In addition to Mr. Brendan Whyte's Korean border and Korean border-2,
and to comment on Korean Border-5, here are some supplementary
informations and comment.
1. What is the Korean sea border, named "Northern Limits Line" which was
branded as "ill-legal and invalid" in the North Korean unilateral
declaration ?
This is the cease-fire line, unilaterally designated by the U.N. Command
in the western sea area of korean peninsula at the end of the Korean
War.
Actually, throughout the whole proceedings of the Korean War, there had
not been any substantial Communists' naval forces confronting against
the UN naval forces. "The line of contact" in the sea war theatre
therefore, had been the marginal lines of the northern part of the
Korean Military Defense Zone, the naval blockade area declared and
maintained by Commander-in-Chief UN Command, General Mark
Clark.(Latitude 39¡Æ35' in the east, 41¡Æ51' in the west,
respectively.) "All opposing naval forces shall respect the waters
contiguous to the De-militarized Zone and to the land area of Korea
under the military control of the opposing side." [Article 2. Section
15, The 1952 Korean Armistice Agreement.] Consequently, the sea area
could have only been demarcated according to the land demarcation line,
virtually ignoring any UN forces' superiority in air and sea. This was
the exact results what the Communists' negotiating tactics expected and
had won eventually.
To implement this accord, the UN Command had to have its forces retreat
from all islands and waters which it had occupied and controlled, from
the Estuary of Apllock River in the west; Latitude 41¡Æ51', and that of
Tuman River in the east; Latitude 39¡Æ35', way down to the 38th parallel
and then had to adjust the cease-fire line in the sea area to the land
demarcation line. To do this, the Commander-in-Chief, UN Command had
designated the Northern Limit Line (NLL) in the west coast, and the
Northern Boundary Line (NBL) in the east coast.
Generally speaking, in an armistice agreement, the cease-fire line -no
matter whether it be on land or on the sea- is one of the most
indispensable elements as much as the intention of suspending the
hostilities. The indispensable elements in the contents of an armistice
agreement could be summarized as; ¨ç the suspension of hostilities, ¨è
effective date and time, ¨é duration, ¨ê demarcation line (the
cease-fire line) and neutral zone, ¨ë prohibited acts, ¨ì prisoners of
war, ¨í return of civilians and commercial intercourse, ¨î consultative
machinery and ¨ï miscellaneous politico-military matters. [The Law of
Land Warfare, U.S. Army, Basic Field Manual (Washington, July 1956),
Para. 487-488.; Howard S. Levie, "The Nature and Scope of the Armistice
Agreement," 50 AJIL (1956) 888-900.]
However, all those indispensable elements are not necessarily prescribed
in an armistice agreement in some manifested manner. In other words,
there is no fixed rule or custom which prescribes what provisions should
or should not be included in an armistice agreement. [ Clunet,
"Suspension d'armes armistice, Preliminares de paix," 46 Journal du
droit international prive 173 (1919); Howard S. Levie, Loc. cit.,;
Fauchille, Traite de droit international public, (8th ed. Bonfils.
Paris.1921), Vol.¥±, p.326. ]
And no matter whether the parties specifically provide therefor or not,
a general armistice does result in a complete cessation of active
hostilities. That is, it results in a cease-fire and there results a
cease-fire line established. Without a cease-fire line be established,
by definition, there would be no armistice. And once a cease-fire line
has been established, it should be respected by the both parties of the
armistice agreement. [1907 Hague Convention ¥³. Respecting the Law and
Customs of War on Land, Annex Regulations Article 40.]
As far as the unique Korean War situations are concerned, the NLL in the
west, or NBL in the east, have been crystallized as the fait accompli
cease-fire line in the sea area, with the implementation of the
armistice agreement. So any attempt to trespassing these lines, by one
of the parties would give the other party the right of denouncing it and
even in case of urgency, of recommencing hostilities immediately.
[Article¥°. Section 7, Article2. Section 13, 15. The 1952 Korean
Armistice Agreement.] As far as the NBL in the east of Korean peninsula
is concerned, even the North Korea has never disputed its validity as a
fait accompli cease-fire line.
2. What does make the North Korea "abruptly" dispute the validity of the
NLL, the 46 years old fait accompli cease-fire line ?
This sea border issue resurfaced when the two Koreas exchanged gunfire
last June after North Korean fishing boats and torpedo boats trespassed
this NLL and intruded into southern area for a few consecutive days.
South Korean naval boats have tried to persuade them to retreat,
desperately. The North Korean boats opened fire against south Korean
ships and triggered the armed engagement on June 15. About 30 North
Korean sailors were believed to have died, with one North torpedo boats
sunk and several others severly damaged.
Technically speaking, however, this is not an "abrupt" dispute.
Since October 1973, when the North Korean invaded this line, making so
called, "the Western Sea Incidents", South and North Korea have often
experienced nerve-racking disputes on jurisdiction in the sea area
around the five western coastal islands (Paengyong-do, Taechong-do,
Sochong-do, Yonpyong-do and U-do).
Thanks to the fact that the 1953 Korean Armistice Agreement does not
have any clear provisions articulating the sea demarcation line, North
Korea attempted to break this status quo line by sending patrol boats
intentionally trespassing this line, about 43 times consecutively during
two months periods, October and November, 1973.
The North Korean's assertion at the 346th Military Armistice Commission
Meeting which was held on December 1. 1973 to discuss the "Western Sea
Incidents", could be interpreted and summarized as that the sea
demarcation line in the Yellow Sea area between the two parties of the
Korean Armistice Agreement should not be the Northern Limit Line which
was designated by the Commander in Chief, UN Command, and had been
crystallized as a status quo boundary line but the hypothetical
extension line extended parallel to the Latitude from the end of the
provincial boundary line between Whanghaedo and Kyong- kido.
Such far-fetched assertion from North Korea in the 346th MAC Meeting, as
demanding the prior authorization for entering the vicinity of the five
western islands, might have seemed to be an unexpected blow, even though
it has never been acquiesced by the UNC side, thereafter. But this
notorious North Korean assertion was revived again in 1992, at the
Military Subcommittee to implement the Non-aggression provisions in the
South-North Basic Relations Agreement, discussing the Associated
Protocol, pertaining to the Article 11.
In this particular Article 11, it is prescribed as that "the South-North
demarcation line and areas for non-aggression shall be identical with
the Military Demarcation Line specified in the Military Armistice
Agreement of July 27, 1953 and the areas that have been under the
jurisdiction of each side until the present time". Article 11 of the
1992 South and North Basic Relations Agreement has special meanings for
the sea communications between South and North Korea. The relationship
between the South and North is defined in the 1992 Basic Agreement as a
special interim relationship stemming from the process towards
unification. During this special interim period in the process towards
ultimate unification, the South and North Korea are supposed to respect
each other's political substantiality. They are also supposed to respect
each other's fait accompli jurisdiction area.
To implement Article 11 of The South and North Basic Relations Agreement
and to delimit the sea demarcation line of the non-aggression area
between South and North Korea, the most relevant demarcation line in the
Yellow Sea area which clarifies "the areas that have been under the
jurisdiction of each side until the present time" should be
approximately identical with the Northern Limit Line (NLL). But the
Military Subcommittee which was convened to discuss the separate issue
pertaining to non-aggression, had difficulties in fixing sea demarcation
line due to North Korean's abrupt but worn-out assertion about this
"provincial boundary line". [Proceeding Minute, The 5th Session, The
South and North Military Committee (June 19, 1992). Ministry of National
Unification.]
The North Korea's third attempt to defy the NLL in the recent unilateral
declaration, was basically on the same worn-out strategical theory. But
this time, their "provincial boundary line" assertion has been
drastically changed and deliberately modified comparing with the first
and second one.
Now they asserted that the sea demarcation line should be the extension
line from the end of the provincial boundary line between Whanghaedo and
Kyong- kido extended, "not parallel to the Latitude," but as a line
protruding deep into the gulf of Kyongki which constitutes the
forefront of Seoul, the capital city of the South Korea, connecting some
arbitrary equidistant points between the corresponding islands
controlled by the either parties respectively.
3. What shall be the first hand legal appraisal upon the North Korean's
new sea demarcation line assertion?
With the same old provisions of 1953 Korea Armistice Agreement, the
North Korean interpretations have obviously been changed from their
original "provincial boundary line" assertion. Needless to say about the
inconsistency of the North Korean's own legal stance in connection with
the sea demarcation line, their newly redesigned theory seems to be
based on the assumption that the legal relations between the two Koreas
could be taken as a relationship between ordinary opposite or adjacent
states. But South and North Korea both have recognized that their
relations not being a relationship between "states", but constitute a
special interim relationship stemming from the process towards
unification in the Preamble of the 1992 Basic Relations Agreement. So
any sea boundary between the two Koreas could never be delineated
applying a simple equi-distance criterion.
Since the North Korean's assertion is based on the interpretation of the
Korean Armistice Agreement, the analysis to arrive a fair judgement for
this dispute should also be started by interpreting the relevant
provision, Article 2, Section 13 paragraph (b), which reads:
Within ten days after this Armistice Agreement becomes effective,
withdraw all of their military forces, supplies, and equipment from the
rear and the coastal islands and waters of Korea of the other side. If
such military forces are not withdraw within the stated time limit, and
there is no mutually agreed and valid reason for the delay, the other
side shall have the right to take any action which it deems necessary
for the maintenance of security and order. The term "coastal islands",
as used above, refers to those islands which , though occupied by one
side at the time when this Armistice Agreement becomes effective, were
controlled by the other side on 24 June 1950; provided, however, that
all the islands lying to the north and west of the provincial boundary
line between Whanghae-do and Kyongki-do. shall be under the military
control of the Supreme Commander of the Korean People's Army and the
Commander of the Chinese People's Volunteers, except the islands groups
of PAENGYONG-DO (37¡Æ58'N, 124¡Æ40'E), TAECHON-DO (37¡Æ50'N, 124¡Æ42'E),
SOCHONG-DO (37¡Æ46'N, 124¡Æ46'E), YONPYONG-DO (37¡Æ38'N, 125¡Æ40'E), and
U-DO (37¡Æ36'N, 125¡Æ58'E), which shall remain under the military
control of the Commander-in-Chief, United Nations Command.
A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty. [Article 31.
1969 Vienna Convention on the Law of Treaties.] Any special meaning
which is established by a proviso clause is to be confined to that
particular part of provision. This is a general rule of treaty
interpretation. Any special meanings which would possibly be
established by the proviso should be interpreted as modifying supplement
based on and developed from the above-mentioned primary text.
¡Ú In Article 2, Section 13. Para.(b), ¡ºthe primary text¡» is:
both opposing sides shall withdraw all of their military forces from the
rear and the coastal islands and waters within 10 days after the entry
into force of the armistice agreement. .
The term "coastal islands and waters" here means those islands and
waters which were occupied and controlled by the other side on 24 June
1950.
Consequently, the Communist side should withdraw its military forces
from all the islands and waters which are located below the 38th
parallel, while UNC side should withdraw its military forces from those
islands and waters which are located above 38th parallel within 10 days
after the entry into force of the armistice agreement as long as such
obligations are not exempted by any modifying proviso, based upon the
principle of Uti posidetis.
The very important point of this provision is that the 38th parallel is
still the main reference line in demilitarization. This formula in
deciding the cease-fire line, faithfully based on the principle of
status quo ante bellum is precisely coincident with the original
Communists' stance.
¡Ú In Article 2, Section 13. Para.(b), ¡ºthe proviso¡»is : all the
clauses following "provided however".
Adopting the principle of Uti possidetis by this proviso, only some
parts of the Communist's obligations to withdraw up northwards the
respective forces above the reference line of the 38th parallel, are to
be modified and exempted to the hypothetical "line of contact" which
shall be eventually formed by taking into account the five islands
groups under the actual control of the UN Command. The five western
islands, namely, Paengyong-do, Taechong-do, Sochong-do, Yonpyong-do and
U-do were occupied and controlled by South Korean army, the 17th
Regiment of the 1st Division, at about the conclusion of the armistice
talks.
This was the main compromising accord which had been arrived between the
two competing negotiation parties in regards to the cease-fire line
issue at the armistice talks. Among other things, this Article 2.
Section 13, Para. (b) itself is the stark evidence of such accord. [See
also, Foreign Relations of the U.S., Volume 7, p.1413.; William H.
Vatcher, Jr., Panmunjum; The Story of the Korean Military Armistice
Negotiations (New York: Praeger,1958),pp.73-81.]
The descriptions of the latter part of the proviso in Section 13, Para.
(b) are nothing but a cautionary and descriptive clause to define the
limits exempting the communist's original obligation of retreats.
"All the islands lying to the north and west of the provincial boundary
line between Whanghae-do and Kyongki-do. " which are under the 38
Parallel, should be under the military control of the UN Command by the
principle of status quo ante bellum. But the communist's original
obligation of retreats has been exempted by the principle of Uti
posidetis and they shall remain under the control of the Communists. The
limits exempting the communist's original obligation of retreats should
be the hypothetical "line of contact" which shall be eventually formed
by taking into account the five islands groups under the actual control
of the UN Command. This is a matter of course reasoning particularly in
the basic logic of an armistice agreement.
When it says that "all the islands on the west coast of Korea lying
south of the above-mentioned boundary line shall remain under the
military control of the Commander-in-Chief, United Nations Command," in
the Korean Armistice Agreement Article 2. Section 13, Para. (b), the
above-mentioned boundary line could mean the provincial boundary line
between Whanghae-do and Kyongki-do. But this could not justify the
North Korean assertion as that the sea demarcation line prescribed in
this particular provision is the hypothetical extension line extended
parallel to the Latitude from the end of the provincial boundary line
between Whanghae-do and Kyongki-do. Because even with this awkward
clause, the marginal line of exempting the communist's original
obligation of retreats shall be the hypothetical "line of contact" which
shall be eventually formed by taking into account the five islands
groups under the actual control of the UN Command.
Indeed, this clause is so awkward that some misinterpretations could be
induced. The drafter of the Korean Armistice Agreement seemed to be so
much concerned with this worse possibility that in the attached
Reference Map-3 of the Korean Armistice Agreement, he put the clarifying
"Notes" that the purpose of the line A-B (provincial boundary line) is
solely to indicate the control of coastal islands on the west coast of
Korea and the line has no other significance and non shall be attached
thereto. [ REFERENCE MAP-3. ¡ºControl of Coastal Islands on the West
Coast of Korea¡». Notes: (1)].
Now, even with all such awkward descriptions, the Article 2, Section 13
Para.(b) could be interpreted properly as logically explained above, if
it were not from any wicked intention. Such "misinterpretation" of this
provision like the North Korean's original assertion could never be
sustainable. In recent redesigned claims which is still far-fetched and
unreasonable, the North Korea has abandoned this "misinterpretation".
In conclusion, to implement Article 11 of The South and North Basic
Relations Agreement and to delimit the sea demarcation line of the
non-aggression area between South and North Korea, the most relevant
demarcation line in the Yellow Sea area which clarifies "the areas that
have been under the jurisdiction of each side until the present time"
should be approximately identical with the Northern Limit Line (NLL).
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