- The Washington Times - Friday, January 10, 2003

HONOLULU A South Korean naval craft fired warning shots Nov. 20 at a North Korean patrol boat that crossed the disputed maritime border in the Yellow Sea.
Two violent clashes already had erupted between North and South Korean armed vessels there on June 15, 1999, and on June 29, 2002. Given the high tension between the two Koreas, these incidents were serious and had international repercussions.
In South Korea and the West, the naval clashes generally were viewed as deliberate provocations by a belligerent North Korea. What actually sparked the incidents were legitimate differences over the validity of the Northern Limit Line (NLL) and its appropriateness as a maritime boundary between the two Koreas.
This dispute has existed for years, but has been exacerbated by competition for the highly valued blue crabs that spawn in that vicinity in June and July.
The brief battle in June 1999 began when a North Korean gunner opened fire on a South Korean boat that had been ordered to ram a North Korean vessel.
At least 30 North Korean sailors were killed, and a North Korean torpedo boat was sunk. Four other North Korean vessels were damaged. At least five South Korean patrol ships also were damaged and nine sailors wounded. This incident was followed by recriminations from both sides.
On Sept. 2, 1999, the North Korean People's Army General Staff issued a communique declaring the NLL invalid, and specifying a maritime Military Demarcation Line (MDL) in the Yellow Sea running considerably to the south of the NLL. The communique said North Korea would defend the MDL with military force.
On June 29 last year, a major naval clash broke out between Republic of Korea and Democratic People's Republic of Korea naval patrol boats. A North Korean boat with heavy-caliber weapons sank a South Korean patrol boat, killing five South Korean sailors and wounding 22. A DPRK warship was seen being towed north in flames.
In the aftermath, North Korea argued that it had never recognized the NLL, that it had challenged the boundary on many occasions, and that the line deprived North Korea of its rightful waters and a full 12-nautical-mile territorial sea, which it had claimed since March 1955.
South Korea maintained that North Korea had recognized the NLL implicitly on several occasions most recently when it signed the 1992 Basic Agreement, which stipulated that "maritime areas for non-aggression shall be identical with those over which each side has exercised jurisdiction until the present time."
Article 10 of their Protocol on Non-aggression provides that "the South-North sea non-aggression line shall continue to be discussed in the future."
Seoul argued that the NLL could not be discussed except in a comprehensive agreement to bring permanent peace to the Korean peninsula. South Korea then stated that it would maintain and defend the NLL as the de facto maritime border between the two Koreas.
Domestic critics in South Korea attacked the defense ministry's slow and restrained response to the June 29 incident, saying it failed to fulfill its duty to defend the nation. The South Korean navy eventually said it had mishandled the encounter because of incorrect field command reports and fear of North Korea's anti-ship Styx missiles. The acknowledgement led to the replacement of the defense minister.
On the international front, the incident caused both South Korea and the United States to back away from contacts with Pyongyang. Although South Korean President Kim Dae-jung said he would continue his "sunshine policy" toward the North, he bluntly warned North Korea against any further incidents.
Mr. Kim also approved a more aggressive policy for the South Korean military, allowing it to open fire after only one warning shot while blocking North Korean vessels.
Meanwhile the North Korea Foreign Ministry warned that another naval clash was likely unless South Korea and the United States took action to change the "unfair" maritime boundary. The North Korean People's Army also demanded talks on a new border in the Yellow Sea.
Although North Korea has expressed regret over the incident and offered to restart reconciliation talks with the South, the issue remains an open sore.
Given the confrontational and seemingly unpredictable behavior of North Korea that preceded the incidents, Western journalists and politicians were quick to condemn its actions as just another tactic in negotiations with the United States over aid, North Korea's nuclear capability and missile testing.
But this dispute is more than two-dimensional and goes beyond ideology.
The blue crab is the primary fisheries resource of interest in that area of the Yellow Sea. South Korea's peak fishing season is short, extending from May 1 to July 15.
South Korean fishers catch 3,300 tons of crab one-third of South Korea's total crab catch near Yongpyong Island. For cash-strapped North Korea, blue-crab fishing in the Yellow Sea is one of its major sources of hard currency.
North Korean patrol gunboats escort their fishing boats, which compete with South Korean vessels for these crabs along the disputed sea boundary. The 1999 sea battle occurred in the same waters, also during crab season, as fishing vessels jockeyed for position, protected by their navies.
At the center of the dispute is the status of the NLL, drawn unilaterally on Aug. 30, 1953, a little more than a month after the Armistice Agreement of July 27, by the U.S.-led U.N. Command as a seaward extension of the Military Demarcation Line running through the 4-kilometer-wide demilitarized zone (DMZ) separating North and South Korea.
The original purpose of the NLL was to prevent South Korean naval vessels from harassing North Korea, which then had a small navy. More recently, the line has become a convenient means for South Korea to prevent North Korean fishing boats from competing with their fishers. It also keeps North Korean naval boats bottled up north of the NLL.
The NLL is equidistant between five South Korea-occupied islands and the North Korean coastline. The Armistice Agreement stipulates that the five islands are under U.N. jurisdiction, which in effect means they are under South Korean control. Jurisdiction over the waters surrounding them is open to interpretation.
The NLL has been increasingly viewed by North Korea as an infringement on its sovereignty and legitimate access to the sea. The NLL is not mentioned specifically in the text of the Armistice Agreement, making its status even more contentious.
The NLL is likely to remain in place until the two Koreas can reach agreement to end their state of war or agree on a new boundary.
However, the line would not be supported as a maritime boundary under the "equitable principles" that have evolved from international precedents based on Articles 74 and 83 of the 1982 U.N. Law of the Sea Convention. The NLL denies North Korea legitimate access to its adjacent sea areas and resources and sharply limits North Korea's access to ocean resources, running close to North Korea's Onjin Peninsula, thus violating the principle of "nonencroachment."
According to legal precedents and international practice, South Korea's islands would not have an equal capacity with North Korea's land mass to create maritime zones.
So how can these two bitter enemies avoid future conflict over crabs?
One solution is for South and North Korea to delineate a demilitarized fishing area in the Yellow Sea. The maritime border area would be a buffer zone where neither Korean navy could enter, and access for fishing would be available for both sides. Management of the resources would be joint. This buffer zone may extend from the NLL in the north to North Korea's declared MDL in the south, excluding the waters within perhaps 3 miles of the five South Korean islands.
Another answer is for South Korea and North Korea to establish joint fishing zones in the Special Maritime Zones declared unilaterally by South Korea in seas offshore the DMZ. Fisheries issues in the East Sea/Japan Sea include shared stocks and lack of an agreed boundary, leading to inefficient use of the resource and potential conflict.
A joint fishing zone would allow North Korea to catch squid, sardine, saury and mackerel on the South Korean side of a median line, while South Korea could fish the desirable and increasingly scarce Alaska pollack on the North Korean side of the line. The broader advantages of a joint fishing zone would be the rational use of resources, increased benefit to fishers, a stable fishing environment, and the building of trust and confidence between the two Koreas.
A third alternative would be for the two Koreas to designate the Special Maritime Zones as conservation regions.
Virtually all the major fisheries resources of the Yellow Sea are fully exploited. Although total catch has been steady or increasing slightly, catches of particularly valued species have declined. Conservation would protect existing fish stocks and enhance stocks in adjacent areas.
But the two sides cannot agree even on who should discuss the issue and in what forum. Nevertheless, the Armistice Agreement stipulates that both sides should resolve problems through negotiations, and Pyongyang clearly wants to negotiate a new maritime boundary.
All is relatively quiet in the Yellow Sea now, but more clashes can be expected when the blue crab season rolls around in May and June unless a mutually satisfactory formula can be found to negotiate for equitable access for both Koreas.
Mark J. Valencia is a senior fellow at the East-West Center in Honolulu, and Jon Van Dyke is a professor at the University of Hawaii's William S. Richardson School of Law. Jenny Garmendia, a degree fellow at EWC, also contributed to this report. For other information, contact John H. Williams, public information officer, by e-mail at [email protected].

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