뉴스레터

Lee Seok-yong. Professor

"Maritime territory" is a term we often see these days but whose definition we may not know. A territory is an area of land under the jurisdiction of a sovereign state. Therefore, in some sense, "maritime territory" is self-contradictory. Nevertheless, we can understand "maritime territory" as territorial jurisdiction and a term referring to the present and future status of the seas. A country's maritime jurisdiction over its surrounding seas is strengthening and becoming increasingly similar to a country's territorial rights. Thus, while a sea cannot be land, in the self-contradictory term "maritime territory" lies the future of the seas.

Looking down from outer space, Earth is said to look like a blue marble. Our planet appears blue because oceans comprise over 70% of Earth's surface. Humans have been living on the specks of land scattered throughout the oceans, claiming ownership and jurisdiction. Naturally, humans could not but become land-oriented and interstate competition over jurisdictional domains have centered on territorial lands.

When states cared only about land in terms of jurisdictional domains, the seas were peaceful zones where the concept of ownership had no relevance. It is against this backdrop that Hugo Grotius, the founder of modern international law, argues in The Free Sea [Mare Liberum] that there is no need to determine ownership of the seas given their essential nature. His reasoning is that the seas are not fixed, and the concept of national borders do not apply to fish—the only marine resources at that time. Therefore, there is no reason to delineate boundaries and determine ownership over the seas.

In contrast, states used whatever means necessary for territorial expansion. They competed to find unclaimed territories and claim ownership. They also engaged in military invasions to fulfill their desire for more land. However, there is no terra nullius left on earth. In addition, the exercise of military force for territorial expansion is forbidden by international law. Accordingly, there is very little possibility of states acquiring new tracts of territories on land. Thus, states have turned to the seas to satisfy their desire for territorial expansion.

Desire for territorial expansion turns toward the seas

On the centennial of the founding of the American Society of International Law in 2006, Professor Bernard Oxman, its president at the time, wrote a paper. In it, he notes that the since the Peace of Westphalia in the mid-17th century, much of the history of international law had dealt with "territorial temptation." In other words, the history of international law in the modern period had been intertwined with territorial confrontations and conflicts between states. However, such a description had been applicable only to territorial lands; regarding the seas, the situation could not have been more different. If the history of international law concerning territorial land had been the gradual victory of "territorial temptation", the history of international maritime law had been the opposite—the gradual victory of mare liberum.

However, there was a major turning point in the international maritime order after the mid-20th century. According to Oxman, when terra nullius had more or less disappeared and territorial expansion by military force had been banned, "territorial temptation" spread to the seas at a rapid pace. Through the Truman proclamation of 1948, the United States claimed that a nation has the right to exercise jurisdiction over the continental shelf to which it is contiguous. This marked the spread of "territorial temptation" to the seas.

The UN Convention on the Law of the Sea (UNCLOS), adopted in 1982, is a "maritime constitution" that was formulated in consideration of conflicting principles and demands, including the traditional concept of free seas versus the demands of coastal states for the expansion of maritime jurisdiction as well as the need to develop maritime resources versus the need for environmental protection. Nevertheless, UNCLOS was unable to stop the territorializing trend of the seas that was put in motion after Truman's proclamation. Today's territorializing of the seas is generally taking place with the strengthening and expansion of maritime jurisdiction over continental shelves and exclusive economic zones (EEZs) in accordance with the stipulations of UNCLOS, and islands are being utilized as a means of expanding territorial waters.

Safeguarding sovereignty over Dokdo is the same as defending our maritime territory of the future

The expansion of the continental shelves of costal states is inevitable under the UNCLOS regime, and as is evidenced by the situation in the Arctic Ocean, countries will use maritime science and technology to engage in increasingly fierce competition over continental shelves. EEZ is a system that emerged as a compromise between the demand by coastal states for the expansion of territorial waters and the traditional concept of the free use of international waters. However, once a state has established an EEZ, it takes measures to strengthen its jurisdiction over the waters. Hence, there is a possibility that EEZs can turn into new maritime territory. In the meantime, although Article 121 of UNCLOS stipulates, "Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive zone or continental shelf," Japan and some other countries are attempting to establish EEZs and continental shelves around rocks to the consternation of the international community.

Korea is surrounded by sea on three sides, so while we do not have much land, we have always thought our surrounding seas were relatively expansive. The territorial waters of a state are expanding to the far seas through continental shelves and EEZs. Against such a backdrop, Korea, located in a narrow seaway, is actually limited in terms of the territorial waters we can claim. With the territorializing of the sea gaining momentum, coastal states' jurisdiction over EEZs and continental shelves will become increasingly similar to territorial jurisdiction over land. When the term "maritime territory" no longer sounds unfamiliar, Korea's territory will seem all that much smaller.

The term "maritime territory" portends the coming of an era in which coastal states have greatly enhanced jurisdiction over EEZs and continental shelves. It is my hope that Korea establishes policies concerning maritime territory to ready ourselves for this future. If we expect the importance of the seas to grow significantly, we cannot afford not to get ourselves better prepared. A scholar of international law once said the seas are to be construed as a "frontier" in terms of law given the lack of pertinent historical precedent. However, it is very important to undertake historical, scientific, and legal studies of the seas to defend our maritime territory of the future. In this sense, Dokdo is very significant in the safeguarding of our maritime territory. The reason being that sovereignty over Dokdo goes beyond our jurisdiction over the island proper but also over our rights to the waters surrounding it.