[KS] Library of Congress Korean Controversy

Kent Allen Davy kentdavy at gmail.com
Sun Jul 27 22:16:33 EDT 2008

I think Professor Ledyard needs to pay closer attention to the language of
UNCLOS (and perhaps to get familiar with the conventions re the
interpretation of legal documents such as the treaty that UNCLOS is):

*"Rocks which cannot sustain human habitation or economic life of their own"
. *(emphasis added)

Moreover, as I indicated, that is not the end of the matter.  Even though
the Damned Rocks could not sustain an assertion of an EEZ under UNCLOS,
which I understand is a view in which ROKGOV concurs, they arguably could
be the basis for an assertion of a twelve mile territorial water claim, if
they can demonstrated under international law (which would include the
interpretation of both pre-existing int'l law norms and the ways in which
they may be held to have been superseded and/or pre-empted or otherwise
modified by UNCLOS) to constitute someone's soveriegn territory.

The other stuff cited by Ledyard is impertinent - particularly those actions
taken by ROKGOV artificially to render the otherwise statutorily
uninhabitable Rocks "habitable".  UNCLOS contemplates the creation of even
wholly artificial structures within a country's EEZ (e.g.) oil drilling
platforms, but not the artificial rendering of an otherwise naturally
uninhabitable island (as defined) for the purpose of creating a platform for
the purpose of asserting an EEZ.

Again that still leaves open the question of who, if anyone, can assert the
12 mile limit around the Damned Rocks and, even more importantly, what that
might mean in practical terms given that the Damned Rocks themselves and
such twelve mile perimeter would lie within the area of overlap of the
respective EEZs of each of Korea and Japan, were they to assert them. (I
haven't checked to see of either has).

On Mon, Jul 28, 2008 at 5:42 AM, <gkl1 at columbia.edu> wrote:

> In reference to recent postings by Messrs. McCann. Savenije, and Davy:
>   In any case, Tokto/Takeshima is not quite a mere rock as defined in the
> Davy posting below. There is an inhabitable island there. It has at least
> two permanent Korean residents; a baby is even said to have been born there
> once (even though it was a stunt: a mother from Ullungdo wanted her baby to
> be born there). There is sufficient space for a modest guard detachment
> rotated periodically. Food in the form of fish and seaweed is richly
> available from the surrounding waters. There is space for the collection and
> storage of rainwater.
> Other types of supplies are easily available on a daily basis (subject to
> sea conditions) from nearby Ullungdo, and, significantly further away,
> Okinoshima, both with sizeable populations.
>   There is no need to take seriously the rocks in "Liancourt Rocks." There
> is a need to take seriously the ROKs presently occupying it.
> Gari Ledyard
> Quoting Kent Allen Davy <kentdavy at gmail.com>:
>  In response to David McCann's comment:  The UN Convention on the Law of
>> the
>> Sea ("UNCLOS") provides in pertinent part as follows:
>> *
>> Article121
>> Regime of islands
>> *
>> *1. An island is a naturally formed area of land, surrounded by water,
>> which
>> is above water at high tide.*
>> *2. Except as provided for in paragraph 3, 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.*
>> *3. Rocks which cannot sustain human habitation or economic life of their
>> own shall have no exclusive economic zone or continental shelf.*
>> It should be clear from Article 121(3) that the Damned Rocks cannot
>> provide
>> the basis for an assertion by a state claiming territorial sovereignty
>> over
>> them with of the [rather expansive (200 mile)] Exclusive Economic Zone
>> [the
>> name of which alone for current purposes should suffice to indicate what
>> is
>> at stake] provided for in Articles 55 et seq. of Part V of UNCLOS, nor for
>> a
>> state's assertion of the [similarly expansive] rights in a related
>> continental shelf in accordance with Articles 76 et seq. of Part VI.
>> The significance of the dispute over the Damned Rocks between Korean and
>> Japan, at least in current economic terms, thus comes down to the rights
>> that accrue to them under UNCLOS if they are considered to constitute
>> territory of one or the other state.  That is spelled out in Articles 2, 3
>> et seq. of Sections 1 and 2 of Part II as follows:
>> *
>> * *
>> * ** *
>> Article2
>> Legal status of the territorial sea, of the air space
>> over the territorial sea and of its bed and subsoil
>> *
>> *1. The sovereignty of a coastal State extends, beyond its land territory
>> and internal waters and, in the case of an archipelagic State, its
>> archipelagic waters, to an adjacent belt of sea, described as the
>> territorial sea.*
>> *2. This sovereignty extends to the air space over the territorial sea as
>> well as to its bed and subsoil.*
>> *3. The sovereignty over the territorial sea is exercised subject to this
>> Convention and to other rules of international law.*
>> ** *
>> * ** *
>> Article3
>> Breadth of the territorial sea
>> *
>> *Every State has the right to establish the breadth of its territorial sea
>> up to a limit not exceeding 12 nautical miles, measured from baselines
>> determined in accordance with this Convention.*
>> So, in other words, what is at stake here in current material terms is
>> whether Korea or Japan gets to control the area of sea extending 12 miles
>> out in all directions from the Damned Rocks.
>> On Sun, Jul 27, 2008 at 6:13 PM, <dmccann at fas.harvard.edu> wrote:
>>  Did anyone else happen to see the article in a newspaper recently about
>>> the
>>> difference between a rock and an island?  It seemed to be sort of a
>>> technical
>>> distinction, but with some significant ramifications.  As I remember, a
>>> rock is
>>> not inhabitable, while an island is.  With an "island" go territorial
>>> claims, as
>>> for example to fishing or other resources, but with a "rock," no such
>>> claims can
>>> be made.
>>> David McCann
>>> Quoting Young-Key Kim-Renaud <kimrenau at gwu.edu>:
>>> > Ok, ok, I stand corrected: I should have said the "the predominant
>>> Korean
>>> > position" and not "the Korean position." I was not too far off, though,
>>> if I
>>> > was not careful enough in choosing my words. To say what I really
>>> meant,
>>> I
>>> > could only quote Brother Anthony's earlier posting on this:
>>> > "... Let us not forget that this issue is less about 'nationalism' than
>>> it is
>>> > about fishing rights and sea-bed mineral rights, and also about
>>>  pan-Korean
>>> > unity in the face of what is perceived as ongoing Japanese
>>> expansionism.
>>> For
>>> > once Seoul and Pyongyang are speaking the same language.  It is surely
>>> also
>>> > about a sense of frustration at the way the Japanese positions (cf the
>>> 'East
>>> > Sea' issue)  find so easily such a sympathetic audience worldwide,
>>> while
>>> > Korea (as someone has noted) resorts to strident screaming in protest
>>> because
>>> > no one seems to be listening.
>>> >
>>> > So far as I know, the present blow-up was produced by the publication
>>> of
>>> > Japanese school-textbook guidelines, which can only be seen as a form
>>> of
>>> > provocation, and Koreans are wondering 'Why now?' That seems a good
>>> > question."
>>> > To respond to your sweeping and accusatory generalization about
>>> "distorted
>>> > scholarship" and certain research methods [by some Koreans, I supposed
>>> you
>>> > meant] in Korean studies, with not one single reference, is a waste of
>>> time
>>> > in my opinion. So, I won't. It is a good thing that you meant no
>>> offense
>>> to
>>> > anyone. Just one plea--please, let us not essentialize things and
>>> groups
>>> of
>>> > people. Those days are long gone--at least, I hope so!
>>> > YK
>>> > Young-Key Kim-Renaud, Chair
>>> > Department of East Asian Languages and Literatures
>>> > Professor of Korean Language and Culture and International Affairs
>>> > The George Washington University
>>> > 801 22nd Street, N.W. (Academic Center, Rome Hall 469)
>>> > Washington, DC 20052
>>> > E-mail: kimrenau at gwu.edu
>>> > http://home.gwu.edu/~kimrenau <http://home.gwu.edu/%7Ekimrenau> <
>>> http://home.gwu.edu/%7Ekimrenau>,
>>> > http://myprofile.cos.com/kimreny76
>>> > Tel: (O) 202-994-7107
>>> > Fax: (O) 202-994-1512
>>> >
>>> > ----- Original Message -----
>>> > From: Steven Capener <sotaebu at yahoo.com>
>>> > Date: Saturday, July 26, 2008 5:24 am
>>> > Subject: Re: [KS] Library of Congress Korean Controversy
>>> > To: Korean Studies Discussion List <koreanstudies at koreaweb.ws>
>>> >
>>> > Dear all,
>>> > Let me start by saying no personal offense is intended to anyone.
>>> However, am
>>> > I the only one that finds this recent statement problematic?
>>> > "Your message only supports and reinforces my suspicion and puzzle how
>>> > unsympathetic the international opinion may be to Korea. That some of
>>> similar
>>> > voices should come from those who are in Korean studies and should at
>>> least
>>> > try to understand the Korean position puzzles me, though."
>>> > There are many reasons why 'international opinion' is often
>>> unsympathetic
>>> to
>>> > Korea but that would take this discussion in another (probably
>>> unproductive)
>>> > direction entirely. The second part of the assertion, however, is very
>>> > relevant to this discussion and is a position I've encountered many
>>> times
>>> in
>>> > Korean studies. This is the idea that in academic inquiry there is a
>>> 'Korean
>>> > position,' not a conclusion naturally arrived at as the result of
>>> objective
>>> > research. It is in effect starting with the conclusion one wants and
>>> > researching backwads selectively to demonstrate that conclusion. This
>>> > approach is most obvious in research done in Korea on the colonial
>>> period
>>> > (particularly in history and literature). The other problem with this
>>> > statement is the implication of a requirement of loyalty or sympathy to
>>> a
>>> > position because it is Korean.
>>> > It seems to me this approach to area studies would be a problem
>>> wherever
>>> it
>>> > may be applied.
>>> > Respectfully yours,
>>> > Steven D. Capener
>>> >
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