China (January
1984); see generally Jin Zu Guang, Conflicts Between Foreign Ships’
Innocent Passage and National Security of the Coastal States, in International
Navigation: Rocks and Shoals Ahead? 111 (Jon M. Van Dyke, Lewis M.
Alexander, and Joseph R. Morgan eds. 1988).
[57] Sang-Myon Rhee, supra note 53, at 327;
Jin-Hyun Paik, supra note 22, at 101-03.
[58] Sang-Myon Rhee, supra note 53, at 327.
[59] Law on the Provisional Measures Relating to the
Fishing Zone (Law No.31), May 2,1977.
[60] Tsuneo Akaha, Japanese-South Korea Fishery
Agreement: Pursuing Pragmatic Interests Without Compromising Sovereignty, in
Law of the Sea: The Common Heritage and Emerging Challenges 249, 251
(Harry N. Scheiber ed. 2000).
[61] See
generally Masahiro Miyoshi, New Japan-China Fisheries Agreement, 41
Japanese Annual of International Law 30 (1998).
[62] Japan, China Set Fishing Conditions for 2000, Jiji
Press English Service, May 18, 2000.
[63] Japan, China Fail to Agree on 2001 Fishing Quotas, BBC Monitoring Asia Pacific – Political, Jan. 16, 2001.
[65] Id.
[66] Japan-Republic of Korea Agreement on Fisheries of 28
November 1998, entered into force Jan. 22, 1999; revised March 17, 1999.
[67] Akaha, Japan-South Korea Fishery Agreement, supra
note 60, at 253-54.
[68] 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).
[69] Lessons from Fisheries Row, Korea Herald, March 23, 1999; Chon Shi-yong, South Korea: Vice Maritime-Fisheries Minister Sacked Over Korea-Japan Pact, Corruption Scandal, Korea Herald, April 30, 1999; Son Key-Young, Fisheries Pact with Japan Angers Korean Public, Korea Times, Sept. 28, 1998, at 1.
[70] Agence France Presse, China Denounces Japan-South
Korea Fisheries Pact, Jan. 22, 1999.
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.
[71] Yonhap News Agency, South Korea Fails to Win
Major Changes in Fisheries Treaty with Japan, March 17, 1999.
[72] Associated Press, Japan, S. Korea Reach Fisheries
Agreement, Feb. 5, 1999.
[73] See supra text accompanying note 21.
[74] Yonhap News Agency, South Korea, China Fishing
Agreement to Go into Effect 30 June, June 27, 2001.
[75] See supra text accompanying notes 16-20.
[76] Mark J. Valencia, Sea Links: Ways and Means of North-South Korea Fisheries Co-operation, at 10.
[77] Agence France Presse, South-North Korean Fishermen’s Accord in Troubled Waters, Feb. 28, 2000.
[78] Valencia, Sea Links, supra note 76.
[79] Id.
[80] Agreement Concerning Joint Development of the
Continental Shelf between Japan and Korea, Jan. 30, 1978, reprinted in
Choon-Ho Park, Joint Development of Mineral Resources in Disputed
Waters: The Case of Japan and South
Korea in the East China Sea, in The South China Sea: Hydrocarbon Potential and Possibilities of
Joint Development 1335 (Mark J. Valencia ed. 1981); Masahiro Miyoshi, The
Japan-South Korea Agreement on Joint Development of the Continental Shelf,
in Geology and Hydrocarbon Potential of the South China Sea and
Possibilities of Joint Development 533 (Mark J. Valencia ed. 1985);
Masahiro Miyoshi, The Joint Development of Offshore Oil and Gas in Relation
to Maritime Boundary Delimitation, Int=l Boundaries Research Unit, Vol. 2,
No. 5, at 12-14 (1999).
[81] BSAP and NOWPAP -- Now We Are 12, The Siren
(UNEP’s Oceans and Coastal Areas Program), No. 43, at 1 (Dec. 1991).
[82] Northwest Pacific Region Environmental Cooperation
Center, Project Outlines 2000, <http://www.npec.or/jp/english00/annai00.html>
(site visited July 6, 2001).
[83] The continued growth of naval fleets in East Asia is described in Anthony Bergin, East Asian Naval Developments – Sailing into Rough Seas, 26 Marine Policy 121 (2002).
[84] Mark J. Valencia, Road to Asian Security May
Begin at Sea, Honolulu Star-Bulletin, April 11, 2001, at A21, col.1.
[85] Daniel Smith, Japanese to Continue Questioning
U.S. Officer, Honolulu Star-Bulletin, June 30, 2001, at A12, col.6.
[86] RTHK Radio 3 Audio Web Site, China Allows US
Warships to Visit Hong Kong Again, July 9, 2001.
[87] Bjorn Moller, Military Aspects, in War or
Peace in the South China Sea? 69 (Timo Kivimaki ed. 2001).
[88] Associated Press, U.S. to Retain Size of Asia
Forces, Honolulu Advertiser, July 20, 2001. Admiral Blair also stated that “North Korea has the capability to
fit [its missiles] with weapons of mass destruction warheads as well as with
conventional warheads.” Id.
[89] See Jean-Marc F. Blanchard, The U.S. Role
in the Sino-Japanese Dispute over the Diaoyu (Senkaku) Islands, 1945-1971, The
China Quarterly, No. 161 (March 2000), at 95.
[90] Don Kirk, Seoul Nudges North Toward New Talks,
N.Y. Times, June 17, 2001, at A10, col. 4 (nat’l ed.).
[91] With Its Buildup, China Aims to Rattle Taiwan and
Deter U.S. Role, N.Y. Times, April 8, 2001, at A8, cols. 1-2 (nat’l ed.).
[92] See, e.g., Ralph Cossa, Do We Need So Many
Surveillance Flights? Honolulu Star-Bulletin, April 18, 2001, at A21,
col.1.
[93] Carolyn Skorneck, China Protests Sale of Arms to
Taiwan, Honolulu Star-Bulletin, April 24, 2001, at A12, col.2.
[94] For a survey of maritime regimes around the globe and lessons learned from them that might be applied to Northeast Asia, see Mark J. Valencia (ed.), Maritime Regime Building: Lessons Learned and Their Relevance for Northeast Asia (2001); see also Mark J. Valencia, Regional Maritime Regime Building: Prospects in Northeast and Southeast Asia, 31 Ocean Development & International Law 223 (2000).
[95] See supra text and notes accompanying
notes 4-20.
[96] Case Concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. U.S.), 1984 I.C.J. 246.