[VIEWPOINT]Molehills at sea can be mountains

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[VIEWPOINT]Molehills at sea can be mountains

On April 18, the Korean government sent a notice to the United Nations entitled “The declaration of optional exceptions from the legal procedures to settle the dispute.”
According to the declaration, Korea will refuse international trials for three cases regarding the maritime border issue: A combination of the land border and territorial problem, military activities and the involvement of the United Nations Security Council.
The measure has been taken according to the procedure defined by the United Nations Convention on the Law of the Sea.
While some speculate that Korea might lack confidence if it ends up in the maritime court during negotiations over Japan’s plan to conduct a deep-sea survey near Dokdo, 24 leading maritime nations, including Britain and France, have all sent similar notices at one time or another.
Thankfully, Korea and Japan were able to eke out an agreement over the islet after over 10 hours of negotiations, but it is merely a stop-gap measure. According to the U.N. Convention on the Law of the Sea, “an island is a naturally formed area of land, surrounded by water, which is above water at high tide.”
Though experts around the world wrote the convention after 15 years of discussions, some clauses are still vague.
Ambiguity was unavoidable in the course of coming to an agreement on the nearly 100 clauses at the international conference.
Still, the convention also states that rocks which cannot sustain human habitation or economic life on their own shall have no exclusive economic zone or continental shelf.
If the tiniest island is acknowledged as a base, setting a 400 nautical mile exclusive economic zone, it can lord over 430,000 square kilometers (267,000 square miles) of sea.
Even useless desert islands could be of enormous value, with 200 nautical miles of continental shelf.
The history of fishing disputes between Korea and Japan goes back centuries ― the first fishing agreement was made in 1442. From around that time on, the two countries have clashed over the issue.
The current dispute over Dokdo started in 1952, when Korea proclaimed the “Peace Line.”
Due to the nationalistic sentiments among Koreans and Japanese, the two nations have argued over their interpretations of international law many times, and the discord is likely to continue.
The Peace Line issue passed on to the 1965 fisheries agreement, and then to the 1998 agreement. It was to follow a global trend of declaring exclusive economic zones in nearly all seas and oceans even before the adoption of the U.N. Convention on the Law of the Sea.
However, because of controversy over their territories, Korea, China and Japan have not yet been able to establish the boundaries for the exclusive economic zones.
Therefore, the new fisheries agreement of 1998 was a temporary measure and not an agreement on the EEZ boundary.
However, this has been mistaken for an agreement on the border, and some Koreans ignore the universal standard according to maritime law and make self-tormenting interpretations.
The most notable case is the argument that Dokdo falls into the “midway water” and therefore, Korea’s dominion has been restricted.
Even the Constitutional Court, the highest institution producing the authoritative interpretation of the law, ruled otherwise in March 2001, and most international legal scholars agree.
Nevertheless, people come to hasty conclusions before reading the 1998 agreement, and furthermore, make their own interpretations of foreign precedents.
During major elections, politicians shamelessly exploit the issue.
The United Nations Convention on the Law of the Sea contains over 520 articles and clauses, including a dozen supplementary provisions and annexes. Each article goes on for seven pages.
The insiders at the international maritime legal circle joke that anyone who claims to know the “constitution of the sea” is a liar.
Politicians are fooling citizens by creating a sense of crisis that Dokdo would soon be taken by Japan if not for their valiant resistance.
The negotiation over the EEZ boundary ultimately boils down to the issue of dominion, and therefore a fundamental resolution is hard to find.
Before sitting down at the negotiation table, the Korean government needs to meticulously review foreign precedents, such as the dispute between Vietnam and China over the Gulf of Tonkin and the disputes over an island on the Persian Gulf.
However, we need to remember that in few other cases have nationalistic and sentimental confrontations between the opposing parties been involved, and this is the point at which the Dokdo dispute becomes complicated.

* The writer is a judge of the International Tribunal for the Law of the Sea and a professor emeritus at Konkuk University.

by Park Choon-Ho
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