Jump to Content Jump to Main Navigation
Max Planck Encyclopedia of Public International Law [MPEPIL]


Deok-Young Park

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 February 2019

Armed conflict — Maritime boundaries — Refugees — International trade

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Introduction

In the aftermath of the Japanese occupation which ended with Japan’s defeat in 1945, Korea was divided at the 38th parallel north. Due to the failure of joint trusteeship over Korea between the former Soviet Union and the US, two separate governments were established (see also United Nations Trusteeship System). The history of South Korea therefore formally begins with the establishment of a South Korean government on 15 August 1948.

B. Brief History of the Rivalry between South Korea and North Korea

South Korea (the Republic of Korea) and North Korea (the Democratic People’s Republic of Korea) have technically remained at war since the armistice of July 1953 (Korean War [1950–53]). The Korean peninsula remains divided by a heavily fortified demilitarized zone. After a long period of military rule, South Korea finally stabilized into a liberal democracy with the beginning of the Sixth Republic in 1987. Also, relations with North Korea had warmed considerably with North Korea’s acceptance of the proposal for exchange between the two countries in 1990, which resulted in high-level talks.

In 1991, the Joint Declaration of the Denuclearization of the Korean Peninsula (‘Joint Declaration’) and the Agreement on Reconciliation, Non-Aggression, and Exchanges and Co-operation between South and North Korea (‘Non-Aggression Pact’) were agreed upon. On 31 December 1991, South Korea adopted the Joint Declaration, which covered independent solutions to nuclear disputes between South Korea and North Korea. The Joint Declaration, which came into force on 19 February 1992, called for a bilateral nuclear inspection regime to verify the denuclearization of the Korean peninsula. The two countries declared that they ‘shall not test, manufacture, produce, receive, possess, store, deploy or use nuclear weapons’ (at para. 1) and they ‘shall not possess nuclear reprocessing and uranium enrichment facilities’ (at para. 3). The Non-Aggression Pact sets forth the principles involved in unification, addressing the two countries’ mutual intentions to engage in multifaceted exchanges to end the ongoing state of political and military confrontation between them. It was considered the first major step toward unification of the two countries.

Relations between the two countries had further improved considerably in the later years, with the ‘Sunshine Policy’ pursued by the former South Korean president Kim Dae-Jung extending aid to the impoverished North as a way to facilitate reconciliation. Despite the continuation of the Sunshine Policy, its support was questioned and waned in the later years of the administration. South Korea’s President Lee Myung-Bak altered the government’s former approach to North Korea, preferring a more conservative strategy in the wake of increased provocations from North Korea. President Lee cut off aid and refused to give in to North Korea’s demand for concessions, saying North Korea must first give up its nuclear programmes in return for economic aid.

In 2009, North Korea announced that it was ditching the Non-Aggression Pact and all other peace agreements with South Korea, in an apparent attempt to use the threat of an armed clash to press South Korea to give up its hard-line stance. North Korea further announced that it would no longer respect a disputed sea border line with South Korea. In March 2010, relations between the two countries were further strained by the sinking of a South Korean naval vessel (the Cheonan), which the investigation group led by international experts concluded was due to the explosion of a North Korean torpedo. And in November 2010, a bombardment took place in Yeonpyeong in response to regular South Korean artillery exercises. The Sunshine Policy was eventually declared a failure by the South Korean Ministry of Unification in November 2010.

C. North Korea and South Korea in the International Community

1. North Korea and South Korea in the United Nations

South Korea and North Korea simultaneously became members of the UN in 1991. The two countries submitted separate applications for UN membership. North Korea initially opposed the separate UN memberships of the two countries, contending dual membership in the UN services would perpetuate national division. Instead, North Korea proposed a single-seat membership formula based on its one-Korea policy, ‘Confederal Republic of Koryo’, as a transitional step to reunification. However, North Korea’s proposal revealed its limits and South Korea’s dual membership formula gained full support from other Member States given the realities of the divided countries. The UN accepted and legitimized the two countries as two separate but equal Member States and the two countries were admitted by UN General Assembly Resolution 46/1 of 17 September 1991.

2. South Korea in the OECD

South Korea became a Member State of the Organization for Economic Co-operation and Development (OECD) on 12 December 1996, a step regarded as the country’s resolution to participate in the construction of a new architecture for international economic governance. As of 1 January 2010, South Korea has formally become the 24th member in the Development Assistance Committee (‘DAC’) of the OECD. Since the OECD was established in 1961, South Korea is the first former aid recipient to join the DAC, a remarkable breakthrough for the country. According to the OECD Report, the country’s official development aid to developing countries was up 5.8% in 2011 from one year earlier. This placed South Korea as the 17th largest donor country in the world. The country’s official development assistance divided by its gross national income stood at 0.12%, placing the country 22nd among DAC countries in relation to economic size.

3. South Korea in the Group of 20

The Group of 20 (‘G20’), comprised of the 20 main developed and emerging countries, is the key global steering committee for coordinating global economic policy and cooperation. As these countries jointly lead the change in the global order, South Korea serves as a bridge between the developed and emerging countries through its own experiences. The 2010 fifth G20 Summit, entitled ‘Shared Growth beyond Crisis’, took place in Seoul, South Korea. Significantly, it was the first summit to be held in a country not member of the Group of Eight (G8) and South Korea’s chairmanship of the G20 has raised its profile in the global economy.

D. Addressing Concerns Arising from the United States–South Korea SOFA

A status of forces agreement (‘SOFA’) between South Korea and the US was established by the Agreement under Article IV of the Mutual Defense Treaty regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (Status of Armed Forces on Foreign Territory Agreements [SOFA]). The negotiations started in 1962 after the Korean War and the US and South Korea signed the SOFA in July 1966. The agreement, which concerns the treatment of US forces in South Korea (‘USFK’), was approved and enacted in 1967. However, crimes against South Koreans perpetrated by the USFK military personnel, including killings of teenage girls, rape, and robbery, caused emotional controversies and occasionally led to clashes between the USFK and South Koreans. The heated anti-American sentiment eventually led to revisions of the agreement.

10 The US–South Korea SOFA is mainly composed of 31 articles, agreed minutes, agreed understandings, and exchange of letters. It also contains memoranda of understanding and agreed views approved by the US–South Korea Joint Committee. The agreement prescribes definitions, utilities, and services (Art. VI), respect for local law (Art. VII), entry and exit (Art. VIII), customs and duties (Art. IX), access of vessels and aircraft (Art. X), and other important provisions related to members of the US armed forces. In particular, Art. XXII US–South Korea SOFA specifies the applicable criminal jurisdiction procedures, and its textual unfairness has been criticized for a long time (see also Criminal Jurisdiction of States under International Law).

11 Art. XXII (2) US–South Korea SOFA provides that:

  1. (a)  The military authorities of the United States shall have the right to exercise exclusive jurisdiction over members of the United States armed forces or civilian component, and their dependents, with respect to offenses, including offenses relating to its security, punishable by the law of the United States, but not by the law of the Republic of Korea.

  2. (b)  The authorities of the Republic of Korea shall have the right to exercise exclusive jurisdiction over members of the United States armed forces or civilian component, and their dependents, with respect to offenses, including offenses relating to the security of the Republic of Korea, punishable by its law but not by the law of the United States.

12 Where the right to exercise jurisdiction is concurrent, Art. XXII (3) (a) US–South Korea SOFA states that:

The military authorities of the United States shall have the primary right to exercise jurisdiction over members of the United States armed forces or civilian component, and their dependents, in relation to:

  1. (i)  offenses solely against the property or security of the United States, or offenses solely against the person or property of another member of the United States armed forces or civilian component or of a dependent;

  2. (ii)  offenses arising out of any act or omission done in the performance of official duty.

Regarding any other offense, Art. XXII (3) (b) US–South Korea SOFA states that ‘the authorities of the Republic of Korea shall have the primary right to exercise jurisdiction’. However, the Agreed Minutes regarding Art. XXII (3) (b) US–South Korea SOFA also provide that:

[t]he authorities of the Republic of Korea … will, upon the request of the military authorities of the United States pursuant to paragraph 3(c), waive their primary right to exercise jurisdiction under paragraph 3(b), except when they determine that it is of particular importance that jurisdiction be exercised by the authorities of the Republic of Korea.

13 Recent incidents of USFK base pollution and sex crimes perpetrated by US military personnel have triggered public anger, leading to a renewal of anti-American sentiment. The reassessment issue of the US–South Korea SOFA has been repeatedly raised in South Korea and critics are calling for a revision.

E. Granting of Refugee Status to North Korean Defectors

14 Art. 1 Convention Relating to the Status of Refugees (‘Refugee Convention’) defines a refugee as a person who,

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Under the strict definition, it is generally understood that not all defectors seeking shelter in another country fall under the definition of refugees.

15 Pursuant to a decision of the UN General Assembly, the Office of the UN High Commissioner for Refugees was established on 1 January 1951 (Refugees, United Nations High Commissioner for [UNHCR]). According to the Statute of the Office of the UNHCR, annexed to UN General Assembly Resolution 428(V) of 14 December 1950, the High Commissioner is to provide international protection to refugees falling within the competence of his office. The Statute defines those persons to whom the High Commissioner’s competence extends, which are very close to, but not identical with, the definition provided in the Refugee Convention. Accordingly, a person who meets the criteria of the Statute will be qualified for the protection of the UN provided by the High Commissioner, regardless of whether or not he is in a country that is a party to the Refugee Convention or the 1967 Protocol Relating to the Status of Refugees (‘Refugee Protocol’). A person falling under the category of the Statute will also be qualified for protection regardless of whether or not he has been recognized by his host country as a refugee under either the Refugee Convention or the Refugee Protocol. Such refugees are usually referred to as ‘mandate refugees’, being within the High Commissioner’s mandate.

16 Since the division of Korea after World War II and the end of the Korean War, many people have defected from North Korea, for various reasons including political, ideological, religious, and economic. Before the 1970s, they defected from North Korea mainly for political reasons. However, since the 1970s South Korea witnessed rapid economic growth whereas North Korea experienced major famine and economic distress. This led to a major defection of North Koreans (called talbukja) for economic reasons, and the number increased drastically in the 2000s. The estimated number of North Korean defectors in China’s Yanbian Korean Autonomous Prefecture was approximately more than 10,000 as of 2007. The number of defectors from North Korea was only 607 before 1989, but the number officially reached 1,406 and 20,000 in 2000 and 2010 respectively.

17 It is believed that many North Korean defectors may well be considered refugees and there is room for granting mandate refugee status to them, as the group is of concern in view of their protection needs. On 29 September 2003, the UNHCR officially designated North Korean defectors as a ‘group of concern’ in the opening statement at the 54th Session of the Executive Committee of the High Commissioner’s Program. Many North Koreans defect from North Korea by crossing into China. However, long standing political ties with North Korea have led China to refuse to grant refugee status to any defector arriving from North Korea, and China considers them merely ‘illegal economic migrants’. And China, a party to the Refugee Convention, continues to forcibly repatriate defectors to North Korea where they face long prison sentences, torture, and possible execution (see also Aliens, Expulsion and Deportation). Generally, a defector could be granted refugee status through an application to the Office of the UNHCR (located in Beijing). Once the application for refugee status is made to the Office of the UNHCR, a North Korean defector may be qualified by the High Commissioner under the terms of the Statute and granted mandate refugee status. However, North Korean defectors are denied access to the Office of the UNHCR by the Chinese government.

18 As for the South Korean government’s policy regarding North Korean defectors, the South Korean government’s view is deeply rooted in a firm belief that South Korea shares a special relationship with North Korea, aiming for unification. As reaffirmed by the Supreme Court in 1996, every North Korean defector has the right to resettle in South Korea and North Korean defectors are to be considered as ordinary citizens of South Korea. A ‘Special Law on the Protection of Defectors from the North’ was introduced by the South Korean government in 1962 and remained effective until 1993. North Korean defectors were to receive an allowance the size of which depended on the category in which they were placed, and some were also provided with apartments and opportunities to enter a university of their choice. However, as the number of North Korean defectors seeking refuge in South Korea increased drastically, the South Korean government passed new measures which fuelled heated controversies. According to the South Korean government, these new measures are aimed at not only tightening screening processes of defectors and cutting down the amount of aid, but also preventing ethnic Koreans living in China from entering South Korea.

F. Disputes over the Sea Border: The Northern Limit Line

19 The Korean War ended with the 1953 Military Armistice in Korea and Temporary Supplemental Agreement (‘Armistice Agreement’) signed by both North Korea and the United Nations Command (‘UNC’). Although the Armistice Agreement specified the five islands that would remain under the control of UNC and South Korea, a maritime demarcation line could not be set mainly due to disagreements on both sides. The UNC wanted it to be based on three nautical miles of territorial sea whereas North Korea argued for twelve nautical miles. However, the line was set by the UN military forces on 30 August 1953 as a practical operational control measure. The line was originally drawn to prevent the South Korean navy from making an incursion into the North who had no significant naval forces at the time.

20 While the territorial sea limit of three nautical miles was the norm around the time the Northern Limit Line (‘NLL’) was drawn up, a limit of twelve nautical miles had become internationally accepted by the 1970s. Other than proclaiming the territorial sea to extending 12 nautical miles in 1955, North Korea did not explicitly dispute or violate the NLL. Yet, in 1973, North Korea began to openly dispute the NLL by sending patrol ships over the NLL, partly due to the fact that the NLL based on three nautical miles was preventing North Korea from accessing significant territorial waters. And in 1999, North Korea unilaterally asserted a maritime demarcation line which was dissimilar to the NLL.

21 As North Korea does not officially recognize the NLL, its fishing boats work close to or cross the limit line escorted by North Korean naval boats, a practice which has led to several naval clashes on the NLL between South Korea and North Korea. These include the First Battle of Yeonpyeong (June 1999), the Second Battle of Yeonpyeong (June 2002) and the Battle of Daecheong (November 2009). Recently, in March 2010, a South Korean naval vessel (Cheonan) was sunk by an explosion near Baengnyeong Island in the Yellow Sea. Although the North Korean government denies its involvement, an investigation group led by international experts concluded the explosion to have been caused by a North Korean torpedo attack. Further, in November 2010, North Korean forces bombarded Yeonpyeong following a South Korean artillery exercise on Yeonpyeong, which North Korea had requested to be called off.

22 Based on a now declassified source, North Korea argues that it had not been informed of the existence of the line and that the NLL had never been officially presented to North Korea. Against North Korea’s claims, the South Korean Ministry of National Defense reasserted the legitimacy of the NLL in 2002 and argued that North Korea’s claims were groundless. South Korea argued that the NLL is an indispensable measure to administer the Armistice Agreement, and that North Korea tacitly recognized the NLL as a maritime demarcation line until the early 1970s. South Korea’s counterarguments are also based on the fact that the NLL has been the practical maritime demarcation line for almost five decades and was confirmed and validated by the 1992 Non-Aggression Pact. Meanwhile the UNC announced its position on the NLL issue on 11 June 1999, stating the NLL to have served as an effective means of preventing military tension between North and South Korean military forces for 46 years, while serving as a practical demarcation line which has contributed to the separation of forces. The UNC emphasized its position on 23 August 1999 that it considers the demarcation line to be the de facto maritime border recognized by both Koreas for long years and thus non-negotiable (Ryoo 10–11).

G. EEZ Demarcation and Fisheries Agreements

1. Overview

23 South Korea has long held negotiations with Japan and China regarding an exclusive economic zone (‘EEZ’) demarcation, but agreement has not been reached. Further, the fishery relations among the three countries, South Korea, China, and Japan, have serious implications as they share the same maritime areas and marine resources (see also Fishery Zones and Limits). South Korea has expressed its concerns about the 1997 Agreement on Fisheries between Japan and the People’s Republic of China, particularly the northern limit of their joint fishing area, which overlaps with the South Korea–Japan joint fishing zone in the East China Sea (see also Fisheries Agreements). And China has protested against the new 1998 Agreement on Fisheries between the Republic of Korea and Japan for illegally undermining China’s sovereignty rights in the border areas.

2. South Korea–Japan Dispute

(a) Unsettled EEZ Demarcation

24 The positions of South Korea and Japan remain widely apart when it comes to EEZ demarcation. South Korea and Japan embrace the principle of an equidistant median line when it comes to a division of EEZs. South Korea’s 1996 Exclusive Economic Zone Act provides that ‘the EEZ boundary shall be established by agreement with the relevant States on the basis of international law’. However, Art. 5 (2) Exclusive Economic Zone Act indicates that the South Korean government would use a ‘median line’ as a geographical limit in exercising its sovereign rights in the absence of delimitation agreed on. South Korea and Japan have overlapping EEZ claims in the eastern portion of their joint development zones. In August 1996, South Korea and Japan opened negotiations aimed at drawing EEZ demarcation lines and revising the 1965 Agreement between Japan and the Republic of Korea concerning Fisheries. A rigorous negotiation process led to Japan’s proposal to separate the EEZ demarcation issue from the revision of the fishery agreement. Japan also suggested setting up a temporary joint fishing zone around the Dokdo/Takeshima Islands.

25 After the negotiations, the two parties reached a new Agreement on Fisheries between the Republic of Korea and Japan in September 1998 on the basis of modified 35 nautical miles exclusive fishing zones for each country. To resolve the problem of overlapping EEZs, both countries agreed to provisionally delimit their overlapping EEZs based on the Agreement between Japan and the Republic of Korea concerning the Establishment of Boundary in the Northern Part of the Continental Shelf Adjacent to the Two Countries, which came into force on 22 June 1978. Based thereon, the two countries established two joint fishing zones, one in the East Sea around Dokdo/Takeshima and the other in the East China Sea around Jeju island. These two provisional measure zones of joint fishing are called ‘intermediate zones’ by the Korean Government and ‘provisional zones’ by the Japanese government, which clearly demonstrates the implications the names might have on the territorial sovereignty and maritime boundaries.

26 Unsettled EEZ demarcation is even more controversial due to the fact that it involves a territorial dispute between South Korea and Japan over Dokdo/Takeshima Islands. Art. 121 UN Convention on the Law of the Sea defines an island as ‘a naturally formed area of land, surrounded by water, which is above water at high tide’. And ‘the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory’ (ibid). However, it further provides that rocks ‘which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’ (ibid). South Korea has claimed sovereignty over Dokdo/Takeshima Islands on the international law of effective occupation of territory, and has consistently raised protest against the presence of Japanese nationals on Dokdo/Takeshima. However, Japan continues to object to South Korea’s sovereignty over the islands and fails to clarify its position thereto. There is currently a lack of agreement as to whether Dokdo/Takeshima are inhabited islands having the right to set out an EEZ or not.

(b)  Fisheries Agreement

27 After the liberation of Korea from Japan in 1945, fisheries relations between the two countries turned tense as fish stocks had been depleted by Japanese fishing boats. On 18 January 1952, the South Korean Government proclaimed that South Korea claimed jurisdiction over a zone extending 20 to 200 nautical miles from the coastal baseline (baselines). However, the conflict between the two countries became increasingly acute when an increasing number of Japanese fishing vessels were found to violate this line. And in order to mitigate the tension between the two countries, South Korea and Japan concluded the Agreement between Japan and the Republic of Korea Concerning Fisheries in 1965. The Agreement established exclusive fishery zones within a limit of 12 nautical miles measured from each country’s coastal baselines. It further established joint regulation zones outside the 12 nautical miles limit of the exclusive fishery zones. Within the joint regulation zones, the conditions for fishing operations, including the number and size of fishing vessels, types of gears, dates of fishing operations, and catch to be shared equally, were controlled by the Agreement. Additionally it was provided that South Korea and Japan exercised exclusive control and jurisdiction over their own nationals and fishing vessels in the joint regulation zones.

28 In the 1980s fishing operations on the part of Japan increased, and the introduction of EEZs by the 1982 UN Convention on the Law of the Sea led to a unilateral withdrawal of Japan from the 1965 Fisheries Agreement in 1998. Japan’s intention was to claim its EEZ which entered into force in accordance with the UN Convention on the Law of the Sea. There had been long standing negotiations between South Korea and Japan over the issue of a fishing boundary since 1998. Tension escalated between the two countries and excessive fishing by both countries also brought about environmental issues. After more than two years of intense negotiations, the new Agreement on Fisheries between the Republic of Korea and Japan was signed on 28 November 1998 and entered into force on 22 January 1999.

29 As South Korea and Japan both claim ownership of the Dokdo/Takeshima Islands, the most contentious issue was how to delineate the provisional fishing zone that the two countries will jointly control. The two provisional measure zones are a product of compromise reached by the two countries. The 1998 Fisheries Agreement compromised on catch quotas and fishing zone boundaries and the scope of the Agreement relates only to fisheries matters. However, the new Agreement contains a separate provision insulating its scope of application from issues other than fisheries matters. Although the Agreement is silent on what constitutes issues other than fisheries matters, it is considered to include the issue of territorial sovereignty and boundary delimitation. According to Art. 16 (2) Agreement on Fisheries between the Republic of Korea and Japan it remains in force for a minimum period of three years after its initial entry into force, and shall remain so unless one of the parties terminates the Agreement by giving six months’ written notice to the other party.

3. South Korea–China Dispute

(a) Unsettled EEZ Demarcation

30 The introduction of the EEZ concept by the UN Convention on the Law of the Sea and its general acceptance by the international community have had a serious impact on Northeast Asian countries, especially China, Japan, and South Korea. Under the UN Convention on the Law of the Sea, EEZs extend to a distance of 200 nautical miles out from its coastal baseline. The exception to this rule occurs when State coastal baselines are less than 400 nautical miles apart and EEZs overlap. When such an overlap occurs, it is up to the States to delineate the actual maritime boundary through negotiations.

31 When it comes to EEZs, South Korea and China were reluctant to establish their own, apparently because of the difficulty of delimiting their maritime boundaries and concerns that establishing a 200 nautical miles EEZ might have a negative impact on their fisheries. And it was not until the late 1990s when South Korea and China established their respective EEZs through national legislation and concluded fisheries agreements with each other. In 1998 China promulgated its Exclusive Economic Zone and Continental Shelf Act ([done and entered into force 26 June 1998] 38 UN Law of the Sea Bulletin 28). South Korea enacted its law on continental shelf earlier in 1970, and later enacted a separate law on its EEZ, the Exclusive Economic Zone Act promulgated on 8 August 1996. Both South Korea and China proclaimed EEZs and the continental shelf in the Yellow Sea and in the East China Sea where the width between the nearest coasts of the two countries is less than 400 nautical miles. Both countries have been unable to narrow down their differences over the delimitation principle. South Korea insists upon the equidistance principle for the boundaries in the Yellow Sea, whereas China argues for the application of equitable principle, as is explicitly stipulated in China’s Exclusive Economic Zone and Continental Shelf Act.

32 The issue of EEZ demarcation has been one of the most controversial issues between China and Japan as well, as their EEZs likewise overlap. Japan claims a division of the EEZ based on the median line between the countries’ coastlines, but China claims an EEZ extending to the eastern end of the Chinese continental shelf which goes deep into the Japanese EEZ beyond the median line. Basically, China does not accede to Japan’s claims that the median line should be used as a demarcation line in an absence of an agreed line with China. It should be noted that the drafting history of Art. 74 UN Convention on the Law of the Sea indicates that these provisions do not accord preferential status to either the equidistant median line principle or the equitable principle. The equidistance principle is not referred to at all in either Art. 74 or 83 UN Convention on the Law of the Sea, which define the delimitation of EEZ and continental shelf respectively. The principle only applies to the delimitation of the territorial sea. It should also be noted that the UN Convention on the Law of the Sea emphasizes the delimitation by ‘agreement’. Art. 83 (2) UN Convention on the Law of the Sea stipulates the obligation of the States concerned to resort to the procedures provided for in Part XV. And Art. 83 (3) UN Convention on the Law of the Sea further obliges the States concerned to ‘make every effort to enter into provisional arrangements of a practical nature’, the purpose of which is to limit unilateral delimitation.

(b)  Fisheries Agreement

33 It was only after the establishment of diplomatic relations that South Korea and China concluded a government-to-government fisheries agreement. The Agreement on Fisheries between the Republic of Korea and the People’s Republic of China for cooperative fisheries management in the Yellow Sea was signed in August 2000 and entered into force on 30 June 2001. The Agreement constitutes the first of its kind in the history of the two countries and it was to be effective for five years. The Agreement reaffirms each country’s exclusive rights over fishery resources and fishing activities in its own EEZ, establishes general principles for reciprocal fishing access in each other’s EEZ, and creates a cooperative management regime for their shared fishery resources.

34 South Korea and China have designated three types of management zones representing their efforts to preserve traditional fishing communities and to mitigate the impact of fishing restrictions. They have designated (i) an EEZ, (ii) waters in transitional arrangements (transitional zone) and (iii) provisional waters (provisional measure zone). Nationals and fishing vessels of each party are permitted to fish within the other party’s EEZ. In order to fish in the other party’s EEZ, they have to comply with the terms of the Agreement as well as the domestic laws and regulations of that party. Transitional zones are located on each side of the joint resource management area and provide some flexibility for each party in restricting fishing in formerly open waters. Each party has to phase out its fishing activities in the transitional zone of the other party after four years and gradually conform to the coastal State’s EEZ jurisdiction. In provisional measure zones, neither party’s fisheries related laws nor regulations apply.

H. Establishment of FTA and its Prospects

1. Overview

35 South Korea established the Free Trade Agreement (‘FTA’) Promotion Roadmap in September 2003, which classified the Korean government’s promotion of FTAs into the short-term promotion with Japan, Singapore, and the Association of Southeast Asian Nations (ASEAN) and the mid-and long-term promotion (three to five years) with the European Union, China, and the US. FTAs with most of the countries included in the FTA Roadmap have been promoted as originally scheduled. Currently, FTAs with Chile (April 2004), Singapore (March 2006), the European Free Trade Association (EFTA) (September 2006), ASEAN (June 2007), India (January 2010), Peru (August 2011) and the US (March 2012) have entered into force. South Korea is currently negotiating FTAs with the Cooperation Council for the Arab States of the Gulf (GCC), Australia, New Zealand, Columbia, Canada, Turkey, and Mexico. Further, South Korea is conducting joint research projects with prospective FTA partners including China, Japan, MERCOSUR, Israel, Vietnam, Central America, Malaysia, and Indonesia. A possible trilateral FTA (China, Japan, and South Korea) is also being discussed.

2. Promotion of FTAs in South Korea: The KORUS FTA

36 South Korea is considered one of the countries which benefits most from the multilateral trading system governed by the World Trade Organization (WTO), for the South Korean economy depends largely on exports. The South Korean government considers international economics as a priority in economic policies and FTAs have been used as one policy tool for achieving economic advancement. The main reasons presented by the government for its promotion of FTAs are, first, to minimize damage that can be caused by not concluding FTAs and second, to strengthen economic structure through active market opening.

37 The National Assembly of South Korea has recently ratified the long-pending United States–Korea Free Trade Agreement (‘KORUS FTA’) on 22 November 2011. Although the treaty was initially agreed to by former presidents Roh Moo-Hyun and George Bush on 30 June 2007, its ratification was stalled due to the parties’ disagreement on US beef exports and automobiles. After intensive negotiations in 2010, a renegotiated version of the treaty was concluded and signed in early December 2010. KORUS FTA was passed by the US Congress on 12 October 2011 and entered into force on 15 March 2012.

3. Review of the KORUS FTA

38 The KORUS FTA is expected to strengthen and solidify the economic partnership of the two countries. According to South Korea’s finance ministry, the KORUS FTA is expected to help the economy of South Korea to expand by 5.7% within a decade and create 350,000 jobs. Thereby South Korea’s trade surplus may expand by an average $2.77 billion annually in the first fifteen years of the FTA, with automobile, electronics, and chemical exporters among the biggest contributors. In the US, it is expected to boost exports by as much as $10.9 billion in its first year of full effect, according to an estimate from the US International Trade Commission.

39 The KORUS FTA is expected to eliminate 95% of each country’s tariffs on consumer and industrial goods within five years, and most remaining tariffs would be eliminated within ten years. Tariffs and quotas on a broad range of agricultural products are expected to be eliminated or phased out, with almost two-thirds of imports from the US becoming duty free since entry into force. The KORUS FTA is also expected to increase access to the Korean market in the financial services area and provide market access commitments in virtually all major service sectors, including the opening up of the Korean legal market for foreign legal consulting services. The Agreement also addresses the issue of non-tariff barriers to trade in a wide range of sectors and includes provisions on competition policy, labour and environment, and transparency and regulatory due process.

40 The auto package forms one of the important parts of the KORUS FTA. The US automakers have long argued that South Korea’s tax on large cars produced in the US was a major impediment to market access in Korea, and the FTA abolishes these taxes. Under the new agreement the US tariff on cars, currently 2.5%, will be maintained until January 2016 and then eliminated. In turn, Korea’s 8% tariff on cars is reduced to 4% and eliminated at the same time as the US tariff on cars. Further, the US 8% tariff on light trucks will be maintained until 2019 and then phased out over the next three years. However, Korea’s 10% tariff on trucks has been eliminated. Korea further agreed that US imports would comply with fuel economy and emissions standards if the cars do not exceed 119% of current South Korean emissions limits. The Agreement recognizes that cars imported into South Korea generally are larger and less fuel efficient than the domestically produced cars in South Korea. South Korea also agreed to recognize and/or accept US safety regulations for imported US cars if the number imported does not exceed 25,000 vehicles per automaker.

I. Conclusion

41 Rising from the Japanese occupation and the Korean War, South Korea has come to play an important role on the international stage. Now a leading world economy, South Korea is faced with many international legal issues, some of which include human rights issues related to North Korean defectors, the relation with North Korea in the context of territorial disputes involving the Northern Limit Line and the peace agreements, the relations with China and Japan in the context of maritime boundary delimitation and fisheries agreements, and the FTAs. South Korea’s efforts to find solutions to these controversial problems continue to grow, as the country is already at the centre of the change in global order and strives to make contributions to international stability and development.

Select Documents