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[Lee Jae-min] Equitable share of maritime zone

Equity is an elusive concept. It means the fairest outcome under the circumstances taking all relevant factors into consideration. 

A perfect standard, but achieving it is easier said than done. When the concept is applied to a particular case, everyone interprets it to his or her own advantage. It’s almost like everyone has their own standard of equity.

One of the areas where this concept of equity is employed is the delimitation of the Exclusive Economic Zone between two adjacent states: the 1982 UN Convention on the Law of the Sea stipulates an “equitable principle” in delimiting the EEZ.

What this exactly means defies any attempt at generalization. The principle has been interpreted to mean that all things relevant to the adjacent states should be taken into account to reach the most equitable solution. So, as a legal concept, it does not reveal much.

At any rate, this is the principle to be followed in the new round of negotiation between Korea and China to delimit their EEZs in the Yellow Sea and part of the East China Sea.

The negotiation has just been resumed after seven years of cessation. The 14 rounds of previous negotiations between 1996 and 2008 had proved how difficult it was to bring the two parties from respective ends of the spectrum of their own understanding to an “equitable outcome” in dividing the maritime zone.

The two countries’ differing views on delimitation have been known for some time now. China has consistently said that as a country with a greater population and landmass surrounded by longer coastlines, it is entitled to a bigger share of the EEZ in the Yellow Sea, to which Korea has responded that the most equitable solution here, as with any other case, is to meet half way, a concept called a median line principle.

Prior decisions of international tribunals indicate that populations and coastlines are sometimes factors to be considered, but only in exceptional situations, and that most of the time delimitation starts from a median line. Come to think of it, most equitable solutions in many situations would be to meet in the middle, or at least to start a discussion from that line.

In any event, the two countries will now present their own views of an equitable share of the maritime zone. How the two countries’ positions have or have not evolved since 2008 is a point of interest.

Another interesting, though important, issue is how the negotiation will (or will not) affect the maritime delimitation between China and North Korea, as a sizable maritime area in the Yellow Sea falls under the North Korean authority. North Korea and China have yet to conclude a pact delimiting the maritime zones between them, other than the 2005 China-North Korea Joint Offshore Petroleum Development Agreement. What has been sporadically apparent is that North Korea also seems to claim a median line principle.

Likewise, one of the likely flash points of the new negotiation will be Ieodo (Socotra Rock), a submerged reef south of Jejudo Island on which Korea has installed and is operating a marine research center. China’s new Air Defense Identification Zone of 2013 includes the Ieodo area as part of its own ADIZ, despite that the aerial area is also covered by Korea’s own ADIZ. So, here again the views of the two countries will collide when this issue is brought up.

A report issued by the Congressional Research Service of the U.S. Congress last September offers a general description of China’s strategy in dealing with maritime issues with neighboring states. One of the interesting points in the report is China’s preference to bring the issue “on a bilateral basis” as much as possible, where it can have “a potential upper hand.” Unquestionably, the resumed negotiation will be as difficult and elusive as ever. The goodwill and friendship between the two countries accumulated over the years, including the free trade agreement most recently, are now to be tested through the difficult negotiation.

By Lee Jae-min

Lee Jae-min is an associate professor of law at Seoul National University. — Ed.