By Stephen Gowans
There has been a lot written about the escalating tensions on the Korean peninsula, tensions touched off by the South’s firing artillery shells into disputed waters in the Yellow Sea. Much of the commentary—including my own–has only tangentially addressed the key issue: how the United States’ unilateral drawing of a sea border in 1953 has thrust both sides into the position of having to continually climb to the brink of war to enforce overlapping claims to territorial waters.
The author of this tragedy—as so many other tragedies in Korea– is Washington. At the end of the Korean War, the United States and North Korea agreed that five islands, including Baengnyeong Island, in whose shallow waters the South Korean warship Cheonan sank in March, and Yeonpyeong Island, at the center of the recent exchange of artillery fire between the two sides, would remain under the South’s control. But they did not agree on a maritime demarcation line. The United States wanted to base the line on a three-nautical-mile limit, then the norm, while the North insisted on a 12-nautical-mile limit, which, by the 1970s, would become the standard in international customary law. The United States unilaterally drew a demarcation line, called the Northern Limit Line, based on a three-nautical-mile limit. In 1955, the North claim territorial waters based on a 12-nautical-mile limit.
Baengnyeong Island is only 10 miles from the North Korean coast but 120 miles from the South Korean mainland! Yeonpyeong Island is only eight miles from North Korea, and is home to a garrison of 1,000 South Korean marines. By the standards of international customary law, both islands belong to the North.
Having created a basis for unending conflict by unilaterally imposing a western maritime frontier, Washington has ensured that the intersection of the two side’s claimed territorial waters has been the site of numerous clashes. In 1999, the two Koreas’ warships skirmished over their competing maritime territorial claims. In the battle, two North Korean warships were sunk and 30 North Korean sailors lost their lives. Seventy were wounded. In clashes in 2002, a South Korean warship sank, with six lives lost. In November of last year, a North Korean naval vessel went down in flames after a battle with a South Korean warship. In March, the South Korean corvette Cheonan sunk off Baengnyeong Island, only 10 miles from the North Korean coast. The South accused the North of torpedoing the ship, but Pyongyang vehemently denied the charge. That North Korea would sink a South Korean warship operating close to its coast—that any country would attack a warship of a hostile state operating in its waters–is not implausible. Seoul’s charge that the North was the culprit therefore had a ring of truth to it, but there is evidence which points to the ship either running aground or hitting an old mine. In August, the North fired 110 artillery rounds near Yeonpyeong. And only weeks ago a South Korean warship fired warning shots at a North Korean fishing vessel that had crossed the Northern Limit Line. “This is a no man’s land,” observes Korea scholar Bruce Cumings. “You have an incident waiting to happen.”
The key to why the North and South regularly clash in these waters lies in the choices Washington’s unilateral border fixing inevitably create. Pyongyang and Seoul can either enforce sovereignty over their overlapping territorial claims through military means. Or not, in which case they cede sovereignty. The North could avoid confrontation with the South if it simply accepted the Northern Limit Line. Likewise, the South could avoid confrontation with the North, if it accepted a sea border based on international customary law. But neither side plans to capitulate, and so both sides carry out military activity in waters the other slide claims as its own. Failing to do this—and choosing not to respond to the other side’s provocations—would amount to an implicit recognition that the waters belong to the other side.
This can be seen in two incidents that happened roughly one year apart. Late last year, the North threatened to fire artillery into the disputed waters. The South denounced the threat as a brazen provocation, and warned that it would respond resolutely. Seoul’s agitation, reported The New York Times, was sparked by concern that if the North carried through with its threat it would “enforce its claims to an area currently held by the South.” The only way the South could contest the North’s sovereignty enforcement action was to counter-attack. Failing to do so would implicitly recognize the North’s territorial claim to the waters.
Last month, the roles were reversed. Now it was the South threatening to fire artillery into the same waters and it was the North denouncing the planned action as an abominable provocation. And the North’s reason for agitation was exactly the same as the South’s one year earlier. As the North Korean Foreign Ministry explained on November 24: “The ulterior aim sought by the (South) is to create the impression that the (North) side recognized the waters off the islet as their ‘territorial waters’, in case that there was no physical counter-action on the part of the former. “
In both cases, the firing of artillery into the disputed waters was seen as a sovereignty enforcement action by the other side. In order to counter the claim—and enforce its own sovereignty over the waters–the other side had to respond militarily. This is so because, by definition, a country’s boundaries represent the area in which its government exercises a monopoly over the legitimate use of violence. The clashes in the Yellow Sea can be viewed as one side trying to demonstrate that it exercises a monopoly over the use of force in the contested area, and the other side trying to do the same.
As we know, the South did fire into the disputed waters, provoking a North Korean response, as Seoul surely knew must come. Indeed, the North had issued stern warnings that it would retaliate. While some news reports said the South fired toward the North, thus making the provocation all the more flagrant, Pyongyang acknowledged that, on the contrary, the South fired away from the North Korean mainland, but still “inside the territorial waters of the (North) no matter in which direction (the South Korean shells were) fired.”
Being based on international customary law, the North’s claim to the disputed waters is superior to that of the South, which rests on an outdated norm, and Washington’s unilateral border fixing. Pyongyang has urged Washington repeatedly to sign a peace treaty to replace the armistice which brought open hostilities to an end in 1953—and which leaves the two Koreas technically at war. Settling the disputed western sea border would be part of a formal peace. But Washington regularly rejects Pyongyang’s pleas for an official end to the war. After one such request, then Secretary of State Colin Powell replied, “We don’t do non-aggression pacts or treaties, things of that nature.” And after the latest skirmish, Washington rejected China’s call for discussions to defuse the tensions. Instead, it escalated tension by dispatching the aircraft carrier George Washington to conduct joint military exercises with South Korea in the Yellow Sea, including in waters China declares as its own.
In 1945 Washington drew a border bisecting Korea. It later set up a puppet government in the South to crush the People’s Committees that Koreans had organized to govern their country after decades of Japanese colonial rule. The People’s Committees were allowed to thrive in the North, and in 1948 formed the basis of a new government led by Kim Il-Sung, a famed guerilla leader who had fought the Japanese. In the South, Washington restored Japanese collaborators to positions of prominence. Divided by Washington, the two Koreas, one anti-imperialist, fiercely independent and progressive, the other a near fascist state of collaborators with Japanese colonialism and later U.S. neocolonialism, were set against each other. And so they remain today, and will remain, regularly climbing to the brink of war in the Yellow Sea as the North challenges a unilaterally imposed sea border—one at odds with international customary law–and the South seeks to enforce it.