Dear Members of Int-Boundaries,
I am a new subscriber to this forum.
My name is Jintae Jung and I am an public official of the Ministry of National
Defense(MND), ROK. I am in charge of public relations.
When I searched the Northern Limit Line(NLL) of Korea in the web, I was very
surprised that the web only reported the articles announced by the North
Korea. I thought the members of Int-Boundaries must knows the accurate fact of
NLL. I want the members of int-Boundaries must have the balanced opinion of
NLL.
I would like to provide you the article concerning the NLL which was announced
by the Ministry of National Defense, Rok, as following: The Unjustness of
North Korea's Claim on the West Sea Sea Demarcation Line and the Position of
the Republic of Korea.
If you have any questions, please contact me to the below address:
Tel: (82)-2-748-6711
Fax: (82)-20-748-6718
Email: [log in to unmask]
from http://www.mnd.go.kr
The Unjustness of North Korea's Claim on the West Sea Sea Demarcation Line and
the Position of the Republic of Korea
September, 1999
Arms Control Bureau
Table of Contents
1. Introduction (Purpose of this Article)
2. Summary of North Korea's Claims
3. Groundlessness of North Korea's Claims
A. Criticism on the Claim that the NLL is Illegal
B. Criticism on the Claim that "the sea demarcation
line is a matter for North Korea and the United
States to discuss"
C. Criticism on So-called "West-Sea Sea Military
Demarcation Line" of North Korea
4. Our Position
A. Summary of Our Position
B. Justness of the NLL
C. The Justness of South-North Discussion on the
New Sea Demarcation Line
1. Introduction (Purpose of this Article)
¡Ý At the General Officers Talks held since the Yonpyong Naval Engagement,
North Korea has claimed that the Northern Limit Line ("NLL") cannot be
recognized and, therefore, must be abandoned. Then on September
2, North Korea, through a declaration by the Korean People's Army General
Staff, unilaterally declared so-called "Chosun Sea Military Demarcation Line"
and threatened to take various self-defense measures to defend the above Sea
Military Demarcation Line.
¡Ý This article intends to show historical facts and reliable sources
regarding the unjustness and falsity of North Korea's claims and reveal why
the NLL is the proper sea demarcation line. We intend to prevent
misunderstandings and baseless guesses by certain people who sympathize with
the North Korean position.
2. Summary of North Korea's Claims
¡Ý North Korea's claims regarding the West Sea Sea Demarcation Line can be
summarized as follows:
-First, considering the volatile situation in the West Sea, there must be an
immediate establishment of a sea demarcation line. The NLL is an illegal line,
established by the UNC unilaterally; therefore, it cannot be recognized as a
demarcation line.
-Second, the matter of the West Sea Sea Demarcation Line is a matter of the
Armistice Agreement. Therefore, this matter must be discussed between the
United States and North Korea, who are parties to the Armistice Agreement, and
ROK representatives may be included in the working-level discussions.The
argument that this matter must be discussed at the Joint Military Commission,
which does not even exist today, makes no sense..
-Third, pursuant to the Armistice Agreement and international law, the West
Sea Sea Military Demarcation Line must connect the end of the extension of the
provincial boundary between Hwanghae-do and Kyonggi-do, the equidistant points
between South and North Korea and the Chinese territorial waters, and the area
to the north of this line must be designated as Sea Military Control Zone. The
right of self-defense regarding the Sea Demarcation Line will be exercised
through various means and methods.
3. Groundlessness of North Korea's Claims
A. Criticism on the Claim that the NLL is Illegal
North Korea's first claim, that the NLL cannot be recognized because it was
unilaterally established by the UNC, is a groundless claim which disregards
the historical fact that (1) the sea demarcation line was not established
during the armistice talks because of North Korea's demands; (2) North Korea
did not raise any objections until 1973 because the NLL benefited North Korea,
as well; (3) North Korea clearly recognized and accepted the existence of the
NLL; and (4) although North Korea raised objections from time to time in the
last 46 years, North Korea has, in effect, recognized and abided by the NLL.
(1) North Korea is responsible for not establishing the sea demarcation line
during the armistice talks.
¡Ý The reason that the sea demarcation line was not established during the
armistice talks was because North Korea demanded such. At the discussions on
coastal waters, which were held at the end of January, 1952, the UNC argued
for a 3-mile standard pursuant to the prevailing international law at the
time, and the communists argued for a 12-mile standard because they were
concerned about the naval blockade by the UNC. The UNC argued that such
concern was groundless because Article 15 of the Armistice Agreement prohibits
any naval blockade, but the communists refused to give in and demanded the
deletion of the entire article relating to the sea demarcation line. The UNC
finally accepted the communists' demand, and the provisions related to the sea
demarcation line was not included in Article 13, Paragraph b of the Armistice
Agreement. The final agreed wording is as follows:
(Article 13, Paragraph b of the Armistice Agreement)
"The Commanders of the opposing sides shall within ten (10) 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...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 HWANGHAE-DO and KYONGGI-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 island
groups of PAENGYONG-DO, TAECHONG-DO, SOCHONG-DO, YONPYONG-DO AND U-DO, which
shall remain under the military control of the Commander-in-Chief, United
Nations Command..."
(2) North Korea did not raise any objections to the NLL because it benefited
North Korea, as well.
¡Ý During the armistice talks, the communist side obtained the jurisdiction
over the coastal islands of Hwanghae-do below the 38th parallel from the UNC.
The UNC, which controlled not only Hwanghae-do, but the entire coastal waters
of North Korea, retreated from all coastal islands above the 38th parallel and
gave to North Korea the jurisdiction over the islands near the mainland
Hwanghae-do, except the strategically-important five-island group. North
Korea, which only controlled the inhabited islands nearest to Hwanghae-do,
ended up controlling many islands with the signing of the Armistice Agreement.
However,North Korea could not control its coastal waters because it did not
have any significant naval power, and such situation was a very dangerous one
for North Korea.
¡Ý Under these circumstances, the UNC unilaterally gave away the waters under
our control in order to faithfully carry out Article 13 and Article 15 of the
Armistice Agreement. Then on August 30, 1953, the UNC established the current
NLL as a line limiting the United Nations Forces' northern control in order to
prevent an armed conflict.
¡Ý Although the NLL was unilaterally established by the United Nations
Commander, it was a line useful for preventing a direct clash between the
military forces of South and North Korea and for maintaining peace and
stability in this region. Therefore, the NLL was a line greatly appreciated by
North Korea whose naval power was insignificant at the time.
This was the reason why North Korea did not raise any objections to the NLL
for almost 20 years after it was established until the so-called West Sea
Crisis in 1973.
(3) North Korea clearly recognized and accepted the existence of the NLL.
¡Ý Furthermore, North Korea claims that it cannot recognize the NLL because
North Korea never received any notification thereof. However, this, too,
cannot be justified. If we examine North Korea's behavior after NLL was
established, we can only conclude that the NLL was notified directly or
indirectly to North Korea. Furthermore, there is an undeniable evidence that
North Korea understood and recognized the NLL in the 1959 Yearbook of North
Korea in which North Korea described the NLL as the military demarcation line.
KCNA.jpg
(4) North Korea abided by the NLL for the past 46 years.
¡Ý If we consider that North Korea has recognized and abided by the NLL for
the past 46 years, despite its occasional protests, because it prevented an
outbreak of another war and protected North Korea, North Korea's claim that it
cannot recognize the NLL cannot be understood.
-The attitude of North Korea towards the NLL was a very careful in the
beginning. From time to time, North Korea intruded to the south to attack our
naval vessels and kidnap fishing boats, but in general, North Korea recognized
our jurisdiction. North Korean intrusions to the south of the NLL were only
temporary, and we have defended this area consistently. Although North Korean
naval vessels intruded in 1962 and exchanged fire with our naval vessels, such
occurrences were exceptional, and usually, North Korean vessels retreated back
to north when our vessels warned them of their intrusion.
-Between October and November of 1973, North Korea caused the so-called West
Sea Five Islands Crisis and objected to the NLL by intentionally intruding the
NLL 43 times (approximately 60 ships), which had so far been functioning very
well as a demarcation line to maintain the status quo. However, considering
that North Korea had never objected to the NLL for 20 years from 1953 to 1973,
such actions could only be regarded as ungrateful acts which ignored the
historical background and functions of the NLL. Of course, we have responded
strongly to these intrusions and put an end to the crisis, and the NLL was
maintained.
¡Ý There were numerous instances of North Korea's recognition and abiding of
the NLL. Some of the more important examples are the following.
< Example #1>
At the 168th Military Armistice Commission meeting, held in May, 1963, there
was a dispute as to the location of the engagement of a North Korean spy
vessel. The UNC showed a map on which the NLL was shown and protested the
intrusion of the North Korean spy vessel. The communist side claimed that the
same vessel was, at the time, located to the north of the NLL, thereby
indirectly admitting that the NLL existed and that North Korea was abiding by
the NLL.
Example 1.jpg
< Example #2>
Between September 29, 1984 and October 5, 1984 when the North Korean Red Cross
sent us relief items for the flood victims, the escort fleets of the both
sides consisting of naval vessels, such as patrol boats, which could only
operate within their respective jurisdictions under the Armistice Agreement
and international law, relieved each other upon the NLL. This was just another
example of North Korea recognizing the NLL as an effective sea demarcation
line.
Example 2.jpg
< Example #3>
South and North Korea exchanged their opinions on the sea demarcation line at
the time the South-North Basic Agreement was entered into in 1991. At that
time, North Korea recognized the NLL as the sea demarcation line of
non-aggression between South and North Korea. At the Fifth High Level Talks on
the South-North Basic Agreement, our draft stated, "The area of non-aggression
at sea shall be the areas that each side has exercised jurisdiction since the
Armistice Agreement became effective," and North Korea suggested, "The
demarcation line of non-aggression shall be the Military Demarcation Line
provided in the Military Armistice Agreement and the areas that each side has
exercise jurisdiction over until the present time." The parties eventually
agreed to a wording similar to North Korea's draft, that is, "the Military
Demarcation Line provided in the Military Armistice Agreement and the areas
that each side has exercised jurisdiction over until the present time."
Therefore, both sides recognized not only the Military Demarcation Line,
defined in the Armistice Agreement, but also the areas that each side has
exercised jurisdiction since the Armistice Agreement. (Article 11)
After the Talks, the spokesperson for North Korea stated, "South wanted to
draw a line taking into account not only this Demarcation Line Military
Demarcation Line], but also the coastal islands and other things. We accepted
their position," thereby, recognizing in effect the NLL.
< Example #4>
In May, 1993, we announced the Flight Information Region adjusted to reflect
the NLL in the ANP published by ICAO. However, North Korea did not raise any
objections until January, 1998 when the new Flight Information Region became
effective and even after it became effective. A Flight Information Region does
not define the relevant country's territory and territorial waters; however,
it provides a duty to search and rescue regarding crashed aircraft. Therefore,
the Flight Information Region is generally established according to the areas
in which the relevant country can exercise jurisdiction. Therefore, such
non-objection shows that North Korea implicitly recognized the NLL.
Example 4.jpg
(5) Sub-Conclusions
¡Ý In conclusion, North Korea's claim regarding the non-recognition of the
NLL as the West Sea Sea Demarcation Line is groundless for the following
reasons.
¨ç The West Sea Sea Demarcation Line was excluded from the Armistice
Agreement pursuant to North Korea's demands.
¨è With the armistice, North Korea obtained coastal islands south and west of
Hwanghae-do below the 38th parallel, and we have exercised effective
jurisdiction over the five-island group in the West Sea under the UNC control
and the sea area below the NLL.
¨é Although the establishment of the NLL by the UNC Commander- in-Chief was a
unilateral establishment, the NLL prevented military conflic between South and
North and protected the North Korean navy which was extremely weak at the
time. Thus, North Korea, in effect, accepted the NLL.
¨ê North Korea did not raise much objections, other than temporary
intrusions, and even after North Korea officially raised its objection in
1973, the area to the south of the NLL was always under the jurisdiction and
effective control of our military, and North Korea has abided by the NLL.
B. Criticism on the Claim that "the sea demarcation line is a matter
for North Korea and the United States to discuss"
North Korea's second claim, that a sea demarcation line is a matter for the
parties to the Armistice Agreement, the United States and North Korea, to
decide through discussions, is a political idea ignoring our nature as a
party.
(1) North Korea's claim is a groundless claim which seeks to exclude the
ROK which was a party to the Korean War.
¡Ý North Korea makes this claim based on the provision in Article 61 of the
Armistice Agreement which provides, "Amendment and additions to this Armistice
Agreement must be mutually agreed to by the Commanders of the opposing sides."
However, amendment and additions to the Armistice Agreement refer to
relatively minor changes to the wording regarding the execution of the
Armistice Agreement. The matter of sea military demarcation line, which was
not provided in the Armistice Agreement, goes beyond amendment and additions
and is a major change. Therefore, such matter cannot simply be discussed and
decided by the commanders of the opposing sides.
¡Ý Under the prevailing theories of international law, the authority to enter
into an armistice agreement belongs not only to the commanders of the opposing
sides, but also to the government of the warring nation.
-In the Korean War, the UNC Commander-in-Chief had to be the representative
to lead the armistice talks and sign the Armistice Agreement because there
were 16 nations which participated in the war on our side. Although the
representative from the ROK did not sign the Armistice Agreement, the ROK is a
party to the Armistice Agreement because the ROK was a major party to the war.
-Furthermore, our position and reputation has grown very much in the last 46
years, and we have the will to talk and discuss actively with North Korea.
Under these circumstances, the claim that this matter must be resolved within
the framework of the Armistice Agreement and that this matter must be
discussed between the United States and North Korea, excluding the ROK, a
sovereign party, makes no sense legally and realistically.
(2) North Korea's claim is self-contradictory and attempts to nullify the
Armistice Agreement.
¡Ý If we consider that North Korea has tried to nullify the Armistice
Agreement throughout the 1990s, North Korea's claim is self-contradictory.
-When a ROK general was appointed as the chief representative of the UNC at
the Military Armistice Commission in March, 1991, North Korea refused to
attend the plenary meeting of the Military Armistice Commission.
In April, 1994, North Korea demanded to enter into a United States-North Korea
peace agreement to replace the Armistice Agreement, calling it a "peace
assurance system." North Korea withdrew its representatives to the Military
Armistice Commission and established the Korean People's Army Panmunjom
Representative Office. In 1993 and 1995, North Korea forced the Chinese
representative to the Military Armistice Commission and Czechoslovakian and
Polish representatives, who were serving as the communist members to the
Neutral Nations Supervisory Commission to withdraw, thereby completely
immobilizing the Military Armistice Commission and the Neutral Nations
Supervisory Commission, the most important supervisory bodies for the
supervision and management of the Armistice Agreement. Furthermore, in April,
1996, North Korea declared that it will no longer supervise the DMZ. As we can
see, North Korea has violated the Armistice Agreement and tried to neutralize
its effect.
-We categorically refuse the signing of the United States-North Korea Peace
Agreement which purports to exclude the ROK from the matters of the Korean
Peninsula. We believe that if the Armistice Agreement is nullified before an
alternative can be prepared, such will present a grave threat to the peace and
security in the Korean Peninsula. Thus, we are maintaining the Panmunjom
General Officers Talks between the UNC and KPA, a temporary Armistice
Agreement supervision body, as a channel for military discussions.
-In this regard, the fact that North Korea is now emphasizing the resolution
of the problem according to the Armistice Agreement is a positive development
in that North Korea has recognized once again the necessity of the maintenance
of the Armistice Agreement. At the same time, however, this action directly
shows North Korea's self-contradictory behavior.
(3) The ROK and North Korea have already agreed to discuss the sea
demarcation line between themselves.
¡Ý North Korea has already suggested that the matter of sea demarcation line
be discussed between South and North Korea, not between the United States and
North Korea, during the discussion on the Protocol on Nonaggression to the
Basic Agreement. At the March, 1992 meeting of the Subcommittee on Military,
North Korea suggested a draft stating, "The sea demarcation line of
nonaggression and the area in the West Sea shall be the demarcation line and
area that each side has exercised jurisdiction over until the present time,
pursuant to the relevant provisions of the Armistice Agreement" and
stated,"let us discuss and develop the specific measures to secure the
demarcation line of nonaggression at the South-North Joint Military
Commission."
In response, we argued that since there already were relevant provisions in
the Basic Agreement, a separate agreement was unnecessary. Due to this
difference of opinion, the final wording in the Protocol provides,
"Discussions regarding the South-North sea demarcation line of nonaggression
shall continue. Until the sea demarcation line has been finalized, the
nonaggression areas of the sea shall be those that have been under the
jurisdiction of each side until the present time." (Article 10) This was a
clear agreement on the temporary recognition of the NLL and that further
discussion on this matter must be between the ROK and North Korea.
-North Korea placed its signature on the Basic Agreement, Chapter 1, Article
5 of which provides, "South and North Korea shall together endeavour to
transform the present state of armistice into a firm state of peace between
the two sides and shall abide by the present Military Armistice Agreement
until such a state of peace is realized." North Korea now claims that there
are no channels for discussion between South and North and that South-North
discussions have already failed a long time ago. North Korea also wants to
discuss the matter of establishing the sea demarcation line between the United
States and North Korea at the Panmunjom General Officers Talks, which replaced
the Military Armistice Commission.
North Korea then refused our valid suggestion to organize and operate the
South-North Joint Military Commission, pursuant to the Basic Agreement, and to
discuss the South-North sea demarcation line of nonaggression. How can we
discuss anything with North Korea when North Korea insists on groundless
claims?
(4) Sub-Conclusions
¡Ý In conclusion, North Korea's demand for a United States-North Korea
discussion, disregarding the South-North discussions, on the West Sea Sea
Demarcation Line is groundless for the following reasons.
¨ç The matter of sea demarcation line is an important matter that goes beyond
the amendment and additions to the Armistice Agreement by commanders of
opposing sides. The ROK, as a warring party, has a right to participate in
such discussion.
¨è North Korea's attempt to resolve this problem in accordance with the
Armistice Agreement is a self-contradictory act in view of North Korea's
attempt to nullify the Armistice Agreement in the 1990s.
¨é At the discussion on the Protocol to the Basic Agreement, North Korea has
already agreed to resolutions through South-North discussions, such as the
South-North Joint Military Commission.
C. Criticism on So-called "West Sea Sea Military Demarcation Line" of North
Korea
North Korea's third claim, that is the declaration of the West Sea Sea
Military Demarcation Line using the equidistant points between South and North
Korea, is arbitrary and illegal.
(1) The "West Sea Sea Military Demarcation Line" violates the Armistice
Agreement.
¡Ý The declaration of the West Sea Sea Military Demarcation Line by North
Korea is a violation of the principle established by North Korea itself. As we
have seen above, North Korea had originally demanded 12-mile territorial
waters at the time of armistice talks, but later demanded not to include such
in the Armistice Agreement due to the differences in opinions with the UNC. In
March, 1955, North Korea decided its territorial waters would be 12 miles
through a cabinet resolution, although such was never propagated to the
outside world, and it would seem that North Korea continued to claim 12-mile
territorial waters because in May of the same year, North Korea's Ministry of
Fisheries made an announcement regarding the permission for our fishing boats
to fish in North Korea's "territorial waters." However, as we have discussed
above, at the plenary meeting of the Military Armistice Commission in
December, 1973, North Korea claimed that under the relevant provision of the
Armistice Agreement (Article 13), the entire area to the north and west of
Point A, which lies to the southeast of U-Do, is North Korea's coastal waters.
North Korea made the same claim during the discussions on the Protocol to the
South-North Basic Agreement in 1992. North Korea has also declared 200-mile
economic zone based on the median lines in July, 1977, and in August of the
same year, North Korea unilaterally declared that the boundary line of this
zone was the sea military demarcation line. On July 21, 1999, North Korea
declared at the Panmunjom General Officers Talks that the line connecting the
equidistant points between South and North Korea and China was the new sea
demarcation line under the Armistice Agreement and international law of the
sea and that the area to the north of such line would be North Korea's Sea
Military Control Zone. As one can see, North Korea has changed the name of its
jurisdictional area from "territorial waters" to "coastal waters" to "Sea
Military Control Zone" and continued to expand such area. Such claims clearly
show that North Korea's position and opinion on the West Sea sea demarcation
line is inconsistent and unclear.
¡Ý Let us examine the provisions in the Armistice Agreement regarding North
Korea's claims which has changed with the passage of time. As North Korea
argues, the Armistice Agreement (Article 13, Paragraph b) has a provision on
the provincial boundary between Kyonggi-do and Hwanghae-do. However, the map
attached to the Armistice Agreement (Map 3), which has the same effect as the
above provision, clearly provides that the above provincial boundary line
shows the control of the coastal islands in the West Sea, has no other
meanings and no other meanings can be attached thereto. Therefore, North
Korea's claim that the area to the north and west of Point A is its control
zone based on the Armistice Agreement and the attached map is contradicted by
the Armistice Agreement itself.
(2) The "West Sea Sea Military Demarcation Line" violates international law.
¡Ý North Korea claims that its position on the territorial waters and sea
military control zone is based on the international law of the sea. However,
this is only a very weak basis.
-First, North Korea is not qualified to claim territorial waters based on the
international law of the sea. Of course, the United Nations Convention on the
Law of the Sea is itself evolving into a customary international law binding
all nations. However, North Korea has not ratified the United Nations
Convention on the Law of the Sea and in fact is violating the Convention.
Under the Convention, the jurisdiction of a country is limited to the internal
waters and territorial waters, and with respect to the adjoining waters and
exclusive economic zone, only the economic activities and other limited
interests, such public health, are recognized.
However, in August, 1977, North Korea violated the United Nations Convention
on the Law of the Seas by announcing a sea military demarcation line which did
not conform to the provisions thereof.
-Second,even if North Korea's claim is based on the international law of the
seas, the claim itself is faulty. The United Nations Convention on the Law of
the Seas clearly provides that islands have their own territorial waters. The
five islands in the West Sea are clearly islands under the international law.
If we recognize the 12-mile territorial waters under the international law,
since the width of the area between the five islands in the West Sea and North
Korea does not exceed 24 miles, a sea demarcation line must be drawn following
the median line between North Korea and the five islands. The claim that the
five islands lie within North Korea's "coastal waters" or "sea military
control zone," disregarding the above principle, is certainly counter to the
international law, and ignoring the northwest island groups and claiming
jurisdiction over the area south of the NLL is an act clearly in violation of
the international law.
-Considering the provision of the United Nations Convention on the Law of the
Sea (Article 15) which states that the median line shall be recognized in
absence of a separate agreement on the territorial waters between adjacent
countries, the current NLL, which approximately connects the median points
between Hwanghae-do's coastline and the five islands, is a line which reflects
the principles of international law.
(3) Problems with the Equidistant Line Claim of North Korea
¡Ý There are some people who believes wrongly that North Korea's claim on
equidistant line is in conformity with the international law. However, such
claim completely disregards the existence of the five islands in the West Sea,
and therefore, must be rejected. Since the sea military zone, established by
North Korea in 1977, completely ignored the equidistance principle and was
established unilaterally, North Korea's claim this time around is inconsistent
and self-contradictory. There may be disputes among international law scholars
on whether the sea demarcation line between South and North Korea can be seen
as a problem between two adjacent countries and therefore decided based on the
equidistant line principle. There is an argument that since the ROK and North
Korea are both members of the United Nations, international law should apply
to matters between South and North Korea. However, South and North Korea have
already agreed officially in the Basic Agreement that they are in a temporary
special relationship formed in the course of reunification. Furthermore, the
Korean Peninsula is not completely at peace. It is in a state of cease-fire,
and the Korean War has not officially ended. The United Nations Convention on
the Law of the Sea (Article 298) provides that a country may make a
reservation regarding disputes of military nature. Thus, the prevailing view
is that the United Nations Convention on the Law of the Sea cannot apply in
its entirety.Therefore, the sea demarcation line in the West Sea should not be
resolved by the median line concept in the international law of the sea.
(4) Sub-Conclusions
¡Ý North Korea's unilateral claim on the West Sea Sea Demarcation Line,
allegedly based on the Armistice Agreement and international law of the sea is
counter to the principles of international law for the following reasons.
¨ç The claim that the five islands in the West Sea lies within the coastal
waters of North Korea under the Armistice Agreement is false according to the
provisions of the Armistice Agreement themselves.
¨è North Korea's claim that it determined the West Sea Sea Demarcation Line
based on the definitions of territorial waters and median line is counter to
the international law ignoring the five islands which have territorial waters
of their own and considering that North Korea is violating the United Nations
Convention on the Law of the Sea.
¨é Considering the "special relationship" between South and North Korea, the
unilateral application of international law is an act violating the existing
mutual agreement.
4. Our Position
A. Summary of Our Position
¡Ý Our position on the NLL and West Sea Sea Demarcation Line is as follows.
-First, we have effectively exercised jurisdiction over the NLL so far, and
the NLL is an effective sea demarcation line because it has maintained its
function and effect as a sea demarcation line. Until a new sea demarcation
line is agreed upon, the NLL must be maintained, and the NLL is not open for
negotiations.
-Second, if a new sea demarcation line needs to be determined, such
discussion must take place at the South-North Joint Military Commission in
accordance with the spirit and terms of the South-North Basic Agreement.
B. Justness of the NLL
Our first opinion, that the NLL is an effective sea demarcation line, is
justified historically, realistically and under the international law.
(1) Historical Justification
¡Ý Although the NLL was established unilaterally by the UNC Commander-
in-Chief, its establishment separated the forces of South and North Korea and
prevented armed conflict at sea thereby performing an important role ensuring
stability and security in the Korean Peninsula. As we have seen above, our
forces were strictly forbidden to cross the NLL, and North Korea has generally
abided by the NLL with only occasional exceptions. Considering North Korea's
raising of objections from time to time, the NLL may not be a perfect sea
demarcation line under the international law, but there is no doubt that this
line has a historical significance.
(2) Realistical Justification
¡Ý If we assume the non-existence of the NLL, we can see better the importance
of the NLL.
-Right now, North Korea is claiming a sea military demarcation line that goes
beyond the seas near the five islands in the West Sea and crosses the Kyonggi
Bay in the southwesterly direction.
-From the time of the Armistice Agreement, the United States has recognized
only 3 miles as coastal waters, and thus, recognized only 3 miles from North
Korea near the five islands and considered the rest of the area as
international waters. However, since the NLL matter surfaced, the U.S. has
taken the position that the NLL has been abided by historically and that the
NLL has functioned effectively for the past 46 years as reducing military
tension between South and North Korea, and therefore, North Korea must
recognize the realities of the NLL.
Furthermore the UNC made it clear to North Korea that the UNC will not
recognize the unilaterally-declared sea military demarcation line, that until
there is a new agreement through the South-North Joint Military Commission,
the current NLL is, in effect, a sea demarcation line, and that North Korea's
intrusion across the NLL for any reason shall be considered a provocation.
-If the NLL is ignored, the ROK and UNC naval vessels will sail close to
North Korea, and the North Korean naval vessels will move deep into the south
of the five islands. Both sides will not tolerate the other side's intrusion
into the area which each claims to be its territorial waters or jurisdictional
area. There will be frequent contact between the navies and air forces of both
sides, and North Korean spy vessels will easily sail into the ROK. Therefore,
for the management of the Armistice Agreement, the NLL must be maintained and
recognized as a matter of reality.
(3) Justification under the International Law
¡Ý The NLL is a line established in accordance with the Armistice Agreement
and the international law. As we explained above, the NLL was established by
the UNC Commander-in-Chief in place of a sea demarcation line which was
excluded from the Armistice Agreement pursuant to the communists' demand. It
was unavoidably established in order to prevent the armed conflict between
both sides and for the stable management of the Armistice Agreement. This was
a re-working of an item which could not be determined due to a significant
difference in opinions but which was required by the necessities of reality.
It is completely in conformity with the principles of the Armistice Agreement.
-Furthermore, the NLL was established following the median line principle
under the international law of the sea relatively well. The NLL was drawn
using the approximate median points between the five islands and North Korea.
There may be an objection from the international law scholars that the
distance between Yonpyong-do and Sochong-do is 47 miles, and therefore,
violates the 24-mile limit under the international law of the sea. However,
China and Japan have territorial waters which exceed 24 miles, and if the NLL
is broken in the middle, Yonpyong-do and Paengyong-do become completely
isolated thereby threatening their security. Thus, the line was drawn as a
single line in consideration of military necessity. The United Nations
Convention on the Law of the Sea also recognizes such exceptional cases of
military necessity.
C. The Justness of South-North Discussion on the New Sea Demarcation Line
Our second opinion, that the establishment of a new sea demarcation line must
be discussed between South and North Korea, is an item already agreed upon by
South and North Korea and is in conformity with the spirit of the
international law.
(1) South-North discussion has already been agreed upon.
¡Ý As we mentioned earlier, South and North Korea have already agreed in the
Basic Agreement and the Protocol thereto that the discussion on the sea
demarcation line of non-aggression shall continue. (Article 10, Protocol)
North Korea is refusing such discussion because the South-North Joint Military
Commission is not operating. However, North Korea is responsible for it. Since
November, 1992, North Korea has refused any South-North discussion under the
Basic Agreement and has responded to very limited governmental discussions
only. Therefore, it is self-contradictory to refuse the South-North discussion
because of the non-operation of the Joint Military Commission of which the
responsibility lies with North Korea.
(2) South-North discussion is in conformity with the spirit of the
international law.
¡Ý North Korea's claim that the establishment of a new sea demarcation line
must be discussed between the United States and North Korea as an extension of
the Armistice Agreement is in opposition with North Korea's attempt to nullify
the Armistice Agreement if we consider the claim in terms of the additions and
amendment clause in the Armistice Agreement (Article 61). If we consider the
claim in terms of the U.S.-North Korea peace agreement, such claim is directly
in opposition to the principle of resolution between the parties to the Korean
Peninsula matters. As widely known, the signing of a peace agreement, which
would completely replace the Armistice Agreement, must take place between the
relevant governments, and such is also a requirement of a treaty ending a war
or a peace treaty in general. Such is also in conformity with Article 60 of
the Armistice Agreement on political discussions. The ROK government is
legally and realistically a warring party in the Korean War, and the August,
1953 resolution of the General Assembly of the United Nations designated the
ROK government as the party to the political discussion which would conclude
the peace treaty. The fact that we are the main party to the 1954 Geneva talks
and the Four-Party Talks since 1997 proves our point.
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