[Opinion] Measures To Respond NK`s Intrusion

3 North Korean commercial ships have intruded without permission into the territory of the South and one of them returned to the North through the NLL nearby YeonPyeong Island in the West Sea. Another North Korean ship entered into the South territorial waters in the southwest of the Korean peninsula.

This incident occurred in the midst of the lull of the inter-Korean dialogue and the U.S.`s re-examination of the North Korean policies. It cannot be exactly evaluated why the North committed such intrusions. It seems however that the complicated calculation of the economic, military, and diplomatic matters has affected the incident.

The intrusion of the Cheju Straits seems a well-calculated demonstration to acquire of the innocent passage right through the Cheju Island Straits. To save money and time to turn around the southern route of the Cheju Island, the North Korean ships have to pass through the Cheju channel. By utilizing the South government, who has been eager for the resumption of the inter-Korean dialogue, the North might want to make the innocent passage, which would help the North to gain considerable economic benefits, as an established fact.

The intrusion of the South territory and the NLL is analyzed as the propagandization of the need for the establishment of the U.S. - NK peace treaty. The North is also to raise the change of the NLL at the negotiation table when the North-U.S. talks resume. In this regard, the North is anticipated to continue its intrusions into the South territory to gauge the responses of the South government and to make the innocent passage as an established fact.

It has been reported that the government positively considers permitting the passage of the North Korean commercial ships when they notify or request the permission in advance. The government response seems intended to create the hospital atmosphere for the resumption of the inter-Korean dialogue, avoiding the incident from negatively influencing the inter-Korean relationship.

Even though the desperate measure under the pressure of the necessity, the government response is not satisfactory. Some argue that to grant the `innocent passage` right to the North Korean ships doesn`t create any problem with the international common law. However, the argument ignores the fact that the inter-Korean relationship is not an international relationship but a special relationship, that is, the Koreas are on the state of armistice. Various international multilateral conventions and the international common laws have not been applied to the inter-Korean relationship. The two Koreas have always dealt with the facing problems by the special agreements. By the agreement between the two Koreas, the South Korean ships have passed through the North Korean territory, for example, the South Korean cargo ships for the humanitarian aids of the Korea Red Cross or the South Korean government to the North. The Mt. Keumkang Tour cruise is another good example.

Considering the inter-Korean relationship, which is on the hostile confrontation, it is unreasonable to apply the innocent passage clause to the North Korean ships without any condition. That would be end up with a threat to the South security and would not be helpful for the improvement of the inter-Korean relationship. Therefore, the government should have requested for the mutual guarantee of the North Korea and should have announced the permission of the innocent passage through the Cheju Straits on that condition. The North Korea has captured the South Korean fishery ships that had intruded in the North territory by mistake and still hold many of them in custody. It would be against the principle of equity if the North Korea ships freely pass through waters in the South territory while the South Korean fishery boats or commercial ships still remain in danger of captures by the North.

The government has to request the resumption of the dialogue between the governments and resolve the problem through the negotiation. In addition, on the spirit of the mutuality, the government needs to approach the matter of the innocent passage clause for the peaceful use of the surrounding waters of the Korean peninsula. The topics of the negotiation may include the problems of the fishing grounds in the East Sea and of the blue crab fishing in the West Sea.

In addition, the problem of the maritime boundary, including the alternation of the NLL, has to be resolved by the dialogues between the governments, which is inscribed in the South-North Basic Agreement. The territorial waters of the both sides have to be respected until a new agreement reached. The government has to deal with the innocent passage issue in order to promote the mutual benefit, the South-North cooperation, and the national security. More active and strategic approach of the government is required.

Je Seong-Ho (professor of International law, Joong-Ang University)