Dam discharge raises international legal issues

South Korea’s Foreign Ministry is investigating whether North Korea breached international laws when it released the dam water that caused the lethal flash flood on the Imjin River last Sunday.

Ministry spokesman Moon Tae-young said yesterday the ministry was “closely examining” the incident with other relevant government agencies. A conclusion could be reached as early as today.

The flood at Yeoncheon, Gyeonggi, claimed six South Korean lives. North Korea, which gave no prior notice that a dam would be opened, has yet to respond to the South Korean request for an apology.

On Wednesday, South Korean Unification Minister Hyun In-taek said the North may have intentionally released the water.

Kang Myung-il, deputy director of the ministry’s international legal affairs department, explained the customary law, in its simplest terms, “dictates that a state may not harm another state in exercising its rights.”

“The North was free to release water from its dam on the river as it wished, but we sustained damage from that action,” Kang said.

But according to Kang, there is no international court that can rule “definitively and authoritatively” on a customary law that is not written.

“The judgment comes down to a general practice of states,” he said. “But if the Koreas can’t come to an agreement, there’s virtually nothing that can be done, although a third party may take it to the International Court of Justice [provided that the two Koreas agree to it].”

The United Nations in 1997 adopted a relevant measure, called the Convention on the Law of the Non-navigational Uses of International Watercourses. It has not gone into effect, however, because it requires 35 signatories and only 17 nations have joined. The two Koreas are not among the 17 and are thus not bound by it.

If the Koreas had joined and the convention had been effective, it would have been easier to determine the North’s responsibility. Article 7 of the document says that watercourse states “shall .?.?. take all appropriate measures to prevent the causing of significant harm to other watercourse states.”

Article 12 also says “a watercourse state shall provide those states with timely notification thereof” before implementing measures that could have “a significant adverse effect” on others.

As government officials tried to establish the legal grounds for the North’s action, surviving families of the flood victims and fish farmers in Yeoncheon demanded compensation.

The talks between families and the Korea Water Resources Corp. broke down late Wednesday night, as they couldn’t narrow their differences on compensation and liability issues. Hyun, the unification minister, said Wednesday that he would consider asking the North for compensation after discussing the matter with relevant agencies.

North Korea has never previously compensated South Korea for citizen deaths in incidents it was involved in.

Fish farmers lamented the loss of equipment and tools in the flood. Gyeonggi provincial government estimated that fishermen around the Imjin River have lost about 130 million won ($106,210) worth of gear.

In addition, the flood has cost them about 20 days of the king crab season, which is rapidly approaching.

By Yoo Jee-ho [jeeho@joongang.co.kr]